exv4w1



 





Exhibit 4.1




VOTING AGREEMENT




     This
Voting Agreement (the “Agreement”) is made and entered into as of July 2, 2007 by and
between Transmeta Company, a Delaware corporation (the “Company”), and Advanced Micro Devices, Inc.
a Delaware corporation (together with its permitted successors, assigns and transferees, “AMD”).



RECITALS




     WHEREAS, concurrently with the execution of this Agreement, the Company and AMD are entering
into a Stock Purchase Agreement (as amended from time to time, the “Purchase Agreement”) that
provides for the sale to AMD of shares of the Company’s Series B Preferred Stock, par value
$0.00001 per share (the “Series B Preferred Stock”), which shares of Series B Preferred Stock are
convertible into shares of the Company’s Common Stock (the “Common Stock”); such shares of Series B
Preferred Stock, together with any shares of Series B Preferred Stock issued or issuable with
respect to or in exchange for the shares of Series B Preferred Stock sold under the Purchase
Agreement, are collectively referred to herein as the “Shares.”



     WHEREAS, in connection with AMD’s acquisition of the Shares, the Company and AMD
desire to set forth their agreements and understandings with respect to the voting of the Shares in
the event the Company becomes subject to Section 2115 of the California General Corporations Law
(the “CGCL”).



AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and agreements
set forth herein, together with other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:



     1. Bring-Along Right.



               1.1 Actions to be Taken. If (A) (i) the holders of a majority of the then-outstanding
shares of Common Stock (the “Majority Holders”) approve (1) the merger or consolidation of the
Company by means of any transaction or series of related transactions, provided that the
Company’s stockholders constituted immediately prior to such transaction hold less than 50% of the
voting power of the surviving or acquiring entity immediately after such transaction; or (2) a sale
of all or substantially all of the assets of the Corporation requiring approval of the Company’s
stockholders, that is followed by the distribution of the proceeds from that sale to the Company’s
stockholders (in each case, a “Liquidation”) and (ii) the Board of Directors of the Company (the
“Board”) approves such Liquidation and (B) at the time of the vote to approve the Liquidation, the
Company is subject to Section 2115 of the CGCL, as evidenced by a certificate of the Chief
Executive Officer or Chief Financial Officer of the Company certifying that the Company is subject
to Section 2115 of the CGCL (the “Officer’s
Certificate”), and the provisions of Section 1201 of the CGCL requires that the principal
terms of such Liquidation be approved by any class of outstanding preferred shares of the Company
in order to consummate such Liquidation, then AMD hereby agrees:



 









 





                         (a) to vote (in person or by proxy, as applicable) all Shares in favor of, and tender all
Shares in support of, such Liquidation; and



                         (b) to execute and deliver all related documentation and take such other action in support of
such Liquidation as shall reasonably be requested by the Company in order to carry out the terms
and provisions of this Section 1.



               1.2 Exceptions. Notwithstanding the foregoing, AMD will not be required to comply
with Section 1.1 above in connection with any Liquidation unless:



                         (a) neither the execution and delivery by AMD of documents to be entered into in connection
with such Liquidation, nor the performance of AMD’s obligations thereunder, will cause a breach or
violation of the terms of any law or judgment, order or decree of any court or governmental agency;
or



                         (b) upon the consummation of such Liquidation, the consideration receivable by AMD with
respect to the Shares is in accordance with the provisions of the Certificate of Designation.



               1.3 Officer’s Certificate. The Officer’s Certificate described in Section 1.1
above shall be delivered to AMD by the Company at least ten (10) business days prior to the date on
which the Company solicits AMD’s vote pursuant to this Agreement and shall be accompanied by
documentation supporting the Company’s determination that the Company is subject to Section 2115 of
the CGCL. If AMD disagrees with the Company’s determination, AMD shall notify the Company within
five (5) business days of receipt of the Officer’s Certificate and supporting documentation from
the Company. For the next five (5) business days thereafter, the Company and AMD each agree to
negotiate in good faith to resolve the dispute. If AMD does not notify the Company that it
disagrees with the Company’s determination, at the end of ten (10) business days following receipt
of the Officer’s Certificate, AMD shall have been deemed to agree with the Company’s determination
and the Company shall be entitled to enforce the terms of this Agreement against AMD.



     2. Remedies.



               2.1 Specific Enforcement. AMD acknowledges and agrees that the Company will be
irreparably harmed in the event any of the provisions of this Agreement are not performed by AMD in
accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that the
Company shall be entitled to an injunction to prevent breaches of this Agreement, and to specific
enforcement of this Agreement and its terms and provisions in any action instituted in any court of
the United States or any state having subject matter jurisdiction.



               2.2 Remedies Cumulative. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.



     3. Term. This Agreement shall be effective as of the date hereof and shall continue
in effect until and shall terminate upon the earliest to occur of (a) the consummation of a
Liquidation, provided that the provisions of Section 1 hereof will continue after the
closing of



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any Liquidation to the extent necessary to enforce the provisions of Section 1
with respect to such Liquidation; (b) termination of this Agreement in accordance with Section
4.7 below; or (c) the date on which no Shares remain outstanding.



     4. Miscellaneous.



               4.1 Transfers. Each transferee or assignee of any Shares subject to this Agreement
shall continue to be subject to the terms hereof, and, as a condition precedent to the Company’s
recognizing such transfer, AMD (or any of its permitted transferees or assigns) agrees to cause
each transferee or assignee to agree in writing to be subject to each of the terms of this
Agreement by executing and delivering a writing in form and substance satisfactory to the Company
stating that such transferee agrees to be bound by all provisions hereof. Upon the execution and
delivery of such a writing, such transferee shall be deemed to be a party hereto as if such
transferee were the transferor and such transferee’s signature appeared on the signature pages of
this Agreement and shall be deemed to be “AMD” for all purposes of this Agreement. The Company
shall not permit the transfer of the Shares subject to this Agreement on its books or issue a new
certificate representing any such Shares unless and until such transferee shall have complied with
the terms of this Section 4.1. Each certificate representing the Shares subject to this
Agreement if issued on or after the date of this Agreement shall be endorsed by the Company with
the legend set forth in Section 4.11.



               4.2 Successors and Assigns. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of the parties. Nothing
in this Agreement, express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement.



               4.3 Governing Law. This Agreement and any controversy arising out of or relating to
this Agreement shall be governed by and construed in accordance with the General Corporation Law of
the State of Delaware as to matters within the scope thereof, and as to all other matters shall be
governed by and construed in accordance with the internal laws of the State of California, without
regard to conflict of law principles that would result in the application of any law other than the
law of the State of California.



               4.4 Counterparts; Facsimile. This Agreement may be executed and delivered by
facsimile signature and in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.



               4.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.



               4.6 Notice. Any notice or other communication required or permitted hereunder must be
in writing, and shall be delivered personally, by facsimile or by certified,
registered, or express mail, postage prepaid and return receipt requested. Such notice shall
be deemed given when so delivered personally or when sent by confirmed facsimile transmission



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on a business day to the party in question or, if mailed, three (3) business days after the date of
deposit in the United States mails, as follows:



          (a) if to the Company:


Transmeta Corporation

3990 Freedom Circle

Santa Clara, CA 95054

Attn: President

Fax: (408) 919-6540



with a copy to:



Transmeta Corporation

3990 Freedom Circle

Santa Clara, CA 95054

Attn: General Counsel

Fax: (408) 919-5286



and



Mark A. Leahy, Esq.

Fenwick & West LLP

801 California Street

Mountain View, CA 94041

Fax: (650) 938-5200




          (b) if to AMD, to:


Advanced Micro Devices, Inc.

5204 East Ben White Blvd

Austin, TX 78741

Attn: Harry Wolin, Senior Vice President and General Counsel

Fax: (512) 602-4932



with a copy to:



Faina Medzonsky

Advanced Micro Devices, Inc.

One AMD Place, m/s 68

P.O. Box 3453

Sunnyvale, CA 94088-3453

Fax: (408) 774-7002




               4.7 Consent Required to Amend or Waive. This Agreement may be amended or modified and
the observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written instrument
executed by holders of a majority of the then-outstanding Shares and the Company. The



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Company
shall give prompt written notice of any amendment or waiver hereunder to any party that did not
consent in writing thereto. Any amendment or waiver effected in accordance with this Section
4.7 shall be binding on each party and all of such party’s successors and permitted assigns,
whether or not any such party, successor or assignee entered into or approved such amendment or
waiver.



               4.8 Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any party under this Agreement, upon any breach or default of any other party under
this Agreement, shall impair any such right, power or remedy of such non-breaching or
non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or default previously
or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the
part of any party of any breach or default under this Agreement, or any waiver on the part of any
party of any provisions or conditions of this Agreement, must be in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.



               4.9 Severability. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.



               4.10 Entire Agreement. This Agreement, the Purchase Agreement, the Related Agreements
(as defined in the Purchase Agreement), the Company’s Second Amended and Restated Certificate of
Incorporation and the Certificate of Designation, constitute the full and entire understanding and
agreement between the parties with respect to the subject matter hereof, and any other written or
oral agreement relating to the subject matter hereof existing between the parties are expressly
canceled.



               4.11 Legend on Share Certificates. Each certificate representing any Shares issued on
or after the date hereof shall be endorsed by the Company with a legend reading substantially as
follows:



“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT, AS MAY BE
AMENDED FROM TIME TO TIME, (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST
FROM THE ISSUER), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING
SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF THAT VOTING AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER AND
OWNERSHIP SET FORTH THEREIN.”



The Company, by its execution of this Agreement, agrees that it will cause the certificates
evidencing the Shares and any securities issued upon conversion of or in exchange for the Shares
issued after the date hereof to bear the legend required by this Section 4.11 of this
Agreement, and it shall supply, free of charge, a copy of this Agreement to any holder of a
certificate
evidencing Shares upon written request from such holder to the Company at its principal office.
The parties to this Agreement do hereby agree that the failure to cause the certificates evidencing



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the Shares to bear the legend required by this Section 4.11 herein and/or the failure of
the Company to supply, free of charge, a copy of this Agreement as provided hereunder shall not
affect the validity or enforcement of this Agreement.



               4.12 Further Assurances. At any time or from time to time after the date hereof, the
parties agree to cooperate with each other, and at the request of any other party, to execute and
deliver any further instruments or documents and to take all such further action as the other party
may reasonably request in order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties hereunder.



               4.13 Costs of Enforcement. If any party to this Agreement seeks to enforce its rights
under this Agreement by legal proceedings, the non-prevailing party shall pay all costs and
expenses incurred by the prevailing party, including, without limitation, all reasonable attorneys’
fees.



               4.14 Acknowledgment. The parties hereby acknowledge that this Agreement only governs
the voting of the Shares in the event the Company is subject to Section 2115 of the CGCL and
neither AMD nor any transferee or assignee hereunder will be bound by this Agreement with respect
to any shares of Common Stock issued upon conversion of the Shares or any other shares of capital
stock of the Company held by them.



[Signature Page Follows]




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     IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of the date
first written above.



	 	 	 	 	 
	 	Transmeta Corporation,

a Delaware Corporation

 	 
	 	By:  	/s/ Lester M. Crudele
 	 
	 	Name:  	Lester M. Crudele 	 
	 	Its:	President and Chief Executive Officer
	 	Date: 	July 2, 2007 
	 
	 	Advanced Micro Devices, Inc.,

a Delaware corporation

 	 
	 	By:  	/s/ Derrick R. Meyer
 	 
	 	Name:  	Derrick R. Meyer 	 
	 	Its:	President and Chief Operating Officer
	 	Date: 	July 2, 2007