exv4w11



 





EXHIBIT 4.11




 





TRANSMETA CORPORATION




STANDARD STOCK WARRANT AGREEMENT PROVISIONS




 





 









 








	 	 	 	 	 
	ARTICLE 1 ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
	 	 	2	 
	 
	 	 	 	 
	1.1 Issuance Of Warrant Certificates
	 	 	2	 
	1.2 Execution And Delivery Of Warrant Certificates
	 	 	2	 
	1.3 Registration And Countersignature
	 	 	3	 
	 
	 	 	 	 
	ARTICLE 2 WARRANT PRICE, DURATION AND EXERCISE OF WARRANT CERTIFICATES
	 	 	4	 
	 
	 	 	 	 
	2.1 Warrant Price
	 	 	4	 
	2.2 Duration of Warrant Certificates
	 	 	4	 
	2.3 Exercise of Warrant Certificates
	 	 	4	 
	 
	 	 	 	 
	ARTICLE 3 OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES 
	 	 	5	 
	 
	 	 	 	 
	3.1 No Rights as Securityholders Conferred by Warrant Certificates
	 	 	5	 
	3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates
	 	 	5	 
	3.3 Holder of Warrant Certificate May Enforce Rights
	 	 	6	 
	3.4 Call of Warrants by the Company
	 	 	6	 
	3.5 Optional Reduction of Warrant Price
	 	 	6	 
	3.6. Reservation of Shares
	 	 	6	 
	3.7. Obtaining of Governmental Approvals and Stock Exchange Listings
	 	 	7	 
	3.8. Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants
	 	 	7	 
	3.9. Fractional Warrants and Fractional Shares
	 	 	10	 
	3.10. Notices to Warrantholders
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 4 EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
	 	 	12	 
	 
	 	 	 	 
	4.1 Exchange and Transfer
	 	 	12	 
	4.2 Treatment of Holders of Warrant Certificates
	 	 	12	 
	4.3 Cancellation of Warrant Certificates
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 5 CONCERNING THE WARRANT AGENT
	 	 	13	 
	 
	 	 	 	 
	5.1 Warrant Agent
	 	 	13	 
	5.2 Conditions of Warrant Agent’s obligations
	 	 	13	 
	5.3 Resignation and Appointment of Successor Warrant Agent
	 	 	15	 
	 
	 	 	 	 
	ARTICLE 6 MISCELLANEOUS
	 	 	16	 
	 
	 	 	 	 
	6.1 Supplements and Amendments
	 	 	16	 
	6.2 Notices and Demands to the Company and Warrant Agent
	 	 	16	 






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	6.3 Addresses
	 	 	16	 
	6.4 Delivery of Prospectus
	 	 	16	 
	6.5 Obtaining of Governmental Approvals
	 	 	16	 
	6.6 Persons Having Rights under Warrant Agreement
	 	 	17	 
	6.7 Headings
	 	 	17	 
	6.8 Counterparts
	 	 	17	 
	6.9 Inspection of Agreement
	 	 	17	 
	6.10 Governing Law
	 	 	17	 
	6.11 Successors
	 	 	17	 
	6.12 Termination
	 	 	17	 






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     From time to time, Transmeta Corporation, a Delaware corporation (the “Company”), may enter
into one or more warrant agreements that provide for the issuance and sale of warrants (“Warrants”)
to purchase shares of the Company’s [Common Stock, $0.00001 par value][Preferred Stock, $0.00001
par value] (collectively “Shares”). The standard provisions set forth herein may be included or
incorporated by reference in any such warrant agreement (a “Warrant Agreement”). The Warrant
Agreement, including the provisions incorporated therein by reference, is herein referred to as
this “Agreement.” The person named as the “Warrant Agent” in the first paragraph of the Warrant
Agreement is herein referred to as the “Warrant Agent.” Unless otherwise defined in this Agreement
or in the Warrant Agreement, as the case may be, terms defined in the Warrant Agreement are used
herein as therein defined and terms defined herein are used in the Warrant Agreement as herein
defined.



ARTICLE 1

ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES




     1.1 Issuance of Warrant Certificates. Each Warrant Certificate shall evidence one or
more Warrants. Each Warrant evidenced thereby shall represent the right, subject to the provisions
contained herein and therein, to purchase such number of Shares as are set forth in the Warrant
Agreement. The number of Warrants which may be issued and delivered under this Agreement is
unlimited.



     There shall be established in or pursuant to a resolution of the Board of Directors of the
Company or any duly authorized committee thereof or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants: the designation of such Warrants; if
the Warrants are issued together as a unit with any other securities of the Company, the date after
which the Warrants shall be freely tradable separately from such other securities (the
“Distribution Date”); if the Company may at its option or under circumstances described therein
provide for an earlier Distribution Date; the expiration date, pursuant to Section 2.2; the
exercise price and any form of consideration other than lawful money of the United States of
America by which the exercise price may be paid pursuant to Section 2.1; the Call Price, Call Date
and Call Terms pursuant to Section 3.4; the limitations, if any, upon the Reduced Warrant Price and
the Reduced Warrant Price Period, pursuant to Section 3.5; the circumstances, if any, under which
the Exercise Price and the number of Shares purchasable upon the exercise of each Warrant and the
number of Warrants outstanding are subject to adjustment and the manner of making any such
adjustment.



     1.2 Execution and Delivery of Warrant Certificates. Each Warrant Certificate, whenever
issued, shall be in registered form substantially in such form or forms as shall be established by
the Company from time to time pursuant to one or more resolutions of the Board of Directors of the
Company or in one or more warrant agreements supplemental hereto, and in each case shall be dated
as of the date of issuance thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the Warrant Certificate may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with (i) any law or with any rule or regulation
made pursuant thereto or (ii) any rule or regulation of any stock exchange on which the Warrant
Certificates may be listed, or to conform to usage. The



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Warrant Certificates shall be signed on behalf of the Company by its Chairman of the Board of
Directors, a Vice Chairman of the Board of Directors, its President, a Vice President or its
Treasurer and attested by its Secretary or Assistant Secretary, under its corporate seal. Such
signatures may be manual or facsimile signatures of such authorized officers and may be imprinted
or otherwise reproduced on the Warrant Certificates. The seal of the Company may be in the form of
a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.



     No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall
be exercisable, until such Warrant Certificate has been countersigned by the manual signature of
the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly
delivered hereunder.



     If any officer of the Company who shall have signed any of the Warrant Certificates either
manually or by facsimile signature shall cease to be such officer before the Warrant Certificates
so signed shall have been countersigned and delivered to the Warrant Agent, such Warrant
Certificates nevertheless may be countersigned and delivered as though the person who signed such
Warrant Certificates had not ceased to be such officer of the Company. Any Warrant Certificate may
be signed on behalf of the Company by such persons as, at the actual date of the execution of such
Warrant Certificate, shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not an officer.



     1.3 Registration and Countersignature. The Warrant Agent shall, upon receipt of
Warrant Certificates, duly executed on behalf of the Company, countersign the Warrant Certificates
evidencing Warrants to purchase the number of Shares set forth in the Warrant Agreement and shall
deliver such Warrant Certificates to the appropriate person or entity upon the order of the
Company. After the original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for, or in connection with the registration of transfer of, one or more previously
countersigned Warrant Certificates, as hereinafter provided. The Warrant Certificates shall not be
valid for any purpose unless so countersigned.



     The Warrant Agent’s countersignature on all Warrants shall be in substantially the following
form:



[NAME OF WARRANT AGENT],

as Warrant Agent




By _______________________




Authorized Signatory




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ARTICLE 2

WARRANT PRICE, DURATION AND EXERCISE OF WARRANT CERTIFICATES




     2.1 Warrant Price. The exercise price of each Warrant and any other form of
consideration other than lawful money of the United States of America by which the exercise price
may be paid shall be as set forth in the Warrant Agreement. The purchase price (including moneys
and such other consideration) of the Shares upon exercise of the Warrants is referred to in this
Agreement as the “Warrant Price” and is payable in full at the time of exercise.



     2.2 Duration of Warrant Certificates. Warrant Certificates may be exercised in whole
at any time, and in part from time to time, during the period set forth in the Warrant Agreement
(the “Expiration Date”). Each Warrant Certificate not exercised on or before the close of business
on the Expiration Date shall become void, and all rights of the holder thereunder and under this
Agreement shall cease.



     2.3 Exercise of Warrant Certificates.



          (a) Prior to the Expiration Date, a Warrant Certificate, if countersigned by the Warrant
Agent, may be exercised in whole or in part by providing certain information set forth on the
reverse side of the Warrant Certificate and, unless otherwise provided pursuant to Section 2.1, by
paying in full (in cash or by certified or official bank check in New York Clearing House funds or
by bank wire transfer in immediately available funds), in United States dollars, the Warrant Price
for the Shares as to which the Warrant Certificate is exercised, to the Warrant Agent at its
corporate trust office at the address set forth in the Warrant Agreement. The payment must specify
the name of the holder and the number of Warrants exercised by such holder. Warrants will be deemed
to have been exercised upon receipt by the Warrant Agent of the Warrant Price and the Warrant
Certificate properly completed and duly executed by the registered holder or holders thereof or by
the duly appointed legal representative thereof or by a duly authorized attorney, such signature to
be guaranteed (under the Medallion Program) by a bank or trust company, by a broker or dealer which
is a member of the National Association of Securities Dealers, Inc. (“NASD”) or by a member of a
national securities exchange. If the Warrant Agent receives moneys in payment of the Warrant Price,
the Warrant Agent shall deposit all funds received by it in the account of the Company maintained
with it for such purpose. If the Warrant Agent receives consideration other than moneys for
Warrants, the Warrant Agent shall deliver such consideration directly to the Company. In either
case, the Warrant Agent shall advise the Company by telex or telecopy at the end of each day as to
the Warrant Certificates that have been exercised and the amount of moneys deposited to its account
or the type and amount of other consideration to be delivered to it.




          (b) The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company
of (i) the number of Warrants exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Shares to which such holder
is entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants remaining after such exercise and (iv) such other information as the Company
shall reasonably require.




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          (c) As soon as practicable after receipt of payment of the Warrant Price and the Warrant
Certificate properly completed and duly executed at the corporate trust office of the Warrant
Agent, the Company shall issue or deliver, upon the order of the holder of such Warrant
Certificate, the Shares in authorized denominations to which such holder is entitled, in fully
registered form in such name or names as may be directed by such holder, and if such Warrant
Certificate was not exercised in full, upon request of the holder a new Warrant Certificate
evidencing the number of Warrants remaining unexercised shall be issued if sufficient time remains
prior to the Expiration Date.




          (d) The Company will pay all documentary stamp taxes attributable to the initial issuance of
Warrants and of Shares upon the exercise of Warrants; provided, however, that the Company shall not
be required to pay any tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Shares in a name other than the
registered holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and the
Company shall not be required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the amount of such tax or
shall have established to the satisfaction of the Company that such tax has been paid.




ARTICLE 3

OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES




     3.1 No Rights as Securityholders Conferred by Warrant Certificates. No Warrant
Certificate shall entitle the holder thereof to any of the rights of a stockholder of the Company,
including the right to receive the payment of dividends on or vote the Shares.



     3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the
Company and the Warrant Agent of evidence reasonably satisfactory to them of the ownership and the
loss, theft, destruction or mutilation of the Warrant Certificate, and of indemnity reasonably
satisfactory to them, and, in the case of mutilation, upon surrender thereof to the Warrant Agent
for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver, in exchange for or
in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate
of the same tenor and for a like number of Warrants. Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and any other expense
(including the fees and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall constitute an additional contractual obligation of the Company,
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with
any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) any and all other rights or
remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.



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     3.3 Holder of Warrant Certificate May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any holder of any Warrant Certificate, without the consent of the
Warrant Agent, the holder of any Shares or the holder of any other Warrant Certificate, may, in his
or her own behalf and for his or her own benefit, enforce, and may institute and maintain any
audit, action or proceeding against the Company to enforce or otherwise in respect of, his right to
exercise his or her Warrant Certificate in the manner provided in his or her Warrant Certificate
and in his or her Agreement.



     3.4 Call of Warrants by the Company. If so provided in the Warrant Agreement, the
Company shall have the right to call and repurchase any or all Warrants at the price (the “Call
Price”) and on or after the date (the “Call Date”) and upon the terms (the “Call Terms”) as shall
be established from time to time in or pursuant to resolutions of the Board of Directors of the
Company or in the Warrant Agreement before the issuance of such Warrants. Notice of such Call
Price, Call Date and Call Terms shall be given to registered holders of Warrants in writing by the
Company or the Warrant Agent.



     3.5 Optional Reduction of Warrant Price. Subject to the limits, if any, established
from time to time by the Board of Directors of the Company or in the Warrant Agreement, the Company
shall have the right, at any time or from time to time, voluntarily to reduce the then current
Warrant Price to such amount (the “Reduced Warrant Price”) and for such period or periods of time,
which may be through the close of business on the Expiration Date (the “Reduced Warrant Price
Period”), as may be deemed appropriate by the Board of Directors of the Company. Notice of any such
Reduced Warrant Price and Reduced Warrant Price Period shall be given to registered holders of
Warrants in writing by the Company or the Warrant Agent. After the termination of the Reduced
Warrant Price Period, the Warrant Price shall be such Warrant Price that would have been in effect
had there been no reduction in the Warrant Price pursuant to the provisions of this Section 3.5.



     3.6. Reservation of Shares. For the purpose of enabling it to satisfy any obligation
to issue Shares upon exercise of Warrants, the Company will at all times through the close of
business on the Expiration Date, reserve and keep available, free from preemptive rights and out of
its aggregate authorized but unissued or treasury shares of [Common/Preferred Stock], the number of
Shares deliverable upon the exercise of all outstanding Warrants, and the transfer agent for the
shares is hereby irrevocably authorized and directed at all times to reserve such number of
authorized and unissued or treasury shares of [Common/Preferred Stock] as shall be required for
such purpose. The Company will keep a copy of this Agreement on file with such transfer agent and
with every transfer agent for any shares of the Company’s capital stock issuable upon the exercise
of Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from time to time
from such transfer agent stock certificates issuable upon exercise of outstanding Warrants, and the
Company will supply such transfer agent with duly executed stock certificates for such purpose.



     Before taking any action that would cause an adjustment pursuant to Section 3.7 reducing the
Exercise Price below the then par value (if any) of the Shares issuable upon exercise of the
Warrants, the Company will take any corporate action that may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and nonassessable
Shares at the Exercise Price as so adjusted.



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     The Company covenants that all Shares issued upon exercise of the Warrants will, upon issuance
in accordance with the terms of this Agreement, be fully paid and nonassessable and free from all
taxes, liens, charges and security interests created by or imposed upon the Company with respect to
the issuance and holding thereof.



     3.7. Obtaining of Governmental Approvals and Stock Exchange Listings. So long as any
Warrants remain outstanding, the Company will take all necessary steps (a) to obtain and keep
effective any and all permits, consents and approvals of governmental agencies and authorities and
to make filings under federal and state securities acts and laws, which may be or become requisite
in connection with the issuance, sale, transfer and delivery of the Warrant Certificates, the
exercise of the Warrants and the issuance, sale, transfer and delivery of the Shares issued upon
exercise of Warrants, and (b) to have the shares of Stock, immediately upon their issuance upon
exercise of Warrants, (i) listed on each national securities exchange on which the
[Common/Preferred Stock] is then listed or (ii) if the [Common/Preferred Stock] is not then listed
on any national securities exchange, listed for quotation on the NASD Automated Quotations System
(“Nasdaq”) National Market (“Nasdaq National Market”) or such other over-the-counter quotation
system on which the Stock may then be listed.



     3.8. Adjustment of Exercise Price and Number of Shares Purchasable or Number of
Warrants. The Exercise Price, the number of Shares purchasable upon the exercise of each
Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 3.8.



          (a) If the Company shall (i) pay a dividend on its capital stock (including [Common/Preferred
Stock]) in shares of Stock, (ii) subdivide its outstanding shares of [Common/Preferred Stock],
(iii) combine its outstanding shares of [Common/Preferred Stock] into a smaller number of shares of
[Common/Preferred Stock] or (iv) issue any shares of its capital stock in a reclassification of the
[Common/Preferred Stock] (including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the number of Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be entitled to receive the kind and number of Shares or other securities of the
Company which such holder would have owned or have been entitled to receive after the happening of
any of the events described above, had such Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An adjustment made pursuant to
this paragraph (a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.




          (b) In the event of any capital reorganization or any reclassification of the
[Common/Preferred Stock] (except as provided in paragraph (a) above or paragraph (h) below), any
holder of Warrants upon exercise thereof shall be entitled to receive, in lieu of the
[Common/Preferred Stock] to which he would have become entitled upon exercise immediately prior to
such reorganization or reclassification, the shares (of any class or classes) or other securities
or property of the Company that he or she would have been entitled to receive at the same aggregate
Exercise Price upon such reorganization or reclassification if his or her Warrants had been
exercised immediately prior thereto; and in any such case, appropriate provision (as determined in
good faith by the Board of Directors of the Company, whose determination shall

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be conclusive and shall be evidenced by a resolution filed with the Warrant Agent) shall be
made for the application of this Section 3.8 with respect to the rights and interests thereafter of
the holders of Warrants (including the allocation of the adjusted Warrant Price between or among
shares of classes of capital stock), to the end that this Section 3.8 (including the adjustments of
the number of shares of [Common/Preferred Stock] or other securities purchasable and the Warrant
Price thereof) shall thereafter be reflected, as nearly as reasonably practicable, in all
subsequent exercises of the Warrants for any shares or securities or other property thereafter
deliverable upon the exercise of the Warrants.




          (c) Except for adjustments required by paragraph (h) hereof, no adjustment in the number of
Shares purchasable hereunder shall be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this paragraph (c) are not
required to be made shall be carried forward and taken into account in any subsequent adjustment.
All calculations shall be made to the nearest cent and to the nearest one-hundredth of a Share, as
the case may be.




          (d) Whenever the number of Shares purchasable upon the exercise of each Warrant is adjusted as
herein provided (whether or not the Company then or thereafter elects to issue additional Warrants
in substitution for an adjustment in the number of Shares as provided in paragraph (f)), the
Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise
Price immediately prior to such adjustment by a fraction, of which the numerator shall be the
number of Shares purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Shares so purchasable immediately
thereafter.




          (e) For the purpose of this Section 3.8, the term “shares of Stock” shall mean (i) the class
of stock designated as the [Common/Preferred Stock] of the Company at the date of this Agreement,
or (ii) any other class of stock resulting from successive changes or reclassification of such
shares consisting solely of changes in par value, of from par value to no par value, or from no par
value to par value. If at any time, as a result of an adjustment made pursuant to paragraph (a) or
(b) above, the holders of Warrants shall become entitled to purchase any shares of the Company
other than shares of Stock, thereafter the number of such other shares so purchasable upon exercise
of each Warrant and the Exercise Price of such shares shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to
the Shares contained in paragraphs (a) through (d), inclusive, above, and the provisions of
Sections 2.1, 2.2, 2.3, 3.6, 3.7(a) and 3.10, with respect to the Shares, shall apply on like terms
to any such other shares.




          (f) The Company may elect, on or after the date of any adjustment required by paragraphs (a)
through (b) of this Section 3.8, to adjust the number of Warrants in substitution for an adjustment
in the number of Shares purchasable upon the exercise of a Warrant. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be exercisable for the same
number of Shares as immediately prior to such adjustment. Each Warrant held of record prior to such
adjustment of the number of Warrants shall become that number of Warrants (calculated to the
nearest hundredth) obtained by dividing the Warrant Price in effect prior to adjustment of the
Warrant Price by the Warrant Price in effect after adjustment of the Warrant

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Price. The Company shall notify the holders of Warrants in the same manner as provided in the
first paragraph of Section 3.10, of its election to adjust the number of Warrants, indicating the
record date for the adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Exercise Price is adjusted or any day thereafter.
Upon each adjustment of the number of Warrants pursuant to this paragraph (f) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Warrants on such record
date Warrant Certificates evidencing, subject to Section 3.9, the additional Warrants to which such
holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and replacement for the Warrant
Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Warrant Certificates evidencing all the Warrants to be issued,
executed and registered in the manner specified in Section 1.3 and Article 4 (and which may bear,
at the option of the Company, the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in the notice.




          (g) Except as provided in paragraph (a) of this Section 3.8, no adjustment in respect of any
dividends shall be made during the term of a Warrant or upon the exercise of a Warrant.




          (h) In case of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent an agreement that each holder
of a Warrant shall have the right thereafter upon payment of the Warrant Price in effect
immediately prior to such action to purchase upon exercise of each Warrant the kind and amount of
shares and other securities and property which he or she would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance had such Warrant been
exercised immediately prior to such action. The Company shall mail by first class mail, postage
prepaid, to each holder of a Warrant, notice of the execution of any such agreement. Such agreement
shall provide for adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 3.8. The provisions of this paragraph (h) shall similarly
apply to successive consolidations, mergers, sales or conveyances. The Warrant Agent shall be under
no duty or responsibility to determine the correctness of any provisions contained in any
provisions contained in any such agreement relating either to the kind or amount of shares of stock
or other securities or property receivable upon exercise of Warrants or with respect to the method
employed and provided therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.




          (i) Irrespective of any adjustments in the Exercise Price or the number or kind of shares
purchasable upon the exercise of the Warrants, Warrants theretofore or thereafter issued may
continue to express the same price and number and kind of shares as are stated in the Warrants
initially issuable pursuant to this Agreement.




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     3.9. Fractional Warrants and Fractional Shares.



          (a) The Company shall not be required to issue fractions of Warrants on any distribution of
Warrants to holders of Warrant Certificates or to distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants there shall be paid to the registered
holders of the Warrant Certificates with regard to which such fractional Warrants would otherwise
be issuable, an amount in cash equal to the same fraction of the current market value of a full
Warrant. For purposes of this Section, the current market value of a Warrant shall be the closing
price of one Warrant (as determined pursuant to paragraph (c) below) for the trading day
immediately prior to the date on which such fractional Warrant would have been otherwise issuable.




          (b) Notwithstanding any adjustment pursuant to section 3.9 in the number of Shares purchasable
upon the exercise of a Warrant, the Company shall not be required to issue fractions of Shares upon
exercise of the Warrants or to distribute certificates which evidence fractional Shares. In lieu of
fractional Shares, there shall be paid to the registered holders of Warrant Certificates at the
time such Warrant Certificates are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of a share of [Common/Preferred Stock]. For purposes of this
Section 3.9, the current market value of a share of [Common/Preferred Stock] shall be the closing
price of a share of [Common/Preferred Stock] (as determined pursuant to paragraph (c) below) for
the trading day immediately prior to the date of such exercise.




          (c) The closing price for each day shall be the last sale price, regular way, or, if no such
sale takes place on such day, the average of the closing bid and asked prices, regular way, for
such day, in either case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the
Warrants or Stock, as the case may be, is not listed or admitted to trading on such exchange, as
reported on the principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Warrants or [Common/Preferred
Stock], respectively, is listed or admitted to trading, or if the Warrants or [Common/Preferred
Stock], as the case may be, is not listed or admitted to trading on any national securities
exchange, as reported on Nasdaq National Market or, if the Warrants or Stock, as the case may be,
is not listed or admitted to trading on Nasdaq National Market, as reported on Nasdaq.




     3.10. Notices to Warrantholders. Upon any adjustment of the number of Shares
purchasable upon exercise of each Warrant, the Warrant Price or the number of Warrants outstanding,
the Company within 20 calendar days thereafter shall (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of recognized standing selected by the
Company (who may be the regular auditors of the Company) setting forth the Warrant Price and either
the number of Shares purchasable upon exercise of each Warrant or the additional number of Warrants
to be issued for each previously outstanding Warrant, as the case may be, after such adjustment and
setting forth in reasonable detail the method of calculation and the facts upon which such
adjustment was made, which certificate shall be conclusive evidence of the correctness of the
matters set forth therein, and (ii) cause to be given to each of the registered holders of the
Warrant Certificates at such holder’s address appearing on the Warrant



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Register written notice of such adjustments by first class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the notice required to
be mailed under the other provisions of this Section 3.10.



     The Company shall cause written notice of such later Distribution Date, such later Expiration
Date, such Call Price, Call Date and Call Terms and such Reduced Exercise Price and Reduced
Exercise Price Period, as the case may be, to be given as soon as practicable to the Warrant Agent
and to each of the registered holders of the Warrant Certificates by first class mail, postage
prepaid, at such holder’s address appearing on the Warrant Register. In addition to the written
notice referred to in the preceding sentence, the Company shall make a public announcement in a
daily morning newspaper of general circulation in New York City and in San Francisco of such
earlier Distribution Date, such later Expiration Date, such Call Price, Call Date and Call Terms
and such Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, at least
once a week for two successive weeks prior to the implementation of such terms.



     If:



     (a) the Company shall declare any dividend payable in any securities upon its shares of
[Common/Preferred Stock] or make any distribution (other than a cash dividend) to the holders of
its shares of [Common/Preferred Stock], or



     (b) the Company shall offer to the holders of its shares of [Common/Preferred Stock] any
additional shares of [Common/Preferred Stock] or securities convertible into shares of
[Common/Preferred Stock] or any right to subscribe thereto, or



     (c) there shall be a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation, merger or sale of all or substantially all of its property, assets
and business as an entirety),



     (d) the Company shall cause written notice of such event to be filed with the Warrant Agent
and shall cause written notice of such event to be given to each of the registered holders of the
Warrant Certificates at such holder’s address appearing on the Warrant Register, by first class
mail, postage prepaid, and (ii) make a public announcement in a daily newspaper of general
circulation in New York City and in San Francisco of such event, such giving of notice and
publication to be completed at least 10 calendar days (or 20 calendar days in any case specified in
clause (c) above) prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the stockholders entitled to such dividend, distribution or
subscription rights, or for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. The failure to give the notice required by this
Section 3.10 or any defect therein shall not affect the legality or validity of any distribution,
right, warrant, dissolution, liquidation or winding up or the vote upon or any other action taken
in connection therewith.



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ARTICLE 4

EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES




     4.1 Exchange and Transfer. Upon surrender at the corporate trust office of the Warrant
Agent, Warrant Certificates evidencing Warrants may be exchanged for Warrant Certificates in other
denominations evidencing such Warrants and the transfer of Warrants may be registered in whole or
in part; provided that such other Warrant Certificates shall evidence the same aggregate number of
Warrants as the Warrant Certificates surrendered for exchange or registration of transfer. The
Warrant Agent shall keep, at its corporate trust office, books in which it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates, upon surrender of the
Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly completed and duly endorsed and duly signed by the registered
holder or holders thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed (under the Medallion Program) by (a) a bank or
trust company, (b) a broker or dealer that is a member of the NASD or (c) a member of a national
securities exchange and accompanied by appropriate instruments of registration of transfer and
written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent.
No service charge shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall mutually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificate duly
authorized and executed by the Company, as so requested. The Warrant Agent shall not be required to
effect any exchange or registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Warrant Certificates surrendered for such
exchange or registration of transfer.



     4.2 Treatment of Holders of Warrant Certificates. Every holder of a Warrant
Certificate, by accepting the same, consents and agrees with the Company, the Warrant Agent and
with every subsequent holder of such Warrant Certificate that, until the transfer of the Warrant
Certificate is registered on the books of the Warrant Agent, the Company and the Warrant Agent may
treat the registered holder as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.



     4.3 Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for
exercise, registration of transfer or exchange shall, if surrendered to the Company, be delivered
to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent
shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time, or otherwise dispose of, canceled
Warrant Certificates in a manner satisfactory to the Company.



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ARTICLE 5

CONCERNING THE WARRANT AGENT




     5.1 Warrant Agent. The Company hereby appoints the Warrant Agent as the Warrant Agent
of the Company in respect of the Warrant Certificates upon the terms and subject to the conditions
herein set forth, and the Warrant Agent hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and by
this Agreement, and such further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to
such powers and authority contained in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.



     5.2 Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its
obligations herein set forth upon the terms and conditions hereof, including the following (to all
of which the Company agrees and to all of which the rights hereunder of the holders from time to
time of the Warrant Certificates shall be subject):



          (a) Performance by the Company. The Company agrees that it will take any corporate
action that may be reasonably necessary in order to fulfill its obligations under this Agreement
and the Warrant Certificates, and that it will not take any action that would impair its ability to
perform its obligations under this Agreement and the Warrant Certificates.




          (b) Compensation and Indemnification. The Company agrees promptly to pay the Warrant
Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant
Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent, and to hold
it harmless against, any loss, liability or expense incurred without negligence or bad faith on the
part of the Warrant Agent, arising out of or in connection with its acting as the Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim of liability in the
premises.




          (c) Agent for the Company. In acting under this Warrant Agreement and in connection
with the Warrant Certificates, the Warrant Agent is acting solely as an agent of the Company, and
the Warrant Agent does not assume any obligation or relationship of agency or trust for or with any
of the owners or holders of the Warrant Certificates.




          (d) Counsel. The Warrant Agent may consult with counsel satisfactory to it, and the
opinion of such counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion
of such counsel.




          (e) Documents. The Warrant Agent shall be protected and shall incur no liability for
or in respect of any action taken or thing suffered by it in reliance upon any Warrant Certificate,
notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties.




13









 








          (f) Certain Transactions. The Warrant Agent and its officers, directors and employees
may buy, sell or deal in any of the Shares or other securities of the Company and may become the
owner of, or acquire any interest in, any Warrant Certificates, with the same rights that it or
they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of
the Shares or other obligations of the Company as freely as if it were not the Warrant Agent.




          (g) No Liability for Interest. Except as set forth in the Warrant Agreement, the
Warrant Agent shall not be under any liability for interest on any moneys or other consideration at
any time received by it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.




          (h) No Liability for Invalidity. The Warrant Agent shall not incur any liability with
respect to the validity of this Agreement or any of the Warrant Certificates.




          (i) No Responsibility for Representations. The Warrant Agent shall not be responsible
for any of the recitals or representations contained herein or in the Warrant Certificates (except
the Warrant Agent shall be responsible for any representations of the Warrant Agent herein and for
its countersignature on the Warrant Certificates), all of which are made solely by the Company.




          (j) No Implied Obligations. The Warrant Agent shall be obligated to perform such
duties as are herein and in the Warrant Certificates specifically set forth, but no implied duties
or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default by the Company in the performance of
its covenants or agreements contained in the Warrant Certificates or in the case of the receipt of
any written demand from a holder of a Warrant Certificate with respect to such default, including
any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise
or to make any demand upon the Company.




          (k) Instructions. The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary
or any Assistant Secretary of the Company, and to apply to such officers for advice or instructions
in connection with its duties, and shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such officer or in good faith reliance
upon any statement signed by any one of such officers of the Company with respect to any fact or
matter (unless other evidence in respect thereof is herein specifically prescribed) which may be
deemed to be conclusively proved and established by such signed statement




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     5.3 Resignation and Appointment of Successor Warrant Agent.



          (a) The Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that at all times there shall be a Warrant Agent hereunder until all the Warrant
Certificates are no longer exercisable.




          (b) The Warrant Agent may at any time resign as such agent by giving written notice to the
Company of such intention on its part, specifying the date on which its desired resignation shall
become effective; provided that such date shall not be less than 60 days after the date on which
such notice is given unless the Company agrees to accept less notice. The Warrant Agent may be
removed at any time by the filing with it of an instrument in writing signed by or on behalf of the
Company and specifying such removal an the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company organized and doing business under
the laws of the United States of America or of any State, in good standing, and authorized under
such laws to exercise corporate trust powers) and the acceptance of such appointment by such
successor Warrant Agent. Upon its resignation or removal, the Warrant Agent shall be entitled to
the payment by the Company of the compensation agreed to under Section 5.2(b) hereof for, and to
the reimbursement of all reasonable out-of-pocket expenses incurred in connection with, the
services rendered hereunder by the Warrant Agent.




          (c) If at any time the Warrant Agent shall resign, or shall be removed, or shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a petition seeking
relief under the Federal Bankruptcy Code, as now constituted or hereafter amended, or under any
other applicable federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay or meet its debts
as they mature, or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy or similar law or if any public officer shall have taken
charge or control of the Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant Agent, qualified in accordance
with the terms of this Agreement, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment of a successor Warrant Agent and
acceptance by the latter of such appointment, the Warrant Agent so superseded shall cease to be the
Warrant Agent hereunder.




          (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to
its predecessor and to the Company an instrument accepting such appointment hereunder, and
thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such




15









 




successor Warrant Agent shall be entitled to receive, all moneys, securities and other
property on deposit with or held by such predecessor, as Warrant Agent hereunder.




     (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any
corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.



ARTICLE 6

MISCELLANEOUS




     6.1 Supplements and Amendments. This Agreement may be amended or supplemented from
time to time by the parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein, or in regard to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable, provided such action shall not
adversely affect the interests of the holders of the Warrant Certificates.



     6.2 Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall
receive any notice or demand addressed to the Company by the holder of a Warrant Certificate
pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward
such notice or demand to the Company.



     6.3 Addresses. Any communication to the Warrant Agent with respect to this Agreement
shall be addressed to the address set forth in the Warrant Agreement, and any such communication to
the Company shall be addressed to the Company at the following address:


Transmeta Corporation

3990 Freedom Circle

Santa Clara, California 95054

Attention: General Counsel




or such other address as shall be specified in writing by the Warrant Agent or by the Company.




     6.4 Delivery of Prospectus. If the Company is required under applicable federal or
state securities laws to deliver a prospectus upon exercise of Warrants, the Company will furnish
to the Warrant Agent sufficient copies of a prospectus, and the Warrant Agent agrees that upon the
exercise of any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to such
holder, prior to or concurrently with the delivery of the Shares issued upon such exercise, a copy
of the prospectus.



     6.5 Obtaining of Governmental Approvals. The Company will from time to time take all
action that may be necessary to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and securities acts filings under
federal and



16









 







state laws, which may be or become requisite in connection with the issuance,
sale, transfer and delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Shares issued upon exercise of the Warrants or upon
the expiration of the period during which the Warrants are exercisable.



     6.6 Persons Having Rights under Warrant Agreement. Nothing in this Agreement is
intended, or shall be construed, to confer upon, or give to, any person or corporation other than
the Company, the Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof. All covenants, conditions, stipulations, promises and agreements contained in
this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and
their successors and of the holders of the Warrant Certificates.



     6.7 Headings. The descriptive headings of the several Articles and Sections of this
Agreement are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.



     6.8 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute but one and the same
instrument.



     6.9 Inspection of Agreement. A copy of this Agreement shall be available at all
reasonable times at the principal corporate trust office of the Warrant Agent for inspection by the
holder of any Warrant Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.



     6.10 Governing Law. This Agreement and each Warrant Certificate issued hereunder shall
be deemed to be a contract made under the laws of the State of California and for all purposes
shall be construed in accordance with the laws of such State.



     6.11 Successors. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.



     6.12 Termination. This Agreement shall terminate at the close of business on the
Expiration Date. Notwithstanding the foregoing, this Agreement will terminate on any earlier date
when the Warrants have been exercised.




17