**EXHIBIT10.25****CONFIDENTIAL TREATMENT REQUESTED****LICENSE AGREEMENT**     This License Agreement (the “***Agreement***”) is made and entered into by and between TransmetaCorporation, a Delaware corporation having its principal place of business at 3990 Freedom Circle,Santa Clara, CA 95054, U.S.A. (“***Transmeta***”), and Culture.Com Technology Limited, a Hong Kongcorporation having a correspondence address at The Penthouse, Culturecom Centre, 47 Hung To Road,Kwun Tong, Kowloon, Hong Kong (“***Culturecom***”).**RECITALS**     A. Transmeta develops and sells software-based microprocessors and related hardware andsoftware technologies, including the Crusoe and Efficeon line of microprocessors. The Crusoe andEfficeon microprocessors utilize certain proprietary Transmeta software, known as the Code MorphingSoftware, which is used to dynamically optimize and translate x86 instructions.     B. Concurrently with the execution of this Agreement, Transmeta and Culturecom are enteringinto an Asset Purchase Agreement (“***Asset Purchase Agreement***”) pursuant to which Culturecom ispurchasing from Transmeta certain assets related to the Crusoe line of microprocessors.     C. Culturecom desires to acquire from Transmeta and Transmeta desires to grant to Culturecomcertain exclusive licenses with respect to the Crusoe line of microprocessors.     D. Culturecom also desires to acquire from Transmeta and Transmeta desires to grant toCulturecom certain exclusive and non-exclusive licenses to the Efficeon line of microprocessors.     E. Culturecom also desires to acquire from Transmeta and Transmeta desires to grant toCulturecom certain licenses to use Transmeta’s Code Morphing Software solely for use in connectionwith Culturecom’s sale and support of the Crusoe and Efficeon microprocessors.     NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, theparties hereto agree as follows:**1. DEFINITIONS**     All capitalized terms used and not otherwise defined in this Agreement will have the meaningsascribed to such terms in the Asset Purchase Agreement.     1.1 “***Asset Purchase Agreement***” is defined in Recital A., above.     1.2 “***Authorized Sublicensee***” is defined in Section 6.1. *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.

 
     1.3 “***China***” means The People’s Republic of China, including Hong Kong, Macau and all otherspecial administrative regions within the People’s Republic of China. For the avoidance of doubt,China does not include Taiwan.     1.4 “***Closing***” will have the meaning ascribed to that term in the Asset Purchase Agreement.     1.5 “***Closing Date***” will have the meaning ascribed to that term in the Asset PurchaseAgreement.     1.6 “***CMS Marks***” means the trademarks identified in Exhibit E.     1.7 “***Code Morphing Software***” or “***CMS***” means Transmeta’s proprietary software that is used todynamically optimize and translate x86 instructions.     1.8 ***“Crusoe Ancillary Technology***” means (a) those items identified as Crusoe AncillaryTechnology in the Asset Purchase Agreement; and (b) Transmeta’s documentation, reference designs,tools and manufacturing information for the Crusoe Product specified in Exhibit A-3. Thoseitems specified in Exhibit A-3 are licensed under this Agreement and are not transferredunder the Asset Purchase Agreement.     1.9 “***Crusoe CMS Version***” means a version of the Code Morphing Software that operates inconnection with the Crusoe Product, as identified in Exhibit A-2.     1.10 “***Crusoe Design Deliverables***” means the Crusoe Specific Design Deliverables and the CrusoeGeneral Design Deliverables.     1.11 “***Crusoe General Design Deliverables***” means the design information and documentationdescribing the design of the Crusoe Product listed in Exhibit A-1.     1.12 “***Crusoe IPR***” means Transmeta IPR which is incorporated in the Crusoe Design Deliverablesas delivered by Transmeta to Culturecom hereunder, or which is incorporated in the Crusoe Productin the form distributed by Transmeta as of the Closing Date, but excluding any Transmeta IPR thatis transferred to Culturecom under the Asset Purchase Agreement. For avoidance of doubt, CrusoeIPR includes only those Transmeta Patent Rights that are infringed by the Crusoe DesignDeliverables (excluding the Crusoe VLIW processor instruction set architecture documentation) asdelivered by Transmeta to Culturecom hereunder, or by the Crusoe Product in the form distributed byTransmeta as of the Closing Date.     1.13 “***Crusoe Licensed Product***” means and is limited to (a) Crusoe Products; (b) any standalonemicroprocessor chip that is a modification to the Crusoe Product, is developed by Culturecom or anAuthorized Sublicensee under this Agreement, and implements the same or substantially the samenative instruction set as the Crusoe Product; and (c) any system on a chip that includes amicroprocessor core that is a modification of the core in the Crusoe Product, is developed *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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by Culturecom or an Authorized Sublicensee under this Agreement, and implements the same orsubstantially the same native instruction set as the Crusoe Product.     1.14 “***Crusoe Product****”*means Transmeta’s Crusoe microprocessor chip, revision 2.1, asimplemented as a standalone chip and not as a system on a chip. For the avoidance of doubt, theCrusoe Product does not include the Crusoe CMS Version.     1.15 “***Crusoe Specific Design Deliverables***” will have the meaning ascribed to that term in theAsset Purchase Agreement.     1.16 “***Culturecom Affiliate”***means any entity that is a direct or indirect parent or subsidiaryof Culturecom or is under common control with Culturecom. For purposes of this Agreement, controlmeans having ownership of more than fifty percent (50%) of the equity securities entitled to votefor the election of directors (or, in the case of an entity that is not a corporation, for theelection of the corresponding managing authority).     1.17 “***Culturecom Crusoe Product Customer***” means any customer that purchases a Crusoe LicensedProduct from Culturecom or any Authorized Sublicensee.     1.18 “***Culturecom Efficeon Product Customer***” means any customer that purchases an EfficeonLicensed Product or from Culturecom or any Authorized Sublicensee.     1.19 ***“Efficeon Ancillary Technology***” means Transmeta’s documentation, reference designs, toolsand manufacturing information for the Efficeon Product specified in Exhibit B-3.     1.20 “***Efficeon CMS Version***” means a version of the Code Morphing Software that operates inconnection with the Efficeon Product, as identified in Exhibit B-2.     1.21 “***Efficeon Design Deliverables***” means the design information and documentation describingthe design of the Efficeon Product listed in Exhibit B-1.     1.22 “***Efficeon IPR***” means Transmeta IPR which is incorporated in the Efficeon DesignDeliverables as delivered by Transmeta to Culturecom hereunder, or which is incorporated in theEfficeon Product in the form distributed by Transmeta as of the Closing Date. For avoidance ofdoubt, Efficeon IPR includes only those Transmeta Patent Rights that are infringed by the EfficeonDesign Deliverables as delivered by Transmeta to Culturecom hereunder, or by the Efficeon Productin the form distributed by Transmeta as of the Closing Date.     1.23 ***“Efficeon Licensed Product***” means and is limited to (a) 130nm generation versions of theEfficeon Product; and (b) any 130nm generation system on a chip that includes a microprocessor corethat is the same as the core in the Efficeon Product. The Efficeon Licensed Product does notinclude, and specifically excludes, any products that are components, modules or otherwiseimplement less than the full microprocessor functionality of the Efficeon Product. *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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     1.24 “***Efficeon Product***” means Transmeta’s 130nm generation Efficeon microprocessor chip,revision 1.3, as implemented as a standalone chip and not as a system on a chip. For the avoidanceof doubt, the Efficeon Product does not include the Efficeon CMS Version.     1.25 “***Efficeon Product License Term***” means a period of three (3) years commencing as of theClosing Date.     1.26 ***“knowledge”***will have the meaning ascribed to that term in the Asset Purchase Agreement.     1.27 ***“TransChina”***means TransChina Corporation, a Delaware corporation.     1.28 “***TransChina Affiliate”***means any entity that is a direct or indirect parent or subsidiaryof TransChina, or is under common control with such entity.     1.29 “***Transmeta Ancillary Technology***” means the Crusoe Ancillary Technology and the EfficeonAncillary Technology.     1.30 “***Transmeta IPR***” means all patent rights (including rights in patent applications), maskwork rights, copyrights, rights in trade secrets and know-how, and any other intellectual propertyrights recognized in any country or jurisdiction in the world owned by or licensed to Transmeta asof the Closing Date, which intellectual property rights Transmeta has the right to license toCulturecom, as contemplated by this Agreement, without the payment of compensation of any kind toany third party; provided, that “Transmeta IPR” excludes any and all rights in and to trademarks,trade names, logos, service marks, other designations of source and design patents and designpatent applications.     1.31 “***Transmeta Patent Rights***” means all patent rights (including rights in patentapplications) that are included in the definition of Transmeta IPR.**2. LICENSE FOR CRUSOE PRODUCT**     2.1 License Grant. Subject to Culturecom’s compliance with the terms and conditionsof this Agreement, Transmeta hereby grants to Culturecom, during the term of this Agreement (whichterm shall be perpetual except if early terminated under Section 11.2), a nontransferable (exceptas provided in Section 12.1), worldwide, royalty-bearing license (without the right to sublicense,except to Authorized Sublicensees, as specified in Section 6.1) under all of the Crusoe IPR:          (a) to use the Crusoe Design Deliverables internally at Culturecom for the sole purpose ofdeveloping Crusoe Licensed Products;          (b) on an exclusive basis (except as provided in Section 2.2) to make or have made the CrusoeLicensed Products; and *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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          (c) on an exclusive basis (except as provided in Section 2.2), to distribute and sell theCrusoe Licensed Products.     For avoidance of doubt, the licenses granted in this Section 2.1 do not give Culturecom anyrights under Transmeta’s intellectual property rights in or to software, except that Culturecom mayuse the Crusoe VLIW processor instruction set architecture (ISA) documentation on a non-exclusivebasis to independently develop software implementations that are compatible with the ISA. However,the right to use the ISA documentation does not include any rights in or to the softwareimplementation itself, regardless of whether the software implementation is suggested by, given asan example in, required by or otherwise implicated by the ISA documentation.     2.2 Exclusivity Exceptions. Culturecom acknowledges and agrees the license rightsgranted to Culturecom under Section 2.1 will not be deemed to limit Transmeta from using anytechnology that comprises the Crusoe Product or from exercising any of the Crusoe IPR (or fromgranting to a third party the right to use such technology or from granting to a third party alicense under any such Crusoe IPR) to design, develop, manufacture, sell, distribute or otherwiseexploit any products based on such technology, as long as Transmeta (and such third parties)prohibits and does not during the term of this Agreement manufacture, or permit the manufacture of,any microprocessor product that implements the same or substantially the same native instructionset as the Crusoe Product, except by or through Culturecom or any Authorized Sublicensees. Withoutlimiting the generality of the preceding sentence, Culturecom acknowledges and agrees that (a)Transmeta expressly retains the right to meet (both directly or indirectly through third parties)its existing contractual obligations for the Crusoe product lines, and (b) Transmeta may license,distribute or otherwise provide to third parties components, modules or other portions oftechnology that comprise the Crusoe Product or the Crusoe IPR without expressly prohibiting theiruse in a microprocessor product that implements the same or substantially the same nativeinstruction set as the Crusoe Product, so long as such technology or Crusoe IPR representssignificantly less than the full microprocessor functionality of the Crusoe Product; both (a) and(b) without liability or obligation to Culturecom of any kind.     2.3 Exercise of Have Made Rights. Culturecom acknowledges that any exercise of its“have made” rights under Section 2.1 is expressly contingent upon Culturecom entering into awritten agreement with its contract manufacturer(s), which agreement contains provisions thatprotect Crusoe IPR to at least the same extent as the terms and conditions of this Agreement.     2.4 Reservation of Rights. No rights or licenses are granted in the Crusoe Product orto Transmeta IPR by implication, estoppel or otherwise, except as expressly set forth herein.Culturecom’s rights in the Crusoe Product and to Transmeta IPR are limited to those expresslygranted in this Agreement. Culturecom’s rights granted under this Section 2 do not include anyTransmeta IPR that is not incorporated in the Crusoe Product in the form distributed by Transmetaas of the Closing Date. For avoidance of doubt, any Transmeta patent rights that would not beinfringed by the Crusoe Product in the form distributed by Transmeta as of the Closing Date are notlicensed to Culturecom under this Section 2. *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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**3. LICENSE FOR EFFICEON PRODUCT**     3.1 License Grant. Subject to Culturecom’s compliance with the terms and conditionsof this Agreement, Transmeta hereby grants to Culturecom, during the term of this Agreement (whichterm shall be perpetual except if early terminated under Section 11.2), a nontransferable (exceptas provided in Section 12.1), royalty-bearing license (without the right to sublicense, except toAuthorized Sublicensees, as specified in Section 6.1) under all of the Efficeon IPR:          (a) to use the Efficeon Design Deliverables internally at Culturecom for the sole purpose ofdeveloping Efficeon Licensed Products;          (b) on an exclusive basis (except as provided in Section 3.2), during the Efficeon ProductLicense Term, to make or have made Efficeon Licensed Products that are standalone microprocessorchips in China;          (c) on a non-exclusive basis, during the Efficeon Product License Term to make or have madeEfficeon Licensed Products that are systems on a chip in China, and after the Efficeon ProductLicense Term, to make or have made the Efficeon Licensed Products (including both standalonemicroprocessor chips and systems on a chip) in China;          (d) on a non-exclusive basis, during and after the Efficeon Product License Term, to make orhave made the Efficeon Licensed Products in Taiwan;          (e) on an exclusive basis (except as provided in Section 3.2), during the Efficeon ProductLicense Term, to distribute and sell those Efficeon Licensed Products that are standalonemicroprocessor chips only to Chinese Market Purchasers and/or Chinese Domestic Companies; and          (f) on a non-exclusive basis, after the Efficeon Product License Term, to distribute and sellthose Efficeon Licensed Products that are standalone microprocessor chips only to Chinese MarketPurchasers and/or Chinese Domestic Companies; and          (g) on a non-exclusive basis, during and after the Efficeon Product License Term, todistribute and sell those Efficeon Licensed Products that are systems on a chip only to ChineseMarket Purchasers and/or Chinese Domestic Companies.     “Chinese Market Purchaser” means an entity that (i) purchases the Efficeon LicensedProduct from Culturecom solely for incorporation into a value-added product (e.g., a computer)designed by the entity; (ii) takes delivery of the Efficeon Licensed Product at a location in theChina Environs and incorporates the Efficeon Licensed Product into the value-added product at alocation in the China Environs; and (iii) sells the value-added product only to end users of thevalue-added product located in China. “China Environs” means Indonesia, Malaysia,Singapore, Vietnam, Thailand, Cambodia, Laos, Korea and Taiwan, provided that Culturecom hasobtained the applicable export licenses and government approvals. *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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     “Chinese Domestic Company” means an entity that (i) purchases the Efficeon LicensedProduct from Culturecom solely for incorporation into a value-added product (e.g., a computer)designed by the entity and sold under any of the entity’s brand names; and (ii) for which more thanfifty percent (50%) of the total combined voting power of the entity’s outstanding securities are(a) publicly traded on a recognized Chinese stock exchange (as of the date hereof, meaning the HongKong stock exchange, the Shanghai stock exchange and the Shenzhen stock exchange) or (b) owned byChinese nationals or (c) owned by corporations registered in China that have not received anyforeign (i.e., non-China) investment, as evidenced by classification of the corporation as aChinese domestic company on the entity’s Chinese business license. For example, as of the datehereof, Chinese Domestic Company includes Lenovo; but does not include Dell, HP or any of theirChinese subsidiaries; any distributor or reseller of the Efficeon Licensed Product that does notdesign its own value-added product even if it is a Chinese domestic company; or any internationalprocurement office.     For avoidance of doubt, the licenses granted in this Section 3.1 do not give Culturecom anyrights to use Transmeta’s intellectual property rights to create sub-130nm generationmicroprocessors. However, they also do not prohibit Culturecom from creating sub-130nm generationmicroprocessors so long as Culturecom does not use Transmeta’s intellectual property rights indoing so.     3.2 Exclusivity Exceptions. Culturecom acknowledges and agrees the license rightsgranted to Culturecom under Section 3.1 will not be deemed to limit Transmeta from using anytechnology that comprises the Efficeon Product or from exercising any of the Efficeon IPR (or fromgranting to a third party the right to use such technology or from granting to a third party alicense under any such Efficeon IPR), during the Efficeon Product License Term or thereafter, todesign, develop, manufacture, sell, distribute or otherwise exploit any products based on suchtechnology (including, without limitation, the Efficeon Product), as long as Transmeta (and suchthird parties) prohibits and does not during the Efficeon Product License Term (a) manufacture, orpermit the manufacture of any 130nm generation Efficeon Product in China except by Culturecom orany Authorized Sublicensee or (b) distribute and sell, or permit the distribution and sale of, any130nm generation Efficeon Product to any customers located in China, except by or throughCulturecom or any Authorized Sublicensees. Without limiting the generality of the precedingsentence, Culturecom acknowledges and agrees that Transmeta expressly retains the right, during theEfficeon Product License Term or thereafter, to manufacture, distribute and sell (both directly orindirectly through third parties) any 90nm generation Efficeon Product anywhere, including inChina, without liability or obligation to Culturecom of any kind.     3.3 Exercise of Have Made Rights. Culturecom acknowledges that any exercise of its“have made” rights under Section 3.1 is expressly contingent upon Culturecom entering into awritten agreement with its contract manufacturer(s), which agreement contains provisions thatprotect Efficeon IPR to at least the same extent as the terms and conditions of this Agreement.     3.4 Reservation of Rights. No rights or licenses are granted in the Efficeon Productor to Transmeta IPR by implication, estoppel or otherwise, except as expressly set forth herein. *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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Culturecom’s rights in the Efficeon Product and to Transmeta IPR are limited to thoseexpressly granted in this Agreement. Culturecom’s rights granted under this Section 3 do notinclude any Transmeta IPR that is not incorporated in the Efficeon Product in the form distributedby Transmeta as of the Closing Date. For avoidance of doubt, any Transmeta patent rights thatwould not be infringed by the Efficeon Product in the form distributed by Transmeta as of theClosing Date are not licensed to Culturecom under this Section 3.     3.5 Extension to Sub-130nm Geometries. Upon Culturecom’s request, the parties willnegotiate in good faith entering into a license or other collaborative agreement under whichCulturecom would have the right to manufacture and/or sell a 90nm or other sub-130nm generation ofthe Efficeon Product. While the foregoing requires the parties to use good faith efforts to enterinto an agreement, it shall not be deemed to obligate either party to enter into any suchagreement.     3.6 Extension in Geography. Upon Culturecom’s request, provided that Culturecom hasmet all of the Milestones set forth in Section 6.5, the parties will negotiate in good faithentering into a license or other collaborative agreement to expand the geographic scope of thisAgreement. While the foregoing requires the parties to use good faith efforts to enter into anagreement, it shall not be deemed to obligate either party to enter into any such agreement.**4. LICENSE FOR CRUSOE CMS VERSION AND EFFICEON CMS VERSION**     4.1 License Grant for Efficeon CMS Version. Subject to Culturecom’s compliance withthe terms and conditions of this Agreement, Transmeta hereby grants to Culturecom, during the termof this Agreement, a non-exclusive, nontransferable (except as provided in Section 12.1),royalty-free license (without the right to sublicense, except to Authorized Sublicensees asspecified in Section 6.1):          (a) to copy and distribute the Efficeon CMS Version, in binary code form, solely to CulturecomEfficeon Product Customers; and          (b) to use the Efficeon CMS Version, in binary code form, to support use of the Efficeon CMSVersion and the Efficeon Licensed Products by Culturecom Efficeon Product Customers.     4.2 License Grant for Crusoe CMS Version. Subject to Culturecom’s compliance with theterms and conditions of this Agreement, Transmeta hereby grants to Culturecom, during the term ofthis Agreement, a non-exclusive, nontransferable (except as provided in Section 12.1), royalty-freelicense (without the right to sublicense, except to Authorized Sublicensees as specified in Section6.1):          (a) to copy and distribute the Crusoe CMS Version, in binary code form, solely to CulturecomCrusoe Product Customers; and          (b) to use the Crusoe CMS Version, in binary code form, to support use of the Crusoe CMSVersion and the Crusoe Licensed Products by Culturecom Crusoe Product Customers. *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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     4.3 License Agreement for Crusoe CMS Version and Efficeon CMS Version. Culturecom maynot distribute the Crusoe CMS Version or the Efficeon CMS Version to any Culturecom EfficeonProduct Customer or Culturecom Crusoe Product Customer (collectively, “***Culturecom Customers***”)unless each such Culturecom Customer is subject to a written license agreement with Culturecom(each, a “***Culturecom License Agreement***”) that protects Transmeta and Transmeta’s intellectualproperty rights to at least the same degree as Transmeta’s standard license agreement for the CodeMorphing Software, a copy of which is attached to this Agreement as Exhibit C. Withoutlimiting the foregoing, each Culturecom License Agreement must, at a minimum: (a) name Transmetaas an express third-party beneficiary under the Culturecom License Agreement, with a right toenforce the terms of the Culturecom License Agreement directly against the Culturecom Customer; (b)prohibit the Culturecom Customer from disassembling, decompiling or reverse engineering the binarycode of the Crusoe CMS Version or the Efficeon CMS Version, as applicable; (c) make norepresentations or warranties on behalf of Transmeta; and (d) contain provisions that protectTransmeta’s Confidential Information in a manner that is consistent, in scope and extent, with theprovisions of Section 9 hereof. Culturecom will use its commercially reasonable efforts to enforcethe terms of each Culturecom License Agreement and will promptly notify Transmeta of any materialbreach of such agreement of which Culturecom becomes aware.     4.4 Limitations on License. Culturecom may not use, copy or modify the Crusoe CMSVersion or the Efficeon CMS Version, except as expressly set forth in Section 4.1 or 4.2, asapplicable. Culturecom may not transfer, sublicense, rent, lease or otherwise distribute theCrusoe CMS Version or the Efficeon CMS Version to any third party, except as expressly set forth inSection 4.1 or 4.2, as applicable. Without limiting the generality of the preceding sentence,Culturecom will not distribute or otherwise make available the Crusoe CMS Version or the EfficeonCMS Version to any party that is not a Culturecom Crusoe Product Customer or a Culturecom EfficeonProduct Customer, as the case may be. Culturecom acknowledges that the Crusoe CMS Version and theEfficeon CMS Version constitute and contain trade secrets of Transmeta and its licensors, and, inorder to protect such trade secrets and other interests that Transmeta and its licensors may havein the Crusoe CMS Version and the Efficeon CMS Version, Culturecom agrees not to disassemble,decompile or reverse engineer the Crusoe CMS Version and the Efficeon CMS Version nor permit anythird party to do so, except to the minimum extent permitted by applicable law.     4.5 Reservation of Rights. No rights or licenses are granted in the Crusoe CMSVersion and the Efficeon CMS Version by implication, estoppel or otherwise, except as expressly setforth herein. Culturecom’s rights in the Crusoe CMS Version and the Efficeon CMS Version arelimited to those expressly granted in this Agreement.     4.6 Source Code Escrow for Code Morphing Software. Within thirty (30) calendar daysfollowing the Closing Date, the parties will enter into a source code escrow agreementsubstantially in the form set forth in Exhibit D hereto (“***Escrow Agreement***”). Culturecomwill pay the escrow agent’s fees for establishing and maintaining the Escrow Agreement. The EscrowAgreement will require Transmeta to deposit into escrow the items specified in Exhibit F(collectively, the “***Escrowed Items***”). The Escrow Agreement will provide Culturecom with the rightto obtain the *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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Escrowed Items solely in the event of the occurrence of any of the following conditions: (i)Transmeta ceases its entire business with no successor; or (ii) any bankruptcy trustee ordebtor-in-possession with respect to Transmeta, or the estate created upon the bankruptcy ofTransmeta, rejects the Services Agreement (each, a “***Release Condition***”). Upon release of theEscrowed Items from escrow, Culturecom will have the right to use such Escrowed Items, without theright to sublicense except to Authorized Sublicensees (as specified in Section 6.1), solely for thepurposes of (a) enabling Culturecom to make modifications, derivative works and enhancements of theCrusoe CMS Version and the Efficeon CMS Version to support Culturecom’s authorized use of theCrusoe CMS Version and the Efficeon CMS Version pursuant to Sections 4.1 and 4.2 hereof, and (b)enabling Culturecom to support Culturecom’s authorized use of the other Escrowed Items as set forthin this Agreement and the Asset Purchase Agreement.     4.7 Trademark License for CMS Marks. Subject to Culturecom’s compliance with theterms and conditions of this Agreement, Transmeta hereby grants to Culturecom, during the term ofthis Agreement, a non-exclusive, non-transferable license (without the right to sublicense, exceptto Authorized Sublicensees as specified in Section 6.1) to use the CMS Marks solely in connectionwith Culturecom’s marketing, promotion, and distribution of the Efficeon CMS Version and the CrusoeCMS Version, as permitted under Sections 4.1 and 4.2 of this Agreement, respectively. Any use ofthe CMS Marks by Culturecom must correctly attribute ownership of such mark to Transmeta and mustbe in accordance with applicable law and Transmeta’s then-current trademark usage guidelinesprovided to Culturecom in writing. Culturecom acknowledges and agrees that Transmeta owns the CMSMarks and that any and all goodwill and other proprietary rights that are created by or that resultfrom Culturecom’s use of the CMS Marks hereunder inure solely to the benefit of Transmeta.Culturecom will at no time contest or aid in contesting the validity or ownership of the CMS Marksor take any action in derogation of Transmeta’s rights therein, including, without limitation,applying to register any trademark, trade name or other designation that is confusingly similar toany CMS Mark.**5. LICENSE FOR ANCILLARY TECHNOLOGY**     5.1 Crusoe Ancillary Technology. Subject to Culturecom’s compliance with the termsand conditions of this Agreement, Transmeta hereby grants to Culturecom, during the term of thisAgreement, a non-exclusive, nontransferable (except as provided in Section 12.1), worldwide,royalty-free license (without the right to sublicense, except to Authorized Sublicensees asspecified in Section 6.1), under all Transmeta IPR incorporated in the Crusoe Ancillary Technology:          (a) to use the Crusoe Ancillary Technology to make, have made, use, test and support theCrusoe Licensed Products;          (b) subject to Section 5.3, to modify and create versions of the Crusoe Ancillary Technologythat are customized for the Crusoe Licensed Products that Culturecom will manufacture (and havemanufactured) and sell pursuant to this Agreement;          (c) to use the Culturecom-customized Crusoe Ancillary Technology in connection with marketingand promoting the Crusoe Licensed Products; and *** Confidential treatment has been requested for portions of this exhibit.The copy filed herewith omits the information subject to the confidentialrequest. Omissions are designated as * * *. A complete version of this exhibithas been filed separately with the Securities and Exchange Commission.
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          (d) to distribute and sublicense the Culturecom-customized Crusoe Ancillary Technology topotential and current Culturecom Customers.     5.2 Efficeon Ancillary Technology. Subject to Culturecom’s compliance with the termsand conditions of this Agreement, Transmeta hereby grants to Culturecom, during the term of thisAgreement, a non-exclusive, nontransferable (except as provided in Section 12.1), royalty-freelicense (without the right to sublicense, except to Authorized Sublicensees as specified in Section6.1), under all Transmeta IPR incorporated in the Efficeon Ancillary Technology:          (a) to use the Efficeon Ancillary Technology to make, have made, use, test and support theEfficeon Licensed Products;          (b) subject to Section 5.3, to modify and create versions of the Efficeon Ancillary Technologythat are customized for the Efficeon Licensed Products that Culturecom will manufacture (and havemanufactured) and sell pursuant to this Agreement;          (c) to use the Culturecom-customized Efficeon Ancillary Technology in connection withmarketing and promoting the Efficeon Licensed Products; and          (d) to distribute and sublicense the Culturecom-customized Efficeon Ancillary Technology topotential and current Culturecom Customers.     5.3 Customization Conditions. Culturecom will ensure that, except as expresslyauthorized in this Agreement or otherwise agreed to in writing by Transmeta, it will delete orremove (or cause to be deleted or removed) all references to Transmeta or to any Transmetaproducts, product features or product specifications that are included in or that appearing on orin the Transmeta Ancillary Technology (other than those items of Transmeta Ancillary Technologyidentified in Exhibits A-3 or B-3 as “configuration tools”) as delivered byTransmeta to Culturecom hereunder, including, without limitation, any an all Transmeta trademarks,product names, trade names, logos, proprietary notices and other designations of source orattributions. Culturecom will be solely responsible for the content of the Culturecom-customizedCrusoe Ancillary Technology and the Culturecom-customized Efficeon Ancillary Technology(collectively, the “***Culturecom-customized Ancillary Technology***”) and will indemnify and holdharmless Transmeta from any against any claims, damages, losses and liabilities incurred byTransmeta arising out of or resulting from Culturecom’s use, marketing, promotion, distribution orany other exploitation of the Culturecom-customized Ancillary Technology (or any portion orcomponent thereof).     5.4 Limitations on License. Culturecom may not use or copy the Transmeta AncillaryTechnology except as expressly set forth in Sections 5.1 and 5.2. To the extent any TransmetaAncillary Technology consists of software or firmware in binary code, Culturecom acknowledges thatsuch software or firmware constitutes and contains trade secrets of Transmeta and its licensors.Accordingly, in order to protect such trade secrets and other interests that Transmeta and itslicensors may have in such software and firmware, Culturecom expressly agrees not to disassemble,reverse engineer and/or reverse compile such software or firmware, except to the minimum extentpermitted by applicable law. * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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     5.5 Reservation of Rights. No rights or licenses are granted in the TransmetaAncillary Technology by implication, estoppel or otherwise, except as expressly set forth herein.Culturecom’s rights in the Transmeta Ancillary Technology are limited to those expressly granted inthis Agreement.**6. OTHER OBLIGATIONS AND RIGHTS**     6.1 Sublicensing. Culturecom may sublicense the license rights granted to Culturecomunder Sections 2.1, 3.1, 4.1, 4.2, 4.6, 4.7, 5.1 and 5.2 only to Culturecom Affiliates, TransChinaand TransChina Affiliates; provided; that, in each instance, Culturecom has requested andobtained Transmeta’s approval, such approval not be unreasonably withheld or delayed (each,individually, an “***Authorized Sublicensee***” and, collectively, the “***Authorized Sublicensees***”);provided, further, that Culturecom executes a written sublicense agreement with theAuthorized Sublicensee (the “***Sublicense Agreement***”) that protects Transmeta and Transmeta’sintellectual property rights to at least the same degree as the terms and conditions of thisAgreement. Without limiting the foregoing, the Sublicense Agreement must: (i) name Transmeta asan express third-party beneficiary thereunder with the right to enforce the terms of the SublicenseAgreement directly against the Authorized Sublicensee; and (ii) contain provisions that protectTransmeta’s Confidential Information in a manner that is consistent, in scope and extent, with theprovisions of Section 9 hereof. Culturecom will be jointly and severally liable with theAuthorized Sublicensee for any breach by the Authorized Sublicensee of the terms of the SublicenseAgreement. As of the Closing Date, Transmeta approves of the following as Authorized Sublicensees:Culturecom Holdings, Ltd., a Bermuda company; TransChina, a Delaware corporation; and TransChinaChina Ltd., a People’s Republic of China corporation.     6.2 Delivery. Promptly following the Closing, Transmeta will deliver or makeavailable to Culturecom: (i) the items specified in Exhibits A-1 and B-1 thatcomprise the Crusoe General Design Deliverables and the Efficeon Design Deliverables, in anappropriate and reasonable medium and in the appropriate format(s) for each such item; (ii) theitems specified in Exhibits A-3 and B-3 that comprise the Crusoe AncillaryTechnology and the Efficeon Ancillary Technology, in an appropriate and reasonable medium and inthe appropriate format(s) for each such item; and (iii) a copy of the Crusoe CMS Version and theEfficeon CMS Version, in binary code form (the items described in the preceding clauses (i) to(iii) are referred to collectively as the “***Transmeta Deliverables***”). Except as set forth inSection 4.6 or as otherwise agreed to in writing by the parties or the Services Agreement,Transmeta will have no obligation to provide Culturecom with any updates, enhancements orimprovements to the to any of the Transmeta Deliverables, or with any engineering services, supportservices or training with respect to the use of any of the foregoing, regardless of whetherCulturecom is able to successfully manufacture or have manufactured a Crusoe Licensed Product or anEfficeon Licensed Product.     6.3 Third-Party Technology. Culturecom acknowledges and agrees that, except asexpressly provided in this Agreement, it will be solely responsible for obtaining, at Culturecom’sexpense, a license for any third-party technology or products necessary to make and havemanufactured the Efficeon Product. To Transmeta’s knowledge, Exhibit B-4 is a completelisting of * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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all third party technology or products used by Transmeta that is necessary to make or havemanufactured the Efficeon Product as of the date hereof.     6.4 No Branding Rights. The parties acknowledge and agree that, except as expresslyset forth in Section 4.7, nothing in this Agreement will be deemed to grant to either party anyrights or licenses in any of the other party’s trademarks, trade names, logos, service marks orother designations of source.     6.5 Milestones. Culturecom will: (a) manufacture (or have manufactured) at anyfoundry in China or Taiwan one (1) or more functional prototypes of the Crusoe Product within one(1) year following receipt of all applicable export control-related approvals for China or Taiwan,as applicable; and (b) manufacture (or have manufactured) at any foundry in China one (1) or morefunctional prototypes of the Crusoe Product within two (2) year following receipt of all applicableexport control-related approval for China or Taiwan, as applicable (the foregoing clauses (a) and(b), the “***Milestones***”). Except as provided in this Section 6.5, if Culturecom does not satisfyeither Milestone, then within thirty (30) calendar days following notice from Transmeta withrespect to such a failure, as Transmeta’s sole remedy for such failure, Culturecom shall payTransmeta one million dollars (US$1,000,000) (“***Milestone Failure Payment***”); provided,however, that if Culturecom’s failure to satisfy a Milestone directly results from any materialbreach by Transmeta to timely perform the Services as defined in the [design transfer] SOW to theServices Agreement, then the time period for satisfying the Milestone shall be extended by thenumber of days by which Transmeta was late in performing its Services.     6.6 Marketing Indemnity. Culturecom will be responsible for its efforts tocommercialize the Crusoe Licensed Products and the Efficeon Licensed Products under this Agreementand will indemnify and hold harmless Transmeta from any against any claims, damages, losses andliabilities incurred by Transmeta arising out of or resulting from Culturecom’s use, marketing,promotion, distribution or any other exploitation of the Crusoe Licensed Products or the EfficeonLicensed Products (or any portion or component thereof).     6.7 TSMC Manufacturing. As of the Closing, subject to TSMC’s approval and at noadditional cost to Culturecom, Transmeta will authorize TSMC to use Transmeta’s mask sets for theCrusoe Product and for the Efficeon Product for the purpose of manufacturing Crusoe Products andEfficeon Products for Culturecom as authorized under this Agreement. Transmeta retains title tothe mask sets.**7. PAYMENT**     7.1 License Fee. In partial consideration for the license rights granted by Transmetaunder Sections 2.1 and 3.1, Culturecom will pay Transmeta a one-time license fee equal to tenmillion dollars (US$10,000,000) (the “***License Fee***”). The License Fee will be deposited into theEscrow Fund no later than the twenty-first (21st) Business Day following the executionof the Asset Purchase Agreement. Culturecom shall, on the Closing Date, authorize the Escrow Agentto deliver the License Fee to Transmeta. The License Fee is in addition to the Cash Considerationdelivered under the Asset Purchase Agreement. The License Fee is non-refundable andnon-recoupable, and * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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is not creditable against royalties which may become payable by Culturecom under Section 7.2.Payment of the License Fee is guaranteed by Culturecom Holdings, Ltd., as specified in that certainGuarantee agreement entered into between Transmeta and Culturecom Holdings, Ltd. on the same dateas this Agreement. If the Closing has not occurred by the Termination Date (as defined in theAsset Purchase Agreement), Transmeta shall authorize the Escrow Agent to return the License Fee toCulturecom.     7.2 Royalties. Culturecom will pay Transmeta non-refundable royalties equal to * * *of Culturecom’s or its Authorized Sublicensee’s Net Sales (defined herein) from Culturecom’s or itsAuthorized Sublicensee’s sales of the Crusoe Licensed Products and the Efficeon Licensed Products.For purposes hereof “***Net Sales***” means the sales price received by Culturecom or its AuthorizedSublicensee from a third-party buyer in a bona fide, arm’s-length transaction, excluding anypacking, shipping, insurance charges, import, export, excise, sales, use, value-added taxes, andcustoms duties, and reduced, in each case, by actual returns and discounts actually given (otherthan discounts related to the manner and terms of payment). Royalties will accrue upon the earlierof the date of shipment or the date of invoice. No royalty will accrue for units of the CrusoeLicensed Products or the Efficeon Licensed Products shipped as a replacement for any defectiveproducts or shipped by Culturecom or its Authorized Sublicensee as sample shipments without anycharge to a Culturecom Customer.     7.3 Payment Terms. Within * * * after: (i) the end of each calendar quarter duringthe term of this Agreement in which the royalty accrues and (ii) the termination of this Agreement,Culturecom will submit to Transmeta the payment of royalties due as shown in the Royalty Report(defined in Section 7.7). All payments specified in this Agreement shall be made in U.S. dollarsby wire transfer to the bank account to be separately designated in writing by Transmeta.     7.4 Interest and Other Payment Terms. Any payments made * * * after the applicabledue date will incur interest at the rate of * * *.     7.5 Taxes. All amounts payable by Culturecom under this Agreement are net amounts andare payable in full, without deduction for taxes or duties of any kind. Culturecom will beresponsible for, and will promptly pay, all taxes and duties of any kind (including, but notlimited to, sales, use and withholding taxes) associated with this Agreement or the royaltypayments made by Culturecom hereunder, except for taxes based on Transmeta’s net income. IfTransmeta is required to collect, or pays on Culturecom’s behalf, any taxes or duties for whichCulturecom is responsible, then Culturecom will pay or reimburse Transmeta, as the case may be, forall such amounts. If Culturecom pays any withholding taxes based on the payments made byCulturecom to Transmeta hereunder, then Culturecom will furnish Transmeta with writtendocumentation of all such tax payments, including receipts and other customary documentation.     7.6 Records. For a period of one (1) year after the later date that each royaltypayment is due or is made under this Agreement, Culturecom will maintain complete and accuratebooks, records and accounts as are reasonably necessary to verify the royalty payments made byCulturecom hereunder. * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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     7.7 Reports. Within * * * after (i) the end of each calendar quarter during the termof this Agreement and (ii) the termination of this Agreement, Culturecom will furnish to Transmetaa written report specifying the royalties owed for the relevant period (each such report, a"***Royalty Report***”). If no royalties are due, that fact will be shown on such Royalty Report. Thecontent, form and format of such Royalty Reports will be as mutually agreed to by the parties.     7.8 Audit. During the term of this Agreement and for a period of * * *, upon at leastthirty (30) calendar days prior written notice to Culturecom, Transmeta will have the right toauthorize a certified public accounting firm, as reasonably approved by Culturecom, to auditCulturecom’s books, records, and accounts, and other relevant information for the purpose ofverifying the accuracy of the amount of royalties reported by Culturecom pursuant to Section 7.7;provided that such audit shall be conducted during Culturecom’s normal business hours of Culturecomand no more frequently than once a year. If the accounting firm concludes that additional amountswere owed during the audited period, Culturecom will pay such additional amounts plus interestcalculated in accordance with Section 7.4 within * * * of the date Transmeta delivers theaccounting firm’s written report to Culturecom. Transmeta will pay the fees and expenses chargedby the accounting firm; *provided however*, if the audit discloses that the royalties payable byCulturecom for the audited period are * * *, then Culturecom will reimburse Transmeta for * * *.**8. WARRANTIES**     8.1 Mutual Warranties. Each party represents and warrants to the other party that ithas the necessary corporate power, right and authority to enter into this Agreement, to carry outits obligations under this Agreement, and to grant the rights herein granted.     8.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, TO THE FULLESTEXTENT PERMITTED BY APPLICABLE LAW, TRANSMETA SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALLWARRANTIES OR CONDITIONS WITH RESPECT TO THE CRUSOE PRODUCT, EFFICEON PRODUCT, CRUSOE DESIGNDELIVERABLES, EFFICEON DESIGN DELIVERABLES, CRUSOE CMS VERSION, EFFICEON CMS VERSION, TRANSMETAANCILLARY TECHNOLOGY AND ALL TRANSMETA DELIVERABLES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, QUALITY OR NON-INFRINGEMENT.**9. CONFIDENTIAL INFORMATION**     9.1 Confidential Information. “***Transmeta Confidential Information***” means: (i) theCrusoe General Design Deliverables, Efficeon Design Deliverables, Crusoe CMS Version, Efficeon CMSVersion, Transmeta Ancillary Technology, and all Transmeta Deliverables; and (ii) any business ortechnical information that Transmeta desires to protect against unauthorized use or disclosurethat: (a) is disclosed in writing and is identified and/or marked by Transmeta as “confidentialinformation” at the time of disclosure; or (b) is disclosed in any other manner and, * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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under the circumstances of disclosure or due to the nature of the information, a personexercising reasonable business judgment would understand to be confidential or proprietary. Inaddition to the foregoing, the terms and conditions of this Agreement will be deemed to be theconfidential information of both parties.     9.2 Use and Disclosure Restrictions. Culturecom will not use any TransmetaConfidential Information except for the purposes of exercising its rights hereunder, and will notdisclose any Transmeta Confidential Information to any third party except to AuthorizedSublicensees and their respective employees and contractors (including Culturecom’s or anyAuthorized Sublicensee’s foundries) as is reasonably required in connection with the exercise ofits rights hereunder (and, in case of any contractors, only subject to binding use and disclosurerestrictions at least as protective as those set forth herein to be executed in writing by suchcontractors). Culturecom will use all reasonable efforts to protect and to maintain theconfidentiality of all Transmeta Confidential Information in its possession or control by using theefforts that Culturecom ordinarily uses with respect to its own proprietary information of similarnature and importance, but in no event less than reasonable efforts.     9.3 Exclusions. The obligations set forth in Section 9.2 will not apply to anyinformation that: (i) is or becomes generally known to the public through no fault or breach ofthis Agreement by Culturecom; (ii) Culturecom can document was rightfully known to Culturecom atthe time of disclosure without an obligation of confidentiality; (iii) Culturecom can document wasindependently developed by Culturecom without use of any Transmeta Confidential Information; or(iv) Culturecom rightfully obtains from a third party without restriction on use or disclosure.     9.4 Disclosure of Agreement. Nothing in this Agreement will restrict either partyfrom disclosing the terms of this Agreement: (i) pursuant to the order or requirement of a court,administrative agency, or other governmental body, provided that the party required to make such adisclosure gives reasonable notice to the other party, to the extent reasonably practicable, sothat the other party may contest such an order or requirement; (ii) on a confidential basis to itslegal or professional financial advisors; (iii) as required under applicable securitiesregulations; and (iv) subject to execution of reasonable and customary written confidentialityagreements consistent with the restrictions set forth herein, to present or future providers ofcapital and/or potential investors in or acquirers of such party or its assets associated with thesubject matter of this Agreement.**10. LIMITATIONS OF LIABILITY**     10.1 Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANYINCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA,BUSINESS, PROFITS, OR GOODWILL) IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THIS AGREEMENTOR THE USE, PERFORMANCE OR OPERATION OF THE CRUSOE LICENSED PRODUCTS, EFFICEON LICENSED PRODUCTS,CRUSOE CMS VERSION, EFFICEON CMS VERSION, TRANSMETA ANCILLARY TECHNOLOGY OR TRANSMETA DELIVERABLES,WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOTTRANSMETA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS IN THIS SECTION 10.1SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS OF SECTION 9;CULTURECOM’S UNAUTHORIZED USE OF ANY TRANSMETA DELIVERABLES, TECHNOLOGY OR INTELLECTUAL PROPERTYRIGHTS; OR CULTURECOM’S INDEMNITY OBIGATION UNDER SECTION 6.6.     10.2 Total Liability. IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHERPARTY AND TO ANY OTHER PARTY IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THIS AGREEMENT,FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED * * *. THE LIMITATIONS IN THIS SECTION10.2 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS OF SECTION 9;CULTURECOM’S UNAUTHORIZED USE OF ANY TRANSMETA DELIVERABLES, TECHNOLOGY OR INTELLECTUAL PROPERTYRIGHTS; CULTURECOM’S FAILURE TO PAY AMOUNTS DUE UNDER THIS AGREEMENT; OR CULTURECOM’S INDEMNITYOBIGATION UNDER SECTION 6.6.     10.3 Acknowledgment. Each party acknowledges that the other party has entered intothis Agreement in reliance on the above limitations of liability, and that the same constitutes amaterial basis of the bargain between the parties. The parties have agreed that the limitationsspecified above will survive any termination of this Agreement and will apply even if any limitedremedy specified in this Agreement is found to have failed of its essential purpose.**11. TERMINATION**     11.1 Term. This Agreement (and all of Culturecom’s license rights hereunder) willcommence as of the Closing Date and will remain in force unless terminated in accordance withSection 11.2.     11.2 Termination for Cause. Either party may terminate this Agreement if the otherparty breaches any material term or condition of this Agreement and fails to cure such breachwithin thirty (30) calendar days following receipt of written notice from the non-breaching party.     11.3 No Termination for Change of Control. Transmeta expressly acknowledges that itwill have no right to terminate this Agreement or any of the license rights granted to Culturecomhereunder as a result of Transmeta undergoing a Change of Control (as defined herein). Forpurposes hereof, “***Change of Control***” of Transmeta means (i) a change in ownership or control ofTransmeta effected through the direct or indirect acquisition by any person or related group ofpersons; (ii) a merger or consolidation in which Transmeta is not the surviving entity; (iii) thesale, transfer or other disposition of all or substantially all of the assets of Transmeta; or (iv)any reverse merger in which Transmeta is a party.     11.4 Effect of Termination. Upon the termination of this Agreement by either partypursuant to Section 11.2: (i) all licenses and rights granted to Culturecom hereunder will * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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immediately terminate; and (ii) Culturecom will promptly return to Transmeta the CrusoeGeneral Design Deliverables, Efficeon Design Deliverables, Crusoe CMS Version, Efficeon CMSVersion, Transmeta Ancillary Technology and Transmeta Deliverables, and other TransmetaConfidential Information in Culturecom’s possession or control and provide Transmeta with anofficer’s written certification, certifying to Culturecom’s compliance with the foregoingobligation.     11.5 Survival. The rights and obligation of the parties under Sections 7, 8, 9, 10,11.4, 11.5 and 12 will survive any termination of this Agreement.**12. GENERAL**     12.1 Assignment. Culturecom may not assign or transfer this Agreement, or any of therights or licenses granted to Culturecom hereunder by operation of law or otherwise, without theexpress prior written consent of Transmeta, which consent will not be unreasonably withheld, exceptthat Culturecom may assign or transfer this Agreement without consent to an Authorized Sublicenseeprovided that Culturecom provides written notice to Transmeta within ten (10) days of theassignment or transfer, identifying the Authorized Sublicensee and providing a certification ofcompliance with export control if applicable. Any attempted assignment or transfer without suchconsent will be null and of no effect. Transmeta may assign or transfer this Agreement in its solediscretion. Subject to the foregoing, this Agreement will be binding upon and will inure to thebenefit of, and be enforceable by the parties’ respective successors and permitted assigns. Forpurposes of this Section 12.1, (a) a Change of Control of Culturecom will be deemed to be anassignment; and (b) a Change of Control of Culturecom means (i) a change in ownership or control ofCulturecom effected through the direct or indirect acquisition by any entity or related group ofentities of beneficial ownership of securities possessing more than fifty percent (50%) of thetotal combined voting power of Culturecom’s outstanding securities; (ii) a merger or consolidationin which Culturecom is not the surviving entity; (iii) the sale, transfer or other disposition ofall or substantially all of the assets of Culturecom; or (iv) any reverse merger in whichCulturecom is a party.     12.2 Governing Law. This Agreement will be governed by and construed in accordancewith the laws of the State of California without regard to conflicts of laws rules or principles.The parties expressly disclaim the application of the U.N. Convention on Contracts for theInternational Sale of Goods.     12.3 Compliance with Laws. Each party will comply with all laws and regulationsapplicable to such party’s performance of this Agreement. Without limiting the generality of theforegoing, each party will comply fully with all relevant export laws and regulations of the UnitedStates and all other countries having competent jurisdiction **(“*****Export Laws*****"**) to ensure that neitherthe Crusoe Licensed Products, Efficeon Licensed Products, Crusoe CMS Version, Efficeon CMS Version,Transmeta Ancillary Technology, Transmeta Deliverables nor any direct product of any of theforegoing or any technical data related thereto is: (i) exported or re-exported directly orindirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the ExportLaws, including, but not limited to, nuclear, chemical, or biological weapons proliferation. * * * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the informationsubject to the confidential request. Omissions are designated as * * *. A complete version of this exhibit has been filedseparately with the Securities and Exchange Commission.
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     12.4 Equitable Relief. Culturecom acknowledges and agrees that any breach of Section9 or any breach of this Agreement with respect to Transmeta’s intellectual property rights in andto the Crusoe Product, Efficeon Product, Crusoe CMS Version, Efficeon CMS Version, TransmetaAncillary Technology, Transmeta Deliverables or other Transmeta Confidential Information may causeTransmeta to incur irreparable harm and significant injury that would be difficult to ascertain andwould not be compensable by damages alone. Accordingly, Culturecom acknowledges and agrees that,in addition to any and all remedies that Transmeta may have at law or otherwise with respect tosuch a breach, Transmeta will have the right to obtain specific performance, injunction or otherappropriate equitable relief.     12.5 Severability. In the event that it is determined by a court of competentjurisdiction that any provision of this Agreement is invalid, illegal, or otherwise unenforceable,such provision will be enforced as nearly as possible in accordance with the stated intention ofthe parties, while the remainder of this Agreement will remain in full force and effect and bindthe parties according to its terms.     12.6 Waiver. No failure by either party to exercise or enforce any of its rightsunder this Agreement will act as a waiver of such rights, and no waiver of a breach in a particularsituation will be held to be a waiver of any other or subsequent breach.     12.7 Notices. All notices, requests, demands and other communications required orpermitted under this Agreement shall be in writing and shall be deemed to have been duly given,made and received (i) when delivered personally or (ii) three (3) business days after deposit withan internationally recognized express courier. All notices shall be sent to the address set forthas follows (or to such other address or person as may be designated by a party by giving writtennotice to the other party pursuant to this Section): If to Culturecom: Culture.com Technology LimitedThe Penthouse, Culturecom Centre47 Hung To Road, Kwun Tong,Kowloon, Hong KongAttention: Mr. Frank W.T. Cheung, Chairman and CEO Telephone No.: (852) 2950-8811Facsimile No.: (852) 2345-3882 With a copy, which will not constitute notice, given in the manner prescribed