1.5 ***“Have Made”***means for Intel (or a sublicensed third party) to contract with a third partyor parties to perform designing or manufacturing functions for and on behalf of Intel (or thesublicensed third party).     1.6 ***“Integrated Circuit”***means an integrated unit comprising one or more active and/or passivecircuit elements associated on one or more substrates, such unit forming, or contributing to theformation of, a circuit for performing electrical functions (including, if provided therewith,housing and/or supporting means).     1.7 ***“Intel Licensed Product”***means any Licensed Product that Intel or an Intel SubsidiaryExploits.     1.8 ***“Intellectual Property Rights”***means mask work rights, copyrights, rights in trade secretsand know-how, and any other intellectual property rights recognized in any country or jurisdictionin the world, exclusive of Patent rights, rights in and to trademarks, trade names, logos, servicemarks, and other designations of source.     1.9 ***“Licensed Products”***means any active or passive circuit element, apparatus, appliance,circuit assembly, computer, device, equipment, firmware, housing, Integrated Circuit,instrumentality, material, method, process, service, software, substrate or other means forcalculating, classifying, combining, computing, detecting, displaying, handling, hosting, imaging,inputting, manifesting, measuring, modifying, networking, originating, photographing, playing,printing, processing, providing, receiving, recording, reproducing, retrieving, scanning, serving,storing, switching, transmitting or utilizing any data or any other information for any purpose,including without limitation any component or subsystem thereof and any supplies therefor;provided, however, that during the Time Period, any of the foregoing that consists solely orsubstantially solely of a portion (or the whole) of the Transmeta Technology in its unmodified formshall not be considered a Licensed Product.     1.10 ***“Patent(s)”***means all classes or types of patents (including without limitationoriginals, divisions, continuations, continuations-in-part, extensions or reissues), andapplications for these classes or types of patents throughout the world.     1.11 ***“Subsidiary”***means any corporation, partnership, limited liability company or otherentity recognized in any jurisdiction in the world, now or hereafter, in which a Party owns orcontrols (either directly or indirectly) any of the following:          (a) if such entity has voting shares or stock or other voting securities, at least fortypercent (40%) of the outstanding shares or stock or securities entitled to vote for the electionof directors or similar managing authority; or          (b) if such entity does not have voting shares or stock or other voting securities, at leastforty percent (40%) of the ownership interest that represents the right to make decisions for suchentity; or          (c) any other ability to elect at least forth percent (40%) of the board of directors or similarmanaging authority of the subject entity, whether by contract or otherwise.
 

 
     Subsidiary(ies) of Intel will be referred to as “Intel Subsidiary(ies)” and those of Transmetawill be referred to as “Transmeta Subsidiary(ies).”     1.12 ***“Transmeta Technology”***means Transmeta’s code morphing software and related technologies,documents, RTL, source code, and other materials, all as described in Exhibit A attachedhereto, as each of the foregoing exists on the Effective Date (and as they may be supplementedpursuant to the Technology Transfer Services of Section 4.2).     1.13 ***“Time Period”***means the period of time beginning on the Effective Date and ending on thethree (3) year anniversary of the Effective Date.**2. LICENSE GRANT AND SUBLICENSING RIGHTS**     2.1 License Grant to Intel. In accordance with the terms of this Section 2, Transmetagrants to Intel the following license rights:          (a) In consideration for the License Fee and Intel’s agreement to enter into amendment number1 to the Settlement Agreement (defined below), Transmeta hereby grants to Intel a worldwide,non-transferable and non-assignable (except as set forth in Section 11.1), sublicensable inaccordance with Sections 2.2, 2.3, 2.4, 2.5 and 2.6, fully-paid-up, irrevocable and perpetual(except as provided in Section 5.1), non-exclusive license under all of Transmeta’s IntellectualProperty Rights to:               (i) Exploit the Transmeta Technology as incorporated into Intel Licensed Products; and               (ii) Exploit Intel Licensed Products.          (b) In consideration for the License Fee and Intel’s agreement to enter into amendment number1 to the Settlement Agreement (defined below), Transmeta hereby grants to Intel a worldwide,non-transferable and non-assignable (except as set forth in Section 11.1), sublicensable inaccordance with Sections 2.2, 2.3, 2.4, 2.5 and 2.6, fully-paid-up, irrevocable and perpetual(except as provided in Section 5.1), non-exclusive license, solely under its trade secret rights,to disclose to third parties (including disclosures designed for the general public or largenumbers of third parties) the Confidential Information embodied or described in the TransmetaTechnology as reasonably necessary to facilitate Intel’s exercise of the rights and the licensesgranted in Section 2.1(a). The Parties acknowledge and agree that the need for such licenseexpires upon the expiration of Intel’s confidentiality obligations under Section 6 below. Foravoidance of doubt, in doing such disclosure(s), notwithstanding Section 6, Intel is free to makethe Confidential Information embodied or described in the Transmeta Technology available withoutobtaining any agreement of confidentiality by the recipient(s).     2.2 Sublicenses to Subsidiaries. Intel has the right to deliver any (or all) of theTransmeta Technology to any Intel Subsidiary, and to sublicense any (or all) of the license rightsgranted in Section 2.1 to each such Intel Subsidiary. For purposes of such sublicense, IntelLicensed Products shall further include the Subsidiary’s Licensed Products. Intel will ensure thecompliance by each and every such Intel Subsidiary with the terms and conditions of this Agreement.The Intel Subsidiaries will have no further sublicensing rights.
 

 
     2.3 Sublicense Upon Divestiture. If Intel sells, spins-out or otherwise transfers to athird party (the “Acquirer”) in one transaction or a series of related transactions all orsubstantially all of the assets related to an Intel business unit(s) that uses the TransmetaTechnology to develop, manufacture or sell some or all of the Intel Licensed Products, Intel may(without Transmeta’s consent) deliver the Transmeta Technology to the Acquirer, and may sublicenseto the Acquirer the rights granted in Section 2.1, without any right for the Acquirer to furthersublicense such rights. Following such transaction, Intel will continue to retain all license andsublicense rights hereunder. This Section 2.3 shall apply to any Intel Subsidiary, as if it wasIntel, to the extent granted sublicense rights under Section 2.2 hereof.     2.4 Sublicense Upon Joint Venture. If Intel enters into a transaction or a series ofrelated transactions with a third party for the purpose of jointly developing a Joint Product (asdefined below), then Intel may (without Transmeta’s consent) deliver the Transmeta Technologyrelated to such Joint Product to such third party, and may sublicense to the third party the rightsgranted in Section 2.1, without any right for the third party to further sublicense such rights.For purposes of such sublicense, however, Intel Licensed Products means only the Joint Product.Following execution of such transaction or series of transactions, Intel will continue to retainall license and sublicense rights hereunder. This Section 2.4 shall apply to any Intel Subsidiary,as if it was Intel, to the extent granted sublicense rights under Section 2.2 hereof. For purposesof this Section 2.4, a “***Joint Product***” means a product that is jointly developed by Intel and athird party with technological contributions from both Intel and such third party, and Intel’stechnological contribution does not consist solely or substantially solely of a portion (or thewhole) of the Transmeta Technology in its unmodified form.     2.5 Sublicense to Intel Customers. If Intel determines in its reasonable discretionthat operation or use of an Intel Licensed Product by an Intel customer would be improved by use ofa portion of the Transmeta Technology by such customer, then Intel has the right to deliver suchportion of the Transmeta Technology to such Intel customer, and to sublicense any (or all) of thelicense rights granted in Section 2.1 to such Intel customer, but solely for such Intel customer’suse of the Transmeta Technology in connection with Intel Licensed Products. Intel’s customers shallhave no right to further sublicense such rights other than in connection with the customers’distribution or resale of Intel Licensed Products.     2.6 Other Sublicensing Rights. Upon the expiration of the Time Period, in addition tothe other licenses granted to Intel in this Section 2, Intel shall automatically have the right todeliver any (or all) of the Transmeta Technology to any third party (including, but not limited toIntel Subsidiaries), and to sublicense any (or all) of the license rights granted in Section 2.1 toany such third party (including, but not limited to, Intel Subsidiaries). For purposes of suchsublicense, Intel Licensed Products shall further include the third party’s Licensed Products.Any such third party will have further sublicense rights as if it was Intel hereunder.     2.7 Limitations; No Patent Rights Under this Agreement. Transmeta reserves for itselfall rights and licenses in and to the Transmeta Technology and Intellectual Property Rights andPatents therein not expressly granted to Intel hereunder or in that certain Settlement, Release andLicense Agreement entered into by the Parties, effective December 31, 2007 (the “***SettlementAgreement***”). Neither this Agreement, nor any actions of the Parties contemplated hereunder(including but not limited to any manufacture or sale of any Licensed Product by Intel,
 

 
any Intel Subsidiary, or any other direct or indirect Intel sublicensee, transferee orassignee) shall be construed as: (a) granting any right or license to Intel, any Intel Subsidiary,any other direct or indirect Intel sublicensee, or any other third party, with respect to any ofTransmeta’s Patents, whether by implication, estoppel, or otherwise; or (b) exhausting any ofTransmeta’s Patents (or Transmeta’s ability to enforce such Patents). Intel’s (and any of Intel’sdirect or indirect sublicensees’, transferees’ or assignees’) disclosure, delivery, sublicensing,use or other Exploitation of the Transmeta Technology and/or Transmeta’s Intellectual PropertyRights licensed hereunder in any manner that infringes or would result in the exhaustion of anyTransmeta Patent rights shall be deemed to be outside the scope of the licenses granted to Intelhereunder. Nothing in this Agreement shall be construed to restrict, limit, expand, or otherwisechange the patent licenses granted to Intel and its Subsidiaries pursuant to the SettlementAgreement.     2.8 Acknowledgment Concerning Third Party Patent Rights. Intel acknowledges that,without limitation, neither this Agreement, nor the performance of either Party pursuant to theterms and conditions of this Agreement, grants or confers upon Intel any rights in any patents ofNVIDIA Corporation (“NVIDIA”) as a result of the exhaustion doctrine or the doctrine of impliedlicenses or otherwise. NVIDIA and Transmeta have entered into a contract that requires inclusion ofthe preceding sentence in this Agreement. Nothing in this Agreement or the performance of eitherParty pursuant to this Agreement shall be construed to restrict or limit the terms of the PatentCross License Agreement between Intel and NVIDIA.**3. LICENSE FEE**     3.1 Payment. Intel shall pay Transmeta a non-refundable fee of Five Million Dollars($5,000,000.00 USD) for the grant of the licenses in Section 2 and the delivery to Intel of theTransmeta Technology pursuant to Section 4.1 of this Agreement (the “*License Fee*”). The LicenseFee will be paid to Transmeta within FIVE (5) business days of the Effective Date. The entireamount of the License Fee specified in this Agreement will be paid in U.S. Dollars. Intel shallpay the entire License Fee to Transmeta by wire transfer for the account of Transmeta to suchaccount as Transmeta may indicate by written notice to Intel.     3.2 Taxes. All applicable taxes levied on Transmeta as the licensor in connectionwith the grant of licenses to Intel hereunder, including but not limited to transaction privilegetaxes, gross receipts taxes, and other charges such as duties, customs, tariffs, imposts, andgovernment imposed surcharges shall be Transmeta’s responsibility. In the event that Intel isprohibited by law from making payments to Transmeta unless Intel deducts or withholds taxestherefrom and remits such taxes to the local taxing jurisdiction, then Intel shall duly withholdand remit such taxes and shall pay to Transmeta the remaining net amount after the taxes have beenwithheld. Intel shall not reimburse Transmeta for the amount of such taxes withheld. When propertyis delivered and/or services are provided or the benefit of services occurs within jurisdictions inwhich Transmeta collection and remittance of taxes is required by law, Transmeta shall have soleresponsibility for payment of said taxes to the appropriate tax authorities. In the eventTransmeta does not collect tax from Intel, and Transmeta is subsequently audited by any taxauthority, liability of Intel will be limited to the tax assessment, with no reimbursement forpenalty or interest charges levied on Transmeta. Each Party is
 

 
responsible for its own respective income taxes or taxes based upon gross revenues, including but not limited to business and occupation taxes.**4. TECHNOLOGY TRANSFER SERVICES**     4.1 Transmeta Obligations: Promptly following execution of this Agreement by bothParties, Transmeta will deliver to Intel the Transmeta Technology as set forth in Exhibit Aby means of [* * *]. Intel acknowledges that, prior to the Effective Date, it had a reasonableopportunity to inspect the Transmeta Technology. Accordingly, the Transmeta Technology shall bedeemed accepted by Intel immediately upon delivery.     4.2 Technology Transfer Services. During and within the sixty (60) day periodfollowing the Effective Date (the ***“Technology Transfer Review Period”***), (i) Transmeta will provideIntel with supervised remote electronic access either (x) through a virtual private network at anIntel facility or (y) at Transmeta’s facility to those Transmeta engineering materials related tothe Transmeta Technology (excluding third party materials), as those materials exist and areon-line as of Effective Date, for the purpose of enabling Intel to identify items, if any, thatwould facilitate Intel’s use of the Transmeta Technology delivered pursuant to Section 4.1 and thatthe Parties reasonably agree should have been included based on the description at Exhibit A(“Facilitating Items”); (ii) Transmeta will use commercially reasonable efforts to cooperate andassist Intel to obtain the Facilitating Items (***“Technology Transfer Services”***); and (iii) Transmetawill deliver the Facilitating Items electronically (e.g. by FTP download).     4.3 Technical Support From Former Transmeta Employees. Transmeta consents to Intelseeking support from former Transmeta employees for the sole purpose of assisting Intel inexercising its rights under the licenses granted to Intel pursuant to Section 2 above, andTransmeta hereby agrees that any former Transmeta employees from whom Intel seeks such assistancemay disclose any Transmeta Confidential Information to Intel that is required for such assistance,*provided that* the information received by Intel from such former Transmeta employees istreated by Intel in accordance with the confidentiality provisions of this Agreement.Notwithstanding anything set forth herein, Transmeta’s consent does not extend to, withoutlimitation: (i) the disclosure by any such former Transmeta employee of any Transmeta confidentialbusiness or financial information or the confidential or proprietary information of any thirdparty; (ii) the infringement or misappropriation of any third party’s intellectual property rights;and (iii) the breach of any obligations Transmeta or any such former employee may have to any thirdparty.**5. TERM**     5.1 Term. This Agreement will begin on the Effective Date and will remain in forceperpetually; provided, however, that Transmeta will have the right to immediately terminate thisAgreement, including the licenses granted in Section 2, by written notice to Intel due to Intel’sfailure to pay the License Fee as set forth in Section 3, if such failure is not corrected withinfive (5) business days after Transmeta provides written notice thereof to Intel. Subject only tothe preceding proviso, all licenses granted hereunder are perpetual and irrevocable.
 

 
     5.2 Survival. The rights and obligations of the Parties under Sections 1, 2 (exceptasprovided in Section 5.1 above), 5, 6, 7, 8.1, 8.3, 10 and 11 of this Agreement will survivethe termination of this Agreement for any reason.     5.3 Confirmation of Intel’s License Rights. The Parties acknowledge that theTransmeta Technology is “intellectual property” as defined in Section 101(35A) of the U.S.Bankruptcy Code (the “***Code***”), that this Agreement is governed by Section 365(n) of the Code, andthat Intel will have the right to exercise all rights provided by Section 365(n) of the Code withrespect to the Transmeta Technology. Without limiting the foregoing, the Parties agree that in theevent that any bankruptcy proceeding is filed by or against Transmeta, and the bankruptcy trusteeor debtor-in-possession rejects this Agreement, Intel will have the right to exercise all rightsprovided by Section 365(n) of the Code, including the right to retain its license rights to theTransmeta Technology under this Agreement and any agreement ancillary to this Agreement, subject toIntel’s ongoing compliance with this Agreement.     5.4 No Right for Transmeta to Seek Injunction.          (a) Transmeta expressly agrees that it will not seek, obtain or enforce any injunction todirectly or indirectly prevent or interfere with Intel’s direct or indirect manufacture, use,import, sale, offer for sale, distribution or other disposal of Intel Licensed Products containingthe Transmeta Technology or derivatives thereof, which injunction is based upon infringement ormisappropriation by Intel of Transmeta’s Intellectual Property Rights licensed pursuant to thisAgreement. Transmeta expressly acknowledges and agrees that, in the event of any breach of thisAgreement by Intel, Transmeta’s remedies for such breach will be limited to an action for damages.          (b) In the event of any Change of Control of Transmeta or any of its Subsidiaries, or anyassignment or transfer of this Agreement by Transmeta pursuant to Section 11.1, whether byoperation of law or otherwise, Transmeta’s agreement set forth in Section 5.4(a) shall not beconstrued as granting any rights under, or as otherwise applying to, any Patents or otherIntellectual Property Rights of the Merger Partner, Acquiring Person, or an assignee, acquirer ortransferee pursuant to Section 11.1, except to the extent such Intellectual Property Rights wouldotherwise be subject to such agreement set forth in Section 5.4(a) in the absence of such Change ofControl, assignment, transfer, or succession.**6. CONFIDENTIALITY**     6.1 Confidential Information. “***Confidential Information***” means any business ortechnical information of Transmeta that is identified and/or marked by Transmeta as ConfidentialInformation at the time of disclosure or that a Party would reasonably expect to be treated asconfidential under the circumstances. Confidential Information may include, but is not limited to,any information relating to business processes, operations, product plans, designs, costs, productprices and names, finances, marketing plans, business opportunities, personnel, research,development or know-how. In addition, for the purpose of this Agreement, the Transmeta Technology,and any information contained, embodied, or described therein or disclosed or made accessible byTransmeta in connection with providing Technology Transfer Services pursuant to
 

 
Section 4.2, shall be deemed Transmeta’s Confidential Information unless and until such information falls into any ofthe exceptions as provided in Section 6.4 below.     6.2 Disclosure Restrictions. For a period of five (5) years from the Effective Date,Intel will not use any of the Confidential Information except as expressly licensed in Section 2above, and will not disclose Confidential Information to any third party except to its employeesand consultants as is reasonably required in connection with the exercise of its rights and thefulfillment of its obligations under this Agreement (and, in case of any consultants, only subjectto binding disclosure restrictions at least as protective as those protecting Intel’s ownconfidential information of similar nature and importance). Intel will use all reasonable effortsto protect and to maintain the confidentiality of all of Transmeta’s Confidential Information inits possession or control by using the efforts that Intel ordinarily uses with respect to its ownconfidential information of similar nature and importance, but in no event less than reasonableefforts.     6.3 Confidentiality of Agreement. The Parties shall maintain the confidentiality ofthe terms of this Agreement (including but not limited to the amount of the License Fee) on aperpetual basis, and accordingly shall not disclose such terms to any third party without theexpress written consent of the other Party, except that the foregoing obligations will not restricteither Party from disclosing the terms of this Agreement: (i) pursuant to the order or requirementof a court administrative agency, or other governmental body, provided that the Party required tomake such a disclosure gives reasonable notice to the other Party, to the extent reasonablypracticable, so that the other Party may contest such an order or requirement or seek confidentialtreatment; (ii) on a confidential basis to its legal or professional advisors; (iii) as requiredunder applicable securities regulations; and (iv) subject to execution of reasonable and customarywritten confidentiality agreements consistent with the restrictions set forth herein, to present orfuture providers of capital and/or potential acquirers of such Party or its assets associated withthe subject matter of this Agreement.     6.4 Exclusions. The obligations set forth in Section 6.2 will not apply to anyinformation that: (i) is or becomes generally known to the public through no fault or breach ofthis Agreement by Intel; (ii) Intel can document was rightfully known to Intel at the time ofdisclosure without an obligation of confidentiality owed to Transmeta; (iii) Intel can document wasindependently developed by Intel without use of Transmeta’s Confidential Information; or (iv) Intelrightfully obtains from a third party without restriction on use or disclosure. Furthermore, theobligations set forth in Section 6.2 are subject to, and shall not be construed as limiting,Intel’s rights to disclose Confidential Information embodied or described in the TransmetaTechnology under Section 2.1(b) of this Agreement.**7. OWNERSHIP**     7.1 Intellectual Property Ownership. It is acknowledged and agreed by the Partiesthat nothing in this Agreement shall affect either Party’s ownership of any Intellectual PropertyRights which exist as of the Effective Date or will be generated independent of this Agreementthereafter.
 

 
     7.2 Proprietary Notices. Intel will not delete or in any manner alter the patent,copyright, trademark, and other proprietary rights notices of Transmeta (and its suppliers andlicensors, if any) appearing on or in the Transmeta Technology, as provided or otherwise madeavailable by Transmeta hereunder. Intel shall reproduce such notices on or in all copies itmakes of the Transmeta Technology.**8. REPRESENTATIONS AND WARRANTIES**     8.1 Warranty of Authority. Each Party represents and warrants to the other Party thatit has the necessary corporate power, right and authority to enter into this Agreement, to carryout its obligations under this Agreement, and to grant the rights herein granted.     8.2 Intellectual Property Warranties. Transmeta makes the following representationsand warranties to Intel in connection with the Transmeta Technology:          (a) To the best of Transmeta’s knowledge and belief as of the Effective Date, Transmeta hasthe right to license the Transmeta Technology to Intel, and Transmeta’s licensing of the TransmetaTechnology to Intel will be free of any claims, liens or conflicting rights in favor of any thirdparty.          (b) To the best of Transmeta’s knowledge and belief as of the Effective Date, the TransmetaTechnology does not infringe a third party’s copyrights or trade secrets, or to Transmeta’sknowledge as of the Effective Date, a third party’s patent.          (c) To the best of Transmeta’s knowledge and belief as of the Effective Date, there are noroyalties to be paid by Intel to any other third party as a result of Intel utilizing the TransmetaTechnology.          Intel acknowledges that its sole remedy for breach of the representations and warranties madein this Section 8.2 are stated in Section 9 of this Agreement.     8.3 Warranty Disclaimer of Transmeta. THE TRANSMETA INTELLECTUAL PROPERTY RIGHTS,TRANSMETA TECHNOLOGY AND TECHNOLOGY TRANSFER SERVICES ARE PROVIDED AND MADE AVAILABLE UNDER THISAGREEMENT “AS IS” AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 8.1 AND 8.2, TOTHE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSMETA SPECIFICALLY AND EXPRESSLY DISCLAIMS ANYAND ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE TRANSMETA TECHNOLOGY, TECHNOLOGY TRANSFERSERVICES AND TRANSMETA’S INTELLECTUAL PROPERTY RIGHTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, QUALITY, OR NON-INFRINGEMENT, EVEN IF TRANSMETA HAS BEEN MADE AWARE OF ANY PARTICULARINTEL REQUIREMENTS. THE TRANSMETA TECHNOLOGY INCLUDES MATERIALS THAT ARE SUBJECT TO OPEN-SOURCELICENSING TERMS AND CONDITIONS.
 

 
**9. INFRINGEMENT INDEMNITY**     9.1 Transmeta Obligations. Subject to Sections 9.2 and 9.4, Transmeta will, at itsexpense: (i) defend any third-party action or proceeding brought against Intel to the extent it isbased upon a claim that the Transmeta Technology, as provided by Transmeta to Intel under thisAgreement, infringes or misappropriates any Intellectual Property Right of any third party;and (ii) settle such claim and pay any costs, damages and reasonable attorneys’ fees attributableto such claim incurred by Intel and/or Intel Subsidiaries in relation to this claim or that arepayable in a settlement approved in advance and in writing by Transmeta, provided, however, thatTransmeta shall not enter into any settlement that would impose any obligations or liability uponIntel without Intel’s prior written consent. This Section 9 shall apply to an Intel Subsidiarylicensed under Section 2, as if the Subsidiary was Intel, except as specifically set forth herein.     9.2 Conditions to Defense Obligations. Transmeta will have no obligations to Intelunder this Section 9 unless Intel: (i) provides Transmeta with written notice of the claim withinthirty (30) days of receiving notice of the claim, and no later than the second anniversary of theEffective Date; and (ii) provides Transmeta with all reasonably required information andassistance, at Transmeta’s expense, to defend or settle the claim. Intel reserves the right toretain counsel, at Intel’s expense, to participate in the defense and settlement of any such claim.Without limiting the foregoing conditions, the Parties acknowledge that claims made or arisingmore than two years after the Effective Date will in no event be eligible for defense or indemnityunder Section 9.1. Furthermore, in no event shall Transmeta’s cumulative liability under thisSection 9 exceed [* * *] Dollars ($[* * *] USD).     9.3 Injunctions. If Intel’s use of the Transmeta Technology is, or in Transmeta’sopinion is likely to be, enjoined due to a claim of the type specified in Section 9.1 above, then,subject to the conditions set forth in Section 9.2 above, Transmeta will, at its sole option andexpense, either: (i) promptly procure for Intel the right to continue using the TransmetaTechnology under the terms of this Agreement; (ii) promptly replace or modify the TransmetaTechnology to make it non-infringing but substantially equivalent in function; or (iii) promptlynotify Intel that it cannot implement options (i) or (ii) under this Section 9.3. Upon Transmeta’snotification of Intel under Section 9.3(iii), the Time Period shall immediately and automaticallybe reduced to end twelve (12) months after the date of such notification, if, at the time ofTransmeta’s notification, the Time Period has more than twelve (12) months until its expiration.     9.4 Exclusions. Notwithstanding the terms of Section 9.1, Transmeta will have noliability for any infringement or misappropriation claim of any kind to the extent it results from:(i) modifications to the Transmeta Technology not made by Transmeta or a party authorized inwriting by Transmeta, if a claim would not have occurred but for such modifications; (ii) thecombination, operation or use of the Transmeta Technology with any data, software, products ordevices not provided by Transmeta or in connection with processes not provided by Transmeta, if aclaim would not have occurred but for such combination, operation or use; (iii) use of theTransmeta Technology by or on behalf of Intel or any Intel Subsidiary other than in accordance withthis Agreement; or (iv) use of the Transmeta Technology in any manner that would cause Transmeta tocontinue to incur liability to a third party with respect to an infringement or misappropriationclaim after notice from Transmeta to cease use thereof.
 

 
     9.5 Sole Remedy of Intel. AS BETWEEN TRANSMETA AND INTEL, THE PROVISIONS OF THISSECTION 9 SET FORTH TRANSMETA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND INTEL’S SOLE AND EXCLUSIVEREMEDIES, WITH RESPECT TO ANY THIRD-PARTY CLAIMS OF ANY KIND RELATED TO THE TRANSMETATECHNOLOGY, TRANSMETA INTELLECTUAL PROPERTY RIGHTS, INTEL LICENSED PRODUCTS, AND TECHNOLOGYTRANSFER SERVICES PROVIDED BY OR FOR TRANSMETA UNDER THIS AGREEMENT.**10. LIMITATION OF LIABILITY**     10.1 Exclusion of Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL,PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, PROFITS, ORGOODWILL) IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THIS AGREEMENT OR THE USE OR PROVISIONOF THE TRANSMETA INTELLECTUAL PROPERTY RIGHTS OR TRANSMETA TECHNOLOGY, OR FROM TECHNOLOGY TRANSFERSERVICES PERFORMED BY OR FOR TRANSMETA UNDER THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANYCLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE,AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The limitation setforth in the previous sentence will not apply to or restrict in any manner: (a) either Party’sliability arising from a breach of Section 6; or (b) either Party’s liability arising out of anyinfringement, misappropriation or violation of the other Party’s Patent or Intellectual PropertyRights.     10.2 Total Liability. IN NO EVENT WILL EACH OF TRANSMETA’S TOTAL LIABILITY TO INTELAND INTEL’S TOTAL LIABILITY TO TRANSMETA IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THISAGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED [* * *] DOLLARS ($[* * *]USD). The limitation set forth in the previous sentence will not apply to or restrict in anymanner: (a) either Party’s liability arising from a breach of Section 6; (b) either Party’sliability arising out of any infringement, misappropriation or violation of the other Party’sPatent or Intellectual Property Rights; or (c) Intel’s breach of its obligation to pay the LicenseFee pursuant to Section 3.     10.3 Acknowledgment. Intel acknowledges that Transmeta has entered into thisAgreement in reliance on the above limitations of liability, and that the same constitute amaterial basis of the bargain between the Parties. The Parties have agreed that the limitationsspecified above will survive any expiration or termination of this Agreement and will apply even ifany limited remedy specified in this Agreement is found to have failed of its essential purpose.**11. GENERAL PROVISIONS**     11.1 Assignment of Agreement. Transmeta may assign or transfer this Agreement and/orany rights and/or obligations hereunder, in whole or in part, whether by operation of law orotherwise, provided that any such assignee or transferee shall agree in writing to be bound by theterms and conditions of this Agreement. Intel may not assign or transfer this Agreement
 

 
and/or any rights and/or obligations hereunder, in whole or in part, whether by operation of law or otherwise,without Transmeta’s prior written consent, *except that*, Intel may assign this Agreement to a thirdparty that acquires all or substantially all of Intel’s assets related to the manufacture of IntelLicensed Products utilizing the Transmeta Technology, provided that, insuch event, Intel shall be deemed to agree not to thereafter use or disclose the TransmetaTechnology. Any attempt to transfer or assign this Agreement, or any rights or obligationshereunder, except as permitted pursuant to this Section 11.1, shall be void and without effect.Subject to the foregoing, the rights and obligations of the Parties will be binding upon and inureto the benefit of the Parties’ permitted successors and lawful transferees and assigns. Foravoidance of doubt, nothing in this Section 11.1 shall limit or restrict Intel’s ability, prior toan assignment of this Agreement by Intel to a third party, to exercise the licensing andsublicensing rights granted to Intel by Transmeta under Section 2 of this Agreement.     11.2 Assignment of Transmeta Intellectual Property Rights. In the event thatTransmeta assigns or transfers the whole or any portion of its Intellectual Property Rightslicensed herein to Intel, the assignee or transferee of such Intellectual Property Rights shallagree in writing to be bound by the terms of the license rights granted herein.     11.3 Independent Contractors. In performing their respective duties under thisAgreement, each of the Parties will be operating as an independent contractor. Nothing containedherein will in any way constitute any association, partnership, or joint venture between theParties hereto. Neither Party will have the power to bind the other Party or incur obligations onthe other Party’s behalf without the other Party’s prior written consent.     11.4 Notice. All notices required or permitted under this Agreement will be inwriting and delivered by confirmed facsimile transmission, by courier or overnight deliveryservices, or by certified mail, and in each instance will be deemed given upon receipt. Allcommunications will be sent to the addresses set forth below or to such other address as may bespecified by either Party to the other in accordance with this Section. Either Party may changeits address for notices under this Agreement by giving written notice to the other Party by themeans specified in this Section.
 

 
     If to Transmeta:   If to Intel:          President   General CounselTransmeta Corporation   Intel Corporation2540 Mission College Blvd.   2200 Mission College Blvd.Santa Clara, CA 95054   Santa Clara, CA 95052     With copies to:   With a copy to:General Counsel   Director of LicensingTransmeta Corporation   Intel Corporation2540 Mission College Blvd.   2200 Mission College Blvd.Santa Clara, CA 95054   Santa Clara, CA 95052     Mark A. Leahy, Esq.    Fenwick & West LLP    801 California Street    Mountain View, CA 94041         11.5 Compliance with Law; Export Controls. Each Party will comply with all laws andregulations applicable to such Party’s performance of this Agreement. Without limiting thegenerality of the foregoing, each Party will comply fully with all relevant export laws andregulations of the United States and all other countries having competent jurisdiction (“***ExportLaws***”) to ensure that neither the Transmeta Technology nor any direct product thereof or technicaldata related thereto is: (i) exported or re-exported directly or indirectly in violation of ExportLaws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited tonuclear, chemical, or biological weapons proliferation.     11.6 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.     11.7 Severability. If any provision of this Agreement is found invalid orunenforceable, that provision will be enforced to the maximum extent possible, and the otherprovisions of this Agreement will remain in force.     11.8 Non-Exclusive Remedy. Except as otherwise set forth in this Agreement, theexercise by either Party of any of its remedies under this Agreement will be without prejudice toits other remedies under this Agreement or otherwise.     11.9 Force Majeure. Neither Party will be liable to the other Party for any delay orfailure in its performance of this Agreement to the extent that such delay or failure is due tocauses beyond its reasonable control, including, but not limited to, acts of God, fires,earthquake, explosions, labor disputes, war, terrorism, riots, inability to obtain energy orsupplies, provided, that the non-performing Party promptly furnishes notice to the other Party andresumes performance as soon as practicable.
 

 
     11.10 Governing Law. This Agreement will be governed by and construed in accordancewith the laws of the State of Delaware. The Parties expressly disclaim the application of the U.N.Convention on Contracts for the International Sale of Goods*.*     11.11 Entire Agreement. This Agreement, including its exhibits, constitutes thecomplete and exclusive understanding and agreement between the Parties relating to the subjectmatter hereof and supersedes all contemporaneous and prior understandings, agreements andcommunications (both written and oral) relating to its subject matter; provided, however, that thisAgreement shall not be construed as limiting or otherwise affecting the Settlement Agreement andany amendments thereto. No modifications, alterations or amendments will be effective unless inwriting signed by duly authorized representatives of both Parties.     11.12 Publicity. Except as required by applicable law, neither Party willindividually make or issue any press release or public statement related to this Agreement or anyof the rights or obligations undertaken by either Party hereunder unless agreed otherwise inwriting by both Parties prior to the issuance of any such press release or public statement.     11.13 Counterparts. This Agreement may be executed in multiple counterparts, each ofwhich will be deemed an original but all of which together will constitute one and the sameinstrument.     IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by theirduly-authorized representatives as of the Effective Date.         TRANSMETA CORPORATION:   INTEL CORPORATION:         By: /s/ LESTER M. CRUDELE   By: /s/ SUZAN A. MILLER         Name: Lester M. Crudele   Name: Suzan A. MillerTitle: President & Chief Executive Officer   Title: VP & Deputy General CounselDate: September 22, 2008   Date: September 22, 2008
 

 
**EXHIBIT ATransmeta Technology:The Transmeta Technology consists of [* * *] the following:[* * *]
 **