**Signature Version**a majority of the voting power of all of such Party’s outstanding voting securities toan Acquiring Person; or (c) the sale of all or substantially all of such Party’s assets, withoutregard to the sale of cash or receivables, to an Acquiring Person.     1.5 “***Exploit***” means to make, use, sell, offer for sale, import, distribute, lease, license,and otherwise dispose of or transfer. Other forms of this term (such as “***Exploitation***”*)*shall beinterpreted in accordance with the foregoing definition.     1.6 “***Foundry Product***” means a product that (a) is designed, in whole or in substantial part,by a third party (or on behalf of a third party by anyone other than NVIDIA or an NVIDIASubsidiary), (b) does not prominently bear an NVIDIA brand, and (c) is manufactured orreproduced by or on behalf of NVIDIA or a sublicensed Subsidiary of NVIDIA under circumstanceswhere all or substantially all of such products are sold, licensed, distributed, or otherwisetransferred by NVIDIA or the sublicensed NVIDIA Subsidiary to that third party (or to customers of,and as directed by, that third party).     1.7 “***Have Made***” means to contract with a third party or parties to perform manufacturingfunctions or services (including wafer fabrication, testing, and/or packaging services) for NVIDIAor an NVIDIA Subsidiary.     1.8 “***Intellectual Property Rights***” means Patent rights, mask work rights, copyrights and tradesecret rights. Intellectual Property Rights shall not include, and specifically excludes: (i)rights in and to trademarks, trade names, logos, service marks, and other designations of source;and (ii) any rights in design patents and design patent applications.     1.9 “***Licensed Patents***” means: (a) the patents and patent applications listed on ExhibitC attached hereto and corresponding foreign counterpart patents and patent applications, ifany; (b) any application for Patent owned or controlled by Transmeta or any of its Subsidiaries inthe future which has not been filed as of the Effective Date but with respect to which Transmeta orany of its Subsidiaries has, as of the Effective Date, directed patent counsel to prepare a patentapplication (including a provisional patent application); and (c) any Patent that claims a prioritydate from any Patent covered by clause (a) or (b) above. Licensed Patent does not include, andspecifically excludes, any patent and patent application with respect to which Transmeta or aTransmeta Subsidiary would be required to pay a fee or other monetary consideration to a thirdparty in connection with or respect to the grant of a license or the exercise of rights under suchpatent or patent application as contemplated herein.     1.10 “***LongRun2 Technology***” means Transmeta’s LongRun2 power management and relatedtechnologies described in Exhibit B attached hereto, as they exist as of the Effective Dateof this Agreement.     1.11 “***NVIDIA Field of Use***” means and includes the fields of [* * *].
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**Signature Version**     1.12 “***NVIDIA Product***” means:          (a) excluding Foundry Products, any product that is designed (in whole or in substantial part)by or on behalf of NVIDIA or an NVIDIA Subsidiary and is manufactured and/or sold by or on behalfof NVIDIA or an NVIDIA Subsidiary and that consists entirely or primarily of [* * *]; and          (b) excluding Foundry Products, in the case where [* * *] (“Driver Software”) was jointlydeveloped by NVIDIA (or an NVIDIA Subsidiary) and a third party (a “***Jointly Developed Product***”) andNVIDIA’s contribution to the Jointly Developed Product (which may or may not include some or all ofthe Transmeta Technology) comprises [* * *] Driver Software that provides, in addition to thefunctionality provided by the Transmeta Technology, substantial functionality beyond that providedby the third party, then (i) when the Jointly Developed Product is sold, or the Driver Software islicensed, by NVIDIA or an NVIDIA Subsidiary, the entire Jointly Developed Product will beconsidered an NVIDIA Product, and (ii) when the Jointly Developed Product is sold, or the DriverSoftware is licensed, by the third party (or any of its subsidiaries) that jointly developed theproduct, only that portion of the Jointly Developed Product that was developed by NVIDIA or anNVIDIA Subsidiary (the “***NVIDIA Subsystem***”) will be considered an NVIDIA Product (provided, however,that none of such Jointly Developed Product will be considered an NVIDIA Product if the NVIDIASubsystem has no substantial functionality other than Adaptive Power Control).     1.13 “***Patent(s)***” means all classes and types of patents (including originals, divisions,continuations, continuations-in-part, extensions or reissues), and applications for these classesor types of patents, throughout the world, with the exception of design patents and design patentapplications.     1.14 “***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), now or hereafter, greater than fifty percent (50%) of thevoting power of the outstanding shares or stock or securities entitled to vote for the election ofdirectors or similar managing authority, or (if such entity does not have voting shares or stock orother voting securities) greater than fifty percent (50%) of the voting power of the ownershipinterest that represents the right to make decisions for such entity. An entity shall be deemed tobe a Subsidiary under this Agreement only so long as the Party to which such Subsidiary relates:(a) continues to own or control shares, stock, securities or other ownership interest in thatentity at the level required above; and (b) has not contractually or otherwise surrendered or inany other material way constrained its authority to elect the managing authority or make decisionsfor the entity.     1.15 “***Transmeta Technology***” means, collectively, the Architecture Technology and the LongRun2Technology.     1.16 “***Transmeta Technology Deliverables***” means the electronic documentation and other computerfiles that describe, document, or embody each element of the Transmeta Technology identified inExhibit A or Exhibit B.
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**Signature Version****2. LICENSE**     2.1 License Grant. Subject to the terms and conditions of this Agreement, Transmeta,on behalf of itself and its Subsidiaries, grants to NVIDIA a worldwide, nonexclusive, perpetual,irrevocable and non-terminable (except as expressly provided in Section 8.2), nontransferable andnon-assignable (except as set forth in Section 14.1), non-sublicensable (except as set forth inSection 2.2) and fully-paid-up license under all of the Licensed Patents and all IntellectualProperty Rights in the Transmeta Technology and Transmeta Technology Deliverables owned orcontrolled by Transmeta or any of its Subsidiaries, to:          (a) Exploit and Have Made NVIDIA Products; and          (b) use, reproduce, modify, and create derivative works of the Transmeta TechnologyDeliverables in connection with the design, development, manufacturing, testing, distribution,and/or sale of NVIDIA Products.If any action on the part of any Transmeta Subsidiary is necessary to make the license grant abovefully effective, Transmeta shall ensure that such Subsidiary takes such action.     2.2 Sublicensing. NVIDIA has the right to sublicense any (or all) of the licenserights granted in Section 2.1 to any one or more NVIDIA Subsidiaries. NVIDIA, however, will beresponsible for the acts and omissions of each and every such NVIDIA Subsidiary with respect to theterms and conditions of this Agreement as if they were acts and omissions of NVIDIA itself. NVIDIAalso has the right: (a) to sublicense to suppliers (including foundries and other contractmanufacturers) any or all of the license rights granted in Section 2.1, solely as necessary forNVIDIA or any of its Subsidiaries to exercise the Have Made rights granted above; and (b) tosublicense to NVIDIA’s and its Subsidiaries’ direct and indirect customers and NVIDIA’s and itsSubsidiaries’ distributors the rights to use and, in the case of distributors, distribute, sell,offer for sale, lease, and license the NVIDIA Products furnished by NVIDIA or its Subsidiary.NVIDIA may distribute and disclose the Transmeta Technology Deliverables to any Subsidiary or otherauthorized sublicensee, solely for such entity’s use in the exercise of the rights sublicensed toit by NVIDIA, subject to the terms of Section 9 below.     2.3 Limitations. NVIDIA expressly acknowledges that the license rights granted inSections 2.1 and 2.2 above are subject to the following limitations, restrictions, and conditions,and agrees to abide by all such limitations, restrictions, and conditions, as follows:          (a) The licenses granted under this Agreement do not authorize NVIDIA, or any sublicensedNVIDIA Subsidiary, to manufacture (or have manufactured) products on behalf of any third party as afoundry, contract manufacturer, or in any similar capacity. By way of illustration and withoutlimiting the foregoing, NVIDIA is not authorized to practice or use the Licensed Patents, TransmetaTechnology, or Transmeta Technology Deliverables to make or Have Made any products based on anydesign that (in whole or in substantial part) has been provided to NVIDIA by a third party, wheresuch products are to be supplied substantially exclusively to such third party or substantiallyexclusively to customers of, and as directed by, such third party.
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**Signature Version**          (b) In the event of any assignment or transfer to a third party of this Agreement by NVIDIA,whether by operation of law, in connection with a Change of Control, or otherwise (for example andwithout limitation, in connection with or as a result of a merger of NVIDIA into a third party orthe acquisition of NVIDIA’s assets by a third party), the licenses granted under this Agreementshall not extend to cover any pre-existing products of the Merger Partner or Acquiring Person, anysubsequent versions thereof that are substantially based upon the design of such pre-existingproducts of the Merger Partner or Acquiring Person, or any later-released products of the MergerPartner or Acquiring Person that are not substantially based on a product that was an NVIDIAProduct immediately prior to the assignment or other transfer of this Agreement. However, foravoidance of doubt, the licenses granted under this Agreement will continue to apply to the NVIDIAProducts as they existed immediately prior to such assignment or transfer and to any subsequentversions thereof that are substantially based upon the design of such pre-existing NVIDIA Products.          (c) NVIDIA’s and its Subsidiaries’ rights in and to the Licensed Patents and in and to theTransmeta Technology, Transmeta Technology Deliverables, and Transmeta’s Intellectual Propertyrights therein, are limited to those licenses and rights expressly granted in this Agreement.Transmeta reserves for itself all rights in and to the Licensed Patents, Transmeta Technology,Transmeta Technology Deliverables and Intellectual Property Rights therein not expressly granted toNVIDIA hereunder. For the avoidance of doubt, NVIDIA is not deemed to be an acquiror or assigneeof, or successor to, Transmeta or any of its Subsidiaries by reason of this Agreement.          (d) In the event of any Change of Control of Transmeta or any of its Subsidiaries, or anyassignment or transfer of this Agreement by Transmeta, the licenses granted pursuant to thisAgreement shall not be construed as granting any rights under, or as otherwise applying to, anyIntellectual Property Rights of the Merger Partner, Acquiring Person, or other acquirer, assignee,transferee, or successor of Transmeta or the applicable Subsidiary, except to the extent suchIntellectual Property Rights would otherwise be subject to the licenses granted above in theabsence of such Change of Control, assignment, transfer, or succession.**3. DELIVERY**Following the execution of this Agreement by both Parties, Transmeta will deliver the TransmetaTechnology Deliverables to NVIDIA by means of electronic delivery (e.g., by FTP download), by a“Load and Leave” process, or by other means reasonably acceptable to the Parties, it beingunderstood that Transmeta shall have no obligation, and has no intent, to deliver any tangiblearticles to NVIDIA under this Agreement. NVIDIA acknowledges that it has been given a full andreasonable opportunity to review, and has reviewed, the Transmeta Technology Deliverables prior toexecution of this Agreement, and that Transmeta shall have no obligation under the precedingsentence to deliver any items beyond those previously made available for NVIDIA’s review. Exceptas set forth in this Section 3, Transmeta will have no obligation to furnish NVIDIA or any of itsSubsidiaries with any technology, information, materials, services, updates, support, or assistanceof any kind. NVIDIA acknowledges and agrees that in no event shall Transmeta have any obligationto create or develop, or deliver to NVIDIA, any new technology, information, materials, or data.Upon completion of the delivery set forth in the first sentence of this Section 3, Transmeta shallhave fully and completely satisfied its delivery obligation under this Agreement to deliver theTransmeta Technology Deliverables to NVIDIA.
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**Signature Version****4. COVENANT NOT TO SUE**     4.1 Covenant by Transmeta. For a period of [* * *] following the EffectiveDate, and contingent upon receipt by Transmeta of the entire License Fee set forth in Section 6.1,Transmeta covenants that it will not assert, and it will ensure that none of its Subsidiariesasserts, any claim of infringement of any Patent against (a) NVIDIA or any of its Subsidiariesbased upon the manufacture, use, sale, offer for sale, or importation of products or services thatare within the NVIDIA Field of Use or (b) with respect to their use of any products or serviceswithin the NVIDIA Field of Use that are provided by NVIDIA or any of its Subsidiaries, any of itsor their direct or indirect customers (including end users), suppliers (including licensors), ordistributors.     4.2 Covenant by NVIDIA. For a period of [* * *] following the Effective Date,NVIDIA covenants that it will not assert, and it will ensure that none of its Subsidiaries asserts,any claim of infringement (including contributory infringement and inducing infringement) of anyPatent against Transmeta or any of its Subsidiaries based upon or arising from the licensing byTransmeta or any its Subsidiaries to any third party of the Transmeta Technology and/or LicensedPatents, including the provision by Transmeta or any of its Subsidiaries of the TransmetaTechnology Deliverables to any third party. This covenant is not intended to exhaust any ofNVIDIA’s or its Subsidiaries’ patents or confer any rights or benefits on any third party,including any licensee of Transmeta or its Subsidiaries. This covenant will apply to Transmeta andits Subsidiaries only when Transmeta or a Transmeta Subsidiary grants a license to the TransmetaTechnology or Licensed Patents to a third party (a “Licensee”) in a binding written agreement thatincludes an express acknowledgement by the Licensee that no rights in any NVIDIA patents aregranted or conferred upon the Licensee as a result of the exhaustion doctrine or the doctrine ofimplied licenses or otherwise.     4.3 Beneficiaries; Termination. The covenants set forth in Sections 4.1 and 4.2 donot and will not bind or benefit any third party, except as expressly set forth above. Thecovenants set forth above will immediately and automatically terminate upon the earlier of: (a) the[* * *] of the Effective Date; and (b) a Change of Control of either NVIDIA or Transmeta.Further, except in connection with a Change of Control, any transfer or assignment of thisAgreement or the covenant obligations or covenant rights hereunder by a Party to any third partywill automatically terminate the other Party’s and its Subsidiaries’ covenant under this Section 4.**5. RELEASE**     5.1 Release of Actions Prior to Effective Date. Following the execution of thisAgreement by both Parties, and contingent upon receipt by Transmeta of the entire License Fee setforth in Section 6.1, each Party (as “***Releasor***”), on behalf of itself and its Subsidiaries as ofthe Effective Date, releases the other Party, all of such other Party’s Subsidiaries as of theEffective Date, and all of its and their respective current and former officers, employees, agents,directors, shareholders, and owners (collectively, the “***Representatives***”) from any and all claimsof infringement of any Patent owned or controlled by the Releasor or its Subsidiaries based uponactivities occurring on or before the Effective Date. In addition, each Releasor, on behalf ofitself and its Subsidiaries as of the Effective Date, releases the other Party’s and itsSubsidiaries’ suppliers (including licensors) and direct and indirect customers (including endusers) from all claims of infringement of any Patent owned or controlled by the Releasor or itsSubsidiaries
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**Signature Version**based upon the manufacture, use, sale (or license), offer for sale (or license), orimportation of products or services provided by the other Party or any of its Subsidiaries on orbefore the Effective Date. If any action on the part of any Subsidiary of a Party is necessary tomake the releases above fully effective, such Party shall ensure that such Subsidiary takes suchaction.     5.2 Release of Unknown Claims. The release contained in this Agreement extends toclaims to which the Parties and their respective Subsidiaries do not know or suspect to exist intheir favor, which if known by them, would have materially affected their decision to enter intothe release contained in this Agreement. Each of the Parties, on behalf of itself and itsSubsidiaries as of the Effective Date, acknowledges that it is familiar with Section 1542 of theCivil Code of the State of California, which is quoted as follows:A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW, OR SUSPECT TOEXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVEMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.     The Parties expressly waive their right under Section 1542 as to any unknown claims within thescope of the release under this Agreement. Notwithstanding the foregoing, the Parties acknowledgeand agree that the release given under this Section 5 is limited to claims of patent infringementand is not a “general release” of any other related claims, known or unknown, that may be based ona common set of transactions or occurrences or depend on a common nucleus of operative facts.     5.3 Claims not Released. Notwithstanding anything set forth in this Section 5 orelsewhere in this Agreement, nothing in this Agreement is or will be effective to release a Party,its Subsidiaries or that Party’s or its Subsidiaries’ Representatives, suppliers (includinglicensors) and direct and indirect customers (including end users) from any claims an acquiror,transferee, assignee, or successor of the Releasor or of the Releasor’s Subsidiaries may have priorto the effective date of such acquisition, transfer, assignment, or succession.**6. PAYMENTS**     6.1 License Fee. Within [* * *] business days after Transmeta’s delivery of theTransmeta Technology Deliverables pursuant to the first sentence of Section 3, and subject toSection 6.2 below, NVIDIA will pay (or will cause NVIDIA Sub to pay) to Transmeta a one-time,non-refundable license fee of twenty-five million United States dollars (U.S. $25,000,000)(“***License Fee***”). Transmeta will credit twenty-five thousand United States dollars (U.S. $25,000)of the License Fee to the Fees owed by NVIDIA to Transmeta pursuant to that certain DesignEvaluation Agreement between the Parties dated [* * *].     6.2 Payment Terms. The entire amount of the License Fee specified in this Agreementwill be paid in U.S. dollars. NVIDIA shall pay (or will cause NVIDA Sub to pay) the entire LicenseFee to Transmeta, without deduction or withholding of taxes or other fees or costs, by wiretransfer for the account of Transmeta to such account as Transmeta may indicate by written noticeto NVIDIA. Transmeta will provide written notice of its wire transfer instructions to NVIDIA nolater than [* * *] business days after its initial delivery of the Transmeta TechnologyDeliverables to NVIDIA pursuant to the first sentence of Section 3. If
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**Signature Version**Transmeta fails to provide written notice of its wire transfer instructions to NVIDIA by then,then for each additional day before Transmeta provides such written notice to NVIDIA, NVIDIA willhave an additional day to pay the License Fee to Transmeta.**7. PUBLICITY**Promptly after execution of this Agreement by both Parties, NVIDIA and Transmeta will cooperatewith one another to prepare and issue a mutually agreed-upon press release regarding therelationship established by this Agreement. Neither Party shall issue any other press release orother public statement regarding this Agreement or either Party’s rights or obligations hereunderwithout the other Party’s prior written approval of such press release or other public statement,which approval shall not be unreasonably withheld or delayed.**8. TERM AND TERMINATION**     8.1 Term. This Agreement will begin on the Effective Date and will remain in forceperpetually unless and until terminated in accordance with Section 8.2.     8.2 Termination of Agreement. Transmeta will have the right to terminate thisAgreement, including the licenses granted in Section 2, by written notice to NVIDIA due to NVIDIA’sfailure to pay the License Fee as set forth in Section 6, if such failure is not corrected withinten (10) business days after Transmeta provides written notice thereof to NVIDIA. Transmeta willnot have the right to terminate this Agreement, or any license rights granted to NVIDIA in thisAgreement, for any other reason including any other breach of this Agreement by NVIDIA. BothParties acknowledge that Transmeta will have the right to seek other remedies, including monetarydamages and injunctive relief, for any breach of this Agreement by NVIDIA, and without limiting orwaiving any such other remedies, Transmeta irrevocably and unconditionally waives any right it mayhave, under any principle of equity or any other legal theory, to terminate any of the licenserights granted to NVIDIA in this Agreement due to any breach of this Agreement (other than theobligation to pay the License Fee) by NVIDIA or any other act, conduct, or omission on the part ofNVIDIA (other than a failure to pay the License Fee). NVIDIA may not terminate this Agreement forany reason.     8.3 Effect of Termination of Agreement. Upon termination of this Agreement byTransmeta pursuant to Section 8.2: (i) all license rights of NVIDIA under Section 2.1, and allsublicenses granted under Section 2.2, will immediately and automatically terminate; and(ii) NVIDIA and its sublicensed Subsidiaries shall promptly return to Transmeta or destroy allcopies, in whatever form, of the Transmeta Technology Deliverables in its or their possession orcontrol (and, to the extent commercially reasonable, any copies provided by NVIDIA or an NVIDIASubsidiary that are in the possession or control of any third party).     8.4 Survival. The rights and obligations of the Parties under Sections 8.3, 8.4, 9,10, 11, 12, 13 and 14 of this Agreement will survive termination of this Agreement for any reason.**9. CONFIDENTIALITY**     9.1 Confidentiality Obligations. NVIDIA, on behalf of itself and its Subsidiaries,acknowledges and agrees that the Transmeta Technology and Transmeta Technology
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**Signature Version**Deliverables may contain valuable proprietary, confidential and trade secret information ofTransmeta. Accordingly, NVIDIA will restrict the disclosure of the Transmeta Technology andTransmeta Technology Deliverables to its Subsidiaries and to suppliers (including foundries andother contract manufacturers), customers, and distributors as allowed under Sections 2.1 and 2.2,and will not use the Transmeta Technology or Transmeta Technology Deliverables in a manner that isoutside the scope of the license rights granted to NVIDIA in this Agreement and, with respect tocopyrighted materials included in the Transmeta Technology Deliverables, would not be considered“fair use” of those materials within the meaning of U.S. copyright law. NVIDIA and itsSubsidiaries shall use at least the efforts and procedures that NVIDIA ordinarily uses with respectto its own confidential information and trade secrets, but in no event will NVIDIA use less thanreasonable efforts, to protect and to maintain the confidentiality of all of the TransmetaTechnology and Transmeta Technology Deliverables while the Transmeta Technology and TransmetaTechnology Deliverables are in the possession or control of NVIDIA or its Subsidiaries. Whendisclosing the Transmeta Technology or Transmeta Technology Deliverables to third parties asallowed under Sections 2.1 and 2.2, NVIDIA and its Subsidiaries will use the same efforts andprocedures to protect the confidentiality of the Transmeta Technology or Transmeta TechnologyDeliverables being disclosed as NVIDIA and its Subsidiaries use to protect their own confidentialinformation of similar nature and value.     9.2 Equitable Relief. NVIDIA, on behalf of itself and its Subsidiaries, acknowledgesand agrees that, in the event of a breach by NVIDIA or its Subsidiaries of the restrictions,limitations, or conditions set forth in this Agreement with respect to the disclosure and/or use ofthe Transmeta Technology and the Transmeta Technology Deliverables, in addition to any and allother remedies available at law, in equity or otherwise to Transmeta and its Subsidiaries,Transmeta and its Subsidiaries shall have the right to seek specific performance, a temporaryrestraining order, preliminary and permanent injunctions and any other appropriate equitable reliefrestraining and remedying any breach or threatened breach of the requirements of confidentiality orany other restrictions, limitations, or conditions on use or disclosure set forth in thisAgreement.     9.3 Confidentiality of this Agreement. Neither Party shall disclose this Agreement orany portion thereof without the prior written consent of the other Party.     9.4 Disclosure Exceptions. The foregoing obligations of Section 9.3 shall notrestrict either Party from disclosing the terms of this Agreement: (i) pursuant to the order orrequirement of a court, administrative agency, or other governmental body, provided that the Partyrequired to make such a disclosure gives reasonable notice to the other Party, to the extentreasonably practicable, so that the other Party may contest such an order or requirement or seekconfidential treatment; (ii) on a confidential basis to its legal or professional advisors; (iii)as required under applicable securities laws, rules and regulations; (iv) subject to execution ofreasonable and customary written confidentiality agreements consistent with the restrictions setforth herein, to present or future providers of capital and/or potential acquirers of such Party orits assets associated with the subject matter of this Agreement; and (v) as required to enforce itsrights under the Agreement.     9.5 Exclusions. The obligations set forth in Section 9.1 will not apply to anyinformation that: (i) is or becomes generally known to the public through no fault or breach ofthis Agreement by the receiving Party; (ii) was rightfully known to the receiving Party at the
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**Signature Version**time of disclosure without an obligation of confidentiality owned to the disclosing Party;(iii) was independently developed by the receiving Party without use of the disclosing Party’sConfidential Information; or (iv) the receiving Party rightfully obtains from a third Party withoutrestriction on use or disclosure.**10. OWNERSHIP**     10.1 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, whether existing as of the Effective Date or arising thereafter.     10.2 Proprietary Notices. NVIDIA and its Subsidiaries will not delete or in anymanner alter the patent, copyright, trademark, and other proprietary rights notices of Transmeta(and its suppliers, if any) appearing on the documents and computer readable media (including theTransmeta Technology and/or Transmeta Technology Deliverables), as provided or otherwise madeavailable by Transmeta hereunder.**11. NO WARRANTIES**THE LICENSED PATENTS, TRANSMETA TECHNOLOGY, AND TRANSMETA TECHNOLOGY DELIVERABLES ARE LICENSED ANDMADE AVAILABLE BY TRANSMETA UNDER THIS AGREEMENT “AS IS” AND WITH ALL FAULTS. TO THE FULLESTEXTENT PERMITTED BY APPLICABLE LAW, TRANSMETA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES ANDCONDITIONS WITH RESPECT TO THE LICENSED PATENTS, TRANSMETA TECHNOLOGY, AND TRANSMETA TECHNOLOGYDELIVERABLES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING: (a) ANY WARRANTY ORREPRESENTATION AS TO THE VALIDITY, SCOPE, OR ENFORCEABILITY OF THE LICENSED PATENTS OR THATNVIDIA’S EXERCISE OF THE RIGHTS GRANTED HEREUNDER WILL NOT INFRINGE THE RIGHTS OF ANY THIRDPARTIES; AND (b) ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, COMPLETENESS,SUFFICIENCY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, OR NON-INFRINGEMENT; EVEN IF TRANSMETA HASBEEN MADE AWARE OF ANY PARTICULAR NVIDIA REQUIREMENTS. THE TRANSMETA TECHNOLOGY AND TRANSMETATECHNOLOGY DELIVERABLES INCLUDE MATERIALS THAT ARE SUBJECT TO OPEN-SOURCE LICENSING TERMS ANDCONDITIONS.**12. INDEMNITY**Subject to Section 13, NVIDIA agrees to and shall defend, at its own expense, and indemnifyTransmeta and its Subsidiaries for all monetary damages finally awarded or agreed to in settlementas a result of: (a) any claims of patent infringement (including contributory infringement andinducing infringement) asserted in any legal action or proceeding by a Potential PatentClaimant (as defined in Exhibit D) against Transmeta or its Subsidiaries to the extent(and solely to the extent) that such claims are based on NVIDIA’s, its Subsidiaries’,or any of its or their sublicensees’, joint development partners’,
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**Signature Version**   direct and indirect customers’, or agents’ Exploitation or other use of theTransmeta Technology or Transmeta Technology Deliverables licensed or provided toNVIDIA pursuant to this Agreement; or  (b) any third-party claims for breach of confidentiality, misappropriation of tradesecrets, or copyright infringement arising solely from (i) Transmeta’s delivery ordisclosure to NVIDIA of Third Party Materials included in the Transmeta TechnologyDeliverables or (ii) NVIDIA’s or its Subsidiaries’ Exploitation of such Third PartyMaterials. As used above, “Third Party Materials” means data, works of authorship,proprietary or confidential information, software code, or other information ormaterials that Transmeta or a Transmeta Subsidiary has lawfully obtained from a thirdparty (without breaching any contract, infringing any copyrights, misappropriating anytrade secrets, or otherwise engaging in any activity or conduct that is illegal orviolates a third party’s rights) prior to its delivery or disclosure thereof to NVIDIA.NVIDIA’s obligations under this Section 12 are subject to the following conditions: (i) Transmeta must give NVIDIA prompt written notice of the claims for whichTransmeta seeks indemnification;  (ii) Transmeta must tender complete control of the defense and settlement of suchclaims to NVIDIA (except that NVIDIA may not agree, without Transmeta’s prior writtenconsent, to any settlement that would impose any material restriction, liability, orobligation on Transmeta or its Subsidiaries, including any material restriction onTransmeta’s or its Subsidiaries’ right to Exploit the Transmeta Technology or LicensedPatents, or any obligation that would require Transmeta or any of its Subsidiaries tolicense, transfer, or otherwise dispose of any material portion of the TransmetaTechnology or Licensed Patents, it being understood that Transmeta will notunreasonably withhold such consent); and  (iii) Transmeta must reasonably cooperate with NVIDIA in the defense of such claims.**13. LIMITATION OF LIABILITY**     13.1 Exclusion of Damages. EXCEPT WITH RESPECT TO ANY BREACH OF NVIDIA’S OR ITSSUBSIDIARIES’ OBLIGATIONS UNDER SECTION 9.1, OR ANY VIOLATION OF THE LIMITATIONS OR RESTRICTIONS ONTHE SCOPE OF THE LICENSES GRANTED TO NVIDIA HEREUNDER, NEITHER PARTY (INCLUDING ITS SUBSIDIARIES)WILL BE LIABLE TO THE OTHER PARTY OR ITS SUBSIDIARIES FOR ANY INCIDENTAL, SPECIAL, PUNITIVE,EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES BASED ON LOSS OF USE, DATA, BUSINESS,PROFITS, OR GOODWILL OR BASED ON COST OF COVER) IN CONNECTION WITH, ARISING OUT OF, OR RELATING TOTHIS AGREEMENT OR ANY USE BY NVIDIA (OR ANY OF ITS SUBSIDIARIES, AGENTS OR DIRECT OR INDIRECTCUSTOMERS) OF THE LICENSED PATENTS, TRANSMETA TECHNOLOGY, OR TRANSMETA TECHNOLOGY DELIVERABLES,WHETHER SUCH LIABILITY ARISES FROM ANY
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**Signature Version**CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OROTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS SECTION13.1 SHALL NOT, HOWEVER, BE CONSTRUED AS LIMITING (a) EITHER PARTY’S LIABILITY FOR INFRINGEMENT ORMISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, or (b) THE AMOUNT OF MONETARYDAMAGES FINALLY AWARDED BY A COURT, OR AGREED TO IN A SETTLEMENT, FOR WHICH NVIDIA IS OBLIGATED TOINDEMNIFY TRANSMETA PURSUANT TO SECTION 12.     13.2 Total Liability          (a) IN NO EVENT WILL TRANSMETA’S TOTAL CUMULATIVE LIABILITY TO NVIDIA IN CONNECTION WITH,ARISING OUT OF, OR RELATING TO THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY,EXCEED [* * *] U.S. DOLLARS ($[* * *]).          (b) EXCEPT FOR ANY FAILURE BY NVIDIA TO PAY THE LICENSE FEE AS SET FORTH IN SECTION 6 AND ASEXPRESSLY PROVIDED IN SECTION 13.2(c), IN NO EVENT WILL NVIDIA’S TOTAL CUMULATIVE LIABILITY TOTRANSMETA IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THIS AGREEMENT, FROM ALL CAUSES OFACTION AND THEORIES OF LIABILITY (INCLUDING NVIDIA’S OBLIGATIONS UNDER SECTION 12), EXCEED [* * *]U.S. DOLLARS ($[* * *]).          (c) IN NO EVENT WILL NVIDIA’S AND ITS SUBSIDIARIES’ TOTAL CUMULATIVE LIABILITY TO TRANSMETA INCONNECTION WITH, ARISING OUT OF, OR RELATING TO ANY BREACH OF NVIDIA’S OBLIGATIONS UNDER SECTION9.1 OR ANY LIABILITY FOR NVIDIA’S OR ITS SUBSIDIARIES’ INFRINGEMENT OR MISAPPROPRIATION OFTRANSMETA’S OR ITS SUBSIDIARIES’ INTELLECTUAL PROPERTY RIGHTS EXCEED [* * *] U.S. DOLLARS ($[* **]).     13.3 Acknowledgment. Each Party acknowledges that the other Party has entered intothis Agreement in reliance on the above limitations and exclusions of liability, and on NVIDIA’spromise to indemnify, defend, and hold harmless Transmeta as set forth in Section 12 above, andthat the same constitute a material basis of the bargain between the Parties, without which neitherParty would enter into this Agreement. The Parties have agreed that the limitations and exclusionsspecified 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.**14. GENERAL PROVISIONS**     14.1 Assignment. Neither Party may assign or transfer this Agreement and/or anyrights and/or obligations hereunder, in whole or in part, whether by operation of law or otherwise,without the other Party’s express prior written consent, which consent will not be unreasonablywithheld or delayed. Notwithstanding the immediately preceding sentence, either Party may assignor transfer this Agreement in connection with a Change of Control of that Party to a Merger Partneror the Acquiring Person in that Change of Control. Any attempt to assign or
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**Signature Version**transfer this Agreement other than as specifically permitted by this Section 14.1 shall benull and void and without effect. Any assignment or transfer of this Agreement shall be subject tothe provisions of Section 2.3(b), Section 2.3(d) and Section 4. Subject to the foregoing or asprovided otherwise in this Agreement, the rights and obligations of the Parties will be bindingupon and inure to the benefit of the Parties’ permitted successors and lawful transferees andassigns.     14.2 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.     14.3 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 NVIDIA and/or NVIDIA Sub:     President Chief Financial Officer Transmeta Corporation NVIDIA Corporation 2540 Mission College Blvd. 2701 San Tomas Expressway Santa Clara, CA 95054 Santa Clara, CA 95050  With copies to: With copy to: General Counsel General Counsel Transmeta Corporation NVIDIA Corporation 2540 Mission College Blvd. 2701 San Tomas Expressway Santa Clara, CA 95054 Santa Clara, CA 95050     Mark A. Leahy, Esq.   Fenwick & West LLP   801 California Street   Mountain View, CA 94041       14.4 Compliance with Export Control Laws. NVIDIA will comply fully with all relevantexport laws and regulations of the United States and all other countries having competentjurisdiction (“***Export Laws***”) to ensure that neither the Transmeta Technology, Transmeta TechnologyDeliverables nor any direct product thereof or technical data related thereto is: (i) exported orre-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposesprohibited by the Export Laws, including nuclear, chemical, or biological weapons proliferation.
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**Signature Version**     14.5 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.     14.6 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.     14.7 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.     14.8 Governing Law and Venue. This Agreement will be governed by and construed inaccordance with the laws of the State of California without reference to its conflict of lawsprinciples. Any legal action or proceeding arising under this Agreement will be broughtexclusively in the federal or state courts located in the Northern District of California and theParties hereby irrevocably: (a) consent to the personal jurisdiction of such courts and venuetherein; and (b) waive any objections based on any such court’s inconvenience as a forum.     14.9 Construction. No rule of strict construction shall be applied in theinterpretation of this Agreement. Section headings are for convenience only and are not to betaken into consideration in the interpretation of this Agreement. Unless otherwise expresslystated in this Agreement: (a) the words “including” and “includes”, and any variations thereof,will be read as if followed by the words “without limitation” and shall not be taken as expressionsof limitation; and (b) whenever a Party’s consent or approval is required, such Party may grant orwithhold such consent or approval in its absolute discretion.[REMAINDER OF PAGE INTENTIONALY LEFT BLANK.]
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**Signature Version**     14.10 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. No modifications,alterations, or amendments will be effective unless in writing signed by duly authorizedrepresentatives of both Parties.     14.11 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 and NVIDIA Sub have caused this Agreement to be executed bytheir duly authorized representatives, to be effective as of the Effective Date.           TRANSMETA CORPORATION:   NVIDIA CORPORATION:             By: /s/ LESTER M. CRUDELE   By: /s/ DAVID M. SHANNON             Name: Lester M. Crudele   Name: David M. Shannon  Title: President & Chief Executive Officer   Title: General Counsel  Date: July 31, 2008   Date: July 31, 2008                   NVIDIA International, Inc.                   By: /s/ NIGEL B. ALLEN                   Name: Nigel B. Allen        Title: Director        Date: July 31, 2008  
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**Signature Version****EXHIBIT A****Architecture Technology****[* * *]**
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**Signature Version****EXHIBIT B****LongRun2 Technology**[* * *]
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**Signature Version****EXHIBIT C****Licensed Patents**Transmeta represents and warrants that Exhibit C contains a complete and accurate list of all U.S.patent applications (including continuations, continuations in part, and divisionals) and issuedU.S. patents (including reissues and reexaminations) that are in Transmeta’s possession, custody,or control, or that Transmeta has the right or ability to license, as of the Effective Date.Transmeta further represents and warrants that each non-U.S. patent or patent application owned orcontrolled by Transmeta or any of its Subsidiaries as of the Effective Date is a foreigncounterpart of at least one of the U.S. patents or patent applications listed below and, therefore,is a Licensed Patent.[* * *]
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**Signature Version****EXHIBIT D****Potential Patent Claimants**[* * *]
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