SUBSCRIPTION AGREEMENT
Exhibit 10.1
The undersigned (the “Investor”) hereby confirms its agreement with you as follows:
1. This Subscription Agreement (this “Agreement”) is made as of the date set forth below
between Transmeta Corporation, a Delaware corporation (the “Company”), and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate of
2,000,000 units (the “Units”), each consisting of (i) one share (each, a “Share”
and collectively, the “Shares”) of its common stock, par value $0.00001 per share (the
“Common Stock”), and (ii) one warrant (each, a “Warrant” and collectively, the
“Warrants”) to purchase 0.5 (the “Warrant Ratio”) shares of Common Stock, subject
to adjustment by the Company’s Board of Directors, or a committee thereof, for a purchase price of
$6.40 per Unit (the “Purchase Price”). The shares of Common Stock issuable upon exercise
of the Warrants are referred to herein as “Warrant Shares” and, together with the Units,
the Shares and the Warrants, are collectively referred to herein as the “Securities.”
3. The offering and sale of the Securities (the “Offering”) are being made pursuant to (a)
the Company’s effective registration statement on Form S-3 (Registration No. 333-144476) (including
the prospectus contained therein (the “Base Prospectus”)) filed with the Securities and
Exchange Commission (the “Commission”) (which, together with all amendments or supplements
thereto, is referred to herein as the “Registration Statement”), (b) if applicable, certain
“free writing prospectuses” (as that term is defined in Rule 405 under the Securities Act of 1933)
that have been or will be filed with the Commission and delivered to the Investor on or prior to
the date hereof, and (c) a Prospectus Supplement containing certain supplemental information
regarding the Securities and terms of the Offering that will be filed with the Commission (the
“Prospectus Supplement”) and delivered to the Investor (or made available to the Investor
by the filing by the Company of an electronic version thereof with the Commission) along with the
Company’s counterpart to this Agreement.
4. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the Units set forth below for the aggregate purchase
price set forth below. The Units shall be purchased pursuant to the Terms and Conditions for
Purchase of Units attached hereto as Annex I and incorporated herein by this reference as
if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten
by the placement agent (the “Placement Agent”) named in the Prospectus Supplement and that
there is no minimum offering amount. The Investor acknowledges that the Company intends to enter
into subscription agreements in substantially the same form as this Agreement with certain other
investors and intends to offer and sell such other investors Units in the Offering pursuant to the
Registration Statement.
5. The manner of settlement of the Shares included in the Units purchased by the Investor shall be
determined by such Investor as follows:
Delivery by electronic book-entry at The Depository Trust Company (“DTC”),
registered in the Investor’s name and address as set forth below, and released by Mellon
Investor Services L.L.C., the Company’s transfer agent (the “Transfer Agent”), to
the Investor at the Closing. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF
THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
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| (I) | DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”) INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND | ||
| (II) | IN ACCORDANCE WITH SECTION 3.3(a) OF THE TERMS AND CONDITIONS ATTACHED HERETO AS ANNEX I, REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: |
Xxxxx Fargo Bank
Bank ID: 000000000
Account number: 4172564379
Bank ID: 000000000
Account number: 4172564379
IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE
PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY
MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES NOT
MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE UNITS MAY NOT BE DELIVERED AT
CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.
6. The executed Warrant representing the Warrants included in the Units purchased by the Investor
shall be delivered in accordance with the Terms and Conditions for Purchase of Units attached
hereto as Annex I.
7. The Investor represents that, except as set forth below, (a) it has had no position, office or
other material relationship within the past three years with the Company or any persons known to it
to be affiliates of the Company, (b) it is not a, and has no direct or indirect affiliation or
association with any, NASD member or an Associated Person (as such term is defined under Section
1011 of the NASD Membership and Registration Rules) as of the date hereof, and (c) neither the
Investor nor any group of investors (as identified in a public filing made with the Commission) of
which the Investor is a part in connection with the Offering of the Units, acquired, or obtained
the right to acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a post-transaction basis.
Exceptions:
8. The Investor represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the final Base
Prospectus, dated July 20, 2007, the documents incorporated by reference therein, and any free
writing prospectus (collectively, the “Disclosure Package”), prior to or in connection with
the receipt of this Agreement, and that the Investor understands that it will receive the
Prospectus Supplement (or otherwise have made available to it by the filing by the Company of an
electronic version thereof with the Commission) together with the Company’s counterpart of this
Agreement.
9. No offer by the Investor to buy Units will be accepted and no part of the Purchase Price will be
delivered to the Company until the Company has accepted such offer by countersigning a copy of this
Agreement, and any such offer may be withdrawn or revoked, without obligation or commitment of any
kind, at any time prior to the Company (or the Placement Agent on behalf of the Company) sending
(orally, in writing, or by electronic mail) notice of its acceptance of such offer. An indication
of interest will involve no obligation or commitment of any kind until this Agreement is accepted
and countersigned by or on behalf of the Company.
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Number of Units:
Purchase Price Per Unit: $
Aggregate Purchase Price: $
Purchase Price Per Unit: $
Aggregate Purchase Price: $
Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.
| Dated as of: September 20, 2007 |
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| INVESTOR |
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| By: | ||||||||||
| Print Name: | ||||||||||
| Title: | ||||||||||
| Address: | ||||||||||
[Signature Page — Subscription Agreement]
Agreed and Accepted
this 20th day of September, 2007:
this 20th day of September, 2007:
| TRANSMETA CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page — Subscription Agreement]
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF UNITS
All capitalized terms not otherwise defined in this Annex I shall have the meanings ascribed
thereto in the Subscription Agreement to which this Annex I is attached.
1. Authorization and Sale of the Units. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Units, which consist of the Shares and the
Warrants.
2. Agreement to Sell and Purchase the Units; Placement Agent.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Units set forth on the last page of this Agreement to which these Terms and
Conditions for Purchase of Units are attached as Annex I (the “Signature Page”) for
the aggregate purchase price therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of some
or all of the remaining Units to them as part of the Offering. The Investor and the Other
Investors are hereinafter sometimes collectively referred to as the “Investors,” and this
Agreement and the Subscription Agreements executed by the Other Investors are hereinafter sometimes
collectively referred to as the “Agreements.”
2.3 The Investor acknowledges that the Company intends to pay X.X. Xxxxxxx & Sons, Inc. (the
“Placement Agent”) a fee (the “Placement Fee”) in respect of the sale of Units to
the Investor.
2.4 The Company has entered into a Placement Agency Agreement (the “Placement
Agreement”) with the Placement Agent that contains certain representations, warranties,
covenants and agreements of the Company in Sections 3 and 4 thereof that may be relied upon by the
Investor. The Investors shall be express intended third party beneficiaries of such
representations, warranties, covenants and agreements contained in Section 3 of the Placement
Agreement. A copy of the Placement Agreement is available to the Investor upon request.
3. Closings and Delivery of the Units and Funds.
3.1 Closing. Subject to the satisfaction of the conditions set forth in Section 3.2
below, the completion of the purchase and sale of the Units (the “Closing”) will occur at a
place and time (the “Closing Date”), which is expected to occur on or about September 26,
2007 but shall not be later than 5:00 p.m., New York time, on October 3, 2007, to be specified by
the Company and the Placement Agent, and of which the Investor will be notified in advance by the
Placement Agent. At the Closing and in accordance with paragraph 5 of the Subscription Agreement:
(a) the Company will cause the Transfer Agent to deliver to the Investor the number of Shares
included in the Units set forth on the Signature Page registered in the name of the Investor or, if
so indicated on the Investor Questionnaire attached hereto as Exhibit A, in the name of a
nominee designated by the Investor, (b) the Company shall cause to be delivered to the Investor a
Warrant to purchase a number of whole Warrant Shares determined by multiplying the number of Shares
included in the Units set forth on the signature page by the Warrant Ratio and rounding down to the
nearest whole number, and (c) the aggregate purchase price for the Units being purchased by the
Investor will be delivered by or on behalf of the Investor to the Company.
3.2 (a) Conditions to the Company’s Obligations. The Company’s obligation to issue
and sell the Units to the Investor will be subject to (i) the receipt by the Company of the
aggregate purchase price for the Units being purchased hereunder as set forth on the Signature Page
and (ii) the accuracy
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of the representations and warranties made by the Investor in this Agreement and the
fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing Date.
(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Units will be subject to the condition that the Placement Agent shall not have: (i) terminated
the Placement Agreement pursuant to the terms thereof or (ii) determined that the conditions to the
closing in the Placement Agreement have not been satisfied. The Investor’s obligations are
expressly not conditioned on the purchase by any or all of the Other Investors of the remaining
Units that they have agreed to purchase from the Company.
3.3 Delivery of Funds by Electronic Book-Entry at The Depository Trust Company.
No later than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall remit by wire transfer the amount of funds equal to the
aggregate purchase price for the Units being purchased by the Investor to the following account
designated by the Company and the Placement Agent:
Xxxxx Fargo Bank
Bank ID: 000000000
Account number: 4172564379
Bank ID: 000000000
Account number: 4172564379
3.4 Delivery of Shares by Electronic Book-Entry at The Depository Trust Company.
No later than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall direct the broker-dealer at which the account or accounts
to be credited with the Shares included in the Units being purchased by such Investor are
maintained, which broker/dealer shall be a DTC participant, to set up a Deposit/Withdrawal at
Custodian (“DWAC”) instructing Mellon Investor Services L.L.C., the Company’s transfer
agent, to credit such account or accounts with the Shares by means of an electronic book-entry
delivery. Such DWAC shall indicate the settlement date for the deposit of the Shares, which date
shall be provided to the Investor by the Placement Agent. Simultaneously with the delivery to the
Company by the Investor of the funds Section 3.3 above, the Company shall direct its
transfer agent to credit the Investor’s account or accounts with the Shares pursuant to the
information contained in the DWAC.
4. Representations, Warranties and Covenants of the Investor.
4.1 The Investor represents and warrants to, and covenants with, the Company that: (a) the
Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in shares presenting an investment decision like that
involved in the purchase of the Units, including investments in securities issued by the Company
and investments in comparable companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the Units; (b) the
Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in
preparation of the Prospectus Supplement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date; and (c) the Investor, in
connection with its decision to purchase the number of Units set forth on the Signature Page, is
relying only upon the Disclosure Package, the Prospectus Supplement, and the representations and
warranties of the Company contained herein and in Section 3 of the Placement Agreement.
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4.2 The Investor acknowledges, represents and agrees that no action has been or will be taken
in any jurisdiction outside the United States by the Company or the Placement Agent that would
permit an offering of the Units, or possession or distribution of offering materials in connection
with the issue of the Units in any jurisdiction outside the United States where action for that
purpose is required. The Investor, if outside the United States, will comply with all applicable
laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers
Units or has in its possession or distributes any offering material, in all cases at its own
expense. The Placement Agent is not authorized to make and has not made any representation or use
of any information in connection with the issue, placement, purchase and sale of the Units, except
as set forth or incorporated by reference in the Disclosure Package or the Prospectus Supplement.
4.3 The Investor further represents and warrants to, and covenants with, the Company that: (a)
the Investor has full right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement; and (b) this Agreement constitutes a valid
and binding obligation of the Investor enforceable against the Investor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights
generally and except as enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).
4.4 The Investor understands that nothing in this Agreement, the Disclosure Package, the
Prospectus Supplement or any other materials presented to the Investor in connection with the
purchase and sale of the Units constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Units.
4.5 The Investor represents and warrants that, since the date on which the Placement Agent
first contacted such Investor about the Offering, the Investor has not engaged in any transactions
in the securities of the Company (including, without limitation, any Short Sales (as defined below)
involving the Company’s securities). The Investor covenants that it will not engage in any
transactions in the securities of the Company (including Short Sales) prior to the time that the
transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it
will not use any of the Units acquired pursuant to this Agreement to cover any short position in
the Common Stock if doing so would be in violation of applicable securities laws. For purposes
hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Securities Exchange Act of 1934 (the “Exchange
Act”), whether or not against the box, and all types of direct and indirect stock pledges,
forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as
defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total
return basis), and sales and other transactions through non-U.S. broker dealers or foreign
regulated brokers.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Units
being purchased and the payment therefor. The Placement Agent shall be a third party beneficiary
with respect to the representations, warranties and agreements of the Investor in Section 4 hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express,
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two business days after so mailed, and (iv) if delivered by facsimile, upon electric
confirmation of receipt and will be delivered and addressed as follows:
(a) if to the Company, to:
Transmeta Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxx X’Xxxx Xxxxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxx X’Xxxx Xxxxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Fenwick & West LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement shall not be modified or amended except pursuant to an instrument
in writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.
10. Governing Law; Jurisdiction. This Agreement will be governed by, and construed in
accordance with, the internal laws of the State of New York, without giving effect to the
principles of conflicts of law that would require the application of the laws of any other
jurisdiction. Any legal action, suit or proceeding arising out of or relating to this Agreement,
the Placement Agreement or the transactions contemplated hereby or thereby shall only be
instituted, heard and adjudicated (excluding appeals) only in a state or federal court located in
New York, and each party hereto knowingly, voluntarily and intentionally waives any objection which
such party may now or hereafter have to the laying of the venue of any such action, suit or
proceeding, and irrevocably submits to the exclusive personal jurisdiction of any such court in any
such action, suit or proceeding. Service of process in connection with any such action, suit or
proceeding may be served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that
the Company shall deliver its counterpart to the Investor along with the Prospectus Supplement (or
the filing by the Company of an electronic version thereof with the Commission).
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12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt
of the Company’s counterpart to this Agreement, together with the Prospectus Supplement (or the
filing by the Company of an electronic version thereof with the Commission), shall constitute
written confirmation of the Company’s sale of Units to such Investor.
13. Termination. In the event that the Placement Agreement is terminated by the Placement
Agent pursuant to the terms thereof, this Agreement shall terminate without any further action on
the part of the parties hereto.
14. Entire Agreement. This Agreement, and the applicable provisions of this Placement
Agreement, constitute the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings between such parties with
respect to such subject matter.
15. No Assignment. This Agreement shall not be assigned by any party hereto, without the
express prior written consent of the Company, the Investor and the Placement Agent.
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Exhibit A
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to this Agreement, please provide us with the
following information:
| 1. | The exact name that your Shares and Warrants are to be registered in. You may use a nominee name if appropriate: | |||
| 2. | The relationship between the Investor and the registered holder listed in response to item 1 above: | |||
| 3. | The mailing address of the registered holder listed in response to item 1 above: | |||
| 4. | The Social Security Number or Tax Identification Number of the registered holder listed in response to item 1 above: | |||
| 5. | Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained) | |||
| 6. | DTC Participant Number | |||
| 7. | Name of Account at DTC Participant being credited with the Shares | |||
| 8. | Account Number at DTC Participant being credited with the Shares |
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