VOTING AGREEMENT
EXHIBIT 99.2
This VOTING AGREEMENT (this “Agreement”) is entered into effective as of November ,
2008, by and between Novafora, Inc., a Delaware corporation (“Acquiror”), and the
undersigned stockholder (“Stockholder”) of Transmeta Corporation, a Delaware corporation
(the “Company”). Terms not otherwise defined herein shall have the respective meanings
ascribed to them in the Merger Agreement (as defined below).
RECITALS
A. The execution and delivery of this Agreement by Stockholder is a material inducement to the
willingness of Acquiror to enter into that certain Agreement and Plan of Merger, dated on or about
November ___, 2008 (the “Merger Agreement”), by and among Acquiror, Transformer Acquisition
LLC, a Delaware limited liability company and wholly-owned subsidiary of Acquiror (“Sub”),
and the Company, pursuant to which the Company will merge with and into Sub (the “Merger”),
and Sub will survive the Merger and the separate corporate existence of the Company will cease.
B. Stockholder understands and acknowledges that the Company and Acquiror are entitled to rely
on (i) the truth and accuracy of Stockholder’s representations contained herein and (ii)
Stockholder’s performance of the obligations set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements set forth in
the Merger Agreement and in this Agreement, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Restrictions on Shares.
(a) Stockholder shall not, directly or indirectly, transfer (except as may be specifically
required by court order or by operation of law), grant an option with respect to, sell, exchange,
pledge or otherwise dispose of or encumber the Shares (as such term is defined in Section 4 below)
or any New Shares (as such term is defined in Section 1(d) below), or make any offer or enter into
any agreement providing for any of the foregoing, at any time prior to the end of the Expiration
Date; provided, however, that nothing contained herein will be deemed to restrict
the ability of Stockholder to (i) exercise, prior to the Expiration Date, any Company Options held
by Stockholder or (ii) transfer or otherwise dispose of Shares if, as a precondition to such
transfer, the transferee agrees to be bound by the terms of this Agreement and, if requested by
Acquiror, to execute a Proxy (as hereinafter defined). As used herein, the term “Expiration
Date” shall mean the close of business on the earlier of (i) the Effective Time, (ii) the date
and time of the termination of the Merger Agreement in accordance with its terms, (iii) such date
and time designated by Acquiror in a written notice to Stockholder and (iv) the date and time the
Merger Agreement is amended in any manner adverse to the Stockholder (including, for purposes of
clarity, any reductions in the price payable for the Shares or the form of consideration to be paid
by Acquiror in the Merger).
(b) Prior to the Expiration Date, except as contemplated by the Proxy attached hereto,
Stockholder shall not, directly or indirectly, grant any proxies or powers of attorney with respect
to any of the Shares, deposit any of the Shares into a voting trust, enter into a voting agreement
(other than this Agreement) or similar arrangement or commitment with respect to any of the Shares.
(c) Prior to the Expiration Date, Stockholder shall not, directly or indirectly, take any
action (other than any action of the Stockholder, in such Stockholder’s capacity as a director or
officer of the Company, in the exercise of such Stockholder’s fiduciary duties with respect to an
Acquisition Proposal or Superior Offer in compliance with the terms of the Merger Agreement) that
would make any representation or warranty contained herein untrue or incorrect or have the effect
of impairing the ability of Stockholder to perform its obligations under this Agreement.
(d) Any shares of Company Common Stock or other securities of the Company that Stockholder
purchases or with respect to which Stockholder otherwise acquires voting rights after the date of
this Agreement and prior to the Expiration Date, including pursuant to the exercise of options or
warrants to purchase Shares (collectively, the “New Shares”) shall be subject to the terms
and conditions of this Agreement to the same extent as if they constituted Shares. However the “New
Shares” shall not include any shares of Company Common Stock with respect to which Stockholder has,
or is deemed to have, beneficial ownership by reason of his ability to direct or share in directing
the voting and investment decisions of X. Xxxxx & Co. LLC, B Xxxxx & Co. Retirement Trust, Xxxxx
Investment Management LLC, Xxxxx Investment Partners Master Fund, L.P. or the clients of any of
them.
2. Agreement to Vote Shares.
(a) Prior to the Expiration Date, at every meeting of the stockholders of the Company called
with respect to any of the following matters, and at every adjournment or postponement thereof, and
on every action or approval by written consent or resolution of the stockholders of the Company
with respect to any of the following matters, Stockholder shall vote, to the extent not voted by
the person(s) appointed under the Proxy (as defined in Section 3 below) and to the extent that
Stockholder is entitled to vote such Shares, the Shares and any New Shares in favor of adoption of
the Merger Agreement, and against any Acquisition Proposal (as such term is defined in Exhibit A to
the Merger Agreement).
(b) Notwithstanding the foregoing, nothing in this Agreement shall limit or restrict
Stockholder from (i) acting in Stockholder’s capacity as an officer or director of the Company,
including in the exercise of such Stockholder’s fiduciary duties with respect to an Acquisition
Proposal or Superior Offer in compliance with the terms of the Merger Agreement, or (ii) voting in
Stockholder’s sole discretion on any matter other than matters referred to in Section 2(a) hereof,
to the extent applicable.
3. Irrevocable Proxy. Concurrently with the execution and delivery of this Agreement,
Stockholder shall deliver to Acquiror a duly executed proxy in the form attached hereto as Exhibit
A (the “Proxy”), which proxy is coupled with an interest sufficient in law to support an
irrevocable proxy, and, until the Expiration Date, shall be irrevocable to the fullest
extent permitted by law, with respect to each and every meeting of stockholders of the Company
or action or approval by written resolution or consent of stockholders of the Company with respect
to the matters contemplated by Section 2 covering the total number of Shares and New Shares in
respect of which Stockholder is entitled to vote at any such meeting or in connection with any such
written consent. Upon the execution of this Agreement by Stockholder, (i) Stockholder hereby
revokes any and all prior proxies (other than the Proxy) given by Stockholder with respect to the
subject matter contemplated by Section 2, and (ii) Stockholder shall not grant any subsequent
proxies with respect to such subject matter, or enter into any agreement or understanding with any
Person to vote or give instructions with respect to the Shares and New Shares in any manner
inconsistent with the terms of Section 2, until after the Expiration Date.
4. Representations, Warranties and Covenants of Stockholder. Stockholder hereby
represents, warrants and covenants to Acquiror as follows:
(a) As of the date of this Agreement, Stockholder is the beneficial or record owner of, or
exercises voting power over, that number of shares of Company Common Stock set forth on the
signature page hereto (all such shares owned beneficially or of record by Stockholder, or over
which Stockholder exercises voting power, on the date hereof, collectively, the “Shares”).
The “Shares” shall not include any shares of Company Common Stock with respect to which Stockholder
has, or is deemed to have, beneficial ownership by reason of his ability to direct or share in
directing the voting and investment decisions of X. Xxxxx & Co. LLC, B Xxxxx & Co. Retirement
Trust, Xxxxx Investment Management LLC, Xxxxx Investment Partners Master Fund, L.P. or the clients
of any of them. As of the date of this Agreement, the Shares constitute Stockholder’s entire
personal investment interest in the outstanding shares of Company Common Stock and Stockholder is
not the beneficial or record holder of, and does not exercise voting power over, any other
outstanding shares of capital stock of the Company except as disclosed in a filing on Schedule 13D.
As of the date of this Agreement, no person not a signatory to this Agreement has a beneficial
interest in or a right to acquire or vote any of the Shares (other than, (i) if Stockholder is a
partnership, the rights and interest of persons and entities that own partnership interests in
Stockholder under the partnership agreement governing Stockholder and applicable partnership law or
(ii) if Stockholder is a married individual and resides in a State with community property laws,
the community property interest of his or her spouse to the extent applicable under such community
property laws). The Shares are and will be at all times up until the Expiration Date free and
clear of any security interests, liens, claims, pledges, options, rights of first refusal, co-sale
rights, agreements, limitations on Stockholder’s voting rights, charges and other encumbrances of
any nature that would adversely affect the exercise or fulfillment of the rights and obligations of
the parties to this Agreement. Stockholder’s principal residence or place of business is set forth
on the signature page hereto.
(b) Stockholder has all requisite power, capacity and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and delivery of this
Agreement by Stockholder and the consummation by Stockholder of the transactions contemplated
hereby have been duly authorized by all necessary action, if any, on the part of Stockholder. This
Agreement has been duly executed and delivered by Stockholder and, assuming the due authorization,
execution and delivery of this Agreement by Acquiror, constitutes a valid and binding obligation of
Stockholder, enforceable against Stockholder in
accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies
generally and to general principles of equity.
(c) The execution and delivery of this Agreement does not, and the performance by Stockholder
of its agreements and obligations hereunder will not, conflict with, result in a breach or
violation of or default (with or without notice or lapse of time or both) under, or require notice
to or the consent of any person under, any agreement, law, rule, regulation, judgment, order or
decree by which Stockholder is bound, except for such conflicts, breaches, violations or defaults
that would not, individually or in the aggregate, prevent or delay Stockholder from performing his,
her or its obligations under this Agreement.
(d) Stockholder makes no agreement or understanding herein as a director or officer of the
Company. Stockholder signs solely in Stockholder’s capacity as a record holder and beneficial
owner, as applicable, of Shares, and nothing herein shall limit or affect any actions taken in
Stockholder’s capacity as an officer or director of the Company. Without limiting the generality
or effect of the foregoing, if the Stockholder is a director of the Company, nothing herein shall
prevent the Stockholder from taking any action solely in such Stockholder’s capacity as a director
of the Company in the exercise of such director’s fiduciary duties with respect to an Acquisition
Proposal or Superior Offer in compliance with the terms of the Merger Agreement, and none of such
actions taken in accordance with the provisions of this Section 4(d) or in accordance with the
provisions of the Merger Agreement shall be deemed to constitute a breach of this Agreement.
5. Consent and Waiver. Stockholder hereby waives any and all rights to contest or
object to the execution and delivery of the Merger Agreement, the Company Board of Directors’
actions in approving and recommending the Merger, the consummation of the Merger and the other
transactions provided for in the Merger Agreement, or to seek damages or other legal or equitable
relief in connection therewith. From and after the Effective Time, Stockholder’s right to receive
cash on the terms and subject to the conditions set forth in the Merger Agreement shall constitute
Stockholder’s sole and exclusive right against the Company and/or Acquiror in respect of
Stockholder’s ownership of the Shares or status as a stockholder of the Company or any agreement or
instrument with the Company pertaining to the Shares or Stockholder’s status as a stockholder of
the Company.
6. Confidentiality. Stockholder shall hold any information regarding this Agreement
and the Merger in strict confidence and shall not divulge any such information to any third person
until the Acquiror has publicly disclosed the Merger except as required by law or as required
pursuant to Stockholder’s fiduciary duties as a director of the Company, if applicable.
7. Appraisal Rights. Stockholder agrees not to exercise any rights of appraisal or
any dissenters’ rights that Stockholder may have (whether under applicable law or otherwise) or
could potentially have or acquire in connection with the Merger.
8. Representations and Warranties of Acquiror. Acquiror hereby represents and
warrants to Stockholder as follows: (i) Acquiror has full power and authority to make, enter into
and carry out the terms of this Agreement; (ii) this Agreement has been duly and validly
executed and delivered by Acquiror and constitutes a valid and binding agreement of Acquiror
enforceable against Acquiror in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally and to general principles of equity; and (iii) the execution and
delivery of this Agreement and the performance by Acquiror of or its agreements and obligations
hereunder will not result in any breach or violation of or be in conflict with or constitute a
default under any term of any agreement, judgment, injunction, order, decree, law, regulation or
arrangement to which Acquiror is a party or by which Acquiror (or any of its assets) is bound,
except for any such breach, violation, conflict or default which, individually or in the aggregate,
would not impair or adversely affect Acquiror’s ability to perform its obligations under this
Agreement or render inaccurate any of the representations made by Acquiror herein.
9. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given on (i) the date of delivery, if delivered personally or by commercial
delivery service, or (ii) on the date of confirmation of receipt (or the next Business Day, if the
date of confirmation of receipt is not a Business Day), if sent via facsimile (with confirmation of
receipt), to the parties hereto at the following address (or at such other address for a party as
shall be specified by like notice):
| (i) | if to Acquiror, to: | ||
| Novafora, Inc. 0000 X. 0xx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Attn: Xxxx Xxxxx, CEO |
|||
| with a copy (which shall not constitute notice) to: | |||
| Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP 000 Xxxxxxxxxxxx Xxxxx Xxxxx Xxxx, XX 00000 Attn: Xxxxxxx X. XxXxxxxx Fax: (000) 000-0000 |
| (ii) | if to Stockholder, to the address set forth for the Stockholder on the signature page hereof. | ||
| with a copy (which shall not constitute notice) to: | |||
| Fenwick & West LLP 000 Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxx, XX 00000 Attention: Xxxx X. Xxxxx, Esq. Facsimile No.: (000) 000-0000 |
| Telephone No.: (000) 000-0000 | |||
| and to : | |||
| Xxxxx X. Xxxxxxxx Xxxx,Hastings, Janofsky, & Xxxxxx LLP 000 Xxxx Xxxxxx Xxxxx Xxxxx Xxxx, Xxxxxxxxxx 00000 Fax; 000 000 0000 |
(b) Specific Performance; Injunctive Relief. The parties hereto acknowledge that
Acquiror will be irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder set forth herein or in the Proxy.
Therefore, it is agreed that, in addition to any other remedies that may be available to Acquiror
upon any such violation of this Agreement or the Proxy, Acquiror shall have the right to enforce
such covenants and agreements and the Proxy by specific performance, injunctive relief or by any
other means available to Acquiror at law or in equity and Stockholder hereby waives any and all
defenses which could exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such enforcement.
(c) Counterparts. This Agreement may be executed via facsimile and in one or more
counterparts, all of which shall be considered one and the same instrument and shall become
effective when one or more counterparts have been signed by each of the parties and delivered to
the other parties hereto; it being understood that all parties need not sign the same counterpart.
(d) Entire Agreement; Nonassignability; Parties in Interest. This Agreement and the
documents and instruments and other agreements specifically referred to herein or delivered
pursuant hereto (including, without limitation, the Proxy) (i) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the subject matter hereof
and (ii) are not intended to confer, and shall not be construed as conferring, upon any person
other than the parties hereto any rights or remedies hereunder. Except as provided in Section 1(a)
hereof, neither this Agreement nor any of the rights, interests, or obligations under this
Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise
without the prior written consent of the other party hereto.
(e) Severability. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement shall continue in full force and effect and
the application of such provision to other persons or circumstances shall be interpreted so as
reasonably to effect the intent of the parties hereto. The parties hereto further agree to use
their commercially reasonable efforts to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that shall achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(f) Remedies Cumulative. Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any
other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of
any one remedy shall not preclude the exercise of any other remedy.
(g) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without reference to such state’s principles of conflicts of
law.
(h) Rules of Construction. The parties hereto agree that they have been represented
by counsel during the negotiation, preparation and execution of this Agreement and, therefore,
waive the application of any law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document shall be construed against the party drafting such
agreement or document.
(i) Additional Documents, Etc. Stockholder hereby agrees that between the date hereof
and the Expiration Date, Stockholder shall execute and deliver any additional documents that are,
in the written opinion of the outside counsel of Acquiror, necessary to carry out the purpose and
intent of this Agreement and that are reasonably required for the consummation of the Merger.
Without limiting the generality or effect of the foregoing or any other obligation of Stockholder
hereunder, Stockholder hereby authorizes Acquiror to deliver a copy of this Agreement to the
Company and hereby agrees that each of the Company and Acquiror may rely upon such delivery as
conclusively evidencing the consents and waivers of Stockholder referred to in Section 5.
(j) Termination. This Agreement shall terminate and shall have no further force or
effect from and after the Expiration Date, and thereafter there shall be no liability or obligation
on the part of the Stockholder, provided, that no such termination shall relieve any party from
liability for any breach of this Agreement prior to such termination.
(k) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT,
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be executed as of
the date first above written.
| NOVAFORA, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | President | |||||
| STOCKHOLDER: | ||||||
| (Print Name of Stockholder) | ||||||
| (Signature) | ||||||
| (Print name and title if signing on behalf of an entity) | ||||||
| (Print Address) | ||||||
| (Print Address) | ||||||
| (Print Telephone Number) | ||||||
Shares beneficially owned on the date hereof:
shares of Company Common Stock
Signature Page to Voting Agreement
EXHIBIT A
The undersigned stockholder of Transmeta Corporation, a Delaware corporation (the
“Company”), hereby irrevocably (to the fullest extent permitted by applicable law) appoints
Xxxx Xxxxx of Novafora, Inc., a Delaware corporation (“Acquiror”), and each of them, as the
sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the fullest extent that the
undersigned is entitled to do so) with respect to all of the shares of capital stock of the Company
that now are or hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or after the date
hereof (collectively, the “Shares”) in accordance with the terms of this “Irrevocable
Proxy.” The Shares beneficially owned by the undersigned stockholder of the Company as of the
date of this Irrevocable Proxy are listed on the signature page of the Voting Agreement, as
described below. Upon the undersigned’s execution of this Irrevocable Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies or enter into any agreement or understanding with any
Person (as defined in the Merger Agreement (as defined below)) to vote or give instructions with
respect to the Shares and New Shares (as defined in the Voting Agreement) in any manner
inconsistent with the terms of this Irrevocable Proxy until after the Expiration Date (as defined
below).
Until the Expiration Date, this Irrevocable Proxy is irrevocable (to the fullest extent
permitted by applicable law), is coupled with an interest, is granted pursuant to that certain
Voting Agreement dated as of even date herewith by and between Acquiror and the undersigned, and is
granted in consideration of Acquiror entering into that certain Agreement and Plan of Merger, dated
on or about November ___, 2008, by and among Acquiror, Transformer Acquisition LLC, a Delaware
limited liability company and wholly-owned subsidiary of Acquiror (“Merger Sub”) and the
Company (the “Merger Agreement”), pursuant to which the Company will merger with and into
Merger Sub (the “Merger”), and Merger Sub will survive the Merger and the separate
corporate existence of the Company will cease. As used herein, the term “Expiration Date”
shall mean the close of business on the earlier of (i) the Effective Time, (ii) the date and time
of the termination of the Merger Agreement in accordance with its terms, (iii) such date and time
designated by Acquiror in a written notice to Stockholder and (iv) the date and time the Merger
Agreement is amended in any manner adverse to the Stockholder (including, for purposes of clarity,
any reductions in the price payable for the Shares or the form of consideration to be paid by
Acquiror in the Merger).
The attorneys and proxies named above, and each of them, are hereby authorized and empowered
by the undersigned, at any time prior to the Expiration Date, to act as the undersigned’s attorney
and proxy to vote the Shares, and to exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the Delaware General Corporation Law), at every annual, special or adjourned
meeting of the stockholders of the Company and in every written
consent in lieu of such meeting as follows: (i) in favor of adoption of the Merger Agreement
and (ii) against any Acquisition Proposal (as such term is defined in Exhibit A to the Merger
Agreement).
The attorneys and proxies named above may not exercise this Irrevocable Proxy on any other
matter except as provided above. The undersigned stockholder may vote the Shares on all other
matters.
All authority herein conferred shall survive the death or incapacity of the undersigned and
any obligation of the undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is irrevocable. This
Irrevocable Proxy may not be amended or otherwise modified without the prior written consent of
Acquiror. This Irrevocable Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: November ___, 2008
Signature Page to Irrevocable Proxy
