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[FENWICK & WEST LLP LETTERHEAD]
EXHIBIT 5.01
__________, 2000
Transmeta Corporation
3940 Freedom Circle
Santa Clara, California 95054
Gentlemen/Ladies:
At your request, we have examined the Registration Statement, as
amended, on Form S-1 (File Number 333-___________) filed by Transmeta
Corporation, a Delaware corporation (the "COMPANY"), with the Securities and
Exchange Commission (the "COMMISSION") on ____________, 2000, Amendment No. 1
thereto filed on __________, 2000 and Amendment No. 2 thereto to be filed on or
about the date hereof (the "REGISTRATION STATEMENT"), in connection with the
registration under the Securities Act of 1933, as amended, of up to
__________________ shares of the Company's Common Stock (the "STOCK").
In rendering this opinion, we have examined the following:
(1) the Company's Certificate of Incorporation, certified by the
Delaware Secretary of State on _____________, 2000.
(2) the Company's Certificate of Designation of Preferred Stock,
certified by the Delaware Secretary of State on ____________,
2000.
(3) the Company's Bylaws, certified by the Company's Secretary on
____________, 2000.
(4) the Registration Statement, together with the Exhibits filed as a
part thereof or incorporated therein by reference.
(5) the Prospectus prepared in connection with the Registration
Statement.
(6) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in the
Company's minute books and the minute books of Transmeta
Corporation, a California corporation ("TRANSMETA
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CALIFORNIA") to which the Company will be the successor, that are
in our possession.
(7) the stock records for both the Company and Transmeta California
that the Company has provided to us (consisting of a list of
shareholders dated of even date herewith and a list of option and
warrant holders respecting the Company's and Transmeta
California's capital stock and of any rights to purchase capital
stock that was prepared by the Company and dated ____________,
2000 verifying the number of such issued and outstanding
securities).
(8) a Management Certificate addressed to us and dated of even date
herewith executed by the Company and Transmeta California
containing certain factual and other representations.
(9) Transmeta California's Amended and Restated Articles of
Incorporation, as amended, certified by the California Secretary
of State on ________________, 2000.
(10) Transmeta California's Bylaws, certified by the Secretary of
Transmeta California on _____________, 2000.
(11) the form of the Merger Agreement pursuant to which Transmeta
California will merge with and into the Company in connection
with its Delaware reincorporation (the "DELAWARE
REINCORPORATION").
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all persons or
entities executing the same, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us and the due
authorization, execution and delivery of all documents where due authorization,
execution and delivery are prerequisites to the effectiveness thereof. We have
also assumed that the certificates representing the Stock have been, or will be
when issued, properly signed by authorized officers of the Company or their
agents.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials, records and documents referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such information
or to determine the existence or non-existence of any other factual matters;
however, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not accurate.
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We are admitted to practice law in the State of California, and we
render this opinion only with respect to, and express no opinion herein
concerning the application or effect of the laws of any jurisdiction other than,
the existing laws of the United States of America, of the State of California
and, with respect to the validity of corporate action and the requirements for
the issuance of stock, of the State of Delaware.
In connection with our opinion expressed below, we have assumed that, at
or prior to the time of the delivery of any shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock. In
addition, we have assumed that prior to the effectiveness of the Registration
Statement, Transmeta California will have merged with and into the Company to
complete the Delaware Reincorporation.
Based upon the foregoing, it is our opinion that the up to
______________ shares of Stock to be issued and sold by the Company, when
issued, sold and delivered in the manner and for the consideration stated in the
Registration Statement and the Prospectus, will be validly issued, fully paid
and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto. This opinion speaks only as of its date and we assume no
obligation to update this opinion should circumstances change after the date
hereof. This opinion is intended solely for use in connection with issuance and
sale of shares subject to the Registration Statement and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: _______________________________
