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Full title: Omnibus Reply Debtors' Omnibus Reply to the Responses of CIP United Co. Ltd. and Prestige Century Investments Limited to Objections to Proofs of Claim Nos. 56, 57, 58 & 59 (RE: related document(s)727 Opposition Brief/Memorandum, 728 Opposition Brief/Memorandum). Filed by Debtor Wave Computing, Inc. (Miller, Jeri) (Entered: 01/08/2021)

Document posted on Jan 7, 2021 in the bankruptcy, 19 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

This dispute centers around the Master Technology License Agreement for MIPS Architect4 and MIPS Cores (the “MTLA”), the MIPS Architecture and Core Technology Schedule for Licen5 MIPS Technology (the “Architecture-Core Technology Schedule”), the MIPS TechnologyFirst, Exhibits A and B to the Architecture-Core Technology Schedule set forth each of 14 deliverables owed by MIPS to CIP, including those relating to support and maintenance.2 Exhibi15 sets forth MIPS’ standard support and maintenance program, qualifying delivery of the sup16 obligations therein by the notation that MIPS will provide hours of standard technical suppor17 2019 and hours of standard technical support for year to year thereafter.3 In support, the CIP Entities stated only that $60 million “represents 11 parties’ mutual valuation of the benefit of the License,” since the License Agreements call for the 12 Entities to pay MIPS $60 million in total.20 13 Then, in the Cure Objection, the CIP Entities change their mind yet again, arguing there t14 they are owed $60 million in cure costs alone relating to MIPS’ delay in providing unspecifi15 allegedly “missing deliverables.The resulting questionnaire (the “IP Questionnaire”) was provided to CIP in either 9 September or early October of 2019.25 Notwithstanding the fact that the License Agreements provi10 MIPS with the right to verify via questionnaire CIP’s “intellectual property security procedu11 equipment and mechanisms for protecting the MIPS Deliverables and other MIPS Confiden12 Information” at any time, CIP refused to complete the IP Questionnaire or to provide any feedback13 the questions therein other than to assert that it was too onerous and unnecessary in light of the a14 completed the prior year.26 15 III. 20 Section 10.4 of the MTLA did not impose any time restrictions on MIPS’ right to audit, inst21 providing that such audit may occur “from time to time” after the License Agreements effective dat22

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SIDLEY AUSTIN LLP 1 Samuel A. Newman (SBN 217042) (sam.newman@sidley.com) 2 Genevieve G. Weiner (SBN 254272) (gweiner@sidley.com) 3 Julia Philips Roth (SBN 324987) (julia.roth@sidley.com) 4 555 West Fifth Street Los Angeles, CA 90013 5 Telephone: 213.896.6000 Facsimile: 213.896.6600 6 SIDLEY AUSTIN LLP 7 Charles M. Persons (admitted pro hac vice) (cpersons@sidley.com) 8 Juliana Hoffman (admitted pro hac vice) (jhoffman@sidley.com) 9 Jeri Leigh Miller (admitted pro hac vice) (jeri.miller@sidley.com) 10 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 11 Telephone: 214.981.3300 Facsimile: 214.981.3400 12 Attorneys for Debtors and Debtors in 13 Possession UNITED STATES BANKRUPTCY COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 In re: ) Case No. 20-50682 (MEH) 17 ) WAVE COMPUTING, INC., et al., ) Chapter 11 (Jointly Administered) 18 ) DEBTORS’ OMNIBUS REPLY TO THE Debtors.1 ) RESPONSES OF CIP UNITED CO. LT 19 ) AND PRESTIGE CENTURY ) INVESTMENTS LIMITED TO 20 ) OBJECTIONS TO PROOFS OF CLAIM ) NOS. 56, 57, 58, & 59 21 ) Related To Docket Nos. 727, 728 ) 22 Date: January 15, 2021 ) Time: 10:15 a.m. (Pacific Time) ) 23 Ctrm: Videoconference ) Judge: Honorable M. Elaine Hammond 24 ) Courtroom 11, 280 South First St. ) San Jose, CA 95113-3099 25 26 1 The Debtors in these chapter 11 cases are: Wave Computing, Inc., MIPS Tech, Inc., Hellosoft, I 27 Wave Computing (UK) Limited, Imagination Technologies, Inc., Caustic Graphics, Inc., and M

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Wave Computing, Inc. (“Wave”) and its debtor affiliates, as debtors and debtors in possess1 (collectively, the “Debtors”) in the above-captioned chapter 11 cases (the “Chapter 11 Cases”) sub2 this omnibus reply (this “Reply”) in support of the Debtors’ Amended Third Omnibus Objectio3 Certain Proofs of Claim (Duplicate Claims) [Docket No. 626] (the “Prestige Objection”) and 4 Debtors’ Objection to Proofs of Claim Nos. 56 and 57 filed by CIP United Co. Ltd. [Docket No. 65 (the “CIP Objection”) and in reply to the Response to Debtors’ Objection to Proofs of Claim Nos. 6 and 57 Filed by CIP United Co. Ltd. [Docket No. 727] (the “CIP Response”) and the Respons7 Amended Third Omnibus Objection to Certain Proofs of Claim (Duplicate Claims) [Docket No. 78 (the “Prestige Response,” and together with the CIP Response, the “Responses”). 9 In support of this Reply, the Debtors also submit the Declaration of Sanjai Kohli in Suppor10 the Debtors’ Replies to CIP United Co. Ltd. and Prestige Investments Limited (the “Kohli Decl.”) 11 the Declaration of Don Smith in Support of the Debtors’ Replies to CIP United Co. Ltd. and Prest12 Investments Limited (the “Smith Decl.”), each of which have been filed contemporaneously herew13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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TABLE OF CONTENTS 1 2 I. PRELIMINARY STATEMENT ............................................................................................ 3 II. RELEVANT FACTUAL BACKGROUND ........................................................................... 4 A. The Dispute Centers Around Certain Key Provisions in the License Agreements ................................................................................................................. 5 B. The CIP Entities’ Pleadings Lack Consistency with Respect to the Damage 6 Claims ......................................................................................................................... 7 i. The Claims / Complaint .................................................................................. 8 ii. The Responses ................................................................................................ 9 iii. Temporary Allowance Motion and Cure Objection ....................................... 10 C. Delivery of Further Deliverables Is Expressly Preconditioned by CIP’s Compliance with Section 10.4 of the MTLA.............................................................. 11 III. REPLY .................................................................................................................................... 12 A. The CIP Entities Failed to Meet the Burden of Proof with Respect to Their 13 Claims ......................................................................................................................... 14 i. Courts Analyze Claim Objections According to Shifting Burdens of Production and Persuasion .............................................................................. 15 ii. The Debtors’ Submitted Sufficient Evidence to Rebut the Prima Facie 16 Validity of the CIP Entities’ Claims ............................................................... 17 B. The Duplicative Proofs of Claim Filed by Prestige Should Be Disallowed ............... 18 C. MIPS Has Not Materially Breached the License Agreements.................................... 19 i. MIPS Provided All Deliverables Required by the License Agreements ........ 20 ii. MIPS Has No Ongoing Obligation with Respect to the MIPS Open Initiative .......................................................................................................... 21 iii. The Claims Should Be Disallowed and Expunged as the CIP Entities 22 Have Failed to Meet their Burden in Proving a Breach .................................. 23 D. MIPS Has Not Breached the Implied Covenant of Good Faith and Fair Dealing ........................................................................................................................ 24 E. Even if MIPS Had Breached, the CIP Entities Have Failed to Prove any 25 Damages Owed ........................................................................................................... 26 i. The MTLA Caps MIPS’ Damages at Million and Excludes Consequential or Indirect Amounts ................................................................ 27

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1 TABLE OF AUTHORITIES 2 Pag 3 Cases 4 5 Ashford v. Consol. Pioneer Mortg. (In re Consol. Pioneer Mortg.), 178 B.R. 222 (B.A.P. 9th Cir. 1995)....................................................................................8, 13 6 Ellison Framing, Inc. v. Zurich Am. Ins. Co., 7 805 F. Supp. 2d 1006 (E.D. Cal. 2011)......................................................................................9 8 Litton Loan Servicing, LP v. Garvida (In re Garvida), 347 B.R. 697 (B.A.P. 9th Cir. 2006)......................................................................................7, 8 9 Nagrampa v. MailCoups, Inc., 10 469 F.3d 1257 (9th Cir. 2006) ...................................................................................................9 11 In re Sizzler Rests. Int’l, 12 225 B.R. 466 (Bankr. C.D. Cal. 1998) .....................................................................................14 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. PRELIMINARY STATEMENT 3 This dispute is not complicated. The Debtors entered into a contract with Prestige Cent4 Investments Limited (“Prestige”) that was later assigned to Prestige’s wholly-owned subsidiary, 5 United Co. Ltd. (“CIP,” and together with Prestige, the “CIP Entities”). The contract set forth in de6 what deliverables would be provided thereunder and what each of the parties’ rights were thereun7 The Debtors delivered those deliverables itemized in the contract, but declined to deliver or acced8 certain requests not covered by the contract terms. The Debtors then asked the CIP Entities to fu9 their reciprocal deliverable requirements—i.e., completion of an IP security audit questionnaire—10 were immediately stymied by the outraged CIP Entities, who refused to complete a second IP secu11 audit even though it had been nearly a year since the last questionnaire’s completion. 12 The CIP Entities then sued, starting a long and costly shell game in which the CIP Enti13 refuse to specifically identify those deliverables allegedly missing from delivery, refuse still14 complete the IP security audit questionnaire, and change the method by which their unsupported 15 million damage claim is calculated apparently at whim and to suit the pleading of the hour. 16 The CIP Entities bear the ultimate burden of proving their claims by a preponderance of 17 evidence. Yet, the only evidence the CIP Entities have produced in support is a verified affidavit fr18 their Chairwoman and Founder in support of their Responses which echoes in conclusory statem19 those same allegations made in the claims. No list of alleged breaches has been provided. And20 evidence to support the ever-shifting $60 million figure has been produced. Instead, the only t21 evidence before this Court is that produced by the Debtors—logs showing the downloads of eac22 the contract deliverables, support tickets proving the Debtors’ continued provision of support 23 maintenance services under the contract, and explicit and specific references to the contract itsel24 prove that those further requests from the CIP Entities are either not included or explicitly exclu25 from parties’ license agreements. Accordingly, this Court should grant each of the Prestige Object26 and the CIP Objection and disallow and expunge Proofs of Claim Nos. 56, 57, 58, and 59. 27

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1 II. RELEVANT FACTUAL BACKGROUND 2 A. The Dispute Centers Around Certain Key Provisions in the License Agreemen3 This dispute centers around the Master Technology License Agreement for MIPS Architect4 and MIPS Cores (the “MTLA”), the MIPS Architecture and Core Technology Schedule for Licen5 MIPS Technology (the “Architecture-Core Technology Schedule”), the MIPS Technology Sched6 for License of MIPS Architecture Compatible Cores and Sublicensing Licensed MIPS C7 (the “License-Sublicense Technology Schedule,” and together with the MTLA, the Architecture-C8 Technology Schedule, and each of the amendments and amendments and restatements relating ther9 the “License Agreements”), effective December 29, 2018, by and between MIPS and CIP.1 10 Although the general terms of the License Agreements are set forth in the CIP Objection, 11 Debtors believe it helpful to include a brief discussion of certain other provisions implicated in 12 Responses and this Reply. 13 First, Exhibits A and B to the Architecture-Core Technology Schedule set forth each of 14 deliverables owed by MIPS to CIP, including those relating to support and maintenance.2 Exhibi15 sets forth MIPS’ standard support and maintenance program, qualifying delivery of the sup16 obligations therein by the notation that MIPS will provide hours of standard technical suppor17 2019 and hours of standard technical support for year to year thereafter.3 Exhibit B is then bro18 into three parts, with subsection A itemizing the software and literature deliverables for each of 19 licensed MIPS architectures, subsection B itemizing the licensed MIPS cores deliverables, 20 subsection C setting forth additional tools and information to be provided as “regular technical servi21 from MIPS,” subject to the limitations on technical support hours set forth in Exhibit A.4 The Lice22 Agreements do not provide for deliverables other than those set forth in Exhibits A and B. 23 24 1 As noted in the CIP Objection, the License Agreements contain certain confidentiality provisithat prohibit the disclosure of such agreements. Given the ongoing nature of this dispute, the Debt25 are producing each of the License Agreements under seal and such Motion to Seal is being ficontemporaneously herewith. 26 2 See Architecture-Core Technology Schedule, Exs. A– B. 27 3 Id., Ex. A.

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1 Section 6.2 of the MTLA addresses any joint marketing or promotion obligating, stat2 3 4 .5 Section 14 of the Architecture-Core Technology schedule duplicates the ab5 obligation, adding no further requirements to its terms.6 The License Agreements do not imp6 obligation on MIPS to initiate, remain engaged in, or otherwise support in any way any softw7 initiatives or promotion then existing or thereafter created. 8 Section 10.4 sets forth security audit rights, stating “ 9 10 11 12 13 14 15 16 17 Section 10.4 also grants MIPS and/or MIPS’ designated third party intellectual property secu18 auditing firm with the additional right to examine and audit “19 20 ” in the IP Security Documents. These rights are echoed in 21 Architecture-Core Technology Schedule, which republishes by reference section 10.4 and addition22 requires that “ 23 24 25 5 MTLA § 6.2. All capitalized terms used but not defined herein shall have the meaning ascribe26 such term in the License Agreements. 27 6 Architecture-Core Technology Schedule § 14.

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1 ,” with such process subject to strict and auditable IP controls and secu2 solutions.8 3 Section 13 addresses limitations on liabilities, explicitly excluding either party’s right4 recover 5 6 .9 It also provides a limit on direct damages, stating t7 8 9 10 10 11 Finally, section 15.11 address the parties’ relationship under the License Agreements, stat12 13 14 ”11 This statement is not contradicted by the licensee fee payment schedule set fort15 the Architecture-Core Technology Schedule, which provides that following the sixth anniversar16 the License Agreement’s effective date, “ 17 12 B. The CIP Entities’ Pleadings Lack Consistency with Respect to the Damage Clai18 On August 28, 2020, the CIP Entities filed Proofs of Claim Nos. 56-1, 57-1, 58-1, and 519 (collectively, the “Claims”) for $60 million against Wave and MIPS Tech, LLC (“MIPS”). Eac20 the Claims attached in support the complaint filed by the CIP Entities in the Northern District21 California and styled Prestige Century Investments Ltd. et al. v. MIPS Tech LLC et. al, case num22 20-cv-023318.13 The Debtors objected to the Claims on October 21, 2020, and the CIP Entities fi23 24 8 Architecture-Core Technology Schedule § 2A. 9 MTLA § 13. 25 10 Id. 26 11 Id. § 15.11. 27 12 Architecture-Core Technology Schedule § 7.1 (hanging paragraph, subsection C) (emphasis add

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1 the Responses to the objections on November 8, 2020. The CIP Entities additionally filed t2 subsequent pleadings relating to their alleged claims against the Debtors: (1) a motion for tempor3 allowance (the “Temporary Allowance Motion”) filed on November 18, 2020 at Docket No. 792; 4 (2) a cure objection (the “Cure Objection”) filed on January 4, 2021 at Docket No. 1004. 5 The CIP Entities have been inconsistent across pleadings in (1) stating what the $60 millio6 damages relates to; and (2) explaining how they get to $60 million. 7 i. The Claims / Complaint 8 In the Complaint attached to the Claims, the CIP Entities allege damages in the amount of 9 million resulting from MIPS’ alleged failure to provide certain unidentified deliverables and MI10 failure to remain indefinitely engaged in a promotional initiative known as the MIPS Open initiativ11 The CIP Entities then break down the alleged $60 million claim as follows: (1) $20 million12 immediate losses; (2) $10 million in business setup and promotion expenses in reliance on the Lice13 including the sublicensee’s liabilities; and (3) $30 million in lost profits and valuation.15 No evide14 or sworn affidavits are attached in support of the damage figures given. 15 ii. The Responses 16 The Responses again allege damages in the amount of $60 million resulting from MI17 alleged failure to provide certain unidentified deliverables, failure to provide certain unspecif18 support, and failure to remain indefinitely engaged in the MIPS Open initiative.16 This time, howe19 the breakdown has shifted, moving from the Complaint’s 20-10-30 numbers to the Responses m20 more nebulous statement that prepetition damages “constitute well over $60 million.”17 While th21 is no specific breakdown provided, analysis of the CIP Entities projected revenue chart indicates t22 at least some amount is still being attributed to lost profit damages, although such number has shr23 in this iteration to no more than $16.75 million— a far cry from the $30 million previously allege 24 14 See Complaint ¶¶ 26, 49, 69. 15 Id. ¶ 69. 25 16 See CIP Response at 12–13. 26 17 Id. at 15–16. Some portion of this $60 million is allegedly attributable to “market share” damagea type of consequential damage expressly disclaimed by section 13 of the MTLA. 27 18

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1 A sworn declaration is offered in support of the Responses, but it fails to do more than echo 2 conclusory, unsupported by fact number contained in the Responses. 3 iii. Temporary Allowance Motion and Cure Objection 4 And finally, those pleadings filed since the Responses have again moved the goal posts, stay5 consistent only in their assertion that the Claims equal $60 million, regardless of how calculated. 6 the Temporary Allowance Motion, the CIP Entities pivot from their prior claims that $60 mill7 constituted only those damages relating to prepetition breach (i.e., a breach of approximately 1.5 y8 of a 15 year agreement), asserting instead that $60 million in damages would now constitute 9 damages owed upon a wholesale rejection of the License Agreements (i.e., the loss of the entire10 years of the contract term).19 In support, the CIP Entities stated only that $60 million “represents 11 parties’ mutual valuation of the benefit of the License,” since the License Agreements call for the 12 Entities to pay MIPS $60 million in total.20 13 Then, in the Cure Objection, the CIP Entities change their mind yet again, arguing there t14 they are owed $60 million in cure costs alone relating to MIPS’ delay in providing unspecifi15 allegedly “missing deliverables.”21 As before, no evidence or sworn allegation is offered in proof16 C. Delivery of Further Deliverables Is Expressly Preconditioned by CICompliance with Section 10.4 of the MTLA 17 On or around September of 2019, the Debtors were visited by a U.S. agency for the purp18 of ensuring the Debtors had proper security measures and protocols in place to ensure compliance 19 all U.S. laws, regulations, and export controls.22 In connection with this visit, the Debtors w20 advised that going forward they should update and improve the security audit and protection measu21 22 23 24 only the revenue numbers for 2019 and part of 2020, the maximum amount of lost profit damawould be no more than $16.75 million (i.e., projected revenue for 2019 plus half 2020). Id. 25 19 Temporary Allowance Motion at 4. 26 20 Id. at 8. 27 21 See Cure Objection at 2.

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1 in place with international customers from countries subject to a high-level of scrutiny (such as Chi2 to ensure clear and documented compliance with all applicable regulations and export controls.23 3 As a result, the Debtors hired FTI Consulting (“FTI”) as a third-party intellectual prop4 security auditing firm and asked FTI to provide a questionnaire that would assess whether the Debt5 licensees were following best practices with respect to ensuring the licensed technology was not stol6 leaked, obtained through breach, or otherwise used in a manner that would violate U.S. law and o7 the Debtors’ up to liability.24 8 The resulting questionnaire (the “IP Questionnaire”) was provided to CIP in either 9 September or early October of 2019.25 Notwithstanding the fact that the License Agreements provi10 MIPS with the right to verify via questionnaire CIP’s “intellectual property security procedu11 equipment and mechanisms for protecting the MIPS Deliverables and other MIPS Confiden12 Information” at any time, CIP refused to complete the IP Questionnaire or to provide any feedback13 the questions therein other than to assert that it was too onerous and unnecessary in light of the a14 completed the prior year.26 15 III. REPLY 16 A. The CIP Entities Failed to Meet the Burden of Proof with Respect to Their Clai17 i. Courts Analyze Claim Objections According to Shifting Burdens of Productand Persuasion 18 The proper filing of a proof of claim under Bankruptcy Rule 3001(f) creates an evidenti19 presumption that such claim is prima facie valid.27 In other words, a claim that attaches pro20 documentation and that alleges facts sufficient to support a legal liability to the claimant satisfies s21 claimant’s initial burden going forward with respect to the claim.28 22 23 24 23 Id. ¶ 6. 24 Id. ¶ 8. 25 25 Id. ¶¶ 9–11. 26 26 Id. 27 27 Litton Loan Servicing, LP v. Garvida (In re Garvida), 347 B.R. 697, 706 (B.A.P. 9th Cir. 2006)

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1 One the evidentiary presumption of prima facie validity has been established, the burden go2 forward shifts to the objector to produce evidence sufficient to negate the prima facie validity of 3 filed claim.29 To rebut the presumption, the objecting party “must produce evidence tending to de4 the claim that is of a probative force equal to that of the creditor’s proof of claim.”30 In practice, 5 means that the evidence must be such that, if believed, would refute at least one of the allegati6 essential to the claim’s legal sufficiency. 31 7 Upon the production of sufficient evidence to negate one or more of the underlying allegati8 in the filed claim, the burden reverts back to the claimant to present further evidence to support9 claim.32 The ultimate burden of proof as to the claim’s validity and amount at all times remain on 10 claimant.33 The claimant must meet this burden of proof by a preponderance of the evidence.34 11 ii. The Debtors’ Submitted Sufficient Evidence to Rebut the Prima Facie Valiof the CIP Entities’ Claims 12 Where, as here, the prima facie case is made up of unsworn allegations by the claima13 attorney that a breach has occurred, a verified statement by the Debtors’ representative that rebuts 14 allegation by detailing the Debtors’ performance under the contract is sufficient.35 Although the 15 Entities have since attempted to bolster the evidentiary record by submitting a sworn affidavit fr16 the Chairwomen and Founder of each company, such efforts relate to whether the CIP Entities h17 met their burden of proving MIPS’ liability under the License Agreements by a preponderance of 18 evidence now that the evidentiary presumption has been shifted.36 19 20 29 Id. 21 30 Id. (quoting Simmons v. Savell (In re Simmons), 765 F.2d 547, 552 (5th Cir. 1985)). 22 31 Id. 32 In re Garvida, 347 B.R. at 707 (noting that at this point the claimant again bears the burden go23 forward). 24 33 Id.; Ashford v. Consol. Pioneer Mortg. (In re Consol. Pioneer Mortg.), 178 B.R. 222, 226 (B. 9th Cir. 1995). 25 34 In re Consol. Pioneer Mortg., 178 B.R. at 226. 26 35 See In re Garvida, 347 B.R. at 707 (finding counter-evidence in the form of a declaration statbalanced owed and calculation to arrive at such number sufficient to rebut presumption of validity27 36 See generally Ho Decl.; see also In re Consol. Pioneer Mortg., 178 B.R. at 226 (holding that ulti

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1 B. The Duplicative Proofs of Claim Filed by Prestige Should Be Disallowed 2 Prestige filed two Proofs of Claim against the Debtors, asserting the exact same bre3 allegations and claiming the same $60 million in damages as that asserted and claimed by CIP.37 S4 claims should be disallowed and expunged in their entirety as duplicates of those claims filed by 5 Prestige was the original licensee under the License Agreements.38 But, on May 29, 206 Prestige lost the ability to enforce any rights or obligations thereunder when it assigned its “rights 7 obligations in whole under the [License] Agreements” to CIP.39 Although the second half of 8 sentence goes on to immediately contradict the operative assignment clause by stating that “Licen9 will be Prestige together with its wholly owned subsidiary [CIP],” such attempts to assign rights o10 in part are expressly precluded by section 15.5 of the MTLA.40 Accordingly, only Prestige or 11 but not both, can serve as licensee under the License Agreements and those claims filed by 12 non-licensee (which for all appearance is Prestige) should be disallowed and expunged as duplicat13 C. MIPS Has Not Materially Breached the License Agreements 14 As an initial matter, CIP has failed to carry its burden of persuasion in proving that MIPS 15 materially breached the License Agreements.41 The CIP Entities have alleged that MIPS breached 16 License Agreements by (1) failing to deliver some unspecified set of deliverables itemized in Exh17 A and Exhibit B, subsection A and B to the Architecture-Core Technology Schedule; (2) failin18 deliver an unspecified set of “necessary software tools and support” set forth in Exhibit B, subsect19 37 See Proofs of Claim Nos. 58 and 59. 20 38 See generally MTLA, Preamble. 21 39 See Amended & Restated Amendment 2 to the License Agreements ¶ 1.A (emphasis added). 22 40 See MTLA § 15.5 (stating that a licensee may only assign its rights and obligations “in whole” that any attempts to do otherwise “will be null and void”). 23 41 California law applies to this Court’s analysis of the breach as a result of each of the CIP Entiand MIPS waiver by conduct of the MTLA’s Singapore choice of law provision. See Nagramp24 MailCoups, Inc., 469 F.3d 1257, 1267 (9th Cir. 2006) (finding that parties waived Massachuschoice of law provision “through their course of conduct” by proceeding in California district c25 and on appeal as though the applicable agreement was governed by California law); see also ElliFraming, Inc. v. Zurich Am. Ins. Co., 805 F. Supp. 2d 1006, 1011 n.1 (E.D. Cal. 2011) (finding ch26 of law provision waived by conduct where parties “cited California law in their papers”). Here, CIP Entities filed their Complaint in a California federal court and the only law cited in their pleadi27 is from California. See CIP Response at 11–12, 16–18. Thus, the Singapore choice of law provis

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1 unless and until CIP satisfies the IP security audit requirements of section 10.4 of the MTLA, includ2 by providing MIPS with complete IP Security Documents and completion of network vulnerabi3 testing.48 CIP has refused to respond to the IP Questionnaire or to engage with MIPS in the negotiat4 of an modified version thereof.49 Thus, MIPS has no current obligation to accede to delivera5 requests from CIP and, any “missing deliverables” relating to these post-audit support requests 6 not constitute a breach. 7 2. MIPS Provided Those Deliverables Required by Exhibit B 8 MIPS has also provided each of those usable deliverables required in Exhibit B to 9 Architecture-Core Technology Schedule. The download report attached as Exhibit 5 to the S10 Declaration shows that, with the exception of those cores noted immediately below, the CIP Enti11 downloaded and have access to each of the architecture and core deliverables itemized in subsecti12 A and B of Exhibit B to the Architecture-Core Technology Schedule.50 13 3. MIPS Provided Those Deliverables Required by Subsection C to Exhibi14 Finally, MIPS has provided the “additional tools and information” support for the MI15 deliverables set forth in subsection C to Exhibit B. Many of the items called out in subsection C, s16 as 17 were provided to the CIP Entities, where available, as part of the deliv18 of the relevant cores.51 Those other items not already included as part of the core delivery packa19 such as 20 , has been provided to the CIP Entities upon request for such sup21 in accordance with the “regular technical services from MIPS” set forth in Exhibit A.52 The Debt22 have provided evidence of such support in the form of closed customer support tickets, attache 23 48 See MTLA § 10.4. 24 49 See Kohli Decl. ¶¶ 10–11. 50 See Smith Decl., Ex. 5. It appears cores in the core families were 25 made available for download to the CIP Entities in an apparent oversight. Such cores approximately ten to fifteen years old and, for all practical purposes, are obsolete. Additionally s26 cores have not been requested by the CIP Entities. Id. ¶ 16 n.3. 27 51 Id. ¶¶ 17–18.

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1 Exhibit 6 to the Smith Declaration.53 As with Exhibit A above, the only support requests denied 2 those post-audit requests for the delivery of certain software deliverables or licenses.54 Such den3 are expressly permitted by section 10.4 of the MTLA and do not constitute a breach of the Lice4 Agreements.55 5 ii. MIPS Has No Ongoing Obligation with Respect to the MIPS Open Initiativ6 Contrary to the CIP Entities’ allegations, section 6.2 of the MTLA did not obligate MIP7 remain indefinitely chained to the support and maintenance of the MIPS Open initiative.56 Rat8 section 6.2 only requires the Debtors to “ 9 10 .”57 11 Section 6.2 does not require the Debtors enter into or maintain a software initiative, suc12 MIPS Open, especially when such initiative lacks a business justification given its significant cost 13 relatively low likelihood of producing a profit at any future point.58 Even assuming that one co14 read section 6.2 as creating an obligation to fund and maintain a software initiative—an especi15 strained reading given that the only “promotion” requirements named relate to much more pass16 promotion through printed or electronic publications—the Debtors are only obligated to act i17 commercially reasonable manner. The MIPS Open initiative was a financial drain on an alre18 struggling business and provided no reasonable expectation of profit.59 As a result, the Debt19 decision to terminate the initiative would not have been a breach of the License Agreements even 20 had been address, mentioned, or otherwise included within the scope of some provision therein. 21 53 Id., Ex. 6. 22 54 See Smith Decl. ¶ 9. 23 55 See MTLA § 10.4. 24 56 See CIP Response at 13. The CIP Entities reference to section 3.2 appears to be a typo as language quoted actually appears in section 6.2. 25 57 Id. § 6.2 26 58 See Kohli Decl. ¶¶ 15–18. The MIPS Open initiative cost the Debtors approximately $1 million year to support and maintain. Id. It was not expected to turn a profit until 2022 at the earliest, assum27 that the China market had not switched over to RISC-V by this time. Id.

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1 iii. The Claims Should Be Disallowed and Expunged as the CIP Entities HFailed to Meet their Burden in Proving a Breach 2 Notwithstanding the fact that the Debtors have been the only party to present evidence3 support of its statements herein, the Debtors do not carry the burden of proof in this claim object4 proceeding. Recognizing the difficulty inherent in forcing a party to prove the negative, the co5 and Bankruptcy Code state that at all times the claimant shall remain responsible for bearing the bur6 of proof as to a claim’s validity and amount.60 In this instance, the CIP Entities have fail7 Accordingly, the Court should grant the Debtors’ Prestige Objection and CIP Objection and disall8 and expunge in their entirety Proofs of Claim Nos. 56, 57, 58, and 59. 9 D. MIPS Has Not Breached the Implied Covenant of Good Faith and Fair Dealin10 The CIP Entities additionally allege that MIPS has breached the implied covenant of good f11 and fair dealing in its performance under the License Agreements, which has caused the CIP Enti12 damage in an amount no less than $60 million.61 Specifically, the CIP Entities allege that M13 breached the covenant of good faith and fair dealings through (1) incomplete production of the M14 deliverables; (2) withdrawal from the MIPS Open initiative; and (3) imposition of a second IP secu15 questionnaire nearly a year after the first had been completed. 16 As set forth in detail in Section III.C above, MIPS has not made an incomplete productio17 the MIPS deliverables and MIPS withdrawal from the MIPS Open initiative was neither prohibited18 the License Agreements nor unreasonable under the circumstances. Additionally, MIPS at all ti19 retained the right to ask for the completion of another IP security questionnaire. 20 Section 10.4 of the MTLA did not impose any time restrictions on MIPS’ right to audit, inst21 providing that such audit may occur “from time to time” after the License Agreements effective dat22 Here, MIPS requested the CIP Entities complete a second IP security questionnaire nearly a year a23 the initial audit and after being advised by the U.S. government that more thorough documentatio24 proper compliance with all U.S. regulatory and export control laws would be in the best interest25 26 60 In re Consol. Pioneer Mortg., 178 B.R. at 226. 27 61 See Complaint ¶¶ 71–76; CIP Response at 16–17.

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1 the company.63 Moreover, the request was not some unreasonable product of malintent, but rather 2 thoughtful work product of a third-party, professional IP security audit firm who regularly provi3 these sort of services to U.S. companies doing business in China.64 Accordingly, such action does 4 constitute a breach of the implied contract of good faith and fair dealing under California law,65 5 any damages relating to such allegations should be disallowed and expunged in their entirety. 6 E. Even if MIPS Had Breached, the CIP Entities Have Failed to Prove any DamaOwed 7 8 i. The MTLA Caps MIPS’ Damages at Million and Excludes Consequenor Indirect Amounts 9 The plain language of the MTLA caps MIPS’ liability to the CIP Entities for damages at 10 for all but an intentional breach of the license (section 2), intentional breach of confidentia11 (section 10.3), or intentional infringement of an intellectual property right of a third party (sect12 12.1).66 The only breaches alleged by the CIP Entities relate to delivery (section 3.1) and promot13 (section 6.2). Thus, the Claims are subject to the cap set forth in the License Agreeme14 Additionally, such Claims may only include direct, actual damages, as damages relatin15 indirect, incidental, consequential, special, or punitive amounts are expressly disclaimed by the te16 of the License Agreements.67 Depending on the pleading, the CIP Entities have included vari17 indirect, incidental, or consequential damage amounts within the $60 million, including amo18 relating to lost valuation;68 hindered market share growth;69 and “the parties’ mutual valuation of 19 benefit of the License” Agreements.70 20 21 63 See Kohli Decl. ¶ [●]. 64 Id. 22 65 The covenant of good faith and fair dealing is breached when a party acts “dishonestly or outsid23 accepted commercial practices” or in a manner that is otherwise “arbitrary, capricious, or inconsistwith the reasonable expectations of the parties.” See In re Sizzler Rests. Int’l, 225 B.R. 466, 24 (Bankr. C.D. Cal. 1998). 66 See MTLA § 13. 25 67 Id. 26 68 See Complaint ¶ 69. 27 69 See CIP Response at 16.

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1 Given the CIP Entities’ ever-changing and often non-sensical71 basis for the $60 mill2 valuation, the Debtors are unable to definitively state what portion of the Claims relates to act3 direct, provable damages and what portion relates to indirect or consequential amounts prohibited4 the express terms of the License Agreements. Luckily, the ultimate burden of proof as to the amo5 of a claim rests with the claimant at all times. Thus, as a result of the CIP Entities’ absolute lac6 evidence (or even a consistent basis) for its Claims, such Claims should be disallowed and expun7 in their entirety. 8 IV. CONCLUSION 9 The CIP Entities have failed to establish any breaches by MIPS of the License Agreement10 any damage amounts relating thereto. Accordingly, this Court should grant the Prestige Objection 11 the CIP Objection and disallow and expunge each of the Claims in their entirety. 12 Dated: January 8, 2021 Respectfully submitted, 13 /s/ Jeri Leigh Miller 14 Samuel A. Newman Genevieve G. Weiner 15 Jeri Leigh Miller 16 SIDLEY AUSTIN LLP 17 Attorneys for Debtors and Debtors in Possession 18 19 20 21 22 23 24 71 At one point the CIP Entities state without evidence that they project revenue profits from the liceof the MIPS technology in the amount of $8 million in 2019, $17.5 million in 2020, and $35 mill25 in 2021. The CIP Entities provide no explanation or basis for these numbers, which is straconsidering their assumptions include a revenue jump from approximately $800,000 a year in 2026 2017, and 2018 to $8 million a year in 2019, with an incredible further jump to $35 million a yea2021—all for technology nearing the end of its useful life. Compare Architecture-Core Technol27 Schedule, Ex. C (setting forth historical royalties from active MIPS-based customers) with Ho D