Contract analysis

ARTICLE I — DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined in this Article I shall have the meanings ascribed to them elsewhere in this Agreement.

Section 1.1 "Action" or "Litigation" means the civil action captioned Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD, pending in the United States District Court for the Northern District of California, San Jose Division, before the Honorable Edward J. Torvelis, including all claims, counterclaims, motions, proceedings, discovery, and other matters arising therein.

Section 1.2 "Accused Products" means the LumosBridge™ 800G Optical Engine and the LumosEdge™ 400ZR+ Pluggable Transceiver products manufactured, marketed, sold, offered for sale, used, and/or imported by Lumos, together with all variants, configurations, versions, revisions, updates, and successors thereof that were accused of infringement in the Action.

Section 1.3 "Affiliate(s)" means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party. For purposes of this definition, "control" means the direct or indirect ownership of fifty percent (50%) or more of the outstanding voting securities of an entity, or the equivalent ownership interest in an entity that does not have outstanding votin

Section 1.4 "Counterclaims" means Lumos's counterclaims for declaratory judgment of non-infringement and invalidity of the Patents-in-Suit, as filed in the Action on July 29, 2022, including all amendments and supplements thereto.

Section 1.5 "Effective Date" means the date on which this Agreement has been fully executed by both Parties, which the Parties agree is April 5, 2023.

Section 1.6 "Markman Order" means the Court's Claim Construction Order issued on February 17, 2023, in the Action, construing eleven (11) disputed claim terms across the Patents-in-Suit.

Section 1.7 "Patents-in-Suit" means U.S. Patent No. 10,234,567; U.S. Patent No. 10,891,234; U.S. Patent No. 11,045,678; and U.S. Patent No. 11,312,890; together with all continuations, continuations-in-part, divisionals, reissues, reexaminations, inter partes reviews, and foreign counterparts thereof, in each case solely to the extent such patents or patent applications were asserted or at issue in the Action.

Section 1.8 "Protective Order" means the Stipulated Protective Order entered by the Court in the Action on or about September 12, 2022, as amended, governing the treatment of confidential information exchanged by the Parties during the course of the Litigation.

Section 1.9 "Releasees" has the meaning set forth in Section 3.1 of this Agreement.

Section 1.10 "Releasors" has the meaning set forth in Section 3.1 of this Agreement.

Section 1.11 "Released Claims" has the meaning set forth in Section 3.2 of this Agreement.

Section 2.1 No Payment. No monetary payment shall be made by either Party to the other Party in connection with this Agreement, the resolution of the Action, or the settlement of any claims or counterclaims asserted or that could have been asserted in the Action. Each Party acknowledges and agrees that the sole and exclusive consideration for this Agreement is the mutual releases and covenants set forth herein, the d

Section 2.2 No License Granted. Nothing in this Agreement shall be construed as granting to either Party any license, whether express, implied, by estoppel, or otherwise, under any patent, patent application, trade secret, copyright, mask work right, trademark, or other intellectual property right of the other Party. Without limiting the generality of the foregoing: (a) This Agreement does not grant OWS any license u

Section 2.3 Attorneys' Fees and Costs. Each Party shall bear its own attorneys' fees, costs, expert witness fees, consultant fees, and all other expenses incurred in connection with the prosecution, defense, or settlement of the Action and the negotiation, preparation, and execution of this Agreement. Neither Party shall seek, petition for, or accept any award of attorneys' fees, costs, or expenses from the other Par

Section 2.4 No Admission. This Agreement and the settlement of the Action shall not be construed as, and do not constitute, an admission by either Party, or by any Affiliate, officer, director, employee, agent, or attorney of either Party, of: (a) infringement or non-infringement of any patent, including the Patents-in-Suit; (b) the validity or invalidity of any patent, including the Patents-in-Suit; (c) the enforcea

Section 2.5 Dismissal with Prejudice. (a) Within five (5) business days following the Effective Date, the Parties, through their respective counsel of record in the Action, shall jointly file a Joint Stipulation of Dismissal with Prejudice in the Action, providing for the dismissal with prejudice of all claims asserted by OWS against Lumos and all counterclaims asserted by Lumos against OWS, with each Party bearing i

Section 3.1 Definition of Releasors and Releasees. (a) "OWS Releasors" means OWS, its Affiliates, and each of their respective past, present, and future officers, directors, members, managers, partners, shareholders, employees, agents, attorneys, representatives, successors, and assigns, including without limitation Vantage Point Capital Partners Fund IV, LP, and its general partner, Vantage Point Capital GP IV, LLC.

Section 3.2 Scope of Released Claims. "Released Claims" means any and all claims, demands, actions, causes of action, suits, damages, losses, liabilities, obligations, judgments, liens, costs, expenses, and attorneys' fees, of every kind and nature whatsoever, whether at law or in equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, matured or unmatured, accrued

Section 3.3 California Civil Code Section 1542 Waiver. Each Party, on behalf of itself and its respective Releasors, expressly waives and relinquishes, to the fullest extent permitted by law, all rights and benefits afforded by Section 1542 of the California Civil Code, which provides: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her fav

Section 3.4 Covenant Not to Sue (Limited). Each Party covenants and agrees, on behalf of itself and its respective Releasors, that it shall not institute, prosecute, maintain, participate in, or assist in the institution or prosecution of any action, suit, proceeding, claim, or demand, whether at law, in equity, or before any administrative body, asserting any Released Claims against any Releasee. Any breach of this

ARTICLE IV — CONFIDENTIAL INFORMATION AND PROTECTIVE ORDER

Section 4.1 Return or Destruction of Confidential Materials. Within thirty (30) days following the entry of the Order of Dismissal with Prejudice in the Action, each Party and its outside counsel of record shall comply with the provisions of the Stipulated Protective Order entered in the Action regarding the return or destruction of all documents, materials, and information designated as "CONFIDENTIAL" or "HIGHLY CON

Section 4.2 Survival of Protective Order Obligations. The confidentiality obligations set forth in the Stipulated Protective Order entered in the Action shall survive the termination or dismissal of the Action and the execution and delivery of this Agreement, in accordance with their terms. Nothing in this Agreement shall be construed to modify, amend, supersede, or limit the obligations of the Parties, their counsel

ARTICLE V — REPRESENTATIONS AND WARRANTIES

Section 5.1 Authority. Each Party represents and warrants to the other Party that, as of the Effective Date: (a) It is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has the full right, power, and authority to enter into this Agreement and to perform all of its obligations hereunder. (b) The execution, delivery, and performance of this Agreement has b

Section 5.2 No Assignment of Claims. Each Party represents and warrants to the other Party that, as of the Effective Date, it has not assigned, transferred, pledged, hypothecated, or otherwise conveyed any of the Released Claims, or any interest therein, to any third party. Each Party further represents and warrants that no third party has acquired, by operation of law or otherwise, any right to assert any of the Rel

Section 5.3 Ownership of Patents (OWS). OWS represents and warrants to Lumos that, as of the Effective Date, OWS is the sole and exclusive owner of the entire right, title, and interest in and to each of the Patents-in-Suit by valid written assignment recorded with the United States Patent and Trademark Office, and that OWS has not granted any third party any license, covenant not to sue, or other right under the Pat

ARTICLE VI — CONFIDENTIALITY OF SETTLEMENT

Section 6.1 Confidential Treatment. The Parties acknowledge and agree that the terms and conditions of this Agreement, including without limitation the existence and content of any specific provisions hereof, are and shall remain confidential. Each Party agrees that it shall not disclose the terms and conditions of this Agreement to any third party without the prior written consent of the other Party, except as follo

Section 6.2 Public Statements. Neither Party shall issue any press release, public announcement, social media post, or other public statement regarding the settlement of the Action, or the terms and conditions of this Agreement, without the prior written consent of the other Party; provided, however, that: (a) Either Party may publicly state, in response to inquiries from third parties, that "the litigation has been

ARTICLE VII — MISCELLANEOUS PROVISIONS

Section 7.1 Entire Agreement. This Agreement, including the exhibits attached hereto, which are incorporated herein by reference, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior and contemporaneous negotiations, discussions, proposals, agreements, representations, warranties, and understandings, whether written or or

Section 7.2 Amendment and Waiver. This Agreement may not be amended, modified, or supplemented in any respect except by a written instrument duly executed by authorized representatives of both Parties. No waiver of any provision of this Agreement, or of any right or remedy hereunder, shall be effective unless set forth in a written instrument signed by the Party against whom enforcement of such waiver is sought. No w

Section 7.3 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of California, without giving effect to any choice of law or conflict of laws rules or provisions that would cause the application of the laws of any other jurisdiction.

Section 7.4 Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, including the breach, termination, enforceability, or validity thereof, shall be resolved exclusively in the United States District Court for the Northern District of California, San Jose Division. Each Party hereby irrevocably and unconditionally consents and submits to the exclusive personal jurisdiction

Section 7.5 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement, and the application of such provision to other persons or circumstances, shall not in any way be affected or

Section 7.6 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile transmission or by electronic transmission of a portable document format (PDF) copy bearing a signature, or by any other electronic signature method compliant wi

Section 7.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign or transfer this Agreement, or any of its rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withh

Section 7.8 No Third-Party Beneficiaries. Except as expressly provided herein with respect to the Releasees (including the individuals and entities identified in Section 3.1), nothing in this Agreement is intended or shall be construed to give any person or entity other than the Parties any legal or equitable right, benefit, remedy, or claim under or with respect to this Agreement. The releases and covenants set fort

Section 7.9 Construction. This Agreement has been negotiated at arm's length by the Parties and their respective legal counsel. Each Party has had the opportunity to consult with counsel of its own choosing regarding the terms and conditions of this Agreement. Accordingly, this Agreement shall be construed fairly as to each Party, and shall not be construed more strictly against either Party as the drafter or the Par

Section 7.10 Notices. All notices, requests, demands, consents, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given: (a) when delivered personally; (b) upon confirmed receipt when sent by registered or certified mail, return receipt requested, postage prepaid; (c) one (1) business day after deposit with a nationally recognized

Section 7.11 Further Assurances. Each Party agrees to execute and deliver such further documents, instruments, and agreements, and to take such further actions, as may be reasonably necessary or desirable to effectuate the purposes and intent of this Agreement, including without limitation the filing of the Joint Stipulation of Dismissal with Prejudice, the Proposed Order of Dismissal with Prejudice, and any other do

Section 7.12 Headings. The section headings and article headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning, interpretation, or construction of this Agreement. IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement and Mutual Release to be executed by their duly authorized representatives as of the date first written above. OPT

1. All claims asserted by OWS against Lumos in the Complaint filed on June 3, 2022, including all claims of patent infringement of U.S. Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890, are hereby dismissed with prejudice.

2. All counterclaims asserted by Lumos against OWS in the Answer and Counterclaims filed on July 29, 2022, including all counterclaims for declaratory judgment of non-infringement and invalidity, are hereby dismissed with prejudice.

3. Each Party shall bear its own attorneys' fees, costs, and expenses incurred in connection with this Action.

4. This Stipulation resolves all claims and counterclaims between OWS and Lumos in this Action. There are no remaining claims, counterclaims, cross-claims, or third-party claims pending in this Action.

5. The Parties respectfully request that the Court enter the Proposed Order of Dismissal with Prejudice submitted herewith. Respectfully submitted, CALDERWOOD & HARKNESS LLP By: ________ Alan Ngo (SBN 247831) One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 555-0140 Email: ango@calderwoodharkness.com Attorneys for Plaintiff and Counterclaim-Defendant Optiwave Semiconductor Corp. BRA

1. All claims asserted by Plaintiff Optiwave Semiconductor Corp. against Defendant Lumos Photonics, Inc. in the above-captioned action, including all claims of patent infringement of U.S. Patent Nos. 10,234,567; 10,891,234; 11,045,678; and 11,312,890, are DISMISSED WITH PREJUDICE.

2. All counterclaims asserted by Defendant and Counterclaim-Plaintiff Lumos Photonics, Inc. against Plaintiff and Counterclaim-Defendant Optiwave Semiconductor Corp. in the above-captioned action, including all counterclaims for declaratory judgment of non-infringement and invalidity, are DISMISSED WITH PREJUDICE.

3. Each Party shall bear its own attorneys' fees, costs, and expenses incurred in connection with this Action.

4. The Clerk of Court is directed to close this case and terminate all pending motions and deadlines. IT IS SO ORDERED. Dated: ________ ________________________________________ HON. EDWARD J. TORVELIS United States District Judge OPTIWAVE SEMICONDUCTOR CORP., a Delaware corporation, | Case No. 5:22-cv-03417-EJD Plaintiff and Counterclaim-Defendant, | JOINT STIPULATION OF DISMISSAL WITH PREJUDICE v. | Hon. Edward J. T