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CALDERWOOD & HARKNESS LLP Attorneys at Law

600 Lexington Avenue, 30th Floor New York, NY 10022 Tel: (212) 455-8200

Fax: (212) 455-8201

www.calderwoodharkness.com

New York · Washington, D.C. · San Francisco · London · Hong Kong

March 6, 2023

Mr. David Shih General Counsel & Corporate Secretary Optiwave Semiconductor Corp. 4800 Great America Parkway, Suite 1200 San Jose, CA 95054

Dear David:

1. Introduction and Purpose

Calderwood & Harkness LLP ("C&H" or the "Firm") is pleased to confirm its engagement by Optiwave Semiconductor Corp. ("Optiwave Semi," "OWS," or the "Company") to serve as issuer's counsel in connection with the proposed offering and related transactions described in further detail below. This engagement letter follows the productive discussions between Jennifer Kwon, the Responsible Partner for this matter, and you regarding the contemplated transaction, including our conversations on February 22, 2023, February 28, 2023, and March 3, 2023, and is intended to memorialize the understandings reached in those conversations.

This letter sets forth the scope, terms, and conditions of C&H's representation of the Company in connection with the Transaction (as defined below). We appreciate the opportunity to serve as your counsel on this important capital markets transaction and look forward to working closely with you and the Optiwave Semi team to ensure its successful completion.

2. Description of the Transaction

We understand the Transaction to consist of the following elements:

The Company proposes to offer and sell approximately $250,000,000 aggregate principal amount of Convertible Senior Notes (the "Notes") in a private offering to qualified institutional buyers ("QIBs") pursuant to Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"). The Notes are expected to bear interest at a fixed rate to be determined through the marketing process, mature approximately five years from the date of issuance, and be convertible into shares of OWS common stock (Nasdaq: OWS) at a conversion premium to be established at the time of pricing. The specific economic terms of the Notes, including the coupon rate, conversion premium, and maturity date, will be finalized through the bookbuilding and marketing process conducted by the initial purchasers.

The offering is expected to include an over-allotment option of up to 15% of the base offering amount, representing up to $37,500,000 in additional aggregate principal amount of Notes, to be granted to the initial purchasers and exercisable for a period of thirteen days following the date of pricing, consistent with customary market practice for convertible notes offerings of this type.

Concurrently with the pricing of the Notes offering, the Company intends to enter into privately negotiated capped call transactions with one or more dealer counterparties (expected to include affiliates of one or more of the initial purchasers and potentially additional financial institution counterparties) to offset potential dilution upon conversion of the Notes and/or to offset cash payments the Company would be required to make in excess of the principal amount upon any conversion of the Notes (the "Capped Call Transactions"). The capped call transactions are expected to cover the number of shares of OWS common stock initially underlying the Notes (subject to customary anti-dilution adjustments), with a cap price to be determined at the time of pricing.

The Notes offering and the Capped Call Transactions, together with all ancillary agreements, instruments, documents, filings, and deliverables related thereto, are collectively referred to herein as the "Transaction."

3. Scope of Representation

C&H will serve as issuer's counsel to Optiwave Semiconductor Corp. in connection with the Transaction, and its scope of work will include, but not be limited to, the following:

3.1 Offering Documentation

C&H will be responsible for drafting, reviewing, and negotiating the Preliminary Offering Memorandum and the Final Offering Memorandum (together, the "Offering Memoranda") for the Rule 144A offering of the Notes. This work will include coordination with the Company's management and internal teams to develop the disclosure regarding the Company's business, risk factors, description of the Notes, use of proceeds, capitalization, and other customary sections of the Offering Memoranda. C&H will also coordinate with the Company's independent registered public accounting firm, Aldgate & Finch LLP, with respect to comfort letter procedures, including the identification of financial data and other information in the Offering Memoranda to be "covered" by the comfort letters, and will assist in the review and negotiation of the form and substance of the comfort letters to be delivered to the initial purchasers at pricing and at closing. C&H will further coordinate with counsel to the initial purchasers, Prescott Whitfield LLP, on comments to the Offering Memoranda and customary disclosure matters.

3.2 Indenture and Note Documentation

C&H will be responsible for drafting, reviewing, and negotiating the Indenture (the "Indenture") to be entered into between the Company and a to-be-determined trustee (the "Trustee"), governing the terms of the Notes, including the form of Global Note to be attached as an exhibit to the Indenture. The Indenture will address, among other things, conversion mechanics (including settlement methods, observation periods, and conversion rate adjustments), optional and mandatory redemption provisions, fundamental change provisions (including the make-whole fundamental change premium and the fundamental change repurchase right), events of default and acceleration, reporting covenants, and related protective provisions. C&H will work with the Trustee's counsel and the initial purchasers' counsel to negotiate the terms of the Indenture to reflect the agreed-upon economic terms and customary market provisions for convertible notes offerings by issuers of similar size and credit profile.

3.3 Purchase Agreement

C&H will be responsible for drafting, reviewing, and negotiating the Purchase Agreement (the "Purchase Agreement") among the Company and the initial purchasers, expected to be led by Ridgepoint Capital Markets LLC as lead initial purchaser and bookrunner, together with Harborstone Securities Inc. and Velthorn Zanthor & Co. as co-managers (collectively, the "Initial Purchasers"). The Purchase Agreement will address customary representations and warranties of the Company, indemnification and contribution provisions, conditions to closing (including the delivery of legal opinions, comfort letters, officers' certificates, and other closing deliverables), covenants regarding post-pricing and post-closing matters, and related provisions. C&H will negotiate the Purchase Agreement with Prescott Whitfield LLP, counsel to the Initial Purchasers.

3.4 Capped Call Documentation

C&H will review and negotiate the ISDA Master Agreements (2002 form), including the Schedules thereto, and the Confirmations for the Capped Call Transactions with each of the dealer counterparties and their respective counsel. C&H will advise the Company on the structural, regulatory, and tax considerations associated with the Capped Call Transactions, including matters relating to the characterization of the capped call transactions for U.S. federal income tax purposes, any implications under Section 16 of the Securities Exchange Act of 1934, as amended, and the interaction of the Capped Call Transactions with the terms of the Notes and the Indenture.

3.5 Corporate Authorizations

C&H will draft all corporate authorization documents required for the Transaction, including board of directors resolutions authorizing the Transaction and related matters, pricing committee resolutions (if the board delegates pricing authority to a committee of the board), secretary's certificates certifying the Company's organizational documents and board resolutions, officers' certificates to be delivered at closing (including Chief Financial Officer certificates as to solvency and other financial matters, to the extent required), and any other corporate governance documents necessary to authorize the Transaction and the execution and delivery of the Transaction documents.

3.6 Legal Opinions

C&H will prepare and deliver the following legal opinions and related deliverables in connection with the Transaction:

(a) Customary legal opinions of issuer's counsel addressed to the Initial Purchasers, covering matters of corporate organization and good standing, due authorization, execution, delivery, and enforceability of the Transaction documents, the exemption from registration of the offer and sale of the Notes under the Securities Act, and the status of the Company as not being required to register as an investment company under the Investment Company Act of 1940, as amended;

(b) A negative assurance (10b-5) letter addressed to the Initial Purchasers, to the effect that, based on C&H's participation in the preparation of the Offering Memoranda and its participation in conferences with officers and other representatives of the Company, its auditors, and the Initial Purchasers, nothing has come to C&H's attention that causes it to believe that the Offering Memoranda, as of their respective dates and as of the closing date, contained or contain any untrue statement of a material fact or omitted or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(c) A customary legal opinion of issuer's counsel addressed to the Trustee, covering matters required under the Indenture; and

(d) A tax memorandum regarding the U.S. federal income tax treatment of the Notes and the Capped Call Transactions, including the characterization of the Notes as indebtedness for U.S. federal income tax purposes, the treatment of interest payments, the tax consequences of conversion, and the treatment of the Capped Call Transactions, in each case as applicable to the Company and its U.S. and non-U.S. holders.

3.7 Regulatory and Compliance Matters

C&H will advise the Company on the following regulatory and compliance matters in connection with the Transaction:

(a) Analysis of the availability of the exemption from registration under Section 4(a)(2) of the Securities Act and compliance with Rule 144A thereunder for the offer and sale of the Notes to QIBs;

(b) Preparation and filing of the supplemental listing application with The Nasdaq Stock Market LLC for the shares of OWS common stock issuable upon conversion of the Notes, and related correspondence with Nasdaq as necessary to obtain listing approval;

(c) Review and analysis of the Company's existing credit facility (understood to be a $500,000,000 revolving credit facility with a syndicate of lenders) to identify any consents, waivers, or notices that may be required in connection with the Transaction, and assistance in obtaining any such consents or waivers; and

(d) Advising on any other regulatory or compliance matters that may arise in connection with the Transaction, including any required Form 8-K filings, Regulation FD considerations, and insider trading policy matters.

3.8 Closing Deliverables

C&H will prepare and coordinate all closing deliverables for the Transaction, including the preparation and maintenance of a comprehensive closing checklist, preparation of a funds flow memorandum detailing the flow of proceeds at closing, coordination of DTC eligibility letters and CUSIP number assignments, preparation of instruction letters to the Trustee, coordination with the Company's transfer agent, and preparation and assembly of all other customary closing documentation. C&H will also coordinate the closing process with all parties and their respective counsel and manage the virtual closing of the Transaction.

4. Engagement Team

The following attorneys will be principally responsible for handling this matter:

Jennifer Kwon, as Responsible Partner, will have overall supervisory responsibility for the engagement and will be the primary senior contact for the Company on all substantive matters relating to the Transaction. Theodore Langston, as Billing Partner, will be responsible for all billing and financial aspects of the engagement. Claire Dempsey, as Lead Associate, will manage the day-to-day execution of the Transaction and will serve as the primary working-level contact for the Company. Audrey Zhou will serve as Working Associate and will assist with document preparation, due diligence, and other matters as directed by the engagement team. Leonard Cross will advise on all U.S. federal income tax matters relating to the Notes and the Capped Call Transactions, including the preparation of the tax memorandum described in Section 3.6(d) above.

Additional attorneys and professional staff, including associates, paralegals, and legal assistants from C&H's Capital Markets, Tax, and other practice groups, may be assigned to the engagement as necessary to ensure the efficient and timely completion of the Transaction. The Firm will endeavor to notify the Company of any material changes to the composition of the engagement team described above.

5. Matter Information

This engagement has been assigned the following internal identifiers, which will appear on all invoices and correspondence:

C&H Matter Number: 1014-00001

C&H Billing Code: 48710-001

The Company is requested to reference these identifiers in all correspondence and communications directed to C&H in connection with this engagement, so as to facilitate the proper routing and tracking of all such communications.

6. Fees and Billing Arrangements

6.1 Fee Cap

C&H's legal fees for the Transaction shall not exceed One Million Eight Hundred Fifty Thousand Dollars ($1,850,000) (the "Fee Cap"), which represents a capped fee arrangement for all professional services rendered by C&H in connection with the Transaction as described in Section 3 above. The Fee Cap is inclusive of all time billed by partners, senior counsel, associates, and paraprofessional staff in connection with the Transaction, without regard to the standard hourly rates that would otherwise be applicable to such timekeepers.

The Fee Cap has been established based upon C&H's assessment of the anticipated scope and complexity of the Transaction as described in this engagement letter, including the anticipated size of the offering, the number of Initial Purchasers, the number of Capped Call counterparties, and the general complexity of the Transaction structure. In the event of material changes to the scope or structure of the Transaction — including, by way of example and not limitation, a change from a Rule 144A offering to a registered offering, the addition of one or more additional tranches or series of notes, a significant restructuring of the offering terms, or the occurrence of extraordinary events requiring substantial additional legal work not contemplated by this engagement letter — the parties agree to negotiate in good faith an appropriate adjustment to the Fee Cap to reflect the additional scope of work required.

6.2 Disbursements and Expenses

In addition to the Fee Cap, the Company will reimburse C&H for all reasonable out-of-pocket disbursements and expenses incurred by C&H in connection with the Transaction. Based on our experience with transactions of this type and size, we currently estimate that total disbursements will be approximately Forty-Five Thousand Dollars ($45,000), though actual disbursements may be higher or lower depending on the circumstances. Disbursements include, but are not limited to, the following categories:

(a) Filing fees, including Nasdaq supplemental listing application fees and any other regulatory filing fees;

(b) Document reproduction and printing costs, including costs associated with the production of the Offering Memoranda;

(d) Travel expenses, if any, including airfare, ground transportation, lodging, and meals, incurred in connection with in-person meetings, due diligence sessions, or closings (travel will be in accordance with C&H's standard travel policy and will be undertaken only as reasonably necessary);

(e) Online legal research charges, including charges for Westmark Data Systems, Cascade Services Inc., and other electronic research services;

(f) Closing binder compilation and distribution costs; and

(g) Other miscellaneous disbursements reasonably incurred in connection with the Transaction.

Disbursements are not subject to the Fee Cap and will be invoiced at C&H's actual cost, without markup.

6.3 Billing and Payment

C&H will submit monthly invoices to the Company for fees and disbursements incurred during the preceding calendar month. Each invoice will include reasonable detail regarding the professional services rendered by each timekeeper (including the timekeeper's name, role, and a description of the work performed) and an itemized listing of disbursements incurred. Invoices will be directed to the attention of David Shih, General Counsel & Corporate Secretary, at the address set forth above, or to such other address or addressee as the Company may designate from time to time in writing.

All invoices are due and payable within thirty (30) days of receipt. In the event that the Company disputes any portion of an invoice, the Company shall promptly notify C&H of the nature and amount of the disputed charges, and the parties shall work in good faith to resolve any such dispute. The undisputed portion of any invoice shall remain due and payable within the thirty (30) day period specified above.

6.4 Initial Purchasers' Counsel Fees

For the avoidance of doubt, the fees and expenses of Prescott Whitfield LLP, acting as counsel to the Initial Purchasers in connection with the Transaction, are not included in the Fee Cap and are the sole responsibility of the Initial Purchasers. C&H's fees and the Fee Cap relate solely to C&H's services as issuer's counsel to the Company.

7. Client Responsibilities

The Company agrees to cooperate fully with C&H in connection with the Transaction and to provide all assistance reasonably necessary to enable C&H to perform its obligations under this engagement letter. Without limiting the generality of the foregoing, the Company's responsibilities include:

(a) Providing timely access to corporate records, organizational documents, financial information, material contracts, and personnel of the Company and its subsidiaries, in each case as reasonably requested by C&H in connection with the Transaction;

(b) Reviewing and commenting on draft documents, including the Offering Memoranda, the Indenture, the Purchase Agreement, the Capped Call documentation, corporate authorization documents, and all other Transaction documents, within reasonable timeframes so as not to delay the Transaction timeline;

(c) Executing and delivering all documents, certificates, instruments, and other deliverables as may be required in connection with the Transaction, including officers' certificates, secretary's certificates, and other closing deliverables;

(d) Promptly informing C&H of any material developments or changes in circumstances that may affect the Transaction, including any material litigation, regulatory inquiries, financial developments, or other events that could reasonably be expected to affect the disclosure in the Offering Memoranda or the Company's ability to consummate the Transaction; and

(e) Making available the Company's officers, directors, and employees for due diligence sessions, drafting sessions, and other meetings as reasonably requested by C&H or the Initial Purchasers.

The primary client contacts for purposes of this engagement shall be David Shih (General Counsel & Corporate Secretary), Priya Nandakumar (Chief Financial Officer), and Rachel Fontaine (Treasurer). C&H will direct all substantive communications and requests to one or more of the foregoing individuals unless otherwise instructed by the Company.

8. Limitations of Representation

The Company acknowledges and agrees that C&H's representation is subject to the following limitations:

C&H's representation is limited to the Transaction described in this engagement letter and does not extend to any other matter, transaction, or proceeding involving the Company or any of its subsidiaries or affiliates, whether or not related to the Transaction, unless separately agreed in writing between C&H and the Company.

C&H is not being engaged to provide accounting, auditing, or financial reporting advice to the Company. The Company should rely on its independent registered public accounting firm, Aldgate & Finch LLP, for all accounting matters, including without limitation the application of Accounting Standards Codification ("ASC") Topic 470-20 (Debt — Debt with Conversion and Other Options), Accounting Standards Update ("ASU") 2020-06 (Debt — Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging — Contracts in Entity's Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity's Own Equity), and any other applicable accounting standards, to the Notes and the Capped Call Transactions.

C&H is not being engaged to render legal advice on the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York, and the General Corporation Law of the State of Delaware. To the extent that legal advice on the laws of other jurisdictions may be required in connection with the Transaction (including, for example, blue sky or state securities law matters), the parties will discuss and agree upon appropriate arrangements, which may include the retention of local counsel. C&H may engage local counsel as necessary with the Company's prior consent.

C&H does not undertake to advise the Company on business, commercial, or financial decisions relating to the Transaction, including the pricing, marketing, or economic terms of the Notes, the decision to enter into the Capped Call Transactions, or the selection of counterparties. Such decisions are the sole responsibility of the Company and its management, in consultation with the Initial Purchasers and such other financial and business advisors as the Company may deem appropriate.

9. Confidentiality

C&H will maintain the confidentiality of all non-public information provided by or on behalf of the Company in connection with the Transaction, including all proprietary, financial, technical, and business information, and will not disclose such information to any third party except as may be: (a) required by applicable law, regulation, or court order; (b) necessary in connection with C&H's professional responsibilities, including its obligations under applicable rules of professional conduct; (c) authorized by the Company in writing; or (d) required pursuant to any separate confidentiality or non-disclosure agreement between C&H and the Company. C&H's confidentiality obligations under this Section 9 shall survive the completion or termination of this engagement. This Section 9 is in addition to, and not in lieu of, any obligations C&H may have under applicable rules of professional conduct governing client confidences and secrets.

10. Conflicts of Interest

C&H has conducted a review of its current client relationships and engagements and has determined that there are no conflicts of interest that would preclude C&H from representing the Company in connection with the Transaction as contemplated by this engagement letter.

The Company acknowledges that C&H is a large law firm with a diverse client base and may currently represent, or may in the future represent, one or more of the other parties to the Transaction, including without limitation Ridgepoint Capital Markets LLC, Harborstone Securities Inc., Velthorn Zanthor & Co., Northvane Financial Products LP (as a potential Capped Call counterparty), Broadmere Trust Company, N.A. (as a potential Trustee), or their respective affiliates, in matters unrelated to the Transaction. C&H's representation of the Company in connection with the Transaction will not preclude C&H from representing any such parties in other, unrelated matters, and the Company consents to such representations to the extent permitted by applicable rules of professional conduct, provided that C&H will not represent any such party in a matter that is substantially related to or adverse to the Company's interests in connection with the Transaction without the Company's informed written consent.

In the event that an actual conflict of interest arises during the course of this engagement, C&H will promptly notify the Company and take such steps as may be required by the applicable rules of professional conduct, which may include seeking a waiver from the affected parties or, if a waiver cannot be obtained, withdrawing from one or more of the conflicting representations.

11. Document Retention

Upon completion of the Transaction, C&H will retain all engagement files, including work product, correspondence, and documents generated or received in connection with the Transaction, in accordance with the Firm's standard document retention policy. Under the Firm's current policy, engagement files are retained for a minimum of ten (10) years following the completion or termination of the engagement, after which time the files may be destroyed in the ordinary course without further notice to the Company. The Company may request copies of work product and other documents in the engagement file at any time during the retention period, and C&H will provide such copies within a reasonable time following receipt of such request.

The Company is advised that its own document retention obligations, including any obligations under applicable securities laws and regulations, may differ from C&H's document retention policy, and the Company should not rely on C&H's retention of engagement files in lieu of maintaining its own records.

12. Termination

Either party may terminate this engagement at any time upon written notice to the other party. In the event of termination by either party, the Company will be responsible for the payment of all fees accrued and all disbursements incurred by C&H through the effective date of termination, subject to the Fee Cap with respect to accrued fees. Upon termination, C&H will take such steps as are reasonably necessary to protect the Company's interests, including, to the extent requested by the Company, the orderly transition of the matter to successor counsel.

C&H's right to terminate this engagement is subject to the applicable rules of professional conduct governing withdrawal from representation, including any requirements for court approval if applicable. C&H will not withdraw from the representation in a manner that would materially prejudice the Company's interests without providing reasonable advance notice and affording the Company a reasonable opportunity to retain successor counsel.

13. Governing Law

This engagement letter and the terms of the engagement described herein shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction.

14. Agreement and Acceptance

We are enthusiastic about the opportunity to work with Optiwave Semi on this Transaction and are confident that our Capital Markets and Tax practice groups are well-positioned to deliver the level of service and expertise that this transaction requires.

We kindly request that the Company confirm its acceptance of the terms set forth in this engagement letter by having an authorized officer sign the enclosed duplicate original in the space indicated below and return it to the attention of Jennifer Kwon at the address set forth above (or by email to jkwon@calderwoodharkness.com). This engagement letter, once signed by both parties, shall constitute the entire agreement between C&H and the Company with respect to the engagement described herein and supersedes all prior discussions, understandings, and agreements, whether written or oral, between the parties with respect to the subject matter hereof.

If you have any questions regarding the terms of this engagement letter or would like to discuss any aspect of our proposed representation, please do not hesitate to contact Jennifer Kwon at (212) 455-8247 or Theodore Langston at (212) 455-8312.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Jennifer Kwon, Partner Capital Markets Practice Group

By: ________

Theodore Langston, Partner (Billing Partner) Capital Markets Practice Group

ACCEPTED AND AGREED:

OPTIWAVE SEMICONDUCTOR CORP.

By: ________

Name: David Shih

Title: General Counsel & Corporate Secretary

Date: ________

Enclosures:

• Duplicate original of this engagement letter for countersignature and return

cc:

Marcus Harding, Chief Executive Officer, Optiwave Semiconductor Corp. Priya Nandakumar, Chief Financial Officer, Optiwave Semiconductor Corp. Theodore Langston, Calderwood & Harkness LLP Claire Dempsey, Calderwood & Harkness LLP

Role	Attorney	Practice Group
Responsible Partner	Jennifer Kwon	Capital Markets
Billing Partner	Theodore Langston	Capital Markets
Lead Associate	Claire Dempsey	Capital Markets
Working Associate	Audrey Zhou	Capital Markets
Tax Specialist Partner	Leonard Cross	Tax

CALDERWOOD & HARKNESS LLP Attorneys at Law
600 Lexington Avenue, 30th Floor New York, NY 10022 Tel: (212) 455-8200
Fax: (212) 455-8201
www.calderwoodharkness.com
New York · Washington, D.C. · San Francisco · London · Hong Kong
March 6, 2023
Mr. David Shih General Counsel & Corporate Secretary Optiwave Semiconductor Corp. 4800 Great America Parkway, Suite 1200 San Jose, CA 95054
Dear David:
1. Introduction and Purpose
Calderwood & Harkness LLP ("C&H" or the "Firm") is pleased to confirm its engagement by Optiwave Semiconductor Corp. ("Optiwave Semi," "OWS," or the "Company") to serve as issuer's counsel in connection with the proposed offering and related transactions described in further detail below. This engagement letter follows the productive discussions between Jennifer Kwon, the Responsible Partner for this matter, and you regarding the contemplated transaction, including our conversations on February 22, 2023, February 28, 2023, and March 3, 2023, and is intended to memorialize the understandings reached in those conversations.
This letter sets forth the scope, terms, and conditions of C&H's representation of the Company in connection with the Transaction (as defined below). We appreciate the opportunity to serve as your counsel on this important capital markets transaction and look forward to working closely with you and the Optiwave Semi team to ensure its successful completion.
2. Description of the Transaction
We understand the Transaction to consist of the following elements:
The Company proposes to offer and sell approximately $250,000,000 aggregate principal amount of Convertible Senior Notes (the "Notes") in a private offering to qualified institutional buyers ("QIBs") pursuant to Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"). The Notes are expected to bear interest at a fixed rate to be determined through the marketing process, mature approximately five years from the date of issuance, and be convertible into shares of OWS common stock (Nasdaq: OWS) at a conversion premium to be established at the time of pricing. The specific economic terms of the Notes, including the coupon rate, conversion premium, and maturity date, will be finalized through the bookbuilding and marketing process conducted by the initial purchasers.
The offering is expected to include an over-allotment option of up to 15% of the base offering amount, representing up to $37,500,000 in additional aggregate principal amount of Notes, to be granted to the initial purchasers and exercisable for a period of thirteen days following the date of pricing, consistent with customary market practice for convertible notes offerings of this type.
Concurrently with the pricing of the Notes offering, the Company intends to enter into privately negotiated capped call transactions with one or more dealer counterparties (expected to include affiliates of one or more of the initial purchasers and potentially additional financial institution counterparties) to offset potential dilution upon conversion of the Notes and/or to offset cash payments the Company would be required to make in excess of the principal amount upon any conversion of the Notes (the "Capped Call Transactions"). The capped call transactions are expected to cover the number of shares of OWS common stock initially underlying the Notes (subject to customary anti-dilution adjustments), with a cap price to be determined at the time of pricing.
The Notes offering and the Capped Call Transactions, together with all ancillary agreements, instruments, documents, filings, and deliverables related thereto, are collectively referred to herein as the "Transaction."
3. Scope of Representation
C&H will serve as issuer's counsel to Optiwave Semiconductor Corp. in connection with the Transaction, and its scope of work will include, but not be limited to, the following:
3.1 Offering Documentation
C&H will be responsible for drafting, reviewing, and negotiating the Preliminary Offering Memorandum and the Final Offering Memorandum (together, the "Offering Memoranda") for the Rule 144A offering of the Notes. This work will include coordination with the Company's management and internal teams to develop the disclosure regarding the Company's business, risk factors, description of the Notes, use of proceeds, capitalization, and other customary sections of the Offering Memoranda. C&H will also coordinate with the Company's independent registered public accounting firm, Aldgate & Finch LLP, with respect to comfort letter procedures, including the identification of financial data and other information in the Offering Memoranda to be "covered" by the comfort letters, and will assist in the review and negotiation of the form and substance of the comfort letters to be delivered to the initial purchasers at pricing and at closing. C&H will further coordinate with counsel to the initial purchasers, Prescott Whitfield LLP, on comments to the Offering Memoranda and customary disclosure matters.
3.2 Indenture and Note Documentation
C&H will be responsible for drafting, reviewing, and negotiating the Indenture (the "Indenture") to be entered into between the Company and a to-be-determined trustee (the "Trustee"), governing the terms of the Notes, including the form of Global Note to be attached as an exhibit to the Indenture. The Indenture will address, among other things, conversion mechanics (including settlement methods, observation periods, and conversion rate adjustments), optional and mandatory redemption provisions, fundamental change provisions (including the make-whole fundamental change premium and the fundamental change repurchase right), events of default and acceleration, reporting covenants, and related protective provisions. C&H will work with the Trustee's counsel and the initial purchasers' counsel to negotiate the terms of the Indenture to reflect the agreed-upon economic terms and customary market provisions for convertible notes offerings by issuers of similar size and credit profile.
3.3 Purchase Agreement
C&H will be responsible for drafting, reviewing, and negotiating the Purchase Agreement (the "Purchase Agreement") among the Company and the initial purchasers, expected to be led by Ridgepoint Capital Markets LLC as lead initial purchaser and bookrunner, together with Harborstone Securities Inc. and Velthorn Zanthor & Co. as co-managers (collectively, the "Initial Purchasers"). The Purchase Agreement will address customary representations and warranties of the Company, indemnification and contribution provisions, conditions to closing (including the delivery of legal opinions, comfort letters, officers' certificates, and other closing deliverables), covenants regarding post-pricing and post-closing matters, and related provisions. C&H will negotiate the Purchase Agreement with Prescott Whitfield LLP, counsel to the Initial Purchasers.
3.4 Capped Call Documentation
C&H will review and negotiate the ISDA Master Agreements (2002 form), including the Schedules thereto, and the Confirmations for the Capped Call Transactions with each of the dealer counterparties and their respective counsel. C&H will advise the Company on the structural, regulatory, and tax considerations associated with the Capped Call Transactions, including matters relating to the characterization of the capped call transactions for U.S. federal income tax purposes, any implications under Section 16 of the Securities Exchange Act of 1934, as amended, and the interaction of the Capped Call Transactions with the terms of the Notes and the Indenture.
3.5 Corporate Authorizations
C&H will draft all corporate authorization documents required for the Transaction, including board of directors resolutions authorizing the Transaction and related matters, pricing committee resolutions (if the board delegates pricing authority to a committee of the board), secretary's certificates certifying the Company's organizational documents and board resolutions, officers' certificates to be delivered at closing (including Chief Financial Officer certificates as to solvency and other financial matters, to the extent required), and any other corporate governance documents necessary to authorize the Transaction and the execution and delivery of the Transaction documents.
3.6 Legal Opinions
C&H will prepare and deliver the following legal opinions and related deliverables in connection with the Transaction:
(a) Customary legal opinions of issuer's counsel addressed to the Initial Purchasers, covering matters of corporate organization and good standing, due authorization, execution, delivery, and enforceability of the Transaction documents, the exemption from registration of the offer and sale of the Notes under the Securities Act, and the status of the Company as not being required to register as an investment company under the Investment Company Act of 1940, as amended;
(b) A negative assurance (10b-5) letter addressed to the Initial Purchasers, to the effect that, based on C&H's participation in the preparation of the Offering Memoranda and its participation in conferences with officers and other representatives of the Company, its auditors, and the Initial Purchasers, nothing has come to C&H's attention that causes it to believe that the Offering Memoranda, as of their respective dates and as of the closing date, contained or contain any untrue statement of a material fact or omitted or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(c) A customary legal opinion of issuer's counsel addressed to the Trustee, covering matters required under the Indenture; and
(d) A tax memorandum regarding the U.S. federal income tax treatment of the Notes and the Capped Call Transactions, including the characterization of the Notes as indebtedness for U.S. federal income tax purposes, the treatment of interest payments, the tax consequences of conversion, and the treatment of the Capped Call Transactions, in each case as applicable to the Company and its U.S. and non-U.S. holders.
3.7 Regulatory and Compliance Matters
C&H will advise the Company on the following regulatory and compliance matters in connection with the Transaction:
(a) Analysis of the availability of the exemption from registration under Section 4(a)(2) of the Securities Act and compliance with Rule 144A thereunder for the offer and sale of the Notes to QIBs;
(b) Preparation and filing of the supplemental listing application with The Nasdaq Stock Market LLC for the shares of OWS common stock issuable upon conversion of the Notes, and related correspondence with Nasdaq as necessary to obtain listing approval;
(c) Review and analysis of the Company's existing credit facility (understood to be a $500,000,000 revolving credit facility with a syndicate of lenders) to identify any consents, waivers, or notices that may be required in connection with the Transaction, and assistance in obtaining any such consents or waivers; and
(d) Advising on any other regulatory or compliance matters that may arise in connection with the Transaction, including any required Form 8-K filings, Regulation FD considerations, and insider trading policy matters.
3.8 Closing Deliverables
C&H will prepare and coordinate all closing deliverables for the Transaction, including the preparation and maintenance of a comprehensive closing checklist, preparation of a funds flow memorandum detailing the flow of proceeds at closing, coordination of DTC eligibility letters and CUSIP number assignments, preparation of instruction letters to the Trustee, coordination with the Company's transfer agent, and preparation and assembly of all other customary closing documentation. C&H will also coordinate the closing process with all parties and their respective counsel and manage the virtual closing of the Transaction.
4. Engagement Team
The following attorneys will be principally responsible for handling this matter:
Jennifer Kwon, as Responsible Partner, will have overall supervisory responsibility for the engagement and will be the primary senior contact for the Company on all substantive matters relating to the Transaction. Theodore Langston, as Billing Partner, will be responsible for all billing and financial aspects of the engagement. Claire Dempsey, as Lead Associate, will manage the day-to-day execution of the Transaction and will serve as the primary working-level contact for the Company. Audrey Zhou will serve as Working Associate and will assist with document preparation, due diligence, and other matters as directed by the engagement team. Leonard Cross will advise on all U.S. federal income tax matters relating to the Notes and the Capped Call Transactions, including the preparation of the tax memorandum described in Section 3.6(d) above.
Additional attorneys and professional staff, including associates, paralegals, and legal assistants from C&H's Capital Markets, Tax, and other practice groups, may be assigned to the engagement as necessary to ensure the efficient and timely completion of the Transaction. The Firm will endeavor to notify the Company of any material changes to the composition of the engagement team described above.
5. Matter Information
This engagement has been assigned the following internal identifiers, which will appear on all invoices and correspondence:
C&H Matter Number: 1014-00001
C&H Billing Code: 48710-001
The Company is requested to reference these identifiers in all correspondence and communications directed to C&H in connection with this engagement, so as to facilitate the proper routing and tracking of all such communications.
6. Fees and Billing Arrangements
6.1 Fee Cap
C&H's legal fees for the Transaction shall not exceed One Million Eight Hundred Fifty Thousand Dollars ($1,850,000) (the "Fee Cap"), which represents a capped fee arrangement for all professional services rendered by C&H in connection with the Transaction as described in Section 3 above. The Fee Cap is inclusive of all time billed by partners, senior counsel, associates, and paraprofessional staff in connection with the Transaction, without regard to the standard hourly rates that would otherwise be applicable to such timekeepers.
The Fee Cap has been established based upon C&H's assessment of the anticipated scope and complexity of the Transaction as described in this engagement letter, including the anticipated size of the offering, the number of Initial Purchasers, the number of Capped Call counterparties, and the general complexity of the Transaction structure. In the event of material changes to the scope or structure of the Transaction — including, by way of example and not limitation, a change from a Rule 144A offering to a registered offering, the addition of one or more additional tranches or series of notes, a significant restructuring of the offering terms, or the occurrence of extraordinary events requiring substantial additional legal work not contemplated by this engagement letter — the parties agree to negotiate in good faith an appropriate adjustment to the Fee Cap to reflect the additional scope of work required.
6.2 Disbursements and Expenses
In addition to the Fee Cap, the Company will reimburse C&H for all reasonable out-of-pocket disbursements and expenses incurred by C&H in connection with the Transaction. Based on our experience with transactions of this type and size, we currently estimate that total disbursements will be approximately Forty-Five Thousand Dollars ($45,000), though actual disbursements may be higher or lower depending on the circumstances. Disbursements include, but are not limited to, the following categories:
(a) Filing fees, including Nasdaq supplemental listing application fees and any other regulatory filing fees;
(b) Document reproduction and printing costs, including costs associated with the production of the Offering Memoranda;
(c) Overnight courier and express mail charges;
(d) Travel expenses, if any, including airfare, ground transportation, lodging, and meals, incurred in connection with in-person meetings, due diligence sessions, or closings (travel will be in accordance with C&H's standard travel policy and will be undertaken only as reasonably necessary);
(e) Online legal research charges, including charges for Westmark Data Systems, Cascade Services Inc., and other electronic research services;
(f) Closing binder compilation and distribution costs; and
(g) Other miscellaneous disbursements reasonably incurred in connection with the Transaction.
Disbursements are not subject to the Fee Cap and will be invoiced at C&H's actual cost, without markup.
6.3 Billing and Payment
C&H will submit monthly invoices to the Company for fees and disbursements incurred during the preceding calendar month. Each invoice will include reasonable detail regarding the professional services rendered by each timekeeper (including the timekeeper's name, role, and a description of the work performed) and an itemized listing of disbursements incurred. Invoices will be directed to the attention of David Shih, General Counsel & Corporate Secretary, at the address set forth above, or to such other address or addressee as the Company may designate from time to time in writing.
All invoices are due and payable within thirty (30) days of receipt. In the event that the Company disputes any portion of an invoice, the Company shall promptly notify C&H of the nature and amount of the disputed charges, and the parties shall work in good faith to resolve any such dispute. The undisputed portion of any invoice shall remain due and payable within the thirty (30) day period specified above.
6.4 Initial Purchasers' Counsel Fees
For the avoidance of doubt, the fees and expenses of Prescott Whitfield LLP, acting as counsel to the Initial Purchasers in connection with the Transaction, are not included in the Fee Cap and are the sole responsibility of the Initial Purchasers. C&H's fees and the Fee Cap relate solely to C&H's services as issuer's counsel to the Company.
7. Client Responsibilities
The Company agrees to cooperate fully with C&H in connection with the Transaction and to provide all assistance reasonably necessary to enable C&H to perform its obligations under this engagement letter. Without limiting the generality of the foregoing, the Company's responsibilities include:
(a) Providing timely access to corporate records, organizational documents, financial information, material contracts, and personnel of the Company and its subsidiaries, in each case as reasonably requested by C&H in connection with the Transaction;
(b) Reviewing and commenting on draft documents, including the Offering Memoranda, the Indenture, the Purchase Agreement, the Capped Call documentation, corporate authorization documents, and all other Transaction documents, within reasonable timeframes so as not to delay the Transaction timeline;
(c) Executing and delivering all documents, certificates, instruments, and other deliverables as may be required in connection with the Transaction, including officers' certificates, secretary's certificates, and other closing deliverables;
(d) Promptly informing C&H of any material developments or changes in circumstances that may affect the Transaction, including any material litigation, regulatory inquiries, financial developments, or other events that could reasonably be expected to affect the disclosure in the Offering Memoranda or the Company's ability to consummate the Transaction; and
(e) Making available the Company's officers, directors, and employees for due diligence sessions, drafting sessions, and other meetings as reasonably requested by C&H or the Initial Purchasers.
The primary client contacts for purposes of this engagement shall be David Shih (General Counsel & Corporate Secretary), Priya Nandakumar (Chief Financial Officer), and Rachel Fontaine (Treasurer). C&H will direct all substantive communications and requests to one or more of the foregoing individuals unless otherwise instructed by the Company.
8. Limitations of Representation
The Company acknowledges and agrees that C&H's representation is subject to the following limitations:
C&H's representation is limited to the Transaction described in this engagement letter and does not extend to any other matter, transaction, or proceeding involving the Company or any of its subsidiaries or affiliates, whether or not related to the Transaction, unless separately agreed in writing between C&H and the Company.
C&H is not being engaged to provide accounting, auditing, or financial reporting advice to the Company. The Company should rely on its independent registered public accounting firm, Aldgate & Finch LLP, for all accounting matters, including without limitation the application of Accounting Standards Codification ("ASC") Topic 470-20 (Debt — Debt with Conversion and Other Options), Accounting Standards Update ("ASU") 2020-06 (Debt — Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging — Contracts in Entity's Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity's Own Equity), and any other applicable accounting standards, to the Notes and the Capped Call Transactions.
C&H is not being engaged to render legal advice on the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York, and the General Corporation Law of the State of Delaware. To the extent that legal advice on the laws of other jurisdictions may be required in connection with the Transaction (including, for example, blue sky or state securities law matters), the parties will discuss and agree upon appropriate arrangements, which may include the retention of local counsel. C&H may engage local counsel as necessary with the Company's prior consent.
C&H does not undertake to advise the Company on business, commercial, or financial decisions relating to the Transaction, including the pricing, marketing, or economic terms of the Notes, the decision to enter into the Capped Call Transactions, or the selection of counterparties. Such decisions are the sole responsibility of the Company and its management, in consultation with the Initial Purchasers and such other financial and business advisors as the Company may deem appropriate.
9. Confidentiality
C&H will maintain the confidentiality of all non-public information provided by or on behalf of the Company in connection with the Transaction, including all proprietary, financial, technical, and business information, and will not disclose such information to any third party except as may be: (a) required by applicable law, regulation, or court order; (b) necessary in connection with C&H's professional responsibilities, including its obligations under applicable rules of professional conduct; (c) authorized by the Company in writing; or (d) required pursuant to any separate confidentiality or non-disclosure agreement between C&H and the Company. C&H's confidentiality obligations under this Section 9 shall survive the completion or termination of this engagement. This Section 9 is in addition to, and not in lieu of, any obligations C&H may have under applicable rules of professional conduct governing client confidences and secrets.
10. Conflicts of Interest
C&H has conducted a review of its current client relationships and engagements and has determined that there are no conflicts of interest that would preclude C&H from representing the Company in connection with the Transaction as contemplated by this engagement letter.
The Company acknowledges that C&H is a large law firm with a diverse client base and may currently represent, or may in the future represent, one or more of the other parties to the Transaction, including without limitation Ridgepoint Capital Markets LLC, Harborstone Securities Inc., Velthorn Zanthor & Co., Northvane Financial Products LP (as a potential Capped Call counterparty), Broadmere Trust Company, N.A. (as a potential Trustee), or their respective affiliates, in matters unrelated to the Transaction. C&H's representation of the Company in connection with the Transaction will not preclude C&H from representing any such parties in other, unrelated matters, and the Company consents to such representations to the extent permitted by applicable rules of professional conduct, provided that C&H will not represent any such party in a matter that is substantially related to or adverse to the Company's interests in connection with the Transaction without the Company's informed written consent.
In the event that an actual conflict of interest arises during the course of this engagement, C&H will promptly notify the Company and take such steps as may be required by the applicable rules of professional conduct, which may include seeking a waiver from the affected parties or, if a waiver cannot be obtained, withdrawing from one or more of the conflicting representations.
11. Document Retention
Upon completion of the Transaction, C&H will retain all engagement files, including work product, correspondence, and documents generated or received in connection with the Transaction, in accordance with the Firm's standard document retention policy. Under the Firm's current policy, engagement files are retained for a minimum of ten (10) years following the completion or termination of the engagement, after which time the files may be destroyed in the ordinary course without further notice to the Company. The Company may request copies of work product and other documents in the engagement file at any time during the retention period, and C&H will provide such copies within a reasonable time following receipt of such request.
The Company is advised that its own document retention obligations, including any obligations under applicable securities laws and regulations, may differ from C&H's document retention policy, and the Company should not rely on C&H's retention of engagement files in lieu of maintaining its own records.
12. Termination
Either party may terminate this engagement at any time upon written notice to the other party. In the event of termination by either party, the Company will be responsible for the payment of all fees accrued and all disbursements incurred by C&H through the effective date of termination, subject to the Fee Cap with respect to accrued fees. Upon termination, C&H will take such steps as are reasonably necessary to protect the Company's interests, including, to the extent requested by the Company, the orderly transition of the matter to successor counsel.
C&H's right to terminate this engagement is subject to the applicable rules of professional conduct governing withdrawal from representation, including any requirements for court approval if applicable. C&H will not withdraw from the representation in a manner that would materially prejudice the Company's interests without providing reasonable advance notice and affording the Company a reasonable opportunity to retain successor counsel.
13. Governing Law
This engagement letter and the terms of the engagement described herein shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction.
14. Agreement and Acceptance
We are enthusiastic about the opportunity to work with Optiwave Semi on this Transaction and are confident that our Capital Markets and Tax practice groups are well-positioned to deliver the level of service and expertise that this transaction requires.
We kindly request that the Company confirm its acceptance of the terms set forth in this engagement letter by having an authorized officer sign the enclosed duplicate original in the space indicated below and return it to the attention of Jennifer Kwon at the address set forth above (or by email to jkwon@calderwoodharkness.com). This engagement letter, once signed by both parties, shall constitute the entire agreement between C&H and the Company with respect to the engagement described herein and supersedes all prior discussions, understandings, and agreements, whether written or oral, between the parties with respect to the subject matter hereof.
If you have any questions regarding the terms of this engagement letter or would like to discuss any aspect of our proposed representation, please do not hesitate to contact Jennifer Kwon at (212) 455-8247 or Theodore Langston at (212) 455-8312.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Jennifer Kwon, Partner Capital Markets Practice Group
By: ________
Theodore Langston, Partner (Billing Partner) Capital Markets Practice Group
ACCEPTED AND AGREED:
OPTIWAVE SEMICONDUCTOR CORP.
By: ________
Name: David Shih
Title: General Counsel & Corporate Secretary
Date: ________
Enclosures:
•  Duplicate original of this engagement letter for countersignature and return
cc:
Marcus Harding, Chief Executive Officer, Optiwave Semiconductor Corp. Priya Nandakumar, Chief Financial Officer, Optiwave Semiconductor Corp. Theodore Langston, Calderwood & Harkness LLP Claire Dempsey, Calderwood & Harkness LLP
Role | Attorney | Practice Group
Responsible Partner | Jennifer Kwon | Capital Markets
Billing Partner | Theodore Langston | Capital Markets
Lead Associate | Claire Dempsey | Capital Markets
Working Associate | Audrey Zhou | Capital Markets
Tax Specialist Partner | Leonard Cross | Tax

CALDERWOOD & HARKNESS LLP Attorneys at Law

CALDERWOOD & HARKNESS LLP

ACCEPTED AND AGREED:

OPTIWAVE SEMICONDUCTOR CORP.

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