EXHIBIT A
FORM OF GLOBAL NOTE
OPTIWAVE SEMICONDUCTOR CORP.
2.75% Convertible Senior Note due 2028
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, OR A SUCCESSOR NOMINEE. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER OF THIS NOTE (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF OPTIWAVE SEMICONDUCTOR CORP. THAT IT WILL NOT OFFER, SELL, OR OTHERWISE TRANSFER THIS NOTE, EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT, (B) TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH CASE TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY BE AT ALL TIMES WITHIN ITS CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS.
Section 1. Promise to Pay.
Optiwave Semiconductor Corp., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal amount of $[●] (or such greater or lesser amount as indicated on the Schedule of Increases and Decreases in Global Note attached hereto) on June 1, 2028 (the "Maturity Date"), and to pay interest thereon at the rate of 2.75% per annum.
Interest on this Note shall accrue from June 1, 2023, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, whichever is later, until the principal hereof is paid or duly provided for. Interest on this Note shall be payable semi-annually in arrears on June 1 and December 1 of each year (each, an "Interest Payment Date"), commencing December 1, 2023, to the person in whose name this Note (or any predecessor Note) is registered at the close of business on the Regular Record Date for such Interest Payment Date. The Regular Record Dates for the Notes shall be May 15 and November 15 (whether or not such day is a Business Day) immediately preceding the related Interest Payment Date. Interest on this Note shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The principal of this Note and any accrued and unpaid interest thereon shall be payable in lawful money of the United States of America in immediately available funds. Payment of principal shall be made at the Corporate Trust Office of the Trustee upon surrender of this Note. Payment of interest shall be made by wire transfer in immediately available funds to the account of the registered Holder as such account shall have been designated by the registered Holder in a written notice to the Trustee and the Company not later than the relevant Regular Record Date, or, in the absence of such designation, by check mailed to the address of the registered Holder as it appears in the Note Register; provided that, so long as this Note is a Global Note registered in the name of the Depositary or its nominee, payment of principal, premium, if any, and interest on this Note shall be made in accordance with the applicable procedures of the Depositary or its nominee.
If any Interest Payment Date, the Maturity Date, or any earlier required repurchase date or redemption date falls on a day that is not a Business Day, the required payment shall be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was due, and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Maturity Date, repurchase date, or redemption date, as the case may be, to the date of such payment.
Section 2. Reference to Indenture; Terms Incorporated.
This Note is one of a duly authorized issue of Notes of the Company designated as its "2.75% Convertible Senior Notes due 2028" (the "Notes"), limited in aggregate principal amount to $250,000,000 (subject to increase pursuant to the exercise of the over-allotment option granted to the initial purchasers as described herein), issued under and pursuant to an Indenture dated as of May 30, 2023 (as supplemented and amended from time to time, the "Indenture"), between Optiwave Semiconductor Corp. and Broadmere Trust Company, National Association, as Trustee (the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations, and immunities thereunder of the Company, the Trustee, and the Holders of the Notes, and for the definition of certain terms used but not otherwise defined herein. Additional Notes may be issued under the Indenture in accordance with Section 2.01 thereof, subject to the limitations and conditions set forth therein.
All terms used in this Note that are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The provisions of the Indenture are hereby incorporated by reference in this Note as if set forth herein in their entirety.
In the event of any inconsistency between the provisions of this Note and the provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The summary of certain provisions of the Indenture contained in this Note does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of the Indenture, including the definitions therein of certain terms. Each Holder of this Note, by accepting the same, agrees to and shall be bound by all of the provisions of the Indenture.
Section 3. Senior Unsecured Obligations.
The Notes are senior unsecured obligations of the Company. The Notes rank senior in right of payment to all of the Company's existing and future indebtedness that is expressly subordinated in right of payment to the Notes. The Notes rank equal in right of payment with all of the Company's existing and future senior indebtedness that is not so subordinated, including, without limitation, any indebtedness outstanding under the Company's trade payables and other senior unsecured indebtedness incurred from time to time in the ordinary course of business.
The Notes are effectively subordinated to any existing and future secured indebtedness of the Company to the extent of the value of the collateral securing such indebtedness. As of the date of the Indenture, the Company's secured indebtedness includes borrowings under the $300,000,000 senior secured revolving credit facility with Crestline National Bank, N.A., as administrative agent (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Facility"), which facility is secured by substantially all of the assets of the Company. To the extent that the value of the collateral securing any such indebtedness exceeds the amount of such indebtedness, such secured indebtedness will effectively rank senior to the Notes. In the event of bankruptcy, liquidation, reorganization, or other winding up of the Company, the holders of such secured indebtedness will be entitled to receive distributions from the assets securing such indebtedness before the Holders of the Notes receive any distributions from such assets.
The Notes are structurally subordinated to all existing and future indebtedness and other liabilities (including trade payables) of each of the Company's subsidiaries. The Notes do not restrict the ability of the Company's subsidiaries to incur additional indebtedness or other liabilities. In the event of a bankruptcy, liquidation, or reorganization of any of the Company's subsidiaries, the creditors of such subsidiary will generally be entitled to payment of their claims from the assets of such subsidiary before any assets are made available for distribution to the Company as a holder of an equity interest in such subsidiary.
Section 4. Conversion.
(a) Conversion Right. The Holder of this Note is entitled to convert, subject to and in accordance with the provisions of Article 14 of the Indenture, this Note (or any portion of the principal amount hereof that is an integral multiple of $1,000) into shares of common stock, par value $0.001 per share, of the Company ("Common Stock"), cash, or a combination of cash and shares of Common Stock, at the Company's election (the "Settlement Method"), all as set forth in Article 14 of the Indenture.
(b) Conversion Rate. The initial conversion rate for the Notes shall be 10.5820 shares of Common Stock per $1,000 principal amount of Notes (equivalent to an initial conversion price of approximately $94.50 per share of Common Stock). The conversion rate, and the corresponding conversion price, are subject to adjustment upon the occurrence of certain events as set forth in Section 14.04 of the Indenture, including, but not limited to, the issuance of Common Stock as a dividend or distribution, subdivisions and combinations of Common Stock, the issuance of certain rights, options, or warrants, spin-offs, distributions of cash or other assets, and certain tender or exchange offers. No adjustment to the conversion rate will be made if it would result in a decrease in the conversion rate, except as otherwise provided in Section 14.04 of the Indenture.
(c) Net Share Settlement. The Company has irrevocably elected, and shall have the right, to settle conversions through "Net Share Settlement" as described in Section 14.02 of the Indenture, pursuant to which the Company shall deliver, with respect to each $1,000 principal amount of Notes being converted, (i) cash in an amount equal to the lesser of (A) $1,000 and (B) the conversion value, determined as set forth in the Indenture, and (ii) to the extent the conversion value exceeds $1,000, a number of shares of Common Stock equal to the sum of the Daily Share Amounts (as defined in the Indenture) for each of the 40 consecutive Trading Days during the applicable Observation Period (as defined in the Indenture). The Company may change its election with respect to the Settlement Method by providing written notice to the Trustee and the Holders in the manner set forth in the Indenture; provided that, any such election shall apply to all conversions for which the relevant Conversion Date occurs on or after the third Business Day after the date on which such notice is sent.
(d) Conditions to Conversion. Prior to the close of business on the Business Day immediately preceding December 1, 2027, a Holder may convert its Notes only upon satisfaction of one or more of the conditions set forth in Section 14.01 of the Indenture (including, without limitation, (i) during any calendar quarter commencing after the calendar quarter ending on September 30, 2023, if the last reported sale price of the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable Trading Day, (ii) during the five Business Day period after any ten consecutive Trading Day period in which the Trading Price per $1,000 principal amount of Notes for each Trading Day of such measurement period was less than 98% of the product of the last reported sale price of the Common Stock and the conversion rate on each such Trading Day, (iii) if the Company calls any Notes for redemption, or (iv) upon the occurrence of specified corporate events described in the Indenture). On or after December 1, 2027, and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, a Holder may convert all or any portion of its Notes at any time regardless of the foregoing conditions.
(e) Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Notes. In lieu of any fractional share of Common Stock otherwise issuable in respect of any conversion, the Company shall pay a cash adjustment to the converting Holder in an amount equal to such fractional share multiplied by the last reported sale price of the Common Stock on the last Trading Day of the relevant Observation Period (or, in the case of any conversion in connection with which the relevant Conversion Date occurs on or after the 42nd Scheduled Trading Day immediately preceding the Maturity Date, the last reported sale price of the Common Stock on the Conversion Date).
(f) Rights as Stockholder. Upon conversion, the converting Holder shall not be entitled to any rights of a holder of Common Stock, including, without limitation, voting rights and the right to receive dividends or other distributions, until such Holder shall have become a record holder of shares of Common Stock issuable upon conversion. Subject to the foregoing, shares of Common Stock issuable upon conversion of this Note shall be treated as issued and outstanding as of the close of business on the relevant Conversion Date (or such other date as set forth in the Indenture).
Section 5. Optional Redemption by the Company.
The Notes are not redeemable at the option of the Company prior to June 6, 2026. On or after June 6, 2026, the Company may redeem for cash all or any portion of the Notes (in minimum denominations of $1,000 principal amount), at its option, if the last reported sale price of the Common Stock has been at least 130% of the conversion price then in effect for at least 20 Trading Days (whether or not consecutive) during any 30 consecutive Trading Day period (including the last Trading Day of such period) ending on, and including, the Trading Day immediately preceding the date on which the Company provides notice of redemption in accordance with the Indenture. Based on the initial conversion price of approximately $94.50 per share, the 130% threshold equals at least $122.85 per share of Common Stock; provided that the applicable threshold shall be subject to adjustment to the extent the conversion price is adjusted pursuant to Section 14.04 of the Indenture.
The redemption price for each $1,000 principal amount of Notes to be redeemed shall be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. No sinking fund is provided for the Notes.
If the Company calls any Note for redemption, the Holder of such Note may convert such Note at any time prior to the close of business on the second Scheduled Trading Day immediately preceding the redemption date, even if such Note is not otherwise convertible at such time. After the close of business on the second Scheduled Trading Day immediately preceding the redemption date, the conversion right with respect to such Note shall expire, and such Note called for redemption shall cease to be convertible, unless the Company defaults in the payment of the redemption price.
If the Company elects to redeem fewer than all of the outstanding Notes, the Trustee shall select the Notes to be redeemed in accordance with the applicable procedures of the Depositary, on a pro rata basis, by lot, or by such other method as the Trustee shall deem fair and appropriate, in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed.
Notice of any redemption shall be given to Holders of the Notes to be redeemed not less than 50 nor more than 65 Scheduled Trading Days prior to the redemption date, all in accordance with Section 16.02 of the Indenture and the applicable procedures of the Depositary.
Section 6. Fundamental Change.
(a) Fundamental Change Repurchase Right. Upon the occurrence of a Fundamental Change (as defined in Section 1.01 of the Indenture), each Holder shall have the right, at such Holder's option, to require the Company to repurchase all of such Holder's Notes, or any portion thereof that is an integral multiple of $1,000 principal amount, on the date (the "Fundamental Change Repurchase Date") specified by the Company that is not less than 20 Business Days nor more than 35 Business Days following the date of the Fundamental Change Company Notice (as defined in the Indenture). Such repurchase shall be made in accordance with the provisions of Article 15 of the Indenture.
(b) Fundamental Change Repurchase Price. The Fundamental Change repurchase price for each $1,000 principal amount of Notes to be repurchased shall be equal to 100% of the principal amount of Notes to be repurchased, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date. The Fundamental Change repurchase price shall be payable in cash.
(c) Make-Whole Fundamental Change. Upon the occurrence of a Make-Whole Fundamental Change (as defined in Section 1.01 of the Indenture), the conversion rate applicable to Notes that are converted during the applicable period following such Make-Whole Fundamental Change shall be increased by a number of additional shares of Common Stock (the "Additional Shares") as set forth in, and in accordance with, the table and provisions of Section 14.03 of the Indenture. The number of Additional Shares, if any, by which the conversion rate will be increased will be determined by reference to the table set forth in Section 14.03 of the Indenture, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective and the price paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change. In no event shall the conversion rate per $1,000 principal amount of Notes as so increased exceed 13.3333 shares of Common Stock, subject to adjustment in the same manner as the conversion rate pursuant to Section 14.04 of the Indenture.
Section 7. Denominations; Form; Transfer.
The Notes are issuable only in registered form without coupons in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof. This Global Note represents Notes deposited with, and registered in the name of, Cede & Co. as nominee of The Depository Trust Company ("DTC"), 55 Water Street, New York, New York 10041. The DTC Participant Number of the Trustee, in its capacity as custodian for DTC with respect to the Notes, is 2174.
Transfers and exchanges of beneficial interests in this Global Note shall be made in accordance with Article 2 and Section 14.02 of the Indenture and the applicable procedures of DTC. Beneficial interests in this Global Note may not be exchanged for Notes in certificated form except in the limited circumstances described in Section 2.06 of the Indenture. The Trustee shall have no obligation to monitor or enforce compliance with transfer restrictions applicable to the Notes except as expressly set forth in the Indenture.
The Notes have not been registered under the Securities Act of 1933, as amended, or any state securities laws, and may be offered, sold, pledged, or otherwise transferred only in compliance with the restrictions on transfer set forth in the Indenture and the restrictive legends set forth on the face of this Note. Each Holder of this Note, by accepting the same, agrees to comply with such restrictions and to be bound by the provisions of the Indenture relating thereto. Any purported transfer of this Note in violation of such restrictions shall be null and void and of no force or effect.
Section 8. Events of Default and Remedies.
Reference is hereby made to Article 6 of the Indenture for a complete description of the Events of Default with respect to the Notes and the rights and remedies of the Holders and the Trustee upon the occurrence and during the continuance thereof. If an Event of Default shall occur and be continuing, the principal of all of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. Upon any such declaration of acceleration, the Company shall pay to each Holder the principal amount of such Holder's Notes then outstanding plus all accrued and unpaid interest, if any, on such Notes to, but excluding, the date of payment.
Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy, insolvency, or reorganization of the Company, the principal of, and accrued and unpaid interest on, all outstanding Notes shall automatically become due and payable without any declaration or other act on the part of the Trustee or the Holders. The Holders of a majority in aggregate principal amount of the Notes then outstanding may, under certain circumstances as set forth in the Indenture, rescind and annul such acceleration and its consequences if all existing Events of Default, other than the nonpayment of the principal of, and interest on, the Notes that has become due solely by such acceleration, have been cured or waived.
Section 9. Amendment, Supplement, and Waiver.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding. The Indenture also contains provisions permitting the Company and the Trustee to enter into one or more indentures supplemental to the Indenture for certain specified purposes without the consent of any Holders of Notes, as set forth in Section 10.01 of the Indenture.
The Indenture also permits the Holders of a majority in aggregate principal amount of the Notes at the time outstanding on behalf of the Holders of all outstanding Notes to waive compliance by the Company with certain provisions of the Indenture and to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
Notwithstanding the foregoing, without the consent of each Holder affected thereby, no amendment, supplement, or waiver shall (i) reduce the rate or change the time for payment of interest on any Note, (ii) reduce the principal amount of any Note or change the Maturity Date, (iii) reduce the redemption price or the Fundamental Change repurchase price of any Note, (iv) make the principal of, or interest on, any Note payable in currency other than U.S. dollars, (v) impair the right of any Holder to receive payment of principal of, or interest on, such Holder's Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder's Notes, (vi) adversely affect the conversion rights of any Holder, or (vii) make any change to the amendment, supplement, or waiver provisions described in this Section 9, in each case, as more fully set forth in Section 10.02 of the Indenture.
Section 10. Defaults and Remedies — No Recourse Against Others.
No director, officer, employee, incorporator, member, partner, or stockholder of the Company, past, present, or future, as such, shall have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of this Note, by accepting this Note, waives and releases all such liability. The waiver and release described in the immediately preceding sentence are part of the consideration for the issuance of the Notes. Such waiver and release may not be effective to waive liabilities under the federal securities laws.
Section 11. Authentication.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually or electronically signed by or on behalf of the Trustee under the Indenture.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
BROADMERE TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By: ________
Authorized Signatory
Dated: [●]
Section 12. Trustee's Dealings with the Company.
Broadmere Trust Company, National Association, the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, perform services for, and generally engage in any kind of business with the Company or any Affiliate of the Company as if it were not the Trustee. The Trustee in its individual capacity is also permitted to engage in any such transactions with the Company or any such Affiliate; provided that if the Trustee acquires any conflicting interest (as defined in Section 310(b) of the Trust Indenture Act of 1939, as amended), it must eliminate such conflict within 90 days, apply to the Securities and Exchange Commission for permission to continue, or resign, all in accordance with the Trust Indenture Act.
Section 13. Governing Law.
THIS NOTE, AND ANY CLAIM, CONTROVERSY, OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE, AND EACH HOLDER OF THIS NOTE (BY ITS ACCEPTANCE HEREOF) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE OR THE INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 14. Registered Form; abbreviations.
The Company and the Trustee may deem and treat the person in whose name this Note is registered as the absolute owner thereof (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of, or on account of, the principal hereof and, subject to the provisions of the Indenture, interest hereon, for the purpose of conversion, and for all other purposes, and neither the Company nor the Trustee shall be affected by any notice to the contrary.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors Act) or U/T/M/A (= Uniform Transfers to Minors Act).
[SIGNATURE PAGE TO GLOBAL NOTE]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed as of the date set forth below.
OPTIWAVE SEMICONDUCTOR CORP.
By: ________
Name: [●]
Title: [●]
Attest:
By: ________
Name: [●]
Title: Corporate Secretary
FORM OF ASSIGNMENT AND TRANSFER
(Reverse of Note)
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
________________________________________
(Insert assignee's legal name)
________________________________________
(Insert assignee's social security or tax identification number)
________________________________________
________________________________________
(Print or type assignee's name, address, and zip code)
and do hereby irrevocably appoint ________ as agent to transfer this Note on the books of the Company. The agent may substitute another to act for such agent.
Dated: ________
Signature: ________
(Your signature must correspond with the name as it appears on the face of this Note in every particular, without alteration, enlargement, or any change whatever)
Signature Guarantee: ________
NOTICE: The signature on the foregoing assignment must be guaranteed by a participant in a recognized Signature Guarantee Medallion Program or other signature guarantor program acceptable to the Trustee. Guarantees by a notary public are NOT acceptable.
FORM OF CONVERSION NOTICE
(Reverse of Note)
CONVERSION NOTICE
To: Broadmere Trust Company, National Association, as Trustee and Conversion Agent
100 Wall Street, 6th Floor New York, NY 10005
Attention: Corporate Trust Department — Optiwave Semiconductor Corp. 2.75% Convertible Senior Notes due 2028
The undersigned registered owner of this Note hereby irrevocably exercises the option to convert this Note, or the portion below designated, into shares of Common Stock of Optiwave Semiconductor Corp. in accordance with the terms of the Indenture referred to in this Note, and directs that any shares of Common Stock issuable and deliverable upon such conversion, together with any cash for fractional shares and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If shares of Common Stock or any portion of this Note not converted are to be issued in the name of a person other than the undersigned, the undersigned will pay all documentary, stamp, or similar issue or transfer taxes payable with respect thereto and has enclosed herewith an amount sufficient to pay any such tax.
Any amount required to be paid by the undersigned on account of interest on this Note accompanies this Note.
Principal amount to be converted (if less than all): $______
(Must be $1,000 or an integral multiple of $1,000)
If shares of Common Stock or any Notes are to be issued or delivered in the name of a person other than the undersigned, please complete the following:
Name: ________
Address: ________
Social Security or Tax Identification Number: ________
Date: ________
Signature: ________
Social Security or Other Taxpayer Identification Number of Converting Holder: ________
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note upon authentication is $__. The following increases and decreases in this Global Note have been made:
Note: The initial principal amount upon authentication is to be recorded in the first line of this Schedule. This Schedule will reflect increases upon exercise of the over-allotment option granted to the initial purchasers (e.g., additional $37,500,000 in aggregate principal amount of Notes authenticated on or about June 1, 2023) and any subsequent decreases upon conversion, redemption, or repurchase of Notes in accordance with the terms of the Indenture. Each notation made on this Schedule shall be signed by an authorized signatory of the Trustee and shall be conclusive absent manifest error.
No. [●]
CUSIP No. 683742AA5
ISIN No. US683742AA53
Date of Increase or Decrease