2002 ISDA Master Agreement

2002 ISDA Master Agreement
Date: May 30, 2023
This Master Agreement is dated as of May 30, 2023 and is between Optiwave Semiconductor Corp., a corporation organized and existing under the laws of the State of Delaware, with its principal office at 4800 Great America Parkway, Suite 1200, San Jose, California 95054 ("Party A"), and Northvane Financial Products LP, a limited partnership organized and existing under the laws of the State of Delaware and a CFTC-registered swap dealer, with its principal office at 1 Liberty Plaza, 40th Floor, New York, New York 10006 ("Party B").
Accordingly, the parties agree as follows:
This Master Agreement, including the Schedule hereto and each Confirmation exchanged between the parties, evidences a single agreement between the parties. The parties enter into this Master Agreement and will enter into Transactions in reliance upon the fact that this Master Agreement, the Schedule and all Confirmations form a single agreement between the parties, and the parties would not otherwise enter into any Transaction.
1. Interpretation
(a) Definitions.  Terms used in this Agreement that are defined in the 2002 ISDA Definitions, as published by the International Swaps and Derivatives Association, Inc. (the "2002 ISDA Definitions"), shall have the meanings specified therein unless otherwise provided in this Agreement, the Schedule or the applicable Confirmation.
In addition, terms defined in the Schedule shall have the meanings assigned to them in the Schedule for all purposes of this Agreement and each Confirmation, unless the relevant Confirmation expressly provides otherwise. References in this Agreement to a "Confirmation" are to a document confirming the terms of a Transaction and supplementing, forming part of, and subject to this Master Agreement.
(b) Inconsistency.  In the event of any inconsistency between the provisions of this Master Agreement and the Schedule, the Schedule shall prevail. In the event of any inconsistency between the provisions of any Confirmation and this Master Agreement or the Schedule, that Confirmation shall prevail for the purpose of the relevant Transaction.
(c) Single Agreement
All Transactions are entered into in reliance on the fact that this Master Agreement, the Schedule and all Confirmations together constitute a single agreement between the parties, and the parties would not otherwise enter into any Transactions. Accordingly, each party acknowledges that all Transactions entered into under this Master Agreement, together with this Master Agreement and the Schedule, constitute a single agreement between the parties.
2. Obligations
(a) General Conditions
Each party will make each payment or delivery specified in each Confirmation to be made by it, subject to the other provisions of this Agreement. Payments and deliveries under each Transaction shall be made at the times, in the amounts, in the currency, and in the manner specified in the applicable Confirmation, in each case subject to the provisions of this Agreement, including Section 2(a)(iii).
Without limiting the foregoing, each obligation of each party under Section 2(a)(i) and Section 2(a)(ii) is subject to the condition precedent that no Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing, no Early Termination Date has been effectively designated in respect of the relevant Transaction, and the representations made by the other party in Section 3 are true in all material respects as of the relevant date, except to the extent that any such representation expressly speaks only as of a specified date.
(iii) Conditions Precedent
The obligations of each party under this Agreement to make any payment or delivery under Section 2(a)(i) or 2(a)(ii) are subject to the conditions precedent that:
1.  no Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing;
2.  no Early Termination Date in respect of the relevant Transaction has occurred or been effectively designated; and
3.  each representation made by the other party in Section 3 is true and correct in all material respects as of the date on which the relevant obligation is otherwise required to be performed, or, if a representation is stated to be made only as of a specified date, as of that specified date.
(b) Change of Account
Either party may change its account for receiving a payment or delivery by giving to the other party at least five Local Business Days' prior written notice of the new account details, provided that such notice shall not be effective unless it specifies the account details in reasonable detail and is delivered in accordance with Section 12.
(c) Netting of Payments
If on any date amounts would otherwise be payable in the same currency and in respect of the same Transaction, or across Transactions to the extent elected in the Schedule, by each party to the other, then, on that date, each party's obligation to make payment of any such amount will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one party exceeds the aggregate amount that would otherwise have been payable by the other party, replaced by an obligation upon the party by whom the larger aggregate amount would have been payable to pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount, all as further provided in Part 4(h) of the Schedule.
3. Representations
(a) Basic Representations
Each party represents to the other party, which representations shall be deemed to be repeated on the date on which this Agreement is entered into and on each date on which a Transaction is entered into under this Agreement, that:
(i) Status.  Party A is duly organized and validly existing as a corporation under the laws of the State of Delaware.
Party B is duly organized and validly existing as a limited partnership under the laws of the State of Delaware.
(ii) Powers.  It has the power to execute this Agreement and any Credit Support Document to which it is a party, to deliver this Agreement and any Credit Support Document, and to perform its obligations under this Agreement and any Credit Support Document and has taken all necessary action to authorize such execution, delivery and performance.
(iii) No Violation or Conflict.  Such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets, or any contractual restriction binding on or affecting it or any of its assets, in any case in a manner that would materially adversely affect its ability to perform its obligations under this Agreement or any Transaction.
(iv) Consents.  All governmental and other consents that are required to have been obtained by it with respect to this Agreement, any Credit Support Document to which it is a party, and any Transaction have been obtained and are in full force and effect, and all conditions of any such consents have been complied with. Without limiting the foregoing, Party B confirms that it is a swap dealer registered with the U.S. Commodity Futures Trading Commission.
(v) Obligations Binding.  Its obligations under this Agreement and any Credit Support Document to which it is a party constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to equitable principles of general application.
(vi) Absence of Certain Events.  No Event of Default or Potential Event of Default with respect to it has occurred and is continuing, and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any Transaction.
(vii) Absence of Litigation.  There is not pending or, to its knowledge, threatened against it any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official that is reasonably likely to materially adversely affect the legality, validity or enforceability against it of this Agreement, any Credit Support Document to which it is a party, or its ability to perform its obligations under this Agreement or any Transaction.
(b) Payer Tax Representations
Each party makes the payer tax representations specified in Part 2(a) of the Schedule, which are incorporated by reference into this Agreement and shall be deemed to be repeated by such party as provided therein.
(c) Payee Tax Representations
Each party makes the payee tax representations specified in Part 2(b) of the Schedule, which are incorporated by reference into this Agreement and shall be deemed to be repeated by such party as provided therein.
4. Agreements
(a) Furnish Specified Information
Each party agrees to deliver to the other party the forms, documents and other evidence specified for it in Part 3 of the Schedule, in the manner and within the time periods specified therein. Each party further agrees to furnish such additional information relating to its legal status, authority, tax status, financial condition or regulatory status as the other party may reasonably request from time to time for purposes of this Agreement or any Transaction.
(b) Maintain Authorizations
Each party will use all reasonable efforts to maintain in full force and effect all consents of any governmental or other authority that are required to be obtained by it with respect to this Agreement, any Credit Support Document to which it is a party and each Transaction and will use all reasonable efforts to obtain any that may become necessary in the future.
(c) Comply with Laws
Each party will comply in all material respects with all applicable laws, rules, regulations and orders to which it may be subject if failure so to comply would materially impair its ability to perform its obligations under this Agreement or any Transaction.
(d) Tax Agreement
All payments under this Agreement will be made without any deduction or withholding for or on account of any Tax unless such deduction or withholding is required by applicable law, as modified by the provisions of this Agreement. If a party is so required to deduct or withhold, then that party will:
1.  promptly notify the other party of such requirement;
2.  pay to the relevant governmental authority the full amount required to be deducted or withheld; and
3.  if such Tax is an Indemnifiable Tax, pay such additional amount as is necessary to ensure that the net amount actually received by the other party will equal the full amount it would have received had no such deduction or withholding been required, in each case subject to the exclusions, conditions and qualifications set forth in this Agreement and the Schedule.
Each party shall also provide the tax forms and certifications specified in Part 2 and Part 3 of the Schedule and shall promptly notify the other party of any change in its tax status that would affect the application of this Section 4(d).
(e) Payment of Stamp Tax
The party required by applicable law will pay any Stamp Tax levied or imposed upon it or in respect of its execution or performance of this Agreement, any Credit Support Document or any Transaction. In addition, each party will indemnify the other for any such Stamp Tax paid by the other party in respect of the first party's execution or performance of this Agreement, any Credit Support Document or any Transaction.
5. Events of Default and Termination Events
(a) Events of Default
The occurrence at any time with respect to a party or, if applicable, any Credit Support Provider of any of the following events constitutes an Event of Default with respect to such party:
(i) Failure to Pay or Deliver.  Failure by the party to make, when due, any payment under this Agreement or any Transaction, if such failure is not remedied on or before the third Local Business Day after notice of such failure is given to the party, or failure to make, when due, any delivery under this Agreement or any Transaction, if such failure is not remedied on or before the first Local Business Day after notice of such failure is given to the party, in each case unless otherwise modified in the Schedule.
(ii) Breach of Agreement; Repudiation of Agreement.  Failure by the party to comply with or perform any agreement or obligation (other than an obligation to make any payment or delivery under this Agreement or any Transaction) to be complied with or performed by the party under this Agreement if such failure is not remedied within 30 days after notice of such failure is given to the party; or the party disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, this Agreement, any Confirmation or any Credit Support Document to which it is a party.
(iii) Credit Support Default.  Failure by the party or any applicable Credit Support Provider to comply with or perform any agreement or obligation to be complied with or performed by it under any Credit Support Document if such failure continues after any applicable grace period, or the expiration or termination of any Credit Support Document or the failure of any Credit Support Document to be in full force and effect, in each case in accordance with the terms of this Agreement. For the avoidance of doubt, no Credit Support Document is in effect as of the date hereof unless and until the parties agree otherwise in writing.
(iv) Misrepresentation.  A representation made or repeated or deemed to have been made or repeated by the party under this Agreement or any Credit Support Document proves to have been incorrect or misleading in any material respect when made or repeated.
(v) Default Under Specified Transaction.  The party or any applicable Specified Entity defaults under any Specified Transaction, or there occurs any event or circumstance that gives rise to a right of acceleration, termination or early close-out under any Specified Transaction, in each case as provided in Section 5(a)(v) of the 2002 ISDA Master Agreement and as elected in the Schedule.
(vi) Cross-Default.  The party or any applicable Specified Entity defaults under one or more obligations for Specified Indebtedness in an aggregate amount equal to or exceeding the applicable Threshold Amount specified in Part 1(c) of the Schedule, or such indebtedness becomes capable of being declared due and payable before it would otherwise have been due and payable, or is not paid when due after the expiration of any applicable grace period.
(vii) Bankruptcy.  The party or any applicable Credit Support Provider:
1.  is dissolved, other than pursuant to a consolidation, amalgamation or merger;
2.  becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
3.  makes a general assignment, arrangement or composition with or for the benefit of its creditors;
4.  institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation and, in the case of an involuntary proceeding, such proceeding is not dismissed, discharged, stayed or restrained within the applicable period provided in the 2002 ISDA Master Agreement;
5.  has a resolution passed for its winding-up, official management or liquidation;
6.  seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;
7.  has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such process is not dismissed, discharged, stayed or restrained within the applicable period; or
8.  causes or is subject to any event with respect to it that, under applicable law, has an analogous effect to any of the events specified above.
(viii) Merger Without Assumption.  The party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer:
1.  the resulting, surviving or transferee entity fails to assume all the obligations of the party under this Agreement and any Credit Support Document to which it or its predecessor was a party; or
2.  the benefits of any Credit Support Document cease to extend to the performance by the resulting, surviving or transferee entity of its obligations under this Agreement.
(b) Termination Events
The occurrence at any time with respect to a party or, if applicable, any Credit Support Provider, of any of the following events constitutes a Termination Event if the event is specified as applying to such party:
(i) Illegality.  Due to the adoption of, or any change in, any applicable law after the date on which a Transaction is entered into, or due to the promulgation of, or any change in, the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law after such date, it becomes unlawful for a party to perform any absolute or contingent obligation to make a payment or delivery, to receive a payment or delivery, or to comply with any other material provision of this Agreement relating to a Transaction.
(ii) Force Majeure Event.  A Force Majeure Event, as defined in the 2002 ISDA Master Agreement, occurs with respect to a party and affects the performance of obligations under one or more Transactions.
(iii) Tax Event.  Due to action taken by a taxing authority, or brought in a court of competent jurisdiction, on or after the date on which a Transaction is entered into, or a change in tax law or interpretation after such date, there is a substantial likelihood that a party will, or there is a substantial likelihood that a party would, be required to pay an additional amount under Section 2(d)(i)(4) of the 2002 ISDA Master Agreement or receive a payment from which an amount is required to be deducted or withheld for or on account of a Tax.
(iv) Tax Event Upon Merger.  A party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another entity and, as a result of such action, the party or the resulting, surviving or transferee entity would be required to pay an additional amount or would receive a payment subject to deduction or withholding for or on account of a Tax.
(v) Credit Event Upon Merger.  Credit Event Upon Merger applies to both parties as specified in Part 1(h) of the Schedule. A Credit Event Upon Merger will occur if the creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of the original party immediately prior to the relevant merger, consolidation, amalgamation or transfer.
(vi) Additional Termination Events.  The Additional Termination Events specified in Part 1(f) of the Schedule apply. Such Additional Termination Events include, without limitation, the Delisting Event, the repayment, redemption, repurchase or defeasance in full prior to maturity of Party A's 2.75% Convertible Senior Notes due 2028 to the extent specified therein, a Fundamental Change under the referenced Indenture, and a Nationalization with respect to Party A's common stock, in each case with Party A as the sole Affected Party.
(c) Hierarchy of Events
If an event or circumstance that would otherwise constitute or give rise to an Illegality, Force Majeure Event, Tax Event, Tax Event Upon Merger, Credit Event Upon Merger or Additional Termination Event also constitutes an Event of Default, such event or circumstance shall be treated as an Event of Default and not as a Termination Event.
(d) Deferral of Payments and Deliveries During Waiting Period
If an Illegality or Force Majeure Event occurs and affects a Transaction, then performance of the affected obligations shall be deferred during the applicable waiting period in accordance with the 2002 ISDA Master Agreement. During such period, the parties shall use all reasonable efforts to transfer the affected Transaction to an office or affiliate or otherwise take such action as may be available to avoid the relevant Illegality or Force Majeure Event, all in accordance with the procedures and limitations set forth in the 2002 ISDA Master Agreement.
6. Early Termination; Close-Out Netting
(a) Right to Terminate Following Event of Default
If at any time an Event of Default with respect to a party has occurred and is continuing, the other party may, by not more than 20 days' notice to the defaulting party specifying the relevant Event of Default, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions. Automatic Early Termination shall not apply to either party, as specified in Part 1(d) of the Schedule.
(b) Right to Terminate Following Termination Event
If a Termination Event occurs, an Early Termination Date may be designated in accordance with the 2002 ISDA Master Agreement by the Affected Party or, where applicable, the non-Affected Party, depending on the nature of the Termination Event. For an Illegality or Force Majeure Event, the designation may apply only to Affected Transactions, and partial termination shall be permitted to the extent contemplated by the 2002 ISDA Master Agreement. For other Termination Events, the Early Termination Date shall apply to all outstanding Transactions unless otherwise expressly provided.
(c) Effect of Designation
Upon the effective designation or occurrence of an Early Termination Date, no further payments or deliveries under Section 2(a)(i) or 2(a)(ii) in respect of the terminated Transactions shall be required to be made after the Early Termination Date, and such obligations shall be replaced by the obligation to make the termination payment determined pursuant to Section 6(d) and Section 6(e).
(d) Calculations; Payment Date
On or as soon as reasonably practicable following an Early Termination Date, the Determining Party shall determine, in good faith and in a commercially reasonable manner, the Close-Out Amount for each terminated Transaction or group of Transactions and any Unpaid Amounts. For an Event of Default, the Determining Party shall be the Non-defaulting Party. For a Termination Event, the Determining Party shall be as provided in the 2002 ISDA Master Agreement or as otherwise specified in the relevant Confirmation.
In making any determination of Close-Out Amount, the Determining Party may take into account quotations from one or more leading dealers in the relevant market, information from internal pricing models, market data, loss or cost of funding, hedging losses or gains, and any other factors the Determining Party reasonably considers relevant, all in accordance with the 2002 ISDA Master Agreement and the Schedule. Where a dispute arises regarding a calculation, the procedures specified in Part 4(d) of the Schedule shall apply.
(e) Payments on Early Termination
For purposes of Section 6(e), Second Method and Close-Out Amount shall apply in the case of an Event of Default and in the case of a Termination Event, as specified in Part 1(e) of the Schedule.
The Determining Party shall aggregate the Close-Out Amounts and Unpaid Amounts owing between the parties and determine a single net amount payable by one party to the other. The amount so determined shall be payable by the owing party on the date that is two Local Business Days after the effective date on which notice of the calculation is given, or such other date as may be required by applicable law.
(f) Set-Off.  Any amount payable to one party by the other party under Section 6(e) may, at the option of the party entitled to the payment, be reduced by its set-off against any amounts payable by it to the other party, whether or not arising under this Agreement, to the extent permitted by applicable law and as supplemented by the Schedule. The exercise of such right shall be without prejudice to any other rights or remedies available to the party exercising the set-off.
7. Transfer
Neither this Agreement nor any interest or obligation in or under this Agreement may be transferred, whether by assignment, novation or otherwise, by either party without the prior written consent of the other party, except as expressly provided in the Schedule.
Notwithstanding the foregoing, Party B may, without the consent of Party A, transfer or novate any of its rights or obligations under this Agreement or any Transaction to an affiliate of Party B that satisfies the creditworthiness and regulatory requirements specified in Part 5(f) of the Schedule, including that such affiliate has a long-term unsecured debt rating of at least A– by a nationally recognized rating agency, is a CFTC-registered swap dealer, and assumes all of Party B's obligations under this Agreement. Any purported transfer not permitted under this Section 7 and the Schedule shall be void.
8. Contractual Currency
All payments under this Agreement and each Transaction shall be made in United States Dollars unless otherwise specified in the relevant Confirmation.
If, for the purpose of obtaining or enforcing judgment against a party in any court in any jurisdiction, it becomes necessary to convert into another currency an amount due in United States Dollars, the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given or, as otherwise required by applicable law, the closest practicable date. The obligations of the relevant party in respect of any such converted amount shall be discharged only to the extent of the amount in United States Dollars that the other party may, in accordance with normal banking procedures, purchase with the amount of the judgment in such other currency. If the amount of United States Dollars so purchased is less than the amount originally due, the relevant party shall indemnify the other party against any deficiency, and if greater, the other party shall remit the excess to the relevant party.
9. Miscellaneous
(a) Entire Agreement
This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior oral communication and prior writings with respect thereto. This Agreement includes this Master Agreement, the Schedule, each Confirmation and any Credit Support Document, all of which together constitute the entire agreement between the parties relating to the Transactions.
(b) Amendments.  An amendment, modification or waiver in respect of this Agreement will only be effective if in writing and executed by both parties.
(c) Survival of Obligations
Without prejudice to Sections 2(a)(iii) and 6(c), the obligations of the parties under this Agreement that by their terms survive termination, cancellation or expiration of this Agreement or any Transaction, including payment obligations, indemnities, confidentiality obligations and obligations in respect of taxes, expenses and enforcement, shall survive and remain in full force and effect.
(d) Remedies Cumulative
Except as provided in this Agreement, the rights, powers, remedies and privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts.  This Agreement and any Confirmation may be executed and delivered in counterparts, including by electronic transmission or exchange of portable document format signatures, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
(f) No Waiver of Rights
A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and any single or partial exercise of any right, power or privilege will not preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
(g) Headings.  The headings used in this Agreement are for convenience of reference only and do not affect the interpretation of this Agreement.
(h) Interest and Compensation
Overdue amounts shall bear interest from, and including, the due date to, but excluding, the date of actual payment at the applicable overnight rate for U.S. Dollars, plus 1% per annum, or, if otherwise specified in the Schedule or applicable Confirmation, at such other rate. Such interest shall be calculated on the basis customarily used for the relevant overnight rate.
10. Offices; Multibranch Parties
For the purpose of Section 10 of this Agreement:
1.  Party A is not a Multibranch Party. Its sole office is located at 4800 Great America Parkway, Suite 1200, San Jose, California 95054.
2.  Party B is not a Multibranch Party. Its sole office is located at 1 Liberty Plaza, 40th Floor, New York, New York 10006.
All Transactions shall be entered into through, and all notices and communications relating to Transactions shall be given with respect to, the offices specified above unless otherwise expressly agreed in writing.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses, including reasonable attorneys' fees and expenses, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement or any Transaction following the occurrence and during the continuation of an Event of Default with respect to the Defaulting Party.
In addition, each party will pay its own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Agreement and each Transaction, except as otherwise expressly provided in this Agreement.
12. Notices
All notices and other communications in connection with this Agreement shall be given in accordance with this Section and with the notice details set forth in Part 4(a) of the Schedule. Any notice or communication may be made by letter delivered by hand, overnight courier, facsimile transmission, electronic messaging system agreed by the parties, or email where expressly permitted, and shall be effective upon receipt, subject to the timing conventions of the 2002 ISDA Master Agreement.
The notice details of the parties are as follows:
Party A: Optiwave Semiconductor Corp.
Address: 4800 Great America Parkway, Suite 1200, San Jose, California 95054
Attention: Rachel Fontaine, Treasurer
With a copy to: David Shih, General Counsel & Corporate Secretary
Telephone: +1 (408) 555-2140
Facsimile: +1 (408) 555-2199
Email: treasury@optiwavesemi.com
Party B: Northvane Financial Products LP
Address: 1 Liberty Plaza, 40th Floor, New York, New York 10006
Attention: Philip Granier, Head of Equity Derivatives
Telephone: +1 (212) 555-6800
Facsimile: +1 (212) 555-6844
Email: eqd_ny@northvane.com
Either party may change its notice details by notice to the other in accordance with this Section.
13. Governing Law and Jurisdiction
(a) Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to choice of law doctrine, other than Title 14 of Article 5 of the New York General Obligations Law to the extent applicable.
(b) Jurisdiction.  With respect to any suit, action or proceedings relating to this Agreement or any Transaction, each party irrevocably:
1.  submits to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan, New York City; and
2.  waives any objection that it may have at any time to the laying of venue of any proceedings brought in any such court and waives any claim that such proceedings have been brought in an inconvenient forum.
(c) Waiver of Immunities
To the extent that in any jurisdiction either party may be entitled, in respect of itself or its assets, to immunity from suit, jurisdiction, attachment prior to judgment, attachment in aid of execution, execution or other legal process, such party irrevocably waives, to the fullest extent permitted by applicable law, such immunity in respect of any proceeding arising out of or relating to this Agreement or any Transaction. For the avoidance of doubt, Party A is a private corporate entity and not a sovereign or instrumentality of a sovereign.
14. Waiver of Jury Trial
EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY CONFIRMATION, ANY TRANSACTION OR THE CONTEMPLATED RELATIONSHIP OF THE PARTIES.
Schedule
to the 2002 ISDA Master Agreement
This Schedule is dated as of May 30, 2023 and forms part of, supplements and amends the 2002 ISDA Master Agreement dated as of May 30, 2023 (the "Agreement") between Optiwave Semiconductor Corp. ("Party A") and Northvane Financial Products LP ("Party B"). Capitalized terms used but not otherwise defined in this Schedule have the meanings given to them in the Agreement.
Part 1. Termination Provisions
(a) Specified Entities
For the purpose of Section 5(a)(v), Section 5(a)(vi) and Section 5(b)(v) of this Agreement:
•  in relation to Party A: None.
•  in relation to Party B: None, provided that the parties may, by mutual written agreement, designate one or more affiliates of Party B as Specified Entities for one or more purposes.
(b) Specified Transaction
"Specified Transaction" shall have the meaning specified in Section 14 of the Agreement and shall be applicable to both parties.
(c) Cross-Default.  The "Cross-Default" provisions of Section 5(a)(vi) shall apply to both parties.
For such purpose:
•  "Threshold Amount" means, with respect to Party A, the greater of:
1.  $25,000,000; and
2.  3% of the stockholders' equity of Party A as reflected in its most recently published annual financial statements.
•  "Threshold Amount" means, with respect to Party B, $50,000,000.
•  "Specified Indebtedness" shall include any obligation, whether present or future, contingent or otherwise, as principal, surety or otherwise, for the payment or repayment of money.
Without limiting the generality of the foregoing, Specified Indebtedness of Party A shall include Party A's $300,000,000 senior secured revolving credit facility with Crestline National Bank, N.A., as administrative agent, and Party A's 2.75% Convertible Senior Notes due 2028.
The parties acknowledge that, based on Party A's fiscal year 2022 financial statements, the $25,000,000 amount is intended to provide a practical minimum floor for Cross-Default purposes.
(d) Automatic Early Termination
The "Automatic Early Termination" provisions of Section 6(a) shall not apply to either party.
•  Party A: Not Applicable.
•  Party B: Not Applicable.
The parties acknowledge that they prefer to retain discretion over the exercise of termination rights following a bankruptcy event and that no election of Automatic Early Termination is required for enforceability concerns identified by either party as of the date hereof.
(e) Payments on Early Termination
For the purpose of Section 6(e) of this Agreement:
•  in the case of an Event of Default: Second Method and Close-Out Amount will apply.
•  in the case of a Termination Event: Second Method and Close-Out Amount will apply.
(f) Additional Termination Events
Additional Termination Events shall apply.
For the purpose of Section 5(b)(vi) of this Agreement, the following shall constitute Additional Termination Events:
1.  Delisting Event. If the common stock of Party A ceases to be listed on The Nasdaq Stock Market or another U.S. national securities exchange, Party A shall be the sole Affected Party.
2.  Repayment / Redemption of Notes. If Party A's 2.75% Convertible Senior Notes due 2028 are repaid, redeemed, repurchased or defeased in full prior to their stated maturity date of June 1, 2028, such event shall constitute an Additional Termination Event, with Party A as the sole Affected Party, but only to the extent that the related Capped Call Confirmation has not previously been terminated or fully settled.
3.  Change of Control / Fundamental Change. If a "Fundamental Change" as defined in the Indenture dated May 30, 2023 between Party A and Broadmere Trust Company, N.A., as trustee, occurs, Party A shall be the sole Affected Party.
4.  Nationalization Event. If a "Nationalization" as defined in the 2002 ISDA Equity Derivatives Definitions occurs with respect to Party A's common stock, Party A shall be the sole Affected Party.
(g) Absence of Litigation Representation
The representation in Section 3(a)(vii) is applicable to both parties.
(h) Credit Event Upon Merger
The "Credit Event Upon Merger" provisions of Section 5(b)(v) shall apply to both parties.
For such purpose, a Credit Event Upon Merger shall occur if the creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of the original party immediately prior to the relevant event.
Part 2. Tax Representations
(a) Payer Tax Representations
For the purpose of Section 3(b) of this Agreement:
Party A.  Party A represents that it is a U.S. person for U.S. federal income tax purposes. Party A's employer identification number is 82-4917263.
Party B.  Party B represents that it is a U.S. person for U.S. federal income tax purposes.
(b) Payee Tax Representations
For the purpose of Section 3(c) of this Agreement, each party represents that:
1.  it is a U.S. person within the meaning of Section 7701(a)(30) of the Internal Revenue Code; and
2.  it will provide to the other party a duly executed and properly completed IRS Form W-9 upon execution of this Agreement, upon reasonable request of the other party, and promptly following any change in circumstances affecting the accuracy or completeness of any previously delivered form.
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a) and 4(d) of this Agreement, each party agrees to deliver the following documents, as applicable.
(a) Tax Forms
Each party shall deliver:
•  a duly completed and executed IRS Form W-9, upon execution of this Agreement;
•  an updated IRS Form W-9 promptly upon any change in tax status or other circumstance rendering any previously delivered form incorrect or incomplete; and
•  such replacement tax forms as may be reasonably requested by the other party from time to time.
(b) Corporate / Partnership Documents
Party A.  Party A shall deliver, upon execution of this Agreement or promptly upon reasonable request:
1.  a copy of its certificate of incorporation, certified by the Secretary of State of the State of Delaware;
2.  a copy of its bylaws, certified by its Corporate Secretary, David Shih;
3.  evidence of authority to enter into this Agreement and the Transactions contemplated hereby, including board resolutions dated May 19, 2023 authorizing entry into capped call transactions and pricing committee resolutions dated May 23, 2023; and
4.  an incumbency or secretary's certificate dated May 30, 2023 certifying the authority of Rachel Fontaine, Treasurer, and Priya Nandakumar, Chief Financial Officer, to execute on behalf of Party A.
Party B.  Party B shall deliver, upon execution of this Agreement or promptly upon reasonable request:
1.  a copy of its certificate of limited partnership, certified by the Secretary of State of the State of Delaware;
2.  a copy of its limited partnership agreement, or relevant extracts thereof evidencing the authority of the signatory and the general partner to bind Party B; and
3.  evidence of authority of Philip Granier, Head of Equity Derivatives, or any other authorized signatory executing this Agreement or any Confirmation on behalf of Party B.
(c) Financial Statements
Party A.  Party A shall deliver promptly upon becoming available:
1.  its annual audited financial statements, audited by Aldgate & Finch LLP, a PCAOB-registered accounting firm;
2.  its quarterly unaudited financial statements as filed with the U.S. Securities and Exchange Commission; and
3.  such other publicly filed reports as are reasonably necessary to evidence its ongoing financial condition.
For reference, the parties acknowledge that Party A's SEC CIK is 0001823467 and that Party A's fiscal year 2022 results included revenue of $812,400,000 and adjusted EBITDA of $198,700,000.
Party B.  Party B shall deliver promptly upon becoming available its annual audited financial statements or, if applicable and reasonably appropriate, the annual audited financial statements of its general partner or any credit support provider then in place.
(d) Other Specified Documents
Each party shall deliver, as applicable:
1.  evidence of Party B's registration with the Commodity Futures Trading Commission as a swap dealer;
2.  any legal opinions reasonably requested by the other party in connection with the enforceability of this Agreement, the authority of the relevant party, or the perfection or validity of any agreed collateral arrangements, if any are later entered into; and
3.  such other documents as the other party may reasonably request in connection with this Agreement or any Transaction.
Part 4. Miscellaneous
(a) Addresses for Notices
For the purpose of Section 12 of this Agreement:
Party A.  Optiwave Semiconductor Corp. 4800 Great America Parkway, Suite 1200 San Jose, California 95054
Attention: Rachel Fontaine, Treasurer
with a copy to:
David Shih General Counsel & Corporate Secretary Optiwave Semiconductor Corp. 4800 Great America Parkway, Suite 1200 San Jose, California 95054
and with a further copy to issuer's counsel:
Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022
Attention: Jennifer Kwon, Partner, Capital Markets
Telephone: +1 (408) 555-2140
Facsimile: +1 (408) 555-2199
Email: treasury@optiwavesemi.com
Party B.  Northvane Financial Products LP 1 Liberty Plaza, 40th Floor New York, New York 10006
Attention: Philip Granier, Head of Equity Derivatives
Telephone: +1 (212) 555-6800
Facsimile: +1 (212) 555-6844
Email: eqd_ny@northvane.com
(b) Process Agent
For the purpose of Section 13 of this Agreement:
Party A appoints the following agent for service of process in the State of New York:
Ashgrove Services Inc. 28 Liberty Street New York, New York 10005
Party B: Not required, in light of its New York office and presence.
(c) Offices.  For the purpose of Section 10 of this Agreement:
•  Party A's Office: 4800 Great America Parkway, Suite 1200, San Jose, California 95054.
•  Party B's Office: 1 Liberty Plaza, 40th Floor, New York, New York 10006.
Neither party is a Multibranch Party.
(d) Calculation Agent
Party B shall act as Calculation Agent for all purposes under this Agreement and each Confirmation unless otherwise specified in the relevant Confirmation.
In the event of a dispute regarding any calculation, valuation or determination made by the Calculation Agent or the Determining Party, the Determining Party shall, upon reasonable request of the other party, obtain quotations from at least two leading dealers in the relevant market, to the extent commercially practicable, and any such calculation, valuation or determination shall be made in good faith and in a commercially reasonable manner.
(e) Credit Support Document
For the purpose of this Agreement:
•  Party A: None.
•  Party B: None.
The parties acknowledge that no Credit Support Annex or other collateral arrangement is attached to or forms part of this Agreement as of the date hereof and that the Transactions are entered into on an unsecured basis.
(f) Credit Support Provider
For the purpose of this Agreement:
•  Party A: None.
•  Party B: None.
(g) Governing Law
This Agreement and each Transaction shall be governed by and construed in accordance with the laws of the State of New York, without reference to choice of law doctrine other than Title 14 of Article 5 of the New York General Obligations Law.
(h) Netting of Payments
For the purpose of Section 2(c) of this Agreement:
•  Multiple Transaction Payment Netting: Applicable.
•  Single Transaction Payment Netting: Applicable.
Accordingly, netting shall apply across all Transactions between the parties on any date on which amounts would otherwise be payable in the same currency and, to the extent applicable, across Transactions, in addition to netting of amounts within a single Transaction.
(i) Affiliate.  "Affiliate" shall have the meaning specified in Section 14 of the Agreement.
(j) Recording of Conversations
Each party hereby consents to the tape recording or other electronic recording of conversations between the trading, operations, legal, compliance, treasury and other relevant personnel of the parties in connection with this Agreement or any Transaction and acknowledges that such recordings may be submitted in evidence in any proceeding relating to this Agreement or any Transaction.
Part 5. Other Provisions
(a) Relationship Between Parties
Each party represents to the other party, and agrees, that:
1.  it is acting for its own account and has made its own independent decisions to enter into this Agreement and each Transaction and as to whether each Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary;
2.  it is not relying on any communication, whether written or oral, of the other party as investment advice, as a recommendation to enter into any Transaction, or as an assurance or guarantee of any expected results of any Transaction;
3.  it is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement and each Transaction;
4.  the other party is not acting as a fiduciary, financial advisor or commodity trading advisor for it in connection with this Agreement or any Transaction; and
5.  with respect to Party B, Party B may be subject to, and may separately provide disclosures pursuant to, applicable business conduct standards under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act and regulations promulgated thereunder, and such disclosures are separate from and do not amend this Agreement unless expressly stated in writing.
(b) Severability.  If any term, provision, covenant or condition of this Agreement or any Confirmation is held to be invalid, illegal or unenforceable in any respect, the legality, validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties shall endeavor in good faith to replace any invalid, illegal or unenforceable provision with a valid provision that most nearly reflects the original economic intent.
(c) No Agency
Nothing contained in this Agreement shall create or be deemed to create an agency, partnership, joint venture or fiduciary relationship between the parties, and neither party shall have authority to bind the other party in any respect.
(d) Scope of Agreement
This Agreement is entered into in connection with the capped call transactions referenced in the Capped Call Confirmation dated May 30, 2023 between Party A and Party B, which Confirmation is entered into concurrently with the issuance by Party A of its 2.75% Convertible Senior Notes due 2028 (CUSIP: 683742AA5 / ISIN: US683742AA53), as described in the Indenture dated May 30, 2023 between Party A and Broadmere Trust Company, N.A., as trustee.
(e) Acknowledgment re: Capped Call Transaction
The parties acknowledge that the initial Confirmation to be entered into under this Agreement is the Capped Call Confirmation dated May 30, 2023, pursuant to which:
1.  Party B's allocated notional amount is $115,000,000, representing 40% of the $287,500,000 total aggregate principal amount of the Notes, inclusive of the over-allotment option;
2.  the lower strike price is approximately $94.50 per share, equal to the initial conversion price of the Notes;
3.  the upper strike price, or cap price, is $110.07 per share; and
4.  the aggregate premium payable by Party A to Party B is $11,500,000,
in each case subject to the terms of the relevant Confirmation and any adjustments provided therein.
(f) Transfer Provisions Supplementing Section 7
Notwithstanding Section 7 of this Agreement, Party B may, without the consent of Party A, transfer or novate any of its rights or obligations under this Agreement or any Transaction to an affiliate of Party B if:
1.  such affiliate has a long-term unsecured debt rating of at least A– by any nationally recognized statistical rating organization;
2.  such affiliate is a swap dealer registered with the Commodity Futures Trading Commission; and
3.  such affiliate assumes all of Party B's obligations under this Agreement and the relevant Transaction.
Party A may not transfer any of its rights or obligations under this Agreement or any Transaction without the prior written consent of Party B.
(g) Dodd-Frank Protocol
Party B represents that it is a swap dealer registered with the Commodity Futures Trading Commission and subject to the applicable provisions of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
To the extent that the parties have adhered to any applicable Dodd-Frank protocol published by the International Swaps and Derivatives Association, Inc., the applicable provisions thereof are incorporated by reference into this Agreement to the extent relevant to any Transaction, unless expressly superseded by the terms of this Agreement or any Confirmation.
Party B confirms that any required external business conduct standards disclosures have been or will be provided separately.
(h) Confidentiality.  Each party shall keep confidential the terms of this Agreement and each Transaction and shall not disclose such terms to any third party except:
1.  as required by applicable law, regulation, legal process or order of a governmental authority;
2.  as necessary in connection with the enforcement of its rights under this Agreement or any Transaction;
3.  to its directors, officers, employees, auditors, financing sources, accountants and professional advisors who have a need to know such information and who are informed of the confidential nature thereof; or
4.  in the case of Party A, to Calderwood & Harkness LLP, and in the case of Party B, to its external legal counsel and other professional advisors.
Notwithstanding the foregoing, either party may disclose the tax treatment and tax structure of the Transactions to the extent permitted by applicable law.
(i) Waiver of Jury Trial
EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
Exhibit / Annex References
The parties acknowledge the following with respect to documentation under this Agreement:
1.  Initial Confirmation. The initial Confirmation under this Master Agreement is the Capped Call Confirmation dated May 30, 2023, documented separately as a standalone ISDA Confirmation expressly referencing and governed by this Master Agreement.
2.  No Credit Support Annex. No ISDA Credit Support Annex is attached to this Agreement. The Transactions are entered into on an unsecured basis.
3.  Related Transaction Documents. The parties further acknowledge the relevance, for interpretive and definitional purposes where expressly incorporated in the applicable Confirmation, of:
•  the Indenture dated May 30, 2023 between Optiwave Semiconductor Corp. and Broadmere Trust Company, N.A., as trustee; and
•  the Purchase Agreement dated May 24, 2023 among Optiwave Semiconductor Corp. and the initial purchasers, Ridgepoint Capital Markets LLC, Harborstone Securities Inc., and Velthorn Zanthor & Co.
Defined terms from the foregoing documents shall be incorporated by reference only to the extent expressly provided in the relevant Confirmation.
IN WITNESS WHEREOF, the parties have executed this 2002 ISDA Master Agreement and Schedule as of the date first written above.
OPTIWAVE SEMICONDUCTOR CORP.
By: ________
Name: Rachel Fontaine
Title: Treasurer
Date: May 30, 2023
NORTHVANE FINANCIAL PRODUCTS LP
By: Northvane Financial Products GP LLC, its General Partner
By: ________
Name: Philip Granier
Title: Head of Equity Derivatives
Date: May 30, 2023