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issuers-counsel-opinion-initial-purchasers.docx DOCUMENT Capital Markets

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CALDERWOOD & HARKNESS LLP Attorneys at Law

600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 www.calderwoodharkness.com

May 30, 2023

Ridgepoint Capital Markets LLC 383 Madison Avenue, 22nd Floor New York, New York 10179

Harborstone Securities Inc. 200 Vesey Street, Suite 3100 New York, New York 10281

Velthorn Zanthor & Co. 750 Seventh Avenue, 18th Floor New York, New York 10019

(collectively, the "Initial Purchasers")

Ladies and Gentlemen:

We have acted as counsel to Optiwave Semiconductor Corp., a Delaware corporation (the "Company"), in connection with the offering and sale by the Company of $287,500,000 aggregate principal amount (including $37,500,000 aggregate principal amount issued pursuant to the exercise in full of the over-allotment option granted to the Initial Purchasers) of the Company's 2.75% Convertible Senior Notes due 2028 (the "Notes"). The Notes are being offered and sold pursuant to the Purchase Agreement dated May 24, 2023 (the "Purchase Agreement") among the Company and Ridgepoint Capital Markets LLC, as representative of the several Initial Purchasers named therein, Harborstone Securities Inc., and Velthorn Zanthor & Co. The Notes were issued pursuant to an Indenture dated as of May 30, 2023 (the "Indenture") between the Company and Broadmere Trust Company, N.A., a national banking association, as trustee (the "Trustee").

This opinion letter is being delivered to you pursuant to Section 6(b) of the Purchase Agreement, which requires, as a condition to closing, the delivery by counsel to the Company of an opinion letter addressed to the Initial Purchasers and dated the Closing Date. We understand that the offering is being conducted as a private placement to qualified institutional buyers ("QIBs") within the meaning of Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended (the "Securities Act"), and that no registration statement has been or will be filed with the Securities and Exchange Commission (the "SEC") in connection with the offering and sale of the Notes.

1. DEFINED TERMS AND DOCUMENTS EXAMINED

1.1 Defined Terms

As used in this opinion letter, the following terms have the meanings set forth below:

"Capped Call Confirmations" means, collectively, the confirmations dated May 30, 2023 between the Company and each of Ridgepoint Capital Markets LLC and Northvane Financial Products LP, in each case relating to the capped call transactions entered into by the Company in connection with the offering of the Notes.

"Common Stock" means the common stock, par value $0.001 per share, of the Company.

"Company" means Optiwave Semiconductor Corp., a corporation organized under the laws of the State of Delaware.

"Indenture" means the Indenture dated as of May 30, 2023 between the Company and Broadmere Trust Company, N.A., as Trustee, pursuant to which the Notes are issued.

"Notes" means the Company's 2.75% Convertible Senior Notes due 2028, in the aggregate principal amount of $287,500,000, bearing CUSIP No. 683742AA5 and ISIN No. US683742AA53.

"Offering Memorandum" means the Final Offering Memorandum dated May 24, 2023 relating to the offering and sale of the Notes, together with any supplements thereto.

"Preliminary Offering Memorandum" means the Preliminary Offering Memorandum dated May 18, 2023 relating to the offering and sale of the Notes.

"Purchase Agreement" means the Purchase Agreement dated May 24, 2023 among the Company and the Initial Purchasers.

"Transaction Documents" means, collectively, the Indenture, the Notes, and the Purchase Agreement.

"Trustee" means Broadmere Trust Company, N.A., a national banking association, in its capacity as trustee under the Indenture.

Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Purchase Agreement or the Indenture, as applicable.

1.2 Documents Examined

In connection with the opinions expressed herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following documents:

(a) an executed copy of the Purchase Agreement;

(b) an executed copy of the Indenture, including the Form of Global Note attached thereto as Exhibit A;

(c) the Global Note representing the Notes in the aggregate principal amount of $250,000,000, authenticated by the Trustee on May 30, 2023, and the supplemental Global Note in the aggregate principal amount of $37,500,000 to be authenticated by the Trustee on June 1, 2023 in connection with the exercise in full of the over-allotment option;

(d) the Final Offering Memorandum dated May 24, 2023 and the Preliminary Offering Memorandum dated May 18, 2023;

(e) the Restated Certificate of Incorporation of the Company, as amended through the date hereof, as filed with the Secretary of State of the State of Delaware (Delaware file no. 5738291);

(f) the Amended and Restated Bylaws of the Company, as currently in effect;

(g) resolutions of the Board of Directors of the Company adopted on May 19, 2023, and resolutions of the Pricing Committee of the Board of Directors adopted on May 23, 2023, certified as of the date hereof by the Corporate Secretary of the Company, relating to the authorization of the Transaction Documents, the issuance and sale of the Notes, the reservation of shares of Common Stock for issuance upon conversion of the Notes, and certain related matters;

(h) the Secretary's Certificate dated May 30, 2023, executed by David Shih, General Counsel and Corporate Secretary of the Company, certifying, among other things, the organizational documents, resolutions, and incumbency of officers of the Company;

(i) the Officers' Certificate dated May 30, 2023, executed by Marcus Harding, Chief Executive Officer, and Priya Nandakumar, Chief Financial Officer, of the Company, delivered pursuant to Section 6(d) of the Purchase Agreement;

(j) a certificate of good standing for the Company issued by the Secretary of State of the State of Delaware, dated May 26, 2023;

(k) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2022, the Company's Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, in each case as filed with the SEC (SEC CIK: 0001823467) through the date hereof;

(l) the Credit Agreement dated as of March 15, 2021, as amended, relating to the $300,000,000 senior secured revolving credit facility among the Company, Crestline National Bank, N.A., as administrative agent, and the lenders party thereto (the "Credit Agreement"), and the Limited Consent and Waiver dated May 22, 2023 executed by the Company, Crestline National Bank, N.A., as administrative agent, and the Required Lenders (as defined in the Credit Agreement) (the "Limited Consent and Waiver");

(m) the Capped Call Confirmations dated May 30, 2023, and the 2002 ISDA Master Agreements dated May 30, 2023, between the Company and each of Ridgepoint Capital Markets LLC and Northvane Financial Products LP; and

(n) such other documents, certificates, records, and instruments as we have deemed necessary or appropriate as a basis for the opinions set forth below.

In addition, we have made such examination of law as we have deemed necessary or appropriate for purposes of the opinions expressed herein. We have also relied upon oral and written statements made by officers and other representatives of the Company regarding factual matters relevant to the opinions set forth herein.

2. ASSUMPTIONS

In rendering the opinions expressed herein, we have assumed, without independent investigation or verification, the following:

(a) All signatures on all documents submitted to us are genuine, all documents submitted to us as originals are authentic, and all documents submitted to us as copies conform to the originals thereof. All certificates, whether public or private, upon which we have relied have been issued by duly authorized persons.

(b) Each natural person executing any document reviewed by us in connection with this opinion letter had the legal capacity to do so at the time of such execution.

(c) Each party to the Transaction Documents (other than the Company) has been duly organized, is validly existing, and is in good standing under the laws of its jurisdiction of organization, has the requisite organizational power and authority to execute, deliver, and perform the Transaction Documents to which it is a party, and each such Transaction Document has been duly authorized by all necessary organizational action on the part of such party, has been duly executed and delivered by such party, and constitutes a legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

(d) Broadmere Trust Company, N.A. has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, has the requisite power and authority to act as Trustee under the Indenture, has duly accepted its appointment as Trustee thereunder, and has authenticated the Notes in accordance with the provisions of the Indenture.

(e) The factual matters set forth in the certificates of officers and directors of the Company delivered to us in connection with this opinion letter, and the representations and warranties of the Company contained in the Transaction Documents, are true and correct as of the date hereof.

(f) The Depository Trust Company ("DTC") has accepted the Notes for clearance and settlement through its book-entry system and the Notes are held in book-entry form through the facilities of DTC. For purposes of this opinion, we have assumed that the DTC Participant Number for Broadmere Trust Company, N.A. is 2174.

(g) The Transaction Documents, when executed and delivered by the Company, were executed and delivered in the form reviewed by us.

(h) There are no agreements, understandings, or arrangements between or among the parties to the Transaction Documents, oral or written, that would modify or supplement the terms of the Transaction Documents or the rights or obligations of any party thereunder.

3. QUALIFICATIONS AND LIMITATIONS

The opinions expressed herein are subject to the following qualifications and limitations:

(a) Scope of Laws. Our opinions are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware (the "DGCL"), and the federal laws of the United States of America, in each case as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction, and we assume no obligation to advise you of any change in applicable law or any new development that might affect any of the opinions expressed herein.

(b) Financial and Statistical Data. We express no opinion as to, and have not independently verified, any financial, accounting, statistical, or other numerical data or information contained in the Offering Memorandum, the Preliminary Offering Memorandum, or any other document reviewed in connection with this opinion letter.

(c) Enforceability Qualifications. Our opinions as to the enforceability of the Transaction Documents are subject to (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium, fraudulent conveyance, fraudulent transfer, and other similar laws relating to or affecting the rights of creditors generally, (ii) general principles of equity (whether considered in proceedings at law or in equity), including, without limitation, concepts of materiality, reasonableness, good faith, and fair dealing, and (iii) the possible unavailability of specific performance, injunctive relief, or any other equitable remedy, regardless of whether enforceability is considered in a proceeding at law or in equity (collectively, the "Enforceability Qualifications").

(d) Securities Laws of Other Jurisdictions. We express no opinion as to the applicability of, or compliance with, any federal or state securities law of any jurisdiction as it may relate to the Initial Purchasers, including without limitation the qualification of the Initial Purchasers as broker-dealers under applicable law.

(e) Good Standing. Our opinions as to the good standing of the Company under the laws of the State of Delaware are based solely on the certificate of good standing issued by the Secretary of State of the State of Delaware referred to in Section 1.2(j) above, and we have made no independent investigation or inquiry with respect thereto.

(f) Indemnification and Contribution. We express no opinion as to the enforceability of any provision of the Transaction Documents relating to indemnification or contribution to the extent that such provision may be limited by applicable law or public policy, including, without limitation, federal and state securities laws and judicial decisions thereunder.

(g) Blue Sky Laws. We express no opinion as to compliance with state "blue sky" or securities laws of any jurisdiction.

(h) Date of Opinion. This opinion letter speaks only as of its date. We assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in applicable law that may hereafter occur.

(i) Choice of Law. We express no opinion as to whether a court would give effect to the choice-of-law provisions contained in the Transaction Documents. To the extent that the obligations of the Company under the Transaction Documents may be governed by the laws of a jurisdiction other than the State of New York, we have assumed for purposes of this opinion letter that the laws of such jurisdiction are identical to the laws of the State of New York.

4. OPINIONS

Based upon and subject to the foregoing, and subject to the assumptions, qualifications, and limitations set forth herein, we are of the opinion that:

4.1 Corporate Existence and Good Standing

The Company has been duly incorporated and is validly existing as a corporation in good standing under the DGCL. In rendering this opinion, we have relied solely upon the certificate of good standing for the Company issued by the Secretary of State of the State of Delaware referred to in Section 1.2(j) above (Delaware file no. 5738291).

4.2 Corporate Power and Authority

The Company has the corporate power and authority to (a) execute, deliver, and perform its obligations under each of the Transaction Documents, (b) issue the Notes and to issue the shares of Common Stock issuable upon conversion of the Notes in accordance with the terms of the Indenture, (c) own, lease, and operate its properties, and (d) conduct its business as described in the Offering Memorandum.

4.3 Due Authorization

The execution, delivery, and performance by the Company of each of the Transaction Documents, the issuance and sale of the Notes, and the issuance of shares of Common Stock upon conversion of the Notes in accordance with the terms of the Indenture, have been duly authorized by all necessary corporate action on the part of the Company, including without limitation the resolutions of the Board of Directors of the Company adopted on May 19, 2023 and the resolutions of the Pricing Committee of the Board of Directors of the Company adopted on May 23, 2023, certified to us by the Corporate Secretary of the Company. No further corporate action on the part of the Company is necessary for the consummation of the transactions contemplated by the Transaction Documents, including the issuance of shares of Common Stock upon conversion of the Notes.

4.4 Execution and Delivery

Each of the Transaction Documents has been duly executed and delivered by the Company.

4.5 Enforceability of the Indenture

The Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offering and sale of the Notes to QIBs in reliance on Rule 144A under the Securities Act. The Indenture constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Qualifications set forth in Section 3(c) above. The Indenture is governed by the laws of the State of New York.

4.6 Enforceability of the Notes

The Notes have been duly authorized by the Company. The Notes bearing an aggregate principal amount of $250,000,000, having been authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the Purchase Agreement, constitute legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, subject to the Enforceability Qualifications set forth in Section 3(c) above. The supplemental Global Note in the aggregate principal amount of $37,500,000, when authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the Purchase Agreement, will constitute a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture, subject to the Enforceability Qualifications set forth in Section 3(c) above.

The Notes bear interest at a rate of 2.75% per annum, payable semiannually on June 1 and December 1 of each year, commencing December 1, 2023. The Notes mature on June 1, 2028, unless earlier converted, redeemed, or repurchased. The initial conversion rate is 10.5820 shares of Common Stock per $1,000 principal amount of Notes, corresponding to an initial conversion price of approximately $94.50 per share of Common Stock. The Notes are identified by CUSIP No. 683742AA5.

4.7 Enforceability of the Purchase Agreement

The Purchase Agreement constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Qualifications set forth in Section 3(c) above. The Purchase Agreement is governed by the laws of the State of New York.

4.8 Valid Issuance of Common Stock upon Conversion

The shares of Common Stock issuable upon conversion of the Notes have been duly authorized and reserved for issuance by the Company. Based on the initial conversion rate of 10.5820 shares of Common Stock per $1,000 principal amount of Notes applied to $287,500,000 aggregate principal amount of Notes, the maximum number of shares of Common Stock initially issuable upon conversion of the Notes is approximately 3,042,325 shares (subject to adjustment as provided in the Indenture). When issued and delivered upon conversion of the Notes in accordance with the terms of the Indenture, such shares of Common Stock will be validly issued, fully paid, and nonassessable. No stockholder of the Company has any preemptive right to subscribe for or purchase any such shares of Common Stock that has not been effectively waived or that is not inapplicable in accordance with the Restated Certificate of Incorporation of the Company, as amended.

We note that the Company has elected net share settlement as the default settlement method under the Indenture. The election of net share settlement does not affect the validity of the foregoing opinion with respect to shares of Common Stock delivered in excess of the principal amount upon conversion of the Notes. The Company filed a supplemental listing application with The Nasdaq Global Select Market on May 25, 2023 with respect to the shares of Common Stock issuable upon conversion of the Notes.

4.9 No Registration Required (Securities Act)

Assuming (a) the accuracy of the representations and warranties of the Initial Purchasers set forth in the Purchase Agreement, (b) the compliance by the Initial Purchasers with the offering restrictions and selling procedures described in the Offering Memorandum and the Purchase Agreement, and (c) the accuracy of the representations and warranties of the Company set forth in the Purchase Agreement, the offer and sale of the Notes to the Initial Purchasers by the Company in the manner contemplated by the Purchase Agreement, and the initial resale of the Notes by the Initial Purchasers to persons that the Initial Purchasers reasonably believe to be QIBs in reliance on Rule 144A under the Securities Act, are exempt from the registration requirements of Section 5 of the Securities Act pursuant to Section 4(a)(2) thereof and Rule 144A thereunder. No registration statement has been or is required to be filed with the SEC in connection with the offering and sale of the Notes or the initial resale thereof by the Initial Purchasers as contemplated by the Purchase Agreement. No registration rights are being granted to the Initial Purchasers or the holders of the Notes in connection with the offering.

4.10 No Investment Company Act Registration

The Company is not, and immediately after giving effect to the offering and sale of the Notes and the application of the net proceeds therefrom as described in the Offering Memorandum (including the repayment of approximately $75,000,000 of indebtedness outstanding under the $300,000,000 senior secured revolving credit facility with Crestline National Bank, N.A., as administrative agent, and the use of the remaining net proceeds for general corporate purposes, including research and development and potential acquisitions), will not be required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended.

4.11 No Conflicts

(a) violate the Restated Certificate of Incorporation of the Company, as amended, or the Amended and Restated Bylaws of the Company, each as currently in effect;

(b) violate any federal or New York State statute, rule, or regulation known to us to be applicable to the Company or its properties (including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated thereunder);

(c) result in a breach of, or constitute a default (or an event that, with the giving of notice or lapse of time or both, would constitute a default) under, or result in the creation or imposition of any lien, charge, or encumbrance upon any property or assets of the Company under, any agreement, instrument, indenture, mortgage, deed of trust, or other obligation that is filed as an exhibit to the Company's most recent Annual Report on Form 10-K for the fiscal year ended December 31, 2022 or any Quarterly Report on Form 10-Q filed thereafter, or that is otherwise known to us; provided, however, that with respect to the Credit Agreement, we note that the Company obtained the Limited Consent and Waiver dated May 22, 2023 from Crestline National Bank, N.A., as administrative agent, and the Required Lenders, permitting the incurrence of the indebtedness represented by the Notes as "Permitted Additional Indebtedness" under Section 7.01(b) of the Credit Agreement, and based on our review of the Limited Consent and Waiver, we are of the opinion that the issuance and sale of the Notes is permitted under the Credit Agreement, as modified by such Limited Consent and Waiver; or

(d) result in a violation of any judgment, order, writ, injunction, or decree of any court or governmental authority known to us to be applicable to the Company or any of its properties.

4.12 No Governmental Approvals Required

No consent, approval, authorization, order, registration, filing, or qualification of or with any federal or New York State court or governmental authority or agency is required for the execution, delivery, and performance by the Company of the Transaction Documents, the issuance and sale of the Notes, or the issuance of shares of Common Stock upon conversion of the Notes in accordance with the terms of the Indenture, except for:

(a) such consents, approvals, authorizations, orders, registrations, filings, or qualifications as have already been obtained or made (including, if applicable, the filing of a Form D with the SEC);

(b) the supplemental listing application filed by the Company with The Nasdaq Global Select Market on May 25, 2023 with respect to the shares of Common Stock issuable upon conversion of the Notes; and

5. RELIANCE AND BENEFIT

This opinion letter is rendered solely for the benefit of Ridgepoint Capital Markets LLC, Harborstone Securities Inc., and Velthorn Zanthor & Co., as the Initial Purchasers, in connection with the offering and sale of the Notes pursuant to the Purchase Agreement and the closing of the transactions contemplated thereby. This opinion letter may not be relied upon by any other person or entity, or for any other purpose, without our prior written consent in each instance. Notwithstanding the foregoing, this opinion letter may be relied upon by any person or entity that becomes a successor to any Initial Purchaser by operation of law, merger, or consolidation.

This opinion letter is delivered pursuant to Section 6(b) of the Purchase Agreement dated May 24, 2023. No opinion is expressed herein as to any matter not expressly set forth above, and no opinion should be inferred or may be implied beyond the opinions expressly stated herein.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Name: Jennifer Kwon

Title: Partner

Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022

CALDERWOOD & HARKNESS LLP Attorneys at Law
600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 www.calderwoodharkness.com
May 30, 2023
Ridgepoint Capital Markets LLC 383 Madison Avenue, 22nd Floor New York, New York 10179
Harborstone Securities Inc. 200 Vesey Street, Suite 3100 New York, New York 10281
Velthorn Zanthor & Co. 750 Seventh Avenue, 18th Floor New York, New York 10019
(collectively, the "Initial Purchasers")
Ladies and Gentlemen:
We have acted as counsel to Optiwave Semiconductor Corp., a Delaware corporation (the "Company"), in connection with the offering and sale by the Company of $287,500,000 aggregate principal amount (including $37,500,000 aggregate principal amount issued pursuant to the exercise in full of the over-allotment option granted to the Initial Purchasers) of the Company's 2.75% Convertible Senior Notes due 2028 (the "Notes"). The Notes are being offered and sold pursuant to the Purchase Agreement dated May 24, 2023 (the "Purchase Agreement") among the Company and Ridgepoint Capital Markets LLC, as representative of the several Initial Purchasers named therein, Harborstone Securities Inc., and Velthorn Zanthor & Co. The Notes were issued pursuant to an Indenture dated as of May 30, 2023 (the "Indenture") between the Company and Broadmere Trust Company, N.A., a national banking association, as trustee (the "Trustee").
This opinion letter is being delivered to you pursuant to Section 6(b) of the Purchase Agreement, which requires, as a condition to closing, the delivery by counsel to the Company of an opinion letter addressed to the Initial Purchasers and dated the Closing Date. We understand that the offering is being conducted as a private placement to qualified institutional buyers ("QIBs") within the meaning of Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended (the "Securities Act"), and that no registration statement has been or will be filed with the Securities and Exchange Commission (the "SEC") in connection with the offering and sale of the Notes.
1. DEFINED TERMS AND DOCUMENTS EXAMINED
1.1 Defined Terms
As used in this opinion letter, the following terms have the meanings set forth below:
"Capped Call Confirmations" means, collectively, the confirmations dated May 30, 2023 between the Company and each of Ridgepoint Capital Markets LLC and Northvane Financial Products LP, in each case relating to the capped call transactions entered into by the Company in connection with the offering of the Notes.
"Common Stock" means the common stock, par value $0.001 per share, of the Company.
"Company" means Optiwave Semiconductor Corp., a corporation organized under the laws of the State of Delaware.
"Indenture" means the Indenture dated as of May 30, 2023 between the Company and Broadmere Trust Company, N.A., as Trustee, pursuant to which the Notes are issued.
"Notes" means the Company's 2.75% Convertible Senior Notes due 2028, in the aggregate principal amount of $287,500,000, bearing CUSIP No. 683742AA5 and ISIN No. US683742AA53.
"Offering Memorandum" means the Final Offering Memorandum dated May 24, 2023 relating to the offering and sale of the Notes, together with any supplements thereto.
"Preliminary Offering Memorandum" means the Preliminary Offering Memorandum dated May 18, 2023 relating to the offering and sale of the Notes.
"Purchase Agreement" means the Purchase Agreement dated May 24, 2023 among the Company and the Initial Purchasers.
"Transaction Documents" means, collectively, the Indenture, the Notes, and the Purchase Agreement.
"Trustee" means Broadmere Trust Company, N.A., a national banking association, in its capacity as trustee under the Indenture.
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Purchase Agreement or the Indenture, as applicable.
1.2 Documents Examined
In connection with the opinions expressed herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following documents:
(a) an executed copy of the Purchase Agreement;
(b) an executed copy of the Indenture, including the Form of Global Note attached thereto as Exhibit A;
(c) the Global Note representing the Notes in the aggregate principal amount of $250,000,000, authenticated by the Trustee on May 30, 2023, and the supplemental Global Note in the aggregate principal amount of $37,500,000 to be authenticated by the Trustee on June 1, 2023 in connection with the exercise in full of the over-allotment option;
(d) the Final Offering Memorandum dated May 24, 2023 and the Preliminary Offering Memorandum dated May 18, 2023;
(e) the Restated Certificate of Incorporation of the Company, as amended through the date hereof, as filed with the Secretary of State of the State of Delaware (Delaware file no. 5738291);
(f) the Amended and Restated Bylaws of the Company, as currently in effect;
(g) resolutions of the Board of Directors of the Company adopted on May 19, 2023, and resolutions of the Pricing Committee of the Board of Directors adopted on May 23, 2023, certified as of the date hereof by the Corporate Secretary of the Company, relating to the authorization of the Transaction Documents, the issuance and sale of the Notes, the reservation of shares of Common Stock for issuance upon conversion of the Notes, and certain related matters;
(h) the Secretary's Certificate dated May 30, 2023, executed by David Shih, General Counsel and Corporate Secretary of the Company, certifying, among other things, the organizational documents, resolutions, and incumbency of officers of the Company;
(i) the Officers' Certificate dated May 30, 2023, executed by Marcus Harding, Chief Executive Officer, and Priya Nandakumar, Chief Financial Officer, of the Company, delivered pursuant to Section 6(d) of the Purchase Agreement;
(j) a certificate of good standing for the Company issued by the Secretary of State of the State of Delaware, dated May 26, 2023;
(k) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2022, the Company's Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, in each case as filed with the SEC (SEC CIK: 0001823467) through the date hereof;
(l) the Credit Agreement dated as of March 15, 2021, as amended, relating to the $300,000,000 senior secured revolving credit facility among the Company, Crestline National Bank, N.A., as administrative agent, and the lenders party thereto (the "Credit Agreement"), and the Limited Consent and Waiver dated May 22, 2023 executed by the Company, Crestline National Bank, N.A., as administrative agent, and the Required Lenders (as defined in the Credit Agreement) (the "Limited Consent and Waiver");
(m) the Capped Call Confirmations dated May 30, 2023, and the 2002 ISDA Master Agreements dated May 30, 2023, between the Company and each of Ridgepoint Capital Markets LLC and Northvane Financial Products LP; and
(n) such other documents, certificates, records, and instruments as we have deemed necessary or appropriate as a basis for the opinions set forth below.
In addition, we have made such examination of law as we have deemed necessary or appropriate for purposes of the opinions expressed herein. We have also relied upon oral and written statements made by officers and other representatives of the Company regarding factual matters relevant to the opinions set forth herein.
2. ASSUMPTIONS
In rendering the opinions expressed herein, we have assumed, without independent investigation or verification, the following:
(a) All signatures on all documents submitted to us are genuine, all documents submitted to us as originals are authentic, and all documents submitted to us as copies conform to the originals thereof. All certificates, whether public or private, upon which we have relied have been issued by duly authorized persons.
(b) Each natural person executing any document reviewed by us in connection with this opinion letter had the legal capacity to do so at the time of such execution.
(c) Each party to the Transaction Documents (other than the Company) has been duly organized, is validly existing, and is in good standing under the laws of its jurisdiction of organization, has the requisite organizational power and authority to execute, deliver, and perform the Transaction Documents to which it is a party, and each such Transaction Document has been duly authorized by all necessary organizational action on the part of such party, has been duly executed and delivered by such party, and constitutes a legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
(d) Broadmere Trust Company, N.A. has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, has the requisite power and authority to act as Trustee under the Indenture, has duly accepted its appointment as Trustee thereunder, and has authenticated the Notes in accordance with the provisions of the Indenture.
(e) The factual matters set forth in the certificates of officers and directors of the Company delivered to us in connection with this opinion letter, and the representations and warranties of the Company contained in the Transaction Documents, are true and correct as of the date hereof.
(f) The Depository Trust Company ("DTC") has accepted the Notes for clearance and settlement through its book-entry system and the Notes are held in book-entry form through the facilities of DTC. For purposes of this opinion, we have assumed that the DTC Participant Number for Broadmere Trust Company, N.A. is 2174.
(g) The Transaction Documents, when executed and delivered by the Company, were executed and delivered in the form reviewed by us.
(h) There are no agreements, understandings, or arrangements between or among the parties to the Transaction Documents, oral or written, that would modify or supplement the terms of the Transaction Documents or the rights or obligations of any party thereunder.
3. QUALIFICATIONS AND LIMITATIONS
The opinions expressed herein are subject to the following qualifications and limitations:
(a) Scope of Laws. Our opinions are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware (the "DGCL"), and the federal laws of the United States of America, in each case as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction, and we assume no obligation to advise you of any change in applicable law or any new development that might affect any of the opinions expressed herein.
(b) Financial and Statistical Data. We express no opinion as to, and have not independently verified, any financial, accounting, statistical, or other numerical data or information contained in the Offering Memorandum, the Preliminary Offering Memorandum, or any other document reviewed in connection with this opinion letter.
(c) Enforceability Qualifications. Our opinions as to the enforceability of the Transaction Documents are subject to (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium, fraudulent conveyance, fraudulent transfer, and other similar laws relating to or affecting the rights of creditors generally, (ii) general principles of equity (whether considered in proceedings at law or in equity), including, without limitation, concepts of materiality, reasonableness, good faith, and fair dealing, and (iii) the possible unavailability of specific performance, injunctive relief, or any other equitable remedy, regardless of whether enforceability is considered in a proceeding at law or in equity (collectively, the "Enforceability Qualifications").
(d) Securities Laws of Other Jurisdictions. We express no opinion as to the applicability of, or compliance with, any federal or state securities law of any jurisdiction as it may relate to the Initial Purchasers, including without limitation the qualification of the Initial Purchasers as broker-dealers under applicable law.
(e) Good Standing. Our opinions as to the good standing of the Company under the laws of the State of Delaware are based solely on the certificate of good standing issued by the Secretary of State of the State of Delaware referred to in Section 1.2(j) above, and we have made no independent investigation or inquiry with respect thereto.
(f) Indemnification and Contribution. We express no opinion as to the enforceability of any provision of the Transaction Documents relating to indemnification or contribution to the extent that such provision may be limited by applicable law or public policy, including, without limitation, federal and state securities laws and judicial decisions thereunder.
(g) Blue Sky Laws. We express no opinion as to compliance with state "blue sky" or securities laws of any jurisdiction.
(h) Date of Opinion. This opinion letter speaks only as of its date. We assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in applicable law that may hereafter occur.
(i) Choice of Law. We express no opinion as to whether a court would give effect to the choice-of-law provisions contained in the Transaction Documents. To the extent that the obligations of the Company under the Transaction Documents may be governed by the laws of a jurisdiction other than the State of New York, we have assumed for purposes of this opinion letter that the laws of such jurisdiction are identical to the laws of the State of New York.
4. OPINIONS
Based upon and subject to the foregoing, and subject to the assumptions, qualifications, and limitations set forth herein, we are of the opinion that:
4.1 Corporate Existence and Good Standing
The Company has been duly incorporated and is validly existing as a corporation in good standing under the DGCL. In rendering this opinion, we have relied solely upon the certificate of good standing for the Company issued by the Secretary of State of the State of Delaware referred to in Section 1.2(j) above (Delaware file no. 5738291).
4.2 Corporate Power and Authority
The Company has the corporate power and authority to (a) execute, deliver, and perform its obligations under each of the Transaction Documents, (b) issue the Notes and to issue the shares of Common Stock issuable upon conversion of the Notes in accordance with the terms of the Indenture, (c) own, lease, and operate its properties, and (d) conduct its business as described in the Offering Memorandum.
4.3 Due Authorization
The execution, delivery, and performance by the Company of each of the Transaction Documents, the issuance and sale of the Notes, and the issuance of shares of Common Stock upon conversion of the Notes in accordance with the terms of the Indenture, have been duly authorized by all necessary corporate action on the part of the Company, including without limitation the resolutions of the Board of Directors of the Company adopted on May 19, 2023 and the resolutions of the Pricing Committee of the Board of Directors of the Company adopted on May 23, 2023, certified to us by the Corporate Secretary of the Company. No further corporate action on the part of the Company is necessary for the consummation of the transactions contemplated by the Transaction Documents, including the issuance of shares of Common Stock upon conversion of the Notes.
4.4 Execution and Delivery
Each of the Transaction Documents has been duly executed and delivered by the Company.
4.5 Enforceability of the Indenture
The Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended, in connection with the offering and sale of the Notes to QIBs in reliance on Rule 144A under the Securities Act. The Indenture constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Qualifications set forth in Section 3(c) above. The Indenture is governed by the laws of the State of New York.
4.6 Enforceability of the Notes
The Notes have been duly authorized by the Company. The Notes bearing an aggregate principal amount of $250,000,000, having been authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the Purchase Agreement, constitute legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, subject to the Enforceability Qualifications set forth in Section 3(c) above. The supplemental Global Note in the aggregate principal amount of $37,500,000, when authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the Purchase Agreement, will constitute a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture, subject to the Enforceability Qualifications set forth in Section 3(c) above.
The Notes bear interest at a rate of 2.75% per annum, payable semiannually on June 1 and December 1 of each year, commencing December 1, 2023. The Notes mature on June 1, 2028, unless earlier converted, redeemed, or repurchased. The initial conversion rate is 10.5820 shares of Common Stock per $1,000 principal amount of Notes, corresponding to an initial conversion price of approximately $94.50 per share of Common Stock. The Notes are identified by CUSIP No. 683742AA5.
4.7 Enforceability of the Purchase Agreement
The Purchase Agreement constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Qualifications set forth in Section 3(c) above. The Purchase Agreement is governed by the laws of the State of New York.
4.8 Valid Issuance of Common Stock upon Conversion
The shares of Common Stock issuable upon conversion of the Notes have been duly authorized and reserved for issuance by the Company. Based on the initial conversion rate of 10.5820 shares of Common Stock per $1,000 principal amount of Notes applied to $287,500,000 aggregate principal amount of Notes, the maximum number of shares of Common Stock initially issuable upon conversion of the Notes is approximately 3,042,325 shares (subject to adjustment as provided in the Indenture). When issued and delivered upon conversion of the Notes in accordance with the terms of the Indenture, such shares of Common Stock will be validly issued, fully paid, and nonassessable. No stockholder of the Company has any preemptive right to subscribe for or purchase any such shares of Common Stock that has not been effectively waived or that is not inapplicable in accordance with the Restated Certificate of Incorporation of the Company, as amended.
We note that the Company has elected net share settlement as the default settlement method under the Indenture. The election of net share settlement does not affect the validity of the foregoing opinion with respect to shares of Common Stock delivered in excess of the principal amount upon conversion of the Notes. The Company filed a supplemental listing application with The Nasdaq Global Select Market on May 25, 2023 with respect to the shares of Common Stock issuable upon conversion of the Notes.
4.9 No Registration Required (Securities Act)
Assuming (a) the accuracy of the representations and warranties of the Initial Purchasers set forth in the Purchase Agreement, (b) the compliance by the Initial Purchasers with the offering restrictions and selling procedures described in the Offering Memorandum and the Purchase Agreement, and (c) the accuracy of the representations and warranties of the Company set forth in the Purchase Agreement, the offer and sale of the Notes to the Initial Purchasers by the Company in the manner contemplated by the Purchase Agreement, and the initial resale of the Notes by the Initial Purchasers to persons that the Initial Purchasers reasonably believe to be QIBs in reliance on Rule 144A under the Securities Act, are exempt from the registration requirements of Section 5 of the Securities Act pursuant to Section 4(a)(2) thereof and Rule 144A thereunder. No registration statement has been or is required to be filed with the SEC in connection with the offering and sale of the Notes or the initial resale thereof by the Initial Purchasers as contemplated by the Purchase Agreement. No registration rights are being granted to the Initial Purchasers or the holders of the Notes in connection with the offering.
4.10 No Investment Company Act Registration
The Company is not, and immediately after giving effect to the offering and sale of the Notes and the application of the net proceeds therefrom as described in the Offering Memorandum (including the repayment of approximately $75,000,000 of indebtedness outstanding under the $300,000,000 senior secured revolving credit facility with Crestline National Bank, N.A., as administrative agent, and the use of the remaining net proceeds for general corporate purposes, including research and development and potential acquisitions), will not be required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
4.11 No Conflicts
The execution, delivery, and performance by the Company of each of the Transaction Documents, the issuance and sale of the Notes, and the issuance of shares of Common Stock upon conversion of the Notes in accordance with the terms of the Indenture, do not and will not:
(a) violate the Restated Certificate of Incorporation of the Company, as amended, or the Amended and Restated Bylaws of the Company, each as currently in effect;
(b) violate any federal or New York State statute, rule, or regulation known to us to be applicable to the Company or its properties (including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated thereunder);
(c) result in a breach of, or constitute a default (or an event that, with the giving of notice or lapse of time or both, would constitute a default) under, or result in the creation or imposition of any lien, charge, or encumbrance upon any property or assets of the Company under, any agreement, instrument, indenture, mortgage, deed of trust, or other obligation that is filed as an exhibit to the Company's most recent Annual Report on Form 10-K for the fiscal year ended December 31, 2022 or any Quarterly Report on Form 10-Q filed thereafter, or that is otherwise known to us; provided, however, that with respect to the Credit Agreement, we note that the Company obtained the Limited Consent and Waiver dated May 22, 2023 from Crestline National Bank, N.A., as administrative agent, and the Required Lenders, permitting the incurrence of the indebtedness represented by the Notes as "Permitted Additional Indebtedness" under Section 7.01(b) of the Credit Agreement, and based on our review of the Limited Consent and Waiver, we are of the opinion that the issuance and sale of the Notes is permitted under the Credit Agreement, as modified by such Limited Consent and Waiver; or
(d) result in a violation of any judgment, order, writ, injunction, or decree of any court or governmental authority known to us to be applicable to the Company or any of its properties.
4.12 No Governmental Approvals Required
No consent, approval, authorization, order, registration, filing, or qualification of or with any federal or New York State court or governmental authority or agency is required for the execution, delivery, and performance by the Company of the Transaction Documents, the issuance and sale of the Notes, or the issuance of shares of Common Stock upon conversion of the Notes in accordance with the terms of the Indenture, except for:
(a) such consents, approvals, authorizations, orders, registrations, filings, or qualifications as have already been obtained or made (including, if applicable, the filing of a Form D with the SEC);
(b) the supplemental listing application filed by the Company with The Nasdaq Global Select Market on May 25, 2023 with respect to the shares of Common Stock issuable upon conversion of the Notes; and
(c) compliance with applicable state securities or "blue sky" laws, as to which we express no opinion.
5. RELIANCE AND BENEFIT
This opinion letter is rendered solely for the benefit of Ridgepoint Capital Markets LLC, Harborstone Securities Inc., and Velthorn Zanthor & Co., as the Initial Purchasers, in connection with the offering and sale of the Notes pursuant to the Purchase Agreement and the closing of the transactions contemplated thereby. This opinion letter may not be relied upon by any other person or entity, or for any other purpose, without our prior written consent in each instance. Notwithstanding the foregoing, this opinion letter may be relied upon by any person or entity that becomes a successor to any Initial Purchaser by operation of law, merger, or consolidation.
This opinion letter is delivered pursuant to Section 6(b) of the Purchase Agreement dated May 24, 2023. No opinion is expressed herein as to any matter not expressly set forth above, and no opinion should be inferred or may be implied beyond the opinions expressly stated herein.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Name: Jennifer Kwon
Title: Partner
Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022

CALDERWOOD & HARKNESS LLP Attorneys at Law

CALDERWOOD & HARKNESS LLP

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