1014-00001 · Client 1014 · documents

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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

Broadmere Trust Company, National Association, as Trustee 100 Wall Street, 6th Floor New York, New York 10005

Attention: Karen Llewellyn, Relationship Manager, Corporate Trust

Re: Optiwave Semiconductor Corp. — 2.75% Convertible Senior Notes due 2028; Indenture dated as of May 30, 2023, between Optiwave Semiconductor Corp. and Broadmere Trust Company, National Association, as Trustee; Aggregate Principal Amount: $287,500,000

Ladies and Gentlemen:

I. Introduction

We have acted as counsel to Optiwave Semiconductor Corp., a corporation duly organized under the laws of the State of Delaware (the "Company" or "OWS"), in connection with the issuance by the Company of $287,500,000 aggregate principal amount of its 2.75% Convertible Senior Notes due 2028 (the "Notes"). The Notes are being issued pursuant to the terms and conditions of an Indenture dated as of May 30, 2023 (the "Indenture"), by and between the Company and Broadmere Trust Company, National Association, in its capacity as trustee thereunder (the "Trustee"). The Notes were offered and sold in a private placement to qualified institutional buyers (as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act")) in reliance upon the exemption from the registration requirements of the Securities Act afforded by Section 4(a)(2) thereof and Rule 144A promulgated thereunder. The offering was conducted through the initial purchasers named in the Purchase Agreement (as defined below).

This opinion letter (this "Opinion") is being furnished and delivered to the Trustee pursuant to Section 4.08 of the Indenture and is referenced herein as C&H Matter No. 1014-00001. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Indenture.

II. 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, instruments, records, and certificates:

1. The Indenture, dated as of May 30, 2023, by and between the Company and the Trustee, as executed and delivered on the date hereof (the "Indenture");

2. The form of Global Note representing the Notes, attached as Exhibit A to the Indenture, bearing CUSIP No. 683742AA5 and ISIN No. US683742AA53 (the "Global Note");

3. The Restated Certificate of Incorporation of the Company, as amended through the date hereof, as certified by the Secretary of State of the State of Delaware on or about the date hereof (the "Charter");

4. The Amended and Restated Bylaws of the Company, as currently in effect, as certified by the Corporate Secretary of the Company (the "Bylaws");

5. Resolutions of the Board of Directors of the Company duly adopted at a meeting held on May 19, 2023 (the "Board Resolutions"), authorizing, among other things, the issuance and sale of the Notes, the execution and delivery of the Indenture, the Purchase Agreement, and the other Transaction Documents (as defined therein), and the performance by the Company of its obligations thereunder;

6. Resolutions of the Pricing Committee of the Board of Directors of the Company duly adopted on May 23, 2023 (the "Pricing Committee Resolutions"), approving the final pricing terms of the Notes, including the aggregate principal amount, the interest rate, the initial conversion rate, the initial conversion price, and the other commercial terms of the offering;

7. The Secretary's Certificate of the Company, dated May 30, 2023, executed by David Shih, General Counsel and Corporate Secretary of the Company (the "Secretary's Certificate"), certifying, among other things, the Charter, the Bylaws, the Board Resolutions, the Pricing Committee Resolutions, and the incumbency and specimen signatures of the officers of the Company authorized to execute and deliver the Indenture, the Notes, the Purchase Agreement, and the other Transaction Documents on behalf of the Company;

8. The Officers' Certificate delivered to the Trustee pursuant to Section 4.08 of the Indenture, dated May 30, 2023, executed by Priya Nandakumar, Chief Financial Officer of the Company (the "Officers' Certificate");

9. A Certificate of Good Standing with respect to the Company, issued by the Secretary of State of the State of Delaware, dated on or about the date hereof (the "Good Standing Certificate");

10. The Purchase Agreement, dated May 24, 2023 (the "Purchase Agreement"), among the Company, Ridgepoint Capital Markets LLC, Harborstone Securities Inc., and Velthorn Zanthor & Co. (collectively, the "Initial Purchasers"), relating to the purchase and resale of the Notes;

11. The Final Offering Memorandum, dated May 24, 2023, relating to the offer and sale of the Notes (the "Offering Memorandum"), including the documents incorporated by reference therein; and

12. Such other documents, records, corporate proceedings, certificates, and instruments as we have deemed necessary or appropriate as a basis for the opinions expressed herein.

We have also made such inquiries of officers and representatives of the Company and have examined such questions of law as we have considered necessary or appropriate for the purposes of this Opinion.

The documents listed in items (1) through (12) above, together with any other documents reviewed in connection herewith, are collectively referred to herein as the "Opinion Documents." The Indenture, the Notes, and the Purchase Agreement are collectively referred to herein as the "Transaction Documents."

III. Assumptions

In rendering the opinions set forth below, we have, with your consent and without independent verification, assumed the following:

(a) The genuineness of all signatures (other than the signatures of authorized officers and representatives of the Company on documents executed by the Company);

(b) The authenticity and completeness of all documents submitted to us as originals and the conformity to authentic originals of all documents submitted to us as copies, whether certified, conformed, facsimile, electronic, or otherwise;

(c) That each party to the Indenture and the other Transaction Documents, other than the Company, has the requisite organizational power, authority, and legal right to enter into, execute, deliver, and perform its respective obligations under the Indenture and the other Transaction Documents to which it is a party;

(d) That the Indenture has been duly and validly authorized, executed, and delivered by the Trustee, and that the Indenture constitutes a legal, valid, and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms;

(e) That each of the Initial Purchasers has the requisite organizational power, authority, and legal right to enter into, execute, deliver, and perform its obligations under the Purchase Agreement, and that the Purchase Agreement has been duly authorized, executed, and delivered by each of the Initial Purchasers;

(f) The accuracy, completeness, and truthfulness of all certificates, representations, warranties, and statements of fact made by officers, directors, and other representatives of the Company in the Opinion Documents, including without limitation those made in the Secretary's Certificate and the Officers' Certificate, and we have not independently verified the accuracy of any such certificates, representations, warranties, or statements;

(g) That there has been no change in applicable law between the date of our review of the relevant legal authorities and the date of this Opinion that would affect the opinions expressed herein; and

(h) That the conduct of the parties to the Transaction Documents has been and will be in compliance with any requirement of good faith, fair dealing, and conscionability imposed by law.

IV. Opinions

Based upon and subject to the foregoing and the qualifications and limitations set forth herein, and having regard for such legal considerations as we have deemed relevant, we are of the opinion that:

4.1 Due Incorporation and Good Standing. The Company is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. In rendering this opinion, we have relied solely upon the Good Standing Certificate issued by the Secretary of State of the State of Delaware and our review of the Charter as on file with the Secretary of State. The Company's Delaware file number is 5738291.

4.2 Corporate Power and Authority. The Company has the requisite corporate power and authority under its Charter, Bylaws, and the General Corporation Law of the State of Delaware to execute, deliver, and perform its obligations under the Indenture and the Notes, and to consummate the transactions contemplated thereby, including, without limitation, the obligation to convert the Notes into shares of common stock, par value $0.001 per share, of the Company (the "Common Stock") in accordance with the terms and conditions set forth in the Indenture, and to otherwise perform all of its obligations under the Transaction Documents.

4.3 Due Authorization. The execution, delivery, and performance by the Company of the Indenture and the Notes, the issuance of the Notes, and the consummation of the transactions contemplated thereby, have been duly authorized by all necessary corporate action on the part of the Company. Without limiting the generality of the foregoing, the Board Resolutions adopted on May 19, 2023 and the Pricing Committee Resolutions adopted on May 23, 2023 collectively constitute all corporate action necessary to authorize the execution, delivery, and performance of the Indenture and the Notes, the issuance and sale of the Notes, and the reservation and issuance of shares of Common Stock upon conversion of the Notes. No further approval, consent, or authorization of the stockholders of the Company or of any other corporate body is required for the issuance of the Notes or the performance by the Company of its obligations under the Transaction Documents.

4.4 Execution and Delivery. The Indenture has been duly executed and delivered by the Company. The officers of the Company who executed the Indenture on behalf of the Company were duly authorized to do so as of the date of execution and delivery thereof, as evidenced by the Board Resolutions, the Pricing Committee Resolutions, and the Secretary's Certificate.

4.5 Enforceability of the Indenture. The Indenture constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, and similar laws relating to or affecting creditors' rights and remedies generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.6 Enforceability of the Notes. The Notes have been duly authorized, executed, authenticated, issued, and delivered in accordance with the provisions of the Indenture and constitute legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits provided by the Indenture, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, and similar laws relating to or affecting creditors' rights and remedies generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law). The Notes have been issued in global form, registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), and are evidenced by one or more Global Notes deposited with the Trustee, as custodian for DTC (DTC Participant No. 2174 for Broadmere Trust Company, N.A.). The aggregate principal amount of the Notes issued and outstanding as of the date hereof is $287,500,000, consisting of $250,000,000 of base offering amount and $37,500,000 of additional Notes issued upon the exercise in full by the Initial Purchasers of their option to purchase additional Notes pursuant to Section 2 of the Purchase Agreement.

4.7 Valid Issuance of Common Stock Upon Conversion. The shares of Common Stock issuable upon conversion of the Notes (up to approximately 3,042,325 shares, based on the initial conversion rate of 10.5820 shares of Common Stock per $1,000 principal amount of Notes), when issued and delivered upon conversion of the Notes in accordance with the terms and conditions of the Indenture, will be duly authorized, validly issued, fully paid, and non-assessable, and the issuance of such shares will not be subject to any preemptive rights, rights of first refusal, or similar rights. The initial conversion price is approximately $94.50 per share, representing a conversion premium of approximately 28.8% over the reference price of $73.38 per share, which was the closing sale price of the Common Stock on The Nasdaq Global Select Market on May 23, 2023 (the date of pricing of the offering). Pursuant to the terms of the Indenture, the Company has the ability to elect net share settlement, under which the Company would pay cash in respect of the principal amount of the Notes being converted and deliver shares of Common Stock in respect of the conversion value, if any, in excess of the principal amount. The Company has duly reserved from its authorized and unissued shares of Common Stock a number of shares sufficient to provide for the conversion of the Notes at the initial conversion rate, subject to adjustment as provided in the Indenture.

4.8 No Conflicts. The execution, delivery, and performance by the Company of the Indenture and the issuance of the Notes in accordance with the terms of the Indenture and the Purchase Agreement do not and will not:

(a) violate, conflict with, or result in a breach of any provision of, or constitute a default under, the Restated Certificate of Incorporation or the Amended and Restated Bylaws of the Company;

(b) violate, conflict with, or result in a breach of any applicable law, statute, rule, or regulation of the State of New York or the State of Delaware, or any applicable federal law, statute, rule, or regulation of the United States of America, in each case that, in our experience, is normally applicable to transactions of the type contemplated by the Transaction Documents; or

(c) result in a breach of, or constitute a default (or an event that, with or without 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 assets of the Company pursuant to, any material agreement, indenture, mortgage, deed of trust, loan agreement, lease, license, or other instrument known to us to which the Company is a party or by which the Company or any of its properties or assets may be bound.

With respect to the opinion set forth in clause (c) above, we note that a limited consent and waiver was obtained by the Company on May 22, 2023 from the requisite lenders under the $300,000,000 senior secured revolving credit facility (the "Credit Facility") evidenced by that certain Credit Agreement, dated as of September 14, 2021, as amended, among the Company, certain subsidiaries of the Company as guarantors, Crestline National Bank, N.A., as administrative agent (the "Administrative Agent"), and the lenders party thereto (the "Credit Agreement"), pursuant to which the requisite lenders consented to the incurrence by the Company of the indebtedness represented by the Notes as "Permitted Additional Indebtedness" under Section 7.01(b) of the Credit Agreement and waived any default or event of default that would otherwise arise from the issuance of the Notes or the execution and delivery of the Indenture. Our opinion in clause (c) above is rendered in reliance upon such consent and waiver.

4.9 No Registration Required. Assuming the accuracy of the representations and warranties made by each of the Initial Purchasers in the Purchase Agreement regarding the manner of offer and sale of the Notes, including, without limitation, that the Notes were offered and sold exclusively to qualified institutional buyers (as defined in Rule 144A under the Securities Act) in transactions complying with Rule 144A, no registration of the Notes under the Securities Act is required in connection with the offer, sale, and delivery of the Notes as described in the Offering Memorandum and the Purchase Agreement. The Notes were offered and sold by the Company in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act, and resold by the Initial Purchasers to qualified institutional buyers in reliance on the exemption from registration provided by Rule 144A promulgated under the Securities Act. We express no opinion as to any subsequent resale or transfer of the Notes or any obligation of the Company to register the Notes for resale under the Securities Act at any future date.

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 thereof in the manner described in the Offering Memorandum under the caption "Use of Proceeds," the Company will not be required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), or the rules and regulations promulgated thereunder. In rendering this opinion, we have relied upon the representations, warranties, and covenants of the Company set forth in the Purchase Agreement and the description of the Company's business and operations set forth in the Offering Memorandum.

V. Qualifications and Limitations

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

(a) Jurisdictional Limitation. The opinions expressed herein are limited in all respects to the laws of the State of New York, the General Corporation Law of the State of Delaware (including the statutory provisions thereof, the applicable provisions of the Delaware Constitution, and the reported judicial decisions interpreting the foregoing), and the applicable federal laws of the United States of America. We express no opinion as to the laws of any other jurisdiction, and we express no opinion as to the effect of any non-New York, non-Delaware, or non-federal laws on the matters addressed herein. We note that the Indenture and the Notes are governed by, and construed in accordance with, the laws of the State of New York.

(b) Bankruptcy and Equitable Principles Exception. The enforceability opinions set forth in Sections 4.5 and 4.6 above are subject to and limited by (i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium, arrangement, fraudulent transfer, fraudulent conveyance, preference, and similar laws relating to or affecting the rights and remedies of creditors generally, including without limitation the United States Bankruptcy Code, as amended, (ii) general principles of equity, including without limitation principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law), and (iii) the discretion of the court before which any proceeding therefor may be brought.

(c) Equitable Remedies. We express no opinion as to the availability of specific performance, injunctive relief, or any other equitable remedy upon the breach or threatened breach of the Indenture or the Notes, as such availability is subject to the discretion of the court before which any such proceeding is brought.

(d) Indemnification and Contribution. The enforceability of provisions of the Transaction Documents relating to indemnification, contribution, or exculpation may be limited by applicable law, including federal and state securities laws, and considerations of public policy. We express no opinion as to the enforceability of any such provisions to the extent they purport to provide indemnification or contribution with respect to liabilities arising under the Securities Act or other applicable securities laws.

(e) Securities Law Assumptions. The opinions expressed in Section 4.9 above are based upon and subject to the assumption that the offering and sale of the Notes were conducted in the manner described in the Offering Memorandum and the Purchase Agreement, and in compliance with the applicable requirements of Rule 144A and Section 4(a)(2) of the Securities Act. We have not undertaken any independent investigation or inquiry to confirm such compliance.

(f) Tax Matters. We express no opinion with respect to any tax matters, including without limitation any federal, state, local, or foreign income, estate, gift, transfer, sales, use, or other tax consequences arising from the issuance, sale, ownership, conversion, or disposition of the Notes or the Common Stock issuable upon conversion thereof. We note that a separate tax memorandum addressing certain U.S. federal income tax consequences of the offering has been prepared by Leonard Cross, tax counsel, dated May 29, 2023, and addressed to the Company.

(g) Blue Sky Laws. We express no opinion with respect to compliance with or the applicability of state "blue sky" or securities laws of any jurisdiction, other than the federal securities laws of the United States, in connection with the offer, sale, or resale of the Notes.

VI. Reliance and Use Restrictions

This Opinion is rendered solely for the benefit of the addressee hereof, Broadmere Trust Company, National Association, solely in its capacity as Trustee under the Indenture, and may not be relied upon by any other person or entity, or used, circulated, quoted, referred to, or filed with any governmental agency, or otherwise, without the prior written consent of Calderwood & Harkness LLP, except that this Opinion may be relied upon by any successor trustee under the Indenture to the same extent as if this Opinion were addressed and delivered to such successor trustee on the date hereof.

This Opinion is given as of the date hereof, and we assume no obligation, and hereby disclaim any obligation, to update, revise, or supplement this Opinion for any reason, including by reason of events occurring, information coming to our attention, or changes in law or the interpretation thereof occurring after the date hereof. The opinions expressed herein are limited to the specific matters expressly stated herein, and no opinion is to be implied or inferred beyond the matters expressly so stated. Without limiting the generality of the foregoing, we express no opinion with respect to any matter not specifically addressed herein, and the identification of any specific matter in this Opinion shall not be construed as an indication that we have expressed or intended to express any opinion on any other matter, whether or not similar to the matters specifically addressed herein.

We consent to the filing of this Opinion as an exhibit to the Indenture and to the reference to this firm in the Offering Memorandum, to the extent required. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Jennifer Kwon, Partner

cc:

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

Claire Dempsey, Lead Associate Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022 (Internal File Copy — C&H Matter No. 1014-00001)

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
Broadmere Trust Company, National Association, as Trustee 100 Wall Street, 6th Floor New York, New York 10005
Attention: Karen Llewellyn, Relationship Manager, Corporate Trust
Re: Optiwave Semiconductor Corp. — 2.75% Convertible Senior Notes due 2028; Indenture dated as of May 30, 2023, between Optiwave Semiconductor Corp. and Broadmere Trust Company, National Association, as Trustee; Aggregate Principal Amount: $287,500,000
Ladies and Gentlemen:
I. Introduction
We have acted as counsel to Optiwave Semiconductor Corp., a corporation duly organized under the laws of the State of Delaware (the "Company" or "OWS"), in connection with the issuance by the Company of $287,500,000 aggregate principal amount of its 2.75% Convertible Senior Notes due 2028 (the "Notes"). The Notes are being issued pursuant to the terms and conditions of an Indenture dated as of May 30, 2023 (the "Indenture"), by and between the Company and Broadmere Trust Company, National Association, in its capacity as trustee thereunder (the "Trustee"). The Notes were offered and sold in a private placement to qualified institutional buyers (as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act")) in reliance upon the exemption from the registration requirements of the Securities Act afforded by Section 4(a)(2) thereof and Rule 144A promulgated thereunder. The offering was conducted through the initial purchasers named in the Purchase Agreement (as defined below).
This opinion letter (this "Opinion") is being furnished and delivered to the Trustee pursuant to Section 4.08 of the Indenture and is referenced herein as C&H Matter No. 1014-00001. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Indenture.
II. 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, instruments, records, and certificates:
1.  The Indenture, dated as of May 30, 2023, by and between the Company and the Trustee, as executed and delivered on the date hereof (the "Indenture");
2.  The form of Global Note representing the Notes, attached as Exhibit A to the Indenture, bearing CUSIP No. 683742AA5 and ISIN No. US683742AA53 (the "Global Note");
3.  The Restated Certificate of Incorporation of the Company, as amended through the date hereof, as certified by the Secretary of State of the State of Delaware on or about the date hereof (the "Charter");
4.  The Amended and Restated Bylaws of the Company, as currently in effect, as certified by the Corporate Secretary of the Company (the "Bylaws");
5.  Resolutions of the Board of Directors of the Company duly adopted at a meeting held on May 19, 2023 (the "Board Resolutions"), authorizing, among other things, the issuance and sale of the Notes, the execution and delivery of the Indenture, the Purchase Agreement, and the other Transaction Documents (as defined therein), and the performance by the Company of its obligations thereunder;
6.  Resolutions of the Pricing Committee of the Board of Directors of the Company duly adopted on May 23, 2023 (the "Pricing Committee Resolutions"), approving the final pricing terms of the Notes, including the aggregate principal amount, the interest rate, the initial conversion rate, the initial conversion price, and the other commercial terms of the offering;
7.  The Secretary's Certificate of the Company, dated May 30, 2023, executed by David Shih, General Counsel and Corporate Secretary of the Company (the "Secretary's Certificate"), certifying, among other things, the Charter, the Bylaws, the Board Resolutions, the Pricing Committee Resolutions, and the incumbency and specimen signatures of the officers of the Company authorized to execute and deliver the Indenture, the Notes, the Purchase Agreement, and the other Transaction Documents on behalf of the Company;
8.  The Officers' Certificate delivered to the Trustee pursuant to Section 4.08 of the Indenture, dated May 30, 2023, executed by Priya Nandakumar, Chief Financial Officer of the Company (the "Officers' Certificate");
9.  A Certificate of Good Standing with respect to the Company, issued by the Secretary of State of the State of Delaware, dated on or about the date hereof (the "Good Standing Certificate");
10.  The Purchase Agreement, dated May 24, 2023 (the "Purchase Agreement"), among the Company, Ridgepoint Capital Markets LLC, Harborstone Securities Inc., and Velthorn Zanthor & Co. (collectively, the "Initial Purchasers"), relating to the purchase and resale of the Notes;
11.  The Final Offering Memorandum, dated May 24, 2023, relating to the offer and sale of the Notes (the "Offering Memorandum"), including the documents incorporated by reference therein; and
12.  Such other documents, records, corporate proceedings, certificates, and instruments as we have deemed necessary or appropriate as a basis for the opinions expressed herein.
We have also made such inquiries of officers and representatives of the Company and have examined such questions of law as we have considered necessary or appropriate for the purposes of this Opinion.
The documents listed in items (1) through (12) above, together with any other documents reviewed in connection herewith, are collectively referred to herein as the "Opinion Documents." The Indenture, the Notes, and the Purchase Agreement are collectively referred to herein as the "Transaction Documents."
III. Assumptions
In rendering the opinions set forth below, we have, with your consent and without independent verification, assumed the following:
(a) The genuineness of all signatures (other than the signatures of authorized officers and representatives of the Company on documents executed by the Company);
(b) The authenticity and completeness of all documents submitted to us as originals and the conformity to authentic originals of all documents submitted to us as copies, whether certified, conformed, facsimile, electronic, or otherwise;
(c) That each party to the Indenture and the other Transaction Documents, other than the Company, has the requisite organizational power, authority, and legal right to enter into, execute, deliver, and perform its respective obligations under the Indenture and the other Transaction Documents to which it is a party;
(d) That the Indenture has been duly and validly authorized, executed, and delivered by the Trustee, and that the Indenture constitutes a legal, valid, and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms;
(e) That each of the Initial Purchasers has the requisite organizational power, authority, and legal right to enter into, execute, deliver, and perform its obligations under the Purchase Agreement, and that the Purchase Agreement has been duly authorized, executed, and delivered by each of the Initial Purchasers;
(f) The accuracy, completeness, and truthfulness of all certificates, representations, warranties, and statements of fact made by officers, directors, and other representatives of the Company in the Opinion Documents, including without limitation those made in the Secretary's Certificate and the Officers' Certificate, and we have not independently verified the accuracy of any such certificates, representations, warranties, or statements;
(g) That there has been no change in applicable law between the date of our review of the relevant legal authorities and the date of this Opinion that would affect the opinions expressed herein; and
(h) That the conduct of the parties to the Transaction Documents has been and will be in compliance with any requirement of good faith, fair dealing, and conscionability imposed by law.
IV. Opinions
Based upon and subject to the foregoing and the qualifications and limitations set forth herein, and having regard for such legal considerations as we have deemed relevant, we are of the opinion that:
4.1 Due Incorporation and Good Standing. The Company is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. In rendering this opinion, we have relied solely upon the Good Standing Certificate issued by the Secretary of State of the State of Delaware and our review of the Charter as on file with the Secretary of State. The Company's Delaware file number is 5738291.
4.2 Corporate Power and Authority. The Company has the requisite corporate power and authority under its Charter, Bylaws, and the General Corporation Law of the State of Delaware to execute, deliver, and perform its obligations under the Indenture and the Notes, and to consummate the transactions contemplated thereby, including, without limitation, the obligation to convert the Notes into shares of common stock, par value $0.001 per share, of the Company (the "Common Stock") in accordance with the terms and conditions set forth in the Indenture, and to otherwise perform all of its obligations under the Transaction Documents.
4.3 Due Authorization. The execution, delivery, and performance by the Company of the Indenture and the Notes, the issuance of the Notes, and the consummation of the transactions contemplated thereby, have been duly authorized by all necessary corporate action on the part of the Company. Without limiting the generality of the foregoing, the Board Resolutions adopted on May 19, 2023 and the Pricing Committee Resolutions adopted on May 23, 2023 collectively constitute all corporate action necessary to authorize the execution, delivery, and performance of the Indenture and the Notes, the issuance and sale of the Notes, and the reservation and issuance of shares of Common Stock upon conversion of the Notes. No further approval, consent, or authorization of the stockholders of the Company or of any other corporate body is required for the issuance of the Notes or the performance by the Company of its obligations under the Transaction Documents.
4.4 Execution and Delivery. The Indenture has been duly executed and delivered by the Company. The officers of the Company who executed the Indenture on behalf of the Company were duly authorized to do so as of the date of execution and delivery thereof, as evidenced by the Board Resolutions, the Pricing Committee Resolutions, and the Secretary's Certificate.
4.5 Enforceability of the Indenture. The Indenture constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, and similar laws relating to or affecting creditors' rights and remedies generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law).
4.6 Enforceability of the Notes. The Notes have been duly authorized, executed, authenticated, issued, and delivered in accordance with the provisions of the Indenture and constitute legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits provided by the Indenture, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, and similar laws relating to or affecting creditors' rights and remedies generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law). The Notes have been issued in global form, registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), and are evidenced by one or more Global Notes deposited with the Trustee, as custodian for DTC (DTC Participant No. 2174 for Broadmere Trust Company, N.A.). The aggregate principal amount of the Notes issued and outstanding as of the date hereof is $287,500,000, consisting of $250,000,000 of base offering amount and $37,500,000 of additional Notes issued upon the exercise in full by the Initial Purchasers of their option to purchase additional Notes pursuant to Section 2 of the Purchase Agreement.
4.7 Valid Issuance of Common Stock Upon Conversion. The shares of Common Stock issuable upon conversion of the Notes (up to approximately 3,042,325 shares, based on the initial conversion rate of 10.5820 shares of Common Stock per $1,000 principal amount of Notes), when issued and delivered upon conversion of the Notes in accordance with the terms and conditions of the Indenture, will be duly authorized, validly issued, fully paid, and non-assessable, and the issuance of such shares will not be subject to any preemptive rights, rights of first refusal, or similar rights. The initial conversion price is approximately $94.50 per share, representing a conversion premium of approximately 28.8% over the reference price of $73.38 per share, which was the closing sale price of the Common Stock on The Nasdaq Global Select Market on May 23, 2023 (the date of pricing of the offering). Pursuant to the terms of the Indenture, the Company has the ability to elect net share settlement, under which the Company would pay cash in respect of the principal amount of the Notes being converted and deliver shares of Common Stock in respect of the conversion value, if any, in excess of the principal amount. The Company has duly reserved from its authorized and unissued shares of Common Stock a number of shares sufficient to provide for the conversion of the Notes at the initial conversion rate, subject to adjustment as provided in the Indenture.
4.8 No Conflicts. The execution, delivery, and performance by the Company of the Indenture and the issuance of the Notes in accordance with the terms of the Indenture and the Purchase Agreement do not and will not:
(a) violate, conflict with, or result in a breach of any provision of, or constitute a default under, the Restated Certificate of Incorporation or the Amended and Restated Bylaws of the Company;
(b) violate, conflict with, or result in a breach of any applicable law, statute, rule, or regulation of the State of New York or the State of Delaware, or any applicable federal law, statute, rule, or regulation of the United States of America, in each case that, in our experience, is normally applicable to transactions of the type contemplated by the Transaction Documents; or
(c) result in a breach of, or constitute a default (or an event that, with or without 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 assets of the Company pursuant to, any material agreement, indenture, mortgage, deed of trust, loan agreement, lease, license, or other instrument known to us to which the Company is a party or by which the Company or any of its properties or assets may be bound.
With respect to the opinion set forth in clause (c) above, we note that a limited consent and waiver was obtained by the Company on May 22, 2023 from the requisite lenders under the $300,000,000 senior secured revolving credit facility (the "Credit Facility") evidenced by that certain Credit Agreement, dated as of September 14, 2021, as amended, among the Company, certain subsidiaries of the Company as guarantors, Crestline National Bank, N.A., as administrative agent (the "Administrative Agent"), and the lenders party thereto (the "Credit Agreement"), pursuant to which the requisite lenders consented to the incurrence by the Company of the indebtedness represented by the Notes as "Permitted Additional Indebtedness" under Section 7.01(b) of the Credit Agreement and waived any default or event of default that would otherwise arise from the issuance of the Notes or the execution and delivery of the Indenture. Our opinion in clause (c) above is rendered in reliance upon such consent and waiver.
4.9 No Registration Required. Assuming the accuracy of the representations and warranties made by each of the Initial Purchasers in the Purchase Agreement regarding the manner of offer and sale of the Notes, including, without limitation, that the Notes were offered and sold exclusively to qualified institutional buyers (as defined in Rule 144A under the Securities Act) in transactions complying with Rule 144A, no registration of the Notes under the Securities Act is required in connection with the offer, sale, and delivery of the Notes as described in the Offering Memorandum and the Purchase Agreement. The Notes were offered and sold by the Company in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act, and resold by the Initial Purchasers to qualified institutional buyers in reliance on the exemption from registration provided by Rule 144A promulgated under the Securities Act. We express no opinion as to any subsequent resale or transfer of the Notes or any obligation of the Company to register the Notes for resale under the Securities Act at any future date.
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 thereof in the manner described in the Offering Memorandum under the caption "Use of Proceeds," the Company will not be required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), or the rules and regulations promulgated thereunder. In rendering this opinion, we have relied upon the representations, warranties, and covenants of the Company set forth in the Purchase Agreement and the description of the Company's business and operations set forth in the Offering Memorandum.
V. Qualifications and Limitations
The opinions expressed herein are subject to the following qualifications, limitations, and exceptions:
(a) Jurisdictional Limitation. The opinions expressed herein are limited in all respects to the laws of the State of New York, the General Corporation Law of the State of Delaware (including the statutory provisions thereof, the applicable provisions of the Delaware Constitution, and the reported judicial decisions interpreting the foregoing), and the applicable federal laws of the United States of America. We express no opinion as to the laws of any other jurisdiction, and we express no opinion as to the effect of any non-New York, non-Delaware, or non-federal laws on the matters addressed herein. We note that the Indenture and the Notes are governed by, and construed in accordance with, the laws of the State of New York.
(b) Bankruptcy and Equitable Principles Exception. The enforceability opinions set forth in Sections 4.5 and 4.6 above are subject to and limited by (i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium, arrangement, fraudulent transfer, fraudulent conveyance, preference, and similar laws relating to or affecting the rights and remedies of creditors generally, including without limitation the United States Bankruptcy Code, as amended, (ii) general principles of equity, including without limitation principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding in equity or at law), and (iii) the discretion of the court before which any proceeding therefor may be brought.
(c) Equitable Remedies. We express no opinion as to the availability of specific performance, injunctive relief, or any other equitable remedy upon the breach or threatened breach of the Indenture or the Notes, as such availability is subject to the discretion of the court before which any such proceeding is brought.
(d) Indemnification and Contribution. The enforceability of provisions of the Transaction Documents relating to indemnification, contribution, or exculpation may be limited by applicable law, including federal and state securities laws, and considerations of public policy. We express no opinion as to the enforceability of any such provisions to the extent they purport to provide indemnification or contribution with respect to liabilities arising under the Securities Act or other applicable securities laws.
(e) Securities Law Assumptions. The opinions expressed in Section 4.9 above are based upon and subject to the assumption that the offering and sale of the Notes were conducted in the manner described in the Offering Memorandum and the Purchase Agreement, and in compliance with the applicable requirements of Rule 144A and Section 4(a)(2) of the Securities Act. We have not undertaken any independent investigation or inquiry to confirm such compliance.
(f) Tax Matters. We express no opinion with respect to any tax matters, including without limitation any federal, state, local, or foreign income, estate, gift, transfer, sales, use, or other tax consequences arising from the issuance, sale, ownership, conversion, or disposition of the Notes or the Common Stock issuable upon conversion thereof. We note that a separate tax memorandum addressing certain U.S. federal income tax consequences of the offering has been prepared by Leonard Cross, tax counsel, dated May 29, 2023, and addressed to the Company.
(g) Blue Sky Laws. We express no opinion with respect to compliance with or the applicability of state "blue sky" or securities laws of any jurisdiction, other than the federal securities laws of the United States, in connection with the offer, sale, or resale of the Notes.
VI. Reliance and Use Restrictions
This Opinion is rendered solely for the benefit of the addressee hereof, Broadmere Trust Company, National Association, solely in its capacity as Trustee under the Indenture, and may not be relied upon by any other person or entity, or used, circulated, quoted, referred to, or filed with any governmental agency, or otherwise, without the prior written consent of Calderwood & Harkness LLP, except that this Opinion may be relied upon by any successor trustee under the Indenture to the same extent as if this Opinion were addressed and delivered to such successor trustee on the date hereof.
This Opinion is given as of the date hereof, and we assume no obligation, and hereby disclaim any obligation, to update, revise, or supplement this Opinion for any reason, including by reason of events occurring, information coming to our attention, or changes in law or the interpretation thereof occurring after the date hereof. The opinions expressed herein are limited to the specific matters expressly stated herein, and no opinion is to be implied or inferred beyond the matters expressly so stated. Without limiting the generality of the foregoing, we express no opinion with respect to any matter not specifically addressed herein, and the identification of any specific matter in this Opinion shall not be construed as an indication that we have expressed or intended to express any opinion on any other matter, whether or not similar to the matters specifically addressed herein.
We consent to the filing of this Opinion as an exhibit to the Indenture and to the reference to this firm in the Offering Memorandum, to the extent required. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Jennifer Kwon, Partner
cc:
David Shih General Counsel & Corporate Secretary Optiwave Semiconductor Corp. 4800 Great America Parkway, Suite 1200 San Jose, California 95054
Claire Dempsey, Lead Associate Calderwood & Harkness LLP 600 Lexington Avenue, 30th Floor New York, New York 10022 (Internal File Copy — C&H Matter No. 1014-00001)

CALDERWOOD & HARKNESS LLP Attorneys at Law

CALDERWOOD & HARKNESS LLP

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