1014-00001 · Client 1014 · documents

officers-certificate-purchase-agreement.docx DOCUMENT Capital Markets

29 / 37 ← → ✕

OFFICERS' CERTIFICATE

Pursuant to Section 6(d) of the Purchase Agreement

May 30, 2023

This Officers' Certificate (this "Certificate") is delivered in connection with the Purchase Agreement, dated May 24, 2023 (the "Purchase Agreement"), among Optiwave Semiconductor Corp., a Delaware corporation (the "Company"), and Ridgepoint Capital Markets LLC, as representative of the several initial purchasers named therein (the "Initial Purchasers"), including Harborstone Securities Inc. and Velthorn Zanthor & Co. The Purchase Agreement relates to the offering and sale of $250,000,000 aggregate principal amount (plus up to an additional $37,500,000 aggregate principal amount pursuant to the over-allotment option granted to the Initial Purchasers thereunder) of the Company's 2.75% Convertible Senior Notes due 2028 (the "Notes"). The Notes are being offered and sold in reliance upon the exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), afforded by Section 4(a)(2) thereof and Rule 144A thereunder.

Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.

1. Identification of Certifying Officers

The undersigned, Marcus Harding, Chief Executive Officer of Optiwave Semiconductor Corp. (the "Company"), and Priya Nandakumar, Chief Financial Officer of the Company, each hereby certify, pursuant to Section 6(d) of the Purchase Agreement, as follows. Each of the undersigned is a duly authorized officer of the Company and is delivering this Certificate on behalf of the Company in connection with the closing of the offering of the Notes on the date hereof (the "Closing Date"). Each of the undersigned has reviewed the Purchase Agreement, the Final Offering Memorandum dated May 24, 2023 (the "Offering Memorandum"), and such other documents, corporate records, and matters as each of the undersigned has deemed necessary or appropriate in order to make the certifications set forth herein. The undersigned are delivering this Certificate in their capacities as officers of the Company and not in their individual capacities, and no personal liability shall attach to the undersigned by reason of the execution and delivery of this Certificate.

2. Representations and Warranties — Bring-Down Certification

Each of the representations and warranties of the Company set forth in Section 1 of the Purchase Agreement is true and correct in all material respects on and as of the date hereof (the Closing Date, May 30, 2023) with the same force and effect as though expressly made on and as of the date hereof, except for any such representations and warranties that by their terms speak as of a specified date or period, which representations and warranties are true and correct in all material respects as of such specified date or period.

No event has occurred between the date of the Purchase Agreement (May 24, 2023) and the Closing Date that would cause any representation or warranty of the Company contained in Section 1 of the Purchase Agreement to be untrue or incorrect in any material respect as of the Closing Date. Without limiting the generality of the foregoing, the representations and warranties of the Company concerning (a) its corporate organization, authority, and good standing, (b) the authorization, execution, delivery, and enforceability of the Purchase Agreement, the Indenture, and the Notes, (c) the absence of conflicts with applicable laws, agreements, and organizational documents, (d) the accuracy and completeness of the Offering Memorandum, (e) the Company's capitalization, (f) the absence of undisclosed liabilities, (g) compliance with applicable securities laws and regulations, (h) the Company's intellectual property and technology, (i) the Company's tax matters, and (j) all other representations and warranties contained in Section 1 of the Purchase Agreement, are, in each case, true and correct in all material respects as of the Closing Date (or, in the case of representations and warranties that speak as of a specified date, as of such specified date).

3. Covenants — Compliance Certification

The Company has performed and complied in all material respects with all of its covenants, agreements, and obligations under the Purchase Agreement that are required to be performed or complied with by the Company on or before the Closing Date. Without limiting the foregoing, the Company has (a) prepared and delivered the Offering Memorandum to the Initial Purchasers in accordance with the terms of the Purchase Agreement, (b) caused the Notes to be executed and authenticated and delivered to or upon the order of the Initial Purchasers through the facilities of The Depository Trust Company ("DTC"), (c) caused the Indenture to be duly executed and delivered, (d) not, without the prior written consent of the representative of the Initial Purchasers, amended, supplemented, or otherwise modified the Offering Memorandum except as contemplated by or permitted under the Purchase Agreement, and (e) taken all such other actions and delivered all such other documents and instruments as are required of the Company under the Purchase Agreement on or before the Closing Date. The Company has cooperated fully with the Initial Purchasers and their counsel in connection with the offering and sale of the Notes and the satisfaction of the conditions to closing set forth in the Purchase Agreement.

4. No Material Adverse Change

Since the date of the most recent financial statements included or incorporated by reference in the Offering Memorandum, there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties, management, or prospects of the Company and its subsidiaries, taken as a whole, from that set forth or contemplated in the Offering Memorandum. The Company's business has continued to be conducted in the ordinary course consistent with past practice since the date of such most recent financial statements. No event or development has occurred or, to the knowledge of the undersigned, is reasonably expected to occur that would, individually or in the aggregate, result in a Material Adverse Effect (as defined in the Purchase Agreement).

No event has occurred that would require an amendment or supplement to the Offering Memorandum that has not been made. All information provided by the Company to the Initial Purchasers in connection with the offering and sale of the Notes remains true and correct in all material respects, and no fact or circumstance has come to the attention of the undersigned that would cause the undersigned to believe that any amendment or supplement to the Offering Memorandum is required as of the date hereof that has not already been prepared and delivered to the Initial Purchasers.

5. Offering Memorandum — No Material Misstatement or Omission

The Offering Memorandum, as of its date and as of the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limiting the foregoing, the financial statements and other financial and statistical data included or incorporated by reference in the Offering Memorandum fairly present in all material respects the information purported to be shown thereby, and such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein.

Each of the Preliminary Offering Memorandum dated May 18, 2023 (the "Preliminary Offering Memorandum") and the Offering Memorandum, as of their respective dates, complied in all material respects with the requirements applicable to an offering exempt from registration pursuant to Section 4(a)(2) of the Securities Act and Rule 144A thereunder. To the knowledge of the undersigned, neither the Company nor any person acting on its behalf has taken or will take any action that would cause the offering and sale of the Notes to fail to be exempt from the registration requirements of the Securities Act. No form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) was used by the Company or, to the knowledge of the undersigned, by any other person acting on behalf of the Company in connection with the offering and sale of the Notes. The Notes have been offered and sold only to persons reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act, in each case in accordance with the terms and conditions of the Purchase Agreement.

6. No Stop Order or Proceedings

No stop order or similar order has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, threatened, by the Securities and Exchange Commission (the "SEC") or any other governmental authority with respect to the offering and sale of the Notes. No order preventing or suspending the use of the Preliminary Offering Memorandum, the Offering Memorandum, or any amendment or supplement thereto has been issued by the SEC or any other governmental authority, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, threatened by the SEC or any other governmental authority. The Company has not received any notice from the SEC or any other governmental authority requesting additional information or indicating that the SEC or such governmental authority intends to review or investigate the offering and sale of the Notes or any offering document used in connection therewith.

7. Conditions to Closing Satisfied

All conditions precedent to the obligations of the Initial Purchasers set forth in Section 6 of the Purchase Agreement, to the extent required to be satisfied by the Company or within the Company's control, have been satisfied or, where applicable, waived by the representative of the Initial Purchasers as of the Closing Date. Without limiting the generality of the foregoing, the undersigned hereby confirm that the following documents and instruments have been duly executed and delivered or are in the process of being delivered concurrently herewith on the Closing Date:

(a) The Indenture, dated as of May 30, 2023 (the "Indenture"), between the Company and Broadmere Trust Company, N.A., as trustee (the "Trustee"), governing the terms and conditions of the Notes;

(b) The Notes in the aggregate principal amount of $250,000,000, in global form, deposited with the Trustee as custodian for The Depository Trust Company (CUSIP 683742AA5), duly executed by the Company and authenticated by the Trustee;

(c) The Capped Call Confirmations, each dated as of May 24, 2023, between the Company and each of Ridgepoint Capital Markets LLC and Northvane Financial Products LP, relating to certain capped call transactions entered into by the Company in connection with the offering of the Notes;

(d) This Officers' Certificate;

(e) The Secretary's Certificate of the Company, dated as of the date hereof, certifying, among other things, the Company's certificate of incorporation, bylaws, and resolutions of the Board of Directors and the Pricing Committee of the Board of Directors authorizing the transactions contemplated by the Purchase Agreement;

(f) The legal opinions and negative assurance letter of Calderwood & Harkness LLP, counsel to the Company, addressed to the Initial Purchasers and dated as of the date hereof, in form and substance satisfactory to the representative of the Initial Purchasers and their counsel; and

(g) Such other documents, instruments, certificates, and opinions as are required to be delivered under Section 6 of the Purchase Agreement.

8. Authorization

The execution, delivery, and performance by the Company of the Purchase Agreement, the Indenture, and the Notes, and the consummation of the transactions contemplated thereby, including the issuance and sale of the Notes and the entry into the Capped Call Confirmations, have been duly authorized by all necessary corporate action on the part of the Company. Such corporate action includes (a) resolutions duly adopted by the Board of Directors of the Company at a meeting duly called and held on May 19, 2023, at which a quorum was present and acting throughout, authorizing the offering, issuance, and sale of the Notes, the execution and delivery of the Purchase Agreement, the Indenture, and the other transaction documents, and the consummation of the transactions contemplated thereby, and (b) resolutions duly adopted by the Pricing Committee of the Board of Directors of the Company on May 23, 2023, establishing the final pricing terms of the Notes, including the aggregate principal amount, interest rate, conversion rate, and initial conversion price. Each of the foregoing resolutions has not been amended, rescinded, or otherwise modified and remains in full force and effect as of the date hereof.

No further corporate action on the part of the Company, including any approval or consent of the stockholders of the Company, is required in connection with the closing of the offering of the Notes, the execution, delivery, and performance by the Company of the Purchase Agreement, the Indenture, and the Notes, or the consummation of the transactions contemplated thereby.

9. Good Standing and Legal Existence

The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware (Delaware Secretary of State file number 5738291). The Company has the corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum and to execute, deliver, and perform its obligations under the Purchase Agreement, the Indenture, and the Notes.

The Company is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties, or prospects of the Company and its subsidiaries, taken as a whole, or on the Company's ability to perform its obligations under the Purchase Agreement, the Indenture, or the Notes.

10. No Litigation or Proceedings

There are no pending or, to the knowledge of the undersigned after due inquiry, threatened legal or governmental proceedings, claims, actions, suits, or investigations against the Company or any of its subsidiaries that (i) are required to be disclosed in the Offering Memorandum and are not so disclosed, or (ii) would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties, or prospects of the Company and its subsidiaries, taken as a whole, or on the Company's ability to perform its obligations under the Purchase Agreement, the Indenture, or the Notes.

There are no pending or, to the knowledge of the undersigned, threatened proceedings or actions that question the validity or enforceability of the Purchase Agreement, the Indenture, or the Notes, or that seek to restrain, enjoin, or prevent the consummation of any of the transactions contemplated by the Purchase Agreement. Neither the Company nor any of its subsidiaries is in violation of, or in default under, any judgment, order, writ, injunction, or decree of any court or governmental agency or instrumentality that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.

11. Over-Allotment Option

The undersigned acknowledge that the Initial Purchasers have been granted an option, pursuant to Section 2 of the Purchase Agreement, to purchase up to an additional $37,500,000 aggregate principal amount of Notes (the "Option Notes") from the Company, exercisable in whole or in part at any time on or before the thirtieth (30th) day following the date of the Purchase Agreement, solely to cover over-allotments in connection with the offering. The delivery of and payment for any Option Notes is subject to the terms and conditions set forth in the Purchase Agreement, including the satisfaction of the conditions to closing set forth in Section 6 thereof.

This Certificate is delivered with respect to the initial closing of $250,000,000 aggregate principal amount of Notes on the Closing Date. To the extent the over-allotment option is exercised by the Initial Purchasers, the Company shall deliver, on the applicable additional closing date, such additional officers' certificates, opinions of counsel, and other documents and instruments as may be required under the Purchase Agreement in connection with any such additional closing, including an officers' certificate substantially in the form hereof, dated as of such additional closing date, with appropriate modifications to reflect the facts and circumstances as of such date.

IN WITNESS WHEREOF, the undersigned have executed this Officers' Certificate as of the date first written above, in their capacities as officers of the Company and not individually.

OPTIWAVE SEMICONDUCTOR CORP.

By: ________

Name: Marcus Harding

Title: Chief Executive Officer

Date: May 30, 2023

OPTIWAVE SEMICONDUCTOR CORP.

By: ________

Name: Priya Nandakumar

Title: Chief Financial Officer

Date: May 30, 2023

Address of the Company: Optiwave Semiconductor Corp. 4800 Great America Parkway, Suite 1200 San Jose, CA 95054

DELIVERY AND DISTRIBUTION

Delivered to:

Ridgepoint Capital Markets LLC (as representative of the Initial Purchasers) 383 Madison Avenue, 22nd Floor New York, NY 10179

Attention: Cameron Walsh, Head of Equity-Linked Origination

Copy to:

Prescott Whitfield LLP (Counsel to the Initial Purchasers) 51 West 52nd Street New York, NY 10019

Attention: Diana Castellano

Copy to:

Calderwood & Harkness LLP (Counsel to the Company) 600 Lexington Avenue, 30th Floor New York, NY 10022

Attention: Jennifer Kwon

OFFICERS' CERTIFICATE
Pursuant to Section 6(d) of the Purchase Agreement
May 30, 2023
This Officers' Certificate (this "Certificate") is delivered in connection with the Purchase Agreement, dated May 24, 2023 (the "Purchase Agreement"), among Optiwave Semiconductor Corp., a Delaware corporation (the "Company"), and Ridgepoint Capital Markets LLC, as representative of the several initial purchasers named therein (the "Initial Purchasers"), including Harborstone Securities Inc. and Velthorn Zanthor & Co. The Purchase Agreement relates to the offering and sale of $250,000,000 aggregate principal amount (plus up to an additional $37,500,000 aggregate principal amount pursuant to the over-allotment option granted to the Initial Purchasers thereunder) of the Company's 2.75% Convertible Senior Notes due 2028 (the "Notes"). The Notes are being offered and sold in reliance upon the exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), afforded by Section 4(a)(2) thereof and Rule 144A thereunder.
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.
1. Identification of Certifying Officers
The undersigned, Marcus Harding, Chief Executive Officer of Optiwave Semiconductor Corp. (the "Company"), and Priya Nandakumar, Chief Financial Officer of the Company, each hereby certify, pursuant to Section 6(d) of the Purchase Agreement, as follows. Each of the undersigned is a duly authorized officer of the Company and is delivering this Certificate on behalf of the Company in connection with the closing of the offering of the Notes on the date hereof (the "Closing Date"). Each of the undersigned has reviewed the Purchase Agreement, the Final Offering Memorandum dated May 24, 2023 (the "Offering Memorandum"), and such other documents, corporate records, and matters as each of the undersigned has deemed necessary or appropriate in order to make the certifications set forth herein. The undersigned are delivering this Certificate in their capacities as officers of the Company and not in their individual capacities, and no personal liability shall attach to the undersigned by reason of the execution and delivery of this Certificate.
2. Representations and Warranties — Bring-Down Certification
Each of the representations and warranties of the Company set forth in Section 1 of the Purchase Agreement is true and correct in all material respects on and as of the date hereof (the Closing Date, May 30, 2023) with the same force and effect as though expressly made on and as of the date hereof, except for any such representations and warranties that by their terms speak as of a specified date or period, which representations and warranties are true and correct in all material respects as of such specified date or period.
No event has occurred between the date of the Purchase Agreement (May 24, 2023) and the Closing Date that would cause any representation or warranty of the Company contained in Section 1 of the Purchase Agreement to be untrue or incorrect in any material respect as of the Closing Date. Without limiting the generality of the foregoing, the representations and warranties of the Company concerning (a) its corporate organization, authority, and good standing, (b) the authorization, execution, delivery, and enforceability of the Purchase Agreement, the Indenture, and the Notes, (c) the absence of conflicts with applicable laws, agreements, and organizational documents, (d) the accuracy and completeness of the Offering Memorandum, (e) the Company's capitalization, (f) the absence of undisclosed liabilities, (g) compliance with applicable securities laws and regulations, (h) the Company's intellectual property and technology, (i) the Company's tax matters, and (j) all other representations and warranties contained in Section 1 of the Purchase Agreement, are, in each case, true and correct in all material respects as of the Closing Date (or, in the case of representations and warranties that speak as of a specified date, as of such specified date).
3. Covenants — Compliance Certification
The Company has performed and complied in all material respects with all of its covenants, agreements, and obligations under the Purchase Agreement that are required to be performed or complied with by the Company on or before the Closing Date. Without limiting the foregoing, the Company has (a) prepared and delivered the Offering Memorandum to the Initial Purchasers in accordance with the terms of the Purchase Agreement, (b) caused the Notes to be executed and authenticated and delivered to or upon the order of the Initial Purchasers through the facilities of The Depository Trust Company ("DTC"), (c) caused the Indenture to be duly executed and delivered, (d) not, without the prior written consent of the representative of the Initial Purchasers, amended, supplemented, or otherwise modified the Offering Memorandum except as contemplated by or permitted under the Purchase Agreement, and (e) taken all such other actions and delivered all such other documents and instruments as are required of the Company under the Purchase Agreement on or before the Closing Date. The Company has cooperated fully with the Initial Purchasers and their counsel in connection with the offering and sale of the Notes and the satisfaction of the conditions to closing set forth in the Purchase Agreement.
4. No Material Adverse Change
Since the date of the most recent financial statements included or incorporated by reference in the Offering Memorandum, there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties, management, or prospects of the Company and its subsidiaries, taken as a whole, from that set forth or contemplated in the Offering Memorandum. The Company's business has continued to be conducted in the ordinary course consistent with past practice since the date of such most recent financial statements. No event or development has occurred or, to the knowledge of the undersigned, is reasonably expected to occur that would, individually or in the aggregate, result in a Material Adverse Effect (as defined in the Purchase Agreement).
No event has occurred that would require an amendment or supplement to the Offering Memorandum that has not been made. All information provided by the Company to the Initial Purchasers in connection with the offering and sale of the Notes remains true and correct in all material respects, and no fact or circumstance has come to the attention of the undersigned that would cause the undersigned to believe that any amendment or supplement to the Offering Memorandum is required as of the date hereof that has not already been prepared and delivered to the Initial Purchasers.
5. Offering Memorandum — No Material Misstatement or Omission
The Offering Memorandum, as of its date and as of the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limiting the foregoing, the financial statements and other financial and statistical data included or incorporated by reference in the Offering Memorandum fairly present in all material respects the information purported to be shown thereby, and such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein.
Each of the Preliminary Offering Memorandum dated May 18, 2023 (the "Preliminary Offering Memorandum") and the Offering Memorandum, as of their respective dates, complied in all material respects with the requirements applicable to an offering exempt from registration pursuant to Section 4(a)(2) of the Securities Act and Rule 144A thereunder. To the knowledge of the undersigned, neither the Company nor any person acting on its behalf has taken or will take any action that would cause the offering and sale of the Notes to fail to be exempt from the registration requirements of the Securities Act. No form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) was used by the Company or, to the knowledge of the undersigned, by any other person acting on behalf of the Company in connection with the offering and sale of the Notes. The Notes have been offered and sold only to persons reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act, in each case in accordance with the terms and conditions of the Purchase Agreement.
6. No Stop Order or Proceedings
No stop order or similar order has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, threatened, by the Securities and Exchange Commission (the "SEC") or any other governmental authority with respect to the offering and sale of the Notes. No order preventing or suspending the use of the Preliminary Offering Memorandum, the Offering Memorandum, or any amendment or supplement thereto has been issued by the SEC or any other governmental authority, and no proceedings for that purpose have been instituted or, to the knowledge of the undersigned, threatened by the SEC or any other governmental authority. The Company has not received any notice from the SEC or any other governmental authority requesting additional information or indicating that the SEC or such governmental authority intends to review or investigate the offering and sale of the Notes or any offering document used in connection therewith.
7. Conditions to Closing Satisfied
All conditions precedent to the obligations of the Initial Purchasers set forth in Section 6 of the Purchase Agreement, to the extent required to be satisfied by the Company or within the Company's control, have been satisfied or, where applicable, waived by the representative of the Initial Purchasers as of the Closing Date. Without limiting the generality of the foregoing, the undersigned hereby confirm that the following documents and instruments have been duly executed and delivered or are in the process of being delivered concurrently herewith on the Closing Date:
(a) The Indenture, dated as of May 30, 2023 (the "Indenture"), between the Company and Broadmere Trust Company, N.A., as trustee (the "Trustee"), governing the terms and conditions of the Notes;
(b) The Notes in the aggregate principal amount of $250,000,000, in global form, deposited with the Trustee as custodian for The Depository Trust Company (CUSIP 683742AA5), duly executed by the Company and authenticated by the Trustee;
(c) The Capped Call Confirmations, each dated as of May 24, 2023, between the Company and each of Ridgepoint Capital Markets LLC and Northvane Financial Products LP, relating to certain capped call transactions entered into by the Company in connection with the offering of the Notes;
(d) This Officers' Certificate;
(e) The Secretary's Certificate of the Company, dated as of the date hereof, certifying, among other things, the Company's certificate of incorporation, bylaws, and resolutions of the Board of Directors and the Pricing Committee of the Board of Directors authorizing the transactions contemplated by the Purchase Agreement;
(f) The legal opinions and negative assurance letter of Calderwood & Harkness LLP, counsel to the Company, addressed to the Initial Purchasers and dated as of the date hereof, in form and substance satisfactory to the representative of the Initial Purchasers and their counsel; and
(g) Such other documents, instruments, certificates, and opinions as are required to be delivered under Section 6 of the Purchase Agreement.
8. Authorization
The execution, delivery, and performance by the Company of the Purchase Agreement, the Indenture, and the Notes, and the consummation of the transactions contemplated thereby, including the issuance and sale of the Notes and the entry into the Capped Call Confirmations, have been duly authorized by all necessary corporate action on the part of the Company. Such corporate action includes (a) resolutions duly adopted by the Board of Directors of the Company at a meeting duly called and held on May 19, 2023, at which a quorum was present and acting throughout, authorizing the offering, issuance, and sale of the Notes, the execution and delivery of the Purchase Agreement, the Indenture, and the other transaction documents, and the consummation of the transactions contemplated thereby, and (b) resolutions duly adopted by the Pricing Committee of the Board of Directors of the Company on May 23, 2023, establishing the final pricing terms of the Notes, including the aggregate principal amount, interest rate, conversion rate, and initial conversion price. Each of the foregoing resolutions has not been amended, rescinded, or otherwise modified and remains in full force and effect as of the date hereof.
No further corporate action on the part of the Company, including any approval or consent of the stockholders of the Company, is required in connection with the closing of the offering of the Notes, the execution, delivery, and performance by the Company of the Purchase Agreement, the Indenture, and the Notes, or the consummation of the transactions contemplated thereby.
9. Good Standing and Legal Existence
The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware (Delaware Secretary of State file number 5738291). The Company has the corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum and to execute, deliver, and perform its obligations under the Purchase Agreement, the Indenture, and the Notes.
The Company is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties, or prospects of the Company and its subsidiaries, taken as a whole, or on the Company's ability to perform its obligations under the Purchase Agreement, the Indenture, or the Notes.
10. No Litigation or Proceedings
There are no pending or, to the knowledge of the undersigned after due inquiry, threatened legal or governmental proceedings, claims, actions, suits, or investigations against the Company or any of its subsidiaries that (i) are required to be disclosed in the Offering Memorandum and are not so disclosed, or (ii) would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties, or prospects of the Company and its subsidiaries, taken as a whole, or on the Company's ability to perform its obligations under the Purchase Agreement, the Indenture, or the Notes.
There are no pending or, to the knowledge of the undersigned, threatened proceedings or actions that question the validity or enforceability of the Purchase Agreement, the Indenture, or the Notes, or that seek to restrain, enjoin, or prevent the consummation of any of the transactions contemplated by the Purchase Agreement. Neither the Company nor any of its subsidiaries is in violation of, or in default under, any judgment, order, writ, injunction, or decree of any court or governmental agency or instrumentality that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
11. Over-Allotment Option
The undersigned acknowledge that the Initial Purchasers have been granted an option, pursuant to Section 2 of the Purchase Agreement, to purchase up to an additional $37,500,000 aggregate principal amount of Notes (the "Option Notes") from the Company, exercisable in whole or in part at any time on or before the thirtieth (30th) day following the date of the Purchase Agreement, solely to cover over-allotments in connection with the offering. The delivery of and payment for any Option Notes is subject to the terms and conditions set forth in the Purchase Agreement, including the satisfaction of the conditions to closing set forth in Section 6 thereof.
This Certificate is delivered with respect to the initial closing of $250,000,000 aggregate principal amount of Notes on the Closing Date. To the extent the over-allotment option is exercised by the Initial Purchasers, the Company shall deliver, on the applicable additional closing date, such additional officers' certificates, opinions of counsel, and other documents and instruments as may be required under the Purchase Agreement in connection with any such additional closing, including an officers' certificate substantially in the form hereof, dated as of such additional closing date, with appropriate modifications to reflect the facts and circumstances as of such date.
IN WITNESS WHEREOF, the undersigned have executed this Officers' Certificate as of the date first written above, in their capacities as officers of the Company and not individually.
OPTIWAVE SEMICONDUCTOR CORP.
By: ________
Name: Marcus Harding
Title: Chief Executive Officer
Date: May 30, 2023
OPTIWAVE SEMICONDUCTOR CORP.
By: ________
Name: Priya Nandakumar
Title: Chief Financial Officer
Date: May 30, 2023
Address of the Company: Optiwave Semiconductor Corp. 4800 Great America Parkway, Suite 1200 San Jose, CA 95054
DELIVERY AND DISTRIBUTION
Delivered to:
Ridgepoint Capital Markets LLC (as representative of the Initial Purchasers) 383 Madison Avenue, 22nd Floor New York, NY 10179
Attention: Cameron Walsh, Head of Equity-Linked Origination
Copy to:
Prescott Whitfield LLP (Counsel to the Initial Purchasers) 51 West 52nd Street New York, NY 10019
Attention: Diana Castellano
Copy to:
Calderwood & Harkness LLP (Counsel to the Company) 600 Lexington Avenue, 30th Floor New York, NY 10022
Attention: Jennifer Kwon

OFFICERS' CERTIFICATE

OPTIWAVE SEMICONDUCTOR CORP.

OPTIWAVE SEMICONDUCTOR CORP.

DELIVERY AND DISTRIBUTION

Record

Parties

Dates

Amounts