1014-00003 · Optiwave Semiconductor Corp · Engagement & Client Intake

engagement-letter-ows.docx DOCUMENT Litigation

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CALDERWOOD & HARKNESS LLP Attorneys at Law

One Embarcadero Center, 34th Floor San Francisco, California 94111

Telephone: (415) 773-6000 Facsimile: (415) 773-6001 www.calderwoodharkness.com

May 12, 2022

VIA ELECTRONIC MAIL AND HAND DELIVERY

Sandra Ellison, Esq. General Counsel Optiwave Semiconductor Corp. 2775 Augustine Drive, Suite 400 San Jose, California 95054

Re: Engagement of Calderwood & Harkness LLP by Optiwave Semiconductor Corp. — Patent Infringement Litigation Against Lumos Photonics, Inc. C&H Matter No.: 1014-00003

Dear Ms. Ellison:

We are writing to memorialize the terms and conditions under which Calderwood & Harkness LLP ("C&H" or the "Firm") will represent Optiwave Semiconductor Corp. ("OWS" or the "Client") in connection with the above-referenced matter. This engagement letter (together with the enclosed Appendices, this "Letter") sets forth the mutual understandings of the Firm and the Client regarding the scope of the engagement, the professionals who will be principally responsible for the representation, the fee arrangement, and other terms governing our relationship. We ask that you review this Letter carefully, and if the terms set forth herein are acceptable, please indicate your agreement by executing and returning a copy as described in Section 15 below.

1. Purpose and Scope of Engagement

Calderwood & Harkness LLP is pleased to confirm the terms of its engagement by Optiwave Semiconductor Corp., a Delaware corporation headquartered in San Jose, California, to represent OWS as lead litigation counsel in connection with the prosecution of a patent infringement action against Lumos Photonics, Inc. ("Lumos"), a Delaware corporation headquartered in Austin, Texas (Nasdaq: LMPH).

Specifically, the Firm will represent OWS in contemplated federal patent infringement litigation to be filed in the United States District Court for the Northern District of California, asserting infringement by Lumos of the following United States patents owned by OWS:

(a) U.S. Patent No. 10,234,567 ("the '567 Patent"), entitled "Integrated Waveguide Coupler with Tapered Mode Converter for Silicon Photonics Platforms";

(b) U.S. Patent No. 10,891,234 ("the '234 Patent"), entitled "Germanium-on-Silicon Photodetector with Graded Buffer Layer for Enhanced Responsivity";

(c) U.S. Patent No. 11,045,678 ("the '678 Patent"), entitled "Multi-Channel Optical Transceiver with Integrated Wavelength-Division Multiplexing on Silicon"; and

(d) U.S. Patent No. 11,312,890 ("the '890 Patent"), entitled "Driver Circuit Architecture for High-Speed Silicon Photonic Mach-Zehnder Modulators."

The scope of this engagement encompasses all phases of the contemplated litigation, including, without limitation: (i) pre-suit investigation and analysis of infringement, validity, and enforceability; (ii) drafting and filing of the complaint, including any amended or supplemental pleadings; (iii) claim construction proceedings (commonly known as Markman proceedings) under 35 U.S.C. § 112 and applicable Federal Circuit precedent; (iv) fact discovery, including the preparation and review of written discovery requests and responses, document production, and depositions of fact witnesses; (v) expert discovery, including the retention and coordination of technical and damages experts, preparation and review of expert reports, and participation in expert depositions; (vi) dispositive motions, including motions for summary judgment and any Daubert challenges to expert testimony; (vii) trial, including jury selection, presentation of the case-in-chief, cross-examination, and closing arguments; (viii) post-trial proceedings, including any motions for judgment as a matter of law, motions for a new trial, and assessment of enhanced damages under 35 U.S.C. § 284; and (ix) any related settlement negotiations or alternative dispute resolution proceedings that may arise during the course of the litigation.

The scope of this engagement does not include any of the following, unless separately agreed to by the Firm and the Client in writing:

(a) Patent prosecution before the United States Patent and Trademark Office, including the preparation, filing, or prosecution of patent applications or continuation applications related to the patents-in-suit or any other OWS intellectual property;

(b) Patent office proceedings, including inter partes review proceedings, ex parte reexamination proceedings, post-grant review proceedings, or any other proceedings before the Patent Trial and Appeal Board;

(c) Representation of OWS in any other litigation or legal matter not specifically identified herein, including any counterclaims filed by Lumos that raise subject matter outside the scope of the patent infringement claims asserted by OWS, except to the extent such counterclaims are compulsory and arise directly out of the same transaction or occurrence as OWS's patent infringement claims; and

(d) Representation of OWS before any regulatory body, including the U.S. International Trade Commission.

This engagement letter supersedes any prior oral discussions, correspondence, or understandings between the parties regarding the terms and conditions of the Firm's representation of OWS in connection with this matter. Any modifications to the scope of this engagement must be agreed to in writing by both parties.

2. Engagement Team

The Firm has assembled an engagement team with extensive experience in complex patent litigation involving semiconductor and photonics technologies. The core members of the engagement team are identified below. Each member has been selected for their particular expertise in the technical and legal issues anticipated to arise in this matter.

Responsible Partner: Alan Ngo, Partner, intellectual Property Group, San Francisco office. Mr. Ngo is a registered patent attorney with the United States Patent and Trademark Office (USPTO Reg. No. 52,871) and has twenty-two (22) years of experience in patent litigation, with a particular focus on disputes involving semiconductor fabrication processes, integrated photonic circuits, and high-speed data communications technologies. Mr. Ngo holds a Bachelor of Science in Electrical Engineering from the University of California, Los Angeles (UCLA). Mr. Ngo will have overall responsibility for the strategic direction and supervision of the engagement, including all key litigation decisions, court appearances, and client communications.

Billing Partner: Marcus Delgado, Partner, intellectual Property Group, San Francisco office. Mr. Delgado will manage the client billing relationship and fee arrangements described in this Letter, serve as a secondary point of contact for the Client regarding administrative and financial matters related to the engagement, and will contribute substantively to the litigation as appropriate. Mr. Delgado has eighteen (18) years of experience in intellectual property litigation and related counseling.

Lead Associate: Omar Siddiqui, Senior Associate, intellectual Property Group, San Francisco office. Mr. Siddiqui has six (6) years of experience in patent litigation, including significant experience with claim construction briefing, discovery management, and expert coordination in semiconductor and photonics patent disputes. Mr. Siddiqui holds a Master of Science in Electrical Engineering from the Georgia Institute of Technology and a Juris Doctor from the University of Virginia School of Law.

Working Associate: Christy Bauer, Associate, intellectual Property Group, San Francisco office. Ms. Bauer has three (3) years of experience in patent litigation and intellectual property counseling. Ms. Bauer holds a Bachelor of Science in Physics from the California Institute of Technology (Caltech) and a Juris Doctor from Stanford Law School. Ms. Bauer will assist with legal research, drafting, document review, and discovery-related tasks.

The Firm may, from time to time, assign additional attorneys, patent agents, paralegals, litigation support specialists, or other support staff to this matter as reasonably necessary to ensure the efficient and effective handling of the engagement. Any material changes to the core engagement team identified above—including the substitution of any named partner or the assignment of any additional partner or senior associate expected to perform significant work on the matter—will be communicated to the Client in advance. The Firm will endeavor to staff the engagement efficiently and to avoid unnecessary duplication of effort.

3. Fee Arrangement

3.1 Hourly Rates

Professional fees for this engagement will be calculated on an hourly basis at the standard billing rates of the attorneys and other timekeepers assigned to the matter, subject to the volume discount described in Section 3.2 below. Time will be recorded in increments of one-tenth (0.1) of an hour. The standard billing rates for the initial members of the engagement team for calendar year 2022 are as follows:

Paralegals and other litigation support staff assigned to the matter will be billed at rates ranging from $275 to $425 per hour, depending on the seniority and experience of the individual timekeeper. A schedule of paralegal and support staff rates will be provided to the Client upon request.

3.2 Volume discount

In recognition of the anticipated scope, complexity, and duration of this engagement, and in consideration of the strength of the relationship between the Firm and OWS, the Firm will apply a ten percent (10%) volume discount to all standard billing rates for attorney time on this matter. The effective discounted rates for the initial engagement team for calendar year 2022 are as follows:

The ten percent (10%) volume discount applies exclusively to attorney time and does not apply to paralegal or support staff time, costs, disbursements, third-party charges, or any other non-attorney fees incurred in connection with this matter. The volume discount will be applied to the standard billing rate of any additional attorney assigned to the matter during the pendency of this engagement.

3.3 Rate Adjustments

The Firm's standard billing rates are subject to periodic adjustment, which typically takes effect on January 1 of each calendar year. The Firm will provide the Client with at least thirty (30) days' advance written notice of any changes to the standard billing rates applicable to timekeepers assigned to this matter. Such notice will specify the effective date of the new rates and the identity and new rate of each affected timekeeper.

The ten percent (10%) volume discount described in Section 3.2 above will remain in effect for the entire duration of this engagement, regardless of any adjustments to standard billing rates. Accordingly, the discount will be applied to the then-current standard rates in effect at the time services are performed.

4. Retainer

OWS shall pay an initial evergreen retainer deposit in the amount of One Hundred Thousand Dollars ($100,000.00), payable upon execution of this engagement letter. Payment may be made by wire transfer in accordance with the instructions set forth in Appendix B enclosed herewith, or by check made payable to "Calderwood & Harkness LLP Client Trust Account."

The retainer shall be deposited into and held in the Firm's client trust account, which is an Interest on Lawyers' Trust Account (IOLTA) maintained in accordance with the requirements of the State Bar of California. The retainer shall be applied to outstanding fees and costs as they are incurred and invoiced in accordance with Section 6 below.

The retainer shall be maintained at the level of One Hundred Thousand Dollars ($100,000.00) on an ongoing basis throughout the pendency of the engagement. To that end, the retainer shall be replenished to the full amount of $100,000.00 on a quarterly basis—that is, at the beginning of each calendar quarter during the pendency of the engagement—within fifteen (15) business days of the Firm's written request for replenishment. The Firm will provide the Client with a written accounting of retainer applications and the remaining balance in connection with each replenishment request.

Upon the conclusion of the engagement and the satisfaction of all outstanding invoices for fees and costs, any unused portion of the retainer will be promptly returned to the Client, together with a final accounting of all retainer transactions.

5. Costs and Disbursements

In addition to professional fees for attorney and staff time, OWS will be responsible for the reimbursement of all reasonable out-of-pocket costs and disbursements incurred by the Firm in connection with this matter. Such costs and disbursements include, but are not limited to, the following:

(a) Court filing fees, service of process costs, and other fees imposed by the court or required in connection with the filing or service of pleadings, motions, and other papers;

(b) Travel expenses, including airfare, hotel and lodging charges, ground transportation (taxi, car rental, ride-share services), parking, and reasonable meal expenses, incurred in connection with court appearances, depositions, witness interviews, client meetings, and other travel reasonably necessary for the prosecution of the litigation;

(c) Expert witness fees and expenses, including the professional fees, travel expenses, and related costs of technical experts and damages experts retained for this matter;

(d) Court reporter fees and transcript costs, including expedited transcript charges where reasonably necessary;

(e) Document production, copying, and printing costs, including charges for large-volume reproduction of documents for production, court filings, and trial exhibits;

(f) Electronic discovery and litigation support vendor charges, including the costs of data collection, processing, hosting, review platform licensing, and production of electronically stored information;

(g) Messenger and overnight delivery charges, including charges for Severin Partners LLC, Halcyon Partners LLC, and similar courier services;

(h) Computerized legal research charges, including charges for access to Westmark Data Systems, Sundial Solutions, Pemberton Data Systems, and other research databases; and

(i) Demonstrative exhibit preparation costs, including graphic design, trial technology, and multimedia presentation services.

With respect to expert fees and expenses, the Client acknowledges that the Firm anticipates retaining the services of the following expert consultants in connection with this matter: (i) Whitfield Technical Consulting Group, Inc. for technical expert analysis related to the accused Lumos products and the patents-in-suit, and (ii) Apex Claim Analytics LLC for damages expert analysis, including lost profits, reasonable royalty, and related financial modeling. Expert fees will be billed at the rates set forth in separate retention agreements between the Firm (acting on behalf of OWS) and each expert consultant or firm. Such fees will be separately invoiced to the Client or passed through as disbursements on the Firm's monthly invoices, as appropriate.

The Firm will exercise reasonable judgment in incurring costs and disbursements and will seek advance approval from the Client for any single disbursement that is reasonably expected to exceed Twenty-Five Thousand Dollars ($25,000.00). Notwithstanding the foregoing, the Firm may incur disbursements in excess of this threshold without prior approval in circumstances where the expenditure is time-sensitive and delay would be prejudicial to OWS's interests in the litigation, provided that the Firm notifies the Client of such expenditure promptly thereafter.

6. Billing and Payment

The Firm will issue monthly invoices for professional fees and disbursements incurred during the preceding calendar month. Invoices will ordinarily be transmitted by the tenth (10th) business day of the month following the month in which the services were rendered or costs incurred.

Each invoice will contain a reasonably detailed description of the services rendered, including: (i) the date on which services were performed; (ii) the identity of the timekeeper who performed the services; (iii) a narrative description of the services rendered; (iv) the time spent, recorded in tenths of an hour; and (v) the applicable billing rate for each timekeeper (reflecting the volume discount). In addition, each invoice will include a separate itemization of costs and disbursements incurred during the billing period, with a brief description of each cost or disbursement and the corresponding amount.

All invoices are due and payable within thirty (30) days of the invoice date. Payments should be directed to the Firm's operating account in accordance with the wire transfer instructions set forth in Appendix B, or by check made payable to "Calderwood & Harkness LLP."

In the event that any invoice remains unpaid beyond sixty (60) days from the invoice date, the Firm reserves the right to apply amounts held in the retainer deposit to satisfy such overdue invoice, in whole or in part, subject to prior written notice to the Client. The Firm will provide the Client with at least ten (10) business days' written notice before applying retainer funds to any unpaid invoice, and will afford the Client an opportunity to remit payment before such application.

The Firm is committed to transparency in billing and encourages the Client to raise any questions or concerns regarding invoices promptly. The Firm will work cooperatively with the Client and its internal or external billing review personnel to address any billing inquiries in a timely manner.

7. Litigation Budget

The Firm and the Client have discussed a preliminary litigation budget for this matter. Based on the Firm's assessment of the anticipated scope and complexity of the litigation, the parties have agreed upon a preliminary total budget of Four Million Two Hundred Thousand Dollars ($4,200,000.00) to cover all professional fees and costs through and including trial, as authorized by the OWS Board of Directors at its meeting on April 28, 2022, with the concurrence of Vantage Point Capital Partners Fund IV, LP, OWS's majority shareholder.

The Firm will provide periodic budget updates to the Client, including a comparison of actual expenditures to the approved budget, at intervals to be agreed upon but no less frequently than quarterly. The Firm will promptly notify the Client if actual expenditures are projected to materially exceed the approved budget, and will discuss with the Client any adjustments to litigation strategy or staffing that may be appropriate to manage costs.

The Client understands and acknowledges that the budget is an estimate based on the Firm's current understanding of the scope and complexity of the matter and the likely course of the litigation. The budget is not intended as, and shall not be construed as, a cap or ceiling on fees or costs. Actual fees and costs may be higher or lower than the budgeted amount depending on, among other things, the complexity and scope of discovery, the number of depositions, the course and outcome of claim construction proceedings, the nature and extent of motion practice, the duration of trial, and the conduct of opposing counsel and the court. The Firm will endeavor to manage the matter efficiently and within the budgeted parameters, but cannot guarantee that the final cost of the engagement will fall within the estimated budget.

8. Conflicts of Interest

8.1 Conflict Check

The Firm has conducted a comprehensive conflicts check in accordance with its standard internal procedures and the applicable California Rules of Professional Conduct (Rules 1.7 and 1.9), as well as the corresponding provisions of the American Bar Association Model Rules of Professional Conduct. The conflicts check encompassed a review of the Firm's current and former client database with respect to OWS, Lumos Photonics, Inc., and their respective known officers, directors, affiliates, subsidiaries, parent entities, and significant shareholders, as well as anticipated opposing counsel.

As of the date of this Letter, the Firm has identified no conflicts of interest that would prevent it from undertaking this engagement, subject to the disclosures and waivers described in Sections 8.2 and 8.3 below.

8.2 Disclosures. In the interest of full transparency, the Firm discloses the following:

(a) Ridgeline Asset Management, LLC. The Firm has performed limited, unrelated transactional work in prior years for entities affiliated with Ridgeline Asset Management, LLC ("Ridgeline"), which the Firm understands to be the largest institutional shareholder of Lumos Photonics, Inc., currently holding approximately 9.2% of Lumos's outstanding common shares. The prior Ridgeline engagement involved the review and negotiation of certain fund formation documents on behalf of a Ridgeline-affiliated investment vehicle, is now closed, and is entirely unrelated to the subject matter of the contemplated patent infringement litigation. The Firm does not currently represent Ridgeline or any of its affiliates in any matter, and the Firm does not possess any confidential information obtained in the course of the prior Ridgeline engagement that would be material to this litigation.

(b) Lumos Photonics, Inc. The Firm has no current or prior attorney-client relationship with Lumos Photonics, Inc. or any of its affiliates, subsidiaries, officers, or directors.

(c) Brannick Howell & Stein LLP. The Firm has no current or prior attorney-client relationship with Brannick Howell & Stein LLP, which the Firm understands to be the law firm anticipated to serve as defense counsel for Lumos in this matter, or any of its affiliated entities.

(d) First Pacific Commerce Bank, N.A.; Vantage Point Capital Partners. The Firm has no current representation of First Pacific Commerce Bank, N.A. (OWS's primary lender), Vantage Point Capital Partners Fund IV, LP (OWS's majority shareholder), or Vantage Point Capital GP IV, LLC (the general partner of Vantage Point Capital Partners Fund IV, LP) in any matter adverse to OWS. The Firm notes for completeness that it has from time to time performed unrelated transactional work for other portfolio companies of Vantage Point Capital Partners in the ordinary course of the Firm's practice, but such representations are unrelated to this engagement and do not give rise to any conflict of interest.

8.3 Waiver. By executing this engagement letter, OWS confirms that it has been informed of the disclosures set forth in Section 8.2 above, has had the opportunity to consult with independent counsel regarding the potential implications of such disclosures, and hereby waives any potential conflict of interest arising from the Firm's prior closed representation of entities affiliated with Ridgeline Asset Management, LLC, as described in Section 8.2(a). This waiver is limited in scope and is conditioned on the understanding that the Firm's prior Ridgeline engagement is closed and unrelated to this matter. This waiver shall not extend to, and shall not be construed as a waiver of any objection to, any future representation by the Firm of Ridgeline Asset Management, LLC, or any of its affiliates, in any matter adverse to OWS or its interests.

The Firm will conduct ongoing conflicts monitoring throughout the course of this engagement and will promptly notify the Client of any new potential conflict that may arise.

9. Confidentiality

All information provided by OWS to the Firm in connection with this engagement, whether in oral, written, or electronic form, will be treated as confidential and will be protected by the attorney-client privilege and/or the attorney work product doctrine, as applicable under governing law.

The Firm will not disclose confidential client information to any third party without OWS's prior written consent, except as may be required by applicable law, court order, or the California Rules of Professional Conduct. The Firm maintains physical, electronic, and procedural safeguards to protect the confidentiality and security of client information, including the use of encrypted communications, secure document storage systems, and access controls consistent with industry standards.

The confidentiality obligations set forth in this Section shall survive the termination of this engagement.

10. Communication and Reporting

The Firm recognizes the importance of regular and transparent communication with the Client and its stakeholders throughout the course of this engagement. Accordingly, the Firm will provide regular status reports on the progress of the litigation to the following individuals:

(a) Sandra Ellison, General Counsel, Optiwave Semiconductor Corp. — Ms. Ellison will serve as the primary point of contact for all communications between the Firm and OWS; and

(b) Rebecca Torres, Operating Partner, Semiconductor Sector, Vantage Point Capital Partners Fund IV, LP — Ms. Torres will receive status reports and updates as directed by OWS and to the extent authorized by OWS's General Counsel.

Status reports will be provided on a frequency to be mutually agreed upon by the Firm and the Client, but no less frequently than bi-weekly during active phases of the litigation (e.g., discovery, claim construction, trial preparation) and monthly during less active periods. Status reports will include a summary of recent developments, upcoming deadlines and milestones, an assessment of the current strategic posture of the case, and any recommendations regarding litigation strategy.

The Firm will seek OWS's input and approval on all significant litigation decisions, including, without limitation: (i) the timing and content of the complaint and any amended pleadings; (ii) claim construction strategy, including the selection of claim terms for construction and proposed constructions; (iii) discovery strategy, including the scope and timing of depositions and the engagement of experts; (iv) settlement discussions or overtures, including the evaluation and response to any settlement proposals from Lumos; and (v) the filing of any dispositive motions, including motions for summary judgment.

The Client's primary points of contact for this engagement will be:

(a) Sandra Ellison, General Counsel, Optiwave Semiconductor Corp.; and

(b) Theodore "Ted" Marchetti, Vice President of intellectual Property, Optiwave Semiconductor Corp. (USPTO Reg. No. 58,304).

The Firm will direct all substantive communications regarding this matter to Ms. Ellison and Mr. Marchetti unless otherwise instructed by the Client.

11. Document Preservation

The Firm will prepare and issue a comprehensive litigation hold notice to OWS promptly upon the commencement of the litigation (and, as appropriate, in anticipation of filing the complaint). The litigation hold notice will identify the categories of documents and electronically stored information that must be preserved, the custodians and data sources subject to the hold, and the specific preservation obligations of OWS and its employees.

OWS agrees to cooperate fully in the preservation and collection of all documents and electronically stored information relevant to the matter, including implementing reasonable measures to suspend any automatic deletion policies or document retention schedules that might result in the destruction of potentially relevant materials. The Firm will work with OWS's information technology personnel and any third-party e-discovery vendors to ensure that preservation obligations are met in a manner consistent with the Federal Rules of Civil Procedure, including Rule 37(e), and any applicable court orders or standing orders of the Northern District of California.

12. Termination

Either party may terminate this engagement at any time upon written notice to the other party. The Client's right to terminate this engagement is absolute and unconditional. The Firm's right to terminate or withdraw from the engagement is subject to the Firm's obligations under the California Rules of Professional Conduct and any applicable rules of the court in which an appearance has been filed, including any requirement to obtain court approval for withdrawal as counsel of record.

Upon termination of this engagement for any reason:

(a) OWS shall remain responsible for the payment of all fees and costs incurred by the Firm through the effective date of termination, as well as any fees and costs reasonably and necessarily incurred in connection with the orderly transition of the matter to successor counsel;

(b) The Firm will take all steps reasonably necessary to protect OWS's interests pending the substitution of successor counsel, including complying with any applicable court-ordered deadlines and providing reasonable transition assistance to successor counsel;

(c) The Firm will promptly return to OWS all original client files, documents, and property in the Firm's possession, subject to the Firm's right to retain copies of such materials for its own records, for compliance with applicable law and professional rules, and as may be necessary to resolve any dispute between the Firm and the Client regarding fees or costs; and

(d) The Firm's obligations under Section 9 (Confidentiality) shall survive the termination of this engagement.

13. No Guarantee of Outcome

The Firm will devote its best professional efforts and the full resources of its intellectual Property Group to achieve a favorable result for OWS in this litigation. However, the Client understands and acknowledges that the Firm makes no guarantees, warranties, or representations regarding the outcome of the litigation, including, without limitation, the likelihood of prevailing on any particular claim or defense, the likelihood of obtaining any particular level of damages (whether measured as lost profits, a reasonable royalty, or otherwise), the likelihood of obtaining injunctive or other equitable relief, or the duration or cost of the proceedings. Litigation is inherently uncertain, and results depend upon many factors outside the Firm's control, including the decisions of the court and jury, the actions of opposing counsel and parties, and developments in the law.

The Firm's assessment of the merits of OWS's claims, as communicated in prior discussions with the Client, reflects the Firm's professional judgment based on the information currently available and should not be construed as a prediction or guarantee of a particular outcome.

14. Governing Law and Dispute Resolution

This engagement letter shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.

In the event of any dispute, claim, or controversy arising out of or relating to this engagement letter or the Firm's representation of OWS, including any dispute regarding fees, costs, or the quality of the Firm's services, the parties agree to attempt in good faith to resolve such dispute through direct negotiation between the Client's General Counsel and the Firm's General Counsel. If the parties are unable to resolve the dispute through negotiation within thirty (30) days of written notice of the dispute, the matter shall be submitted to final and binding arbitration in San Francisco, California, administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted before a single arbitrator selected in accordance with the AAA's procedures. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.

Notwithstanding the foregoing, nothing in this Section shall preclude either party from seeking temporary or preliminary injunctive relief in a court of competent jurisdiction to prevent irreparable harm pending the outcome of arbitration.

15. Acceptance and Execution

We ask that OWS indicate its acceptance of and agreement to the terms and conditions set forth in this engagement letter by having an authorized representative of OWS sign in the space provided below and return an executed copy to the Firm. An executed copy may be delivered by hand, by electronic mail (in PDF format), or by overnight courier to the undersigned at the address set forth in the letterhead above. This Letter may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

Upon execution by both parties, this Letter will constitute a binding agreement between the Firm and OWS with respect to the terms and conditions of the engagement described herein.

[Signature Page Follows]

SIGNATURE PAGE ENGAGEMENT LETTER — C&H MATTER NO. 1014-00003

FOR CALDERWOOD & HARKNESS LLP:

CALDERWOOD & HARKNESS LLP

By: ________

Name: Alan Ngo

Title: Partner, intellectual Property Group

Date: May 12, 2022

By: ________

Name: Marcus Delgado

Title: Partner, intellectual Property Group

Date: May 12, 2022

ACCEPTED AND AGREED — OPTIWAVE SEMICONDUCTOR CORP.:

OPTIWAVE SEMICONDUCTOR CORP.

By: ________

Name: Sandra Ellison

Title: General Counsel

Date: May 12, 2022

Enclosures:

Appendix A — Calderwood & Harkness LLP Standard Terms of Engagement

Appendix B — Wire Transfer Instructions for Retainer Deposit

We are enthusiastic about the opportunity to represent Optiwave Semiconductor Corp. in this important matter, and we are confident that our team possesses the technical expertise, litigation experience, and strategic acumen necessary to prosecute OWS's patent infringement claims effectively and efficiently. Our team is prepared to begin work immediately upon execution of this Letter, and we look forward to a successful collaboration.

Should you have any questions regarding this engagement letter or any aspect of the contemplated representation, please do not hesitate to contact either of us directly:

Alan Ngo Partner, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Direct: (415) 773-6142

Email: a.ngo@calderwoodharkness.com

Marcus Delgado Partner, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Direct: (415) 773-6207

Email: m.delgado@calderwoodharkness.com

We look forward to hearing from you.

Very truly yours,

CALDERWOOD & HARKNESS LLP

Timekeeper	Position	Standard Rate (2022)
Alan Ngo	Partner	$1,150 per hour
Marcus Delgado	Partner	$1,050 per hour
Omar Siddiqui	Senior Associate	$785 per hour
Christy Bauer	Associate	$625 per hour
Timekeeper	Standard Rate	discounted Rate (10% discount)
Alan Ngo	$1,150/hr	$1,035.00/hr
Marcus Delgado	$1,050/hr	$945.00/hr
Omar Siddiqui	$785/hr	$706.50/hr
Christy Bauer	$625/hr	$562.50/hr

CALDERWOOD & HARKNESS LLP Attorneys at Law
One Embarcadero Center, 34th Floor San Francisco, California 94111
Telephone: (415) 773-6000 Facsimile: (415) 773-6001 www.calderwoodharkness.com
May 12, 2022
VIA ELECTRONIC MAIL AND HAND DELIVERY
Sandra Ellison, Esq. General Counsel Optiwave Semiconductor Corp. 2775 Augustine Drive, Suite 400 San Jose, California 95054
Re: Engagement of Calderwood & Harkness LLP by Optiwave Semiconductor Corp. — Patent Infringement Litigation Against Lumos Photonics, Inc. C&H Matter No.: 1014-00003
Dear Ms. Ellison:
We are writing to memorialize the terms and conditions under which Calderwood & Harkness LLP ("C&H" or the "Firm") will represent Optiwave Semiconductor Corp. ("OWS" or the "Client") in connection with the above-referenced matter. This engagement letter (together with the enclosed Appendices, this "Letter") sets forth the mutual understandings of the Firm and the Client regarding the scope of the engagement, the professionals who will be principally responsible for the representation, the fee arrangement, and other terms governing our relationship. We ask that you review this Letter carefully, and if the terms set forth herein are acceptable, please indicate your agreement by executing and returning a copy as described in Section 15 below.
1. Purpose and Scope of Engagement
Calderwood & Harkness LLP is pleased to confirm the terms of its engagement by Optiwave Semiconductor Corp., a Delaware corporation headquartered in San Jose, California, to represent OWS as lead litigation counsel in connection with the prosecution of a patent infringement action against Lumos Photonics, Inc. ("Lumos"), a Delaware corporation headquartered in Austin, Texas (Nasdaq: LMPH).
Specifically, the Firm will represent OWS in contemplated federal patent infringement litigation to be filed in the United States District Court for the Northern District of California, asserting infringement by Lumos of the following United States patents owned by OWS:
(a) U.S. Patent No. 10,234,567 ("the '567 Patent"), entitled "Integrated Waveguide Coupler with Tapered Mode Converter for Silicon Photonics Platforms";
(b) U.S. Patent No. 10,891,234 ("the '234 Patent"), entitled "Germanium-on-Silicon Photodetector with Graded Buffer Layer for Enhanced Responsivity";
(c) U.S. Patent No. 11,045,678 ("the '678 Patent"), entitled "Multi-Channel Optical Transceiver with Integrated Wavelength-Division Multiplexing on Silicon"; and
(d) U.S. Patent No. 11,312,890 ("the '890 Patent"), entitled "Driver Circuit Architecture for High-Speed Silicon Photonic Mach-Zehnder Modulators."
The scope of this engagement encompasses all phases of the contemplated litigation, including, without limitation: (i) pre-suit investigation and analysis of infringement, validity, and enforceability; (ii) drafting and filing of the complaint, including any amended or supplemental pleadings; (iii) claim construction proceedings (commonly known as Markman proceedings) under 35 U.S.C. § 112 and applicable Federal Circuit precedent; (iv) fact discovery, including the preparation and review of written discovery requests and responses, document production, and depositions of fact witnesses; (v) expert discovery, including the retention and coordination of technical and damages experts, preparation and review of expert reports, and participation in expert depositions; (vi) dispositive motions, including motions for summary judgment and any Daubert challenges to expert testimony; (vii) trial, including jury selection, presentation of the case-in-chief, cross-examination, and closing arguments; (viii) post-trial proceedings, including any motions for judgment as a matter of law, motions for a new trial, and assessment of enhanced damages under 35 U.S.C. § 284; and (ix) any related settlement negotiations or alternative dispute resolution proceedings that may arise during the course of the litigation.
The scope of this engagement does not include any of the following, unless separately agreed to by the Firm and the Client in writing:
(a) Patent prosecution before the United States Patent and Trademark Office, including the preparation, filing, or prosecution of patent applications or continuation applications related to the patents-in-suit or any other OWS intellectual property;
(b) Patent office proceedings, including inter partes review proceedings, ex parte reexamination proceedings, post-grant review proceedings, or any other proceedings before the Patent Trial and Appeal Board;
(c) Representation of OWS in any other litigation or legal matter not specifically identified herein, including any counterclaims filed by Lumos that raise subject matter outside the scope of the patent infringement claims asserted by OWS, except to the extent such counterclaims are compulsory and arise directly out of the same transaction or occurrence as OWS's patent infringement claims; and
(d) Representation of OWS before any regulatory body, including the U.S. International Trade Commission.
This engagement letter supersedes any prior oral discussions, correspondence, or understandings between the parties regarding the terms and conditions of the Firm's representation of OWS in connection with this matter. Any modifications to the scope of this engagement must be agreed to in writing by both parties.
2. Engagement Team
The Firm has assembled an engagement team with extensive experience in complex patent litigation involving semiconductor and photonics technologies. The core members of the engagement team are identified below. Each member has been selected for their particular expertise in the technical and legal issues anticipated to arise in this matter.
Responsible Partner: Alan Ngo, Partner, intellectual Property Group, San Francisco office. Mr. Ngo is a registered patent attorney with the United States Patent and Trademark Office (USPTO Reg. No. 52,871) and has twenty-two (22) years of experience in patent litigation, with a particular focus on disputes involving semiconductor fabrication processes, integrated photonic circuits, and high-speed data communications technologies. Mr. Ngo holds a Bachelor of Science in Electrical Engineering from the University of California, Los Angeles (UCLA). Mr. Ngo will have overall responsibility for the strategic direction and supervision of the engagement, including all key litigation decisions, court appearances, and client communications.
Billing Partner: Marcus Delgado, Partner, intellectual Property Group, San Francisco office. Mr. Delgado will manage the client billing relationship and fee arrangements described in this Letter, serve as a secondary point of contact for the Client regarding administrative and financial matters related to the engagement, and will contribute substantively to the litigation as appropriate. Mr. Delgado has eighteen (18) years of experience in intellectual property litigation and related counseling.
Lead Associate: Omar Siddiqui, Senior Associate, intellectual Property Group, San Francisco office. Mr. Siddiqui has six (6) years of experience in patent litigation, including significant experience with claim construction briefing, discovery management, and expert coordination in semiconductor and photonics patent disputes. Mr. Siddiqui holds a Master of Science in Electrical Engineering from the Georgia Institute of Technology and a Juris Doctor from the University of Virginia School of Law.
Working Associate: Christy Bauer, Associate, intellectual Property Group, San Francisco office. Ms. Bauer has three (3) years of experience in patent litigation and intellectual property counseling. Ms. Bauer holds a Bachelor of Science in Physics from the California Institute of Technology (Caltech) and a Juris Doctor from Stanford Law School. Ms. Bauer will assist with legal research, drafting, document review, and discovery-related tasks.
The Firm may, from time to time, assign additional attorneys, patent agents, paralegals, litigation support specialists, or other support staff to this matter as reasonably necessary to ensure the efficient and effective handling of the engagement. Any material changes to the core engagement team identified above—including the substitution of any named partner or the assignment of any additional partner or senior associate expected to perform significant work on the matter—will be communicated to the Client in advance. The Firm will endeavor to staff the engagement efficiently and to avoid unnecessary duplication of effort.
3. Fee Arrangement
3.1 Hourly Rates
Professional fees for this engagement will be calculated on an hourly basis at the standard billing rates of the attorneys and other timekeepers assigned to the matter, subject to the volume discount described in Section 3.2 below. Time will be recorded in increments of one-tenth (0.1) of an hour. The standard billing rates for the initial members of the engagement team for calendar year 2022 are as follows:
Paralegals and other litigation support staff assigned to the matter will be billed at rates ranging from $275 to $425 per hour, depending on the seniority and experience of the individual timekeeper. A schedule of paralegal and support staff rates will be provided to the Client upon request.
3.2 Volume discount
In recognition of the anticipated scope, complexity, and duration of this engagement, and in consideration of the strength of the relationship between the Firm and OWS, the Firm will apply a ten percent (10%) volume discount to all standard billing rates for attorney time on this matter. The effective discounted rates for the initial engagement team for calendar year 2022 are as follows:
The ten percent (10%) volume discount applies exclusively to attorney time and does not apply to paralegal or support staff time, costs, disbursements, third-party charges, or any other non-attorney fees incurred in connection with this matter. The volume discount will be applied to the standard billing rate of any additional attorney assigned to the matter during the pendency of this engagement.
3.3 Rate Adjustments
The Firm's standard billing rates are subject to periodic adjustment, which typically takes effect on January 1 of each calendar year. The Firm will provide the Client with at least thirty (30) days' advance written notice of any changes to the standard billing rates applicable to timekeepers assigned to this matter. Such notice will specify the effective date of the new rates and the identity and new rate of each affected timekeeper.
The ten percent (10%) volume discount described in Section 3.2 above will remain in effect for the entire duration of this engagement, regardless of any adjustments to standard billing rates. Accordingly, the discount will be applied to the then-current standard rates in effect at the time services are performed.
4. Retainer
OWS shall pay an initial evergreen retainer deposit in the amount of One Hundred Thousand Dollars ($100,000.00), payable upon execution of this engagement letter. Payment may be made by wire transfer in accordance with the instructions set forth in Appendix B enclosed herewith, or by check made payable to "Calderwood & Harkness LLP Client Trust Account."
The retainer shall be deposited into and held in the Firm's client trust account, which is an Interest on Lawyers' Trust Account (IOLTA) maintained in accordance with the requirements of the State Bar of California. The retainer shall be applied to outstanding fees and costs as they are incurred and invoiced in accordance with Section 6 below.
The retainer shall be maintained at the level of One Hundred Thousand Dollars ($100,000.00) on an ongoing basis throughout the pendency of the engagement. To that end, the retainer shall be replenished to the full amount of $100,000.00 on a quarterly basis—that is, at the beginning of each calendar quarter during the pendency of the engagement—within fifteen (15) business days of the Firm's written request for replenishment. The Firm will provide the Client with a written accounting of retainer applications and the remaining balance in connection with each replenishment request.
Upon the conclusion of the engagement and the satisfaction of all outstanding invoices for fees and costs, any unused portion of the retainer will be promptly returned to the Client, together with a final accounting of all retainer transactions.
5. Costs and Disbursements
In addition to professional fees for attorney and staff time, OWS will be responsible for the reimbursement of all reasonable out-of-pocket costs and disbursements incurred by the Firm in connection with this matter. Such costs and disbursements include, but are not limited to, the following:
(a) Court filing fees, service of process costs, and other fees imposed by the court or required in connection with the filing or service of pleadings, motions, and other papers;
(b) Travel expenses, including airfare, hotel and lodging charges, ground transportation (taxi, car rental, ride-share services), parking, and reasonable meal expenses, incurred in connection with court appearances, depositions, witness interviews, client meetings, and other travel reasonably necessary for the prosecution of the litigation;
(c) Expert witness fees and expenses, including the professional fees, travel expenses, and related costs of technical experts and damages experts retained for this matter;
(d) Court reporter fees and transcript costs, including expedited transcript charges where reasonably necessary;
(e) Document production, copying, and printing costs, including charges for large-volume reproduction of documents for production, court filings, and trial exhibits;
(f) Electronic discovery and litigation support vendor charges, including the costs of data collection, processing, hosting, review platform licensing, and production of electronically stored information;
(g) Messenger and overnight delivery charges, including charges for Severin Partners LLC, Halcyon Partners LLC, and similar courier services;
(h) Computerized legal research charges, including charges for access to Westmark Data Systems, Sundial Solutions, Pemberton Data Systems, and other research databases; and
(i) Demonstrative exhibit preparation costs, including graphic design, trial technology, and multimedia presentation services.
With respect to expert fees and expenses, the Client acknowledges that the Firm anticipates retaining the services of the following expert consultants in connection with this matter: (i) Whitfield Technical Consulting Group, Inc. for technical expert analysis related to the accused Lumos products and the patents-in-suit, and (ii) Apex Claim Analytics LLC for damages expert analysis, including lost profits, reasonable royalty, and related financial modeling. Expert fees will be billed at the rates set forth in separate retention agreements between the Firm (acting on behalf of OWS) and each expert consultant or firm. Such fees will be separately invoiced to the Client or passed through as disbursements on the Firm's monthly invoices, as appropriate.
The Firm will exercise reasonable judgment in incurring costs and disbursements and will seek advance approval from the Client for any single disbursement that is reasonably expected to exceed Twenty-Five Thousand Dollars ($25,000.00). Notwithstanding the foregoing, the Firm may incur disbursements in excess of this threshold without prior approval in circumstances where the expenditure is time-sensitive and delay would be prejudicial to OWS's interests in the litigation, provided that the Firm notifies the Client of such expenditure promptly thereafter.
6. Billing and Payment
The Firm will issue monthly invoices for professional fees and disbursements incurred during the preceding calendar month. Invoices will ordinarily be transmitted by the tenth (10th) business day of the month following the month in which the services were rendered or costs incurred.
Each invoice will contain a reasonably detailed description of the services rendered, including: (i) the date on which services were performed; (ii) the identity of the timekeeper who performed the services; (iii) a narrative description of the services rendered; (iv) the time spent, recorded in tenths of an hour; and (v) the applicable billing rate for each timekeeper (reflecting the volume discount). In addition, each invoice will include a separate itemization of costs and disbursements incurred during the billing period, with a brief description of each cost or disbursement and the corresponding amount.
All invoices are due and payable within thirty (30) days of the invoice date. Payments should be directed to the Firm's operating account in accordance with the wire transfer instructions set forth in Appendix B, or by check made payable to "Calderwood & Harkness LLP."
In the event that any invoice remains unpaid beyond sixty (60) days from the invoice date, the Firm reserves the right to apply amounts held in the retainer deposit to satisfy such overdue invoice, in whole or in part, subject to prior written notice to the Client. The Firm will provide the Client with at least ten (10) business days' written notice before applying retainer funds to any unpaid invoice, and will afford the Client an opportunity to remit payment before such application.
The Firm is committed to transparency in billing and encourages the Client to raise any questions or concerns regarding invoices promptly. The Firm will work cooperatively with the Client and its internal or external billing review personnel to address any billing inquiries in a timely manner.
7. Litigation Budget
The Firm and the Client have discussed a preliminary litigation budget for this matter. Based on the Firm's assessment of the anticipated scope and complexity of the litigation, the parties have agreed upon a preliminary total budget of Four Million Two Hundred Thousand Dollars ($4,200,000.00) to cover all professional fees and costs through and including trial, as authorized by the OWS Board of Directors at its meeting on April 28, 2022, with the concurrence of Vantage Point Capital Partners Fund IV, LP, OWS's majority shareholder.
The Firm will provide periodic budget updates to the Client, including a comparison of actual expenditures to the approved budget, at intervals to be agreed upon but no less frequently than quarterly. The Firm will promptly notify the Client if actual expenditures are projected to materially exceed the approved budget, and will discuss with the Client any adjustments to litigation strategy or staffing that may be appropriate to manage costs.
The Client understands and acknowledges that the budget is an estimate based on the Firm's current understanding of the scope and complexity of the matter and the likely course of the litigation. The budget is not intended as, and shall not be construed as, a cap or ceiling on fees or costs. Actual fees and costs may be higher or lower than the budgeted amount depending on, among other things, the complexity and scope of discovery, the number of depositions, the course and outcome of claim construction proceedings, the nature and extent of motion practice, the duration of trial, and the conduct of opposing counsel and the court. The Firm will endeavor to manage the matter efficiently and within the budgeted parameters, but cannot guarantee that the final cost of the engagement will fall within the estimated budget.
8. Conflicts of Interest
8.1 Conflict Check
The Firm has conducted a comprehensive conflicts check in accordance with its standard internal procedures and the applicable California Rules of Professional Conduct (Rules 1.7 and 1.9), as well as the corresponding provisions of the American Bar Association Model Rules of Professional Conduct. The conflicts check encompassed a review of the Firm's current and former client database with respect to OWS, Lumos Photonics, Inc., and their respective known officers, directors, affiliates, subsidiaries, parent entities, and significant shareholders, as well as anticipated opposing counsel.
As of the date of this Letter, the Firm has identified no conflicts of interest that would prevent it from undertaking this engagement, subject to the disclosures and waivers described in Sections 8.2 and 8.3 below.
8.2 Disclosures.  In the interest of full transparency, the Firm discloses the following:
(a) Ridgeline Asset Management, LLC. The Firm has performed limited, unrelated transactional work in prior years for entities affiliated with Ridgeline Asset Management, LLC ("Ridgeline"), which the Firm understands to be the largest institutional shareholder of Lumos Photonics, Inc., currently holding approximately 9.2% of Lumos's outstanding common shares. The prior Ridgeline engagement involved the review and negotiation of certain fund formation documents on behalf of a Ridgeline-affiliated investment vehicle, is now closed, and is entirely unrelated to the subject matter of the contemplated patent infringement litigation. The Firm does not currently represent Ridgeline or any of its affiliates in any matter, and the Firm does not possess any confidential information obtained in the course of the prior Ridgeline engagement that would be material to this litigation.
(b) Lumos Photonics, Inc. The Firm has no current or prior attorney-client relationship with Lumos Photonics, Inc. or any of its affiliates, subsidiaries, officers, or directors.
(c) Brannick Howell & Stein LLP. The Firm has no current or prior attorney-client relationship with Brannick Howell & Stein LLP, which the Firm understands to be the law firm anticipated to serve as defense counsel for Lumos in this matter, or any of its affiliated entities.
(d) First Pacific Commerce Bank, N.A.; Vantage Point Capital Partners. The Firm has no current representation of First Pacific Commerce Bank, N.A. (OWS's primary lender), Vantage Point Capital Partners Fund IV, LP (OWS's majority shareholder), or Vantage Point Capital GP IV, LLC (the general partner of Vantage Point Capital Partners Fund IV, LP) in any matter adverse to OWS. The Firm notes for completeness that it has from time to time performed unrelated transactional work for other portfolio companies of Vantage Point Capital Partners in the ordinary course of the Firm's practice, but such representations are unrelated to this engagement and do not give rise to any conflict of interest.
8.3 Waiver.  By executing this engagement letter, OWS confirms that it has been informed of the disclosures set forth in Section 8.2 above, has had the opportunity to consult with independent counsel regarding the potential implications of such disclosures, and hereby waives any potential conflict of interest arising from the Firm's prior closed representation of entities affiliated with Ridgeline Asset Management, LLC, as described in Section 8.2(a). This waiver is limited in scope and is conditioned on the understanding that the Firm's prior Ridgeline engagement is closed and unrelated to this matter. This waiver shall not extend to, and shall not be construed as a waiver of any objection to, any future representation by the Firm of Ridgeline Asset Management, LLC, or any of its affiliates, in any matter adverse to OWS or its interests.
The Firm will conduct ongoing conflicts monitoring throughout the course of this engagement and will promptly notify the Client of any new potential conflict that may arise.
9. Confidentiality
All information provided by OWS to the Firm in connection with this engagement, whether in oral, written, or electronic form, will be treated as confidential and will be protected by the attorney-client privilege and/or the attorney work product doctrine, as applicable under governing law.
The Firm will not disclose confidential client information to any third party without OWS's prior written consent, except as may be required by applicable law, court order, or the California Rules of Professional Conduct. The Firm maintains physical, electronic, and procedural safeguards to protect the confidentiality and security of client information, including the use of encrypted communications, secure document storage systems, and access controls consistent with industry standards.
The confidentiality obligations set forth in this Section shall survive the termination of this engagement.
10. Communication and Reporting
The Firm recognizes the importance of regular and transparent communication with the Client and its stakeholders throughout the course of this engagement. Accordingly, the Firm will provide regular status reports on the progress of the litigation to the following individuals:
(a) Sandra Ellison, General Counsel, Optiwave Semiconductor Corp. — Ms. Ellison will serve as the primary point of contact for all communications between the Firm and OWS; and
(b) Rebecca Torres, Operating Partner, Semiconductor Sector, Vantage Point Capital Partners Fund IV, LP — Ms. Torres will receive status reports and updates as directed by OWS and to the extent authorized by OWS's General Counsel.
Status reports will be provided on a frequency to be mutually agreed upon by the Firm and the Client, but no less frequently than bi-weekly during active phases of the litigation (e.g., discovery, claim construction, trial preparation) and monthly during less active periods. Status reports will include a summary of recent developments, upcoming deadlines and milestones, an assessment of the current strategic posture of the case, and any recommendations regarding litigation strategy.
The Firm will seek OWS's input and approval on all significant litigation decisions, including, without limitation: (i) the timing and content of the complaint and any amended pleadings; (ii) claim construction strategy, including the selection of claim terms for construction and proposed constructions; (iii) discovery strategy, including the scope and timing of depositions and the engagement of experts; (iv) settlement discussions or overtures, including the evaluation and response to any settlement proposals from Lumos; and (v) the filing of any dispositive motions, including motions for summary judgment.
The Client's primary points of contact for this engagement will be:
(a) Sandra Ellison, General Counsel, Optiwave Semiconductor Corp.; and
(b) Theodore "Ted" Marchetti, Vice President of intellectual Property, Optiwave Semiconductor Corp. (USPTO Reg. No. 58,304).
The Firm will direct all substantive communications regarding this matter to Ms. Ellison and Mr. Marchetti unless otherwise instructed by the Client.
11. Document Preservation
The Firm will prepare and issue a comprehensive litigation hold notice to OWS promptly upon the commencement of the litigation (and, as appropriate, in anticipation of filing the complaint). The litigation hold notice will identify the categories of documents and electronically stored information that must be preserved, the custodians and data sources subject to the hold, and the specific preservation obligations of OWS and its employees.
OWS agrees to cooperate fully in the preservation and collection of all documents and electronically stored information relevant to the matter, including implementing reasonable measures to suspend any automatic deletion policies or document retention schedules that might result in the destruction of potentially relevant materials. The Firm will work with OWS's information technology personnel and any third-party e-discovery vendors to ensure that preservation obligations are met in a manner consistent with the Federal Rules of Civil Procedure, including Rule 37(e), and any applicable court orders or standing orders of the Northern District of California.
12. Termination
Either party may terminate this engagement at any time upon written notice to the other party. The Client's right to terminate this engagement is absolute and unconditional. The Firm's right to terminate or withdraw from the engagement is subject to the Firm's obligations under the California Rules of Professional Conduct and any applicable rules of the court in which an appearance has been filed, including any requirement to obtain court approval for withdrawal as counsel of record.
Upon termination of this engagement for any reason:
(a) OWS shall remain responsible for the payment of all fees and costs incurred by the Firm through the effective date of termination, as well as any fees and costs reasonably and necessarily incurred in connection with the orderly transition of the matter to successor counsel;
(b) The Firm will take all steps reasonably necessary to protect OWS's interests pending the substitution of successor counsel, including complying with any applicable court-ordered deadlines and providing reasonable transition assistance to successor counsel;
(c) The Firm will promptly return to OWS all original client files, documents, and property in the Firm's possession, subject to the Firm's right to retain copies of such materials for its own records, for compliance with applicable law and professional rules, and as may be necessary to resolve any dispute between the Firm and the Client regarding fees or costs; and
(d) The Firm's obligations under Section 9 (Confidentiality) shall survive the termination of this engagement.
13. No Guarantee of Outcome
The Firm will devote its best professional efforts and the full resources of its intellectual Property Group to achieve a favorable result for OWS in this litigation. However, the Client understands and acknowledges that the Firm makes no guarantees, warranties, or representations regarding the outcome of the litigation, including, without limitation, the likelihood of prevailing on any particular claim or defense, the likelihood of obtaining any particular level of damages (whether measured as lost profits, a reasonable royalty, or otherwise), the likelihood of obtaining injunctive or other equitable relief, or the duration or cost of the proceedings. Litigation is inherently uncertain, and results depend upon many factors outside the Firm's control, including the decisions of the court and jury, the actions of opposing counsel and parties, and developments in the law.
The Firm's assessment of the merits of OWS's claims, as communicated in prior discussions with the Client, reflects the Firm's professional judgment based on the information currently available and should not be construed as a prediction or guarantee of a particular outcome.
14. Governing Law and Dispute Resolution
This engagement letter shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.
In the event of any dispute, claim, or controversy arising out of or relating to this engagement letter or the Firm's representation of OWS, including any dispute regarding fees, costs, or the quality of the Firm's services, the parties agree to attempt in good faith to resolve such dispute through direct negotiation between the Client's General Counsel and the Firm's General Counsel. If the parties are unable to resolve the dispute through negotiation within thirty (30) days of written notice of the dispute, the matter shall be submitted to final and binding arbitration in San Francisco, California, administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted before a single arbitrator selected in accordance with the AAA's procedures. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
Notwithstanding the foregoing, nothing in this Section shall preclude either party from seeking temporary or preliminary injunctive relief in a court of competent jurisdiction to prevent irreparable harm pending the outcome of arbitration.
15. Acceptance and Execution
We ask that OWS indicate its acceptance of and agreement to the terms and conditions set forth in this engagement letter by having an authorized representative of OWS sign in the space provided below and return an executed copy to the Firm. An executed copy may be delivered by hand, by electronic mail (in PDF format), or by overnight courier to the undersigned at the address set forth in the letterhead above. This Letter may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
Upon execution by both parties, this Letter will constitute a binding agreement between the Firm and OWS with respect to the terms and conditions of the engagement described herein.
[Signature Page Follows]
SIGNATURE PAGE ENGAGEMENT LETTER — C&H MATTER NO. 1014-00003
FOR CALDERWOOD & HARKNESS LLP:
CALDERWOOD & HARKNESS LLP
By: ________
Name: Alan Ngo
Title: Partner, intellectual Property Group
Date: May 12, 2022
By: ________
Name: Marcus Delgado
Title: Partner, intellectual Property Group
Date: May 12, 2022
ACCEPTED AND AGREED — OPTIWAVE SEMICONDUCTOR CORP.:
OPTIWAVE SEMICONDUCTOR CORP.
By: ________
Name: Sandra Ellison
Title: General Counsel
Date: May 12, 2022
Enclosures:
Appendix A — Calderwood & Harkness LLP Standard Terms of Engagement
Appendix B — Wire Transfer Instructions for Retainer Deposit
We are enthusiastic about the opportunity to represent Optiwave Semiconductor Corp. in this important matter, and we are confident that our team possesses the technical expertise, litigation experience, and strategic acumen necessary to prosecute OWS's patent infringement claims effectively and efficiently. Our team is prepared to begin work immediately upon execution of this Letter, and we look forward to a successful collaboration.
Should you have any questions regarding this engagement letter or any aspect of the contemplated representation, please do not hesitate to contact either of us directly:
Alan Ngo Partner, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Direct: (415) 773-6142
Email: a.ngo@calderwoodharkness.com
Marcus Delgado Partner, intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, CA 94111 Direct: (415) 773-6207
Email: m.delgado@calderwoodharkness.com
We look forward to hearing from you.
Very truly yours,
CALDERWOOD & HARKNESS LLP
Timekeeper | Position | Standard Rate (2022)
Alan Ngo | Partner | $1,150 per hour
Marcus Delgado | Partner | $1,050 per hour
Omar Siddiqui | Senior Associate | $785 per hour
Christy Bauer | Associate | $625 per hour
Timekeeper | Standard Rate | discounted Rate (10% discount)
Alan Ngo | $1,150/hr | $1,035.00/hr
Marcus Delgado | $1,050/hr | $945.00/hr
Omar Siddiqui | $785/hr | $706.50/hr
Christy Bauer | $625/hr | $562.50/hr

CALDERWOOD & HARKNESS LLP Attorneys at Law

VIA ELECTRONIC MAIL AND HAND DELIVERY

FOR CALDERWOOD & HARKNESS LLP:

CALDERWOOD & HARKNESS LLP

OPTIWAVE SEMICONDUCTOR CORP.

CALDERWOOD & HARKNESS LLP

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