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

retainer-deposit-acknowledgment.docx DOCUMENT Litigation

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PRIVILEGED & CONFIDENTIAL

CALDERWOOD & HARKNESS LLP Attorneys at Law

One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 762-4000 Facsimile: (415) 762-4001 www.calderwoodharkness.com

May 18, 2022

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

Re: Retainer Deposit Acknowledgment

Matter: Optiwave Semiconductor Corp. — Patent Infringement Litigation

Matter Number: 1014-00003

Client EIN (Internal Reference): 47-3918264

Dear Ms. Ellison:

On behalf of Calderwood & Harkness LLP, I am writing to formally acknowledge receipt of the initial evergreen retainer deposit in the amount of One Hundred Thousand Dollars ($100,000.00) from Optiwave Semiconductor Corp. ("Optiwave" or the "Client"). Our records confirm that this payment was received via wire transfer on May 17, 2022. The deposit has been made in connection with the firm's engagement to represent Optiwave Semiconductor Corp. in anticipated patent infringement litigation against Lumos Photonics, Inc. ("Lumos Photonics"), as set forth in the Engagement Letter dated May 12, 2022 (the "Engagement Letter"), which was duly executed by both parties.

We appreciate Optiwave's prompt remittance of the retainer deposit, which enables us to commence work on the matter without delay. This letter serves to memorialize the deposit, confirm its handling in accordance with applicable ethical obligations, and reiterate certain key terms of our engagement for your records.

Confirmation of Deposit into Client Trust Account

In accordance with the California Rules of Professional Conduct, Rule 1.15, and all other applicable rules governing the safekeeping of client property, the retainer deposit of $100,000.00 has been deposited into Calderwood & Harkness LLP's client trust account, which is maintained as an Interest on Lawyers' Trust Account (IOLTA) at Westvale Securities, San Francisco, California. The funds will be held in trust for the benefit of Optiwave Semiconductor Corp. and will be applied against outstanding invoices for professional fees and costs as they are incurred in connection with Matter No. 1014-00003.

It is the firm's policy — and our obligation under the applicable rules of professional conduct — that prior to any application of trust funds to outstanding invoices, the Client will receive an itemized billing statement that clearly reflects the fees and costs to be drawn against the retainer. No funds will be withdrawn from the trust account until the Client has had a reasonable opportunity to review the billing statement and raise any questions or concerns regarding the charges. This process ensures full transparency and protects the Client's interests at every stage of the engagement.

Retainer Terms — Reference to Engagement Letter

Pursuant to Section 4.2 of the Engagement Letter executed on May 12, 2022 between Calderwood & Harkness LLP and Optiwave Semiconductor Corp., we wish to confirm the following terms governing the retainer deposit:

1. Evergreen Structure. The retainer is structured as an "evergreen" retainer in the amount of One Hundred Thousand Dollars ($100,000.00). This structure is intended to ensure that adequate funds remain on deposit throughout the duration of the engagement to cover the anticipated ongoing costs of the litigation.

2. Quarterly Replenishment. The retainer shall be replenished on a quarterly basis. Specifically, upon any draw-down of the retainer balance during a given calendar quarter, Optiwave Semiconductor Corp. agrees to replenish the retainer to the full amount of $100,000.00 at the beginning of each subsequent calendar quarter during the pendency of the engagement. The firm will provide advance written notice to the Client of the retainer balance and the amount required to restore the retainer to its initial level.

3. Not a Flat Fee or Cap. The retainer is not a flat fee for legal services and does not represent a cap or ceiling on the total fees and costs that may be incurred in connection with the matter. Rather, it is a security deposit against which fees and costs will be applied as they are earned and incurred. In the event that fees and costs in any billing period exceed the available retainer balance, the Client will be responsible for payment of the excess amount in accordance with the payment terms set forth below and in the Engagement Letter.

4. Return of Unused Funds. Any unused retainer balance remaining upon the conclusion of the engagement — whether by resolution of the underlying litigation, termination of the engagement by either party, or otherwise — will be promptly returned to Optiwave Semiconductor Corp. within thirty (30) days of the final billing statement, net of any outstanding fees and costs owed to the firm.

Billing Rates Confirmation

As set forth in Section 3.1 of the Engagement Letter, the following standard billing rates apply to the engagement team assigned to this matter. In recognition of the anticipated scope and duration of the engagement, and consistent with the negotiated terms of the Engagement Letter, all hourly rates are subject to a ten percent (10%) volume discount:

The foregoing rates are effective as of the date of the Engagement Letter and remain in effect through December 31, 2022. As noted in the Engagement Letter, the firm reserves the right to adjust standard billing rates on an annual basis, with any such adjustments to take effect no earlier than January 1 of the succeeding calendar year. The Client will receive advance written notice of any rate adjustments no fewer than sixty (60) days prior to the effective date.

Costs and disbursements — including, without limitation, court filing fees, deposition transcript costs, expert witness fees, travel expenses, document production and hosting costs, and other out-of-pocket expenses — will be billed at actual cost incurred and are not subject to the ten percent volume discount. For any single cost item expected to exceed $5,000.00, the firm will seek the Client's prior approval before incurring the expense, consistent with Section 3.3 of the Engagement Letter.

Billing Procedures

Monthly billing statements will be issued for all professional fees and costs incurred during the preceding calendar month. Invoices will be transmitted electronically to the Client's designated billing contact and will include detailed time entries by timekeeper, task descriptions, and an itemization of all costs and disbursements.

Payment is due net thirty (30) days from the date of each invoice. As noted above, retainer funds held in the firm's client trust account will be applied to outstanding invoices only after the Client has had a reasonable opportunity to review the billing statement and confirm approval of the charges. If the Client has any questions or disputes regarding any line item on a billing statement, the Client should contact the Billing Partner identified below within fifteen (15) days of receipt of the invoice so that any concerns may be addressed promptly.

Engagement Team Confirmation

We are pleased to confirm the following engagement team members who will be primarily responsible for the prosecution of this matter:

Responsible Partner: Alan Ngo, intellectual Property Group, San Francisco Office. Mr. Ngo will serve as the lead partner with overall supervisory responsibility for the strategic direction and management of the litigation.

Billing Partner: Marcus Delgado, intellectual Property Group, San Francisco Office. Mr. Delgado will serve as the primary billing contact and will oversee all financial and administrative aspects of the engagement, including invoice preparation, retainer management, and budgeting.

Lead Associate: Omar Siddiqui, intellectual Property Group, San Francisco Office. Mr. Siddiqui will be responsible for day-to-day case management, legal research, motion practice, discovery coordination, and trial preparation.

Working Associate: Christy Bauer, intellectual Property Group, San Francisco Office. Ms. Bauer will provide substantive support across all phases of the litigation, with particular emphasis on patent claim construction analysis, prior art research, and document review.

Additional timekeepers, including paralegals and contract attorneys, may be assigned to the matter from time to time as the needs of the litigation require. The Client will be notified of any material changes to the composition of the engagement team, and the billing rates of any additional timekeepers will be communicated to the Client in advance of the performance of any work.

Matter Scope Reminder

For the avoidance of doubt and consistent with the terms of the Engagement Letter, the scope of this engagement covers the representation of Optiwave Semiconductor Corp. in connection with the prosecution of patent infringement claims against Lumos Photonics, Inc. relating to the following United States patents:

• U.S. Patent No. 10,234,567

• U.S. Patent No. 10,891,234

• U.S. Patent No. 11,045,678

• U.S. Patent No. 11,312,890

As discussed during our initial strategy meeting on May 10, 2022, the anticipated venue for this litigation is the United States District Court for the Northern District of California. The engagement does not extend to any other matters, disputes, or proceedings unless separately agreed to in writing by both Calderwood & Harkness LLP and Optiwave Semiconductor Corp. In the event that the scope of the engagement requires modification — for example, to address counterclaims, additional patents, or related proceedings before the United States Patent and Trademark Office — the parties will execute an appropriate amendment to the Engagement Letter.

Contact Information and Questions

Should you have any questions regarding this acknowledgment letter, the retainer deposit, billing procedures, or any other aspect of our engagement, please do not hesitate to contact Marcus Delgado directly at the San Francisco office:

Marcus Delgado, Partner Intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111 Direct Telephone: (415) 762-4127

Email: mdelgado@calderwoodharkness.com

We greatly appreciate the confidence that Optiwave Semiconductor Corp. has placed in Calderwood & Harkness LLP, and we look forward to providing vigorous and effective representation in this matter. Please do not hesitate to reach out at any time if we can be of further assistance.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Marcus Delgado Partner, intellectual Property Group

cc:

Alan Ngo, Esq. — Calderwood & Harkness LLP Theodore "Ted" Marchetti, Vice President of intellectual Property — Optiwave Semiconductor Corp.

Enclosure:

Copy of wire transfer confirmation dated May 17, 2022 (for records)

Timekeeper	Role	Standard Rate	Volume discount	Effective Rate
Alan Ngo	Partner	$1,150.00/hr	10%	$1,035.00/hr
Marcus Delgado	Partner	$1,050.00/hr	10%	$945.00/hr
Omar Siddiqui	Senior Associate	$785.00/hr	10%	$706.50/hr
Christy Bauer	Associate	$625.00/hr	10%	$562.50/hr

PRIVILEGED & CONFIDENTIAL
CALDERWOOD & HARKNESS LLP Attorneys at Law
One Embarcadero Center, 34th Floor San Francisco, California 94111 Telephone: (415) 762-4000 Facsimile: (415) 762-4001 www.calderwoodharkness.com
May 18, 2022
Sandra Ellison, Esq. General Counsel Optiwave Semiconductor Corp. 2775 Augustine Drive, Suite 400 San Jose, California 95054
Re: Retainer Deposit Acknowledgment
Matter: Optiwave Semiconductor Corp. — Patent Infringement Litigation
Matter Number: 1014-00003
Client EIN (Internal Reference): 47-3918264
Dear Ms. Ellison:
On behalf of Calderwood & Harkness LLP, I am writing to formally acknowledge receipt of the initial evergreen retainer deposit in the amount of One Hundred Thousand Dollars ($100,000.00) from Optiwave Semiconductor Corp. ("Optiwave" or the "Client"). Our records confirm that this payment was received via wire transfer on May 17, 2022. The deposit has been made in connection with the firm's engagement to represent Optiwave Semiconductor Corp. in anticipated patent infringement litigation against Lumos Photonics, Inc. ("Lumos Photonics"), as set forth in the Engagement Letter dated May 12, 2022 (the "Engagement Letter"), which was duly executed by both parties.
We appreciate Optiwave's prompt remittance of the retainer deposit, which enables us to commence work on the matter without delay. This letter serves to memorialize the deposit, confirm its handling in accordance with applicable ethical obligations, and reiterate certain key terms of our engagement for your records.
Confirmation of Deposit into Client Trust Account
In accordance with the California Rules of Professional Conduct, Rule 1.15, and all other applicable rules governing the safekeeping of client property, the retainer deposit of $100,000.00 has been deposited into Calderwood & Harkness LLP's client trust account, which is maintained as an Interest on Lawyers' Trust Account (IOLTA) at Westvale Securities, San Francisco, California. The funds will be held in trust for the benefit of Optiwave Semiconductor Corp. and will be applied against outstanding invoices for professional fees and costs as they are incurred in connection with Matter No. 1014-00003.
It is the firm's policy — and our obligation under the applicable rules of professional conduct — that prior to any application of trust funds to outstanding invoices, the Client will receive an itemized billing statement that clearly reflects the fees and costs to be drawn against the retainer. No funds will be withdrawn from the trust account until the Client has had a reasonable opportunity to review the billing statement and raise any questions or concerns regarding the charges. This process ensures full transparency and protects the Client's interests at every stage of the engagement.
Retainer Terms — Reference to Engagement Letter
Pursuant to Section 4.2 of the Engagement Letter executed on May 12, 2022 between Calderwood & Harkness LLP and Optiwave Semiconductor Corp., we wish to confirm the following terms governing the retainer deposit:
1. Evergreen Structure. The retainer is structured as an "evergreen" retainer in the amount of One Hundred Thousand Dollars ($100,000.00). This structure is intended to ensure that adequate funds remain on deposit throughout the duration of the engagement to cover the anticipated ongoing costs of the litigation.
2. Quarterly Replenishment. The retainer shall be replenished on a quarterly basis. Specifically, upon any draw-down of the retainer balance during a given calendar quarter, Optiwave Semiconductor Corp. agrees to replenish the retainer to the full amount of $100,000.00 at the beginning of each subsequent calendar quarter during the pendency of the engagement. The firm will provide advance written notice to the Client of the retainer balance and the amount required to restore the retainer to its initial level.
3. Not a Flat Fee or Cap. The retainer is not a flat fee for legal services and does not represent a cap or ceiling on the total fees and costs that may be incurred in connection with the matter. Rather, it is a security deposit against which fees and costs will be applied as they are earned and incurred. In the event that fees and costs in any billing period exceed the available retainer balance, the Client will be responsible for payment of the excess amount in accordance with the payment terms set forth below and in the Engagement Letter.
4. Return of Unused Funds. Any unused retainer balance remaining upon the conclusion of the engagement — whether by resolution of the underlying litigation, termination of the engagement by either party, or otherwise — will be promptly returned to Optiwave Semiconductor Corp. within thirty (30) days of the final billing statement, net of any outstanding fees and costs owed to the firm.
Billing Rates Confirmation
As set forth in Section 3.1 of the Engagement Letter, the following standard billing rates apply to the engagement team assigned to this matter. In recognition of the anticipated scope and duration of the engagement, and consistent with the negotiated terms of the Engagement Letter, all hourly rates are subject to a ten percent (10%) volume discount:
The foregoing rates are effective as of the date of the Engagement Letter and remain in effect through December 31, 2022. As noted in the Engagement Letter, the firm reserves the right to adjust standard billing rates on an annual basis, with any such adjustments to take effect no earlier than January 1 of the succeeding calendar year. The Client will receive advance written notice of any rate adjustments no fewer than sixty (60) days prior to the effective date.
Costs and disbursements — including, without limitation, court filing fees, deposition transcript costs, expert witness fees, travel expenses, document production and hosting costs, and other out-of-pocket expenses — will be billed at actual cost incurred and are not subject to the ten percent volume discount. For any single cost item expected to exceed $5,000.00, the firm will seek the Client's prior approval before incurring the expense, consistent with Section 3.3 of the Engagement Letter.
Billing Procedures
Monthly billing statements will be issued for all professional fees and costs incurred during the preceding calendar month. Invoices will be transmitted electronically to the Client's designated billing contact and will include detailed time entries by timekeeper, task descriptions, and an itemization of all costs and disbursements.
Payment is due net thirty (30) days from the date of each invoice. As noted above, retainer funds held in the firm's client trust account will be applied to outstanding invoices only after the Client has had a reasonable opportunity to review the billing statement and confirm approval of the charges. If the Client has any questions or disputes regarding any line item on a billing statement, the Client should contact the Billing Partner identified below within fifteen (15) days of receipt of the invoice so that any concerns may be addressed promptly.
Engagement Team Confirmation
We are pleased to confirm the following engagement team members who will be primarily responsible for the prosecution of this matter:
Responsible Partner: Alan Ngo, intellectual Property Group, San Francisco Office. Mr. Ngo will serve as the lead partner with overall supervisory responsibility for the strategic direction and management of the litigation.
Billing Partner: Marcus Delgado, intellectual Property Group, San Francisco Office. Mr. Delgado will serve as the primary billing contact and will oversee all financial and administrative aspects of the engagement, including invoice preparation, retainer management, and budgeting.
Lead Associate: Omar Siddiqui, intellectual Property Group, San Francisco Office. Mr. Siddiqui will be responsible for day-to-day case management, legal research, motion practice, discovery coordination, and trial preparation.
Working Associate: Christy Bauer, intellectual Property Group, San Francisco Office. Ms. Bauer will provide substantive support across all phases of the litigation, with particular emphasis on patent claim construction analysis, prior art research, and document review.
Additional timekeepers, including paralegals and contract attorneys, may be assigned to the matter from time to time as the needs of the litigation require. The Client will be notified of any material changes to the composition of the engagement team, and the billing rates of any additional timekeepers will be communicated to the Client in advance of the performance of any work.
Matter Scope Reminder
For the avoidance of doubt and consistent with the terms of the Engagement Letter, the scope of this engagement covers the representation of Optiwave Semiconductor Corp. in connection with the prosecution of patent infringement claims against Lumos Photonics, Inc. relating to the following United States patents:
• U.S. Patent No. 10,234,567
• U.S. Patent No. 10,891,234
• U.S. Patent No. 11,045,678
• U.S. Patent No. 11,312,890
As discussed during our initial strategy meeting on May 10, 2022, the anticipated venue for this litigation is the United States District Court for the Northern District of California. The engagement does not extend to any other matters, disputes, or proceedings unless separately agreed to in writing by both Calderwood & Harkness LLP and Optiwave Semiconductor Corp. In the event that the scope of the engagement requires modification — for example, to address counterclaims, additional patents, or related proceedings before the United States Patent and Trademark Office — the parties will execute an appropriate amendment to the Engagement Letter.
Contact Information and Questions
Should you have any questions regarding this acknowledgment letter, the retainer deposit, billing procedures, or any other aspect of our engagement, please do not hesitate to contact Marcus Delgado directly at the San Francisco office:
Marcus Delgado, Partner Intellectual Property Group Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111 Direct Telephone: (415) 762-4127
Email: mdelgado@calderwoodharkness.com
We greatly appreciate the confidence that Optiwave Semiconductor Corp. has placed in Calderwood & Harkness LLP, and we look forward to providing vigorous and effective representation in this matter. Please do not hesitate to reach out at any time if we can be of further assistance.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Marcus Delgado Partner, intellectual Property Group
cc:
Alan Ngo, Esq. — Calderwood & Harkness LLP Theodore "Ted" Marchetti, Vice President of intellectual Property — Optiwave Semiconductor Corp.
Enclosure:
Copy of wire transfer confirmation dated May 17, 2022 (for records)
Timekeeper | Role | Standard Rate | Volume discount | Effective Rate
Alan Ngo | Partner | $1,150.00/hr | 10% | $1,035.00/hr
Marcus Delgado | Partner | $1,050.00/hr | 10% | $945.00/hr
Omar Siddiqui | Senior Associate | $785.00/hr | 10% | $706.50/hr
Christy Bauer | Associate | $625.00/hr | 10% | $562.50/hr

PRIVILEGED & CONFIDENTIAL

CALDERWOOD & HARKNESS LLP

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