1014-00003 · Optiwave Semiconductor Corp · Expert Engagement

expert-retention-agreement-kessler.docx DOCUMENT Litigation

30 / 83 ← → ✕

EXPERT RETENTION AGREEMENT

Matter No. 1014-00003

Optiwave Semiconductor Corp. v. Lumos Photonics, Inc. Case No. 5:22-cv-03417-EJD United States District Court for the Northern District of California (San Jose Division)

Effective Date: October 17, 2022

This Expert Retention Agreement (this "Agreement") is entered into as of October 17, 2022 (the "Effective Date"), by and between:

Calderwood & Harkness LLP, a limited liability partnership organized under the laws of the State of California, with its principal office at One Embarcadero Center, 34th Floor, San Francisco, California 94111 (hereinafter referred to as the "Firm" or "Retaining Counsel"), acting on behalf of its client Optiwave Semiconductor Corp., a Delaware corporation with its principal place of business at 2775 Augustine Drive, Suite 400, San Jose, California 95054 (hereinafter referred to as the "Client" or "OWS");

and

Apex Claim Analytics LLC, a limited liability company organized under the laws of the State of Illinois, with its principal office at 150 North Michigan Avenue, Suite 2400, Chicago, Illinois 60601 (hereinafter referred to as the "Consultant").

The Designated Expert under this Agreement is Dr. Lawrence Kessler, PhD in Economics from Northwestern University, specializing in patent damages and reasonable royalty analysis, who serves as Managing Director of Apex Claim Analytics LLC (hereinafter referred to as the "Designated Expert" or "Dr. Kessler").

The Firm and Consultant are referred to collectively herein as the "Parties" and individually as a "Party."

RECITALS

WHEREAS, Calderwood & Harkness LLP represents Optiwave Semiconductor Corp. ("OWS"), a Delaware corporation headquartered in San Jose, California, as plaintiff in patent infringement litigation styled Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD, pending in the United States District Court for the Northern District of California, San Jose Division, before the Honorable Edward J. Torvelis (the "Litigation");

WHEREAS, the defendant in the Litigation is Lumos Photonics, Inc. ("Lumos"), a Delaware corporation headquartered in Austin, Texas, which is represented by counsel at Brannick Howell & Stein LLP;

WHEREAS, the Litigation involves claims of patent infringement with respect to four United States patents owned by OWS, specifically: United States Patent No. 10,234,567 (the "'567 Patent"); United States Patent No. 10,891,234 (the "'234 Patent"); United States Patent No. 11,045,678 (the "'678 Patent"); and United States Patent No. 11,312,890 (the "'890 Patent") (collectively, the "Patents-in-Suit" or the "Asserted Patents");

WHEREAS, OWS filed its Complaint for Patent Infringement on June 3, 2022, asserting that Lumos has infringed, and continues to infringe, one or more claims of each of the Patents-in-Suit through its manufacture, use, sale, offer for sale, and importation of certain accused products, specifically Lumos's LumosBridge™ 800G Optical Engine and LumosEdge™ 400ZR+ Pluggable Transceiver (collectively, the "Accused Products");

WHEREAS, OWS seeks damages for Lumos's infringement, including a reasonable royalty under 35 U.S.C. § 284 and, if applicable, enhanced damages for willful infringement pursuant to 35 U.S.C. § 284 and the framework established in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016);

WHEREAS, the Firm seeks to retain Apex Claim Analytics LLC and to designate Dr. Lawrence Kessler as a testifying damages expert on behalf of OWS in the Litigation, to provide economic and damages expert analysis, prepare expert reports in compliance with the Federal Rules of Civil Procedure, and provide expert testimony at deposition and, if necessary, at trial in connection with the quantification and analysis of patent infringement damages; and

WHEREAS, Consultant has represented that Dr. Kessler is available and qualified to serve in such capacity, possessing the requisite education, training, and experience in the fields of patent damages, reasonable royalty analysis, and intellectual property valuation, as more fully set forth in Exhibit A attached hereto.

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

SECTION 1: ENGAGEMENT AND SCOPE OF SERVICES

1.1 Designation. Apex Claim Analytics LLC agrees to make available Dr. Lawrence Kessler as a testifying damages expert on behalf of OWS in the above-captioned Litigation. Dr. Kessler will serve as the designated damages expert witness for Plaintiff OWS in the Litigation unless otherwise agreed in writing by the Parties. In such capacity, Dr. Kessler shall be prepared to render opinions on matters within his expertise, to prepare expert reports as required by the Federal Rules of Civil Procedure and the Court's scheduling orders, and to testify at deposition and at trial, as set forth more fully below. The engagement of Dr. Kessler as the designated testifying expert is personal in nature, and Consultant shall not substitute another individual for Dr. Kessler without the prior written consent of Retaining Counsel.

1.2 Scope of Work

The scope of Dr. Kessler's engagement includes, but is not limited to, the following categories of work:

(a) Reasonable Royalty Analysis. Dr. Kessler shall conduct a reasonable royalty analysis under 35 U.S.C. § 284 using the Georgia-Pacific factor framework, as established in Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970). The analysis shall apply all fifteen (15) Georgia-Pacific factors to the hypothetical negotiation between OWS, as licensor, and Lumos, as licensee, as of the date of first infringement of each of the Patents-in-Suit. Dr. Kessler shall evaluate the parties' respective bargaining positions, the nature and scope of the patented technology, the commercial relationship between the parties, the profitability of the Accused Products, the utility and advantages of the patented technology over prior art alternatives, the extent of Lumos's use of the patented technology, the established royalty rates for the Patents-in-Suit and comparable patents, and all other factors relevant to the determination of a reasonable royalty rate that a willing licensor and willing licensee would have agreed upon in an arm's-length negotiation.

(b) Lost Profits Analysis. If applicable and supported by the evidence developed through fact and expert discovery, Dr. Kessler shall conduct a lost profits analysis under the framework established in Panduit Corp. v. Stahlin Brothers Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978), and/or under the entire market value rule, evaluating OWS's entitlement to lost profits damages as an alternative or supplement to a reasonable royalty. This analysis shall include an assessment of demand for the patented products, the absence of acceptable non-infringing substitutes, OWS's manufacturing and marketing capacity to exploit the demand, and the amount of profit OWS would have made but for the infringement.

(c) Damages Quantification. Dr. Kessler shall quantify the damages attributable to Lumos's infringement of each of the four Asserted Patents, both individually and collectively. This quantification shall take into account, among other relevant data, the following:

(i) Accused product revenue for the LumosBridge™ 800G Optical Engine, which carries a unit price in the range of approximately $1,200 to $1,800, depending on configuration and customer;

(ii) Accused product revenue for the LumosEdge™ 400ZR+ Pluggable Transceiver, which carries a unit price in the range of approximately $600 to $900, depending on configuration and customer;

(iii) Combined accused product revenue of approximately $148.6 million for calendar year 2022, as reflected in Lumos's financial disclosures and discovery responses;

(iv) Pre-suit damages period revenue (covering the first and second fiscal quarters of 2022) of approximately $62.3 million;

(v) Application of the estimated reasonable royalty rate, which Dr. Kessler has preliminarily estimated at 7.5%, subject to refinement based on the full evidentiary record;

(vi) A base annual royalty calculation of approximately $11.145 million (calculated as $148.6 million × 7.5%), subject to adjustment based on final analysis; and

(vii) A willfulness enhancement analysis, evaluating whether Lumos's infringement was willful such that enhanced damages of up to three times the compensatory damages award may be appropriate under 35 U.S.C. § 284 and the standards set forth in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016).

(d) Apportionment Analysis. Dr. Kessler shall conduct an apportionment analysis to apportion damages between the patented and unpatented features of the Accused Products, as required under applicable Federal Circuit precedent, including VirnetX, Inc. v. Sterling Reach Holdings, 767 F.3d 1308 (Fed. Cir. 2014), and Uniloc USA, Inc. v. Kestrel Partners LLC, 632 F.3d 1292 (Fed. Cir. 2011). This analysis shall identify the incremental value attributable to the patented technology as distinct from the value of the conventional, unpatented components and features incorporated in the Accused Products.

(e) Rebuttal of Defendant's Damages Positions. Dr. Kessler shall review and prepare rebuttal analysis of any damages opinions offered by Lumos's designated damages expert. The Firm has identified Lumos's damages expert as Compass Forensic Accounting LLP, with offices in Dallas, Texas, and the designated testifying expert as Dr. Patricia Moreno, CPA, ABV. Dr. Kessler's rebuttal shall address the reliability and methodology of Dr. Moreno's opinions, identify any errors or unsupported assumptions, and provide a comprehensive critique of the defense damages position.

(f) Review of Relevant Financial Data. Dr. Kessler shall review and analyze the following financial data, among other relevant sources:

(i) Lumos Photonics' publicly filed financial data (Nasdaq ticker symbol: LMPH), including Lumos's Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, discovery responses regarding Accused Product revenue, pricing, cost of goods sold, and profitability, and market capitalization data, which was approximately $1.87 billion as of the date of the Complaint filing on June 3, 2022;

(ii) OWS financial data, including OWS's fiscal year 2022 revenue of approximately $187.4 million, cost structure, margins, and competitive position in the silicon photonics market;

(iii) The pre-litigation patent portfolio valuation prepared by Clearpath IP Valuation Services, Inc. (the "Clearpath Report"), authored by Jennifer Armitage, CFA, CLP, which valued OWS's overall patent portfolio at approximately $215 million and the four Asserted Patents collectively at approximately $42.8 million; and

(iv) Such other financial data as may be produced through discovery or otherwise made available to Dr. Kessler during the course of the engagement.

(g) Comparable License Analysis. Dr. Kessler shall identify and analyze comparable license agreements in the silicon photonics and broader semiconductor industries for use in the Georgia-Pacific analysis. This analysis shall include an evaluation of the terms, conditions, royalty rates, and other economic provisions of such agreements, and an assessment of their comparability to the hypothetical license between OWS and Lumos.

(h) Expert Report. Dr. Kessler shall prepare a written expert report in compliance with Federal Rule of Civil Procedure 26(a)(2)(B). The expert report shall contain a complete statement of all opinions Dr. Kessler will express and the bases and reasons for each opinion, the facts or data considered by Dr. Kessler in forming his opinions, any exhibits that will be used to summarize or support his opinions, a statement of Dr. Kessler's qualifications including a list of all publications authored in the preceding ten years, a list of all cases in which Dr. Kessler has testified as an expert at trial or by deposition during the preceding four years, and a statement of the compensation to be paid for the study and testimony in the case.

(i) Deposition Testimony. Dr. Kessler shall prepare for and attend a deposition in connection with his expert report. This preparation shall include meetings with Retaining Counsel to review the expert report, anticipated areas of inquiry, and the positions and strategies of the opposing party. Dr. Kessler shall make himself available for deposition on dates to be mutually agreed upon, consistent with the Court's scheduling orders.

(j) Trial Testimony. If the Litigation proceeds to trial, Dr. Kessler shall prepare for and provide live testimony at trial, including testimony on direct examination and cross-examination. Trial preparation shall include the development of demonstrative exhibits and visual aids to assist the trier of fact in understanding Dr. Kessler's economic analysis and damages opinions.

1.3 Coordination with Other Experts

Dr. Kessler's work in this engagement may require coordination with OWS's designated technical expert, Dr. Harold Whitfield of Whitfield Technical Consulting Group, Inc., located at 530 Lytton Avenue, Suite 210, Palo Alto, California 94301. Dr. Whitfield is providing claim construction analysis, infringement analysis, and technical opinions regarding the Patents-in-Suit and the Accused Products, particularly concerning the technical aspects of the LumosBridge™ 800G Optical Engine and LumosEdge™ 400ZR+ Pluggable Transceiver and the patented technology embodied in the Asserted Patents. Dr. Kessler may rely upon Dr. Whitfield's technical analysis in forming his damages opinions to the extent appropriate and consistent with the requirements of Federal Rule of Evidence 702. All coordination between Dr. Kessler and Dr. Whitfield, and the exchange of any work product, analyses, or draft materials between the two experts, shall be directed through and supervised by Retaining Counsel to preserve applicable privileges and work product protections.

1.4 Direction and Supervision

Dr. Kessler's work under this Agreement will be performed under the general direction of the Calderwood & Harkness LLP litigation team assigned to this matter, which consists of the following attorneys:

• Alan Ngo, Partner, intellectual Property Group (Responsible Partner; California State Bar Reg. No. 52,871);

• Marcus Delgado, Partner, intellectual Property Group (Billing Partner);

• Omar Siddiqui, Associate, intellectual Property Group (Lead Associate); and

• Christy Bauer, Associate, intellectual Property Group (Working Associate).

Primary day-to-day contact for purposes of this engagement shall be Omar Siddiqui and Christy Bauer. Dr. Kessler shall direct routine communications, questions regarding the scope of work, requests for materials, and draft work product to Mr. Siddiqui and Ms. Bauer unless otherwise instructed. Significant strategic decisions regarding the scope and direction of Dr. Kessler's analysis, as well as any matters affecting the timing or substance of expert deliverables, shall be coordinated with Alan Ngo as Responsible Partner.

The Parties acknowledge that while Retaining Counsel will provide direction regarding the scope of the engagement, the materials to be reviewed, and the legal framework applicable to the damages analysis, Dr. Kessler retains full independence in forming his expert opinions and conclusions. Nothing in this Section 1.4 shall be construed to authorize Retaining Counsel to direct or influence the substance of Dr. Kessler's expert opinions.

SECTION 2: COMPENSATION AND BILLING

2.1 Hourly Rates

Consultant shall be compensated for all professional services rendered under this Agreement on an hourly basis, at the following rates:

(a) Dr. Lawrence Kessler (Designated Expert): Eight Hundred Fifty Dollars ($850.00) per hour for all professional services, including but not limited to document and data review, economic analysis, report preparation, deposition preparation and testimony, and trial preparation and testimony.

(b) Supporting Staff and Analysts at Apex Claim Analytics LLC: Supporting staff and analysts assigned to assist Dr. Kessler on this engagement shall be billed at a blended rate of Four Hundred Twenty-Five Dollars ($425.00) per hour for senior analysts and Two Hundred Seventy-Five Dollars ($275.00) per hour for analysts, as further detailed in the Schedule of Rates set forth in Exhibit B attached hereto.

(c) Administrative and Paralegal Support: Administrative and paralegal support provided by Apex Claim Analytics LLC shall be billed at a rate of One Hundred Fifty Dollars ($150.00) per hour, as further detailed in Exhibit B.

The rates set forth above and in Exhibit B shall remain in effect for the duration of the engagement under this Agreement. In the event that the engagement extends beyond twelve (12) months from the Effective Date, Consultant may propose adjusted rates upon sixty (60) days' prior written notice to Retaining Counsel, subject to Retaining Counsel's approval.

2.2 Invoicing. Apex Claim Analytics LLC shall submit itemized monthly invoices to Calderwood & Harkness LLP, with each invoice referencing Matter No. 1014-00003 and the case caption Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD. Each invoice shall include the following information:

(a) A detailed description of the services performed during the billing period, organized by date;

(b) The name and billing rate of each timekeeper who performed services during the billing period;

(c) The number of hours expended by each timekeeper, reported in increments of no greater than one-tenth (0.1) of an hour;

(d) Itemized out-of-pocket costs and expenses incurred during the billing period, with supporting documentation where applicable; and

(e) A cumulative total of all fees and expenses billed to date under this Agreement.

2.3 Expenses. Reasonable out-of-pocket expenses incurred by Consultant in connection with the performance of services under this Agreement shall be reimbursed at cost. Such expenses may include, without limitation, travel expenses (airfare, ground transportation, lodging, and meals), reproduction and printing costs, data acquisition costs, and fees for access to proprietary databases and financial information services. For any single expense item or category of expenses anticipated to exceed One Thousand Dollars ($1,000.00), Consultant shall obtain the prior written approval of Retaining Counsel before incurring such expense. Travel shall be at coach class for domestic flights and business class for international flights exceeding six (6) hours, and lodging shall be at reasonable business-class hotels. All expense reimbursements shall be in accordance with the Firm's standard expense reimbursement guidelines.

2.4 Payment Terms

Payment of invoices submitted under this Agreement shall be due within thirty (30) calendar days of the invoice date. Invoices shall be directed to:

Marcus Delgado, Billing Partner Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111

Email: mdelgado@calderwoodharkness.com

In the event of any dispute regarding an invoice, Retaining Counsel shall notify Consultant in writing within fifteen (15) calendar days of receipt of the invoice, identifying the specific items in dispute. The undisputed portion of the invoice shall remain due and payable within the thirty (30) day payment period. The Parties shall endeavor to resolve any billing disputes promptly and in good faith.

2.5 Budget Estimate

The Parties acknowledge that the expert engagement contemplated by this Agreement falls within the Board-approved litigation budget for the Litigation of Four Million Two Hundred Thousand Dollars ($4,200,000.00) through trial, as approved by the Board of Directors of Optiwave Semiconductor Corp. and communicated to Retaining Counsel. The Parties further note, for informational purposes, that expert fees (combining both the Whitfield Technical Consulting Group, Inc. engagement and the Apex Claim Analytics LLC engagement) are estimated to total Four Hundred Twelve Thousand Eight Hundred Dollars ($412,800.00) through matter close. This estimate is provided for planning purposes only and does not constitute a cap or limitation on Consultant's compensation, which shall be determined solely by the hourly rates and actual time expended as set forth in this Agreement. In the event that anticipated fees are projected to materially exceed this estimate, Consultant shall promptly notify Retaining Counsel to discuss the budget implications.

SECTION 3: CONFIDENTIALITY

3.1 Confidential Information Defined

For purposes of this Agreement, "Confidential Information" means all information, documents, data, analyses, communications, work product, and materials provided to Consultant by the Firm, OWS, or obtained through discovery or other proceedings in the Litigation, including without limitation:

(a) All documents and information designated as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" under the Stipulated Protective Order entered by the Honorable Edward J. Torvelis in approximately September 2022 in Case No. 5:22-cv-03417-EJD (the "Protective Order");

(b) All attorney-client privileged communications and attorney work product shared with Consultant in connection with the engagement;

(c) All proprietary business information, financial data, trade secrets, technical information, and strategic litigation information of OWS and its affiliates;

(d) All proprietary business information, financial data, and confidential product information of Lumos Photonics, Inc. obtained through discovery or public filings and designated as confidential under the Protective Order;

(e) All draft and final expert reports, analyses, opinions, and work product prepared by Dr. Kessler and Consultant in connection with the engagement; and

(f) The terms and conditions of this Agreement.

3.2 Obligations. Consultant and Dr. Kessler shall maintain the strict confidentiality of all Confidential Information received or developed in connection with this engagement. Without limiting the generality of the foregoing, Consultant and Dr. Kessler specifically agree to the following obligations:

(a) Consultant and Dr. Kessler shall not disclose any Confidential Information to any third party, including but not limited to other clients of Consultant, industry contacts, academic colleagues, or family members, without the prior written consent of Retaining Counsel;

(b) Consultant and Dr. Kessler shall use Confidential Information solely for the purpose of performing the services described in this Agreement and for no other purpose whatsoever;

(c) Consultant shall limit access to Confidential Information within its organization to those employees, analysts, and support staff who have a need to know such information in connection with the performance of services under this Agreement, and who have been informed of and have agreed to be bound by the confidentiality obligations set forth herein;

(d) Consultant and Dr. Kessler shall comply in all respects with the terms and conditions of the Protective Order governing the Litigation, including all provisions relating to the handling, storage, copying, and return or destruction of documents and information designated under the Protective Order;

(e) Consultant shall implement and maintain reasonable physical, electronic, and administrative security measures to protect Confidential Information from unauthorized access, disclosure, or use; and

(f) Consultant shall promptly notify Retaining Counsel of any actual or suspected unauthorized access to, disclosure of, or use of Confidential Information.

3.3 Return of Materials

Upon the earlier of (i) termination of the engagement under this Agreement, or (ii) the conclusion of the Litigation (including any appeals), Consultant shall, at the direction of Retaining Counsel, either return to the Firm or destroy all Confidential Information and materials in Consultant's possession, custody, or control, including all copies, summaries, excerpts, and derivative works. Such return or destruction shall be carried out in accordance with the requirements of the Protective Order and any specific instructions provided by Retaining Counsel. Upon completion of the return or destruction of materials, Consultant shall provide Retaining Counsel with a written certification signed by Dr. Kessler confirming that all Confidential Information has been returned or destroyed in compliance with this Section 3.3. Notwithstanding the foregoing, Consultant may retain one archival copy of its work product files (excluding materials designated "Highly Confidential — Attorneys' Eyes Only" under the Protective Order) solely for purposes of professional records management and conflict checking, subject to the ongoing confidentiality obligations of this Section 3.

SECTION 4: INDEPENDENCE AND OBJECTIVITY

4.1 Expert Independence

The Parties acknowledge and agree that Dr. Kessler shall exercise independent professional judgment in forming his expert opinions and conclusions. Dr. Kessler's opinions must be based on reliable data, facts, and methodologies consistent with the requirements of Federal Rule of Evidence 702, as interpreted by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, including General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Dr. Kessler shall apply generally accepted economic and financial principles and methodologies in the analysis of patent damages, and his opinions shall be the product of reliable principles and methods applied reliably to the facts of the case.

Dr. Kessler is not an advocate for the Client's position. His role is that of an independent expert whose opinions must reflect his own independent economic analysis of the relevant data and evidence. While Retaining Counsel will provide direction regarding the legal framework, the scope of the engagement, and the materials to be considered, Retaining Counsel shall not direct or influence the substance of Dr. Kessler's expert opinions or conclusions. Dr. Kessler shall promptly advise Retaining Counsel if, in Dr. Kessler's independent professional judgment, the data and evidence do not support a particular damages theory or the level of damages anticipated by the Client.

4.2 No Contingent Fee

Compensation payable to Consultant under this Agreement is not contingent upon the outcome of the Litigation, including any verdict, judgment, settlement, or other resolution, nor upon the substance, direction, or conclusions of Dr. Kessler's expert opinions. Dr. Kessler's compensation is based solely on the hourly rates set forth in Section 2.1 and Exhibit B hereto, applied to the actual time expended in performing the services described in this Agreement. This compensation structure is in compliance with applicable ethical requirements and with the disclosure obligations imposed by Federal Rule of Civil Procedure 26(a)(2)(B)(vi), which requires disclosure of the compensation to be paid for the expert's study and testimony.

SECTION 5: CONFLICTS OF INTEREST

5.1 Representation and Warranty

Apex Claim Analytics LLC represents and warrants to Retaining Counsel and OWS that, as of the Effective Date of this Agreement:

(a) Neither Dr. Lawrence Kessler nor any other principal, partner, member, employee, or affiliate of Apex Claim Analytics LLC has any current engagement, financial interest, business relationship, personal relationship, or other connection with Lumos Photonics, Inc. or any of its officers, directors, employees, subsidiaries, or affiliates that would impair, or create a reasonable appearance of impairing, Dr. Kessler's ability to serve as an independent and objective expert in the Litigation;

(b) Neither Dr. Kessler nor Apex has any current engagement, financial interest, or relationship with Brannick Howell & Stein LLP (counsel for Lumos), Compass Forensic Accounting LLP (Lumos's designated damages expert firm), Dr. Patricia Moreno (Lumos's designated testifying damages expert), or Ridgeline Asset Management, LLC, or any other party known to Consultant to be adverse to OWS in the Litigation;

(c) Dr. Kessler does not hold, and has not within the past twelve (12) months held, any equity securities, debt instruments, or other financial interests in Lumos Photonics, Inc. (Nasdaq: LMPH) or OWS; and

(d) To the best of Consultant's knowledge, no conflict of interest or potential conflict of interest exists that would prevent Dr. Kessler from serving as an independent testifying expert in the Litigation.

Consultant shall promptly notify Retaining Counsel in writing of any conflict of interest or potential conflict of interest that arises or becomes known to Consultant during the course of the engagement, including any new engagements undertaken by Consultant or Dr. Kessler that involve any of the parties, counsel, or experts identified in this Section 5.1. Upon notification, the Parties shall confer in good faith to determine whether the conflict can be resolved or whether termination of the engagement is required.

SECTION 6: DELIVERABLES AND TIMELINE

6.1 Key Deliverables

Dr. Kessler shall be responsible for the following key deliverables in connection with this engagement:

(a) Preliminary Damages Framework and Analysis. Dr. Kessler shall prepare a preliminary damages framework memorandum, in coordination with the Firm's internal Preliminary Damages Framework Memorandum, setting forth the proposed methodologies, data requirements, key assumptions, and preliminary damages estimates for use by the litigation team in developing case strategy and discovery plans. This deliverable is intended as an internal work product and is not intended for disclosure.

(b) Draft Expert Report. Dr. Kessler shall prepare a draft expert report under Federal Rule of Civil Procedure 26(a)(2)(B), setting forth all of his opinions, the bases and reasons therefor, and all supporting data and exhibits. The draft shall be provided to Retaining Counsel for review and comment sufficiently in advance of the expert disclosure deadline to permit meaningful review and, if necessary, revision.

(c) Final Expert Report. Following review and comment by Retaining Counsel, Dr. Kessler shall finalize the expert report for service on opposing counsel on or before the date set by the Court's Case Management Order for expert disclosures.

(d) Rebuttal Expert Report. If applicable, Dr. Kessler shall prepare a rebuttal expert report responding to the damages opinions of Compass Forensic Accounting LLP and Dr. Patricia Moreno, CPA, ABV. The rebuttal report shall be completed and served in accordance with the rebuttal expert report deadline set by the Court.

(e) Deposition Preparation and Testimony. Dr. Kessler shall prepare for and attend his expert deposition, including preparation sessions with Retaining Counsel.

(f) Trial Preparation, Demonstratives, and Testimony. If the Litigation proceeds to trial, Dr. Kessler shall participate in trial preparation, including the development of demonstrative exhibits and visual aids, preparation for direct and cross-examination, and the provision of live testimony before the Court and jury.

6.2 Anticipated Timeline

The Parties acknowledge that the timeline for Dr. Kessler's deliverables is governed by the litigation schedule established by the Court. The Initial Case Management Conference in this matter was held on August 15, 2022, and the Court's Case Management Order sets forth the deadlines for fact discovery, expert discovery, dispositive motions, and trial. The following milestones are relevant to the expert engagement:

(a) The Markman hearing on claim construction is scheduled for January 30, 2023, before Judge Torvelis. The Parties acknowledge that the Court's claim construction rulings may affect the scope of the damages analysis, including the identification of the patented features, the appropriate royalty base, and the apportionment methodology. Dr. Kessler shall monitor the claim construction proceedings and adjust his analysis as necessary following the Court's ruling.

(b) Expert discovery deadlines, including the deadlines for service of opening expert reports, rebuttal expert reports, and completion of expert depositions, are to be set by the Court in the Case Management Order. Dr. Kessler shall comply with all such deadlines and shall coordinate with Retaining Counsel to ensure timely completion of all deliverables.

(c) The trial date has not yet been set as of the Effective Date but is anticipated to be scheduled for the second half of 2023 or the first half of 2024, subject to the Court's calendar.

Dr. Kessler shall make himself reasonably available to perform the services contemplated by this Agreement in a timely manner consistent with the Court's scheduling orders and Retaining Counsel's reasonable requests.

SECTION 7: BACKGROUND MATERIALS TO BE PROVIDED

Retaining Counsel shall provide or make available to Dr. Kessler the following background materials, among others, in connection with the engagement. Additional materials may be provided as they become available through the course of discovery and litigation:

(a) Copies of the four Patents-in-Suit: U.S. Patent No. 10,234,567; U.S. Patent No. 10,891,234; U.S. Patent No. 11,045,678; and U.S. Patent No. 11,312,890, together with their complete prosecution histories (file wrappers);

(b) OWS's Complaint for Patent Infringement, filed June 3, 2022;

(d) Relevant discovery materials as produced in the Litigation, including Lumos's revenue data, financial statements, product pricing information, cost data, sales records, and customer information relating to the Accused Products;

(e) The pre-litigation patent portfolio valuation report prepared by Clearpath IP Valuation Services, Inc. (the "Clearpath Report"), authored by Jennifer Armitage, CFA, CLP, which valued OWS's overall patent portfolio at approximately $215 million and the four Asserted Patents collectively at approximately $42.8 million;

(f) OWS's financial statements, including audited financial statements for fiscal year 2022, reflecting total revenue of approximately $187.4 million;

(g) Lumos Photonics, Inc.'s public filings with the U.S. Securities and Exchange Commission, including Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, reflecting fiscal year 2022 revenue of approximately $312.8 million (Nasdaq ticker symbol: LMPH);

(h) Comparable license agreements identified through discovery or independent research, including license agreements in the silicon photonics and semiconductor industries;

(i) Any technical expert reports and analysis prepared by Dr. Harold Whitfield of Whitfield Technical Consulting Group, Inc., relating to claim construction, infringement, and the technical aspects of the Patents-in-Suit and the Accused Products;

(j) Information regarding Vantage Point Capital Partners Fund IV, LP's equity investment in OWS, consisting of approximately $74.5 million in Series C and Series D preferred equity funding, representing an ownership stake of approximately sixty-two percent (62%) of OWS on a fully diluted basis, to the extent relevant to the assessment of OWS's financial position and the value of the patented technology;

(k) The Stipulated Protective Order entered in the Litigation;

(l) The Court's Case Management Order and any amendments thereto; and

(m) Such other documents, data, and materials as Retaining Counsel may identify from time to time as relevant to Dr. Kessler's analysis.

Retaining Counsel shall use reasonable efforts to provide the foregoing materials in an organized and accessible format, and to supplement the materials as additional documents and data become available through discovery. Dr. Kessler shall maintain a log of all materials received and reviewed in connection with the engagement, as such a log may be required for disclosure under Federal Rule of Civil Procedure 26(a)(2)(B).

SECTION 8: TERMINATION

8.1 Termination by Either Party

Either Party may terminate this Agreement at any time upon thirty (30) days' prior written notice to the other Party. Such notice shall be delivered in accordance with Section 10.5 of this Agreement. In the event of termination by either Party, Consultant shall be compensated for all services performed and all expenses properly incurred through the effective date of termination, in accordance with the rates and terms set forth in Section 2 hereof. Upon termination, Consultant shall promptly deliver to Retaining Counsel all work product, draft reports, analyses, and other materials prepared in connection with the engagement, and shall comply with the return-of-materials obligations set forth in Section 3.3.

8.2 Effect of Settlement or Disposition

If the Litigation is resolved by settlement, dismissal, summary judgment, or other disposition prior to the completion of the services contemplated by this Agreement, the engagement shall terminate effective as of the date of such resolution, and Consultant shall be compensated for all services performed and expenses properly incurred through the date of termination, subject to the return-of-materials obligations set forth in Section 3.3. The Parties shall cooperate in good faith to ensure an orderly wind-down of the engagement, including the completion or transition of any pending work product, following the resolution of the Litigation.

SECTION 9: LIABILITY AND INDEMNIFICATION

9.1 Limitation of Liability

Except in cases of gross negligence, willful misconduct, or breach of confidentiality obligations under Section 3, Consultant's aggregate liability to the Firm, OWS, and their respective officers, directors, employees, agents, and affiliates arising out of or in connection with this Agreement, whether in contract, tort, strict liability, or otherwise, shall not exceed the total amount of fees actually paid to Consultant under this Agreement as of the date on which the claim giving rise to such liability first arose. In no event shall either Party be liable to the other for any indirect, incidental, special, consequential, or punitive damages, including lost profits or lost business opportunities, regardless of whether such damages were foreseeable or whether such Party has been advised of the possibility of such damages.

9.2 Indemnification. Each Party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and its respective officers, directors, members, partners, employees, agents, and affiliates (collectively, the "Indemnified Parties") from and against any and all third-party claims, demands, actions, suits, proceedings, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or resulting from the Indemnifying Party's material breach of any representation, warranty, covenant, or obligation under this Agreement, or from any negligent or wrongful act or omission of the Indemnifying Party or its employees or agents in connection with the performance of this Agreement. The obligations set forth in this Section 9.2 shall survive termination or expiration of this Agreement.

SECTION 10: MISCELLANEOUS PROVISIONS

10.1 Governing Law

This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without regard to its conflicts of laws principles. Any dispute arising out of or in connection with this Agreement that cannot be resolved through good faith negotiation shall be submitted to binding arbitration in San Francisco, California, administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect, before a single arbitrator. The arbitrator's decision shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.

10.2 Entire Agreement

This Agreement, together with all exhibits and schedules attached hereto and incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, understandings, discussions, and agreements, whether oral or written, between the Parties relating to such subject matter. No prior or contemporaneous representation or agreement not contained in this Agreement shall be binding upon either Party.

10.3 Amendment. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless made in writing and signed by authorized representatives of both Parties. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy preclude any other or further exercise thereof.

10.4 Assignment. Neither Party may assign, delegate, or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party. Any purported assignment or transfer in violation of this Section 10.4 shall be null and void. Notwithstanding the foregoing, either Party may assign this Agreement to a successor in connection with a merger, acquisition, or sale of substantially all of the assigning Party's assets, provided that the assigning Party gives prompt written notice to the other Party and the assignee assumes all obligations of the assigning Party under this Agreement.

10.5 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given when: (a) delivered personally; (b) sent by registered or certified mail, return receipt requested, postage prepaid; (c) sent by nationally recognized overnight courier service; or (d) transmitted by email with confirmation of receipt, addressed as follows:

If to the Firm:

Alan Ngo, Partner or Marcus Delgado, Partner Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111

Email: ango@calderwoodharkness.com / mdelgado@calderwoodharkness.com

If to Consultant:

Dr. Lawrence Kessler, Managing Director Apex Claim Analytics LLC 150 North Michigan Avenue, Suite 2400 Chicago, Illinois 60601

Email: lkessler@apexclaimanalytics.com

Either Party may change its address for notices by providing written notice to the other Party in accordance with this Section 10.5.

10.6 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by electronic transmission in portable document format (.pdf) shall be effective as delivery of an original executed counterpart.

10.7 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein, provided that the economic and legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party.

10.8 Relationship of the Parties

The relationship of Consultant to the Firm and OWS under this Agreement is that of an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the Parties. Consultant shall have no authority to bind the Firm or OWS to any obligation or to act on behalf of the Firm or OWS, except as expressly authorized in writing.

10.9 Survival. The provisions of Sections 3 (Confidentiality), 4 (Independence and Objectivity), 9 (Liability and Indemnification), 10.1 (Governing Law), and this Section 10.9 shall survive any termination or expiration of this Agreement.

SIGNATURE BLOCK

IN WITNESS WHEREOF, the Parties have executed this Expert Retention Agreement as of the date first written above.

CALDERWOOD & HARKNESS LLP

By: ________

Name: Alan Ngo

Title: Partner, intellectual Property Group (Responsible Partner)

Date: ________

APEX CLAIM ANALYTICS LLC

By: ________

Name: Dr. Lawrence Kessler

Title: Managing Director / Designated Expert

Date: ________

ACKNOWLEDGED AND CONSENTED TO by the Client solely with respect to the engagement of Consultant and Dr. Kessler as described herein:

OPTIWAVE SEMICONDUCTOR CORP.

By: ________

Name: ________

Title: ________

Date: ________

EXHIBIT A

QUALIFICATIONS OF DR. LAWRENCE KESSLER

Education.

• Ph.D. in Economics, Northwestern University, Evanston, Illinois (2001). Dissertation: Empirical Methods for Quantifying Patent Value: Royalty Rate Determinants in Technology Licensing Markets. Dissertation Advisor: Professor Martin Feldcamp.

• M.A. in Economics, Northwestern University, Evanston, Illinois (1998).

• B.A. in Economics, *summa cum laude*, University of Michigan, Ann Arbor, Michigan (1996). Phi Beta Kappa.

Professional Positions.

• Managing Director, Apex Claim Analytics LLC, Chicago, Illinois (2012–present). Founding principal of economic consulting firm specializing in intellectual property damages analysis, patent valuation, and litigation support. Oversees a team of twelve economists and financial analysts.

• Vice President — Intellectual Property Economics, Strathmore Advisors, Chicago, Illinois (2006–2012). Led the intellectual property damages practice within the disputes and investigations segment.

• Senior Economist, Pinnacle Advisory Group, Boston, Massachusetts and Chicago, Illinois (2001–2006). Provided economic analysis in patent infringement, antitrust, securities, and commercial damages matters.

Areas of Specialization

Dr. Kessler specializes in the quantification of patent infringement damages, including reasonable royalty analysis under the Georgia-Pacific framework, lost profits analysis, apportionment of damages between patented and unpatented features, and the valuation of patent portfolios and individual patents. He has extensive experience in the semiconductor, telecommunications, software, and medical device industries. Dr. Kessler has been retained as an expert in matters involving standard-essential patents, FRAND licensing disputes, trade secret misappropriation, and antitrust claims related to intellectual property.

Expert Testimony Experience

Dr. Kessler has been retained as an expert witness in over seventy-five (75) patent infringement and intellectual property matters. He has submitted expert reports in over fifty (50) cases and has provided deposition testimony in over forty (40) cases. Dr. Kessler has provided trial testimony in fifteen (15) matters in the United States District Courts, the United States International Trade Commission, and in international arbitration proceedings. A complete list of cases in which Dr. Kessler has testified at trial or by deposition in the preceding four years, as required by Federal Rule of Civil Procedure 26(a)(2)(B), will be appended to his expert report.

Selected Publications (Preceding Ten Years)

EXPERT RETENTION AGREEMENT
Matter No. 1014-00003
Optiwave Semiconductor Corp. v. Lumos Photonics, Inc. Case No. 5:22-cv-03417-EJD United States District Court for the Northern District of California (San Jose Division)
Effective Date: October 17, 2022
This Expert Retention Agreement (this "Agreement") is entered into as of October 17, 2022 (the "Effective Date"), by and between:
Calderwood & Harkness LLP, a limited liability partnership organized under the laws of the State of California, with its principal office at One Embarcadero Center, 34th Floor, San Francisco, California 94111 (hereinafter referred to as the "Firm" or "Retaining Counsel"), acting on behalf of its client Optiwave Semiconductor Corp., a Delaware corporation with its principal place of business at 2775 Augustine Drive, Suite 400, San Jose, California 95054 (hereinafter referred to as the "Client" or "OWS");
and
Apex Claim Analytics LLC, a limited liability company organized under the laws of the State of Illinois, with its principal office at 150 North Michigan Avenue, Suite 2400, Chicago, Illinois 60601 (hereinafter referred to as the "Consultant").
The Designated Expert under this Agreement is Dr. Lawrence Kessler, PhD in Economics from Northwestern University, specializing in patent damages and reasonable royalty analysis, who serves as Managing Director of Apex Claim Analytics LLC (hereinafter referred to as the "Designated Expert" or "Dr. Kessler").
The Firm and Consultant are referred to collectively herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, Calderwood & Harkness LLP represents Optiwave Semiconductor Corp. ("OWS"), a Delaware corporation headquartered in San Jose, California, as plaintiff in patent infringement litigation styled Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD, pending in the United States District Court for the Northern District of California, San Jose Division, before the Honorable Edward J. Torvelis (the "Litigation");
WHEREAS, the defendant in the Litigation is Lumos Photonics, Inc. ("Lumos"), a Delaware corporation headquartered in Austin, Texas, which is represented by counsel at Brannick Howell & Stein LLP;
WHEREAS, the Litigation involves claims of patent infringement with respect to four United States patents owned by OWS, specifically: United States Patent No. 10,234,567 (the "'567 Patent"); United States Patent No. 10,891,234 (the "'234 Patent"); United States Patent No. 11,045,678 (the "'678 Patent"); and United States Patent No. 11,312,890 (the "'890 Patent") (collectively, the "Patents-in-Suit" or the "Asserted Patents");
WHEREAS, OWS filed its Complaint for Patent Infringement on June 3, 2022, asserting that Lumos has infringed, and continues to infringe, one or more claims of each of the Patents-in-Suit through its manufacture, use, sale, offer for sale, and importation of certain accused products, specifically Lumos's LumosBridge™ 800G Optical Engine and LumosEdge™ 400ZR+ Pluggable Transceiver (collectively, the "Accused Products");
WHEREAS, OWS seeks damages for Lumos's infringement, including a reasonable royalty under 35 U.S.C. § 284 and, if applicable, enhanced damages for willful infringement pursuant to 35 U.S.C. § 284 and the framework established in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016);
WHEREAS, the Firm seeks to retain Apex Claim Analytics LLC and to designate Dr. Lawrence Kessler as a testifying damages expert on behalf of OWS in the Litigation, to provide economic and damages expert analysis, prepare expert reports in compliance with the Federal Rules of Civil Procedure, and provide expert testimony at deposition and, if necessary, at trial in connection with the quantification and analysis of patent infringement damages; and
WHEREAS, Consultant has represented that Dr. Kessler is available and qualified to serve in such capacity, possessing the requisite education, training, and experience in the fields of patent damages, reasonable royalty analysis, and intellectual property valuation, as more fully set forth in Exhibit A attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: ENGAGEMENT AND SCOPE OF SERVICES
1.1 Designation.  Apex Claim Analytics LLC agrees to make available Dr. Lawrence Kessler as a testifying damages expert on behalf of OWS in the above-captioned Litigation. Dr. Kessler will serve as the designated damages expert witness for Plaintiff OWS in the Litigation unless otherwise agreed in writing by the Parties. In such capacity, Dr. Kessler shall be prepared to render opinions on matters within his expertise, to prepare expert reports as required by the Federal Rules of Civil Procedure and the Court's scheduling orders, and to testify at deposition and at trial, as set forth more fully below. The engagement of Dr. Kessler as the designated testifying expert is personal in nature, and Consultant shall not substitute another individual for Dr. Kessler without the prior written consent of Retaining Counsel.
1.2 Scope of Work
The scope of Dr. Kessler's engagement includes, but is not limited to, the following categories of work:
(a) Reasonable Royalty Analysis. Dr. Kessler shall conduct a reasonable royalty analysis under 35 U.S.C. § 284 using the Georgia-Pacific factor framework, as established in Georgia-Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970). The analysis shall apply all fifteen (15) Georgia-Pacific factors to the hypothetical negotiation between OWS, as licensor, and Lumos, as licensee, as of the date of first infringement of each of the Patents-in-Suit. Dr. Kessler shall evaluate the parties' respective bargaining positions, the nature and scope of the patented technology, the commercial relationship between the parties, the profitability of the Accused Products, the utility and advantages of the patented technology over prior art alternatives, the extent of Lumos's use of the patented technology, the established royalty rates for the Patents-in-Suit and comparable patents, and all other factors relevant to the determination of a reasonable royalty rate that a willing licensor and willing licensee would have agreed upon in an arm's-length negotiation.
(b) Lost Profits Analysis. If applicable and supported by the evidence developed through fact and expert discovery, Dr. Kessler shall conduct a lost profits analysis under the framework established in Panduit Corp. v. Stahlin Brothers Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978), and/or under the entire market value rule, evaluating OWS's entitlement to lost profits damages as an alternative or supplement to a reasonable royalty. This analysis shall include an assessment of demand for the patented products, the absence of acceptable non-infringing substitutes, OWS's manufacturing and marketing capacity to exploit the demand, and the amount of profit OWS would have made but for the infringement.
(c) Damages Quantification. Dr. Kessler shall quantify the damages attributable to Lumos's infringement of each of the four Asserted Patents, both individually and collectively. This quantification shall take into account, among other relevant data, the following:
(i) Accused product revenue for the LumosBridge™ 800G Optical Engine, which carries a unit price in the range of approximately $1,200 to $1,800, depending on configuration and customer;
(ii) Accused product revenue for the LumosEdge™ 400ZR+ Pluggable Transceiver, which carries a unit price in the range of approximately $600 to $900, depending on configuration and customer;
(iii) Combined accused product revenue of approximately $148.6 million for calendar year 2022, as reflected in Lumos's financial disclosures and discovery responses;
(iv) Pre-suit damages period revenue (covering the first and second fiscal quarters of 2022) of approximately $62.3 million;
(v) Application of the estimated reasonable royalty rate, which Dr. Kessler has preliminarily estimated at 7.5%, subject to refinement based on the full evidentiary record;
(vi) A base annual royalty calculation of approximately $11.145 million (calculated as $148.6 million × 7.5%), subject to adjustment based on final analysis; and
(vii) A willfulness enhancement analysis, evaluating whether Lumos's infringement was willful such that enhanced damages of up to three times the compensatory damages award may be appropriate under 35 U.S.C. § 284 and the standards set forth in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93 (2016).
(d) Apportionment Analysis. Dr. Kessler shall conduct an apportionment analysis to apportion damages between the patented and unpatented features of the Accused Products, as required under applicable Federal Circuit precedent, including VirnetX, Inc. v. Sterling Reach Holdings, 767 F.3d 1308 (Fed. Cir. 2014), and Uniloc USA, Inc. v. Kestrel Partners LLC, 632 F.3d 1292 (Fed. Cir. 2011). This analysis shall identify the incremental value attributable to the patented technology as distinct from the value of the conventional, unpatented components and features incorporated in the Accused Products.
(e) Rebuttal of Defendant's Damages Positions. Dr. Kessler shall review and prepare rebuttal analysis of any damages opinions offered by Lumos's designated damages expert. The Firm has identified Lumos's damages expert as Compass Forensic Accounting LLP, with offices in Dallas, Texas, and the designated testifying expert as Dr. Patricia Moreno, CPA, ABV. Dr. Kessler's rebuttal shall address the reliability and methodology of Dr. Moreno's opinions, identify any errors or unsupported assumptions, and provide a comprehensive critique of the defense damages position.
(f) Review of Relevant Financial Data. Dr. Kessler shall review and analyze the following financial data, among other relevant sources:
(i) Lumos Photonics' publicly filed financial data (Nasdaq ticker symbol: LMPH), including Lumos's Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, discovery responses regarding Accused Product revenue, pricing, cost of goods sold, and profitability, and market capitalization data, which was approximately $1.87 billion as of the date of the Complaint filing on June 3, 2022;
(ii) OWS financial data, including OWS's fiscal year 2022 revenue of approximately $187.4 million, cost structure, margins, and competitive position in the silicon photonics market;
(iii) The pre-litigation patent portfolio valuation prepared by Clearpath IP Valuation Services, Inc. (the "Clearpath Report"), authored by Jennifer Armitage, CFA, CLP, which valued OWS's overall patent portfolio at approximately $215 million and the four Asserted Patents collectively at approximately $42.8 million; and
(iv) Such other financial data as may be produced through discovery or otherwise made available to Dr. Kessler during the course of the engagement.
(g) Comparable License Analysis. Dr. Kessler shall identify and analyze comparable license agreements in the silicon photonics and broader semiconductor industries for use in the Georgia-Pacific analysis. This analysis shall include an evaluation of the terms, conditions, royalty rates, and other economic provisions of such agreements, and an assessment of their comparability to the hypothetical license between OWS and Lumos.
(h) Expert Report. Dr. Kessler shall prepare a written expert report in compliance with Federal Rule of Civil Procedure 26(a)(2)(B). The expert report shall contain a complete statement of all opinions Dr. Kessler will express and the bases and reasons for each opinion, the facts or data considered by Dr. Kessler in forming his opinions, any exhibits that will be used to summarize or support his opinions, a statement of Dr. Kessler's qualifications including a list of all publications authored in the preceding ten years, a list of all cases in which Dr. Kessler has testified as an expert at trial or by deposition during the preceding four years, and a statement of the compensation to be paid for the study and testimony in the case.
(i) Deposition Testimony. Dr. Kessler shall prepare for and attend a deposition in connection with his expert report. This preparation shall include meetings with Retaining Counsel to review the expert report, anticipated areas of inquiry, and the positions and strategies of the opposing party. Dr. Kessler shall make himself available for deposition on dates to be mutually agreed upon, consistent with the Court's scheduling orders.
(j) Trial Testimony. If the Litigation proceeds to trial, Dr. Kessler shall prepare for and provide live testimony at trial, including testimony on direct examination and cross-examination. Trial preparation shall include the development of demonstrative exhibits and visual aids to assist the trier of fact in understanding Dr. Kessler's economic analysis and damages opinions.
1.3 Coordination with Other Experts
Dr. Kessler's work in this engagement may require coordination with OWS's designated technical expert, Dr. Harold Whitfield of Whitfield Technical Consulting Group, Inc., located at 530 Lytton Avenue, Suite 210, Palo Alto, California 94301. Dr. Whitfield is providing claim construction analysis, infringement analysis, and technical opinions regarding the Patents-in-Suit and the Accused Products, particularly concerning the technical aspects of the LumosBridge™ 800G Optical Engine and LumosEdge™ 400ZR+ Pluggable Transceiver and the patented technology embodied in the Asserted Patents. Dr. Kessler may rely upon Dr. Whitfield's technical analysis in forming his damages opinions to the extent appropriate and consistent with the requirements of Federal Rule of Evidence 702. All coordination between Dr. Kessler and Dr. Whitfield, and the exchange of any work product, analyses, or draft materials between the two experts, shall be directed through and supervised by Retaining Counsel to preserve applicable privileges and work product protections.
1.4 Direction and Supervision
Dr. Kessler's work under this Agreement will be performed under the general direction of the Calderwood & Harkness LLP litigation team assigned to this matter, which consists of the following attorneys:
•  Alan Ngo, Partner, intellectual Property Group (Responsible Partner; California State Bar Reg. No. 52,871);
•  Marcus Delgado, Partner, intellectual Property Group (Billing Partner);
•  Omar Siddiqui, Associate, intellectual Property Group (Lead Associate); and
•  Christy Bauer, Associate, intellectual Property Group (Working Associate).
Primary day-to-day contact for purposes of this engagement shall be Omar Siddiqui and Christy Bauer. Dr. Kessler shall direct routine communications, questions regarding the scope of work, requests for materials, and draft work product to Mr. Siddiqui and Ms. Bauer unless otherwise instructed. Significant strategic decisions regarding the scope and direction of Dr. Kessler's analysis, as well as any matters affecting the timing or substance of expert deliverables, shall be coordinated with Alan Ngo as Responsible Partner.
The Parties acknowledge that while Retaining Counsel will provide direction regarding the scope of the engagement, the materials to be reviewed, and the legal framework applicable to the damages analysis, Dr. Kessler retains full independence in forming his expert opinions and conclusions. Nothing in this Section 1.4 shall be construed to authorize Retaining Counsel to direct or influence the substance of Dr. Kessler's expert opinions.
SECTION 2: COMPENSATION AND BILLING
2.1 Hourly Rates
Consultant shall be compensated for all professional services rendered under this Agreement on an hourly basis, at the following rates:
(a) Dr. Lawrence Kessler (Designated Expert): Eight Hundred Fifty Dollars ($850.00) per hour for all professional services, including but not limited to document and data review, economic analysis, report preparation, deposition preparation and testimony, and trial preparation and testimony.
(b) Supporting Staff and Analysts at Apex Claim Analytics LLC: Supporting staff and analysts assigned to assist Dr. Kessler on this engagement shall be billed at a blended rate of Four Hundred Twenty-Five Dollars ($425.00) per hour for senior analysts and Two Hundred Seventy-Five Dollars ($275.00) per hour for analysts, as further detailed in the Schedule of Rates set forth in Exhibit B attached hereto.
(c) Administrative and Paralegal Support: Administrative and paralegal support provided by Apex Claim Analytics LLC shall be billed at a rate of One Hundred Fifty Dollars ($150.00) per hour, as further detailed in Exhibit B.
The rates set forth above and in Exhibit B shall remain in effect for the duration of the engagement under this Agreement. In the event that the engagement extends beyond twelve (12) months from the Effective Date, Consultant may propose adjusted rates upon sixty (60) days' prior written notice to Retaining Counsel, subject to Retaining Counsel's approval.
2.2 Invoicing.  Apex Claim Analytics LLC shall submit itemized monthly invoices to Calderwood & Harkness LLP, with each invoice referencing Matter No. 1014-00003 and the case caption Optiwave Semiconductor Corp. v. Lumos Photonics, Inc., Case No. 5:22-cv-03417-EJD. Each invoice shall include the following information:
(a) A detailed description of the services performed during the billing period, organized by date;
(b) The name and billing rate of each timekeeper who performed services during the billing period;
(c) The number of hours expended by each timekeeper, reported in increments of no greater than one-tenth (0.1) of an hour;
(d) Itemized out-of-pocket costs and expenses incurred during the billing period, with supporting documentation where applicable; and
(e) A cumulative total of all fees and expenses billed to date under this Agreement.
2.3 Expenses.  Reasonable out-of-pocket expenses incurred by Consultant in connection with the performance of services under this Agreement shall be reimbursed at cost. Such expenses may include, without limitation, travel expenses (airfare, ground transportation, lodging, and meals), reproduction and printing costs, data acquisition costs, and fees for access to proprietary databases and financial information services. For any single expense item or category of expenses anticipated to exceed One Thousand Dollars ($1,000.00), Consultant shall obtain the prior written approval of Retaining Counsel before incurring such expense. Travel shall be at coach class for domestic flights and business class for international flights exceeding six (6) hours, and lodging shall be at reasonable business-class hotels. All expense reimbursements shall be in accordance with the Firm's standard expense reimbursement guidelines.
2.4 Payment Terms
Payment of invoices submitted under this Agreement shall be due within thirty (30) calendar days of the invoice date. Invoices shall be directed to:
Marcus Delgado, Billing Partner Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111
Email: mdelgado@calderwoodharkness.com
In the event of any dispute regarding an invoice, Retaining Counsel shall notify Consultant in writing within fifteen (15) calendar days of receipt of the invoice, identifying the specific items in dispute. The undisputed portion of the invoice shall remain due and payable within the thirty (30) day payment period. The Parties shall endeavor to resolve any billing disputes promptly and in good faith.
2.5 Budget Estimate
The Parties acknowledge that the expert engagement contemplated by this Agreement falls within the Board-approved litigation budget for the Litigation of Four Million Two Hundred Thousand Dollars ($4,200,000.00) through trial, as approved by the Board of Directors of Optiwave Semiconductor Corp. and communicated to Retaining Counsel. The Parties further note, for informational purposes, that expert fees (combining both the Whitfield Technical Consulting Group, Inc. engagement and the Apex Claim Analytics LLC engagement) are estimated to total Four Hundred Twelve Thousand Eight Hundred Dollars ($412,800.00) through matter close. This estimate is provided for planning purposes only and does not constitute a cap or limitation on Consultant's compensation, which shall be determined solely by the hourly rates and actual time expended as set forth in this Agreement. In the event that anticipated fees are projected to materially exceed this estimate, Consultant shall promptly notify Retaining Counsel to discuss the budget implications.
SECTION 3: CONFIDENTIALITY
3.1 Confidential Information Defined
For purposes of this Agreement, "Confidential Information" means all information, documents, data, analyses, communications, work product, and materials provided to Consultant by the Firm, OWS, or obtained through discovery or other proceedings in the Litigation, including without limitation:
(a) All documents and information designated as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" under the Stipulated Protective Order entered by the Honorable Edward J. Torvelis in approximately September 2022 in Case No. 5:22-cv-03417-EJD (the "Protective Order");
(b) All attorney-client privileged communications and attorney work product shared with Consultant in connection with the engagement;
(c) All proprietary business information, financial data, trade secrets, technical information, and strategic litigation information of OWS and its affiliates;
(d) All proprietary business information, financial data, and confidential product information of Lumos Photonics, Inc. obtained through discovery or public filings and designated as confidential under the Protective Order;
(e) All draft and final expert reports, analyses, opinions, and work product prepared by Dr. Kessler and Consultant in connection with the engagement; and
(f) The terms and conditions of this Agreement.
3.2 Obligations.  Consultant and Dr. Kessler shall maintain the strict confidentiality of all Confidential Information received or developed in connection with this engagement. Without limiting the generality of the foregoing, Consultant and Dr. Kessler specifically agree to the following obligations:
(a) Consultant and Dr. Kessler shall not disclose any Confidential Information to any third party, including but not limited to other clients of Consultant, industry contacts, academic colleagues, or family members, without the prior written consent of Retaining Counsel;
(b) Consultant and Dr. Kessler shall use Confidential Information solely for the purpose of performing the services described in this Agreement and for no other purpose whatsoever;
(c) Consultant shall limit access to Confidential Information within its organization to those employees, analysts, and support staff who have a need to know such information in connection with the performance of services under this Agreement, and who have been informed of and have agreed to be bound by the confidentiality obligations set forth herein;
(d) Consultant and Dr. Kessler shall comply in all respects with the terms and conditions of the Protective Order governing the Litigation, including all provisions relating to the handling, storage, copying, and return or destruction of documents and information designated under the Protective Order;
(e) Consultant shall implement and maintain reasonable physical, electronic, and administrative security measures to protect Confidential Information from unauthorized access, disclosure, or use; and
(f) Consultant shall promptly notify Retaining Counsel of any actual or suspected unauthorized access to, disclosure of, or use of Confidential Information.
3.3 Return of Materials
Upon the earlier of (i) termination of the engagement under this Agreement, or (ii) the conclusion of the Litigation (including any appeals), Consultant shall, at the direction of Retaining Counsel, either return to the Firm or destroy all Confidential Information and materials in Consultant's possession, custody, or control, including all copies, summaries, excerpts, and derivative works. Such return or destruction shall be carried out in accordance with the requirements of the Protective Order and any specific instructions provided by Retaining Counsel. Upon completion of the return or destruction of materials, Consultant shall provide Retaining Counsel with a written certification signed by Dr. Kessler confirming that all Confidential Information has been returned or destroyed in compliance with this Section 3.3. Notwithstanding the foregoing, Consultant may retain one archival copy of its work product files (excluding materials designated "Highly Confidential — Attorneys' Eyes Only" under the Protective Order) solely for purposes of professional records management and conflict checking, subject to the ongoing confidentiality obligations of this Section 3.
SECTION 4: INDEPENDENCE AND OBJECTIVITY
4.1 Expert Independence
The Parties acknowledge and agree that Dr. Kessler shall exercise independent professional judgment in forming his expert opinions and conclusions. Dr. Kessler's opinions must be based on reliable data, facts, and methodologies consistent with the requirements of Federal Rule of Evidence 702, as interpreted by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, including General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Dr. Kessler shall apply generally accepted economic and financial principles and methodologies in the analysis of patent damages, and his opinions shall be the product of reliable principles and methods applied reliably to the facts of the case.
Dr. Kessler is not an advocate for the Client's position. His role is that of an independent expert whose opinions must reflect his own independent economic analysis of the relevant data and evidence. While Retaining Counsel will provide direction regarding the legal framework, the scope of the engagement, and the materials to be considered, Retaining Counsel shall not direct or influence the substance of Dr. Kessler's expert opinions or conclusions. Dr. Kessler shall promptly advise Retaining Counsel if, in Dr. Kessler's independent professional judgment, the data and evidence do not support a particular damages theory or the level of damages anticipated by the Client.
4.2 No Contingent Fee
Compensation payable to Consultant under this Agreement is not contingent upon the outcome of the Litigation, including any verdict, judgment, settlement, or other resolution, nor upon the substance, direction, or conclusions of Dr. Kessler's expert opinions. Dr. Kessler's compensation is based solely on the hourly rates set forth in Section 2.1 and Exhibit B hereto, applied to the actual time expended in performing the services described in this Agreement. This compensation structure is in compliance with applicable ethical requirements and with the disclosure obligations imposed by Federal Rule of Civil Procedure 26(a)(2)(B)(vi), which requires disclosure of the compensation to be paid for the expert's study and testimony.
SECTION 5: CONFLICTS OF INTEREST
5.1 Representation and Warranty
Apex Claim Analytics LLC represents and warrants to Retaining Counsel and OWS that, as of the Effective Date of this Agreement:
(a) Neither Dr. Lawrence Kessler nor any other principal, partner, member, employee, or affiliate of Apex Claim Analytics LLC has any current engagement, financial interest, business relationship, personal relationship, or other connection with Lumos Photonics, Inc. or any of its officers, directors, employees, subsidiaries, or affiliates that would impair, or create a reasonable appearance of impairing, Dr. Kessler's ability to serve as an independent and objective expert in the Litigation;
(b) Neither Dr. Kessler nor Apex has any current engagement, financial interest, or relationship with Brannick Howell & Stein LLP (counsel for Lumos), Compass Forensic Accounting LLP (Lumos's designated damages expert firm), Dr. Patricia Moreno (Lumos's designated testifying damages expert), or Ridgeline Asset Management, LLC, or any other party known to Consultant to be adverse to OWS in the Litigation;
(c) Dr. Kessler does not hold, and has not within the past twelve (12) months held, any equity securities, debt instruments, or other financial interests in Lumos Photonics, Inc. (Nasdaq: LMPH) or OWS; and
(d) To the best of Consultant's knowledge, no conflict of interest or potential conflict of interest exists that would prevent Dr. Kessler from serving as an independent testifying expert in the Litigation.
Consultant shall promptly notify Retaining Counsel in writing of any conflict of interest or potential conflict of interest that arises or becomes known to Consultant during the course of the engagement, including any new engagements undertaken by Consultant or Dr. Kessler that involve any of the parties, counsel, or experts identified in this Section 5.1. Upon notification, the Parties shall confer in good faith to determine whether the conflict can be resolved or whether termination of the engagement is required.
SECTION 6: DELIVERABLES AND TIMELINE
6.1 Key Deliverables
Dr. Kessler shall be responsible for the following key deliverables in connection with this engagement:
(a) Preliminary Damages Framework and Analysis. Dr. Kessler shall prepare a preliminary damages framework memorandum, in coordination with the Firm's internal Preliminary Damages Framework Memorandum, setting forth the proposed methodologies, data requirements, key assumptions, and preliminary damages estimates for use by the litigation team in developing case strategy and discovery plans. This deliverable is intended as an internal work product and is not intended for disclosure.
(b) Draft Expert Report. Dr. Kessler shall prepare a draft expert report under Federal Rule of Civil Procedure 26(a)(2)(B), setting forth all of his opinions, the bases and reasons therefor, and all supporting data and exhibits. The draft shall be provided to Retaining Counsel for review and comment sufficiently in advance of the expert disclosure deadline to permit meaningful review and, if necessary, revision.
(c) Final Expert Report. Following review and comment by Retaining Counsel, Dr. Kessler shall finalize the expert report for service on opposing counsel on or before the date set by the Court's Case Management Order for expert disclosures.
(d) Rebuttal Expert Report. If applicable, Dr. Kessler shall prepare a rebuttal expert report responding to the damages opinions of Compass Forensic Accounting LLP and Dr. Patricia Moreno, CPA, ABV. The rebuttal report shall be completed and served in accordance with the rebuttal expert report deadline set by the Court.
(e) Deposition Preparation and Testimony. Dr. Kessler shall prepare for and attend his expert deposition, including preparation sessions with Retaining Counsel.
(f) Trial Preparation, Demonstratives, and Testimony. If the Litigation proceeds to trial, Dr. Kessler shall participate in trial preparation, including the development of demonstrative exhibits and visual aids, preparation for direct and cross-examination, and the provision of live testimony before the Court and jury.
6.2 Anticipated Timeline
The Parties acknowledge that the timeline for Dr. Kessler's deliverables is governed by the litigation schedule established by the Court. The Initial Case Management Conference in this matter was held on August 15, 2022, and the Court's Case Management Order sets forth the deadlines for fact discovery, expert discovery, dispositive motions, and trial. The following milestones are relevant to the expert engagement:
(a) The Markman hearing on claim construction is scheduled for January 30, 2023, before Judge Torvelis. The Parties acknowledge that the Court's claim construction rulings may affect the scope of the damages analysis, including the identification of the patented features, the appropriate royalty base, and the apportionment methodology. Dr. Kessler shall monitor the claim construction proceedings and adjust his analysis as necessary following the Court's ruling.
(b) Expert discovery deadlines, including the deadlines for service of opening expert reports, rebuttal expert reports, and completion of expert depositions, are to be set by the Court in the Case Management Order. Dr. Kessler shall comply with all such deadlines and shall coordinate with Retaining Counsel to ensure timely completion of all deliverables.
(c) The trial date has not yet been set as of the Effective Date but is anticipated to be scheduled for the second half of 2023 or the first half of 2024, subject to the Court's calendar.
Dr. Kessler shall make himself reasonably available to perform the services contemplated by this Agreement in a timely manner consistent with the Court's scheduling orders and Retaining Counsel's reasonable requests.
SECTION 7: BACKGROUND MATERIALS TO BE PROVIDED
Retaining Counsel shall provide or make available to Dr. Kessler the following background materials, among others, in connection with the engagement. Additional materials may be provided as they become available through the course of discovery and litigation:
(a) Copies of the four Patents-in-Suit: U.S. Patent No. 10,234,567; U.S. Patent No. 10,891,234; U.S. Patent No. 11,045,678; and U.S. Patent No. 11,312,890, together with their complete prosecution histories (file wrappers);
(b) OWS's Complaint for Patent Infringement, filed June 3, 2022;
(c) Lumos Photonics, Inc.'s Answer and Counterclaims, filed July 29, 2022;
(d) Relevant discovery materials as produced in the Litigation, including Lumos's revenue data, financial statements, product pricing information, cost data, sales records, and customer information relating to the Accused Products;
(e) The pre-litigation patent portfolio valuation report prepared by Clearpath IP Valuation Services, Inc. (the "Clearpath Report"), authored by Jennifer Armitage, CFA, CLP, which valued OWS's overall patent portfolio at approximately $215 million and the four Asserted Patents collectively at approximately $42.8 million;
(f) OWS's financial statements, including audited financial statements for fiscal year 2022, reflecting total revenue of approximately $187.4 million;
(g) Lumos Photonics, Inc.'s public filings with the U.S. Securities and Exchange Commission, including Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, reflecting fiscal year 2022 revenue of approximately $312.8 million (Nasdaq ticker symbol: LMPH);
(h) Comparable license agreements identified through discovery or independent research, including license agreements in the silicon photonics and semiconductor industries;
(i) Any technical expert reports and analysis prepared by Dr. Harold Whitfield of Whitfield Technical Consulting Group, Inc., relating to claim construction, infringement, and the technical aspects of the Patents-in-Suit and the Accused Products;
(j) Information regarding Vantage Point Capital Partners Fund IV, LP's equity investment in OWS, consisting of approximately $74.5 million in Series C and Series D preferred equity funding, representing an ownership stake of approximately sixty-two percent (62%) of OWS on a fully diluted basis, to the extent relevant to the assessment of OWS's financial position and the value of the patented technology;
(k) The Stipulated Protective Order entered in the Litigation;
(l) The Court's Case Management Order and any amendments thereto; and
(m) Such other documents, data, and materials as Retaining Counsel may identify from time to time as relevant to Dr. Kessler's analysis.
Retaining Counsel shall use reasonable efforts to provide the foregoing materials in an organized and accessible format, and to supplement the materials as additional documents and data become available through discovery. Dr. Kessler shall maintain a log of all materials received and reviewed in connection with the engagement, as such a log may be required for disclosure under Federal Rule of Civil Procedure 26(a)(2)(B).
SECTION 8: TERMINATION
8.1 Termination by Either Party
Either Party may terminate this Agreement at any time upon thirty (30) days' prior written notice to the other Party. Such notice shall be delivered in accordance with Section 10.5 of this Agreement. In the event of termination by either Party, Consultant shall be compensated for all services performed and all expenses properly incurred through the effective date of termination, in accordance with the rates and terms set forth in Section 2 hereof. Upon termination, Consultant shall promptly deliver to Retaining Counsel all work product, draft reports, analyses, and other materials prepared in connection with the engagement, and shall comply with the return-of-materials obligations set forth in Section 3.3.
8.2 Effect of Settlement or Disposition
If the Litigation is resolved by settlement, dismissal, summary judgment, or other disposition prior to the completion of the services contemplated by this Agreement, the engagement shall terminate effective as of the date of such resolution, and Consultant shall be compensated for all services performed and expenses properly incurred through the date of termination, subject to the return-of-materials obligations set forth in Section 3.3. The Parties shall cooperate in good faith to ensure an orderly wind-down of the engagement, including the completion or transition of any pending work product, following the resolution of the Litigation.
SECTION 9: LIABILITY AND INDEMNIFICATION
9.1 Limitation of Liability
Except in cases of gross negligence, willful misconduct, or breach of confidentiality obligations under Section 3, Consultant's aggregate liability to the Firm, OWS, and their respective officers, directors, employees, agents, and affiliates arising out of or in connection with this Agreement, whether in contract, tort, strict liability, or otherwise, shall not exceed the total amount of fees actually paid to Consultant under this Agreement as of the date on which the claim giving rise to such liability first arose. In no event shall either Party be liable to the other for any indirect, incidental, special, consequential, or punitive damages, including lost profits or lost business opportunities, regardless of whether such damages were foreseeable or whether such Party has been advised of the possibility of such damages.
9.2 Indemnification.  Each Party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and its respective officers, directors, members, partners, employees, agents, and affiliates (collectively, the "Indemnified Parties") from and against any and all third-party claims, demands, actions, suits, proceedings, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or resulting from the Indemnifying Party's material breach of any representation, warranty, covenant, or obligation under this Agreement, or from any negligent or wrongful act or omission of the Indemnifying Party or its employees or agents in connection with the performance of this Agreement. The obligations set forth in this Section 9.2 shall survive termination or expiration of this Agreement.
SECTION 10: MISCELLANEOUS PROVISIONS
10.1 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without regard to its conflicts of laws principles. Any dispute arising out of or in connection with this Agreement that cannot be resolved through good faith negotiation shall be submitted to binding arbitration in San Francisco, California, administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect, before a single arbitrator. The arbitrator's decision shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
10.2 Entire Agreement
This Agreement, together with all exhibits and schedules attached hereto and incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, understandings, discussions, and agreements, whether oral or written, between the Parties relating to such subject matter. No prior or contemporaneous representation or agreement not contained in this Agreement shall be binding upon either Party.
10.3 Amendment.  No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless made in writing and signed by authorized representatives of both Parties. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy preclude any other or further exercise thereof.
10.4 Assignment.  Neither Party may assign, delegate, or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party. Any purported assignment or transfer in violation of this Section 10.4 shall be null and void. Notwithstanding the foregoing, either Party may assign this Agreement to a successor in connection with a merger, acquisition, or sale of substantially all of the assigning Party's assets, provided that the assigning Party gives prompt written notice to the other Party and the assignee assumes all obligations of the assigning Party under this Agreement.
10.5 Notices.  All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given when: (a) delivered personally; (b) sent by registered or certified mail, return receipt requested, postage prepaid; (c) sent by nationally recognized overnight courier service; or (d) transmitted by email with confirmation of receipt, addressed as follows:
If to the Firm:
Alan Ngo, Partner or Marcus Delgado, Partner Calderwood & Harkness LLP One Embarcadero Center, 34th Floor San Francisco, California 94111
Email: ango@calderwoodharkness.com / mdelgado@calderwoodharkness.com
If to Consultant:
Dr. Lawrence Kessler, Managing Director Apex Claim Analytics LLC 150 North Michigan Avenue, Suite 2400 Chicago, Illinois 60601
Email: lkessler@apexclaimanalytics.com
Either Party may change its address for notices by providing written notice to the other Party in accordance with this Section 10.5.
10.6 Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by electronic transmission in portable document format (.pdf) shall be effective as delivery of an original executed counterpart.
10.7 Severability.  If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein, provided that the economic and legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party.
10.8 Relationship of the Parties
The relationship of Consultant to the Firm and OWS under this Agreement is that of an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the Parties. Consultant shall have no authority to bind the Firm or OWS to any obligation or to act on behalf of the Firm or OWS, except as expressly authorized in writing.
10.9 Survival.  The provisions of Sections 3 (Confidentiality), 4 (Independence and Objectivity), 9 (Liability and Indemnification), 10.1 (Governing Law), and this Section 10.9 shall survive any termination or expiration of this Agreement.
SIGNATURE BLOCK
IN WITNESS WHEREOF, the Parties have executed this Expert Retention Agreement as of the date first written above.
CALDERWOOD & HARKNESS LLP
By: ________
Name: Alan Ngo
Title: Partner, intellectual Property Group (Responsible Partner)
Date: ________
APEX CLAIM ANALYTICS LLC
By: ________
Name: Dr. Lawrence Kessler
Title: Managing Director / Designated Expert
Date: ________
ACKNOWLEDGED AND CONSENTED TO by the Client solely with respect to the engagement of Consultant and Dr. Kessler as described herein:
OPTIWAVE SEMICONDUCTOR CORP.
By: ________
Name: ________
Title: ________
Date: ________
EXHIBIT A
QUALIFICATIONS OF DR. LAWRENCE KESSLER
Education.  
•  Ph.D. in Economics, Northwestern University, Evanston, Illinois (2001). Dissertation: Empirical Methods for Quantifying Patent Value: Royalty Rate Determinants in Technology Licensing Markets. Dissertation Advisor: Professor Martin Feldcamp.
•  M.A. in Economics, Northwestern University, Evanston, Illinois (1998).
•  B.A. in Economics, *summa cum laude*, University of Michigan, Ann Arbor, Michigan (1996). Phi Beta Kappa.
Professional Positions.  
•  Managing Director, Apex Claim Analytics LLC, Chicago, Illinois (2012–present). Founding principal of economic consulting firm specializing in intellectual property damages analysis, patent valuation, and litigation support. Oversees a team of twelve economists and financial analysts.
•  Vice President — Intellectual Property Economics, Strathmore Advisors, Chicago, Illinois (2006–2012). Led the intellectual property damages practice within the disputes and investigations segment.
•  Senior Economist, Pinnacle Advisory Group, Boston, Massachusetts and Chicago, Illinois (2001–2006). Provided economic analysis in patent infringement, antitrust, securities, and commercial damages matters.
Areas of Specialization
Dr. Kessler specializes in the quantification of patent infringement damages, including reasonable royalty analysis under the Georgia-Pacific framework, lost profits analysis, apportionment of damages between patented and unpatented features, and the valuation of patent portfolios and individual patents. He has extensive experience in the semiconductor, telecommunications, software, and medical device industries. Dr. Kessler has been retained as an expert in matters involving standard-essential patents, FRAND licensing disputes, trade secret misappropriation, and antitrust claims related to intellectual property.
Expert Testimony Experience
Dr. Kessler has been retained as an expert witness in over seventy-five (75) patent infringement and intellectual property matters. He has submitted expert reports in over fifty (50) cases and has provided deposition testimony in over forty (40) cases. Dr. Kessler has provided trial testimony in fifteen (15) matters in the United States District Courts, the United States International Trade Commission, and in international arbitration proceedings. A complete list of cases in which Dr. Kessler has testified at trial or by deposition in the preceding four years, as required by Federal Rule of Civil Procedure 26(a)(2)(B), will be appended to his expert report.
Selected Publications (Preceding Ten Years)
•  Kessler, L. and Chen, R., "Apportionment in Multi-Component Patent Damages: Empirical Approaches After VirnetX," Berkeley Technology Law Journal, Vol. 37, No. 2, pp. 411–468 (2022).
•  Kessler, L., "Reasonable Royalty Benchmarking in the Semiconductor Industry: A Statistical Analysis of Licensing Rates," Journal of Law and Economics, Vol. 64, No. 3, pp. 589–622 (2021).
•  Kessler, L. and Park, S., "The Hypothetical Negotiation Revisited: Bargaining Theory and Georgia-Pacific Factor Analysis," Stanford Technology Law Review, Vol. 23, No. 1, pp. 101–145 (2020).
•  Kessler, L., "Willfulness and Enhanced Damages After Halo: An Empirical Assessment," Hastings Law Journal, Vol. 70, No. 4, pp. 983–1024 (2019).
•  Kessler, L. and Yamamoto, K., "FRAND Royalty Determination: Comparable License Approaches in Standard-Essential Patent Litigation," Columbia Science & Technology Law Review, Vol. 19, No. 2, pp. 275–321 (2018).
•  Kessler, L., "Entire Market Value Rule: Continued Vitality and Practical Application in Patent Damages," Northwestern University Law Review, Vol. 111, No. 3, pp. 757–800 (2017).
•  Kessler, L. and Ostrowski, A., "Patent Portfolio Valuation Methods for Litigation and Transactional Purposes," intellectual Property & Technology Law Journal, Vol. 28, No. 7, pp. 3–14 (2016).
•  Kessler, L., "The Role of Economic Analysis in Daubert Challenges to Damages Experts," American University Law Review, Vol. 64, No. 5, pp. 1211–1260 (2015).
•  Kessler, L. and Friedman, D., "Lost Profits vs. Reasonable Royalties: An Empirical Analysis of Damage Awards in Patent Cases," University of Pennsylvania Law Review, Vol. 162, No. 7, pp. 1579–1632 (2014).
•  Kessler, L., "Innovation Incentives and Patent Damages: An Economic Framework," Yale Journal on Regulation, Vol. 30, No. 2, pp. 343–398 (2013).
Professional Affiliations.  
•  American Economic Association (Member)
•  The Licensing Executives Society (USA & Canada) (Member)
•  American intellectual Property Law Association (Associate Member)
•  National Association of Forensic Economics (Member)
Professional Certifications and Honors
•  Certified Licensing Professional (CLP), Licensing Executives Society International (2009)
•  Fellow, American Academy of Economic and Financial Experts (2017)
EXHIBIT B
SCHEDULE OF RATES
Effective as of October 17, 2022
The following hourly rates shall apply to all professional services rendered by Apex Claim Analytics LLC in connection with the engagement under this Agreement:
Expense Reimbursement Guidelines
The following guidelines shall apply to expense reimbursement under this Agreement:
(a) Air Travel: Coach class for domestic flights; business class for international flights exceeding six (6) hours in duration. All air travel shall be booked at the lowest reasonably available fare consistent with the scheduling requirements of the engagement.
(b) Ground Transportation: Actual cost of rental car, taxi, rideshare, or other ground transportation. Mileage for use of personal vehicle shall be reimbursed at the then-current IRS standard mileage rate.
(c) Lodging: Reasonable business-class hotel accommodations, not to exceed $350 per night in the San Francisco / San Jose metropolitan area and $300 per night in other U.S. cities, unless otherwise approved by Retaining Counsel.
(d) Meals: Actual and reasonable meal expenses incurred while traveling on engagement-related business, not to exceed $75 per day per person.
(e) Reproduction and Printing: Actual cost of document reproduction and printing at commercial rates.
(f) Data Acquisition: Costs of acquiring proprietary data, database access, or financial information services required for the engagement, subject to prior approval by Retaining Counsel for expenses exceeding $1,000.
(g) Other Expenses: All other reasonable out-of-pocket expenses incurred in connection with the engagement, subject to prior approval by Retaining Counsel for any single expense item exceeding $1,000.
All expense reimbursement requests shall be accompanied by supporting receipts or documentation, and shall be submitted as part of the monthly invoices described in Section 2.2 of the Agreement.
[End of Expert Retention Agreement]
Timekeeper | Title / Role | Hourly Rate
Dr. Lawrence Kessler | Managing Director / Designated Expert | $850.00
Senior Analyst (TBD) | Senior Economic Analyst | $425.00
Analyst (TBD) | Economic Analyst | $275.00
Administrative / Paralegal | Administrative and Paralegal Support | $150.00

EXPERT RETENTION AGREEMENT

RECITALS

SECTION 1: ENGAGEMENT AND SCOPE OF SERVICES

SECTION 2: COMPENSATION AND BILLING

SECTION 3: CONFIDENTIALITY

SECTION 4: INDEPENDENCE AND OBJECTIVITY

SECTION 5: CONFLICTS OF INTEREST

SECTION 6: DELIVERABLES AND TIMELINE

SECTION 7: BACKGROUND MATERIALS TO BE PROVIDED

SECTION 8: TERMINATION

SECTION 9: LIABILITY AND INDEMNIFICATION

SECTION 10: MISCELLANEOUS PROVISIONS

SIGNATURE BLOCK

CALDERWOOD & HARKNESS LLP

APEX CLAIM ANALYTICS LLC

OPTIWAVE SEMICONDUCTOR CORP.

EXHIBIT A

QUALIFICATIONS OF DR. LAWRENCE KESSLER

Record

Parties

Dates

Amounts