1019-00001 · Haber Reinhardt Schlosser Partners · Experts

expert-engagement-letter-arclight.docx DOCUMENT M&A / Corporate

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CALDERWOOD & HARKNESS LLP Counsellors at Law

600 Lexington Avenue New York, New York 10022

Telephone: (212) 558-4000 Facsimile: (212) 558-3588 www.calderwoodharkness.com

March 15, 2023

Via Email and Sundial Data Systems

Dr. Raymond Chow Principal Engineer Arclight Materials Science Inc. 7900 Westpark Drive, Suite 200 McLean, Virginia 22102

Re: Engagement of Arclight Materials Science Inc. as Metallurgical Expert — ICC Case No. 27914/MHM, Kestrel Dynamics GmbH v. Whitmore Aerospace LLC

Dear Dr. Chow:

1. Purpose and Background

Calderwood & Harkness LLP ("C&H" or the "Firm") represents Whitmore Aerospace LLC ("WAL" or the "Respondent"), a Delaware limited liability company headquartered at 4200 Wilson Boulevard, Suite 1100, Arlington, Virginia 22203, in the above-referenced arbitration proceeding administered by the International Chamber of Commerce ("ICC"). WAL is an aerospace and defense manufacturer specializing in propulsion systems and structural airframe components for both military and commercial aviation platforms. This letter sets forth the terms and conditions under which we propose to retain Arclight Materials Science Inc. ("Arclight") and, in particular, you, Dr. Raymond Chow, as Respondent's independent metallurgical and materials science expert in this matter.

The claimant in the arbitration is Kestrel Dynamics GmbH ("Kestrel" or "KDG"), a German limited liability company (Gesellschaft mit beschränkter Haftung) with its registered office at Industriestraße 88, 70565 Stuttgart, Federal Republic of Germany (German Trade Register No. HRB 745621, Amtsgericht Stuttgart). Kestrel is represented in these proceedings by Haber Reinhardt Schlosser Partnerschaft mbB ("HRS"), a German law firm with offices in Stuttgart and London. The lead attorney for Kestrel is Dr. Maximilian Haber of HRS.

The arbitration arises out of a Master Supply Agreement for Titanium Alloy Turbine Housings dated June 15, 2018 (the "MSA"), bearing reference number WAL-KDG-MSA-2018-0615. The MSA has been amended twice during the course of performance: first, by Amendment No. 1, dated February 10, 2020, and second, by Amendment No. 2, dated September 3, 2021. Under the MSA, Kestrel agreed to manufacture and deliver Ti-6Al-4V ELI (Extra Low Interstitial) titanium alloy turbine housings (the "Products") to WAL in accordance with WAL's engineering specifications WAL-SPEC-TH-401 through WAL-SPEC-TH-410, inclusive. These specifications establish, among other parameters, dimensional tolerances, metallurgical requirements, surface finish criteria, and maximum acceptable porosity levels for the Products. The Products were further subject to quality standards imposed by, inter alia, AS9100 Revision D certification requirements and incoming inspection procedures set forth in WAL's quality control protocol WAL-QCP-100. All Products were to be delivered DDP (Delivered Duty Paid, as defined in Incoterms® 2020, published by the International Chamber of Commerce) to WAL's manufacturing and quality control facility located at 8500 Coppermine Road, Manassas, Virginia 20110.

On November 7, 2022, Kestrel filed its Request for Arbitration with the Secretariat of the ICC International Court of Arbitration, alleging material breach of the MSA by WAL and seeking approximately €47.3 million in damages. WAL filed its Answer to the Request for Arbitration and Counterclaim on December 12, 2022. The Arbitral Tribunal (the "Tribunal") was constituted on January 20, 2023, and is composed of the following members:

• Presiding Arbitrator: Prof. Dame Eleanor Fitzwilliam

• Claimant's Nominee: Dr. Hans-Ulrich Perren

• Respondent's Nominee: The Honorable Robert A. Castillo (ret.)

The seat of the arbitration is New York, New York. The language of the arbitration is English. The proceedings are conducted pursuant to the ICC Rules of Arbitration (2021 edition). The substantive law governing the MSA is the law of the State of New York, as specified in Section 22.1 of the MSA, without regard to its conflict of laws principles.

The central factual and technical dispute in this arbitration concerns the quality of the Products delivered by Kestrel and, specifically, the porosity levels found in certain lots of turbine housings that were rejected by WAL during its incoming inspection process. WAL's position, which we will ask you to evaluate independently and from a scientific perspective, is that multiple lots of Products failed to meet the contractual porosity specification and that Kestrel's failure to cure these non-conformances constituted a Persistent Quality Failure under the MSA, entitling WAL to terminate the MSA for cause. Kestrel disputes this characterization and has alleged that WAL applied an undisclosed, more stringent porosity standard to reject conforming Products.

2. Engagement and Retention

By this letter, C&H hereby retains Arclight Materials Science Inc. and specifically Dr. Raymond Chow to serve as Respondent's independent metallurgical and materials science expert in ICC Case No. 27914/MHM, Kestrel Dynamics GmbH v. Whitmore Aerospace LLC. This engagement is effective as of the date of this letter, March 15, 2023, and shall continue through the conclusion of the arbitration proceedings, including any post-award proceedings (such as applications for correction, interpretation, or annulment of the award), unless terminated earlier by either party in accordance with Section 10 of this letter.

For internal administrative purposes, the C&H engagement number assigned to this matter is 1019-00001. All invoices, correspondence, and related documentation should reference this engagement number.

The C&H professionals responsible for this engagement are as follows:

• Responsible Partner: Theodore Langston, Partner

• Billing Partner: Vivienne St. Claire, Partner

• Day-to-Day Contact and Coordination:

• Simone Laroche, Senior Associate

• Jeffrey Park, Associate

Dr. Chow and Arclight should direct all substantive and logistical inquiries to Ms. Laroche and Mr. Park in the first instance. Mr. Langston and Ms. St. Claire will be available for strategic direction and will participate in key preparatory sessions in advance of report submission and hearing testimony.

3. Scope of Expert Engagement

3.1 Core Assignment

The core assignment for this engagement involves the independent metallurgical analysis of porosity levels in the fourteen (14) lots of Ti-6Al-4V ELI titanium alloy turbine housings that were rejected by WAL during the period from March 7, 2022, through September 19, 2022. Specifically, the first rejected lot bears the designation Lot KDG-2022-0307, and the final rejected lot bears the designation Lot KDG-2022-0919. The fourteen rejected lots collectively encompass a total of 1,680 individual turbine housing units.

The rejected lots are to be evaluated against the contractual porosity specification of ≤0.25%, as established in WAL-SPEC-TH-401, Appendix C, Table 3 (the "Porosity Specification"). The Porosity Specification represents the maximum volumetric porosity, expressed as a percentage, deemed acceptable for safety-critical turbine housings in aerospace propulsion applications. This specification was incorporated into the MSA by reference and remained unchanged through both Amendment No. 1 and Amendment No. 2.

WAL's internal incoming inspections, conducted in accordance with WAL-QCP-100 (WAL's standard quality control procedure for incoming material verification), identified porosity levels ranging from 0.19% to 0.38% across the fourteen rejected lots. Dr. Chow is asked to independently verify and assess these measurements using his own methodology and professional judgment, and to provide an expert opinion as to the accuracy and reliability of WAL's porosity findings.

3.2 Specific Tasks

Without limiting the generality of the foregoing, Dr. Chow's engagement shall encompass the following specific tasks:

(a) Review and, to the extent physical samples remain available, independently test the porosity characteristics of components drawn from each of the fourteen (14) rejected lots (Lot KDG-2022-0307 through Lot KDG-2022-0919). Such testing may include, at Dr. Chow's discretion, computed tomography (CT) scanning, optical microscopy, Archimedes density measurements, or other recognized metallurgical testing methodologies appropriate for assessing porosity in titanium alloy aerospace components.

(b) Assess whether the porosity levels observed in the rejected lots exceeded the contractual limit of ≤0.25% as set forth in WAL-SPEC-TH-401, Appendix C, Table 3, and provide a lot-by-lot analysis of the porosity measurements relative to the Porosity Specification.

(c) Evaluate WAL's incoming inspection methodology under WAL-QCP-100 for consistency with applicable industry standards, including but not limited to AS9100 Revision D (Quality Management Systems — Requirements for Aviation, Space, and Defense Organizations), ASTM E1441 (Standard Guide for Computed Tomography Imaging), and any other relevant ASTM, SAE, or AMS standards governing porosity measurement in titanium alloys for aerospace applications.

(d) Address Kestrel's anticipated contention — as foreshadowed in its Request for Arbitration and its preliminary statement of case — that WAL applied an unpublished, stricter porosity tolerance of ≤0.15% rather than the contractual ≤0.25% standard in making its rejection decisions. Dr. Chow should opine, based on his review of the available test data and inspection records, on whether WAL's rejection decisions were in fact based on the published contractual Porosity Specification or on some other, different criterion.

(e) Assess the adequacy of Kestrel's quality assurance processes under AS9100 Revision D as they relate to porosity control in the manufacture of Ti-6Al-4V ELI titanium alloy turbine housings. This assessment should address, to the extent information is available, Kestrel's manufacturing processes (including hot isostatic pressing ("HIP"), vacuum arc remelting ("VAR"), casting or forging parameters, and post-processing heat treatment protocols), as well as Kestrel's outgoing inspection and quality verification procedures.

(f) Evaluate the metallurgical significance of porosity levels between 0.19% and 0.38% in Ti-6Al-4V ELI titanium alloy turbine housings intended for use in aerospace applications, and specifically in safety-critical propulsion components. This evaluation should address, among other considerations, the impact of such porosity levels on fatigue life, crack initiation and propagation, tensile strength, and overall structural integrity under the operational loading conditions and thermal cycling characteristic of turbine housing applications.

(g) Review and provide rebuttal opinions with respect to the expert report of Kestrel's technical expert, Dr. Martina Kessler, Director at Albrecht Prüftechnik GmbH, located at Robert-Bosch-Straße 12, 71229 Leonberg, Federal Republic of Germany. C&H anticipates that Dr. Kessler's report will be produced in accordance with the procedural timetable established by the Tribunal, and C&H will transmit a copy to Dr. Chow promptly upon receipt. Dr. Chow's rebuttal opinions should address any points of disagreement with Dr. Kessler's methodology, analysis, or conclusions.

3.3 Reference to Contract Provisions

For ease of reference, the following contract provisions are of particular relevance to Dr. Chow's engagement and analysis:

(a) Rejection/Cure Provision (MSA § 8.4): If WAL rejects any lot of Products for non-conformance with the engineering specifications (including the Porosity Specification), Kestrel shall have forty-five (45) calendar days from the date of WAL's written notice of rejection to cure the non-conformance by either reworking or replacing the non-conforming Products. The forty-five (45) calendar day cure period reflects the amendment made by Amendment No. 2, dated September 3, 2021; the original cure period under the MSA as executed on June 15, 2018, was thirty (30) calendar days. Under MSA § 8.4(c), three (3) or more uncured rejections in any rolling twelve (12) month period shall constitute a "Persistent Quality Failure" under the MSA.

(b) Termination for Cause (MSA § 14.2(b)): Either party may terminate the MSA upon written notice in the event of a Persistent Quality Failure by the other party. WAL issued its Notice of Termination for Cause to Kestrel on October 3, 2022, citing seven (7) uncured rejections within a rolling twelve-month period — well in excess of the three-rejection threshold required to establish a Persistent Quality Failure under the MSA.

(c) Engineering Specifications: The Products are subject to engineering specifications WAL-SPEC-TH-401 through WAL-SPEC-TH-410, inclusive. WAL-SPEC-TH-401 is the primary specification addressing material composition, porosity, and metallurgical requirements. WAL-SPEC-TH-410, which was added by Amendment No. 1 (February 10, 2020), addresses a high-temperature variant of the turbine housing designed for operation in elevated thermal environments.

4. Expert Report Requirements

Dr. Chow shall prepare a written expert report in the English language suitable for submission to the Tribunal in ICC Case No. 27914/MHM. The report shall be of a professional quality and caliber appropriate for an international arbitration proceeding involving complex technical subject matter.

In accordance with the procedural calendar established by the Tribunal in Procedural Order No. 2, dated March 17, 2023, the parties' initial expert reports are to be exchanged simultaneously on October 16, 2023. Rebuttal expert reports addressing the opinions of the opposing party's expert are to be exchanged on November 13, 2023. Dr. Chow should plan his work schedule accordingly and should alert C&H promptly if any circumstances arise that may affect his ability to meet these deadlines.

The expert report must comply with the requirements of the ICC Rules of Arbitration (2021 edition), including any applicable provisions concerning expert evidence, and with any additional directions or guidelines issued by the Tribunal regarding the form and content of expert reports. C&H will promptly communicate to Dr. Chow any such directions or guidelines issued by the Tribunal.

Dr. Chow should be prepared to appear and testify at the evidentiary hearing in this matter, which is currently anticipated to be scheduled for January 2024 at the ICC Hearing Centre in New York, New York. Expert testimony at the hearing may take the form of direct presentation (subject to the Tribunal's directions), cross-examination by counsel for Kestrel, re-examination by C&H, and questions from the Tribunal. C&H will work closely with Dr. Chow to prepare for his hearing testimony.

The expert report should include, at a minimum, the following components:

(i) A statement of Dr. Chow's professional qualifications, including a current curriculum vitae as an appendix;

(ii) A statement of independence confirming Dr. Chow's impartiality and the absence of any relationship or interest that might affect the objectivity of his opinions;

(iii) A description of the materials reviewed and relied upon in forming his opinions, including documents, data, test results, and physical specimens;

(iv) A description of the methodology employed in conducting his analysis, including any testing protocols, equipment, and analytical techniques utilized;

(v) A presentation of Dr. Chow's analysis and findings, supported by data, calculations, photographs, micrographs, and other scientific evidence as appropriate;

(vi) A statement of Dr. Chow's conclusions and expert opinions, clearly and concisely expressed;

(vii) A list of exhibits and supporting data appended to the report; and

(viii) A declaration signed by Dr. Chow confirming that the opinions expressed in the report are his own and are given honestly, objectively, and to the best of his professional knowledge and belief.

C&H will work collaboratively with Dr. Chow in the preparation of his report to ensure that it is responsive to the issues in dispute and presented in a manner that is clear and accessible to the Tribunal. It is understood, however, that the scientific content, methodology, and opinions expressed in the report are solely within Dr. Chow's professional judgment and expertise, and that C&H's role is limited to providing legal context, factual background, and logistical support.

5. Independence and Impartiality

It is of paramount importance that Dr. Chow serve as an independent expert throughout this engagement. Dr. Chow's primary duty is to the Tribunal, and he is expected to provide objective, unbiased opinions based exclusively on his expertise in aerospace metallurgy and materials science, the data and evidence available to him, and his professional judgment. Although Dr. Chow is retained and compensated by C&H on behalf of WAL, this financial relationship does not alter Dr. Chow's obligation to provide truthful and impartial expert testimony, and the opinions expressed by Dr. Chow must not be influenced or constrained by the interests of WAL or any other party.

By countersigning this letter, Dr. Chow and Arclight confirm that they have no prior or current relationship — whether personal, professional, financial, or otherwise — with Kestrel Dynamics GmbH, Haber Reinhardt Schlosser Partnerschaft mbB, Albrecht Prüftechnik GmbH, Dr. Martina Kessler, or any member of the Tribunal (Prof. Dame Eleanor Fitzwilliam, Dr. Hans-Ulrich Perren, and the Honorable Robert A. Castillo) that would compromise, or give rise to a reasonable perception of compromise of, Dr. Chow's independence or impartiality.

Dr. Chow shall promptly disclose to C&H any circumstances arising during the course of this engagement that may give rise to justifiable doubts as to his independence or impartiality, including but not limited to any new professional engagements, personal relationships, financial interests, or other developments that could affect, or be perceived to affect, his objectivity.

6. Materials and Access

C&H will provide Dr. Chow with access to the documents and materials reasonably necessary for the performance of his engagement, including but not limited to the following:

(a) The Master Supply Agreement for Titanium Alloy Turbine Housings dated June 15, 2018 (WAL-KDG-MSA-2018-0615), together with Amendment No. 1 (February 10, 2020) and Amendment No. 2 (September 3, 2021);

(b) WAL engineering specifications WAL-SPEC-TH-401 through WAL-SPEC-TH-410, inclusive, together with any associated technical drawings, revision histories, and interpretive guidance;

(c) WAL-QCP-100 (Quality Control Procedure for Incoming Material Verification), including all appendices, forms, and work instructions;

(d) Lot inspection reports and supporting test data for all fourteen (14) rejected lots, from Lot KDG-2022-0307 through Lot KDG-2022-0919, including raw test data, CT scan images, micrographs, and any internal memoranda or correspondence relating to the rejection decisions;

(e) WAL's internal test data and porosity measurements for the rejected lots, as well as historical acceptance data for previously accepted lots (to the extent relevant for comparative analysis);

(f) Kestrel's AS9100 Revision D certification documentation and audit records, to the extent obtained through the document production phase of the arbitration proceedings;

(g) Pleadings, submissions, and procedural orders filed in ICC Case No. 27914/MHM, to the extent relevant to Dr. Chow's engagement; and

(h) Such other documents, data, and materials as may be relevant to Dr. Chow's analysis and as may become available during the course of the arbitration proceedings.

WAL will arrange for Dr. Chow to have access to its manufacturing and quality control facility at 8500 Coppermine Road, Manassas, Virginia 20110, for any on-site inspection, facility tour, or equipment review that Dr. Chow deems necessary or desirable in connection with his analysis. Such access will be coordinated through C&H, and Dr. Chow will comply with all applicable facility security protocols and safety requirements during any on-site visit.

Physical samples of rejected turbine housing components will be made available to Dr. Chow for independent testing and examination, to the extent such samples remain in WAL's possession, custody, or control. C&H will work with WAL to ensure an appropriate chain of custody for all physical specimens provided to Dr. Chow, and Dr. Chow shall maintain proper records of any testing performed on such samples, including a description of any destructive testing that may alter or consume sample material.

To the extent Dr. Chow requires access to WAL personnel for interviews or technical discussions, coordination for such access — including access to Dr. Ingrid Vollmer (Senior Vice President, Engineering & Manufacturing) and Gerald Huang (Vice President, Global Supply Chain Operations) — will be arranged through C&H. All interviews with WAL personnel shall be conducted in the presence of, or with the prior approval of, C&H counsel.

7. Confidentiality

All information, documents, data, materials, and communications provided to Dr. Chow and Arclight in connection with this engagement are strictly confidential and proprietary to WAL and C&H. Such materials are provided for the sole purpose of this expert engagement and may not be used for any other purpose. All confidential information and materials are further subject to the terms and conditions of any confidentiality order, protective order, or confidentiality undertaking issued by the Tribunal or agreed upon by the parties in the arbitration proceedings. C&H will promptly provide Dr. Chow with a copy of any such order or undertaking, and Dr. Chow shall comply with its terms in all respects.

Arclight and Dr. Chow shall not disclose any confidential information or materials to any third party — including Arclight employees or subcontractors not directly involved in this engagement — without the prior written consent of C&H or as required by applicable law, regulation, or order of a court or tribunal of competent jurisdiction. In the event that Dr. Chow receives a subpoena or other legal demand for the production of confidential information or materials, Dr. Chow shall promptly notify C&H in writing before making any disclosure, to the extent permitted by law.

All work product, draft reports, preliminary analyses, notes, memoranda, and communications between Dr. Chow and C&H — including email correspondence, telephone records, and meeting notes — generated in connection with this engagement are protected by the attorney work product doctrine and, to the extent applicable, the attorney-client privilege. Dr. Chow shall treat all such materials as privileged and confidential and shall take reasonable precautions to prevent their inadvertent disclosure to any unauthorized person.

Upon the termination or conclusion of this engagement, Arclight shall, at C&H's direction, either (a) return to C&H all confidential materials, documents, and data (including all copies, summaries, and extracts) in its possession, custody, or control, or (b) destroy all such materials and provide C&H with a written certification of destruction. Notwithstanding the foregoing, Arclight may retain one archival copy of confidential materials solely to the extent required by applicable professional regulations or for the purpose of establishing compliance with its professional obligations, provided that such archival copy remains subject to the confidentiality obligations set forth in this Section 7.

8. Fees and Billing

Arclight shall bill for Dr. Chow's professional services at his standard hourly rate, and for the services of any supporting professionals, research associates, laboratory technicians, or other Arclight personnel involved in this engagement at their respective standard hourly rates. The current hourly rate schedule for Arclight personnel is set forth in Exhibit A attached hereto and incorporated herein by reference. Arclight shall provide C&H with not less than thirty (30) days' prior written notice of any change to the rates set forth in Exhibit A.

Arclight shall submit monthly invoices to C&H with reasonable detail of the time expended by each timekeeper, a description of the tasks performed, and an itemization of any costs and out-of-pocket expenses incurred during the billing period. Invoices should reference C&H engagement number 1019-00001 and should be submitted to the attention of Vivienne St. Claire, Partner, at Calderwood & Harkness LLP, 600 Lexington Avenue, New York, New York 10022.

C&H shall pay Arclight invoices within thirty (30) days of receipt of a properly submitted invoice. Payment of invoices shall not constitute a waiver of any right to dispute the reasonableness of any charges. In the event of a billing dispute, C&H shall pay the undisputed portion of the invoice within the applicable payment period, and the parties shall work in good faith to resolve the disputed portion.

Reasonable out-of-pocket expenses incurred by Arclight in connection with this engagement — including, without limitation, travel expenses (airfare, lodging, ground transportation, and meals), laboratory testing and analysis costs, materials and supplies, courier and shipping charges, and reproduction costs — shall be reimbursed by C&H at actual cost upon submission of itemized receipts and supporting documentation. Air travel shall be at coach or economy class for domestic flights; business class may be used for international flights with prior approval from C&H. Lodging expenses shall not exceed prevailing government per diem rates for the applicable location without prior approval.

For the avoidance of doubt, Arclight's professional fees and out-of-pocket expenses incurred in connection with this engagement will be included as part of WAL's overall legal costs for the arbitration, which C&H anticipates claiming from Kestrel in the event of a favorable outcome. WAL's total claimed legal costs for the arbitration are currently anticipated to be approximately $3.12 million (United States dollars), inclusive of all outside counsel fees, expert fees (including Arclight's fees), hearing-related travel and accommodation, transcript and translation costs, and advances on costs to the ICC.

9. Communication Protocol

To ensure the integrity of the engagement and to protect applicable privileges, all communications between Arclight and/or Dr. Chow, on the one hand, and C&H, on the other hand, shall be directed through the following primary contacts:

Simone Laroche, Senior Associate Calderwood & Harkness LLP 600 Lexington Avenue, New York, NY 10022 Telephone: (212) 558-4127

Email: slaroche@calderwoodharkness.com

Jeffrey Park, Associate Calderwood & Harkness LLP 600 Lexington Avenue, New York, NY 10022 Telephone: (212) 558-4253

Email: jpark@calderwoodharkness.com

Alternatively, communications may be directed to C&H's Washington, DC office at 1750 K Street NW, Washington, DC 20006, to the attention of Ms. Laroche or Mr. Park, as applicable. The C&H team members are also reachable at the Washington, DC office, and meetings may be held at either location as scheduling requires.

Dr. Chow shall not communicate directly with any WAL personnel (including, without limitation, Dr. Ingrid Vollmer and Gerald Huang), the Tribunal or any member thereof, opposing counsel (Haber Reinhardt Schlosser Partnerschaft mbB or any attorney or professional acting on Kestrel's behalf), or Kestrel's experts (including Dr. Martina Kessler of Albrecht Prüftechnik GmbH) without prior written authorization from C&H. This restriction is essential to the preservation of applicable privileges and to the orderly conduct of the arbitration proceedings.

All written communications — including emails, letters, memoranda, and file transmissions — should prominently reference ICC Case No. 27914/MHM and C&H engagement number 1019-00001, and should bear the legend "PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT" to the extent applicable.

10. Term and Termination

This engagement shall remain in effect from the date hereof through the conclusion of the arbitration proceedings in ICC Case No. 27914/MHM, including any post-award proceedings, unless terminated earlier in accordance with this Section 10.

This engagement may be terminated by either party upon thirty (30) days' prior written notice to the other party, provided, however, that any termination shall be subject to Dr. Chow's and Arclight's continuing obligations to the Tribunal arising from the arbitration proceedings, including any obligation to complete and deliver an expert report that has been ordered by the Tribunal or to appear and testify at a hearing that has been scheduled prior to the effective date of termination.

In the event of termination, Arclight shall be entitled to compensation for all professional services rendered and all expenses properly incurred through the effective date of termination, and C&H shall pay all outstanding invoices in accordance with the payment terms set forth in Section 8 above.

Dr. Chow's and Arclight's obligations regarding confidentiality, as set forth in Section 7 of this letter, shall survive the termination or expiration of this engagement and shall remain in full force and effect indefinitely.

11. Governing Law

This engagement letter and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.

12. Acceptance and Counterparts

If the foregoing terms are acceptable, we respectfully request that Dr. Chow countersign this letter in the space provided below and return a signed copy to the undersigned to confirm acceptance of the engagement. A scanned copy returned by email shall be sufficient for purposes of confirming acceptance, with an original to follow by mail.

This letter may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This letter may be executed and delivered by electronic signature (including PDF or other electronic transmission of a signed counterpart), and such electronic signature shall be deemed an original signature for all purposes.

We look forward to working with you on this important matter. Your expertise in aerospace metallurgy and titanium alloy materials science will be invaluable to the Tribunal's understanding of the technical issues at the heart of this dispute. Please do not hesitate to contact Simone Laroche or Jeffrey Park with any questions regarding this engagement.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Theodore Langston Partner

cc: Vivienne St. Claire, Partner, Calderwood & Harkness LLP Simone Laroche, Senior Associate, Calderwood & Harkness LLP Jeffrey Park, Associate, Calderwood & Harkness LLP

ACKNOWLEDGMENT AND ACCEPTANCE

The undersigned hereby acknowledges receipt of this engagement letter dated March 15, 2023, has read and understood its terms, and agrees to be bound by the terms and conditions set forth herein. By countersigning below, Dr. Raymond Chow confirms, on behalf of himself and Arclight Materials Science Inc., acceptance of the engagement as described herein, including the scope of work, confidentiality obligations, independence requirements, fee arrangements, and communication protocols.

ACKNOWLEDGED AND AGREED:

ARCLIGHT MATERIALS SCIENCE INC.

By: ________

Name: Dr. Raymond Chow

Title: Principal Engineer

Date: ________

EXHIBIT A

ARCLIGHT MATERIALS SCIENCE INC. CURRENT HOURLY RATE SCHEDULE (Effective January 1, 2023)

Note: Rates are subject to annual adjustment. Arclight shall provide C&H with not less than thirty (30) days' prior written notice of any change to the rates set forth in this Exhibit A. Rates do not include out-of-pocket expenses, which are billed separately at cost in accordance with Section 8 of the engagement letter.

CONFIDENTIAL — ATTORNEY WORK PRODUCT — PRIVILEGED Calderwood & Harkness LLP	600 Lexington Avenue	New York, NY 10022 C&H Engagement No. 1019-00001	ICC Case No. 27914/MHM
Personnel Classification	Hourly Rate (USD)
Principal Engineer / Senior Expert (Dr. Raymond Chow)	$ __
Senior Materials Scientist / Associate Expert	$ __
Staff Metallurgist / Research Associate	$ __
Laboratory Technician (Senior)	$ __
Laboratory Technician (Junior)	$ __
Project Coordinator / Administrative Support	$ __

CALDERWOOD & HARKNESS LLP Counsellors at Law
600 Lexington Avenue New York, New York 10022
Telephone: (212) 558-4000 Facsimile: (212) 558-3588 www.calderwoodharkness.com
March 15, 2023
Via Email and Sundial Data Systems
Dr. Raymond Chow Principal Engineer Arclight Materials Science Inc. 7900 Westpark Drive, Suite 200 McLean, Virginia 22102
Re: Engagement of Arclight Materials Science Inc. as Metallurgical Expert — ICC Case No. 27914/MHM, Kestrel Dynamics GmbH v. Whitmore Aerospace LLC
Dear Dr. Chow:
1. Purpose and Background
Calderwood & Harkness LLP ("C&H" or the "Firm") represents Whitmore Aerospace LLC ("WAL" or the "Respondent"), a Delaware limited liability company headquartered at 4200 Wilson Boulevard, Suite 1100, Arlington, Virginia 22203, in the above-referenced arbitration proceeding administered by the International Chamber of Commerce ("ICC"). WAL is an aerospace and defense manufacturer specializing in propulsion systems and structural airframe components for both military and commercial aviation platforms. This letter sets forth the terms and conditions under which we propose to retain Arclight Materials Science Inc. ("Arclight") and, in particular, you, Dr. Raymond Chow, as Respondent's independent metallurgical and materials science expert in this matter.
The claimant in the arbitration is Kestrel Dynamics GmbH ("Kestrel" or "KDG"), a German limited liability company (Gesellschaft mit beschränkter Haftung) with its registered office at Industriestraße 88, 70565 Stuttgart, Federal Republic of Germany (German Trade Register No. HRB 745621, Amtsgericht Stuttgart). Kestrel is represented in these proceedings by Haber Reinhardt Schlosser Partnerschaft mbB ("HRS"), a German law firm with offices in Stuttgart and London. The lead attorney for Kestrel is Dr. Maximilian Haber of HRS.
The arbitration arises out of a Master Supply Agreement for Titanium Alloy Turbine Housings dated June 15, 2018 (the "MSA"), bearing reference number WAL-KDG-MSA-2018-0615. The MSA has been amended twice during the course of performance: first, by Amendment No. 1, dated February 10, 2020, and second, by Amendment No. 2, dated September 3, 2021. Under the MSA, Kestrel agreed to manufacture and deliver Ti-6Al-4V ELI (Extra Low Interstitial) titanium alloy turbine housings (the "Products") to WAL in accordance with WAL's engineering specifications WAL-SPEC-TH-401 through WAL-SPEC-TH-410, inclusive. These specifications establish, among other parameters, dimensional tolerances, metallurgical requirements, surface finish criteria, and maximum acceptable porosity levels for the Products. The Products were further subject to quality standards imposed by, inter alia, AS9100 Revision D certification requirements and incoming inspection procedures set forth in WAL's quality control protocol WAL-QCP-100. All Products were to be delivered DDP (Delivered Duty Paid, as defined in Incoterms® 2020, published by the International Chamber of Commerce) to WAL's manufacturing and quality control facility located at 8500 Coppermine Road, Manassas, Virginia 20110.
On November 7, 2022, Kestrel filed its Request for Arbitration with the Secretariat of the ICC International Court of Arbitration, alleging material breach of the MSA by WAL and seeking approximately €47.3 million in damages. WAL filed its Answer to the Request for Arbitration and Counterclaim on December 12, 2022. The Arbitral Tribunal (the "Tribunal") was constituted on January 20, 2023, and is composed of the following members:
•  Presiding Arbitrator: Prof. Dame Eleanor Fitzwilliam
•  Claimant's Nominee: Dr. Hans-Ulrich Perren
•  Respondent's Nominee: The Honorable Robert A. Castillo (ret.)
The seat of the arbitration is New York, New York. The language of the arbitration is English. The proceedings are conducted pursuant to the ICC Rules of Arbitration (2021 edition). The substantive law governing the MSA is the law of the State of New York, as specified in Section 22.1 of the MSA, without regard to its conflict of laws principles.
The central factual and technical dispute in this arbitration concerns the quality of the Products delivered by Kestrel and, specifically, the porosity levels found in certain lots of turbine housings that were rejected by WAL during its incoming inspection process. WAL's position, which we will ask you to evaluate independently and from a scientific perspective, is that multiple lots of Products failed to meet the contractual porosity specification and that Kestrel's failure to cure these non-conformances constituted a Persistent Quality Failure under the MSA, entitling WAL to terminate the MSA for cause. Kestrel disputes this characterization and has alleged that WAL applied an undisclosed, more stringent porosity standard to reject conforming Products.
2. Engagement and Retention
By this letter, C&H hereby retains Arclight Materials Science Inc. and specifically Dr. Raymond Chow to serve as Respondent's independent metallurgical and materials science expert in ICC Case No. 27914/MHM, Kestrel Dynamics GmbH v. Whitmore Aerospace LLC. This engagement is effective as of the date of this letter, March 15, 2023, and shall continue through the conclusion of the arbitration proceedings, including any post-award proceedings (such as applications for correction, interpretation, or annulment of the award), unless terminated earlier by either party in accordance with Section 10 of this letter.
For internal administrative purposes, the C&H engagement number assigned to this matter is 1019-00001. All invoices, correspondence, and related documentation should reference this engagement number.
The C&H professionals responsible for this engagement are as follows:
•  Responsible Partner: Theodore Langston, Partner
•  Billing Partner: Vivienne St. Claire, Partner
•  Day-to-Day Contact and Coordination:
•  Simone Laroche, Senior Associate
•  Jeffrey Park, Associate
Dr. Chow and Arclight should direct all substantive and logistical inquiries to Ms. Laroche and Mr. Park in the first instance. Mr. Langston and Ms. St. Claire will be available for strategic direction and will participate in key preparatory sessions in advance of report submission and hearing testimony.
3. Scope of Expert Engagement
3.1 Core Assignment
The core assignment for this engagement involves the independent metallurgical analysis of porosity levels in the fourteen (14) lots of Ti-6Al-4V ELI titanium alloy turbine housings that were rejected by WAL during the period from March 7, 2022, through September 19, 2022. Specifically, the first rejected lot bears the designation Lot KDG-2022-0307, and the final rejected lot bears the designation Lot KDG-2022-0919. The fourteen rejected lots collectively encompass a total of 1,680 individual turbine housing units.
The rejected lots are to be evaluated against the contractual porosity specification of ≤0.25%, as established in WAL-SPEC-TH-401, Appendix C, Table 3 (the "Porosity Specification"). The Porosity Specification represents the maximum volumetric porosity, expressed as a percentage, deemed acceptable for safety-critical turbine housings in aerospace propulsion applications. This specification was incorporated into the MSA by reference and remained unchanged through both Amendment No. 1 and Amendment No. 2.
WAL's internal incoming inspections, conducted in accordance with WAL-QCP-100 (WAL's standard quality control procedure for incoming material verification), identified porosity levels ranging from 0.19% to 0.38% across the fourteen rejected lots. Dr. Chow is asked to independently verify and assess these measurements using his own methodology and professional judgment, and to provide an expert opinion as to the accuracy and reliability of WAL's porosity findings.
3.2 Specific Tasks
Without limiting the generality of the foregoing, Dr. Chow's engagement shall encompass the following specific tasks:
(a) Review and, to the extent physical samples remain available, independently test the porosity characteristics of components drawn from each of the fourteen (14) rejected lots (Lot KDG-2022-0307 through Lot KDG-2022-0919). Such testing may include, at Dr. Chow's discretion, computed tomography (CT) scanning, optical microscopy, Archimedes density measurements, or other recognized metallurgical testing methodologies appropriate for assessing porosity in titanium alloy aerospace components.
(b) Assess whether the porosity levels observed in the rejected lots exceeded the contractual limit of ≤0.25% as set forth in WAL-SPEC-TH-401, Appendix C, Table 3, and provide a lot-by-lot analysis of the porosity measurements relative to the Porosity Specification.
(c) Evaluate WAL's incoming inspection methodology under WAL-QCP-100 for consistency with applicable industry standards, including but not limited to AS9100 Revision D (Quality Management Systems — Requirements for Aviation, Space, and Defense Organizations), ASTM E1441 (Standard Guide for Computed Tomography Imaging), and any other relevant ASTM, SAE, or AMS standards governing porosity measurement in titanium alloys for aerospace applications.
(d) Address Kestrel's anticipated contention — as foreshadowed in its Request for Arbitration and its preliminary statement of case — that WAL applied an unpublished, stricter porosity tolerance of ≤0.15% rather than the contractual ≤0.25% standard in making its rejection decisions. Dr. Chow should opine, based on his review of the available test data and inspection records, on whether WAL's rejection decisions were in fact based on the published contractual Porosity Specification or on some other, different criterion.
(e) Assess the adequacy of Kestrel's quality assurance processes under AS9100 Revision D as they relate to porosity control in the manufacture of Ti-6Al-4V ELI titanium alloy turbine housings. This assessment should address, to the extent information is available, Kestrel's manufacturing processes (including hot isostatic pressing ("HIP"), vacuum arc remelting ("VAR"), casting or forging parameters, and post-processing heat treatment protocols), as well as Kestrel's outgoing inspection and quality verification procedures.
(f) Evaluate the metallurgical significance of porosity levels between 0.19% and 0.38% in Ti-6Al-4V ELI titanium alloy turbine housings intended for use in aerospace applications, and specifically in safety-critical propulsion components. This evaluation should address, among other considerations, the impact of such porosity levels on fatigue life, crack initiation and propagation, tensile strength, and overall structural integrity under the operational loading conditions and thermal cycling characteristic of turbine housing applications.
(g) Review and provide rebuttal opinions with respect to the expert report of Kestrel's technical expert, Dr. Martina Kessler, Director at Albrecht Prüftechnik GmbH, located at Robert-Bosch-Straße 12, 71229 Leonberg, Federal Republic of Germany. C&H anticipates that Dr. Kessler's report will be produced in accordance with the procedural timetable established by the Tribunal, and C&H will transmit a copy to Dr. Chow promptly upon receipt. Dr. Chow's rebuttal opinions should address any points of disagreement with Dr. Kessler's methodology, analysis, or conclusions.
3.3 Reference to Contract Provisions
For ease of reference, the following contract provisions are of particular relevance to Dr. Chow's engagement and analysis:
(a) Rejection/Cure Provision (MSA § 8.4): If WAL rejects any lot of Products for non-conformance with the engineering specifications (including the Porosity Specification), Kestrel shall have forty-five (45) calendar days from the date of WAL's written notice of rejection to cure the non-conformance by either reworking or replacing the non-conforming Products. The forty-five (45) calendar day cure period reflects the amendment made by Amendment No. 2, dated September 3, 2021; the original cure period under the MSA as executed on June 15, 2018, was thirty (30) calendar days. Under MSA § 8.4(c), three (3) or more uncured rejections in any rolling twelve (12) month period shall constitute a "Persistent Quality Failure" under the MSA.
(b) Termination for Cause (MSA § 14.2(b)): Either party may terminate the MSA upon written notice in the event of a Persistent Quality Failure by the other party. WAL issued its Notice of Termination for Cause to Kestrel on October 3, 2022, citing seven (7) uncured rejections within a rolling twelve-month period — well in excess of the three-rejection threshold required to establish a Persistent Quality Failure under the MSA.
(c) Engineering Specifications: The Products are subject to engineering specifications WAL-SPEC-TH-401 through WAL-SPEC-TH-410, inclusive. WAL-SPEC-TH-401 is the primary specification addressing material composition, porosity, and metallurgical requirements. WAL-SPEC-TH-410, which was added by Amendment No. 1 (February 10, 2020), addresses a high-temperature variant of the turbine housing designed for operation in elevated thermal environments.
4. Expert Report Requirements
Dr. Chow shall prepare a written expert report in the English language suitable for submission to the Tribunal in ICC Case No. 27914/MHM. The report shall be of a professional quality and caliber appropriate for an international arbitration proceeding involving complex technical subject matter.
In accordance with the procedural calendar established by the Tribunal in Procedural Order No. 2, dated March 17, 2023, the parties' initial expert reports are to be exchanged simultaneously on October 16, 2023. Rebuttal expert reports addressing the opinions of the opposing party's expert are to be exchanged on November 13, 2023. Dr. Chow should plan his work schedule accordingly and should alert C&H promptly if any circumstances arise that may affect his ability to meet these deadlines.
The expert report must comply with the requirements of the ICC Rules of Arbitration (2021 edition), including any applicable provisions concerning expert evidence, and with any additional directions or guidelines issued by the Tribunal regarding the form and content of expert reports. C&H will promptly communicate to Dr. Chow any such directions or guidelines issued by the Tribunal.
Dr. Chow should be prepared to appear and testify at the evidentiary hearing in this matter, which is currently anticipated to be scheduled for January 2024 at the ICC Hearing Centre in New York, New York. Expert testimony at the hearing may take the form of direct presentation (subject to the Tribunal's directions), cross-examination by counsel for Kestrel, re-examination by C&H, and questions from the Tribunal. C&H will work closely with Dr. Chow to prepare for his hearing testimony.
The expert report should include, at a minimum, the following components:
(i) A statement of Dr. Chow's professional qualifications, including a current curriculum vitae as an appendix;
(ii) A statement of independence confirming Dr. Chow's impartiality and the absence of any relationship or interest that might affect the objectivity of his opinions;
(iii) A description of the materials reviewed and relied upon in forming his opinions, including documents, data, test results, and physical specimens;
(iv) A description of the methodology employed in conducting his analysis, including any testing protocols, equipment, and analytical techniques utilized;
(v) A presentation of Dr. Chow's analysis and findings, supported by data, calculations, photographs, micrographs, and other scientific evidence as appropriate;
(vi) A statement of Dr. Chow's conclusions and expert opinions, clearly and concisely expressed;
(vii) A list of exhibits and supporting data appended to the report; and
(viii) A declaration signed by Dr. Chow confirming that the opinions expressed in the report are his own and are given honestly, objectively, and to the best of his professional knowledge and belief.
C&H will work collaboratively with Dr. Chow in the preparation of his report to ensure that it is responsive to the issues in dispute and presented in a manner that is clear and accessible to the Tribunal. It is understood, however, that the scientific content, methodology, and opinions expressed in the report are solely within Dr. Chow's professional judgment and expertise, and that C&H's role is limited to providing legal context, factual background, and logistical support.
5. Independence and Impartiality
It is of paramount importance that Dr. Chow serve as an independent expert throughout this engagement. Dr. Chow's primary duty is to the Tribunal, and he is expected to provide objective, unbiased opinions based exclusively on his expertise in aerospace metallurgy and materials science, the data and evidence available to him, and his professional judgment. Although Dr. Chow is retained and compensated by C&H on behalf of WAL, this financial relationship does not alter Dr. Chow's obligation to provide truthful and impartial expert testimony, and the opinions expressed by Dr. Chow must not be influenced or constrained by the interests of WAL or any other party.
By countersigning this letter, Dr. Chow and Arclight confirm that they have no prior or current relationship — whether personal, professional, financial, or otherwise — with Kestrel Dynamics GmbH, Haber Reinhardt Schlosser Partnerschaft mbB, Albrecht Prüftechnik GmbH, Dr. Martina Kessler, or any member of the Tribunal (Prof. Dame Eleanor Fitzwilliam, Dr. Hans-Ulrich Perren, and the Honorable Robert A. Castillo) that would compromise, or give rise to a reasonable perception of compromise of, Dr. Chow's independence or impartiality.
Dr. Chow shall promptly disclose to C&H any circumstances arising during the course of this engagement that may give rise to justifiable doubts as to his independence or impartiality, including but not limited to any new professional engagements, personal relationships, financial interests, or other developments that could affect, or be perceived to affect, his objectivity.
6. Materials and Access
C&H will provide Dr. Chow with access to the documents and materials reasonably necessary for the performance of his engagement, including but not limited to the following:
(a) The Master Supply Agreement for Titanium Alloy Turbine Housings dated June 15, 2018 (WAL-KDG-MSA-2018-0615), together with Amendment No. 1 (February 10, 2020) and Amendment No. 2 (September 3, 2021);
(b) WAL engineering specifications WAL-SPEC-TH-401 through WAL-SPEC-TH-410, inclusive, together with any associated technical drawings, revision histories, and interpretive guidance;
(c) WAL-QCP-100 (Quality Control Procedure for Incoming Material Verification), including all appendices, forms, and work instructions;
(d) Lot inspection reports and supporting test data for all fourteen (14) rejected lots, from Lot KDG-2022-0307 through Lot KDG-2022-0919, including raw test data, CT scan images, micrographs, and any internal memoranda or correspondence relating to the rejection decisions;
(e) WAL's internal test data and porosity measurements for the rejected lots, as well as historical acceptance data for previously accepted lots (to the extent relevant for comparative analysis);
(f) Kestrel's AS9100 Revision D certification documentation and audit records, to the extent obtained through the document production phase of the arbitration proceedings;
(g) Pleadings, submissions, and procedural orders filed in ICC Case No. 27914/MHM, to the extent relevant to Dr. Chow's engagement; and
(h) Such other documents, data, and materials as may be relevant to Dr. Chow's analysis and as may become available during the course of the arbitration proceedings.
WAL will arrange for Dr. Chow to have access to its manufacturing and quality control facility at 8500 Coppermine Road, Manassas, Virginia 20110, for any on-site inspection, facility tour, or equipment review that Dr. Chow deems necessary or desirable in connection with his analysis. Such access will be coordinated through C&H, and Dr. Chow will comply with all applicable facility security protocols and safety requirements during any on-site visit.
Physical samples of rejected turbine housing components will be made available to Dr. Chow for independent testing and examination, to the extent such samples remain in WAL's possession, custody, or control. C&H will work with WAL to ensure an appropriate chain of custody for all physical specimens provided to Dr. Chow, and Dr. Chow shall maintain proper records of any testing performed on such samples, including a description of any destructive testing that may alter or consume sample material.
To the extent Dr. Chow requires access to WAL personnel for interviews or technical discussions, coordination for such access — including access to Dr. Ingrid Vollmer (Senior Vice President, Engineering & Manufacturing) and Gerald Huang (Vice President, Global Supply Chain Operations) — will be arranged through C&H. All interviews with WAL personnel shall be conducted in the presence of, or with the prior approval of, C&H counsel.
7. Confidentiality
All information, documents, data, materials, and communications provided to Dr. Chow and Arclight in connection with this engagement are strictly confidential and proprietary to WAL and C&H. Such materials are provided for the sole purpose of this expert engagement and may not be used for any other purpose. All confidential information and materials are further subject to the terms and conditions of any confidentiality order, protective order, or confidentiality undertaking issued by the Tribunal or agreed upon by the parties in the arbitration proceedings. C&H will promptly provide Dr. Chow with a copy of any such order or undertaking, and Dr. Chow shall comply with its terms in all respects.
Arclight and Dr. Chow shall not disclose any confidential information or materials to any third party — including Arclight employees or subcontractors not directly involved in this engagement — without the prior written consent of C&H or as required by applicable law, regulation, or order of a court or tribunal of competent jurisdiction. In the event that Dr. Chow receives a subpoena or other legal demand for the production of confidential information or materials, Dr. Chow shall promptly notify C&H in writing before making any disclosure, to the extent permitted by law.
All work product, draft reports, preliminary analyses, notes, memoranda, and communications between Dr. Chow and C&H — including email correspondence, telephone records, and meeting notes — generated in connection with this engagement are protected by the attorney work product doctrine and, to the extent applicable, the attorney-client privilege. Dr. Chow shall treat all such materials as privileged and confidential and shall take reasonable precautions to prevent their inadvertent disclosure to any unauthorized person.
Upon the termination or conclusion of this engagement, Arclight shall, at C&H's direction, either (a) return to C&H all confidential materials, documents, and data (including all copies, summaries, and extracts) in its possession, custody, or control, or (b) destroy all such materials and provide C&H with a written certification of destruction. Notwithstanding the foregoing, Arclight may retain one archival copy of confidential materials solely to the extent required by applicable professional regulations or for the purpose of establishing compliance with its professional obligations, provided that such archival copy remains subject to the confidentiality obligations set forth in this Section 7.
8. Fees and Billing
Arclight shall bill for Dr. Chow's professional services at his standard hourly rate, and for the services of any supporting professionals, research associates, laboratory technicians, or other Arclight personnel involved in this engagement at their respective standard hourly rates. The current hourly rate schedule for Arclight personnel is set forth in Exhibit A attached hereto and incorporated herein by reference. Arclight shall provide C&H with not less than thirty (30) days' prior written notice of any change to the rates set forth in Exhibit A.
Arclight shall submit monthly invoices to C&H with reasonable detail of the time expended by each timekeeper, a description of the tasks performed, and an itemization of any costs and out-of-pocket expenses incurred during the billing period. Invoices should reference C&H engagement number 1019-00001 and should be submitted to the attention of Vivienne St. Claire, Partner, at Calderwood & Harkness LLP, 600 Lexington Avenue, New York, New York 10022.
C&H shall pay Arclight invoices within thirty (30) days of receipt of a properly submitted invoice. Payment of invoices shall not constitute a waiver of any right to dispute the reasonableness of any charges. In the event of a billing dispute, C&H shall pay the undisputed portion of the invoice within the applicable payment period, and the parties shall work in good faith to resolve the disputed portion.
Reasonable out-of-pocket expenses incurred by Arclight in connection with this engagement — including, without limitation, travel expenses (airfare, lodging, ground transportation, and meals), laboratory testing and analysis costs, materials and supplies, courier and shipping charges, and reproduction costs — shall be reimbursed by C&H at actual cost upon submission of itemized receipts and supporting documentation. Air travel shall be at coach or economy class for domestic flights; business class may be used for international flights with prior approval from C&H. Lodging expenses shall not exceed prevailing government per diem rates for the applicable location without prior approval.
For the avoidance of doubt, Arclight's professional fees and out-of-pocket expenses incurred in connection with this engagement will be included as part of WAL's overall legal costs for the arbitration, which C&H anticipates claiming from Kestrel in the event of a favorable outcome. WAL's total claimed legal costs for the arbitration are currently anticipated to be approximately $3.12 million (United States dollars), inclusive of all outside counsel fees, expert fees (including Arclight's fees), hearing-related travel and accommodation, transcript and translation costs, and advances on costs to the ICC.
9. Communication Protocol
To ensure the integrity of the engagement and to protect applicable privileges, all communications between Arclight and/or Dr. Chow, on the one hand, and C&H, on the other hand, shall be directed through the following primary contacts:
Simone Laroche, Senior Associate Calderwood & Harkness LLP 600 Lexington Avenue, New York, NY 10022 Telephone: (212) 558-4127
Email: slaroche@calderwoodharkness.com
Jeffrey Park, Associate Calderwood & Harkness LLP 600 Lexington Avenue, New York, NY 10022 Telephone: (212) 558-4253
Email: jpark@calderwoodharkness.com
Alternatively, communications may be directed to C&H's Washington, DC office at 1750 K Street NW, Washington, DC 20006, to the attention of Ms. Laroche or Mr. Park, as applicable. The C&H team members are also reachable at the Washington, DC office, and meetings may be held at either location as scheduling requires.
Dr. Chow shall not communicate directly with any WAL personnel (including, without limitation, Dr. Ingrid Vollmer and Gerald Huang), the Tribunal or any member thereof, opposing counsel (Haber Reinhardt Schlosser Partnerschaft mbB or any attorney or professional acting on Kestrel's behalf), or Kestrel's experts (including Dr. Martina Kessler of Albrecht Prüftechnik GmbH) without prior written authorization from C&H. This restriction is essential to the preservation of applicable privileges and to the orderly conduct of the arbitration proceedings.
All written communications — including emails, letters, memoranda, and file transmissions — should prominently reference ICC Case No. 27914/MHM and C&H engagement number 1019-00001, and should bear the legend "PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT" to the extent applicable.
10. Term and Termination
This engagement shall remain in effect from the date hereof through the conclusion of the arbitration proceedings in ICC Case No. 27914/MHM, including any post-award proceedings, unless terminated earlier in accordance with this Section 10.
This engagement may be terminated by either party upon thirty (30) days' prior written notice to the other party, provided, however, that any termination shall be subject to Dr. Chow's and Arclight's continuing obligations to the Tribunal arising from the arbitration proceedings, including any obligation to complete and deliver an expert report that has been ordered by the Tribunal or to appear and testify at a hearing that has been scheduled prior to the effective date of termination.
In the event of termination, Arclight shall be entitled to compensation for all professional services rendered and all expenses properly incurred through the effective date of termination, and C&H shall pay all outstanding invoices in accordance with the payment terms set forth in Section 8 above.
Dr. Chow's and Arclight's obligations regarding confidentiality, as set forth in Section 7 of this letter, shall survive the termination or expiration of this engagement and shall remain in full force and effect indefinitely.
11. Governing Law
This engagement letter and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
12. Acceptance and Counterparts
If the foregoing terms are acceptable, we respectfully request that Dr. Chow countersign this letter in the space provided below and return a signed copy to the undersigned to confirm acceptance of the engagement. A scanned copy returned by email shall be sufficient for purposes of confirming acceptance, with an original to follow by mail.
This letter may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This letter may be executed and delivered by electronic signature (including PDF or other electronic transmission of a signed counterpart), and such electronic signature shall be deemed an original signature for all purposes.
We look forward to working with you on this important matter. Your expertise in aerospace metallurgy and titanium alloy materials science will be invaluable to the Tribunal's understanding of the technical issues at the heart of this dispute. Please do not hesitate to contact Simone Laroche or Jeffrey Park with any questions regarding this engagement.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Theodore Langston Partner
cc: Vivienne St. Claire, Partner, Calderwood & Harkness LLP Simone Laroche, Senior Associate, Calderwood & Harkness LLP Jeffrey Park, Associate, Calderwood & Harkness LLP
ACKNOWLEDGMENT AND ACCEPTANCE
The undersigned hereby acknowledges receipt of this engagement letter dated March 15, 2023, has read and understood its terms, and agrees to be bound by the terms and conditions set forth herein. By countersigning below, Dr. Raymond Chow confirms, on behalf of himself and Arclight Materials Science Inc., acceptance of the engagement as described herein, including the scope of work, confidentiality obligations, independence requirements, fee arrangements, and communication protocols.
ACKNOWLEDGED AND AGREED:
ARCLIGHT MATERIALS SCIENCE INC.
By: ________
Name: Dr. Raymond Chow
Title: Principal Engineer
Date: ________
EXHIBIT A
ARCLIGHT MATERIALS SCIENCE INC. CURRENT HOURLY RATE SCHEDULE (Effective January 1, 2023)
Note: Rates are subject to annual adjustment. Arclight shall provide C&H with not less than thirty (30) days' prior written notice of any change to the rates set forth in this Exhibit A. Rates do not include out-of-pocket expenses, which are billed separately at cost in accordance with Section 8 of the engagement letter.
CONFIDENTIAL — ATTORNEY WORK PRODUCT — PRIVILEGED Calderwood & Harkness LLP | 600 Lexington Avenue | New York, NY 10022 C&H Engagement No. 1019-00001 | ICC Case No. 27914/MHM
Personnel Classification | Hourly Rate (USD)
Principal Engineer / Senior Expert (Dr. Raymond Chow) | $ __
Senior Materials Scientist / Associate Expert | $ __
Staff Metallurgist / Research Associate | $ __
Laboratory Technician (Senior) | $ __
Laboratory Technician (Junior) | $ __
Project Coordinator / Administrative Support | $ __

CALDERWOOD & HARKNESS LLP Counsellors at Law

CALDERWOOD & HARKNESS LLP

ACKNOWLEDGMENT AND ACCEPTANCE

ACKNOWLEDGED AND AGREED:

ARCLIGHT MATERIALS SCIENCE INC.

EXHIBIT A

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