1032-00004 · Client 1032 · Closing

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OFFICER'S CERTIFICATE OF HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT AND HALCYON US HOLDINGS INC.

Certificate Pursuant to Section 7.1(c) of the Stock Purchase Agreement

February 9, 2024

This Officer's Certificate (this "Certificate") is delivered pursuant to Section 7.1(c) of that certain Stock Purchase Agreement, dated as of June 10, 2023 (the "Agreement"), by and among Halcyon US Holdings Inc., a Delaware corporation ("Buyer"), the shareholders of Marlowe Asset Management Photonics Inc. listed on Schedule A thereto (collectively, the "Sellers"), and Marlowe Asset Management Photonics Inc., a Delaware corporation (the "Company" or "VPI"). This Certificate is delivered as a condition precedent to the obligations of the Sellers and the Company to consummate the Closing (as defined in the Agreement) contemplated thereby.

RECITALS

A. Identity of Certifying Officer. The undersigned, Dr. Maximilian Ehrhardt, is the Chief Executive Officer (Vorstandsvorsitzender) of Halcyon Semiconductor Aktiengesellschaft, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany ("HSAG" or "Parent"), registered with the commercial register (Handelsregister) of the Amtsgericht Dresden under HRB 28416, with its principal offices located at Industriestraße 44, 01099 Dresden, Saxony, Federal Republic of Germany. HSAG is the sole stockholder of Halcyon US Holdings Inc., a corporation organized and existing under the laws of the State of Delaware ("Buyer"), with its registered office at 160 Greentree Drive, Suite 101, Dover, Delaware 19904 (Employer Identification Number: 93-2841067). Dr. Ehrhardt is duly authorized to execute and deliver this Certificate on behalf of both HSAG and Buyer, as more particularly described in Recital D below.

B. Reference to the Stock Purchase Agreement. Reference is hereby made to the Agreement, dated as of June 10, 2023, pursuant to which Buyer has agreed to acquire 100% of the issued and outstanding shares of capital stock of Marlowe Asset Management Photonics Inc. (Employer Identification Number: 26-4371885), a Delaware corporation headquartered at 7400 Ridgeline Parkway, Colorado Springs, Colorado 80919, for a base purchase price of One Billion Four Hundred Twenty Million Dollars ($1,420,000,000), subject to adjustment as set forth in Article II of the Agreement, on a cash-free, debt-free basis with a normalized net working capital target of Thirty-Four Million Six Hundred Thousand Dollars ($34,600,000). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Agreement.

C. CFIUS Closing Conditions. Section 7.1(c) of the Agreement provides that the obligations of the Sellers and the Company to consummate the Closing are subject to the satisfaction or waiver of each of the following conditions relating to the review of the transactions contemplated by the Agreement by the Committee on Foreign Investment in the United States ("CFIUS"):

(i) the filing and acceptance of a voluntary joint notice with CFIUS pursuant to Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4565), and the regulations promulgated thereunder at 31 C.F.R. Part 800;

(ii) the completion of CFIUS review and/or investigation of the transactions contemplated by the Agreement without CFIUS or the President of the United States taking action to block, suspend, or otherwise prohibit the transaction;

(iii) the execution of a National Security Agreement (or other mitigation agreement) in form and substance acceptable to CFIUS, the parties to the Agreement, and the relevant lead agencies;

(iv) the receipt by Buyer and the Company of a written clearance letter from CFIUS (or the Department of the Treasury acting in its capacity as Chair of CFIUS) granting safe harbor to the transaction under 50 U.S.C. § 4565(b)(1)(D); and

(v) the implementation of the initial compliance infrastructure required by the National Security Agreement to be in place at or prior to the Closing.

The CFIUS filing in connection with the transactions contemplated by the Agreement was assigned CFIUS Case No. CFIUS-023-07-3841.

D. Representation Authority. Dr. Ehrhardt has personal knowledge of the facts certified herein and has made due inquiry and investigation sufficient to support the certifications set forth below. Dr. Ehrhardt is duly authorized to deliver this Certificate pursuant to (i) resolutions of the Vorstand (Management Board) of HSAG, adopted on June 5, 2023, and ratified on January 30, 2024, and (ii) resolutions of the Board of Directors of Buyer (acting by written consent of its sole director), adopted on June 5, 2023, and ratified on January 30, 2024, in each case authorizing the execution and delivery of this Certificate and all documents and instruments contemplated hereby.

CERTIFICATIONS

NOW, THEREFORE, the undersigned, Dr. Maximilian Ehrhardt, on behalf of HSAG and Buyer, hereby certifies as follows:

Section 1 — Certification of Satisfaction of CFIUS Closing Conditions

Dr. Ehrhardt hereby certifies, on behalf of HSAG and Buyer, that as of the date hereof, February 9, 2024, each of the CFIUS-related closing conditions set forth in Section 7.1(c) of the Agreement has been duly and fully satisfied, as set forth in detail in Sections 1.1 through 1.5 below.

1.1 Filing and Acceptance of Voluntary Joint Notice

A voluntary joint notice (the "Joint Notice") was prepared and filed with CFIUS on July 14, 2023, pursuant to 31 C.F.R. § 800.501, by Buyer and the Company, acting jointly as the transaction parties. CFIUS accepted the Joint Notice as complete and formally commenced its initial forty-five (45) calendar day review period on July 21, 2023, in accordance with 50 U.S.C. § 4565(b)(1)(E). The Joint Notice was assigned CFIUS Case No. CFIUS-023-07-3841 by the Staff Chairperson.

The Joint Notice included all schedules, exhibits, and attachments required under 31 C.F.R. § 800.502, including but not limited to: (a) a description of the transaction and all associated ancillary agreements; (b) organizational charts and ownership diagrams for HSAG, Buyer, and VPI; (c) information regarding the products, services, and technologies of VPI, including information related to classified contracts, export-controlled technologies, and critical technologies within the meaning of 31 C.F.R. § 800.215; and (d) personal identifier information for all officers, directors, and principal shareholders of the transaction parties.

The Joint Notice included certifications executed by Dr. Maximilian Ehrhardt on behalf of HSAG and Buyer, and by Dr. Nathan Trevorrow on behalf of VPI, in each case in the form prescribed by 31 C.F.R. § 800.502, attesting to the truth, accuracy, and completeness of the information submitted therein.

1.2 Completion of CFIUS Review and Investigation

CFIUS completed its initial forty-five (45) calendar day review period on September 4, 2023, without concluding its assessment of the national security implications of the transaction. On September 5, 2023, CFIUS notified the transaction parties that it had determined to initiate a subsequent forty-five (45) calendar day investigation pursuant to 50 U.S.C. § 4565(b)(2)(A). The investigation period commenced on September 5, 2023, and concluded on October 20, 2023.

During the course of the review and investigation phases, Buyer and Parent timely and substantively responded to all requests for information issued by CFIUS and its lead agencies, including:

(a) The first Request for Information ("RFI-1"), issued by the Staff Chairperson on August 4, 2023, which requested additional detail regarding, among other things, VPI's classified and unclassified defense programs, HSAG's historical and current relationships with foreign governments and state-owned entities, and HSAG's technology roadmap for compound semiconductor platforms. A comprehensive substantive response to RFI-1 was filed on August 18, 2023, together with approximately 1,200 pages of supporting documentation.

(b) The second Request for Information ("RFI-2"), issued by the Staff Chairperson on September 22, 2023, which requested further detail regarding, among other things, HSAG's cybersecurity architecture, VPI's relationships with certain subcontractors, proposed mitigation measures, and VPI's facility security posture. A comprehensive substantive response to RFI-2 was filed on October 6, 2023, together with approximately 850 pages of supporting documentation.

In addition to the foregoing written responses, representatives of HSAG, Buyer, and VPI, together with their respective legal counsel, participated in four in-person or virtual meetings with CFIUS staff and lead agency representatives during the review and investigation periods, at which supplemental information and clarifications were provided as requested.

At the conclusion of the investigation period, CFIUS did not take action to block, suspend, or otherwise prohibit the transaction, nor did CFIUS refer the transaction to the President of the United States for action under 50 U.S.C. § 4565(d). CFIUS instead elected to resolve the national security considerations identified during its review and investigation through the negotiation and execution of a National Security Agreement, as described in Section 1.3 below.

1.3 Execution of National Security Agreement

On January 19, 2024, HSAG, Buyer, VPI, and the United States of America, acting through the U.S. Department of the Treasury (as CFIUS Chair), the U.S. Department of Defense, and the U.S. Department of Energy (collectively, the "Monitoring Agencies"), executed a National Security Agreement (NSA docket reference NSA-2024-0019) (the "NSA"). The NSA constitutes the mitigation agreement contemplated by Section 7.1(c)(iii) of the Agreement.

The NSA sets forth the comprehensive mitigation measures agreed upon by the parties to address the national security considerations identified by CFIUS in connection with the transaction, including measures relating to governance, personnel security, classified information protection, technology transfer controls, export controls, cybersecurity, and third-party monitoring. The NSA was executed in final form acceptable to CFIUS, the Monitoring Agencies, and all parties to the Agreement, following extensive negotiation among counsel for the transaction parties and the Monitoring Agencies over a period of approximately three months.

The NSA consists of twenty-three (23) sections and includes the following six (6) annexes:

Annex A — Definitions (setting forth defined terms used throughout the NSA);

Annex B — Technology Control Plan (setting forth the protocols for the protection and control of VPI technical data, including ITAR-controlled and EAR-controlled information);

Annex C — Governance Provisions and Security Board Charter (setting forth the composition, authority, and operating procedures of the VPI Board of Directors and the Government Security Committee);

Annex D — Cybersecurity Requirements (setting forth the technical and administrative requirements for protection of VPI information systems and data);

Annex E — Annual Compliance Report Template (setting forth the format, content, and submission requirements for annual compliance reports to be filed with the Monitoring Agencies); and

Annex F — Facility Access Procedures (setting forth protocols governing the access of HSAG personnel and other foreign nationals to VPI facilities).

The NSA, together with all annexes thereto, has been provided in its entirety to counsel for the Sellers (Wethersfield & Gale LLP) under the terms of a separate non-disclosure agreement executed between the Monitoring Agencies and the Sellers' counsel.

1.4 Receipt of CFIUS Clearance Letter (Safe Harbor)

On January 26, 2024, the U.S. Department of the Treasury, acting in its capacity as Chair of CFIUS, issued a written clearance letter (the "Clearance Letter") addressed to counsel for Buyer and counsel for VPI, confirming that the Committee on Foreign Investment in the United States has concluded all action under Section 721 of the Defense Production Act of 1950, as amended, with respect to the transactions contemplated by the Agreement, as notified under CFIUS Case No. CFIUS-023-07-3841.

The Clearance Letter confirms that CFIUS has determined that the transaction, as mitigated by the NSA, does not present unresolved national security concerns. The Clearance Letter further confirms that the transaction is granted safe harbor under 50 U.S.C. § 4565(b)(1)(D), meaning that, absent a material breach of the NSA, an intentional material misstatement in the Joint Notice, or a material change in circumstances, the transaction shall not be subject to further review under Section 721.

A true and complete copy of the Clearance Letter (redacted as required by CFIUS) has been delivered to Wethersfield & Gale LLP, counsel for the Sellers and the Company, prior to the date hereof.

1.5 Implementation of Initial Compliance Infrastructure

Buyer and Parent hereby certify that, as of the date hereof, the following initial compliance measures and arrangements required by the NSA to be in place at or prior to Closing have been duly implemented or are ready for immediate implementation upon the occurrence of the Closing:

1.5(a) Board Reconstitution. Buyer has identified and proposed, and CFIUS and the Monitoring Agencies have approved in writing, three (3) individuals to serve as Security Board Members on VPI's reconstituted five (5) member Board of Directors. The approved Security Board Members are:

(i) Col. (Ret.) Bryce Hendrickson, a citizen of the United States, who currently holds an active TOP SECRET/SCI security clearance and has served as VPI's Vice President, Government Programs and Facility Security Officer since 2017;

(ii) Adrienne Delacroix, a citizen of the United States, who currently holds an active SECRET security clearance and has served as an independent director of two U.S. defense technology companies; and

(iii) an Independent Security Director (the identity of whom has been separately disclosed to CFIUS and the Monitoring Agencies and approved in writing), who is a citizen of the United States holding or eligible for a TOP SECRET/SCI security clearance and who satisfies the independence requirements set forth in NSA § 4.2(c).

Each Security Board Member satisfies the eligibility criteria set forth in NSA § 4.2, including the requirements that each such person be a citizen of the United States, be eligible for or hold the requisite personnel security clearances, and have no disqualifying foreign relationships or business affiliations.

In addition, Buyer has designated two (2) HSAG designees for appointment to the VPI Board of Directors, who will serve as the Parent representatives on the Board. These HSAG designees will not hold or be granted access to classified national security information, Sensitive Compartmented Information, or Special Access Program information, and their participation in VPI Board proceedings will be subject to the restrictions and recusal procedures set forth in NSA § 4.5.

Resolutions of the sole director of Halcyon US Holdings Inc. have been adopted authorizing (i) the appointment of all five members of the reconstituted VPI Board of Directors, and (ii) the establishment of the Government Security Committee (as defined below), in each case to be effective automatically upon the occurrence of the Closing.

1.5(b) Government Security Committee. The charter for the Government Security Committee (the "GSC"), in the form set forth in NSA Annex C, has been duly adopted by resolution of the sole director of Halcyon US Holdings Inc. and will become effective upon Closing. The GSC will be composed exclusively of the three (3) Security Board Members and will have exclusive and plenary authority over all matters relating to:

(i) classified and ITAR-controlled programs conducted by VPI;

(ii) personnel security, including the processing, granting, and revocation of facility personnel clearances;

(iii) facility security, including the administration and maintenance of VPI's Facility Security Clearance and compliance with the National Industrial Security Program Operating Manual (NISPOM, 32 C.F.R. Part 117);

(iv) all communications with DCSA, the Monitoring Agencies, and CFIUS regarding security matters; and

(v) any other matters designated by the NSA as within the exclusive purview of the GSC.

The GSC will operate independently of the full VPI Board and the HSAG designees with respect to all classified and security-related matters. Decisions of the GSC regarding matters within its exclusive authority will not require ratification by the full VPI Board or by HSAG.

1.5(c) Technology Control Plan. The Technology Control Plan (the "TCP"), in the form set forth in NSA Annex B, has been finalized, reviewed, and approved by the Monitoring Agencies. The TCP is ready for full implementation upon the occurrence of the Closing. The TCP establishes comprehensive protocols for the identification, marking, safeguarding, and controlled dissemination of VPI technical data, and contains the following principal restrictions:

(i) No VPI technical data that is controlled under the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Parts 120–130, including but not limited to defense articles classified under United States Munitions List Category XI(a)(3) (military electronics and related technical data), may be transferred, disclosed, exported, or re-exported to any non-U.S. person (as defined in ITAR § 120.62) without prior authorization from the U.S. Department of State, Directorate of Defense Trade Controls ("DDTC").

(ii) No VPI technical data that is controlled under the Export Administration Regulations ("EAR"), 15 C.F.R. Parts 730–774, including but not limited to items classified under Export Control Classification Numbers ("ECCNs") 3A001 (electronic components), 3A991 (electronic equipment and components not controlled by 3A001), and 3E001 (technology for the development or production of items controlled under ECCNs 3A001 through 3A006), may be transferred, disclosed, exported, or re-exported to any non-U.S. person without the appropriate license or license exception under the EAR.

(iii) Technical data subject to the restrictions set forth in clauses (i) and (ii) above shall be stored exclusively on VPI-controlled information systems located within the continental United States and accessible only to appropriately cleared and authorized VPI personnel.

1.5(d) Third-Party Compliance Monitor Engagement. HSAG has executed an engagement agreement, dated December 15, 2023, with Whitmore Compliance Group LLC ("WCG"), a Delaware limited liability company with offices at 1300 Crystal Drive, Suite 710, Arlington, Virginia 22202, pursuant to which WCG will serve as the independent third-party compliance monitor under the NSA. The engagement of WCG satisfies the requirements of NSA § 9.1.

Gerald Whitmore, WCG's principal and managing member, will serve as the lead monitor. Mr. Whitmore is a former official of the Federal Bureau of Investigation, Counterintelligence Division, with over twenty-five (25) years of experience in national security matters, and currently holds an active TOP SECRET/SCI security clearance. Mr. Whitmore has been approved in writing by CFIUS and the Monitoring Agencies for service as the third-party monitor, such approval having been communicated to counsel for HSAG on December 8, 2023.

Under the terms of the engagement agreement, HSAG has agreed to pay WCG an annual monitoring fee of One Million Two Hundred Thousand Dollars ($1,200,000), payable in quarterly installments of Three Hundred Thousand Dollars ($300,000) each, subject to annual adjustment based on the Consumer Price Index for All Urban Consumers (CPI-U) published by the U.S. Bureau of Labor Statistics. The first quarterly payment shall be due on April 19, 2024. HSAG shall bear all costs associated with the engagement of WCG, and such costs shall not be borne by, or charged to, VPI or the Sellers.

WCG's responsibilities under the engagement agreement include, without limitation: (i) conducting annual compliance audits of HSAG's and Buyer's compliance with the NSA; (ii) conducting unannounced site visits to VPI facilities; (iii) reviewing VPI's annual compliance reports prior to submission to the Monitoring Agencies; (iv) reporting to the Monitoring Agencies on a semi-annual basis regarding the status of compliance; and (v) promptly reporting any suspected material violations of the NSA to the Monitoring Agencies.

1.5(e) Cybersecurity Measures. Arrangements are in place, and will be fully implemented upon Closing, to ensure that VPI's information technology systems, networks, data repositories, and communications infrastructure will be physically and logically separated from HSAG's global corporate network, in accordance with the requirements of NSA Annex D. The specific cybersecurity measures implemented or ready for immediate implementation include the following:

(i) No shared cloud computing infrastructure, shared data centers, shared network segments, or shared Software-as-a-Service platforms will be established or maintained between VPI and HSAG or any HSAG affiliate.

(ii) VPI will maintain and continue to operate its information systems in compliance with the cybersecurity standards and controls set forth in National Institute of Standards and Technology Special Publication 800-171 ("NIST SP 800-171"), Protecting Controlled Unclassified Information in Nonfederal Systems and Organizations, Revision 2 (or any successor version adopted by the Monitoring Agencies).

(iii) VPI will engage a qualified independent cybersecurity firm to conduct annual third-party penetration testing of VPI's networks and information systems, with the results of such testing to be reported to the GSC and made available to the Monitoring Agencies upon request.

(iv) VPI will report all cybersecurity incidents (as defined in NSA Annex D, § 3.1) affecting VPI's information systems or data to the Defense Counterintelligence and Security Agency ("DCSA") within seventy-two (72) hours of detection, and concurrently to the Monitoring Agencies, in each case in the form and manner prescribed by NSA Annex D.

1.5(f) Facility Security Clearance Continuity. Col. (Ret.) Bryce Hendrickson will be retained as VPI's Facility Security Officer ("FSO") effective as of and following the Closing. Col. (Ret.) Hendrickson will continue to maintain and administer VPI's Facility Security Clearance ("FCL") at the SECRET level (Commercial and Government Entity Code ("CAGE Code"): 7VK92) at VPI's cleared facility located at 9200 Innovation Boulevard, Albuquerque, New Mexico 87113 (the "Albuquerque Facility").

For purposes of Foreign Ownership, Control, or Influence ("FOCI") mitigation under the NISPOM, the NSA functions as a Special Security Agreement ("SSA") equivalent, and the establishment of the GSC and the Security Board Members, together with the other provisions of the NSA, are intended to satisfy the FOCI mitigation requirements applicable to the Albuquerque Facility's FCL.

A formal notification to the Defense Counterintelligence and Security Agency ("DCSA") regarding the change of ownership of VPI has been prepared in the format required by 32 C.F.R. § 117.11 and is ready for submission to DCSA concurrently with or promptly following the occurrence of the Closing. HSAG and Buyer acknowledge that the continued validity of VPI's FCL following the Closing is subject to DCSA's review and acceptance of the FOCI mitigation arrangements established by the NSA.

1.5(g) Facility Access Restrictions. Protocols governing the access of HSAG personnel, including officers, employees, agents, and consultants of HSAG and its non-U.S. affiliates, to VPI facilities have been established in accordance with the requirements of NSA Annex F. These protocols include, without limitation, the following:

(i) Access by any HSAG personnel or any non-U.S. person to classified areas of the Albuquerque Facility, including clean room Sections C-7 through C-12 (which house VPI's compound semiconductor fabrication operations supporting classified programs), shall require prior written approval from both DCSA and the GSC, on not less than fifteen (15) business days' advance notice.

(ii) Access by HSAG personnel to unclassified areas of VPI facilities shall be subject to the visitor access procedures established by the FSO, including advance registration, escort requirements, and restrictions on the removal of technical data or materials from the facility.

(iii) Detailed visitor logs shall be maintained by the FSO and made available to the Monitoring Agencies and WCG upon request.

1.5(h) Personnel Continuity. HSAG confirms that appropriate employment retention arrangements are in place to retain the following key VPI personnel for a minimum period of twenty-four (24) months following the Closing, as required by NSA § 6.1:

(i) Dr. Nathan Trevorrow, Founder and Chief Executive Officer of VPI;

(ii) Marissa Sung-Avila, President and Chief Operating Officer of VPI; and

(iii) Col. (Ret.) Bryce Hendrickson, Vice President of Government Programs and Facility Security Officer of VPI.

Such retention arrangements include executed retention agreements providing for, among other things, enhanced severance protections and change-of-control benefits. In the event that any such key person departs VPI during the twenty-four (24) month retention period, HSAG and Buyer acknowledge their obligation under the NSA to (a) promptly notify the Monitoring Agencies and the GSC of such departure, and (b) submit proposed replacement candidates for approval by the GSC and DCSA (and, in the case of cleared personnel, for completion of any required personnel security processing) prior to the appointment of any such replacement.

1.5(i) DDTC and Export Control Notifications. Preparations have been made to file a change-of-ownership notification with the Directorate of Defense Trade Controls ("DDTC") of the U.S. Department of State in connection with VPI's current ITAR registration (Registration No. M-24817), pursuant to ITAR § 122.4(a), which requires notification to DDTC within sixty (60) days of a change in ownership or control of a registered manufacturer or exporter. The notification will be submitted promptly following the Closing.

Buyer is aware that VPI currently holds three (3) active DSP-5 export licenses issued by DDTC authorizing the export of defense articles to end users in the United Kingdom and Australia. Buyer acknowledges that each such license will require amendment to reflect the change in ownership and control of VPI, and that the amendment process will be initiated promptly after the Closing in coordination with DDTC and VPI's export compliance officer. Pending such amendments, VPI shall not make any shipments or disclosures under the existing DSP-5 licenses without first confirming with DDTC that such activity remains authorized.

1.5(j) Government Contract Novation. Buyer acknowledges that eight (8) of VPI's fourteen (14) active contracts with the U.S. Department of Defense and other agencies of the U.S. Government require formal novation agreements under Federal Acquisition Regulation ("FAR") Subpart 42.12, to recognize Buyer (or VPI, as the surviving contracting entity) as the successor contractor following the change of ownership. Buyer commits to initiate the novation process with the relevant contracting officers at the applicable administrative contracting offices promptly after the Closing, and to use commercially reasonable efforts to complete all novation agreements within one hundred eighty (180) days of the Closing.

Buyer further acknowledges VPI's obligation to disclose foreign ownership, control, or influence to contracting officers pursuant to Defense Federal Acquisition Regulation Supplement ("DFARS") clause 252.209-7002 (Disclosure of Ownership or Control by a Foreign Government), and represents that all necessary disclosures will be made in a timely manner in accordance with applicable regulations.

Section 2 — Additional Certifications

2.1 Accuracy of Representations

HSAG and Buyer hereby certify that all representations and warranties made by HSAG, Buyer, and their respective officers, directors, employees, agents, and advisors in the Joint Notice, the responses to the first and second Requests for Information (RFI-1 and RFI-2), and all other written and oral submissions to CFIUS and the Monitoring Agencies in connection with CFIUS Case No. CFIUS-023-07-3841, were true, correct, and complete in all material respects as of the respective dates on which such representations and warranties were made, and remain true, correct, and complete in all material respects as of the date of this Certificate. No material fact or circumstance has been omitted from any such submission that would be necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.

2.2 No Material Change

Since the date of the filing of the Joint Notice (July 14, 2023), there has been no material change to any of the information provided to CFIUS or the Monitoring Agencies in connection with CFIUS Case No. CFIUS-023-07-3841 that has not been disclosed to CFIUS and the Monitoring Agencies in supplemental submissions, during the meetings held with CFIUS staff and lead agency representatives, or otherwise in writing. To the knowledge of HSAG and Buyer, after due inquiry, no event or circumstance has occurred since the date of the Joint Notice that would reasonably be expected to (a) render any material statement in the Joint Notice or the responses to RFI-1 and RFI-2 untrue or misleading, (b) materially affect the national security analysis conducted by CFIUS, or (c) constitute a material change requiring notification under 31 C.F.R. § 800.503.

2.3 Compliance with NSA

As of the date hereof, HSAG and Buyer are not in breach of, and have complied in all respects with, all obligations under the NSA that are required to be performed at or prior to the Closing, including without limitation the obligations to establish the initial compliance infrastructure described in Section 1.5 above. Neither HSAG nor Buyer has received any notice from CFIUS, the Monitoring Agencies, or any other governmental authority alleging any breach of or noncompliance with the NSA.

2.4 No Pending Actions

As of the date hereof, there are no pending, or to the knowledge of HSAG and Buyer after reasonable inquiry, threatened, actions, suits, claims, investigations, proceedings, or orders by or before any governmental authority (including, without limitation, CFIUS, any Monitoring Agency, DCSA, DDTC, the Bureau of Industry and Security, the Department of Justice, or any court of competent jurisdiction) that would reasonably be expected to (a) prohibit, enjoin, or materially restrict the consummation of the transactions contemplated by the Agreement, the NSA, or the CFIUS clearance, (b) materially delay the Closing beyond the Outside Date (as defined in the Agreement), or (c) impose conditions on the Closing that are materially more burdensome than those set forth in the NSA.

Section 3 — Acknowledgment of Ongoing Obligations

HSAG and Buyer acknowledge and agree that the NSA imposes ongoing post-Closing obligations on HSAG, Buyer, and VPI (as the acquired company), which obligations survive the Closing and continue in full force and effect for the duration of the NSA. Without limiting the generality of the foregoing, HSAG and Buyer specifically acknowledge the following ongoing obligations:

(a) Annual Compliance Audits. Whitmore Compliance Group LLC shall conduct annual compliance audits of HSAG's and Buyer's compliance with the NSA, with the first such annual audit to be completed and the resulting audit report to be submitted to the Monitoring Agencies on or before January 19, 2025 (the first anniversary of the execution of the NSA).

(b) Quarterly Monitor Fee Payments. HSAG shall make quarterly payments of Three Hundred Thousand Dollars ($300,000) each to WCG, with the first quarterly payment due on April 19, 2024, and subsequent payments due on the nineteenth (19th) day of each successive calendar quarter thereafter, subject to annual CPI adjustment as provided in the engagement agreement.

(c) Material Change Notifications. HSAG and Buyer shall notify CFIUS and the Monitoring Agencies at least thirty (30) days before any material change to VPI's business, operations, or organizational structure, including without limitation any divestiture or partial divestiture of VPI or any VPI subsidiary, the entry into any new subcontract with a foreign person, any change in the composition of VPI's board of directors or the GSC, or any change in cleared personnel holding key positions at VPI.

(d) Data Segregation. HSAG and Buyer shall maintain at all times the physical and logical separation of VPI's information technology systems, networks, and data repositories from those of HSAG and its non-U.S. affiliates, in accordance with NSA Annex D.

(e) NIST SP 800-171 Compliance. VPI shall maintain continuous compliance with the cybersecurity standards and controls set forth in NIST SP 800-171, as such standards may be updated from time to time.

(f) Cybersecurity Incident Reporting. VPI shall report all cybersecurity incidents affecting VPI's information systems or data to DCSA within seventy-two (72) hours of detection, and concurrently to the Monitoring Agencies, in each case in the form and manner prescribed by NSA Annex D.

(g) Penalties for Noncompliance. HSAG and Buyer acknowledge that a breach of the NSA may result in civil penalties of up to Two Hundred Fifty Thousand Dollars ($250,000) per violation per day, as well as injunctive relief, mandated divestiture of VPI, or other remedies as set forth in NSA § 12.3 and as authorized by 50 U.S.C. § 4565(l)(2).

Section 4 — Reliance

This Certificate is delivered pursuant to and in satisfaction of the closing condition set forth in Section 7.1(c) of the Agreement. The Sellers, the Company, and their respective counsel, Wethersfield & Gale LLP, are entitled to rely on the certifications, representations, and statements contained in this Certificate in connection with the Closing and in determining whether the CFIUS-related closing conditions set forth in Section 7.1(c) of the Agreement have been satisfied.

This Certificate does not create, and shall not be deemed or construed to create, any rights, remedies, or causes of action in favor of any person or entity other than the Sellers and the Company. Without limiting the foregoing, nothing in this Certificate shall be deemed to confer any rights upon CFIUS, the Monitoring Agencies, WCG, or any other governmental authority or third party, it being understood that the rights and obligations of such parties are governed exclusively by the NSA and applicable law.

Section 5 — Governing Law

This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The foregoing governing law provision is consistent with and shall be interpreted in accordance with Section 11.9 of the Agreement.

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SIGNATURE PAGE TO OFFICER'S CERTIFICATE

IN WITNESS WHEREOF, the undersigned has executed this Officer's Certificate as of the date first written above, on behalf of Halcyon Semiconductor Aktiengesellschaft and Halcyon US Holdings Inc.

HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT

and

HALCYON US HOLDINGS INC.

By: ________

Name: Dr. Maximilian Ehrhardt

Title: Chief Executive Officer (Vorstandsvorsitzender), Halcyon Semiconductor Aktiengesellschaft

Capacity: On behalf of Halcyon Semiconductor Aktiengesellschaft and Halcyon US Holdings Inc.

Date: February 9, 2024

ACKNOWLEDGMENT

STATE OF _________________________ )

) ss.

COUNTY OF ________________________ )

On this _ day of ____, 2024, before me, the undersigned, a notary public in and for the State and County aforesaid, personally appeared Dr. Maximilian Ehrhardt, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his capacity as Chief Executive Officer (Vorstandsvorsitzender) of Halcyon Semiconductor Aktiengesellschaft, and as the duly authorized representative of Halcyon US Holdings Inc., and that by his signature on the instrument, the entities upon behalf of which he acted executed the instrument.

WITNESS my hand and official seal.

________________________________________

Notary Public

My Commission Expires: ____

[NOTARIAL SEAL]

Note Regarding Apostille: In the event this Certificate is executed outside the United States, the notarization shall conform to the requirements of the applicable foreign jurisdiction, and the original executed Certificate shall be accompanied by an Apostille issued pursuant to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (October 5, 1961), or such other form of authentication as may be required to give effect to the notarization in the State of Delaware and for purposes of the Agreement.

Distribution: Wethersfield & Gale LLP (counsel for the Sellers and the Company) Quelston & Kessler LLP (counsel for Buyer and HSAG) U.S. Department of the Treasury, Office of Investment Security (CFIUS files — for information only)

OFFICER'S CERTIFICATE OF HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT AND HALCYON US HOLDINGS INC.
Certificate Pursuant to Section 7.1(c) of the Stock Purchase Agreement
February 9, 2024
This Officer's Certificate (this "Certificate") is delivered pursuant to Section 7.1(c) of that certain Stock Purchase Agreement, dated as of June 10, 2023 (the "Agreement"), by and among Halcyon US Holdings Inc., a Delaware corporation ("Buyer"), the shareholders of Marlowe Asset Management Photonics Inc. listed on Schedule A thereto (collectively, the "Sellers"), and Marlowe Asset Management Photonics Inc., a Delaware corporation (the "Company" or "VPI"). This Certificate is delivered as a condition precedent to the obligations of the Sellers and the Company to consummate the Closing (as defined in the Agreement) contemplated thereby.
RECITALS
A. Identity of Certifying Officer. The undersigned, Dr. Maximilian Ehrhardt, is the Chief Executive Officer (Vorstandsvorsitzender) of Halcyon Semiconductor Aktiengesellschaft, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany ("HSAG" or "Parent"), registered with the commercial register (Handelsregister) of the Amtsgericht Dresden under HRB 28416, with its principal offices located at Industriestraße 44, 01099 Dresden, Saxony, Federal Republic of Germany. HSAG is the sole stockholder of Halcyon US Holdings Inc., a corporation organized and existing under the laws of the State of Delaware ("Buyer"), with its registered office at 160 Greentree Drive, Suite 101, Dover, Delaware 19904 (Employer Identification Number: 93-2841067). Dr. Ehrhardt is duly authorized to execute and deliver this Certificate on behalf of both HSAG and Buyer, as more particularly described in Recital D below.
B. Reference to the Stock Purchase Agreement. Reference is hereby made to the Agreement, dated as of June 10, 2023, pursuant to which Buyer has agreed to acquire 100% of the issued and outstanding shares of capital stock of Marlowe Asset Management Photonics Inc. (Employer Identification Number: 26-4371885), a Delaware corporation headquartered at 7400 Ridgeline Parkway, Colorado Springs, Colorado 80919, for a base purchase price of One Billion Four Hundred Twenty Million Dollars ($1,420,000,000), subject to adjustment as set forth in Article II of the Agreement, on a cash-free, debt-free basis with a normalized net working capital target of Thirty-Four Million Six Hundred Thousand Dollars ($34,600,000). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Agreement.
C. CFIUS Closing Conditions. Section 7.1(c) of the Agreement provides that the obligations of the Sellers and the Company to consummate the Closing are subject to the satisfaction or waiver of each of the following conditions relating to the review of the transactions contemplated by the Agreement by the Committee on Foreign Investment in the United States ("CFIUS"):
(i) the filing and acceptance of a voluntary joint notice with CFIUS pursuant to Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4565), and the regulations promulgated thereunder at 31 C.F.R. Part 800;
(ii) the completion of CFIUS review and/or investigation of the transactions contemplated by the Agreement without CFIUS or the President of the United States taking action to block, suspend, or otherwise prohibit the transaction;
(iii) the execution of a National Security Agreement (or other mitigation agreement) in form and substance acceptable to CFIUS, the parties to the Agreement, and the relevant lead agencies;
(iv) the receipt by Buyer and the Company of a written clearance letter from CFIUS (or the Department of the Treasury acting in its capacity as Chair of CFIUS) granting safe harbor to the transaction under 50 U.S.C. § 4565(b)(1)(D); and
(v) the implementation of the initial compliance infrastructure required by the National Security Agreement to be in place at or prior to the Closing.
The CFIUS filing in connection with the transactions contemplated by the Agreement was assigned CFIUS Case No. CFIUS-023-07-3841.
D. Representation Authority. Dr. Ehrhardt has personal knowledge of the facts certified herein and has made due inquiry and investigation sufficient to support the certifications set forth below. Dr. Ehrhardt is duly authorized to deliver this Certificate pursuant to (i) resolutions of the Vorstand (Management Board) of HSAG, adopted on June 5, 2023, and ratified on January 30, 2024, and (ii) resolutions of the Board of Directors of Buyer (acting by written consent of its sole director), adopted on June 5, 2023, and ratified on January 30, 2024, in each case authorizing the execution and delivery of this Certificate and all documents and instruments contemplated hereby.
CERTIFICATIONS
NOW, THEREFORE, the undersigned, Dr. Maximilian Ehrhardt, on behalf of HSAG and Buyer, hereby certifies as follows:
Section 1 — Certification of Satisfaction of CFIUS Closing Conditions
Dr. Ehrhardt hereby certifies, on behalf of HSAG and Buyer, that as of the date hereof, February 9, 2024, each of the CFIUS-related closing conditions set forth in Section 7.1(c) of the Agreement has been duly and fully satisfied, as set forth in detail in Sections 1.1 through 1.5 below.
1.1 Filing and Acceptance of Voluntary Joint Notice
A voluntary joint notice (the "Joint Notice") was prepared and filed with CFIUS on July 14, 2023, pursuant to 31 C.F.R. § 800.501, by Buyer and the Company, acting jointly as the transaction parties. CFIUS accepted the Joint Notice as complete and formally commenced its initial forty-five (45) calendar day review period on July 21, 2023, in accordance with 50 U.S.C. § 4565(b)(1)(E). The Joint Notice was assigned CFIUS Case No. CFIUS-023-07-3841 by the Staff Chairperson.
The Joint Notice included all schedules, exhibits, and attachments required under 31 C.F.R. § 800.502, including but not limited to: (a) a description of the transaction and all associated ancillary agreements; (b) organizational charts and ownership diagrams for HSAG, Buyer, and VPI; (c) information regarding the products, services, and technologies of VPI, including information related to classified contracts, export-controlled technologies, and critical technologies within the meaning of 31 C.F.R. § 800.215; and (d) personal identifier information for all officers, directors, and principal shareholders of the transaction parties.
The Joint Notice included certifications executed by Dr. Maximilian Ehrhardt on behalf of HSAG and Buyer, and by Dr. Nathan Trevorrow on behalf of VPI, in each case in the form prescribed by 31 C.F.R. § 800.502, attesting to the truth, accuracy, and completeness of the information submitted therein.
1.2 Completion of CFIUS Review and Investigation
CFIUS completed its initial forty-five (45) calendar day review period on September 4, 2023, without concluding its assessment of the national security implications of the transaction. On September 5, 2023, CFIUS notified the transaction parties that it had determined to initiate a subsequent forty-five (45) calendar day investigation pursuant to 50 U.S.C. § 4565(b)(2)(A). The investigation period commenced on September 5, 2023, and concluded on October 20, 2023.
During the course of the review and investigation phases, Buyer and Parent timely and substantively responded to all requests for information issued by CFIUS and its lead agencies, including:
(a) The first Request for Information ("RFI-1"), issued by the Staff Chairperson on August 4, 2023, which requested additional detail regarding, among other things, VPI's classified and unclassified defense programs, HSAG's historical and current relationships with foreign governments and state-owned entities, and HSAG's technology roadmap for compound semiconductor platforms. A comprehensive substantive response to RFI-1 was filed on August 18, 2023, together with approximately 1,200 pages of supporting documentation.
(b) The second Request for Information ("RFI-2"), issued by the Staff Chairperson on September 22, 2023, which requested further detail regarding, among other things, HSAG's cybersecurity architecture, VPI's relationships with certain subcontractors, proposed mitigation measures, and VPI's facility security posture. A comprehensive substantive response to RFI-2 was filed on October 6, 2023, together with approximately 850 pages of supporting documentation.
In addition to the foregoing written responses, representatives of HSAG, Buyer, and VPI, together with their respective legal counsel, participated in four in-person or virtual meetings with CFIUS staff and lead agency representatives during the review and investigation periods, at which supplemental information and clarifications were provided as requested.
At the conclusion of the investigation period, CFIUS did not take action to block, suspend, or otherwise prohibit the transaction, nor did CFIUS refer the transaction to the President of the United States for action under 50 U.S.C. § 4565(d). CFIUS instead elected to resolve the national security considerations identified during its review and investigation through the negotiation and execution of a National Security Agreement, as described in Section 1.3 below.
1.3 Execution of National Security Agreement
On January 19, 2024, HSAG, Buyer, VPI, and the United States of America, acting through the U.S. Department of the Treasury (as CFIUS Chair), the U.S. Department of Defense, and the U.S. Department of Energy (collectively, the "Monitoring Agencies"), executed a National Security Agreement (NSA docket reference NSA-2024-0019) (the "NSA"). The NSA constitutes the mitigation agreement contemplated by Section 7.1(c)(iii) of the Agreement.
The NSA sets forth the comprehensive mitigation measures agreed upon by the parties to address the national security considerations identified by CFIUS in connection with the transaction, including measures relating to governance, personnel security, classified information protection, technology transfer controls, export controls, cybersecurity, and third-party monitoring. The NSA was executed in final form acceptable to CFIUS, the Monitoring Agencies, and all parties to the Agreement, following extensive negotiation among counsel for the transaction parties and the Monitoring Agencies over a period of approximately three months.
The NSA consists of twenty-three (23) sections and includes the following six (6) annexes:
Annex A — Definitions (setting forth defined terms used throughout the NSA);
Annex B — Technology Control Plan (setting forth the protocols for the protection and control of VPI technical data, including ITAR-controlled and EAR-controlled information);
Annex C — Governance Provisions and Security Board Charter (setting forth the composition, authority, and operating procedures of the VPI Board of Directors and the Government Security Committee);
Annex D — Cybersecurity Requirements (setting forth the technical and administrative requirements for protection of VPI information systems and data);
Annex E — Annual Compliance Report Template (setting forth the format, content, and submission requirements for annual compliance reports to be filed with the Monitoring Agencies); and
Annex F — Facility Access Procedures (setting forth protocols governing the access of HSAG personnel and other foreign nationals to VPI facilities).
The NSA, together with all annexes thereto, has been provided in its entirety to counsel for the Sellers (Wethersfield & Gale LLP) under the terms of a separate non-disclosure agreement executed between the Monitoring Agencies and the Sellers' counsel.
1.4 Receipt of CFIUS Clearance Letter (Safe Harbor)
On January 26, 2024, the U.S. Department of the Treasury, acting in its capacity as Chair of CFIUS, issued a written clearance letter (the "Clearance Letter") addressed to counsel for Buyer and counsel for VPI, confirming that the Committee on Foreign Investment in the United States has concluded all action under Section 721 of the Defense Production Act of 1950, as amended, with respect to the transactions contemplated by the Agreement, as notified under CFIUS Case No. CFIUS-023-07-3841.
The Clearance Letter confirms that CFIUS has determined that the transaction, as mitigated by the NSA, does not present unresolved national security concerns. The Clearance Letter further confirms that the transaction is granted safe harbor under 50 U.S.C. § 4565(b)(1)(D), meaning that, absent a material breach of the NSA, an intentional material misstatement in the Joint Notice, or a material change in circumstances, the transaction shall not be subject to further review under Section 721.
A true and complete copy of the Clearance Letter (redacted as required by CFIUS) has been delivered to Wethersfield & Gale LLP, counsel for the Sellers and the Company, prior to the date hereof.
1.5 Implementation of Initial Compliance Infrastructure
Buyer and Parent hereby certify that, as of the date hereof, the following initial compliance measures and arrangements required by the NSA to be in place at or prior to Closing have been duly implemented or are ready for immediate implementation upon the occurrence of the Closing:
1.5(a) Board Reconstitution.  Buyer has identified and proposed, and CFIUS and the Monitoring Agencies have approved in writing, three (3) individuals to serve as Security Board Members on VPI's reconstituted five (5) member Board of Directors. The approved Security Board Members are:
(i) Col. (Ret.) Bryce Hendrickson, a citizen of the United States, who currently holds an active TOP SECRET/SCI security clearance and has served as VPI's Vice President, Government Programs and Facility Security Officer since 2017;
(ii) Adrienne Delacroix, a citizen of the United States, who currently holds an active SECRET security clearance and has served as an independent director of two U.S. defense technology companies; and
(iii) an Independent Security Director (the identity of whom has been separately disclosed to CFIUS and the Monitoring Agencies and approved in writing), who is a citizen of the United States holding or eligible for a TOP SECRET/SCI security clearance and who satisfies the independence requirements set forth in NSA § 4.2(c).
Each Security Board Member satisfies the eligibility criteria set forth in NSA § 4.2, including the requirements that each such person be a citizen of the United States, be eligible for or hold the requisite personnel security clearances, and have no disqualifying foreign relationships or business affiliations.
In addition, Buyer has designated two (2) HSAG designees for appointment to the VPI Board of Directors, who will serve as the Parent representatives on the Board. These HSAG designees will not hold or be granted access to classified national security information, Sensitive Compartmented Information, or Special Access Program information, and their participation in VPI Board proceedings will be subject to the restrictions and recusal procedures set forth in NSA § 4.5.
Resolutions of the sole director of Halcyon US Holdings Inc. have been adopted authorizing (i) the appointment of all five members of the reconstituted VPI Board of Directors, and (ii) the establishment of the Government Security Committee (as defined below), in each case to be effective automatically upon the occurrence of the Closing.
1.5(b) Government Security Committee.  The charter for the Government Security Committee (the "GSC"), in the form set forth in NSA Annex C, has been duly adopted by resolution of the sole director of Halcyon US Holdings Inc. and will become effective upon Closing. The GSC will be composed exclusively of the three (3) Security Board Members and will have exclusive and plenary authority over all matters relating to:
(i) classified and ITAR-controlled programs conducted by VPI;
(ii) personnel security, including the processing, granting, and revocation of facility personnel clearances;
(iii) facility security, including the administration and maintenance of VPI's Facility Security Clearance and compliance with the National Industrial Security Program Operating Manual (NISPOM, 32 C.F.R. Part 117);
(iv) all communications with DCSA, the Monitoring Agencies, and CFIUS regarding security matters; and
(v) any other matters designated by the NSA as within the exclusive purview of the GSC.
The GSC will operate independently of the full VPI Board and the HSAG designees with respect to all classified and security-related matters. Decisions of the GSC regarding matters within its exclusive authority will not require ratification by the full VPI Board or by HSAG.
1.5(c) Technology Control Plan.  The Technology Control Plan (the "TCP"), in the form set forth in NSA Annex B, has been finalized, reviewed, and approved by the Monitoring Agencies. The TCP is ready for full implementation upon the occurrence of the Closing. The TCP establishes comprehensive protocols for the identification, marking, safeguarding, and controlled dissemination of VPI technical data, and contains the following principal restrictions:
(i) No VPI technical data that is controlled under the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Parts 120–130, including but not limited to defense articles classified under United States Munitions List Category XI(a)(3) (military electronics and related technical data), may be transferred, disclosed, exported, or re-exported to any non-U.S. person (as defined in ITAR § 120.62) without prior authorization from the U.S. Department of State, Directorate of Defense Trade Controls ("DDTC").
(ii) No VPI technical data that is controlled under the Export Administration Regulations ("EAR"), 15 C.F.R. Parts 730–774, including but not limited to items classified under Export Control Classification Numbers ("ECCNs") 3A001 (electronic components), 3A991 (electronic equipment and components not controlled by 3A001), and 3E001 (technology for the development or production of items controlled under ECCNs 3A001 through 3A006), may be transferred, disclosed, exported, or re-exported to any non-U.S. person without the appropriate license or license exception under the EAR.
(iii) Technical data subject to the restrictions set forth in clauses (i) and (ii) above shall be stored exclusively on VPI-controlled information systems located within the continental United States and accessible only to appropriately cleared and authorized VPI personnel.
1.5(d) Third-Party Compliance Monitor Engagement.  HSAG has executed an engagement agreement, dated December 15, 2023, with Whitmore Compliance Group LLC ("WCG"), a Delaware limited liability company with offices at 1300 Crystal Drive, Suite 710, Arlington, Virginia 22202, pursuant to which WCG will serve as the independent third-party compliance monitor under the NSA. The engagement of WCG satisfies the requirements of NSA § 9.1.
Gerald Whitmore, WCG's principal and managing member, will serve as the lead monitor. Mr. Whitmore is a former official of the Federal Bureau of Investigation, Counterintelligence Division, with over twenty-five (25) years of experience in national security matters, and currently holds an active TOP SECRET/SCI security clearance. Mr. Whitmore has been approved in writing by CFIUS and the Monitoring Agencies for service as the third-party monitor, such approval having been communicated to counsel for HSAG on December 8, 2023.
Under the terms of the engagement agreement, HSAG has agreed to pay WCG an annual monitoring fee of One Million Two Hundred Thousand Dollars ($1,200,000), payable in quarterly installments of Three Hundred Thousand Dollars ($300,000) each, subject to annual adjustment based on the Consumer Price Index for All Urban Consumers (CPI-U) published by the U.S. Bureau of Labor Statistics. The first quarterly payment shall be due on April 19, 2024. HSAG shall bear all costs associated with the engagement of WCG, and such costs shall not be borne by, or charged to, VPI or the Sellers.
WCG's responsibilities under the engagement agreement include, without limitation: (i) conducting annual compliance audits of HSAG's and Buyer's compliance with the NSA; (ii) conducting unannounced site visits to VPI facilities; (iii) reviewing VPI's annual compliance reports prior to submission to the Monitoring Agencies; (iv) reporting to the Monitoring Agencies on a semi-annual basis regarding the status of compliance; and (v) promptly reporting any suspected material violations of the NSA to the Monitoring Agencies.
1.5(e) Cybersecurity Measures.  Arrangements are in place, and will be fully implemented upon Closing, to ensure that VPI's information technology systems, networks, data repositories, and communications infrastructure will be physically and logically separated from HSAG's global corporate network, in accordance with the requirements of NSA Annex D. The specific cybersecurity measures implemented or ready for immediate implementation include the following:
(i) No shared cloud computing infrastructure, shared data centers, shared network segments, or shared Software-as-a-Service platforms will be established or maintained between VPI and HSAG or any HSAG affiliate.
(ii) VPI will maintain and continue to operate its information systems in compliance with the cybersecurity standards and controls set forth in National Institute of Standards and Technology Special Publication 800-171 ("NIST SP 800-171"), Protecting Controlled Unclassified Information in Nonfederal Systems and Organizations, Revision 2 (or any successor version adopted by the Monitoring Agencies).
(iii) VPI will engage a qualified independent cybersecurity firm to conduct annual third-party penetration testing of VPI's networks and information systems, with the results of such testing to be reported to the GSC and made available to the Monitoring Agencies upon request.
(iv) VPI will report all cybersecurity incidents (as defined in NSA Annex D, § 3.1) affecting VPI's information systems or data to the Defense Counterintelligence and Security Agency ("DCSA") within seventy-two (72) hours of detection, and concurrently to the Monitoring Agencies, in each case in the form and manner prescribed by NSA Annex D.
1.5(f) Facility Security Clearance Continuity.  Col. (Ret.) Bryce Hendrickson will be retained as VPI's Facility Security Officer ("FSO") effective as of and following the Closing. Col. (Ret.) Hendrickson will continue to maintain and administer VPI's Facility Security Clearance ("FCL") at the SECRET level (Commercial and Government Entity Code ("CAGE Code"): 7VK92) at VPI's cleared facility located at 9200 Innovation Boulevard, Albuquerque, New Mexico 87113 (the "Albuquerque Facility").
For purposes of Foreign Ownership, Control, or Influence ("FOCI") mitigation under the NISPOM, the NSA functions as a Special Security Agreement ("SSA") equivalent, and the establishment of the GSC and the Security Board Members, together with the other provisions of the NSA, are intended to satisfy the FOCI mitigation requirements applicable to the Albuquerque Facility's FCL.
A formal notification to the Defense Counterintelligence and Security Agency ("DCSA") regarding the change of ownership of VPI has been prepared in the format required by 32 C.F.R. § 117.11 and is ready for submission to DCSA concurrently with or promptly following the occurrence of the Closing. HSAG and Buyer acknowledge that the continued validity of VPI's FCL following the Closing is subject to DCSA's review and acceptance of the FOCI mitigation arrangements established by the NSA.
1.5(g) Facility Access Restrictions.  Protocols governing the access of HSAG personnel, including officers, employees, agents, and consultants of HSAG and its non-U.S. affiliates, to VPI facilities have been established in accordance with the requirements of NSA Annex F. These protocols include, without limitation, the following:
(i) Access by any HSAG personnel or any non-U.S. person to classified areas of the Albuquerque Facility, including clean room Sections C-7 through C-12 (which house VPI's compound semiconductor fabrication operations supporting classified programs), shall require prior written approval from both DCSA and the GSC, on not less than fifteen (15) business days' advance notice.
(ii) Access by HSAG personnel to unclassified areas of VPI facilities shall be subject to the visitor access procedures established by the FSO, including advance registration, escort requirements, and restrictions on the removal of technical data or materials from the facility.
(iii) Detailed visitor logs shall be maintained by the FSO and made available to the Monitoring Agencies and WCG upon request.
1.5(h) Personnel Continuity.  HSAG confirms that appropriate employment retention arrangements are in place to retain the following key VPI personnel for a minimum period of twenty-four (24) months following the Closing, as required by NSA § 6.1:
(i) Dr. Nathan Trevorrow, Founder and Chief Executive Officer of VPI;
(ii) Marissa Sung-Avila, President and Chief Operating Officer of VPI; and
(iii) Col. (Ret.) Bryce Hendrickson, Vice President of Government Programs and Facility Security Officer of VPI.
Such retention arrangements include executed retention agreements providing for, among other things, enhanced severance protections and change-of-control benefits. In the event that any such key person departs VPI during the twenty-four (24) month retention period, HSAG and Buyer acknowledge their obligation under the NSA to (a) promptly notify the Monitoring Agencies and the GSC of such departure, and (b) submit proposed replacement candidates for approval by the GSC and DCSA (and, in the case of cleared personnel, for completion of any required personnel security processing) prior to the appointment of any such replacement.
1.5(i) DDTC and Export Control Notifications.  Preparations have been made to file a change-of-ownership notification with the Directorate of Defense Trade Controls ("DDTC") of the U.S. Department of State in connection with VPI's current ITAR registration (Registration No. M-24817), pursuant to ITAR § 122.4(a), which requires notification to DDTC within sixty (60) days of a change in ownership or control of a registered manufacturer or exporter. The notification will be submitted promptly following the Closing.
Buyer is aware that VPI currently holds three (3) active DSP-5 export licenses issued by DDTC authorizing the export of defense articles to end users in the United Kingdom and Australia. Buyer acknowledges that each such license will require amendment to reflect the change in ownership and control of VPI, and that the amendment process will be initiated promptly after the Closing in coordination with DDTC and VPI's export compliance officer. Pending such amendments, VPI shall not make any shipments or disclosures under the existing DSP-5 licenses without first confirming with DDTC that such activity remains authorized.
1.5(j) Government Contract Novation.  Buyer acknowledges that eight (8) of VPI's fourteen (14) active contracts with the U.S. Department of Defense and other agencies of the U.S. Government require formal novation agreements under Federal Acquisition Regulation ("FAR") Subpart 42.12, to recognize Buyer (or VPI, as the surviving contracting entity) as the successor contractor following the change of ownership. Buyer commits to initiate the novation process with the relevant contracting officers at the applicable administrative contracting offices promptly after the Closing, and to use commercially reasonable efforts to complete all novation agreements within one hundred eighty (180) days of the Closing.
Buyer further acknowledges VPI's obligation to disclose foreign ownership, control, or influence to contracting officers pursuant to Defense Federal Acquisition Regulation Supplement ("DFARS") clause 252.209-7002 (Disclosure of Ownership or Control by a Foreign Government), and represents that all necessary disclosures will be made in a timely manner in accordance with applicable regulations.
Section 2 — Additional Certifications
2.1 Accuracy of Representations
HSAG and Buyer hereby certify that all representations and warranties made by HSAG, Buyer, and their respective officers, directors, employees, agents, and advisors in the Joint Notice, the responses to the first and second Requests for Information (RFI-1 and RFI-2), and all other written and oral submissions to CFIUS and the Monitoring Agencies in connection with CFIUS Case No. CFIUS-023-07-3841, were true, correct, and complete in all material respects as of the respective dates on which such representations and warranties were made, and remain true, correct, and complete in all material respects as of the date of this Certificate. No material fact or circumstance has been omitted from any such submission that would be necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
2.2 No Material Change
Since the date of the filing of the Joint Notice (July 14, 2023), there has been no material change to any of the information provided to CFIUS or the Monitoring Agencies in connection with CFIUS Case No. CFIUS-023-07-3841 that has not been disclosed to CFIUS and the Monitoring Agencies in supplemental submissions, during the meetings held with CFIUS staff and lead agency representatives, or otherwise in writing. To the knowledge of HSAG and Buyer, after due inquiry, no event or circumstance has occurred since the date of the Joint Notice that would reasonably be expected to (a) render any material statement in the Joint Notice or the responses to RFI-1 and RFI-2 untrue or misleading, (b) materially affect the national security analysis conducted by CFIUS, or (c) constitute a material change requiring notification under 31 C.F.R. § 800.503.
2.3 Compliance with NSA
As of the date hereof, HSAG and Buyer are not in breach of, and have complied in all respects with, all obligations under the NSA that are required to be performed at or prior to the Closing, including without limitation the obligations to establish the initial compliance infrastructure described in Section 1.5 above. Neither HSAG nor Buyer has received any notice from CFIUS, the Monitoring Agencies, or any other governmental authority alleging any breach of or noncompliance with the NSA.
2.4 No Pending Actions
As of the date hereof, there are no pending, or to the knowledge of HSAG and Buyer after reasonable inquiry, threatened, actions, suits, claims, investigations, proceedings, or orders by or before any governmental authority (including, without limitation, CFIUS, any Monitoring Agency, DCSA, DDTC, the Bureau of Industry and Security, the Department of Justice, or any court of competent jurisdiction) that would reasonably be expected to (a) prohibit, enjoin, or materially restrict the consummation of the transactions contemplated by the Agreement, the NSA, or the CFIUS clearance, (b) materially delay the Closing beyond the Outside Date (as defined in the Agreement), or (c) impose conditions on the Closing that are materially more burdensome than those set forth in the NSA.
Section 3 — Acknowledgment of Ongoing Obligations
HSAG and Buyer acknowledge and agree that the NSA imposes ongoing post-Closing obligations on HSAG, Buyer, and VPI (as the acquired company), which obligations survive the Closing and continue in full force and effect for the duration of the NSA. Without limiting the generality of the foregoing, HSAG and Buyer specifically acknowledge the following ongoing obligations:
(a) Annual Compliance Audits. Whitmore Compliance Group LLC shall conduct annual compliance audits of HSAG's and Buyer's compliance with the NSA, with the first such annual audit to be completed and the resulting audit report to be submitted to the Monitoring Agencies on or before January 19, 2025 (the first anniversary of the execution of the NSA).
(b) Quarterly Monitor Fee Payments. HSAG shall make quarterly payments of Three Hundred Thousand Dollars ($300,000) each to WCG, with the first quarterly payment due on April 19, 2024, and subsequent payments due on the nineteenth (19th) day of each successive calendar quarter thereafter, subject to annual CPI adjustment as provided in the engagement agreement.
(c) Material Change Notifications. HSAG and Buyer shall notify CFIUS and the Monitoring Agencies at least thirty (30) days before any material change to VPI's business, operations, or organizational structure, including without limitation any divestiture or partial divestiture of VPI or any VPI subsidiary, the entry into any new subcontract with a foreign person, any change in the composition of VPI's board of directors or the GSC, or any change in cleared personnel holding key positions at VPI.
(d) Data Segregation. HSAG and Buyer shall maintain at all times the physical and logical separation of VPI's information technology systems, networks, and data repositories from those of HSAG and its non-U.S. affiliates, in accordance with NSA Annex D.
(e) NIST SP 800-171 Compliance. VPI shall maintain continuous compliance with the cybersecurity standards and controls set forth in NIST SP 800-171, as such standards may be updated from time to time.
(f) Cybersecurity Incident Reporting. VPI shall report all cybersecurity incidents affecting VPI's information systems or data to DCSA within seventy-two (72) hours of detection, and concurrently to the Monitoring Agencies, in each case in the form and manner prescribed by NSA Annex D.
(g) Penalties for Noncompliance. HSAG and Buyer acknowledge that a breach of the NSA may result in civil penalties of up to Two Hundred Fifty Thousand Dollars ($250,000) per violation per day, as well as injunctive relief, mandated divestiture of VPI, or other remedies as set forth in NSA § 12.3 and as authorized by 50 U.S.C. § 4565(l)(2).
Section 4 — Reliance
This Certificate is delivered pursuant to and in satisfaction of the closing condition set forth in Section 7.1(c) of the Agreement. The Sellers, the Company, and their respective counsel, Wethersfield & Gale LLP, are entitled to rely on the certifications, representations, and statements contained in this Certificate in connection with the Closing and in determining whether the CFIUS-related closing conditions set forth in Section 7.1(c) of the Agreement have been satisfied.
This Certificate does not create, and shall not be deemed or construed to create, any rights, remedies, or causes of action in favor of any person or entity other than the Sellers and the Company. Without limiting the foregoing, nothing in this Certificate shall be deemed to confer any rights upon CFIUS, the Monitoring Agencies, WCG, or any other governmental authority or third party, it being understood that the rights and obligations of such parties are governed exclusively by the NSA and applicable law.
Section 5 — Governing Law
This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The foregoing governing law provision is consistent with and shall be interpreted in accordance with Section 11.9 of the Agreement.
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SIGNATURE PAGE TO OFFICER'S CERTIFICATE
IN WITNESS WHEREOF, the undersigned has executed this Officer's Certificate as of the date first written above, on behalf of Halcyon Semiconductor Aktiengesellschaft and Halcyon US Holdings Inc.
HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT
and
HALCYON US HOLDINGS INC.
By: ________
Name: Dr. Maximilian Ehrhardt
Title: Chief Executive Officer (Vorstandsvorsitzender), Halcyon Semiconductor Aktiengesellschaft
Capacity: On behalf of Halcyon Semiconductor Aktiengesellschaft and Halcyon US Holdings Inc.
Date: February 9, 2024
ACKNOWLEDGMENT
STATE OF _________________________ )
) ss.
COUNTY OF ________________________ )
On this _ day of ____, 2024, before me, the undersigned, a notary public in and for the State and County aforesaid, personally appeared Dr. Maximilian Ehrhardt, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his capacity as Chief Executive Officer (Vorstandsvorsitzender) of Halcyon Semiconductor Aktiengesellschaft, and as the duly authorized representative of Halcyon US Holdings Inc., and that by his signature on the instrument, the entities upon behalf of which he acted executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public
My Commission Expires: ____
[NOTARIAL SEAL]
Note Regarding Apostille: In the event this Certificate is executed outside the United States, the notarization shall conform to the requirements of the applicable foreign jurisdiction, and the original executed Certificate shall be accompanied by an Apostille issued pursuant to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (October 5, 1961), or such other form of authentication as may be required to give effect to the notarization in the State of Delaware and for purposes of the Agreement.
Distribution: Wethersfield & Gale LLP (counsel for the Sellers and the Company) Quelston & Kessler LLP (counsel for Buyer and HSAG) U.S. Department of the Treasury, Office of Investment Security (CFIUS files — for information only)

OFFICER'S CERTIFICATE OF HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT AND HALCYON US HOLDINGS INC.

RECITALS

CERTIFICATIONS

SIGNATURE PAGE TO OFFICER'S CERTIFICATE

HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT

HALCYON US HOLDINGS INC.

ACKNOWLEDGMENT

Record

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