TAID ACQU Item 1.01. Entry Into A Material Definitive Agreement.
On
Business Combination Agreement
The following description of the Business Combination Agreement and the
transactions contemplated thereby is not complete and is subject to, and
qualified in its entirety by reference to, the actual agreement, a copy of which
is filed with this report as Exhibit 2.1, and the terms of which are
incorporated herein by reference. Capitalized terms used but not otherwise
defined herein will have the meanings given to them in the Business Combination
Agreement. The Business Combination Agreement has been attached to provide
investors with information regarding its terms. It is not intended to provide
any other factual information about Tailwind, Nuburu or Merger Sub. In
particular, the assertions embodied in the representations and warranties in the
Business Combination Agreement were made as of a specified date, may be subject
to a contractual standard of materiality different from what might be viewed as
material to investors, may be qualified by the schedules thereto, or may have
been used for the purpose of allocating risk between the parties. Accordingly,
the representations and warranties in the Business Combination Agreement are not
necessarily characterizations of the actual state of facts about Tailwind,
Merger Sub or Nuburu at the time they were made or otherwise and should only be
read in conjunction with the other information that Tailwind makes publicly
available in reports, statements and other documents filed with the
The Merger
Pursuant to the terms of the Business Combination Agreement, Tailwind will
acquire Nuburu through the merger of Merger Sub with and into Nuburu, with
Nuburu surviving the merger (the "Surviving Corporation") as a wholly owned
subsidiary of Tailwind (the "Merger"). In connection with the Merger, Tailwind
will be renamed "
At the effective time of the Merger (the "Effective Time"):
· Each share of Nuburu preferred stock, par value
Series A Preferred Stock, Series A-1 Preferred Stock, Series B Preferred Stock,
Series B-1 Preferred Stock, and Series C Preferred Stock ("Nuburu Preferred
Stock"), issued and outstanding immediately prior to the Effective Time shall
be canceled and converted into the right to receive the number of shares of
common stock, par value $0.0001 per share, of Tailwind ("New SPAC Common
Stock") equal to the greater of (A) the quotient obtained from (x) the
applicable Preferred Stock Liquidation Preference of such share of Nuburu
Preferred Stock divided by(y) $10.00 (such shares of Nuburu Preferred Stock
receiving a number of shares of New SPAC Common Stock, "Unconverted Preferred
Stock"), and (B) the product of (x) the number of shares of Nuburu Common Stock
(as defined below) that such share of Nuburu Preferred Stock would be entitled
to convert into as of immediately prior to the Effective Time in accordance
with Nuburu's Certificate of Incorporation, multiplied by (y) the Common Stock
Exchange Ratio.
· Each share of Nuburu common stock, par value
Stock") issued and outstanding shall be canceled and converted into the right
to receive the number of shares of New SPAC Common Stock equal to the Common
Stock Exchange Ratio.
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· Each outstanding option to purchase shares of Nuburu Common Stock (each such
option, a "Nuburu Option"), whether vested or unvested, will be converted into an option to purchase a number of shares of New SPAC Common Stock (such option, an "Exchanged Option") equal to the product (rounded down to the nearest whole number) of (x) the number of shares of Nuburu Common Stock subject to such Nuburu Option immediately prior to the Effective Time and (y) the Common Stock Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of such Nuburu Option immediately prior to the Effective Time divided by (B) the Common Stock Exchange Ratio. Except as specifically provided above, following the Effective Time, each Exchanged Option will continue to be governed by the same terms and conditions, including vesting and exercisability terms, as were applicable to the corresponding former Nuburu Option immediately prior to the Effective Time.
· Each outstanding restricted stock unit granted by Nuburu (each a "Nuburu RSU")
will be converted into a restricted stock unit of New SPAC Common Stock (such option, an "Exchanged RSU") equal to the product (rounded down to the nearest whole number) of (x) the number of shares subject to a Nuburu RSU immediately prior to the Effective Time and (y) the Common Stock Exchange Ratio. Except as specifically provided above, following the Effective Time, each Exchanged RSU will continue to be governed by the same terms and conditions as were applicable to the corresponding former Nuburu RSU immediately prior to the Effective Time.
· Each outstanding warrant to purchase shares of Nuburu Common Stock will be
treated in accordance with its terms, as may be amended prior to the Closing (as defined below), with any amendments subject to Tailwind's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
· Each outstanding convertible promissory note issued by Nuburu (each a
"Convertible Note") will be canceled and converted into (A) shares of Nuburu Common Stock in accordance with the terms of such Convertible Note as of immediately prior to the Effective Time, which shares shall then be outstanding as of immediately prior to the Effective Time and subsequently converted into New SPAC Common Stock (and with such shares being entitled to participate in the Preferred Stock Issuance).
The "Common Stock Exchange Ratio" means the quotient obtained by dividing (x) the Aggregate Common Stock Merger Consideration by (y) the number of . . .
Item 7.01. Regulation FD Disclosure.
On
Furnished as Exhibit 99.2 hereto and incorporated into this Item 7.01 by reference is the investor presentation that Tailwind and Nuburu have prepared for use in connection with the announcement of the Business Combination Agreement.
The foregoing (including Exhibits 99.1 and 99.2) is being furnished pursuant to Item 7.01 and shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, and shall not be deemed to be incorporated by reference into the filings of Tailwind under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings.
Item 8.01. Other Events.
On
Important Information and Where to Find It
On
In connection with the Business Combination, Tailwind intends to file a
registration statement on Form S-4 with the
Investors and security holders will be able to obtain free copies of the
registration statement, the Business Combination Proxy Statement and all other
relevant documents filed or that will be filed with the
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Participants in the Solicitation
Tailwind and NUBURU and their respective directors and executive officers may be
deemed to be participants in the solicitation of proxies from Tailwind's
stockholders in connection with the proposed transactions. Tailwind's
stockholders and other interested persons may obtain, without charge, more
detailed information regarding the directors and executive officers of Tailwind
listed in Tailwind's registration statement on Form S-4, which is expected to be
filed by Tailwind with the
No Offer or Solicitation
This report is not intended to and does not constitute an offer to sell or the solicitation of an offer to buy, sell or solicit any securities or any proxy, vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be deemed to be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Forward-Looking Statements
This report contains certain "forward-looking statements" within the meaning of
the United States Private Securities Litigation Reform Act of 1995, Section 27A
of the Securities Act, and Section 21E of the Securities Exchange Act of 1934,
as amended, including certain financial forecasts and projections. All
statements other than statements of historical fact contained in this report,
including statements as to future results of operations and financial position,
revenue and other metrics planned products and services, business strategy and
plans, objectives of management for future operations of Nuburu, market size and
growth opportunities, competitive position and technological and market trends,
are forward-looking statements. Some of these forward-looking statements can be
identified by the use of forward-looking words, including "may," "should,"
"expect," "intend," "will," "estimate," "anticipate," "believe," "predict,"
"plan," "targets," "projects," "could," "would," "continue," "forecast" or the
negatives of these terms or variations of them or similar expressions. All
forward-looking statements are subject to risks, uncertainties, and other
factors which could cause actual results to differ materially from those
expressed or implied by such forward-looking statements. All forward-looking
statements are based upon estimates, forecasts and assumptions that, while
considered reasonable by Tailwind and its management, and Nuburu and its
management, as the case may be, are inherently uncertain and many factors may
cause the actual results to differ materially from current expectations which
include, but are not limited to: (1) the occurrence of any event, change or
other circumstances that could give rise to the termination of the Business
Combination agreement with respect to the Business Combination; (2) the outcome
of any legal proceedings that may be instituted against Nuburu, Tailwind, the
combined company or others following the announcement of the Business
Combination and any definitive agreements with respect thereto; (3) the
inability to complete the Business Combination due to the failure to obtain
approval of the stockholders of Tailwind or the stockholders of Nuburu, or to
satisfy other closing conditions of the Business Combination; (4) changes to the
proposed structure of the Business Combination that may be required or
appropriate as a result of applicable laws or regulations or as a condition to
obtaining regulatory approval of the Business Combination; (5) the ability to
meet NYSE's listing standards following the consummation of the Business
Combination; (6) the risk that the Business Combination disrupts current plans
and operations of Nuburu as a result of the announcement and consummation of the
Business Combination; (7) the inability to recognize the anticipated benefits of
the business combination, which may be affected by, among other things,
competition, the ability of the combined company to grow and manage growth
profitably, maintain relationships with customers and suppliers and retain its
management and key employees; (8) costs related to the Business Combination; (9)
changes in applicable laws or regulations; (10) the possibility that Nuburu or
the combined company may be adversely affected by other economic, business
and/or competitive factors; (11) the inability to obtain financing from
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1† Business Combination Agreement, dated as ofAugust 5, 2022 , by and amongTailwind Acquisition Corp. ,Compass Merger Sub, Inc. andNuburu, Inc. 10.1 Sponsor Support and Forfeiture Agreement, dated as ofAugust 5, 2022 , by and amongTailwind Sponsor LLC ,Tailwind Acquisition Corp. andNuburu, Inc. 10.2 Stockholder Support Agreement, dated as ofAugust 5, 2022 , by and amongTailwind Acquisition Corp. and certain stockholders ofNuburu, Inc. 10.3 Amended and Restated Registration Rights and Lock-Up Agreement, datedAugust 5, 2022 , by and amongTailwind Acquisition Corp. and the parties listed on the signature pages thereto. 10.4 Preferred Stock Sale Option Agreement, datedAugust 5, 2022 , by and amongTailwind Acquisition Corp. and the parties listed on Schedule A thereto. 10.5 Purchase Agreement, datedAugust 5, 2022 , by and amongTailwind Acquisition Corp. ,Nuburu, Inc. andLincoln Park Capital Fund, LLC . 10.6 Registration Rights Agreement, datedAugust 5, 2022 , by and amongTailwind Acquisition Corp. ,Nuburu, Inc. andLincoln Park Capital Fund, LLC . 99.1 Press Release, datedAugust 8, 2022 . 99.2 Investor Presentation. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document) † Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to theSEC upon its request. - 15 -
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