Item 2.03. Creation of a Direct Financial Obligation or an Obligation under
an Off-Balance Sheet Arrangement or a Registrant.
As disclosed in the definitive proxy statement filed by Tailwind Acquisition
Corp. ("Tailwind" or the "Company") with the Securities and Exchange Commission
(the "SEC") on August 17, 2022, as supplemented (the "Proxy Statement"),
relating to the special meeting of stockholders (the "Extension Meeting"),
Tailwind Sponsor LLC (the "Sponsor") agreed that if the Extension Amendment
Proposal (as defined below) is approved, it or one or more of its affiliates,
members or third-party designees (the "Lender") will contribute to the Company
as a loan $600,000 to be deposited into the trust account established in
connection with the Company's initial public offering (the "Trust Account"). In
addition, in the event the Company does not consummate an initial business
combination by the Charter Extension Date (as defined below), the Lender will
contribute to the Company as a loan up to $150,000 in two equal installments to
be deposited into the Trust Account for each of two one-month extensions
following the Charter Extension Date.
Accordingly, on September 9, 2022, the Company issued an unsecured promissory
note in the principal amount of up to $750,000 (the "Note") to the Sponsor. The
Note does not bear interest and matures upon closing of the Company's initial
business combination. In the event that the Company does not consummate a
business combination, the Note will be repaid only from amounts remaining
outside of the Trust Account, if any. The proceeds of the Note have been
deposited in the Trust Account in connection with the Charter Amendment. The
Note may be converted, in whole or in part, at the option of the Lender into
warrants of the Company at a price of $1.00 per warrant, which warrants will be
identical to the private placement warrants issued to the Sponsor at the time of
the initial public offering of the Company.
The foregoing description of the Note is qualified in its entirety by reference
to the full text of the Note, which is incorporated by reference herein and
filed herewith as Exhibit 10.1.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On September 7, 2022, Tailwind held the Extension Meeting to amend Tailwind's
certificate of incorporation (the "Charter Amendment") to extend the date (the
"Termination Date") by which Tailwind has to consummate a business combination
from September 9, 2022 (the "Original Termination Date") to January 9, 2023 (the
"Charter Extension Date") and to allow Tailwind, without another stockholder
vote, to elect to extend the Termination Date to consummate a business
combination on a monthly basis for up to two times by an additional one month
each time after the Charter Extension Date, by resolution of Tailwind's board of
directors if requested by the Sponsor, and upon five days' advance notice prior
to the applicable deadlines, until March 9, 2023, or a total of up to six months
after the Original Termination Date, unless the closing of Tailwind's initial
business combination shall have occurred prior to such date (the "Extension
Amendment Proposal"). The stockholders of Tailwind approved the Extension
Amendment Proposal at the Extension Meeting and on September 9, 2022, Tailwind
filed the Charter Amendment with the Delaware Secretary of State.
The foregoing description is qualified in its entirety by reference to
the Charter Amendment, a copy of which is attached as Exhibit 3.1 hereto and is
incorporated by reference herein.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On September 7, 2022, Tailwind held the Extension Meeting to approve the
Extension Amendment Proposal and the Adjournment Proposal, each as more fully
described in the Proxy Statement. As there were sufficient votes to approve the
Extension Amendment Proposal, the Adjournment Proposal was not presented to
stockholders.
Holders of 32,375,626 shares of common stock of Tailwind held of record as of
August 12, 2022, the record date for the Extension Meeting, were present in
person or by proxy at the meeting, representing approximately 77.496% of the
voting power of Tailwind's common stock as of the record date for the Extension
Meeting, and constituting a quorum for the transaction of business.
The voting results for the Extension Amendment Proposal were as follows:
The Extension Amendment Proposal
For Against Abstain
29,473,785 2,900,983 858
In connection with the vote to approve the Charter Amendment, the holders of
30,188,729 shares of Class A common stock of the Company properly exercised
their right to redeem their shares for cash at a redemption price of
approximately $10.0327 per share, for an aggregate redemption amount of
approximately $302,873,885.
Caution Regarding Forward Looking Statements
This disclosure 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 of 1933, as amended (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 disclosure, 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 Inc., a Delaware corporation
("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 Lincoln Park Capital Fund, LLC; (12) the
risk that the business combination may not be completed in a timely manner or at
all, which may adversely affect the price of Tailwind's securities; (13) the
risk that the transaction may not be completed by Tailwind's business
combination deadline and the potential failure to obtain an extension of the
business combination deadline if sought by Tailwind; (14) the impact of the
COVID-19 pandemic, including any mutations or variants thereof, and its effect
on business and financial conditions; (15) volatility in the markets caused by
geopolitical and economic factors; and (16) other risks and uncertainties set
forth in the sections entitled "Risk Factors" and "Cautionary Note Regarding
Forward-Looking Statements" in Tailwind's Form S-1 (File No. 333-248113), its
most recent Quarterly Report on Form 10-Q and registration statement on Form S-4
that Tailwind intends to file with the SEC, which will include a document that
serves as a prospectus and proxy statement of Tailwind, referred to as a proxy
statement/prospectus and other documents filed by Tailwind from time to time
with the SEC. These filings identify and address other important risks and
uncertainties that could cause actual events and results to differ materially
from those contained in the forward-looking statements. Nothing in this
disclosure should be regarded as a representation by any person that the
forward-looking statements set forth herein will be achieved or that any of the
contemplated results of such forward-looking statements will be achieved. You
should not place undue reliance on forward-looking statements, which speak only
as of the date they are made. Neither Tailwind nor NUBURU gives any assurance
that either Tailwind or NUBURU or the combined company will achieve its expected
results. Neither Tailwind nor NUBURU undertakes any duty to update these
forward-looking statements, except as otherwise required by law.
AdditionalInformation
This disclosure relates to a proposed business combination transaction between
Tailwind and NUBURU. Tailwind intends to file a registration statement on Form
S-4 with the SEC, which will include a document that serves as a prospectus and
proxy statement of Tailwind (the "Business Combination Proxy Statement"). The
Business Combination Proxy Statement will be sent to all Tailwind stockholders.
Tailwind also will file other documents regarding the proposed transaction with
the SEC. Before making any voting decision, investors and security holders of
Tailwind are urged to read the registration statement, the Business Combination
Proxy Statement and all other relevant documents filed or that will be filed
with the SEC in connection with the proposed transaction as they become
available because they will contain important information about the proposed
transaction.
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 SEC by Tailwind through
the website maintained by the SEC at www.sec.gov. The documents filed by
Tailwind with the SEC also may be obtained free of charge upon written request
Tailwind Acquisition Corp., 1545 Courtney Avenue, Los Angeles, CA 90046.
NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR
DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS DISCLOSURE, PASSED UPON THE
MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR RELATED TRANSACTIONS OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS DISCLOSURE. ANY
REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Participantsin 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 Business Combination Proxy Statement, which is expected to
be filed by Tailwind with the SEC in connection with the business combination.
Information regarding the persons who may, under SEC rules, be deemed
participants in the solicitation of proxies to Tailwind's stockholders in
connection with the proposed business combination will be set forth in the
Business Combination Proxy Statement for the proposed business combination,
which is expected to be filed by Tailwind with the SEC in connection with the
business combination.
No Offer or Solicitation
This disclosure 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.
Item 9.01. Financial Statements and Exhibits
(d)Exhibits
Exhibit No. Description
3.1 Amendment to Amended and Restated Certificate of Incorporation.
10.1 Promissory Note, dated September 9, 2022, between the Company and
the Sponsor
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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