| Item 1.01. | Entry Into A Material Definitive Agreement. |
On August 8, 2022, Tailwind Acquisition Corp., a Delaware
corporation (“Tailwind”), announced that it executed a Business Combination Agreement (the “Business Combination
Agreement”), dated as of August 5, 2022, with Compass Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary
of Tailwind (“Merger Sub”), and Nuburu, Inc., a Delaware corporation (“Nuburu”) (the transactions
contemplated by the Business Combination Agreement, the “Business Combination”). This Current Report on Form 8-K, or
this report, provides a summary of the Business Combination Agreement and the other agreements entered into (and certain agreements to
be entered into) in connection with the Business Combination. The descriptions of these agreements do not purport to be complete and are
qualified in their entirety by the terms and conditions of such agreements or the forms thereof, as applicable, copies of which are filed
as Exhibits 2.1, 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6 hereto and are incorporated by reference herein.
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 Securities
and Exchange Commission (the “SEC”).
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 “Nuburu,
Inc.” (the “Post-Combination Company”) and Nuburu will be renamed to “Nuburu Subsidiary, Inc.”
At the effective time of the Merger (the “Effective Time”):
| · | Each share of Nuburu preferred stock, par value $0.0001 per share, including 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 $0.0001 per share (“Nuburu Common 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. |
| · | 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 Fully-Diluted Company Shares. The “Aggregate
Common Stock Merger Consideration” means a number of shares of New SPAC Common Stock equal to (a) 35,000,000 less (b) the aggregate
number of New SPAC Common Stock issuable in respect of Unconverted Preferred Stock pursuant to Section 3.01(a)(i) of the Business Combination
Agreement. “Fully-Diluted Company Shares” means an amount equal to, without duplication, (i) the aggregate number of
shares of Company Capital Stock that are issued and outstanding as of immediately prior to the Effective Time on a fully-diluted, as converted-to
Company Common Stock basis, plus (ii) the aggregate number of shares of Company Common Stock issuable upon the full exercise, exchange
or conversion of Company Warrants, Company Options, Company RSUs and Company Notes that are outstanding as of immediately prior to the
Effective Time; provided, however, that “Fully-Diluted Shares” shall exclude (A) all Unconverted Preferred Stock and (B) certain
equity set forth in the schedules to the Business Combination Agreement.
Preferred Stock Issuance
Prior to the Closing, Tailwind shall declare an issuance of shares
of New SPAC Series A Preferred Stock to the holders of record of New SPAC Common Stock as of as of the close of business on the Closing
Date (other than (a) stockholders of Nuburu who have waived its entire right, title and interest in, to or under, any participation in
the Preferred Stock Issuance by executing the Written Consent (which, for clarity, excludes shares of New SPAC Common Stock to be received
as a result of the conversion of any Company Note) and (b) the Sponsor, who shall have waived right, title and interest in, to or under,
a portion of the Preferred Stock Issuance as further described in the Sponsor Support Agreement (as defined below)), with one share of
New SPAC Series A Preferred Stock to be issued in respect of each such share of New SPAC Common Stock. For clarity, any stockholder of
the Company that has elected to redeem their shares in connection with the Business Combination shall not participate in the Preferred
Stock Issuance with respect to the shares it has so redeemed, as such holder will not be a record holder of New SPAC Common Stock with
respect to such shares as of the close of business on the Closing Date. The terms of the New SPAC Series A Preferred Stock are set forth
in a Certificate of Designations to be filed in connection with the Closing. The issuance will be conditioned upon the occurrence of the
Effective Time and occur as of the close of business on the Closing Date.
Below is a summary description of the material rights, designations
and preferences of the New SPAC Series A Preferred Stock (all capitalized terms not otherwise defined in this section shall have that
definition assigned to it in the Certificate of Designation).
The New SPAC Series A Preferred Stock will not be listed; however,
the Post-Combination Company must maintain sufficient authorized shares of New SPAC Common Stock to permit the New SPAC Series A Preferred
Stock to be voluntarily (at the sole discretion of the holder) or mandatorily (subject to certain conditions) converted to New SPAC Common
Stock, which the Post-Combination Company would register with the SEC and list on the same exchange as where the New SPAC Common Stock
issued in connection with the Closing are listed (as defined below).
The deemed Original Issuance Price will be $10.00 per share of New
SPAC Series A Preferred Stock, and the conversion price (the “Conversion Price”) per share of New SPAC Series A Preferred
Stock will be the lesser of (i) $11.50 and (ii) the greater of (x) 115% of the Conversion Price VWAP and (y) $5.00. The “Conversion
Price VWAP” shall mean the VWAP per share of New SPAC Common Stock that is the lowest VWAP for any consecutive 90-trading day period
prior to the time of the calculation of such VWAP. For the avoidance of doubt, such VWAP shall be calculated on the basis of the volume-weighted
price for the entire such period and not by averaging the VWAPs of each trading day in such period. In no instance may an individual investor
upon that individual investor’s decision to convert at the then-applicable voluntary conversion receive more than 9.99% of the voting
share count. Any excess amount would be paid out by the Post-Combination Company in cash.
The Post-Combination Company may mandatorily convert the New SPAC Series
A Preferred Stock to New SPAC Common Stock at the Conversion Price if the VWAP per share of New SPAC Common Stock is greater than 200%
of the Conversion Price for any 20 trading days within any 30-trading day period.
On the second anniversary of Closing, (i) if the Conversion Price exceeds
the VWAP on such date, then the Post-Combination Company shall redeem all of the shares of New SPAC Series A Preferred Stock then outstanding,
to the extent not prohibited by law, at the Original Issuance Price; and (ii) if the Conversion Price is equal to or less than the VWAP
on such date, then the Post-Combination Company shall convert all of the shares of New Series A Preferred Stock then outstanding into
shares of New SPAC Common Stock, to the extent not prohibited by law, at the Conversion Price.
Holders of New SPAC Series A Preferred Stock are not entitled to dividend
or interest payments, unless dividends are paid by the Post-Combination Company, on any Junior Stock from time to time, in which case
the holders of New SPAC Series A Preferred Stock shall be entitled to participate in those dividends on an as-converted basis.
The foregoing description of the Certificate of Designation does not
purport to be complete and is qualified in its entirety by reference to the full text of the form of the document, which is attached as
Exhibit F to the Business Combination Agreement, and is hereby incorporated herein by reference.
The Closing
The closing of the Business Combination (the “Closing”)
will occur as promptly as practicable, but in no event later than three Business Days, after the satisfaction or, if permissible, waiver
of the conditions to the Closing set forth in the Business Combination Agreement.
Stock Exchange Listing
Pursuant to the terms of the Business Combination Agreement, Tailwind
is required to use its reasonable best efforts to keep the SPAC Units, SPAC Class A Common Stock and SPAC Warrants continuously listed
for trading on the New York Stock Exchange or another national securities exchange mutually agreed by the parties (the “Securities
Exchange”) until the Closing. Tailwind is also required to use its reasonable best efforts to cause the New SPAC Common Stock
to be issued in connection with the Business Combination to be approved for listing on the Securities Exchange, which, if not the New
York Stock Exchange, shall include Tailwind using its commercially reasonable efforts to delist all SPAC Units, SPAC Class A Common Stock
and SPAC Warrants from the New York Stock Exchange and instead prepare and submit to such other Securities Exchange a listing application
covering such securities.
Representations and Warranties
The Business Combination Agreement contains customary representations
and warranties of the parties thereto with respect to, among other things, (a) entity organization, formation and authority, (b) capitalization,
(c) authorization to enter into the Business Combination Agreement, (d) licenses and permits, (e) taxes, (f) financial statements,
(g) real property, (h) material contracts, (i) title to assets, (j) absence of changes, (k) employee matters,
(l) compliance with laws, (m) litigation, (n) transactions with affiliates and (o) regulatory matters.
Covenants
The Business Combination Agreement includes customary covenants of
the parties with respect to the operation of their respective businesses prior to the consummation of the Business Combination and efforts
to satisfy the conditions to consummation of the Business Combination. The Business Combination Agreement also contains additional covenants
of the parties, including, among others, covenants providing for Tailwind and Nuburu to use their reasonable best efforts to obtain all
permits, consents, approvals, authorizations, qualifications and orders of Governmental Authorities and parties to contracts with Nuburu
and its subsidiaries as set forth in the Business Combination Agreement necessary for the consummation of the Business Combination and
to fulfill the conditions to the Merger, and for the preparation and filing of a registration statement on Form S-4 relating to the Merger
and containing a proxy statement of Tailwind.
Convertible Notes
As further described above, at the Effective Time, each outstanding
Convertible Note will be converted into both shares of New SPAC Common Stock and an equal amount of shares of New SPAC Series A Preferred
Stock. Pursuant to their terms, the Convertible Notes would convert into New SPAC Common Stock at a discount, such that every $8.50 invested
in the Convertible Note would entitle the holder thereof to one (1) share of New SPAC Common Stock (and with such shares being entitled
to participate in the Preferred Stock Issuance).
Equity Incentive Plan and Employee Stock Purchase Plan
In connection with the Merger, in addition to the assumption of the
2015 Equity Incentive Plan of Nuburu and the Exchanged Options and Exchanged RSUs as provided in the Business Combination Agreement, Tailwind
will adopt, prior to the Closing and subject to the approval of the stockholders of Tailwind, an equity incentive plan (the “Equity
Plan”) for the Post-Combination Company with an award pool of New SPAC Common Stock equal to (i) the number of shares of
New SPAC Common Stock equivalent to 10% of the number of shares expected to be outstanding as of immediately after the Effective Time,
plus (ii) any shares of New SPAC Common Stock subject to the Exchanged Options and Exchanged RSUs
that, on or after the Effective Time, are cancelled, expire or otherwise terminate without having been exercised in full, are tendered
to or withheld by the Post-Combination Company for payment of an exercise price or for tax withholding obligations, or are forfeited to
or repurchased by the Post-Combination Company due to failure to vest, with such shares to be added pursuant to this clause (ii) subject
to a maximum number of shares to be specified in the Equity Plan, plus (iii) the number of shares of New SPAC Common Stock added
pursuant to automatic annual increases to such share reserve over a period of 10 years, with each such annual increase equal to the least
of (x) a number of shares to be specified in the Equity Plan, (y) a number of shares equal to 5% of the total number of shares of all
classes of common stock outstanding on the day immediately preceding the annual increase, and (z) such number of shares determined
by the administrator of the Equity Plan no later than the day immediately preceding the annual increase.
In addition, Tailwind will adopt, prior to Closing and subject to the
approval of the stockholders of Tailwind, an employee stock purchase plan (the “ESPP”) for the Post-Combination Company
with a number of shares of New SPAC Common Stock reserved for issuance equal to (i) the number of shares of New SPAC Common Stock
equivalent to 1% of the number of shares expected to be outstanding as of immediately after the Effective Time, plus (ii) the number
of shares of New SPAC Common Stock added pursuant to automatic annual increases to such share reserve during the 20-year plan term, with
each such annual increase equal to the least of (x) a number of shares to be specified in the ESPP, (y) a number of shares equal to 1%
of the total number of shares of all classes of common stock outstanding on the day immediately preceding the annual increase, and (z) such
number of shares determined by the administrator of the ESPP no later than the day immediately preceding the annual increase.
Nuburu Exclusivity Restrictions
Pursuant to the terms of the Business Combination Agreement, from the
date of the Business Combination Agreement to the Closing or, if earlier, the termination of the Business Combination Agreement in accordance
with its terms, Nuburu has agreed, among other things, not to, and to cause its Representatives not to (i) initiate, solicit, facilitate
or encourage (including by way of furnishing non-public information), whether publicly or otherwise, any inquiries with respect to, or
the making of, any proposal or offer from any person or group of persons (other than Tailwind, Merger Sub or their respective affiliates)
relating to, in a single transaction or a series of related transactions, any direct or indirect acquisition or purchase of a business
that constitutes 10% or more of the assets of Nuburu or 10% or more of the total voting power of the equity securities of the Nuburu,
whether by way of merger, asset purchase, equity purchase or otherwise (a “Company Acquisition Proposal”), (ii) engage
in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information
or data to, any person relating to a Company Acquisition Proposal, (iii) enter into, engage in and maintain discussions or negotiations
with respect to any Company Acquisition Proposal (or inquiries, proposals or offers or other efforts that would reasonably be expected
to lead to any Company Acquisition Proposal) or otherwise cooperate with or assist or participate in, or facilitate or encourage any such
inquiries, proposals, offers, efforts, discussions or negotiations, (iv) amend or grant any waiver or release under any standstill or
similar agreement with respect to any class of equity securities of Nuburu, (v) approve, endorse or recommend, or propose publicly to
approve, endorse or recommend, any Company Acquisition Proposal, (vi) approve, endorse, recommend, execute or enter into any agreement
in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint
venture agreement, partnership agreement or other written arrangement relating to any Company Acquisition Proposal or any proposal or
offer that could reasonably be expected to lead to a Company Acquisition Proposal, or (vii) resolve or agree to do any of the foregoing
or otherwise authorize or permit any of its Representatives to take any such action.
Tailwind Exclusivity Restrictions
Pursuant to the terms of the Business Combination Agreement, from the
date of the Business Combination Agreement to the Effective Time or, if earlier, the termination of the Business Combination Agreement
in accordance with its terms, Tailwind has agreed among other things, to the extent not inconsistent with the fiduciary duties of the
Tailwind board of directors, not to, and to cause its representatives not to, (i) enter into, knowingly solicit, initiate or continue
any discussions or negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any negotiations
with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within
the meaning of Section 13(d) of the Securities and Exchange Act of 1934, (the “Exchange Act”), concerning any sale
of any material assets of such person or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution
or similar transaction involving such person other than with Nuburu and its Representatives (an “Alternative Transaction”),
(ii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person
any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction,
or (iii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction.
Conditions to Closing
The consummation of the Business Combination is subject to the fulfillment
of the conditions described below.
Mutual Conditions
Under the terms of the Business Combination Agreement, the obligations
of Nuburu, Tailwind and Merger Sub to consummate the Business Combination, including the Merger, are subject to the satisfaction or waiver
(where permissible) at or prior to the Closing of the following conditions: (i) the Written Consent of the stockholders of Nuburu
shall have been delivered to Tailwind; (ii) the SPAC Proposals shall have been approved and adopted by the requisite affirmative
vote of the stockholders of Tailwind in accordance with the SPAC Organizational Documents and Law; (iii) no Governmental Authority
shall have enacted, issued, promulgated, enforced or entered any Law, rule, regulation, judgment, decree, executive order or award which
is then in effect and has the effect of making the Business Combination, including the Merger, illegal or otherwise prohibiting consummation
of the Business Combination; (iv) the Registration Statement shall have been declared effective under the Securities Act, no stop
order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for
purposes of suspending the effectiveness of the Registration Statement shall have been initiated or threatened by the SEC; and (v) Tailwind
shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act).
Tailwind Conditions to Closing
Additionally, under the terms of the Business Combination Agreement,
the obligations of Tailwind and Merger Sub to consummate the Business Combination, including the Merger, are subject to the satisfaction
or waiver (where permissible) at or prior to the Closing of, among other customary closing conditions, no Company Material Adverse
Effect having occurred between the date of the Business Combination Agreement and the Closing Date.
Nuburu Conditions to Closing
Additionally, under the terms of the Business Combination Agreement,
the obligations of Nuburu to consummate the Business Combination, including the Merger, are subject to the satisfaction or waiver (where
permissible) at or prior to the Closing of, among other customary closing conditions, no SPAC Material Adverse Effect having occurred
between the date of the Business Combination Agreement and the Closing Date.
Termination
The Business Combination Agreement allows the parties to terminate
the agreement upon the occurrence of certain conditions, including if the Effective Time has not occurred by March 9, 2023 (the “Outside
Date”). Additionally, the Business Combination Agreement may be terminated (i) by Tailwind if Nuburu’s board of directors,
prior to obtaining the Written Consent, makes a Company Adverse Recommendation Change; (ii) by Tailwind if Nuburu fails to deliver the
Written Consent within two Business Days after the Registration Statement becomes effective; (iii) by Tailwind within 30 days, based
on its due diligence review of Nuburu, (iv) by Tailwind or Nuburu for a period of 10 business days, such period commencing on the date
that is 45 days following a Lincoln Park Diligence Termination (as defined below), provided the parties do not obtain adequate alternative
financing and (v) by Nuburu prior to the receipt of the Company Stockholder Approval, if Nuburu’s board of directors authorizes
Nuburu to enter into a definitive agreement with respect to a unsolicited superior Company Acquisition Proposal and Nuburu enters into
such definitive agreement with respect to such proposal. In the event that the Business Combination Agreement is terminated by Nuburu
pursuant to an authorization of Nuburu’s board of directors to enter into a definitive agreement with respect to an unsolicited
superior Company Acquisition Proposal (other than another SPAC Acquisition Proposal), Nuburu must pay Tailwind a termination fee of $15 million
within two Business Days of such termination.
Sponsor Support Agreement
Tailwind and Tailwind Sponsor LLC, a Delaware limited liability company
(the “Sponsor”), concurrently with the execution and delivery of the Business Combination Agreement, have entered into
the Sponsor Support and Forfeiture Agreement (the “Sponsor Support Agreement”), pursuant to which the Sponsor has agreed,
among other things, (A) to vote (or execute and return an action by written consent), or cause to be voted at the SPAC Stockholders’
Meeting (or validly execute and return and cause such consent to be granted with respect to), all of its SPAC Common Stock or any other
voting securities of Tailwind which it holds, owns, or is entitled to vote, in favor of the approval and adoption of the Business Combination
Agreement and approval of the Business Combination, including the Merger, (B) not to redeem any of the SPAC Common Stock pursuant
to or in connection with any vote for the approval of any extension of the deadline for Tailwind to consummate its initial business combination,
and (C) to forfeit the shares of New SPAC Common Stock held by the Sponsor other than the Retained Sponsor Shares. “Retained
Sponsor Shares” means an amount of SPAC Class B Common Stock equal to (i) (x) 2,000,000 shares in the aggregate, if the Post-Redemption
Trust Amount is greater than $40,000,000 in the aggregate or (y) 1,500,000 shares in the aggregate, if the Post-Redemption Trust Amount
is equal to or less than $40,000,000 in the aggregate, in either case, , minus (ii) the Expense Excess Shares, if any,. “Expense
Excess Shares” means an amount of SPAC Class B Common Stock equal to the product of (i) two (2.0), multiplied by (ii) the quotient
obtained by dividing (x) the excess, if any, of (A) the SPAC Forfeiture Expenses over (B) $5,500,000, by (y) ten dollars ($10). “SPAC
Forfeiture Expenses” means all fees, expenses and disbursements incurred by or on behalf of Tailwind or Merger Sub in connection
with the Business Combination or otherwise in connection with Tailwind’s operations, including in connection with any prior transactions
pursued by Tailwind and all obligations (including principal and accrued but unpaid interest) for the payment of borrowed money, other
than (i) expenses incurred by Tailwind and owed to Loop Capital Markets LLC and Tigress Financial Partners in their capacities as capital
markets advisors in connection with the Business Combination, (ii) expenses incurred in obtaining the SPAC D&O Tail Policy and any
directors and officers insurance premium with respect to the renewal of Tailwind’s D&O Policy, (iii) any reasonable and documented
out-of-pocket fees and expenses incurred in connection with any third-party litigation threatened or commenced in connection with the
Business Combination prior to the Closing and (iv) any other fees or expenses borne by Nuburu pursuant to Section 10.11 of the
Business Combination Agreement. “Post-Redemption Trust Amount” means the aggregate amount of funds held in the Trust
Account, to be held as available cash on the balance sheet of the SPAC following the SPAC Stockholder Redemption.
In connection with the consummation of the Transactions, the Sponsor
agrees that, upon and subject to the occurrence of the Closing, the Sponsor shall automatically cancel, without any further action by
the Sponsor or any other Person, all of the SPAC Warrants that are held by the Sponsor (the “Sponsor Warrants”). The
Sponsor is also waiving its right to receive the Preferred Stock Issuance, other than with respect to 1,000,000 shares of New SPAC Series
A Preferred Stock.
The foregoing description of the Sponsor Support 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 10.1, and the terms of which are incorporated herein by reference.
Stockholder Support Agreement
Tailwind, Nuburu and the Key Company Stockholders, concurrently with
the execution and delivery of the Business Combination Agreement, have entered into the Stockholder Support Agreement (the “Stockholder
Support Agreement”), pursuant to which such Key Company Stockholders have agreed, among other things, to vote all of their shares
of Nuburu Common Stock and Nuburu Preferred Stock in favor of the Business Combination Agreement and the Business Combination, including
the Merger, and to waive all of their right in respect of the Preferred Stock Issuance (other than with respect to any shares underlying
the Convertible Notes). The foregoing description of the Stockholder Support 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 10.2, and the terms of which are incorporated herein by reference.
Registration Rights and Lock-up Agreements
Concurrently with the execution and delivery of the Business Combination
Agreement, Tailwind and the Holders (as defined below) have entered into an Amended and Restated Registration Rights and Lock-Up Agreement
(the “Registration Rights and Lock-Up Agreement”), which amends and restates in its entirety the Registration and
Stockholder Rights Agreement between Tailwind and the Sponsor, dated September 9, 2020 (previously filed with the SEC on September
9, 2020 as Exhibit 10.3 to Tailwind’s Current Report on Form 8-K). Pursuant to the terms of the Registration Rights and Lock-Up
Agreement, Tailwind will be obligated to file a registration statement to register the resale of certain shares of New SPAC Common Stock
held by the Holders. Further, pursuant to the terms of the Registration Rights and Lock-Up Agreement and subject to certain requirements
and customary conditions, including with regard to the number of demand rights that may be exercised, the Holders (as defined in the
Registration Rights and Lock-Up Agreement) holding at least a majority in interest of the then-outstanding number of Registrable Securities
(as such term is defined in the Registration Rights and Lock-Up Agreement) held by all New Holders, may demand at any time or from time
to time, that the Post-Combination Company file a registration statement on Form S-1 or Form S-3 to register certain shares of New SPAC
Common Stock held by such Holders. The Registration Rights and Lock-Up Agreement will also provide the Holders with “piggy-back”
registration rights, subject to certain requirements and customary conditions. “Holders of Company Warrants party to the Registration
Rights and Lock-Up Agreement will also have registration rights other than “piggy-back” registration rights.
In addition, subject to certain exceptions, each Holder shall not Transfer
any Restricted Securities (each as defined in the Registration Rights and Lock-Up Agreement) beneficially owned or owned of record by
such Holder until the end of the Lock-up Period applicable to such Holder. “Lock-up Period” shall mean:
(a) For the Nuburu Holders and the Persons designated as
“Anzu Holders” on Schedule A of the Registration Rights and Lock-Up Agreement (the “Anzu Holders”), the
period beginning on the Closing Date and ending on the earliest of: (i) the date that is 180 days from the Closing Date, (ii) if the VWAP
of the New SPAC Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations
and the like) for any 20 Trading Days within any 30-Trading Day period within 150 days after the Closing Date, the date that is 150 days
from the Closing Date, or (iii) such date on which the Post-Combination Company completes a liquidation, merger, stock exchange or other
similar transaction that results in all of the Post-Combination Company’s stockholders having the right to exchange their shares
of New SPAC Common Stock for cash, securities or other property; and
(b) for the Persons designated as “Founder Holders”
on Schedule A of the Registration Rights and Lock-Up Agreement (the “Founder Holders”), the period beginning on the
Closing Date and ending on the earliest of: (i) the date that is four (4) years from the Closing Date, (ii) (A) for 25% of the Restricted
Securities held by each Founder Holder and their respective Permitted Transferees, the date that is 180 days from the Closing Date or
if the VWAP of the New SPAC Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations,
recapitalizations and the like) for any 20 Trading Days within any 30-Trading Day period within 150 days after the Closing Date, the date
that is 150 days from the Closing Date, (B) for an additional 25% of the Restricted Securities held by each Founder Holder and their respective
Permitted Transferees, the date on which the Closing Price (as defined in the Registration Rights and Lock-Up Agreement) of the New SPAC
Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and
the like) for any 20 Trading Days within any 30-Trading Day period commencing at least one (1) year after the Closing Date, (C) for an
additional 25% of the Restricted Securities held by each Founder Holder and their respective Permitted Transferees, the date on which
the Closing Price of the New SPAC Common Stock equals or exceeds $15.00 per share (as adjusted for stock splits, stock dividends, reorganizations,
recapitalizations and the like) for any 20 Trading Days within any 30-Trading Day period commencing at least one (1) year after the Closing
Date, and (D) for the remaining 25% of the Restricted Securities held by each Founder Holder and their respective Permitted Transferees,
the date on which the Closing Price of the New SPAC Common Stock equals or exceeds $17.50 per share (as adjusted for stock splits, stock
dividends, reorganizations, recapitalizations and the like) for any 20 Trading Days within any 30-Trading Day period commencing at least
one (1) year after the Closing Date; or (iii) such date on which the Post-Combination Company completes a liquidation, merger, stock exchange
or other similar transaction that results in all of the Post-Combination Company’s stockholders having the right to exchange their
shares of New SPAC Common Stock for cash, securities or other property; provided, that, for the avoidance of doubt, the Lock-up Period
for any Restricted Securities for which the Lock-up Period has not ended on the fourth-year anniversary of the Closing Date shall end
on the fourth-year anniversary of the Closing Date.
Notwithstanding the foregoing, (i) a Holder may Transfer any shares
of Converted Common Stock (as such term is defined in the Registration Rights and Lock-Up Agreement) beneficially owned or owned of record
by such Holder at any time if the sale price of the Converted Common Stock at which the Transfer occurs (x) exceeds the 10-day VWAP (as
defined in the Registration Rights and Lock-Up Agreement) per share of New SPAC Common Stock, and (y) exceeds $5.00 per share (as adjusted
for stock splits, stock dividends, reorganizations, recapitalizations and the like), and (ii) an Anzu Holder may Transfer any shares
of New SPAC Common Stock received by such Holder at the Effective Time as Aggregate Common Stock Merger Consideration that are beneficially
owned or owned of record by such Anzu Holder at any time if the sale price of the New SPAC Common Stock at which the Transfer occurs (x) exceeds
the 10-day VWAP (as defined in the Anzu Registration Rights and Lock-Up Agreement) per share of New SPAC Common Stock, and (y) exceeds
$5.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) (each such Transfer by
an Anzu Holder pursuant to the foregoing (ii), a “Permitted Transfer”).
Holders of Company Warrants party to the Registration Rights and Lock-Up
Agreement are not subject to a Lock-up Period.
The foregoing description of the Registration Rights and Lock-Up Agreement
and the transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the actual
Registration Rights and Lock-Up Agreement, a copy of which is filed with this report as Exhibit 10.3 hereto, and the terms of which are
incorporated herein by reference.
Preferred Stock Sale Option Agreement
Concurrently with the execution and delivery of the Registration Rights
and Lock-Up Agreement, Tailwind and the Anzu Holders have entered into a Preferred Stock Sale Option Agreement (the “Sale Option
Agreement”). Pursuant to the terms of the Sale Option Agreement, in the event an Anzu Holder Transfers any shares of New SPAC
Common Stock beneficially owned or owned of record by such holder prior to the expiration of the Lock-up Period applicable to such Anzu
Holder in a Permitted Transfer, such Holder must notify the Post-Combination Company of the Permitted Transfer, whereupon, the Post-Combination
Company has the right, but not the obligation, to cause such Holder to use up to 2/3 of the gross proceeds of the Permitted Transfer to
purchase New SPAC Series A Preferred Stock from the Post-Combination Company at a price equal to $10.00 per share (as adjusted for stock
splits, stock dividends, reorganizations, recapitalizations and the like).
The foregoing description of the Sale Option Agreement and the transactions
contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the actual Sale Option Agreement,
a copy of which is filed with this report as Exhibit 10.4 hereto, and the terms of which are incorporated herein by reference.
Committed Funding; Purchase Agreement and Registration Rights
Agreement
In connection with the execution of the Business Combination Agreement,
Tailwind, Nuburu and Lincoln Park Capital Fund, LLC (“Lincoln Park”) have concurrently entered into a Purchase Agreement
dated August 5, 2022 (the “Purchase Agreement”) to establish a committed funding agreement. In conjunction with
the entry into the Purchase Agreement, Tailwind, Nuburu and Lincoln Park have also entered into a Registration Rights Agreement dated
August 5, 2022 (the “Registration Rights Agreement”).
Pursuant to the terms of the Purchase Agreement, following consummation
of the Merger and upon satisfaction of the conditions set forth in the Purchase Agreement, including the effectiveness of a registration
statement covering the resale of any shares of New SPAC Common Stock issued to Lincoln Park under the Purchase Agreement, the Post-Combination
Company has the right, but not the obligation, to direct Lincoln Park to purchase certain amounts of New SPAC Common Stock up to an aggregate
of $100 million over the term of the agreement as follows: by delivering a notice (the “Regular Purchase Notice”) to
purchase up to three hundred fifty thousand dollars ($350,000) of New SPAC Common Stock (the “Regular Purchase Share Limit”),
at the lower of (a) the lowest trading price of the New SPAC Common Stock on the Principal Market (as defined in the Purchase Agreement)
on the date of purchase and (b) the arithmetic average of the three (3) lowest closing sales prices of the New SPAC Common Stock
on the Principal Market during the 10 business days ending on the business day immediately preceding the date of purchase; provided,
however, that (i) the Regular Purchase Share Limit shall be increased to up to five hundred thousand ($500,000) of New SPAC Common
Stock if the closing price of the New SPAC Common Stock on the Principal Market is not below $5.00 on the date of purchase (as appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction),
(ii) the Regular Purchase Share Limit shall be increased to up to seven hundred fifty thousand dollars ($750,000) of New SPAC Common
Stock if the closing price of the New SPAC Common Stock on the Principal Market is not below $10.00 on the date of purchase (as appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction),
and (iii) the Regular Purchase Share Limit shall be increased to up to one million dollars ($1,000,000) of New SPAC Common Stock
if the closing price of the New SPAC Common Stock on the Principal Market is not below $12.50 on the date of purchase. The Post-Combination
Company may direct Lincoln Park to make such purchases as often as every business day so long as (x) the closing price of the New
SPAC Common Stock is not less than $1.00 (as adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse
stock split or other similar transaction, in which case the price shall mean the lower of such price and $1.00), and (y) the Post-Combination
Company has not failed to deliver freely tradeable shares of New SPAC Common Stock for all other purchases under the Purchase Agreement.
Any such purchase made as described in this paragraph shall be referred to as a “Regular Purchase.”
In addition to Regular Purchases, following consummation of the Merger
and upon satisfaction of the conditions set forth in the Purchase Agreement including the effectiveness of a registration statement covering
the resale of any shares of New SPAC Common Stock, on the same business day as a Regular Purchase Notice is delivered to Lincoln Park,
the Post-Combination Company has the right, but not the obligation, to direct Lincoln Park to purchase additional shares of New SPAC Common
Stock (an “Accelerated Purchase”) in an amount equal to the Accelerated Purchase Share Amount (as hereinafter defined)
at a price equal to ninety-five percent (95%) of the lower of (i) the volume weighted-average price (“VWAP”) for
the period beginning at 9:30:01 a.m., Eastern time, on the applicable date of purchase, or such other time publicly announced by the Principal
Market as the official open of trading on such market on such date, and ending at the earlier of (A) 4:00 p.m., Eastern time, on
such date, (B) such time, from and after the time requested for such purchase, that the total number (or volume) of shares of New
SPAC Common Stock traded on the Principal Market has exceeded that number of shares of New SPAC Common Stock equal to the applicable
Accelerated Purchase Share Amount (as hereinafter defined), divided by 20%, and (C) such time that the sale price on the Principal
Market on such date has fallen below any minimum per share price threshold set forth in the applicable notice from the Post-Combination
Company, and (ii) the closing sale price of the New SPAC Common Stock on such date of purchase. The “Accelerated Purchase
Share Amount” means the number of shares of New SPAC Common Stock not exceeding the lesser of (a) 300% of the number of
shares of New SPAC Common Stock directed by the Post-Combination Company to be purchased by Lincoln Park pursuant to the corresponding
Regular Purchase Notice for the corresponding Regular Purchase, and (b) an amount equal to (x) 20% multiplied by (y) the
total number of shares of New SPAC Common Stock traded on the Principal Market during the period on the applicable purchase date beginning
at the time on the date of such purchase that trading of such shares commences and ending at the time at which the sale price for such
shares of New SPAC Common Stock has fallen below any minimum share price threshold set forth in the purchase notice provided by the Post-Combination
Company.
In addition to Regular Purchases and Accelerated Purchases, following
consummation of the Merger and upon satisfaction of the conditions set forth in the Purchase Agreement including the effectiveness of
a registration statement covering the resale of any shares of New SPAC Common Stock, the Post-Combination Company shall also have the
right, but not the obligation, to direct Lincoln Park to purchase additional shares of New SPAC Common Stock (an “Additional
Accelerated Purchase”) in an amount equal to the Additional Accelerated Purchase Share Amount (as hereinafter defined) at a
price equal to ninety-five percent (95%) of the lower of (i) the VWAP for the period on the applicable date of purchase beginning
(the “Additional Accelerated Purchase Commencement Time”) at the latest of (A) the time at which the sale price
for any corresponding Accelerated Purchase has fallen below any minimum share price threshold set forth in the purchase notice provided
by the Post-Combination Company for such Acceleration Purchase, (B) the applicable Additional Accelerated Purchase Termination Time
with respect to the most recently completed prior Additional Accelerated Purchase on such date, as applicable, and (C) the time at
which all shares of New SPAC Common Stock subject to any prior Accelerated Purchases and Additional Accelerated Purchases (including those
effected on the same business day) have been received by Lincoln Park and are freely tradeable, and ending (the “Additional Accelerated
Purchase Termination Time”) on the earliest of (X) 4:00 p.m. Eastern time on such date or such other time publicly announced
by the Principal Market as the official close of trading on such date, (Y) such time that the total number (or volume) of shares
of New SPAC Common Stock traded on the Principal Market has exceeded the number of shares of New SPAC Common Stock equal to the amount
of shares to be purchased pursuant to the applicable request by the Post-Combination Company hereunder divided by 20%, and (Z) such
time that the sale price for the New SPAC Common Stock on the Principal Market has fallen below any minimum share price threshold set
forth in the applicable purchase notice provided by the Post-Combination Company. The “Additional Accelerated Purchase Share
Amount” means the number of shares of New SPAC Common Stock directed by the Post-Combination Company to be purchased by Lincoln
Park under this paragraph which shall not exceed the lesser of (1) 300% of the number of shares of New SPAC Common Stock directed by the
Post-Combination Company to be purchased by Lincoln Park as a Regular Purchase on such date, and (2) an amount equal to 20% multiplied
by the total number of shares of New SPAC Common Stock traded on the Principal Market during the period on such date beginning at the
Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase and ending at the Additional Accelerated Purchase
Termination Time for such Additional Accelerated Purchase.
Notwithstanding anything to the contrary in the Purchase Agreement,
Lincoln Park shall not be required to purchase or acquire any shares of New SPAC Common Stock under the Purchase Agreement which would,
when aggregated with all other shares of New SPAC Common Stock beneficially owned by Lincoln Park and its affiliates, result in the beneficial
ownership by Lincoln Park and its affiliates of more than 9.99% of the then issued and outstanding shares of New SPAC Common Stock.
In consideration for entering into the Purchase Agreement, the Post-Combination
Company is required to issue to Lincoln Park, on the date of the Closing, 200,000 shares of New SPAC Common Stock at $10.00 per share,
and on the date that is 30 days after the Closing, a number of shares equal to Two Million Dollars ($2,000,000) divided by the lesser
of (x) $10.00 per share or (y) the average closing price of the New SPAC Common Stock for the ten (10) consecutive business days prior
to the date that is 30 days after the closing of the Merger, provided that if such average closing price is below $5.00 per share, then
the average closing price shall be deemed to be $5.00 per share.
Pursuant to the terms of the Registration Rights Agreement, within
30 days of the Closing, the Post-Combination Company shall file with the SEC a new registration statement covering the resale of
any shares of New SPAC Common Stock purchased or otherwise acquired by Lincoln Park under the terms of the Purchase Agreement.
The proceeds received by the Post-Combination Company from
Lincoln Park under the Purchase Agreement may be used for any corporate purpose at the sole discretion of the Post-Combination
Company. The Post-Combination Company is further prohibited for a period of 48 months from effecting or entering into an agreement
to effect any issuance by the Post-Combination Company or any of its subsidiaries of New SPAC Common Stock involving an
“equity line of credit” or substantially similar transaction whereby an investor is irrevocably bound to purchase
securities over a period of time from the Post-Combination Company at a price based on the market price of the New SPAC Common Stock
at the time of purchase. The Purchase Agreement shall automatically terminate on earlier of (i) the date that the
Post-Combination Company sells shares of New SPAC Common Stock to Lincoln Park in an aggregate amount of $100,000,000, (ii) the
date that the Business Combination Agreement is terminated, (iii) the Outside Date if the Merger is not consummated and (iv)
the date that is 48 months from the Commencement Date (as defined in the Purchase Agreement). The Purchase Agreement may also be
terminated in certain circumstances, including in connection with a bankruptcy filing by the Post-Combination Company, for a period
of 20 days following signing by Lincoln Park based on its due diligence review (a “Lincoln
Park Diligence Termination”), or at any time after the Closing by the Post-Combination Company.
The foregoing description of the Purchase Agreement, the Registration
Rights Agreement and the transactions contemplated in each thereby is not complete and is subject to, and qualified in its entirety by
reference to, the actual Purchase Agreement and Registration Rights Agreement, copies of which are filed with this report as Exhibits
10.5 and 10.6 hereto, respectively, and the terms of each of which are incorporated herein by reference.
Amendment to Letter Agreement.
Tailwind, on the one hand, and the Sponsor and Tailwind’s officers
and directors (the “Insiders”), on the other hand, are parties to that certain Letter Agreement, dated as of September
3, 2020 (incorporated by reference to Exhibit 10.4 to Tailwind Acquisition Corp.’s Current Report on Form 8-K, filed with the SEC on September 9, 2020). Concurrently with the Closing, Tailwind and the Insiders will enter into an Amendment to the Letter Agreement,
which will amend and restate in its entirety the lock-up restrictions thereunder, to provide that the Insiders shall not transfer any
Founder Shares (as defined therein) (A) if the completion of an initial Business Combination occurs prior to March 30, 2023, until the
earliest of (i) nine (9) months following the completion of an initial Business Combination and (ii) September 30, 2023 and (B) if the
completion of an initial Business Combination occurs on or after March 30, 2023, six (6) months following the completion of an initial
Business Combination.
The foregoing description of the Amendment to the Letter Agreement
does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the document, which is attached
as Exhibit D to the Business Combination Agreement, and is hereby incorporated herein by reference.