Item 1.01 Entry Into a Material Definitive Agreement
On June 12, 2023, Nuburu, Inc. (the “Company”) entered into a Note and Warrant Purchase Agreement (the “Purchase Agreement”) primarily with certain existing investors (each, an “Investor”) for the sale of (i) convertible promissory notes (“Convertible Notes”) in the aggregate principal amount of $7.925 million, and (ii) warrants (“Warrants”) to purchase up to 11,518,895 shares of the Company’s common stock (“Common Stock”), par value $0.0001 per share (the sale of the Convertible Notes and the Warrants together, the “Private Placement”). Pursuant to the Purchase Agreement, (i) Convertible Notes in the aggregate principal amount of $2.0 million and Warrants exercisable for up to 2,906,977 shares of Common Stock were issued to Wilson-Garling 2023 Family Trust, of which Jill Garling is the trustee and which is affiliated with Thomas Wilson, a former member of Nuburu Subsidiary, Inc.'s board of directors, on June 13, 2023, and (ii) Convertible Notes in the aggregate principal amount of $5.925 million and Warrants exercisable for up to 8,887,500 shares of Common Stock will be issued on or about June 23, 2023, of which (a) Convertible Notes in the aggregate principal amount of $3.0 million and Warrants exercisable for up to 4,360,465 shares of Common Stock will be issued to Wilson-Garling 2023 Family Trust, (b) Convertible Notes in the aggregate principal amount of $1.0 million and Warrants exercisable for up to 1,453,388 shares of Common Stock will be issued to Eunomia, LP, of which Ron Nicol, a member of the Company’s board of directors, is the manager, (c) Convertible Notes in the aggregate principal amount of $1.0 million and Warrants exercisable for up to 1,453,388 shares of Common Stock will be issued to David Seldin, managing member of Anzu Partners LLC and a former member of Nuburu Subsidiary Inc.'s board of directors, and (d) Convertible Notes in the aggregate principal amount of $100,000 and Warrants exercisable for up to 145,349 shares of Common Stock will be issued to Curtis N Maas Revocable Trust, an affiliate of Curtis Maas, a former member of Nuburu Subsidiary, Inc.'s board of directors. The Company intends to use the net proceeds (after deducting offering expenses) for general corporate purposes.
The Convertible Notes are senior, unsecured obligations of the Company and bear interest at the rate of seven percent per year and are payable on the earlier of June 23, 2026 or the occurrence of an Event of Default, as defined in the Convertible Notes. The Convertible Notes may be converted at any time following June 23, 2023 prior to the payment in full of the principal amount of the Convertible Notes at the Investor’s option. In the event of the Sale of the Company (as defined in the Convertible Notes), the outstanding principal amount of each Convertible Note, plus all accrued and unpaid interest not otherwise converted into equity securities pursuant to the terms of the Convertible Notes, shall (i) if the Investor so elects, be converted into equity securities pursuant to the terms of the Convertible Notes (the “Conversion Shares”) at a price equal to $0.688 (subject to appropriate adjustment from time to time for any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event) (the “Conversion Price”), or (ii) be due and payable immediately prior to the closing of such Sale of the Company, together with a premium equal to 150% of the principal amount to be prepaid. Subsequent to the effectiveness of a registration statement registering the Registrable Securities (as defined below), the Company may elect to pay interest in kind through the issuance of shares of Common Stock at the Conversion Price, in lieu of payments in cash (the “Interest Shares”).
The Warrants issued by the Company to the Investors pursuant to the Purchase Agreement entitle the relevant Investor to purchase that number of fully paid and nonassessable shares of Common Stock (the “Warrant Shares”) determined by dividing the principal amount of each Convertible Note by the Conversion Price. The Warrants have an exercise price equal to $1.03 and expire on June 23, 2028.
On June 12, 2023, the Company and the Investors also entered into a Registration Rights and Lock-Up Agreement (the “Registration Rights Agreement”), pursuant to which the Company agreed, following February 6, 2024 (the “Filing Deadline”), to use its commercially reasonable efforts to file a registration statement with the Securities and Exchange Commission for the resale of the Conversion Shares, the Warrant Shares and the Interest Shares (the “Registrable Securities”). Following the Filing Deadline, the Investors also are entitled to demand registration rights. Pursuant to the Registration Rights Agreement, the Investors agree that except for limited exceptions as provided therein, no Notes, Warrants, Conversion Shares, Warrant Shares or Interest Shares may be transferred until the earliest of the date that is one year from the anniversary of the date of the Registration Rights Agreement or the date on which the Company completes a liquidation, merger, stock exchange or other similar transaction wherein all the Company’s stockholders have the right to exchange their shares of Common Stock for cash, securities, or other property.
The Purchase Agreement contains customary representations, warranties and covenants in connection with the transaction. The representations, warranties and covenants in the Purchase Agreement are not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Purchase Agreement were made only for purposes of such agreement and as of the date thereof, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
According to the NYSE American LLC Company Guide, consummating the Private Placement would ordinarily require the approval of the Company’s stockholders. However, the Company has sought and received from NYSE American LLC an exception from obtaining such stockholder approval pursuant to Section 710(b) of the Company Guide. A special committee of the Company’s Board of Directors, comprised solely of independent, disinterested directors, has expressly approved the Company’s reliance on this exception, and the transaction was also unanimously approved by the Company’s Board of Directors.
The foregoing is only a brief description of the material terms of the Purchase Agreement, the Convertible Notes, the Warrants and the Registration Rights Agreement, does not purport to be a complete description of the rights and obligations of the parties thereunder, and is qualified in its entirety by reference to the forms of the Convertible Note and the Warrant and the Purchase Agreement and Registration Rights Agreement filed as exhibits hereto. Interested parties are encouraged to read in their entirety the forms of the Convertible Note and the Warrant and the Purchase Agreement and Registration Rights Agreement, as they each contain important information not discussed in this report.