SECOND AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Exhibit 10.2
EXECUTION VERSION
SECOND AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Second Amendment (this “Amendment”), dated as of January 31, 2023, by and among Nuburu, Inc., a Delaware corporation f/k/a Tailwind Acquisition Corp. (the “Company”), and the other signatories hereto (together with the Company, the “Parties”), is to that certain Amended and Restated Registration Rights and Lock-Up Agreement, dated as of August 5, 2022 (as amended by the Amendment to Amended and Restated Registration Rights and Lock-Up Agreement dated November 28, 2022, the “Registration Rights Agreement”), by and among the Company and the Holders (as defined therein). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Registration Rights Agreement.
RECITALS
WHEREAS, Section 8.12 of the Registration Rights Agreement provides that the Registration Rights Agreement may be amended following the Effective Time only by an agreement in writing signed by the Company and the Holders holding at least a majority in interest of the then-outstanding number of Registrable Securities held by all Holders (provided the Holders or their Permitted Transferees hold Registrable Securities at the time of such amendment) (the “Requisite Threshold”);
WHEREAS, the undersigned constitute the Requisite Threshold; and
WHEREAS, each of the Parties desires to amend, and does hereby amend, the Registration Rights Agreement to add Nautilus Master Fund, L.P. as a Party to the Registration Rights Agreement, and to make such other amendments as are set forth in this Amendment to be effective as of immediately following the Effective Time.
NOW, THEREFORE, in consideration of the foregoing recitals, the agreements set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
| 1. | Timing of Effectiveness of Amendment. This Amendment is subject to and conditioned upon the occurrence of the Effective Time and the transfer by the Original Holder or its affiliates to Nautilus Master Fund, L.P. at or immediately following the Effective Time of 150,000 shares of common stock, par value $0.0001 per share, of Tailwind, and shall be effective only as of immediately following the Effective Time and such transfer. |
| 2. | Amendments to the Registration Rights Agreement. |
(a) The defined term “Lock-up Period” in Section 1.1 of the Registration Rights Agreement is hereby amended by adding a new subsection as follows:
“(c) For the Periscope Holder, the period beginning on the Closing Date and ending on the earliest of:
(i) September 30, 2023, or
(ii) such date on which the Company completes a liquidation, merger, stock exchange or other similar transaction that results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property.”
(b) The defined term “New Holders” in Section 1.1 of the Registration Rights Agreement is hereby amended and restated in its entirety to read as follows:
““New Holders” shall mean (i) the Anzu Holders, (ii) the Founder Holders, (iii) the Nuburu Holders, (iv) with respect to the definition of “Registrable Security”, “Registrable Securities” and Section 2.1, Section 2.3.1 through 2.3.4, Section 3.2, Section 3.3, Article IV, Article VI and Article VIII only, the Convertible Note Holders and the Warrantholders, and (v) with respect to the definition of “Registrable Security”, “Registrable Securities” and Section 2.1, Section 2.3.1 through 2.3.4, Section 3.2 through Section 3.6, Article IV, Article V, Article VI and Article VIII only, the Periscope Holder.””
(c) Section 1.1 of the Registration Rights Agreement is hereby amended by adding the following definition:
“Periscope Holder” shall mean Nautilus Master Fund, L.P..
(d) The defined term “Restricted Securities” in Section 1.1 of the Registration Rights Agreement is hereby amended and restated in its entirety to read as follows:
““Restricted Securities” shall mean with respect to a Holder and its respective Permitted Transferees:
(A) any Common Stock to be issued to such Holder at the Effective Time as merger consideration pursuant to the Business Combination Agreement (including any Common Stock to be issued to such Holder as a result of any exercise of any Nuburu options prior to the Effective Time);
(B) any Common Stock to be issued to such Holder pursuant to the settlement or exercise of any Exchanged Option or Exchanged RSU held by such Holder at or immediately following the Effective Time;
(C) any Common Stock to be issued to such Holder pursuant to any SPAC Warrant held by such Holder at or immediately following the Effective Time;
(D) any Common Stock to be issued to such Holder as a result of any conversion of any New SPAC Series A Preferred that was acquired by such Holder pursuant to the Company’s exercise of the Option (as such term is defined in the Sale Option Agreement); and
(E) any Common Stock transferred by the Original Holder or its affiliates to the Periscope Holder at or immediately following the Effective Time.
Notwithstanding the foregoing, any Common Stock to be issued pursuant to a Convertible Note or issued pursuant to the exercise or deemed exercise of any Company Warrant shall not be “Restricted Securities.””
| 3. | References to the Registration Rights Agreement. After giving effect to this Amendment, unless the context otherwise requires, each reference in the Registration Rights Agreement to “this Agreement,” “hereof,” “hereunder,” “herein,” or words of like import referring to the Registration Rights Agreement shall refer to the Registration Rights Agreement as amended by this Amendment. Except as specifically set forth above, the Registration Rights Agreement shall remain unaltered and in full force and effect and the respective terms, conditions or covenants thereof are hereby in all respects ratified and confirmed. Upon the execution and delivery of this Amendment by the parties hereto, (a) this Amendment shall become effective as of immediately following the Effective Time, and (b) this Amendment shall be incorporated in, and become a part of, the Registration Rights Agreement as set forth herein for all purposes of the Registration Rights Agreement. |
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| 4. | Other Miscellaneous Provisions. Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.12, 8.13 and 8.15 of the Registration Rights Agreement shall apply to this Amendment as if set forth herein, mutatis mutandis. |
[Signatures Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first written above.
| COMPANY: | ||
| NUBURU, INC. | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Chief Executive Officer | |
| ORIGINAL HOLDER: | ||
| TAILWIND SPONSOR LLC | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: | Manager | |
[Signature Page to Second Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
| FOUNDER HOLDERS: |
| /s/ Xxxx Xxxxxxx |
| XXXX XXXXXXX |
| /s/ Xxxx-Xxxxxx Xxxxxxxx |
| XXXX-XXXXXX XXXXXXXX |
|
|
| XXX XXXXXXXXX |
|
|
| XXXX XXXXX |
[Signature Page to Second Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
| NUBURU HOLDERS: | ||
| BLUE LASER LLC | ||
| By: | /s/ Xxxxxx Xxxx | |
| Print Name: | Xxxxxx Xxxx | |
| Title: | Manager | |
| GRAPHA-HOLDINGS AG | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Print Name: | Xxxxxxx Xxxxxxx | |
| Title: | CEO | |
| THE XXXXXX X. XXXXXX REVOCABLE TRUST U/A/D MARCH 13, 2015 | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Print Name: | Xxxxxx Xxxxxx | |
| Title: | Trustee | |
| XXXXXX-XXXXXXX 2020 FAMILY TRUST UAD 9/20/20 | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Print Name: | Xxxx Xxxxxxx | |
| Title: | Trustee | |
| W-G INVESTMENTS LLC | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Print Name: | Xxxxxx Xxxxxx | |
| Title: | Manager | |
| XXXXX XXXXXXXXX | ||
| /s/ Xxxxx Xxxxxxxxx | ||
| XXXXX XXXXXX | ||
| /s/ Xxxxx Xxxxxx | ||
| XXX XXXXX | ||
| /s/ Xxx Xxxxx | ||
[Signature Page to Second Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
| ANZU HOLDERS:
ANZU PARTNERS LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Print Name: | Xxxxx Xxxxxx | |
| Title: | Manager | |
| ANZU NUBURU LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Print Name: | Xxxxx Xxxxxx | |
| Title: | Manager | |
| ANZU NUBURU II LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Print Name: | Xxxxx Xxxxxx | |
| Title: | Manager | |
| ANZU NUBURU III LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Print Name: | Xxxxx Xxxxxx | |
| Title: | Manager | |
| ANZU NUBURU V LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Print Name: | Xxxxx Xxxxxx | |
| Title: | Manager | |
| XXXXXXX XXXXXX-XXXXX | ||
| /s/ Xxxxxxx Xxxxxx-Xxxxx | ||
| XXXXX XXXXXXX | ||
| /s/ Xxxxx Xxxxxxx | ||
| XXXXX XXXXXX | ||
| /s/ Xxxxx Xxxxxx | ||
[Signature Page to Second Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
| PERISCOPE HOLDER:
NAUTILUS MASTER FUND, L.P., by its investment advisor Periscope Capital INC. | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Print Name: | Xxxx Xxxxxxxx | |
| Title: | General Counsel | |
[Signature Page to Second Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
