FOURTH AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
Exhibit 10.1
Execution Version
FOURTH AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Fourth Amendment to Amended and Restated Registration Rights and Lock-Up Agreement (this “Amendment”), dated as of March 10, 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 22, 2022, the Second Amendment to Amended and Restated Registration Rights and Lock-Up Agreement dated January 31, 2023, and the Third Amendment to Amended and Restated Registration Rights and Lock-Up Agreement dated January 31, 2023, 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 make such amendments as are set forth in this Amendment.
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. | Amendments to the Registration Rights Agreement. Section 5.1.2 of the Registration Rights Agreement is hereby amended and restated in its entirety as follows: |
“5.1.2 Notwithstanding the foregoing subsection 5.1.1, (i) a Holder may Transfer any shares of Converted Common Stock 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 per share of Common Stock, and (y) exceeds $5.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like); (ii) an Anzu Holder may at any time Transfer any shares of 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 Holder if the sale price of the Common Stock at which the Transfer occurs exceeds the 10-day VWAP per share of Common Stock, (each such Transfer by an Anzu Holder pursuant to the foregoing (ii), a “Permitted Transfer”); and (iii) a CCM Holder may at any time Transfer any shares of Common Stock that are beneficially owned or owned of record by such Holder if the sale price of the Common Stock at which the Transfer occurs (x) equals or exceeds the VWAP per share of Common Stock for the previous Trading Day, and (y) exceeds $5.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like); provided, however, that any such Transfer(s) by the CCM Holder may not exceed more than 20% of the traded volume on the date of Transfer.”
| 2. | 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. (a) This Amendment shall become effective upon the execution and delivery of this Amendment by the Requisite Threshold, 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. |
| 3. | 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]
2
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first written above.
| COMPANY: | ||
| By: |
/s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | ||
| Title: Chief Executive Officer | ||
| ORIGINAL HOLDER: | ||
| TAILWIND SPONSOR LLC | ||
| By: |
||
| Name: Xxxxxx Xxxx | ||
| Title: Manager | ||
[Signature Page to Fourth 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 Fourth Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
| NUBURU HOLDERS: | ||
| BLUE LASER LLC | ||
| By: | ||
| Print Name: | Xxxxxx Xxxx | |
| Title: | Manager | |
| GRAPHA-HOLDINGS AG | ||
| By: | ||
| Print Name: | Xxxxxxx Xxxxxxx | |
| Title: | CEO | |
| THE XXXXXX X. XXXXXX REVOCABLE TRUST U/A/D MARCH 13, 2015 | ||
| By: | ||
| Print Name: | Xxxxxx Xxxxxx | |
| Title: | Trustee | |
| XXXXXX-XXXXXXX 2020 FAMILY TRUST UAD 9/20/20 | ||
| By: | ||
| Print Name: | Xxxx Xxxxxxx | |
| Title: | Trustee | |
| W-G INVESTMENTS LLC | ||
| By: | ||
| Print Name: | Xxxxxx Xxxxxx | |
| Title: | Manager | |
| XXXXX XXXXXXXXX |
| /s/ Xxxxx Xxxxxxxxx |
| XXXXX XXXXXX |
| /s/ Xxxxx Xxxxxx |
| XXX XXXXX |
| /s/ Xxx Xxxxx |
[Signature Page to Fourth 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 Fourth 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: | ||
| Print Name: | Xxxx Xxxxxxxx | |
| Title: | General Counsel | |
[Signature Page to Fourth Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
| CCM HOLDER: | ||
| XXXXX & COMPANY CAPITAL MARKETS | ||
| By: | ||
| Print Name: | Xxxxxxx Xxxxxxx | |
| Title: | Chief Operating Officer J.V.B. Financial Group, LLC | |
[Signature Page to Fourth Amendment to Amended and Restated Registration Rights and Lock-Up Agreement]
