UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
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☐ | Definitive Proxy Statement |
☐ | Definitive Additional Materials |
☐ | Soliciting Material under §240.14a-12 |
NUBURU, INC.
(Name of Registrant as Specified In Its Charter)
Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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☐ | Fee paid previously with preliminary materials. |
☐ | Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11. |
TO COMPLETION
To the Stockholders of Nuburu, Inc.:
You are cordially invited to attend an annual meetingthe Special Meeting of Tailwind Acquisition Corp.Stockholders (the “Special Meeting”) of Nuburu, Inc., a Delaware corporation (“
The Board has fixed the close of business on January 8, 2024 (the “record date”) as the record date for determining the stockholders of the Company entitled to notice of, and to vote at, the Special Meeting or any adjournment or postponements thereof. Please see “
We will mail proxy statement describe the business Tailwind will conduct at the Stockholder Meeting and provide information about Tailwind that you should consider when you vote your shares. As more fully described in the accompanying proxy statement, which is dated , 2022, and is first being mailed to stockholdersmaterials on or about that date,January 26, 2024 to our stockholders of record as of the Stockholderclose of business on the record date. We are also providing access to our proxy materials over the Internet beginning on or about January 26, 2024.
The Special Meeting will be held forentirely online in a virtual meeting format only, with no physical in-person meeting, to allow greater participation. The Special Meeting can be accessed by visiting: [meeting URL]. We encourage you to attend online and participate in the purposeSpecial Meeting, where you will be able to listen to the meeting live, submit questions and vote online. To participate in the Special Meeting, you will need the 16-digit control number
included on your Notice of consideringInternet Availability of Proxy Materials (“Notice”) or the proxy card or the voting instructions that accompanied your proxy materials.
It is important that your shares be represented and votingvoted whether or not you plan to attend the virtual Special Meeting. You may vote on the following proposals:
”)Our Board has determined that the matters to extendbe considered at the date by which Tailwind has to consummate a business combination (the “Charter Extension”) from September 9, 2022 to March 9, 2023 (the “Charter Extension Date”) (the “Extension Amendment Proposal”). A copySpecial Meeting are in the best interests of the proposed amendment isCompany and its stockholders. For the reasons set forth in Annex Athe proxy statement, our board of directors unanimously recommends a vote “FOR” each matter to be considered.
By order of the Board,
Brian Knaley
Chief Executive Officer
Denver, Colorado
[Date]
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You are cordially invited to virtually attend the Special Meeting. Whether or not you expect to virtually attend the Special Meeting, PLEASE VOTE YOUR SHARES IN ADVANCE. You may vote your shares in advance of the Special Meeting via the internet, by telephone, or by mailing the completed proxy card. Voting instructions are printed on your proxy card. If you were a stockholder of record as of January 8, 2024, you may vote online during the Special Meeting. If, on January 8, 2024, your shares of our Common Stock were held, not in your name, but rather in an account at a brokerage firm, bank or other similar organization, you are also invited to attend the Special Meeting and may vote online during the Special Meeting. However, even if you plan to attend the Special Meeting, the Company recommends that you vote your shares in advance, so that your vote will be counted if you later decide not to attend the Special Meeting. IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON [DATE] Our proxy statement for the Special Meeting and proxy card are also available free of charge at [URL address]. |
Nuburu, Inc.
7442 S Tucson Way, Suite 130
Centennial, CO 80112
Special Meeting of Stockholders
PROXY STATEMENT
This proxy statement and the accompanying form of proxy are being furnished to the accompanying proxy statement;
The Special Meeting will be held entirely online to allow greater participation. Stockholders may participate in the Special Meeting by visiting the following website: [meeting URL]. To participate in the Special Meeting, you will need the 16-digit control number included on your proxy card or on the instructions that accompanied your proxy materials.
The cost of soliciting proxies will be borne by the Company. Following the mailing of this proxy statement, the Company may conduct further solicitations personally, telephonically or by facsimile through its officers, directors and employees, none of whom will receive additional compensation for assisting with any such solicitations. The Company does not intend to retain a proxy solicitor in connection with the Special Meeting. Brokerage houses, nominees, custodians and fiduciaries will be requested to forward soliciting material to beneficial owners of stock held of record by them, and the Company, upon request, will reimburse such persons for their reasonable out-of-pocket expenses in doing so.
Only holders of record of outstanding shares of the Stockholder Meeting, there are insufficient shares of Class ACompany’s common stock, par value $0.0001 per share, (“Common Stock”) at the close of business on January 8, 2024 (the “record date”), are entitled to notice of, and to vote at, the Special Meeting or any adjournment or postponements thereof. Each holder of Common Stock is entitled to one vote for each share of Common Stock held on the record date. There were 36,894,323 shares of Class B common stock, par value $0.0001 per share,Common Stock outstanding and entitled to vote on January 8, 2024. If you plan to attend the Special Meeting online, please see the instructions below.
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QUESTIONS AND ANSWERS ABOUT THE
PROXY MATERIALS AND OUR SPECIAL MEETING
How do I attend, participate in, and ask questions during the virtual Special Meeting?
The Company will be hosting the Special Meeting via live audio webcast only. All stockholders as of the record date may attend the Special Meeting live online at [meeting URL]. The Special Meeting will start at [time] [a.m. / p.m.], Mountain Time, on [date]. Stockholders attending the Special Meeting virtually will be afforded the same rights and opportunities to participate as they would at an in-person meeting.
In order to enter the Special Meeting, you will need the 16-digit control number, which is included on your proxy card if you are a stockholder of record, or included with your voting instruction card and voting instructions received from your broker, bank or other agent if you hold your shares in “street name.” Instructions on how to attend and participate online are available at [website link]. We recommend that you log in a few minutes before the scheduled start time to ensure you are logged in when the Special Meeting starts. The webcast will open [15] minutes before the start of the Special Meeting.
How can I get help if I have trouble checking in or listening to the Special Meeting online?
If you encounter difficulties accessing the Special Meeting during login or in the capitalcourse of Tailwindthe meeting, please call the technical support number that will be posted on the virtual meeting log-in page at [URL address].
Who is entitled to vote at the meeting?
Only our stockholders of record at the close of business on January 8, 2024, the record date for the meeting, are entitled to receive notice of and to participate in the Special Meeting. If you were a stockholder of record on that date, you will be entitled to vote all of the shares you held on that date at the meeting, or any postponement(s) or adjournment(s) of the meeting. As of the record date, there were 36,894,323 shares of Common Stock outstanding, all of which are entitled to be voted at the Special Meeting.
How do I vote?
You may vote “For” or “Against” the proposals, or “Abstain” from voting.
Please note that by casting your vote by proxy you are authorizing the individuals listed on the proxy to vote your shares in accordance with your instructions and in their discretion with respect to any other matter that properly comes before the Special Meeting or any adjournments or postponements thereof. The procedures for voting, depending on whether you are a stockholder of record or a beneficial owner, are as follows:
Stockholder of Record: Shares Registered in Your Name
If you are a stockholder of record, you may vote in any of the following manners:
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Even if you plan to participate in the Special Meeting online, we recommend that you also vote by proxy as described above so that your vote will be counted if you later decide not to participate in the Special Meeting. The Internet and telephone voting facilities for eligible stockholders of record will close at 11:59 p.m. Eastern Time on [date]. Even if you have submitted your vote before the Special Meeting, you may still attend the virtual Special Meeting and vote electronically. In such case, your previously submitted proxy will be disregarded.
Beneficial Owner: Shares Registered in the Name of a Broker or Bank
If you are a beneficial owner of shares registered in the name of your broker, bank or other agent, you should have received a voting instruction card and voting instructions with these proxy materials from that organization, rather than from us. Simply complete and mail the voting instruction card to ensure that your vote is counted or follow the instructions to submit your vote by the Internet or telephone, if those instructions provide for Internet and telephone voting. To vote at the virtual Annual Meeting, you must obtain a valid proxy from your broker, bank or other agent. Follow the instructions from your broker, bank or other agent, or contact your broker, bank or other agent to request a proxy form.
Can I revoke my proxy and change my vote?
Yes. You can revoke your proxy vote at any time before the final vote at the Special Meeting. If you are the record holder of your shares, you may revoke your proxy vote in any one of three ways:
If you are a beneficial owner, you will need to revoke or resubmit your proxy through your broker (or bank or other nominee) and in accordance with its procedures.
What is the effect of giving a proxy?
Proxies are solicited by and on behalf of our board of directors. Brian Knaley, our Chief Executive Officer, has been designated as the proxy holder for the Special Meeting by our board of directors. When proxies are properly dated, executed and returned, the shares represented (eitherby such proxies will be voted at the Annual Meeting in accordance with the instructions of the stockholder. If the proxy is dated and signed, but no specific instructions are given, however, the shares will be voted in accordance with the recommendations of our board of directors on the proposals as described above. If any other matters are properly brought before the Annual Meeting, then the proxy holder will use their own judgment to determine how to vote your shares. If the Annual Meeting is postponed or adjourned, then the proxy holder can vote your shares on the new meeting date, unless you have properly revoked your proxy, as described above.
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What is the purpose of the Special Meeting?
At the Special Meeting, stockholders will act upon the matters outlined in the notice of meeting on the cover page of this Proxy Statement, consisting of the (1) amendment to the Company’s Certificate of Incorporation to effect and authorize a reverse stock split of the Company’s issued and outstanding Common Stock; (2) issuance of up to $50 million of securities in one or more non-public offerings where the maximum discount at which securities may be offered may be equivalent to a discount of up to 30% below the market price of the Company’s common stock; and (3) any other matters that properly come before the meeting.
What constitutes a quorum?
A quorum of stockholders is necessary to hold a valid meeting. A quorum will be present if the holders of a majority in voting power of the shares of Common Stock issued and outstanding and entitled to vote are present by remote communication or represented by proxy at the Annual Meeting. On the Record Date, there were 36,894,323 shares of Common Stock outstanding and entitled to vote.
If you are a stockholder of record, your shares will be counted towards the quorum only if you submit a valid proxy vote or vote at the Special Meeting. Abstentions and broker non-votes will be counted towards the quorum requirement. If there is no quorum, either the Chair of the Special Meeting or a majority in voting power of the stockholders entitled to vote at the Special Meeting, present by remote communication or represented by proxy, may adjourn the Annual Meeting to another time or place.
What vote is required to approve each item?
Proposal One — Amendment to the Company’s Certificate of Incorporation to effect and authorize a reverse stock split of the Company’s issued and outstanding Common Stock, within a range from 1-for-30 to 1-for-75, with the exact ratio of the reverse stock split to be determined by the Board. The affirmative vote of a majority of the shares of Common Stock present at the meeting, in person or by proxy)proxy, and entitled to constitutevote is required to approve this proposal.
Proposal Two — Issuance of up to $50 million of securities in one or more non-public offerings where the maximum discount at which securities may be offered may be equivalent to a quorum necessarydiscount of up to conduct business30% below the market price of the Company’s common stock. The affirmative vote of a majority of the shares of Common Stock present at the Stockholder Meetingmeeting, in person or by proxy, and entitled to vote is required to approve this proposal.
Other Matters. For each other matter, including any adjournments, the affirmative vote of a majority of the shares of Common Stock present at the timemeeting, in person or by proxy, and entitled to vote is required for the approval of the Stockholder Meeting to approveproposal.
What are the Extension Amendment Proposal andrecommendations of the Auditor Ratification Proposal (the “
Each of the Extension Amendment Proposal,recommendations of the Auditor Ratification Proposal andBoard is set forth together with the Adjournment Proposal are more fully describeddescription of each item in the accompanyingthis proxy statement. Please takeIn summary, the timeBoard recommends a vote “FOR” Proposal One and Proposal Two. If you sign and return your proxy card but do not specify how you want your shares voted, the person named as the proxy holder on the proxy card will vote in accordance with the recommendations of the Board.
The Board does not know of any other matters that may be brought before the Special Meeting. In the event that any other matter should properly come before the Special Meeting, the proxy holder will vote as recommended by the Board or, if no recommendation is given, in accordance with their best judgment.
What are the effects of broker non-votes?
A broker “non-vote” generally occurs when a broker or other nominee holding shares for a beneficial owner does not vote on a proposal because the broker or other nominee has not received instructions as to read carefully eachsuch proposal from the beneficial owner and does not have discretionary powers as to such proposal. Broker non-votes will not effect voting on the proposals.
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If you are a beneficial owner and you do not give instructions to your broker, bank, or other holder of record, such holder of record will be entitled to vote the shares with respect to “routine” items but will not be permitted to vote the shares with respect to “non-routine” items. The Company believes that the proposals to be considered at the Special Meeting are non-routine matters under applicable rules. Accordingly, we believe your broker, bank, or other holder of record will not have discretion to vote your shares on the proposals, in which case, if you do not instruct your broker how to vote with respect to the accompanying proxy statement before you vote. The purposeReverse Stock Split Amendment, your broker may not vote with respect to such proposal. However, whether a proposal is “routine” or “non-routine” remains subject to the final determination of the Extension Amendment Proposal is to allow us additional time to complete our initial business combination (the “Business Combination”). You are not being askedNew York Stock Exchange, which regulates broker-dealers and their discretion to vote on stockholder proposals.
How are abstentions treated?
Abstentions will have the Business Combination ateffect of votes against the proposals.
Where can I find the voting results of the Annual Meeting?
We intend to disclose voting results on a Current Report on Form 8-K that we will file with the U.S. Securities and Exchange Commission (the “SEC”), within four business days after the meeting.
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PROPOSAL 1 – AMENDMENT TO THE COMPANY’S CERTIFICATE OF INCORPORATION AND
AUTHORIZATION OF THE BOARD TO EFFECT A REVERSE STOCK SPLIT
On January 12, 2024, the Board adopted a resolution approving, and recommending that the Company’s stockholders approve, this time.
Purposes and Effect of the Reverse Split Amendment
The Board”) has determined that it is in the best interests of Tailwind to seek an extension of the Termination Date and have
| | | | | | | Number of Additional shares of Public Stock Required To Approve Proposal | | |||||||||
| Proposal | | | Approval Standard | | | If Only Quorum is Present and All Present Shares Cast Votes | | | If All Shares Are Present and All Present Shares Cast Votes | | ||||||
| Extension Amendment Proposal | | | 65% of Issued and Outstanding Stock | | | N/A | | | | | 18,799,633 | | | |||
| Auditor Ratification Proposal | | | Majority of Voted Stock | | | | | 2,088,848 | | | | | | 12,533,089 | | |
| Adjournment Proposal | | | Majority of Voted Stock | | | | | 2,088,848 | | | | | | 12,533,089 | | |
The Reverse Stock Split is not completed on or before the Termination Date, then, as contemplated by and in accordance with the Certificate of Incorporation, Tailwind will (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Public Stock, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to Tailwind to pay its franchise and income taxes (less up to $100,000 of such interest to pay dissolution expenses), divided by the total number of the then-outstanding Public Stock, which redemption will completely extinguish public stockholders’ rights as stockholders (including the right to
(iii)
The Reverse Stock Split would decrease the total number of shares to be redeemed.
After the Reverse Stock Split is effected, if at all, we will continue to be subject to the periodic reporting requirements of the Exchange Act. By itself, the Reverse Stock Split will not have any impact on the market in which our Common Stock is traded; however, our Common Stock would be identified with a new CUSIP number following any Reverse Stock Split.
Certain Risks Associated with the Reverse Stock Split
The effect of the Reverse Stock Split upon the market price for our Common Stock cannot be accurately predicted, and the history of similar stock split combinations for companies in like circumstances is varied. In particular, while we expect that the Reverse Stock Split will result in an increase in the per share price of our Common Stock, there can be no assurance that the market price of our Common Stock immediately after the Reverse Stock Split will be maintained for any period of time. This will depend on many factors, including our performance, prospects and other factors that may be unrelated to the number of shares outstanding.
Even if an increased share price can be maintained, the Reverse Stock Split may not achieve the other desired results which have been outlined above. In particular, we cannot assure you that the Reverse Stock Split will increase
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our stock price and have the desired effect of maintaining compliance with the continued listing standards of the NYSE American or any other national securities exchange. Moreover, because some investors may view a reverse stock split negatively, there can be no assurance that the Reverse Split Amendment will not adversely impact the market price of our Common Stock or, alternatively, that the market price following the Reverse Stock Split will either exceed or remain in excess of the current market price.
In addition, although we believe the Reverse Stock Split may enhance the desirability of our Common Stock to certain potential investors, we cannot assure you that, if implemented, our Common Stock will be more attractive to institutional and other long-term investors or that the liquidity of our Common Stock will increase since there would be a reduced number of shares outstanding after the Reverse Stock Split.
Stockholders should recognize that if the Reverse Stock Split is effected, they will own a proportionally smaller number of shares than they currently own. Therefore, if the Reverse Stock Split is implemented, some stockholders may consequently own less than one hundred shares of our Common Stock. A Stock as they may receive higher proceeds from thepurchase or sale of less than one hundred shares (an “odd lot” transaction) may result in incrementally higher trading costs through certain brokers, particularly “full service” brokers. Therefore, those stockholders who own less than one hundred shares following the Reverse Stock Split may be required to pay modestly higher transaction costs should they then determine to sell their shares in the Company.
However, the Board has determined that these negative factors are outweighed by the potential benefits.
Mechanics of the Reverse Stock Split
No Fractional Shares
Stockholders will not receive fractional shares of Common Stock in connection with the public market than from exercising their redemption rights ifReverse Stock Split. Instead, stockholders who would have been entitled to a fractional share will receive such additional fraction of a share of Common Stock as is necessary to increase the market pricefractional share to which they were entitled to a full share.
Effect on Stock Options and Warrants
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The table below provides examples of a Reverse Stock Split at various ratios between 1-for-30 and 1-for-75:
Shares Outstanding | Reverse Stock Split Ratio | Shares Outstanding | Reduction in | ||||||||
36,894,323 | 1-for-30 | 1,229,811 | 35,664,512 | ||||||||
| 1-for-40 | 922,358 | 35,971,965 | ||||||||
| 1-for-50 | 737,886 | 36,156,437 | ||||||||
| 1-for-60 | 614,905 | 36,279,418 | ||||||||
| 1-for-70 | 527,062 | 36,367,261 | ||||||||
| 1-for-75 | 491,924 | 36,402,399 | ||||||||
The Reverse Stock Split will affect all holders of the Company’s Common Stock uniformly and will not change the proportionate equity interests of such stockholders, nor will the respective voting rights and other rights of holders of the Company’s Common Stock be altered, except for possible changes due to the treatment of fractional shares resulting from the Reverse Stock Split.
The Reverse Stock Split will not affect total stockholders’ equity on the Company’s balance sheet. As a result of the Reverse Stock Split, the stated capital component attributable to the Company’s Common Stock will be reduced to an amount equal to one-30 to one-75 of its present amount, in accordance with the range selected by the Board, and the additional paid-in capital component will be increased by the amount by which the Common Stock is reduced. Amounts for earnings (loss) per share of Common Stock will be restated for the effects of the Reverse Stock Split and will be higher than the redemption price. Tailwind cannot assure its stockholders that theypreviously disclosed amounts because there will be able to sell their Class Afewer shares of the Common Stock inoutstanding.
Authorized Shares of Common Stock
Because the open market, even if the market price per share is higher than the redemption price stated above, as there maynumber of authorized shares of Common Stock will not be sufficient liquidityreduced proportionately, the Reverse Stock Split will increase the ability of the Board to issue authorized and unissued shares without further stockholder action. We currently do not have any plans, arrangements or understandings to issue any of the authorized but unissued shares that would become available as a result of the Reverse Stock Split. However, as we have previously disclosed in itsour filings with the SEC, the development of our business will require substantial additional capital, and continued operations depend on our ability to raise additional funding, which could occur through fundraising transactions that involve issuance of shares of Common Stock or securities when itsconvertible into or exercisable for Common Stock; depending on several factors including the number of shares that are issued or issuable in any such transaction, such shares could include authorized but unissued shares that would become available as a result of the Reverse Stock Split.
Appraisal Rights
Under Delaware General Corporation Law, stockholders wish to sell their shares.
Interest of Certain Persons in Matters to be Acted Upon
No officer or electronically) to Tailwind’s transfer agent two business days priordirector has any interest that differs from our stockholders with regard to the vote at the Stockholder Meeting.
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Certain U.S. Federal Income Tax Consequences of the issued and outstanding CommonReverse Stock voting as a single class. Abstentions will be considered present for the purposes of establishing a quorum but will not constitute votes cast at the Stockholder Meeting and therefore will have the same effect as a vote “AGAINST” the Extension Amendment Proposal.
The following is a summary of fees paid or to be paid to Withum for services rendered:
We have not sought, and will not seek, an opinion of counsel or a ruling from the Internal Revenue Service (“IRS”) regarding the United States federal income tax consequences described herein. Furthermore, this discussion does not address any aspect of U.S. federal non-income tax laws, such as gift, estate or Medicare net investment income tax laws, or state, local or non-U.S. laws. Tailwind has not sought,the Reverse Stock Split and Tailwind does not intend to seek, a ruling from the U.S. Internal Revenue Service (“
The Extension
The Company believes that the Reverse Stock Split should constitute a recapitalization pursuant to Section 368(a)(1)(E) of the Public Stock redeemed under Section 302Code.
Subject to the discussion below addressing the receipt by certain shareholders of the Code or is treated as a distribution under Section 301 of the Code. If the redemption qualifies asRound-Up Fractional Share, a sale of such Redeeming U.S. Holder’s shares, such Redeeming U.S. Holder will generally be required tostockholder should not recognize gain or loss in an amount equal to the difference, if any, between the amount of cash received and the tax basis of the shares redeemed. Such gain or loss should be treated as capital gain or loss if such shares were held as a capital asset on the date of the redemption. Any such capital gain or loss generally will be long-term capital gain or loss if the Redeeming U.S. Holder’s holding period for such shares exceeds one year at the time of the redemption. A Redeeming U.S. Holder’s tax basis in such Redeeming U.S. Holder’s shares generally will equal the cost of such shares.
The federal income tax principles. Iftreatment to stockholders who receive a Round-Up Fractional Share is unclear. The IRS may take the redemption is treated asposition that the receipt of an additional portion of a corporateshare results in a distribution, treated as dividend, such dividends paid to a Redeeming U.S. Holder that is a taxable corporation generally will qualify for the dividends received deduction if the requisite holding period is satisfied. With certain exceptions (including, but not limited to, dividends treated as investment income for purposes of investment interest deduction limitations), and provided certain holding period requirements are met, dividends paid to a non-corporate Redeeming U.S. Holder generally will constitute “qualified dividends” that will be subject to tax at the maximum tax rate accorded to long-term capital gains. It is unclear whether the redemption rights with respect to the Public Stock describedit results in this proxy statement may prevent a U.S. Holder from satisfying the applicable holding period requirements with respect to the dividends received deduction or the preferential tax rate on qualified dividend income, as the case may be.
The Company should not recognize any gain or loss as a result of the Reverse Stock Split.
The above discussion is included for general information purposes onlysolely written in connection with the proposed Reverse Stock Split and is not intended or written to be used, and should notcannot be construed as, legal or tax advice toused by any Stockholder. We once again urge you to consult with your tax adviser to determine the particular tax consequences to you (including the application and effect of any U.S. federal, state, local or foreign income or other tax laws) of the receipt of cash in exchange for shares in connection with the Extension Amendment Proposal and any redemption of your Public Stock.
THE BOARD RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THE APPROVAL OF THE
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REVERSE SPLIT AMENDMENT TO THE CERTIFICATE OF INCORPORATION AND
AUTHORIZATION OF THE BOARD TO EFFECT A REVERSE STOCK SPLIT.
PROPOSAL 2 – Issuance of up to $50 million of securities in one or more businesses,non-public offerings where the maximum discount at which we refersecurities may be offered may be equivalent to throughout this Report as our initial business combination. We are an early stage and emerging growth companya discount of up to 30% below the market price of the Company’s common stock
Our Common Stock is currently listed on the NYSE American and, as such, we are subject to allNYSE American rules, which require us to obtain stockholder approval prior to the issuance of our Common Stock in connection with certain non-public offerings involving the sale, issuance or potential issuance by the Company of Common Stock (or securities convertible into or exercisable for Common Stock) equal to 20% or more of the risk associatedCommon Stock outstanding before the issuance. Shares of our Common Stock issuable upon the exercise or conversion of warrants, options, debt instruments or other equity securities issued or granted in such non-public offerings will be considered shares issued in such a transaction in determining whether the 20% limit has been reached, except in certain circumstances.
We may seek to raise additional capital to implement our business strategy and enhance our overall capitalization. We have not determined the particular terms for such prospective offerings. Because we may seek additional capital that may require stockholder approval under NYSE American rules, we are seeking stockholder approval now, so that we will be able to move quickly to take full advantage of any opportunities that may develop.
We are asking our stockholders to approve the potential issuance of shares of our Common Stock, or securities convertible into our Common Stock, in one or more non-public capital-raising transactions (including without limitation private placements or issuances in connection with early stageequity lines of credit), subject to the following limitations:
● the total aggregate consideration will not exceed $50 million;
● the maximum discount at which securities will be offered (which may consist of a share of Common Stock and emerging growth companies.
● such offerings will occur, if at all, on or before the date that is six months following the date that Proposal 2 is approved by stockholders; and
● such other terms as our Board of Directors shall deem to be in the best interests of the Company and its stockholders, not inconsistent with the foregoing.
The issuance of shares of our Common Stock, or other securities convertible into shares of our Common Stock, in accordance with any offerings would dilute, and thereby reduce, each existing stockholder’s proportionate ownership in our Common Stock. Existing stockholders do not have preemptive rights to subscribe to additional shares that may be issued by the Company in order to maintain their proportionate ownership of the Common Stock.
The issuance of shares of Common Stock in one or more non-public offerings could have an anti-takeover effect. Such issuance could dilute the voting power of a person seeking control of the Company, thereby deterring or rendering more difficult a merger, tender offer, proxy contest or an extraordinary corporate transaction opposed by the Company.
Our Board of Directors has not yet determined the terms and conditions of any offerings. As a result, the level of potential dilution cannot be determined at this time, but as discussed above, we may not issue more than $50 million worth of shares of Common Stock in the aggregate pursuant to the authority requested from stockholders under this proposal. It is possible that if we conduct a non-public stock offering, some of the shares we sell could be purchased by one or more investors who could acquire a large block of our Common Stock. This would concentrate voting power in the hands of a few stockholders who could exercise greater influence on our operations or the outcome of matters put to a vote of stockholders in the future.
We cannot determine what the actual net proceeds of $334,215,700, which includes the partial exerciseofferings would be until such offerings are completed, but as discussed above, the aggregate dollar amount of the underwriter’s option to purchase an additional 3,421,570 Units at the initial public offering price to cover over-allotments. The securities in the offering were registered under the Securities Act of 1933, as amended, on a registration statement on Form S-1 (No. 333-248113). The SEC declared the registration statement effective on September 3, 2020. Simultaneously with the closing of our initial public offering, we consummated the sale of 9,700,000 Private Placement Warrants to the Sponsor at a price of $1.00 per Private Placement Warrant, generating gross proceeds of $9,700,000.
We expect the net proceeds of any offerings will be used for working capital, general corporate purposes and repayment of up to $10 million of existing debt. We currently have no arrangements or understandings regarding any specific transaction with investors, so we cannot predict whether we will be successful should we seek to raise capital through any offerings.
THE BOARD RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THE APPROVAL OF THE
Issuance of up to $50 million of securities in one or more non-public offerings where the salemaximum discount at which securities may be offered may be equivalent to a discount of up to 30% below the market price of the Units in our initial public offering and the sale of the Private Placement Warrants were placed in a Trust Account, and invested in U.S. government securities, within the meaning set forth in the Investment Company Act, with a maturity of 185 days or less, or in any open-ended investment company that holds itself out as a money market fund investing solely in U.S. Treasuries and meeting certain conditions under Rule 2a-7 of the Investment Company Act. Tailwind currently intends, prior to the Stockholder Meeting, to instruct Continental, the trustee managing the Trust Account, to hold all funds in the Trust Account in cash until the earlier of consummation of a Business Combination and liquidation of Tailwind.
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SECURITY OWNERSHIP OF SECURITIESCERTAIN BENEFICIAL OWNERS AND
MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
The following table sets forth information known to the Company regarding the beneficial ownership of Tailwind’sthe Common Stock as of June 30, 2022, based on information obtained from the persons named below, with respect to the beneficial ownership of shares of Tailwind’s Common Stock,January 8, 2024 (the "Ownership Date"), by:
Beneficial ownership is determined according toin accordance with the rules of the SEC whichand generally provide that a person has beneficial ownership of a security if such person possesses sole or sharedincludes voting or investment power over that security, includingwith respect to securities. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all shares beneficially owned, subject to community property laws where applicable. Shares of our Common Stock subject to common stock warrants, options and warrants that are currently exercisable or exercisable within sixty days.
Percentage ownership of our Common Stock in the table below is based on 36,894,323 shares of our Common Stock issued and outstanding on January 8, 2024. Unless noted otherwise, the address of each of the individuals and entities named below is c/o Nuburu, Inc., 7442 S Tucson Way, Suite 130, Centennial, CO 80112.
Name of Beneficial Owner | Number of Outstanding Common Shares Beneficially Owned | Number of Common Shares Exercisable Within 60 Days | Number of Common Shares Beneficially Owned | Percentage of Beneficial Ownership | ||||||||||||
Greater than 5% Stockholders: | ||||||||||||||||
Anzu Investors(1) | 11,527,783 |
| 11,527,783 | 31.2 | % | |||||||||||
Wilson-Garling 2020 Family Trust uad 9/20/20(2) | 10,956,210 |
| 10,956,210 | 29.7 |
% | |||||||||||
Dr. Mark Zediker (3) | 4,313,356 | 749,209 | 5,062,565 | 13.7 | % | |||||||||||
Named Executive Officers and Directors: | ||||||||||||||||
Brian Knaley(4) |
| 239,746 | 239,746 | * | ||||||||||||
Brian Faircloth(5) | 160,680 | 32,212 | 192,892 | * | ||||||||||||
Ron Nicol(6) | 1,729,867 | 1,063,471 | 2,793,338 | 7.6 | % | |||||||||||
Daniel Hirsch(7) | 9,375 | 101,042 | 110,417 | * | ||||||||||||
Lily Yan Hughes(8) | 9,375 | 135,937 | 145,312 | * | ||||||||||||
Kristi Hummel(9) | 9,375 | 142,292 | 151,667 | * | ||||||||||||
Elizabeth Mora(10) | 9,375 | 69,687 | 79,062 | * | ||||||||||||
John Bolton(11) |
| 94,167 | 94,167 | * | ||||||||||||
Common Shares all directors and executive officers own as a group (8 persons) | 1,928,047 | 1,878,554 | 3,806,601 | 10.3 | % | |||||||||||
* Represents beneficial ownership of less than one percent of our outstanding shares of Common Stock.
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(1) Includes (i) 2,114,451 shares of Common Stock beneficially ownedheld by them.
| | | | Class A Common Stock | | | Class B Common Stock | | | Approximate Percentage of Outstanding Ordinary Shares | | |||||||||||||||||||||
Name of Beneficial Owner(1) | | | Number of Shares Beneficially Owned | | | Approximate Percentage of Class | | | Number of Shares Beneficially Owned | | | Approximate Percentage of Class | | ||||||||||||||||||
| Five Percent Holders | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Polar Asset Management Partners Inc.(2) | | | | | 2,324,396 | | | | | | 7.0% | | | | | | — | | | | | | — | | | | | | 5.6% | | |
Magnetar Financial LLC(3) | | | | | 1,937,916 | | | | | | 5.8% | | | | | | — | | | | | | — | | | | | | 4.6% | | |
683 Capital Management, LLC(4) | | | | | 3,000,000 | | | | | | 9.0% | | | | | | — | | | | | | — | | | | | | 7.2% | | |
Tailwind Sponsor LLC(5) | | | | | — | | | | | | — | | | | | | 8,355,393 | | | | | | 100.0% | | | | | | 20.0% | | |
| Directors and Officers of Tailwind | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Philip Krim(5) | | | | | — | | | | | | — | | | | | | 8,355,393 | | | | | | 100.0% | | | | | | 20.0% | | |
Chris Hollod(6) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Matt Eby(6) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Alan Sheriff(6) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Wisdom Lu(6) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Boris Revsin(6) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Will Quist(6) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| All directors and officers as a group (seven individuals) | | | | | | | | | | | | | | | | | 8,355,393 | | | | | | 100% | | | | | | 20.0% | | |
(2) Includes (i) 3,311,410 shares of Common Stock held by Wilson-Garling 2020 Family Trust uad 9/20/20, of which Jill Garling is the trustee, (ii) 7,267,442 shares of Common Stock issuable to the Wilson Garling 2023 Family Trust, of which Ms. Garling is also the trustee, upon conversion of the Convertible Notes issued pursuant to the Purchase Agreement, and (iii) 377,358 shares of Common Stock held by W-G Investments LLC, of which Ms. Garling is a member and of which her spouse, Thomas Wilson, is the sole manager.
(3) Includes (i) 4,308,203 shares of Common Stock held by Dr. Zediker, (ii) 749,209 shares of Common Stock that may be a beneficial owner thereof.acquired within 60 days of the Ownership Date pursuant to stock options held by Dr. Zediker, and (iii) 5,153 shares of Common Stock held by Dr. Zediker’s spouse.
(4) Represents 239,746 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to stock options held by Mr. Krim disclaimsKnaley.
(5) Includes (i) 160,680 shares of Common Stock held by Mr. Faircloth and (ii) 32,212 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to restricted stock units held by Mr. Faircloth.
(6) Includes (i) 121,308 shares of Common Stock held by Eunomia, LP, of which Mr. Nicol is the manager, (ii) 1,453,488 shares of Common Stock issuable to Eunomia, LP upon conversion of the Convertible Notes issued pursuant to the Purchase Agreement, (iii) 155,071 shares of Common Stock held by Mr. Nicol, and (iv) 1,060,346 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to stock options held by Mr. Nicol, and (v) 3,125 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to restricted stock units held by Mr. Nicol.
(7) Includes (i) 9,375 shares of Common Stock held by Mr. Hirsch, (ii) 97,917 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to stock options held by Mr. Hirsch, and (iii) 3,125 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to restricted stock units held by Mr. Hirsch.
(8) Includes (i) 9,375 shares of Common Stock held by Ms. Hughes, (ii) 132,812 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to stock options held by Ms. Hughes, and (iii) 3,125 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to restricted stock units held by Ms. Hughes.
(9) Includes (i) 9,375 shares of Common Stock held by Ms. Hummel, (ii) 139,167 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to stock options held by Ms. Hummel, and (iii) 3,125
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shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to restricted stock units held by Ms. Hummel.
(10) Includes (i) 9,375 shares of Common Stock held by Ms. Mora, (ii) 66,562 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to stock options held by Ms. Mora, and (iii) 3,125 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to restricted stock units held by Ms. Mora.
(11) Represents 94,167 shares of Common Stock that may be acquired within 60 days of the Ownership Date pursuant to stock options held by Mr. Bolton.
Percentage ownership of our Series A preferred stock ("Preferred Stock") in the table below is based on 2,388,905 shares of our Preferred Stock issued and outstanding on January 8, 2024. Unless noted otherwise, the address of each of the individuals and entities named below is c/o Nuburu, Inc., 7442 S Tucson Way, Suite 130, Centennial, CO 80112.
Name of Beneficial Owner | Number of Outstanding Series A Preferred Shares Beneficially Owned | Number of Series A Preferred Shares Exercisable Within 60 Days | Number of Series A Preferred Shares Beneficially Owned | Percentage of Beneficial Ownership | ||||||||||||
Greater than 5% Stockholders: | ||||||||||||||||
Anzu Investors(1) | 1,081,361 |
| 1,081,361 | 45.3 | % | |||||||||||
Wilson-Garling 2020 Family Trust uad 9/20/20(2) | 121,205 |
| 121,205 | 5.1 | % | |||||||||||
Dr. Mark Zediker | ||||||||||||||||
Named Executive Officers and Directors: | ||||||||||||||||
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Ron Nicol(3) | 121,308 |
| 121,308 | 5.1 | % | |||||||||||
Daniel Hirsch |
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Series A Preferred Shares all directors and executive officers own as a group (8 persons) | 121,308 |
| 121,308 | 5.1 | % | |||||||||||
* Represents beneficial ownership of these securities exceptless than one percent of our outstanding shares of Preferred Stock.
(1) Includes (i) 97,409 shares of Preferred Stock held by Anzu Nuburu LLC, (ii) 44,767 shares of Preferred Stock held by Anzu Nuburu II LLC, (iii) 36,937 shares of Preferred Stock held by Anzu Nuburu III LLC, (iv) 244,414 shares of Preferred Stock held by Anzu Nuburu V LLC, (v) 500,000 shares of Preferred Stock held by Anzu Partners LLC, (vi) 121,411 shares of Preferred Stock held by David Seldin, (vii) 24,282 shares of Preferred Stock held by CST Global LLC and (viii) 12,141 shares of Preferred Stock held by Whitney Haring-Smith. The foregoing Anzu Investors have entered into the 10b5-1 Sales Plan authorizing Tigress to sell all of the extentshares of Common Stock received by the Anzu Investors at the Closing of the Business Combination during the period specified in such plan, subject to certain price and volume parameters, and therefore may be deemed a “group” as that term is used in Section 13(d)(3) of the Exchange Act. Mr. Seldin, a Managing Partner of Anzu Partners LLC, and Debrah C. Herman, Chief Financial Officer of Anzu Partners LLC, each serve as the managers of each of the Anzu SPVs and share voting and investment power with respect thereto. The principal office of each of the Anzu Investors is 12610 Race Track Road, Suite 250, Tampa Florida 33626.
(2) Includes 121,205 shares of Preferred Stock held by W-G Investments LLC, of which Ms. Garling is a member and of which her spouse, Thomas Wilson, is the sole manager.
(3) Includes 121,308 shares of Preferred Stock held by Eunomia, LP, of which Mr. Nicol is the manager.
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ADDITIONAL INFORMATION
Stockholder Proposals
The Company intends to hold a regular annual meeting in 2024 regardless of the outcome of the matters to be submitted at the Special Meeting.
If a stockholder would like us to consider including a proposal in our proxy statement for our 2024 annual meeting pursuant to Rule 14a‑8 of the Exchange Act, then the proposal should have been received by our corporate secretary at our principal executive offices on or before December 23, 2023. In addition, stockholder proposals must comply with the requirements of Rule 14a‑8 regarding the inclusion of stockholder proposals in company‑sponsored proxy materials. Proposals should be addressed to:
Nuburu, Inc.
Attention: Corporate Secretary
7442 S Tucson Way, Suite 130,
Centennial, CO 80112
Our amended and restated bylaws also establish an advance notice procedure for stockholders who wish to present a proposal or nominate a director at an annual meeting, but do not seek to include the proposal or director nominee in our proxy statement. In order to be properly brought before our 2024 annual meeting, the stockholder must provide timely written notice to our corporate secretary, at our principal executive offices, and any such proposal or nomination must constitute a proper matter for stockholder action. The written notice must contain the information specified in our amended and restated bylaws. To be timely, a stockholder’s written notice must be received by our corporate secretary at our principal executive offices:
If a stockholder who has notified us of his, pecuniary interest therein.
Householding of Proxy Materials
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements or notices of internet availability of proxy materials with respect to two or more stockholders sharing the same address by delivering a single proxy statement or notice of internet availability of proxy materials addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for stockholders and cost savings for companies.
Brokers with account holders who are Nuburu stockholders may be “householding” our proxy materials. A single proxy statement or notice of internet availability of proxy materials may be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker that it will be held no later than December 31, 2023. If the Extension Amendment Proposal is not approved and an initial business combination is not consummated, there“householding” communications to your address, “householding” will be no further annual meetings of Tailwind. You should direct any proposals to Tailwind’s Chief Financial Officer at Tailwind Acquisition Corp., 1545 Courtney Ave, Los Angeles, CA 90046. Ifcontinue until you are notified otherwise or until you notify your broker or the Company that you no longer wish to participate in “householding.”
If, at any time, you no longer wish to participate in “householding” and would prefer to receive a stockholder and you want to present a matter of business to be consideredseparate proxy statement or nominate a director to be elected at the next annual meeting, under Tailwind’s bylaws you must give timely notice of internet availability of proxy materials, you may (1) notify your broker or (2) direct your written request to: Investor Relations, Nuburu, Inc., 7442 S Tucson Way, Suite 130, Centennial, CO 80112. Stockholders who currently receive multiple copies of the matterproxy statement or notice of internet availability of proxy materials at their address and would like to request “householding” of their communications should contact their broker. In addition, the nomination, in writing,Company will promptly deliver, upon written or oral request to the Tailwind’s Chief Financial Officer not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary dateaddress or telephone number above, a separate copy of the immediately preceding annual meetingproxy statement or notice of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 70 days after such anniversary date, notice by theinternet availability of proxy materials promptly to any stockholder at a shared address to be timely must be so delivered not earlier than the opening of business on the 120th day before the meeting and not later than the later of (i) the close of business on the 90th day before the meeting or (ii) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by Tailwind.
Other Matters
The Company knows of no other matters to be submitted at the Special Meeting. If any other matters properly come before the Special Meeting, the enclosed proxy statementcard confers discretionary authority on the persons named in the enclosed proxy card to any household at which two or more stockholders reside if Tailwind believesvote as they deem appropriate on such matters. It is the stockholders are membersintention of the same family. This process, known as “householding,” reducespersons named in the volume of duplicate information received at any one household and helpsenclosed proxy card to reduce Tailwind’s expenses. However, if stockholders prefer to receive multiple sets of Tailwind’s disclosure documents at the same address this year or in future years, the stockholders should follow the instructions described below. Similarly, if an address is shared with another stockholder and together both of the stockholders would like to receive only a single set of Tailwind’s disclosure documents, the stockholders should follow these instructions:
EXHIBIT A
The name of the Corporation is “
C. Reverse Stock Split. Upon the filing and restated to read in full as follows:
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