Exhibit 10.17(a)
AMENDMENTTOSECONDAMENDEDANDRESTATED INVESTORS’ RIGHTS AGREEMENT
ThisAMENDMENTTOSECONDAMENDEDANDRESTATEDINVESTORS’ RIGHTSAGREEMENT(this“Amendment”)ismadeandenteredintoasofSeptember8,2023, by and among Nth Cycle, Inc., a Delaware corporation (the “Company”), and the undersigned Investors(asdefinedbelow).CapitalizedtermsusedinthisAmendmentbutnototherwisedefined herein shall have the meanings ascribed to such terms in the IRA (as defined below).
WHEREAS,theCompanyandtheindividualsandentitieslistedasInvestorson ScheduleAoftheIRA(each,an“Investors”andcollectively,the“Investors”)andtheindividualslistedas Key Holders on Schedule Bof the IRA (each, a “Key Holder” and collectively, the “Key Holders”) have entered into that certain Second Amended and Restated Investors’ Rights Agreement, dated as of April 5, 2023 (the “IRA”).
WHEREAS, the Company and the undersigned Investors, on behalf of all Investors and Key Holders, wish to amend the IRA to lower the Major Investor threshold;
WHEREAS,pursuanttoSection6.6oftheIRA,anyprovisionoftheIRAmaybeamended with the written agreement of the Company and the holders of a (i) majority of the Registrable Securitiesthenoutstanding,(ii)majorityofthethen-outstandingsharesofSeriesAPreferredStock (votingasaseparateseries),and(iii)majorityofthethen-outstandingsharesofSeriesBPreferred Stock (voting as a separate series); and
WHEREAS, the undersigned Investors collectively hold the requisite majority to amend the IRA.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
1. Amendmentto theIRA.
a. Inthedefinitionof“MajorInvestor”inSection1,eachreferenceto“500,000” shall be deleted and replaced with “283,120”.
2. Effectiveness.ThisAmendmentshallbecomebindingwhenoneormore counterparts, individually or taken together, shall bear the signatures of the requisite parties toamend the IRA.
3. No Other Amendments.Except as expressly amended by this Amendment, all other terms and conditions of the IRA shall remain in full force and effect without modification.
4. Governing Law.This Amendment shall be governed by, and construed and enforcedin accordance with,thelaws of theStateofDelaware,withoutregardtoitsprinciplesof conflict of laws.
5. Successors and Assigns.Except as otherwise expressly provided herein, the provisions of this Amendment shall inure to the benefit of, and be binding upon the parties hereto and their respective successors, assigns, heirs, executors and administrators and shall inure to the benefit of and be enforceable by the Company and each person who shall be a holder of the Shares.
6. Counterparts; Facsimile Signatures.This Amendment may be executed in any numberofcounterparts,eachofwhichshallbedeemedanoriginal,butallofwhichtakentogether shallconstituteoneandthesameinstrument.ThisAmendmentmaybeexecutedanddeliveredby facsimile,orasanattachmenttoane-mail,anddeliveryofasignaturepagetothisAmendmentby such method shall be deemed to have the same effect as if the original signature page had been delivered.
[SignaturePages Follow]
INWITNESSWHEREOF,thepartieshaveexecutedthisAmendmenttoSecondAmended and Restated Investors’ Rights Agreement as of the date first written above.
| # COMPANY: | ||
| # | # | |
| ## | ## NTHCYCLE,INC. | |
| # | # | |
| By: | /s/ Megan O’Connor | |
| Name: | Megan O’Connor | |
| Title: | ChiefExecutiveOfficer |
INWITNESSWHEREOF,thepartieshaveexecutedthisAmendmenttoSecondAmended and Restated Investors’ Rights Agreement as of the date first written above.
| # INVESTOR: | ||
| # | # | |
| ## | ## MMCATALYSTFUNDLLC | |
| # | # | |
| By: | /s/ Andrew Dickey | |
| Name: | Andrew Dickey | |
| Title: | CEOandPresident |
INWITNESSWHEREOF,thepartieshaveexecutedthisAmendmenttoSecondAmended and Restated Investors’ Rights Agreement as of the date first written above.
| # INVESTOR: | ||
| # | # | |
| ## | ## DCTHOMSON&COMPANYLIMITED | |
| # | # | |
| By: | /s/ John Thomson | |
| Name: | John Thomson | |
| Title: | Director |
INWITNESSWHEREOF,thepartieshaveexecutedthisAmendmenttoSecondAmended and Restated Investors’ Rights Agreement as of the date first written above.
| # INVESTOR: | ||
| # | # | |
| ## | ## CLEANENERGYVENTUREFUNDI,L.P. | |
| # | # | |
| By: | /s/ Daniel Goldman | |
| Name: | Daniel Goldman | |
| Title: | ManagingPartner |
INWITNESSWHEREOF,thepartieshaveexecutedthisAmendmenttoSecondAmended and Restated Investors’ Rights Agreement as of the date first written above.
| # INVESTOR: | ||
| # | # | |
| ## | ## VOLOEARTHVENTURESIMPACT FUND I, LP | |
| # | # | |
| By: | /s/ Joseph Goodman | |
| Name: | Joseph Goodman | |
| Title: | President |
INWITNESSWHEREOF,thepartieshaveexecutedthisAmendmenttoSecondAmended and Restated Investors’ Rights Agreement as of the date first written above.
| # INVESTOR: | ||
| # | # | |
| ## | ## EQUINORVENTURESAS | |
| # | # | |
| By: | /s/ Mons Torp-Jakobsen | |
| Name: | Mons Torp-Jakobsen | |
| Title: | Director |