Exhibit
10.26


 


EXECUTION
COPY


 


AMENDED
AND RESTATED CONTINGENT RIGHTS AGREEMENT


 


This
AMENDED AND RESTATED CONTINGENT RIGHTS AGREEMENT (this “Agreement”), dated October 29, 2021 (the “Effective
Date”), is entered into by and between Harmattan Energy Ltd., a British Columbia corporation, formerly known
as Soluna Technologies, Ltd. (“HEL”), and Mechanical Technology, Incorporated, a New York corporation
(the “MKTY”). HEL and MKTY are sometimes referred to herein, individually, as a “party”
and, collectively, as the “parties”.


 


R
E C I T A L S:


 


WHEREAS,
prior to the execution of this Agreement, HEL and MKTY entered into a certain Contingent Rights Agreement dated January 13, 2020
that granted MKTY specific investment and subscription rights in both Soluna and certain wind power generation and data processing
projects that were contemplated to be developed by HEL and its Affiliates (the “Original Contingent Rights Agreement”);


 


WHEREAS,
around or about the execution of this Agreement, HEL and its shareholders consummated a reorganization pursuant to which a new,
distinct legal entity incorporated in Delaware was created and empowered to carry on a business previously being established by
HEL of developing modular datacenter operations based in the United States connected with electric power generation sources, and
HEL continues to develop windfarm generation project(s) globally, and notably including a project in Morocco (the “Soluna
Reorganization”); and


 


WHEREAS,
in connection with the Soluna Reorganization, MKTY and HEL agreed to terminate the Original Contingent Rights Agreement and to
replace it with this Agreement.


 


NOW,
THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, including Ten and 00/100
United States Dollars ($10.00), cash-in-hand paid, and intending hereby to be legally bound, HEL and MKTY hereby agree and stipulate
as follows:


 


ARTICLE
I 


DEFINITIONS;
INTERPRETATION


 


1.1         Definitions. As used in this Agreement, the following terms have the respective meanings set forth below or set forth in
the Sections referred to below.


 


“Affiliate”
means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common
control with, such Person. For the purposes of this Agreement, “control,” when used with respect to any specified
Person, means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether
through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; and the terms “controlling”
and “controlled” shall have correlative meanings.


 






    


     

    

 


“Agreement”
has the meaning set forth in the Preamble.


 


“Applicable
Law” means, as to any Person, any federal, state, municipal and local law, statute, ordinance, regulation, order, directive,
policy and decision rendered by any Governmental Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject or pertaining to any or all of the transactions contemplated
or referred to herein, including, in the case of MKTY, any requirements of the Securities Act, the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder which shall be in effect from time to time.


 


“Business
Day” means a day other than a Saturday, a Sunday or a day that is a nationally recognized holiday in the United States.


 


“Development
Equity Preemptive Notice” has the meaning set forth in Section 2.2(a).


 


“Development
Equity Purchase Price” has the meaning set forth in Section 2.2(a).


 


“Effective
Date” means the date set forth in the Preamble.


 


“Governmental
Authority” means the government of any nation, state, city, locality or other political subdivision thereof, and any
entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.


 


“MKTY”
has the meaning set forth in the Preamble.


 


“Original
Contingent Rights Agreement” has the meaning set forth in the Recitals.


 


“party”
or “parties” has the meaning set forth in the Preamble.


 


“Person”
means any individual, joint venture, general partnership, limited partnership, limited liability company, corporation, trust,
business trust, cooperative, association or other incorporated or unincorporated entity, and the heirs, executors, administrators,
legal representatives, successors and assigns of that person where the context so admits.


 


“Phase
I of the Project” means the development of the initial 100 MW of energy capacity and accompanying data center(s) associated
with the Project (i.e., 0 MW – 100 MW of the Project).


 


“Phase
I Project Financing” means a bona fide project financing supporting Phase I of the Project.


 


“Phase
I–III Project Financing” means a bona fide project financing supporting Phase I of the Project, Phase II of the
Project or Phase III of the Project.


 






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“Phase
I–III Project Financing Equity” means any capital stock, membership interest, units or other similar securities
of any type whatsoever (other than debt securities not convertible into equity securities) of a Project SPV, whether authorized
now or in the future, and any rights, options or warrants to purchase any such capital stock, membership interest, units or other
securities of a Project SPV, including Stock Equivalents and any such rights that may become convertible into or exchangeable
or exercisable for any such capital stock, membership interest, units or other securities of a Project SPV, to the extent the
foregoing are issued to fund the equity portion of a Phase I–III Project Financing, including, without limitation, any equity
co-investment or similar right that accompanies the debt financing associated with a project financing of a Project SPV, that
is not allocated to the single lead investor or debt financing providers in respect of the applicable Phase I–III Project
Financing.


 


“Phase
II of the Project” means the development of the next successive 200 MW of energy capacity and accompanying data center(s)
associated with the Project, following Phase I of the Project (i.e., 100 MW – 300 MW of the Project) .


 


“Phase
II Project Financing” means a bona fide project financing supporting Phase II of the Project.


 


“Phase
II–III Development Equity” means any capital stock, membership interest, units or other similar securities of
any type whatsoever (other than debt securities not convertible into equity securities) of a Project SPV, whether authorized now
or in the future, and any rights, options or warrants to purchase any such capital stock, membership interest, units or other
securities of a Project SPV, including Stock Equivalents and any such rights that may become convertible into or exchangeable
or exercisable for any such capital stock, membership interest, units or other securities of a Project SPV, to the extent the
foregoing are issued for the purposes of raising pre-construction capital needed for Project-specific development and planning
activities (e.g., feasibility studies, due diligence, permitting), other than equity funding of the developer of the
Project, with respect to Phase II of the Project or Phase III of the Project prior to the Phase II Project Financing or Phase
III Project Financing, as applicable; for further certainty, it is understood and agreed that the Phase II-III Development Equity
is not intended to provide participation to the investor in any development fee, profit participation “promote” or
similar amount payable to the developer of the Project.


 


“Phase
III of the Project” means the development of the next successive 300 MW of energy capacity and accompanying data center(s)
associated with the Project following Phase II of the Project (i.e., 300 MW – 600 MW of the Project).


 


“Phase
III Project Financing” means a bona fide project financing supporting Phase III of the Project.


 


“Project”
means a wind power generation project and the related data processing center(s), each as sponsored by HEL or its Affiliates, including
all equipment, improvements and assets associated therewith, currently contemplated to be sited on land with respect to which
HEL has acquired development rights located in the city of Dakhla, region of Oued-Ed-Dahab, Kingdom of Morocco.


 






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“Project
Finance Equity Purchase Price” has the meaning set forth in Section 2.1(a).


 


“Project
Financing Preemptive Notice” has the meaning set forth in Section 2.1(a).


 


“Project
SPV” means a Subsidiary of HEL formed or acquired for the purpose of owning, financing and/or constructing any portion
of the Project; for further certainty, it is understood and agreed that any entity that acts as the “developer” of
the Project and is intended to be the recipient of any development fee, profit participation “promote” or similar
amount payable to the developer of the Project shall not be a Project SPV for the purposes of this Agreement.


 


“Public
Offering” means any underwritten public offering pursuant to a registration statement filed in accordance with
the Securities Act.


 


“Qualified
Public Offering” means the sale, in a firm commitment underwritten Public Offering led by a nationally recognized
underwriting firm pursuant to an effective registration statement under the Securities Act, of common stock of HEL having an aggregate
offering value (net of underwriters’ discounts and selling commissions) of at least Fifty Million and 00/100 United States
Dollars ($50,000,000.00).


 


“Securities
Act” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations
thereunder, which shall be in effect at the time.


 


“HEL”
has the meaning set forth in the Preamble.


 


“Soluna
Reorganization” has the meaning set forth in the Recitals.


 


“Stock
Equivalents” means any security or obligation that is by its terms, directly or indirectly, convertible into or
exchangeable or exercisable for or with a value derived in whole or part from applicable capital stock, membership interest, units
or other securities, and any option, warrant or other right to subscribe for, purchase or acquire the foregoing.


 


“Subsidiary” means,
with respect to any Person, any other Person of which a majority of the outstanding shares or other equity interests having the
power to vote for directors or comparable managers are owned, directly or indirectly, by the first Person.


 






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1.2         Interpretation. Unless the context requires otherwise: (a) the gender (or lack of gender) of all words used in this Agreement
includes the masculine, feminine and neuter; (b) references to “Articles” and “Sections” refer to
articles and sections of this Agreement; (c) unless expressly set forth to the contrary, references to “Exhibits”
refer to the exhibits attached to this Agreement, each of which is made a part hereof for all purposes; (d) references to
laws or agreements refer to such laws or agreements as they may be amended from time to time, and references to particular provisions
of a law include any corresponding provisions of any succeeding law; (e) the terms defined herein include the plural as well
as the singular and vice versa; and (f) references to money refer to legal currency of the United States of America.


 






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ARTICLE
II 


PRE-EMPTIVE
RIGHT ON EQUITY ISSUANCES


 


2.1         Pre-emptive
Right of Subscription for Phase I–III Project Financing Equity.
In the event that, at any time, a Project SPV shall decide to undertake an issuance of Phase I–III Project Financing Equity,
HEL shall, or shall cause such Project SPV to, confer in good faith with MKTY to discuss (x) the nature and structure of the applicable
project financing to which the Phase I–III Project Financing Equity relates and (y) the division of relative value, asset
break-out and project financing pricing in such Phase I–III Project Financing Equity as between wind power generation and
data processing components. HEL shall, absent MKTY written consent to the contrary, establish two (2) separate Project SPVs to
conduct the financing of the wind power generation and data processing components, respectively, of the phase of the Project to
which the financing relates. Promptly following the conclusion of such discussions, HEL shall deliver to MKTY written notice of
the applicable Project SPVs’ decision to undertake an issuance of Phase I–III Project Financing Equity. Such written
notice shall describe (i) the amount, type and terms of such Phase I–III Project Financing Equity, (ii) the purchase price
per security for such Phase I–III Project Financing Equity (the “Project Finance Equity Purchase Price”)
to be paid by the purchasers of such Phase I–III Project Financing Equity, (iii) the identity of any single lead investor
in the applicable Phase I–III Project Financing, and (iv) all other material terms upon which the Project SPVs’ have
decided to issue the Phase I–III Project Financing Equity including the expected timing of such issuance, which shall in
no event be less than thirty (30) days after the date upon which such notice is given (the “Project Financing Preemptive
Notice”). MKTY shall have ten (10) Business Days from the date on which the Project Financing Preemptive Notice is given
to agree (in MKTY’s sole and absolute discretion), by written notice to HEL, that MKTY and/or its Affiliates shall purchase
(A) up to fifty percent (50%) of such Phase I–III Project Financing Equity related to the wind power generation components
of the Project and/or (B) at least fifty percent (50%) and up to one hundred percent (100%) of such Phase I–III Project
Financing Equity related to data processing components of the Project, all upon the general terms specified in the Project Financing
Preemptive Notice and stating therein the applicable quantities of Phase I–III Project Financing Equity to be purchased
by MKTY and/or its Affiliates. For the avoidance of doubt, neither MKTY nor its Affiliates shall have an obligation to purchase
the foregoing Phase I–III Project Financing Equity if MKTY does not deliver written notice as provided above. In the event
that in connection with such a proposed issuance of Phase I–III Project Financing Equity, MKTY shall not give such written
notice to HEL within such ten (10) Business Day period, MKTY and its Affiliates shall, for all purposes of this Section 2.1(a),
be deemed to have refused (in that particular instance only) to purchase any of such Phase I–III Project Financing Equity
and to have waived (in that particular instance only) all of its rights under this Section 2.1(a) to purchase any
of such Phase I–III Project Financing Equity. Any Phase I–III Project Financing Equity issued pursuant to this Section 2.1
shall be acquired by MKTY and/or its Affiliates (as applicable) making payment to the appropriate Project SPV(s), as applicable,
therefor at the closing with respect to the project financing to which the Phase I–III Project Financing Equity relates.


 


(b)          In the event and to the extent that such Phase I–III Project Financing Equity contemplated by this Section 2.1 is
not acquired by MKTY or its Affiliates, the applicable Project SPVs shall be free to issue such Phase I–III Project Financing
Equity to any Person; provided, that (x) the price per security of Phase I–III Project Financing Equity at which
such Phase I–III Project Financing Equity is being issued to and purchased by such Person is equal to or greater than the
Project Finance Equity Purchase Price and (y) the other terms and conditions pursuant to which such Person purchases such Phase
I–III Project Financing Equity are not more favorable to the investor, in the aggregate, than the terms set forth in the
Project Financing Preemptive Notice.


 






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(c)          Notwithstanding anything in this Section 2.1 to the contrary, the following shall apply with respect to any purchase or
contemplated purchase of Phase I–III Project Financing Equity by MKTY or its Affiliates pursuant to this Section 2.1:
In the event MKTY and/or its Affiliates agree to purchase Phase I–III Project Financing Equity pursuant to Section 2.1(a)
and the closing with respect to MKTY’s or the Affiliate’s purchase thereof is not consummated within one hundred
eighty (180) days after the date of the Project Financing Preemptive Notice, then following such one hundred eighty (180) day
period MKTY and/or its Affiliate(s) (as applicable) may, by written notice to HEL, unilaterally terminate the applicable election
to purchase the relevant Phase I–III Project Financing Equity. Following any such termination, MKTY and/or its Affiliates
(as applicable) shall have no obligation or liability to HEL or any Project SPV with respect to the applicable Phase I–III
Project Financing Equity previously elected to be purchased by MKTY and/or its Affiliates.


 


2.2         Pre-emptive Right of Subscription for
Phase II–III Development Equity. 


 


(a)          In the event that, at any time, a Project SPV shall decide to undertake an issuance of Phase II–III Development Equity,
HEL shall, or shall cause such Project SPV to, confer in good faith with MKTY to discuss the nature and structure of the applicable
financing to which the Phase II–III Development Equity relates. Promptly following the conclusion of such discussions, HEL
shall deliver to MKTY written notice of the applicable Project SPVs’ decision to undertake an issuance of Phase II–III
Development Equity. Such written notice shall describe (i) the amount, type and terms of such Phase II–III Development
Equity, (ii) the purchase price per security for such Phase II–III Development Equity (the “Development Equity
Purchase Price”) to be paid by the purchasers of such Phase II–III Development Equity, (iii) the identity
of any prospective or desired lead investor in the applicable Phase II–III Development Equity, and (iv) all other material
terms upon which the Project SPVs have decided to issue the Phase II–III Development Equity including the expected timing
of such issuance, which shall in no event be less than thirty (30) days after the date upon which such notice is given (the “Development
Equity Preemptive Notice”). MKTY shall have ten (10) Business Days from the date on which the Development Equity Preemptive
Notice is given to agree (in MKTY’s sole and absolute discretion) by written notice to HEL that MKTY and/or its Affiliates
shall purchase at least fifty percent (50%) and up to one hundred percent (100%) of such Phase II–III Development Equity
upon the general terms specified in the Development Equity Preemptive Notice, stating therein the applicable quantities of Phase
II–III Development Equity to be purchased by MKTY and/or its Affiliates. For the avoidance of doubt, neither MKTY nor its
Affiliates shall have an obligation to purchase the foregoing Phase II–III Development Equity if MKTY does not deliver written
notice as provided above. In the event that in connection with such a proposed issuance of Phase II–III Development Equity,
MKTY shall not give such written notice to HEL within such ten (10) Business Day period, MKTY and its Affiliates shall, for all
purposes of this Section 2.2(a), be deemed to have refused (in that particular instance only) to purchase any of such
Phase II–III Development Equity and to have waived (in that particular instance only) all of its rights under this Section 2.2(a)
to purchase any of such Phase II–III Development Equity. Any Phase II–III Development Equity issued pursuant to
this Section 2.2 shall be acquired by MKTY and/or its Affiliates (as applicable) making payment to the appropriate
Project SPV(s), as applicable, therefor at the closing with respect to the financing to which the Phase II–III Development
Equity relates.


 






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(b)          In the event and to the extent that such Phase II–III Development Equity contemplated by this Section 2.2 is not
acquired by MKTY or its Affiliates, the applicable Project SPVs shall be free to issue such Phase II–III Development Equity
to any Person; provided, that (x) the price per security of Phase II–III Development Equity at which such Phase II–III
Development Equity is being issued to and purchased by such Person is equal to or greater than the Development Equity Purchase
Price and (y) the other terms and conditions pursuant to which such Person purchases such Phase II–III Development Equity
are not more favorable to the investor, in the aggregate, than the terms set forth in the Development Equity Preemptive Notice.


 


(c)          Notwithstanding anything in this Section 2.2 to the contrary, the following shall apply with respect to any purchase or
contemplated purchase of Phase II–III Development Equity by MKTY and/or its Affiliates pursuant to this Section 2.2:
In the event MKTY and/or its Affiliates agree to purchase Phase II–III Development Equity pursuant to Section 2.2(a)
and the closing with respect to MKTY’s or the Affiliate’s purchase thereof is not consummated within one hundred
eighty (180) days after the date of the Development Equity Preemptive Notice, then following such one hundred eighty (180) day
period MKTY and/or its Affiliates (as applicable) may, by written notice to HEL, unilaterally terminate the applicable election
to purchase the relevant Phase II–III Development Equity. Following any such termination, MKTY and/or its Affiliates (as
applicable) shall have no obligation or liability to HEL or any Project SPV with respect to the applicable Phase II–III
Development Equity previously elected to be purchased by MKTY and/or its Affiliates.


 


ARTICLE
III





TERMINATION
OF PRIOR AGREEMENT


 


3.1          Termination
of Original Contingent Rights Agreement. The Original Contingent Rights Agreement is hereby terminated and replaced with this
Agreement.


 


ARTICLE
IV





MISCELLANEOUS
PROVISIONS


 


4.1          Project
SPVs. Notwithstanding anything else herein to the contrary, HEL shall and shall cause its Affiliates to, absent MKTY consent
to the contrary, conduct all Project-specific debt and equity financings and issuances with respect to Phase I of the Project,
Phase II of the Project and Phase III of the Project through Project SPVs so as to properly effectuate the purpose and intent
of this Agreement. The foregoing shall include all issuances of Phase I–III Project Financing Equity and Phase II–III
Development Equity, but for greater certainty shall not include any equity or debt financing needed for the general operations
of the entity or entities that acts as developer of the Project (and, accordingly, will receive any development fee, profit participation
“promote” or similar amount payable to the developer of the Project).


 






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4.2          Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT
TO THE LAW OF ANOTHER JURISDICTION. If any provision of this Agreement or the application thereof to either party or any circumstance
is held invalid or unenforceable to any extent, (a) the remainder of this Agreement and the application of that provision to the
other party or other circumstances is not affected thereby, and (b) the parties shall negotiate in good faith to replace that
provision with a new provision that is valid and enforceable and that puts the parties in substantially the same economic, business
and legal position as they would have been in if the original provision had been valid and enforceable.


 


4.3          Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs,
legal representatives, permitted successors and assigns.


 


4.4          Waiver. No waiver by either party of any default by the other party in the performance of any provision, condition or requirement
herein shall be deemed to be a waiver of, or in any manner a release of the other party from, performance of any other provision,
condition or requirement herein, nor deemed to be a waiver of, or in any manner a release of the other party from, future performance
of the same provision, condition or requirement; nor shall any delay or omission of either party to exercise any right hereunder
in any manner impair the exercise of any such right or any like right accruing to it thereafter.


 


4.5          Amendment. This Agreement may not be modified or amended except by written agreement of the parties.


 


4.6          Headings. The headings contained in this Agreement are for convenience of reference only and do not constitute part of
this Agreement.


 


4.7          Further Assurances. Each of the parties agrees to use all reasonable efforts to take, or to cause to be taken, all actions,
and to do, or to cause to be done, all things necessary, proper or advisable under Applicable Law to consummate and make effective
the transactions contemplated by this Agreement.


 


4.8          Assignment. Either party may transfer its rights and obligations hereunder to another entity only with the prior written
consent of the other party, which consent shall not be unreasonably withheld; provided, that MKTY may transfer its rights
and obligations hereunder to an Affiliate upon written notice to HEL, without the prior written consent of HEL.


 


4.9          Entire Agreement. This Agreement constitutes the entire agreement of the parties relating to the relationship hereunder
and supersede all provisions and concepts contained in all prior contracts or agreements between the parties with respect to such
relationship, whether oral or written.


 






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4.10        Counterparts. This Agreement may be executed by electronic signature in multiple counterparts, each of which, when executed,
shall be deemed an original, and all of which shall constitute but one and the same instrument.


 


4.11        Remedies. Except as expressly provided herein, the remedies created by this Agreement are cumulative and in addition to
any other remedies otherwise available at law or in equity. The parties agree that irreparable damage would occur if any provision
of this Agreement (including, without limitation, Section 4.1) were not performed in accordance with the terms hereof and
that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof,
in addition to any other remedy to which they are entitled at law or in equity.


 


4.12        Survival. This Agreement, and the terms and provisions hereof, shall survive until the consummation of a Qualified Public
Offering by HEL.


 


[signature
page follows]


 






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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first set forth in this Agreement.


 





	 	HEL:	 
	 	 	 	 
	 	HARMATTAN
    ENERGY LTD.	 
	 	 	 	 
	 	By:	 	 
	 	Name:	Matthew Lipman	 
	 	Title:	President	 
	 	 	 	 
	 	MKTY:	 
	 	 	 	 
	 	MECHANICAL
    TECHNOLOGY, INCORPORATED	 
	 	 	 	 
	 	By:	 	 
	 	Name:	Michael Toporek	 
	 	Title:	Chief Executive Officer	 


 


[Signature
Page to Amended and Restated Contingent Rights Agreement]