Exhibit 10.23


 


CONSENT
AND AMENDMENT AGREEMENT


 


This CONSENT
AND AMENDMENT AGREEMENT (this “Agreement”), dated as of April 1, 2016, is by and among Atomera Incorporated
(f/k/a Mears Technologies, Inc.), a Delaware corporation (the “Company”), and the other Persons party hereto.
Capitalized terms used, but not defined, herein shall have the same meaning ascribed to such terms in the 2015 Convertible Notes
(as defined below).


 


RECITALS


 


A.          On
March 17, 2015, the Company issued senior secured convertible notes having an aggregate principal amount of $14,750,000 (the “2015
Convertible Notes”) and, in connection therewith, the Company entered into a Securities Purchase Agreement, Security
Agreement and Registration Rights Agreement with the holders of the 2015 Convertible Notes (the “Existing Noteholders”).


 


B.           On
the date hereof, the Company proposes to issued senior secured convertible notes having an aggregate principal amount of up to
$6,000,000 (the “2016 Convertible Notes”) and, in connection therewith, the Company will enter into a securities
purchase agreement and a form of senior secured convertible note, on terms substantially similar to the Securities Purchase Agreement
and the 2015 Convertible Note, with the holders of the 2016 Convertible Notes. In addition, the Company proposes to amend
and restate the Security Agreement and Registration Rights Agreement and enter into the amended and restated Security Agreement
and Registration Rights Agreement with the holders of the 2016 Convertible Notes.


 


C.           This
Agreement, including the amended and restated the Security Agreement and Registration Rights Agreement, is a condition precedent
to the issuance of the 2016 Convertible Notes and the consummation of the transactions contemplated thereby (the “2016
Note Offering”) and as creditors of the Company the Existing Noteholders will derive substantial benefit from the consummation
of the 2016 Note Offering.


 


D.           The
Existing Noteholders wish to (i)          consent to the issuance of the 2016
Convertible Notes and allow the 2016 Convertible Notes to be pari passu in all respects with the 2015 Convertible Notes,
(ii) amend and restate the Security Agreement and Registration Rights Agreement and (iii) make certain amendments to the 2015 Convertible
Notes and Securities Purchase Agreement.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:


 


		1.	Consent to Issuance of 2016 Convertible Notes.



 


(a)          The
Existing Noteholders hereby consent to the issuance of the 2016 Convertible Notes and waive any breach or default such issuance
may cause under the Securities Purchase Agreement, including, but not limited to, under Sections 4(k) or 4(m) of the Securities
Purchase Agreement.


 




     


     


    

 


(b)          The
Existing Noteholders hereby acknowledge and agree that the 2016 Convertible Notes shall be pari passu in all respects, including
in terms of payment, security and registration rights, with the 2015 Convertible Notes


 


(c)          The
Existing Noteholders hereby acknowledge and agree that the terms “Other Notes” and “Notes” as used in the
2016 Convertible Notes shall for all purposes include the 2015 Convertible Notes.


 


		2.	Amendments to the 2015 Convertible Notes.



 


(a)          Notes.
The term “Notes” as defined in opening paragraph of the 2015 Convertible Notes and used throughout therein shall mean,
collectively, the Other Notes, the 2015 Convertible Notes and the 2016 Convertible Notes.


 


(b)          Maturity
Date. The date “May 31, 2016” as set forth in the definition of “Maturity Date” in Section 23(j) of
the 2015 Convertible Notes shall be removed and replaced with the date “May 31, 2017”.


 


(c)          IPO
Outside Date. The date “February 14, 2016” as set forth in the definition of “IPO Outside Date” in
Section 23(h) of the 2015 Convertible Notes shall be removed and replaced with the date “December 31, 2016”.


 


		3.	Security Agreement.



 


(a)          The
Existing Noteholders hereby consent to the granting of the Security Interest in the Collateral (as that term are defined in the
Security Agreement) by the Company to the holders of the 2016 Convertible Notes to secure the Secured Obligations (as that term
is defined in the Security Agreement).


 


(b)          The
Existing Noteholders hereby acknowledge and agree that that for all purposes of the Security Agreement, the Collateral Agent appointed
by the Existing Noteholders pursuant to Section 20 of the Security Agreement (the “Collateral Agent”) shall
be the same Collateral Agent as appointed by the holders of the 2016 Convertible Notes.


 


(c)          The
Existing Noteholders hereby acknowledge and agree that, in the event of a distribution of proceeds of Collateral by the Collateral
Agent pursuant to Section 17 of the Security Agreement, all such proceeds of Collateral shall be applied by the Collateral Agent
pari passu among the Existing Noteholders and the holders of the 2016 Convertible Notes.


 


(d)          The
Existing Noteholders hereby acknowledge and agree that the Collateral Agent shall, on behalf of the Existing Noteholders, enter
into an amended and restated Security Agreement, in the form presented to them, with the Company and the holders of the 2016 Convertible
Notes for purposes of carrying out the grants and terms of (a) through (c) above and otherwise making the holders of the 2016 Convertible
Notes parties to the Security Agreement, as amended and restated.


 




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		4.	Registration Rights Agreement.



 


(a)          The
Existing Noteholders hereby acknowledge and agree that the term “Registrable Securities” as used in the Registration
Rights Agreement shall for all purposes include the shares of common stock issued upon conversion of the 2016 Convertible Notes.


 


(b)          The
Existing Noteholders hereby acknowledge and agree that for purposes of exercising and implementing the Piggyback Registration Rights
granted under Section 1 of the Registration Rights Agreement, the terms “Holder” and “Holders” shall also
include the holders of the 2016 Convertible Notes and their assignees or successors in interest.


 


(c)          The
Existing Noteholders hereby acknowledge and agree that for purposes of exercising and implementing the Demand Registration Rights
granted under Section 2 of the Registration Rights Agreement, the terms “Holder” and “Holders” shall also
include the holders of the 2016 Convertible Notes and their assignees or successors in interest.


 


(d)          The
Existing Noteholders hereby agree to the form of amended and restated Registration Rights Agreement, in the form presented to them,
for purposes of carrying out the terms of (a) through (c) above and otherwise making the holders of the 2016 Convertible Notes
parties to the Registration Rights Agreement, as amended and restated, and that the execution and delivery of this Agreement by
each Existing Noteholder shall constitute their execution and delivery of the amended and restated Registration Rights Agreement
without their need to separately sign the amended and restated Registration Rights Agreement.


 


5.            Amendments
to Securities Purchase Agreement.  Section 4(w) of the
Securities Purchase Agreement is hereby deleted in its entirety and replaced with the following: “IPO Commitment.
The Company shall use its best efforts to file with the SEC a registration statement on Form S-1 (or any successor form thereto)
to register and sell Common Stock in an IPO (the “IPO Registration Statement”)
by no later than December 31, 2016. In the event that the Company has not filed the IPO Registration Statement with the SEC within
five (5) months of the Closing Date, then the Company shall not file the IPO Registration Statement with the SEC until at least
six (6) months and one (1) day after the Closing Date.” In addition, the last sentence of Section 9(e) of the Securities
Purchase Agreement is hereby deleted in its entirety and replaced with the following: “‘Required Buyers” means
Buyers holding Notes and the parties holding the 2016 Convertible Notes (as such term is defined in that Consent and Amendment
Agreement dated April 1, 2016 between the Company and the other Persons who are parties thereto) having an aggregate outstanding
principal amount that represents a majority of the aggregate principal amount of all Notes and 2016 Convertible Notes.” 


 




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		6.	Miscellaneous.



 


(a)          Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. 


 


(b)          Severability.
If any provision(s) of this Agreement shall be determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof, and any such illegal or unenforceable provisions shall be
performed by mutual consent of the parties to reflect the intended purpose of such provision.


 


(c)          Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (i) upon receipt, if delivered personally; (ii) when sent, if sent by
facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);
(iii) when sent, if sent by e-mail (provided that such sent e-mail is kept on file (whether electronically or otherwise) by the
sending party and the sending party does not receive an automatically generated message from the recipient’s e-mail server
that such e-mail could not be delivered to such recipient) and (iv) if sent by overnight courier service, one (1) Business Day
after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party
to receive the same. The addresses, facsimile numbers and e-mail addresses for such communications shall be:


 


If to the Company:


 


Atomera Incorporated


750 University Avenue, Suite 280


Los Gatos, CA 95032


E-mail: sbibaud@atomera.com


Attn: Chief Executive Officer


 


with a copy (for informational
purposes only) to:


 


Greenberg Traurig, LLP


3161 Michelson Drive, Suite 1000


Irvine, CA 92612


Facsimile: (949) 732-6501


E-mail: DonahueD@gtlaw.com


Attn: Daniel K. Donahue, Esq.


 




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If to an Existing Noteholder, to its address,
facsimile number or e-mail address set forth on such Existing Noteholder’s signature page to the Securities Purchase Agreement,


 


with a copy before July 1, 2016
(for informational purposes only) to:


 


Golenbock Eiseman Assor Bell &
Peskoe LLP

437 Madison Avenue, 40th Floor

New York, NY 10022

Facsimile: (212) 754-0330


E-mail: ahudders@golenbock.com


cvandemark@golenbock.com

Attention: Andrew D. Hudders, Esq.


Carl Van Demark,
Esq.


 


and with a copy on or after July
1, 2016 (for informational purposes only) to:


 


Golenbock Eiseman Assor Bell &
Peskoe LLP

711 Third Avenue

New York, NY 10017

Facsimile: (212) 754-0330


E-mail: ahudders@golenbock.com


cvandemark@golenbock.com

Attention: Andrew D. Hudders, Esq.


Carl Van Demark,
Esq.


 


or to such other address, facsimile number
or e-mail address and/or to the attention of such other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient
of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile
machine containing the time, date and recipient facsimile number or (C) provided by an overnight courier service shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from an overnight courier service in accordance with clause (i),
(ii) or (iv) above, respectively. A copy of the e-mail transmission containing the time, date and recipient e-mail address shall
be rebuttable evidence of receipt by e-mail in accordance with clause (iii) above.


 


(d)          Binding
Effect. This Agreement shall be binding upon and shall insure to the benefit of the parties hereto, their respective successors,
assigns, legal representative, estates, executors, administrators and heirs.


 


(e)          Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that
any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an
executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such signature page were an original thereof.








 


[Signature pages follow]


 




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IN WITNESS WHEREOF,
the undersigned have caused their respective signature page to this Agreement to be duly executed as of the date first written
above.


 


	 	COMPANY:
	 	 	 
	 	ATOMERA INCORPORATED,
	 	a Delaware corporation
	 	 	 
	 	By: 	/s/ Scott A. Bibaud
	
         
	 	Scott A. Bibaud,
	 	 	President and Chief Executive Officer


 


[Signature Page to Consent and Amendment
Agreement]


 




     


     


    

  


IN WITNESS WHEREOF,
the undersigned have caused their respective signature page to this Agreement to be duly executed as of the date first written
above.


  


	For Entity Investors: 	 	For Individual Investors: 
	 	 	 	 	 
	Print Name:	 	 	Print Name:	 
	 	 	 	 	 
	Signature:	 	 	Signature:	 
	 	 	 	 	 
	Name of Signatory:	 	 	If Joint Investment, 2nd investor should complete: 
	 	 	 	 	 
	Title:	 	 	Print Name:	 
	 	 	 	 	 
	 	 	 	Signature:	 


 


[Signature Page to Consent and Amendment
Agreement]