Exhibit 10.1


 


 


 


LOAN AND SECURITY AGREEMENT


 


Dated as of May 21, 2021


 


among


 


CLENE INC.,


a Delaware corporation,


 


CLENE NANOMEDICINE, INC.,


a Delaware corporation,


 


individually and collectively, jointly
and severally,


as “Borrower”,


 


and


 


AVENUE VENTURE OPPORTUNITIES FUND,
L.P.,


a Delaware limited partnership, as


 


“Lender”


 


 


 




     


     


    

 


LOAN AND SECURITY AGREEMENT


 


Borrower and Lender
have entered or anticipate entering into one or more transactions pursuant to which Lender agrees to make available to Borrower a loan
facility governed by the terms and conditions set forth in this document and one or more Supplements executed by Borrower and Lender which
incorporate this document by reference. Each Supplement constitutes a supplement to and forms part of this document, and will be read
and construed as one with this document, so that this document and the Supplement constitute a single agreement between the parties (collectively
referred to as this “Agreement”).


 


Accordingly, the parties agree as follows:


 


ARTICLE 1 - INTERPRETATION


 


1.1 Definitions.
The terms defined in Article 10 and in the Supplement will have the meanings therein specified for purposes of this Agreement.


 


1.2 Inconsistency.
In the event of any inconsistency between the provisions of any Supplement and this document, the provisions of the Supplement will be
controlling for the purpose of all relevant transactions.


 


1.3 Transparency
Pledge. For the avoidance of doubt and notwithstanding anything to the contrary contained in this Agreement or in the other Loan Documents:
(a) Lender shall not be entitled to (i) require Borrower’s investors or members of Borrower’s Board of Directors to make any
additional written or verbal commitments of ongoing financial support, or (ii) require Borrower to conduct its banking or hold its deposits
at any specific bank or financial institution; and (b) Borrower shall not be required to maintain any minimum tangible net worth, working
capital, current ratio, quick asset ratio, liquidity ratio or debt-to-equity ratio or comply with any similar financial covenant, except
as set forth in the Supplement.


 


ARTICLE 2 - THE COMMITMENT AND LOANS


 


2.1 The Commitment.
Subject to the terms and conditions of this Agreement, Lender agrees to make term loans to Borrower from time to time from the Closing
Date and to and including the Termination Date in an aggregate principal amount not exceeding the Commitment. The Commitment is not a
revolving credit commitment, and Borrower does not have the right to repay and reborrow hereunder; provided that Borrower may prepay
the Loans as set forth in the Supplement. Each Loan requested by Borrower to be made on a single Business Day shall be for a minimum
principal amount set forth in the Supplement, except to the extent the remaining Commitment is a lesser amount.


 


2.2 Notes
Evidencing Loans; Repayment. Each Loan shall be evidenced by a separate Note payable to the order of Lender, in the total principal
amount of the Loan. Principal and interest of each Loan shall be payable at the times and in the manner set forth in the Note and regularly
scheduled payments thereof shall be effected by automatic debit of the appropriate funds from Borrower’s Primary Operating Account
as specified in the Supplement hereto. Repayment of the Loans and payment of all other amounts owed to Lender will be paid by Borrower
in the currency in which the same has been provided (i.e., United States Dollars).


 


2.3 Procedures for
Borrowing.




 


(a) At
least two (2) Business Days prior to the Closing Date and five (5) Business Days prior to any proposed Borrowing Date following the Closing
Date (or such lesser period of time as may be agreed upon by Lender in its sole discretion), Lender shall have received from Borrower
a written request for a borrowing hereunder (a “Borrowing Request”). Each Borrowing Request shall be in substantially
the form of Exhibit “B” to the Supplement, shall be executed by a responsible executive or financial officer of Borrower,
and shall state how much is requested, and shall be accompanied by such other information and documentation as Lender may reasonably request,
including the executed Note(s) for the Loan(s) covered by the Borrowing Request.


 


(b) No
later than 1:00 p.m. Pacific Standard Time on the Borrowing Date, if Borrower has satisfied the conditions precedent in Article 4 by 11:00
a.m. Pacific Standard Time on such Borrowing Date, Lender shall make the Loan available to Borrower in immediately available funds.


 




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2.4 Interest.
Except as otherwise specified in the applicable Note and/or Supplement, Basic Interest on the outstanding principal balance of each Loan
shall accrue daily at the Designated Rate from the Borrowing Date. If the outstanding principal balance of such Loan is not paid at maturity,
interest shall accrue at the Default Rate until paid in full, as further set forth herein.


 


2.5 Intentionally
Omitted.




 


2.6 Interest
Rate Calculation. Basic Interest, along with charges and fees under this Agreement and any Loan Document, shall be calculated for
actual days elapsed on the basis of a 360-day year, which results in higher interest, charge or fee payments than if a 365-day year were
used. In no event shall Borrower be obligated to pay Lender interest, charges or fees at a rate in excess of the highest rate permitted
by applicable law from time to time in effect.


 


2.7 Default
Interest. Any unpaid payments in respect of the Obligations shall bear interest from their respective maturities, whether scheduled
or accelerated, at the Default Rate, compounded monthly. Borrower shall pay such interest on demand.


 


2.8 Late
Charges. If Borrower is late in making any scheduled payment in respect of the Obligations by more than five (5) days, then Borrower
agrees to pay a late charge of five percent (5%) of the payment due, but not less than fifty dollars ($50.00) for any one such delinquent
payment; provided, that Lender shall endeavor to provide Borrower written notice of such late charge; provided further however, that (i)
any failure of Lender to provide notice shall not relieve Borrower of the obligation to pay the same; and (ii) Borrower shall only be
entitled to such notice from Lender one (1) time per year. This late charge may be charged by Lender for the purpose of defraying the
expenses incidental to the handling of such delinquent amounts. Borrower acknowledges that such late charge represents a reasonable sum
considering all of the circumstances existing on the date of this Agreement and represents a fair and reasonable estimate of the costs
that will be sustained by Lender due to the failure of Borrower to make timely payments. Borrower further agrees that proof of actual
damages would be costly and inconvenient. Such late charge shall be paid without prejudice to the right of Lender to collect any other
amounts provided to be paid or to declare a default under this Agreement or any of the other Loan Documents or from exercising any other
rights and remedies of Lender.


 


2.9 Lender’s Records. Principal, Basic Interest and all other sums owed under any Loan Document shall be evidenced by entries in
records maintained by Lender for such purpose. Each payment on and any other credits with respect to principal, Basic Interest and all
other sums outstanding under any Loan Document shall be evidenced by entries in such records. Absent manifest error, Lender’s records
shall be conclusive evidence thereof. Upon Borrower’s written request therefor, but not more than once per year during the term
hereof, Lender shall promptly provide Borrower a copy of such records; provided that any failure to provide such records shall not result
in any liability to Lender.


 


2.10 Grant of Security
Interests; Filing of Financing Statements.


 


(a) To
secure the timely payment and performance of all of Borrower’s Obligations, Borrower hereby grants to Lender continuing security
interests in all of the Collateral. In connection with the foregoing, Borrower authorizes Lender to prepare and file any financing statements
describing the Collateral without otherwise obtaining Borrower’s signature or consent with respect to the filing of such financing
statements. Such financing statements may indicate the Collateral as “all assets of the Debtor” or words of similar effect.


 






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(b) In
furtherance of Borrower’s grant of the security interests in the Collateral pursuant to Section 2.10(a) above, Borrower hereby
pledges and grants to Lender a security interest in all the Shares, together with all proceeds and substitutions thereof, all cash,
stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection
therewith, and all other cash and noncash proceeds of the foregoing, as security for the performance of the Obligations. On the
Closing Date or at any time thereafter following Lender’s request, the certificate or certificates for the Shares will be
delivered to the Lender, accompanied by an instrument of assignment duly executed in blank by Borrower, unless such Shares have not
been certificated. To the extent required by the terms and conditions governing the Shares, Borrower shall cause the books of each
entity whose Shares are part of the Collateral and any transfer agent to reflect the pledge of the Shares. Upon the occurrence and
during the continuance of an Event of Default hereunder, and notice (absent exigent circumstances, as reasonably determined by
Lender) thereof to Borrower, Lender may effect the transfer of any securities included in the Collateral (including but not limited
to the Shares) into the name of Lender and cause new certificates representing such securities to be issued in the name of Lender or
its transferee(s). Borrower will execute and deliver such documents, and take or cause to be taken such actions, as Lender may
reasonably request to perfect or continue the perfection of Lender’s security interest in the Shares. Except as provided in
the following sentence, Borrower shall be entitled to exercise any right to which a holder of such Shares is entitled, including,
without limitation, any voting rights with respect to the Shares and receipt of all dividends and other distributions with respect
to the Shares that are permitted hereunder and the granting of any consents, waivers and ratifications in respect thereof, provided
that no vote shall be cast or consent, waiver or ratification given or action taken which would constitute a violation of any of the
terms of this Agreement. All such rights to vote and receipt of dividends and other distributions with respect to the Shares that
are permitted hereunder and the granting of consents, waivers and ratifications shall terminate upon the occurrence and continuance
of an Event of Default and Lender’s written notice to Borrower of Lender’s intent to exercise its rights and remedies
under this Agreement, including this Section 2.10(b). Lender reserves the right to take such steps as Lender determines to be
reasonably necessary to perfect (in the relevant jurisdiction(s)) the security interest in any Shares of a Foreign Subsidiary.


 


(c) Borrower
is and shall remain absolutely and unconditionally liable for the performance of its Obligations, including, without limitation, any deficiency
by reason of the failure of the Collateral to satisfy all amounts due Lender under any of the Loan Documents.


 


(d) All
Collateral pledged by Borrower under this Agreement and any Supplement shall secure the timely payment and performance of all Obligations.
Except as expressly provided in this Agreement, no Collateral pledged under this Agreement or any Supplement shall be released until such
time as all Obligations have been satisfied and paid in full (other than inchoate indemnity obligations).


 


ARTICLE 3 -
REPRESENTATIONS AND WARRANTIES


 


Borrower represents
and warrants that, except as set forth in the Supplement or the Schedule of Exceptions hereto, if any, as of the Closing Date and each
Borrowing Date:


 


3.1 Due
Organization. Borrower is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction
of its incorporation, and is duly qualified to conduct business and is in good standing in each other jurisdiction in which its
business is conducted or its properties are located, except where the failure to be so qualified would not reasonably be expected to
have a Material Adverse Effect.


 


3.2 Authorization, Validity and
Enforceability. The execution, delivery and performance of all Loan Documents executed by Borrower are within Borrower’s powers,
have been duly authorized, and are not in conflict with Borrower’s certificate of incorporation or by-laws, or the terms of any
charter or other organizational document of Borrower, as amended from time to time; and all such Loan Documents constitute valid and binding
obligations of Borrower, enforceable in accordance with their terms (except as may be limited by bankruptcy, insolvency and similar laws
affecting the enforcement of creditors’ rights in general, and subject to general principles of equity).


 


3.3 Compliance
with Applicable Laws. Borrower has complied with all licensing, permit and fictitious name requirements necessary to lawfully conduct
the business in which it is engaged, and to any sales, leases or the furnishing of services by Borrower, including without limitation
those requiring consumer or other disclosures, in each case, the noncompliance with which would have a Material Adverse Effect.


 


3.4 No
Conflict. The execution, delivery, and performance by Borrower of all Loan Documents are not in conflict with any law, rule, regulation,
order or directive, or any Material Contract to which Borrower is a party or by which Borrower may be bound or affected. Without limiting
the generality of the foregoing, the issuance of the Warrant and the grant of registration rights in connection therewith do not violate
any agreement or instrument by which Borrower is bound or require the consent of any holders of Borrower’s securities other than
consents which have been obtained prior to the Closing Date.


 


3.5 No
Litigation, Claims or Proceedings. There is no litigation, tax claim, proceeding or dispute pending, or, to the knowledge of Borrower,
threatened in writing against or affecting Borrower, its property or the conduct of its business which, if adversely determined, could
reasonably be expected to result in damages or liability in excess of the Threshold Amount.


 






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3.6 Correctness
of Financial Statements. Borrower’s financial statements which have been delivered to Lender fairly and accurately, in all
material respects, reflect Borrower’s financial condition in accordance with GAAP (except for the absence of footnotes and
subject to normal year-end adjustments) as of the latest date of such financial statements; and, since that date there has been no
Material Adverse Change.


 


3.7 No
Subsidiaries. As of the Closing Date, Borrower is not a majority owner of or in a control relationship with any other business entity,
except for the Excluded Subsidiaries.


 


3.8 Environmental
Matters. To its knowledge after reasonable inquiry, Borrower has concluded that Borrower is in compliance with Environmental Laws,
except to the extent a failure to be in such compliance would not reasonably be expected to have a Material Adverse Effect.


 


3.9 No
Event of Default. No Default or Event of Default has occurred and is continuing.


 


3.10 Full Disclosure. None
of the representations or warranties made by Borrower in the Loan Documents as of the date such representations and warranties are made
or deemed made, and none of the written statements contained in any exhibit, report, statement or certificate furnished by or on behalf
of Borrower in connection with the Loan Documents (including disclosure materials delivered by or on behalf of Borrower to Lender prior
to the Closing Date or pursuant to Section 5.2 hereof), taken as a whole, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which
they are made, not misleading as of the time when made or delivered; provided, however, that any projections, valuations or pro
forma financial statements, present a good faith opinion as to such projections, valuations and pro forma condition and results at the
time delivered or date referenced thereon, as applicable, and it is understood that any projections, valuations and pro forma condition
and results are not a guaranty of future performance, and actual results during the period or periods covered may differ from such projections
and forecasts by a material amount.


 


3.11 Specific Representations
Regarding Collateral.


 


(a) Title.
Except for the security interests created by this Agreement and Permitted Liens, (i) Borrower is and will be the unconditional legal
and beneficial owner of the Collateral, and (ii) the Collateral is genuine and subject to no Liens. There exist no prior assignments
or encumbrances of record with the U.S. Patent and Trademark Office or U.S. Copyright Office affecting any Collateral in favor of
any third party, other than Permitted Liens.


 


(b) Rights
to Payment. The names of the obligors, amount owing to Borrower, due dates and all other information with respect to the Rights to
Payment are and will be correctly stated in all material respects in all Records relating to the Rights to Payment. Borrower further represents
and warrants, to its knowledge, that each Person appearing to be obligated on a Right to Payment has authority and capacity to contract
and is bound as it appears to be.


 


(c) Location
of Collateral. As of the Closing Date, Borrower’s chief executive office, Inventory, Records, Equipment, and any other offices
or places of business are located at the address(es) shown on the Supplement.


 


(d) Business
Names. Other than its full corporate name, Borrower has not conducted business using any trade names or fictitious business names
except as shown on the Supplement.


 


3.12 Copyrights, Patents,
Trademarks and Licenses.


 


(a) Borrower
owns or is licensed or otherwise has the right to use all of the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other similar rights that are reasonably necessary for the operation of its business, without known conflict
with the rights of any other Person, except to the extent any such failure could not reasonably be expected to result in a Material Adverse
Effect.


 


(b) To
Borrower’s knowledge, no slogan or other advertising device, product, process, method, substance, part or other material now employed,
or now contemplated to be employed, by Borrower infringes upon any rights held by any other Person.


 


(c) No
claim or litigation regarding any of the foregoing is pending or, to Borrower’s knowledge, threatened in writing, and, to Borrower’s
knowledge, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code is pending or
proposed which, in either case, could reasonably be expected to have a Material Adverse Effect.


 






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3.13 Regulatory
Compliance. To the best of Borrower’s knowledge, Borrower has met the minimum funding requirements of ERISA with respect
to any employee benefit plans subject to ERISA. No event has occurred resulting from Borrower’s failure to comply with ERISA
that is reasonably likely to result in Borrower’s incurring any liability that could have a Material Adverse Effect. Borrower
is not required to be registered as an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940. Borrower is not engaged principally, or
as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulations T and U of the Board of Governors of the Federal Reserve System). Borrower has complied in all
material respects with all the provisions of the Federal Fair Labor Standards Act.


 


3.14 Shares.
Borrower has full power and authority to create a first priority Lien on the Shares and no disability or contractual obligation exists
that would prohibit Borrower from pledging the Shares pursuant to this Agreement. To Borrower’s knowledge, there are no subscriptions,
warrants, rights of first refusal or other restrictions on transfer relative to, or options exercisable with respect to the Shares. The
Shares have been and will be duly authorized and validly issued, and are fully paid and non-assessable. To Borrower’s knowledge,
the Shares are not the subject of any present or threatened suit, action, arbitration, administrative or other proceeding, and Borrower
knows of no reasonable grounds for the institution of any such proceedings.


 


3.15 Compliance
with Anti-Corruption Laws. Borrower has not taken any action that would cause a violation of any anti-corruption law, including but
not limited to, the Foreign Corrupt Practices Act, the United Kingdom Bribery Act, and all other applicable anti-corruption laws. Borrower,
its employees, agents and representatives have not, directly or indirectly, offered, paid, given, promised or authorized the payment of
any money, gift or anything of value to any person acting in an official capacity for any government department, agency or instrumentality,
including state-owned or controlled companies or entities, and public international organizations, as well as a political party or official
thereof or candidate for political office. None of Borrower’s principals or staff are officers, employees or representatives of
governments, government agencies, or government-owned or controlled enterprises.


 


3.16
Survival. The representations and warranties of Borrower as set forth in this Agreement survive the execution and delivery of
this Agreement and remain in effect until the later of such time as the Loans are paid in full in cash or until termination of this
Agreement in accordance with its terms.


 


ARTICLE 4 - CONDITIONS PRECEDENT


 


4.1 Conditions
to First Loan. The obligation of Lender to make its first Loan hereunder is, in addition to the conditions precedent specified in
Section 4.2 and in any Supplement, subject to the fulfillment of the following conditions and to the receipt by Lender of the documents
described below, duly executed and in form and substance satisfactory to Lender and its counsel:


 


(a) Resolutions.
A certified copy of the resolutions of the Board of Directors of Borrower authorizing the execution, delivery and performance by Borrower
of the Loan Documents.


 


(b) Incumbency
and Signatures. A certificate of the secretary (or other duly authorized officer) of Borrower certifying the names of the officer
or officers of Borrower authorized to sign the Loan Documents, together with a sample of the true signature of each such officer.


 


(c) Legal
Opinion. The opinion of legal counsel for Borrower as to such matters as Lender may reasonably request, in form and substance reasonably
satisfactory to Lender.


 


(d) Charter
Documents. Copies of the organizational and charter documents of Borrower (e.g., Articles or Certificate of Incorporation and Bylaws),
as amended through the Closing Date, certified by an officer of Borrower as being true, correct and complete.


 


(e) This
Agreement. Counterparts of this Agreement and the initial Supplement, with all schedules completed and attached thereto, and disclosing
such information as is acceptable to Lender.


 


(f) Financing
Statements. Filing copies (or other evidence of filing satisfactory to Lender and its counsel) of such UCC financing statements, collateral
assignments, account control agreements, and termination statements, with respect to the Collateral as Lender shall request.


 


(g) Reserved.




 






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(h) Lien
Searches. UCC lien, judgment, bankruptcy and tax lien searches of Borrower from such jurisdictions or offices as Lender may
reasonably request, all as of a date reasonably satisfactory to Lender and its counsel.


 


(i) Good
Standing Certificate. A certificate of status or good standing of Borrower as of a date acceptable to Lender from the jurisdiction
of Borrower’s organization and any foreign jurisdictions where Borrower is qualified to do business.


 


(j) Warrant.
The Warrant issued by Borrower exercisable for such number, type and class of shares of Borrower’s capital stock, and for an initial
exercise price as is specified therein.


 


(k) Insurance
Certificates. Insurance certificates showing Lender as loss payee or additional insured.


 


(l) Other
Documents. Such other documents and instruments as Lender may reasonably request to effectuate the intents and purposes of this Agreement.


 


4.2 Conditions
to All Loans. The obligation of Lender to make its initial Loan and each subsequent Loan is subject to the following further conditions
precedent that:


 


(a) No
Default. No Default or Event of Default has occurred and is continuing or will result from the making of any such Loan, and the representations
and warranties of Borrower contained in Article 3 of this Agreement and Part 3 of the Supplement are true and correct in all material
respects as of the Borrowing Date of such Loan.


 


(b) No
Material Adverse Change. No event has occurred that has had or could reasonably be expected to have a Material Adverse Change.


 


(c) Borrowing
Request. Borrower shall have delivered to Lender a Borrowing Request for such Loan.


 


(d) Note.
Borrower shall have delivered an executed Note evidencing such Loan, substantially in the form attached to the Supplement as an exhibit.


 


(e) Supplemental
Lien Filings. Borrower shall have executed and delivered such amendments or supplements to this Agreement and additional Security
Documents, financing statements and third party waivers as Lender may reasonably request in connection with the proposed Loan, in order
to create, protect or perfect or to maintain the perfection of Lender’s Liens on the Collateral.


 


(f) VCOC Limitation. Lender shall not be obligated to make any Loan under its Commitment if at the time of or after giving effect to the
proposed Loan Lender would no longer qualify as: (i) a “venture capital operating company” under U.S. Department of Labor
Regulations Section 2510.3-101(d), Title 29 of the Code of Federal Regulations, as amended; and (ii) a “business development company”
under the provisions of federal Investment Company Act of 1940, as amended; and (iii) a “regulated investment company” under
the provisions of the Internal Revenue Code of 1986, as amended.


 


(g) Financial
Projections. Borrower shall have delivered to Lender Borrower’s business plan and/or financial projections or forecasts as most
recently approved by Borrower’s Board of Directors (the “Projections”).


 


ARTICLE 5 - AFFIRMATIVE
COVENANTS


 


During the term
of this Agreement and until its performance of all Obligations (other than inchoate indemnity obligations), Borrower will:


 


5.1 Notice
to Lender. Promptly give written notice to Lender of:


 


(a) Any
litigation or administrative or regulatory proceeding affecting Borrower where the amount claimed against Borrower is at the Threshold
Amount or more, or which could reasonably be expected to have a Material Adverse Effect; or of the acquisition by Borrower of any commercial
tort claim, including brief details of such claim and such other information as Lender may reasonably request to enable Lender to better
perfect its Lien in such commercial tort claim as Collateral.


 


(b) Any
dispute which may exist between Borrower and any governmental or regulatory authority, which could reasonably be expected to have a Material
Adverse Effect.


 


 (c) The occurrence of any Event of Default.




 


(d) Any
change in the location of any of Borrower’s places of business or a material portion of the Collateral at least fifteen (15) days
in advance of such change, or of the establishment of any new, or the discontinuance of any existing, place of business.


 






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(e) Any
dispute or default by Borrower or any other party under any joint venture, partnering, distribution, cross-licensing, strategic
alliance, collaborative research or manufacturing, license or similar agreement which could reasonably be expected to have a
Material Adverse Effect.


 


(f) Any
other matter which has resulted or could reasonably be expected to result in a Material Adverse Change.


 


(g) Any
Subsidiary Borrower intends to acquire or create.


 


5.2 Financial
Statements. Deliver to Lender or cause to be delivered to Lender, in form and detail reasonably satisfactory to Lender the following
financial and other information, which Borrower warrants shall be accurate and complete in all material respects; provided, however, that
no representation or warranty is made as to the impact of future general economic conditions or as to whether Borrower’s and its
Subsidiaries’ projected results as set forth in such financial forecasts will actually be realized, it being recognized by the Lender
that any projections as to future events are not to be viewed as facts and that actual results for the periods covered by the financial
forecasts may differ materially from the financial forecasts:


 


(a) Monthly
Financial Statements. As soon as available but no later than thirty (30) days after the end of each month, Borrower’s unaudited
balance sheet as of the end of such period, and Borrower’s unaudited income statement and cash flow statement for such period and
for that portion of Borrower’s financial reporting year ending with such period, prepared in accordance with GAAP (except for the
absence of footnotes and subject to normal year-end adjustments) and attested by a responsible financial officer of Borrower as being
complete and correct in all material respects and fairly present in all material respects Borrower’s financial condition and the
results of Borrower’s operations as of the date(s) and for the period(s) covered thereby.


 


(b) Year-End
Financial Statements. As soon as available but no later than ninety (90) days after the end of each financial reporting year, a
complete copy of Borrower’s audit report, which shall include balance sheet, income statement, statement of changes in equity
and statement of cash flows for such year, prepared in accordance with GAAP and certified by an independent certified public
accountant selected by Borrower and satisfactory to Lender (the “Accountant”). The Accountant’s
certification shall not be qualified or limited due to a restricted or limited examination by the Accountant of any material portion
of Borrower’s records. Notwithstanding the foregoing, if Borrower’s Board of Directors does not require Borrower’s
financial statements to be audited for a particular reporting year, then Borrower shall deliver to Lender unaudited financial
statements for such year, including the items described in, and in the timeframe specified in, this Section 5.2(b) (other than the
Accountant’s certification).


 


(c) Compliance
Certificates. Simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a
certificate of the chief financial officer of Borrower (or other executive officer) substantially in the form of Exhibit “C”
to the Supplement (a “Compliance Certificate”) stating, among other things, whether any Default or Event of
Default exists on the date of such certificate, and if so, setting forth the details thereof and the action which Borrower is taking or
proposes to take with respect thereto. If requested by Lender, a Compliance Certificate also shall be delivered to Lender on the Closing
Date.


 


(d) Government
Required Reports. Promptly after sending, issuing, making available, or filing, copies of all reports, proxy statements, and financial
statements that Borrower sends or makes available generally to its stockholders, and, not later than ten (10) days after actual filing
or the date such filing was first due, all public registration statements and reports that Borrower files or is required to file with
the Securities and Exchange Commission, or any other governmental or regulatory authority having similar authority.


 


(e) Other
Information. Such other statements, lists of property and accounts, budgets (as updated), sales projections, forecasts, reports, 409A
valuation reports (to the extent prepared and as updated), operating plans, financial exhibits, capitalization tables (as updated) and
information relating to equity and debt financings consummated after the Closing Date (including post-closing capitalization table(s)),
or other information as Lender may from time to time reasonably request.


 


(f) Board
Packages. In addition to the information described in Section 5.2(e), Borrower will promptly provide Lender with copies of all
notices, minutes, consents and other materials, financial or otherwise, which Borrower provides to its Board of Directors
(collectively, “Board Packages”); provided, however, that Borrower need not provide Lender with
copies of routine Board actions, such as option and stock grants under Borrower’s equity incentive plan in the normal course
of business; and provided, further, however, that such Board Packages may be redacted to the extent that (i)
Borrower’s Board of Directors determines such redaction is reasonably necessary to preserve the attorney-client privilege, to
protect highly confidential proprietary information, or for other similar reasons or (ii) such redacted material relates to Lender
(or Borrower’s strategy regarding the Loans or Lender).


 






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5.3 Reserved.




 


5.4 Existence.
Maintain and preserve Borrower’s existence, present form of business, and all rights and privileges necessary in the normal course
of its business; and keep all Borrower’s property in good working order and condition, ordinary wear and tear excepted.


 


5.5 Insurance.
Obtain and keep in force insurance in such amounts and types as is usual in the type of business conducted by Borrower, with insurance
carriers having a policyholder rating of not less than “A” and financial category rating of Class VII in “Best’s
Insurance Guide,” unless otherwise approved by Lender. Such insurance policies must be in form and substance reasonably satisfactory
to Lender, and shall list Lender as an additional insured or loss payee, as applicable, on endorsement(s) in form reasonably acceptable
to Lender. Borrower shall furnish to Lender such endorsements, and upon Lender’s request, copies of any or all such policies.


 


5.6 Accounting
Records. Maintain adequate books, accounts and records, and prepare all financial statements in accordance with GAAP (except for the
absence of footnotes and subject to normal year-end adjustments), and in compliance with the regulations of any governmental or regulatory
authority having jurisdiction over Borrower or Borrower’s business; and permit employees or agents of Lender at such reasonable
times as Lender may request upon reasonable advance notice (unless an Event of Default has occurred and is continuing), at Borrower’s
expense (not to exceed $2,500 in any 12-month period unless an Event of Default has occurred and is continuing), to inspect Borrower’s
properties, and to examine, review and audit, and make copies and memoranda of Borrower’s books, accounts and records. Notwithstanding
the foregoing, if no Event of Default has occurred and is continuing, Lender shall limit such inspections to once per calendar year.


 


5.7 Compliance
with Laws. Comply with all laws (including Environmental Laws), rules, regulations applicable to, and all orders and directives
of any governmental or regulatory authority having jurisdiction over, Borrower or Borrower’s business, and with all Material
Contracts to which Borrower is a party, in each case except where the failure to so comply could not reasonably be expected to have
a Material Adverse Effect.


 


5.8 Taxes
and Other Liabilities. Pay all Borrower’s Indebtedness when due. Pay all taxes and other governmental or regulatory assessments,
individually or in the aggregate, in excess of Twenty-Five Thousand Dollars ($25,000), before delinquency or before any penalty attaches
thereto, except as may be contested in good faith by the appropriate procedures and for which Borrower shall maintain appropriate reserves;
and timely file all required tax returns (subject to any applicable extensions).


 


5.9 Special Collateral
Covenants.




 


(a) Maintenance
of Collateral; Inspection. Do all things reasonably necessary to maintain, preserve, protect and keep all Collateral in good working
order and salable condition, ordinary wear and tear excepted, deal with the Collateral in all commercially reasonable ways as are considered
good practice by owners of like property, and use the Collateral lawfully and, to the extent applicable, only as permitted by Borrower’s
insurance policies. Maintain, or cause to be maintained, complete and accurate Records, in all material respects, relating to the Collateral.
Upon reasonable prior notice at reasonable times during normal business hours, Borrower hereby authorizes Lender’s officers, employees,
representatives and agents to inspect the Collateral and to discuss the Collateral and the Records relating thereto with Borrower’s
officers and employees, and, in the case of any Right to Payment, after consultation with Borrower, with any Person which is or may be
obligated thereon; provided that any such discussions and inspections shall be conducted so as not to interfere unreasonably with the
Borrower’s operations (unless an Event of Default has occurred and is continuing); provided, further, that unless an Event of Default
has occurred and is continuing, only one such inspection shall occur per year.


 


(b) Documents
of Title. Not sign or authorize the signing of any financing statement or other document naming Borrower as debtor or obligor, or
acquiesce or cooperate in the issuance of any bill of lading, warehouse receipt or other document or instrument of title with respect
to any Collateral, except those negotiated to Lender, or those naming Lender as secured party, or if solely to create, perfect or maintain
a Permitted Lien.


 






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(c) Change in
Location or Name. Without at least fifteen (15) days’ prior written notice to Lender: (a) not relocate any material
portion of the Collateral or Records (except as otherwise permitted by this agreement), its chief executive office, or establish a
place of business at a location other than as specified in the Supplement; and (b) not change its name, mailing address, location of
Collateral, jurisdiction of incorporation or its legal structure; provided that no notice under this Section 5.9(c) shall be
required for any relocation of Collateral or Records between locations for which Lender has received a Waiver pursuant to Section
5.9(e) below.


 


(d) Decals,
Markings. At the request of Lender, following the occurrence and during the continuation of an Event of Default, firmly affix a decal,
stencil or other marking to designated items of Equipment, indicating thereon the security interest of Lender.


 


(e) Agreement
with Persons in Possession of Collateral. Use its commercially reasonable efforts to obtain within forty-five (45) days’ of
the Closing Date and thereafter maintain such acknowledgments, consents, waivers and agreements (each a “Waiver”)
from the owner, operator, lienholder, mortgagee, landlord or any Person in possession of tangible Collateral in excess of $100,000 per
location within the United States of America as Lender may reasonably require, all in form and substance reasonably satisfactory to Lender.
In addition, Lender shall have the right to require Borrower to use its commercially reasonable efforts to provide Lender with a Waiver
for any Collateral in excess of $100,000 per location within the United States of America that is located in a jurisdiction that provides
for statutory landlord’s Liens and for any location at which the Person in possession of such Collateral has a Lien thereon. Notwithstanding
anything to the contrary in this Section 5.9(e), Borrower and Lender acknowledge and agree that all material Intellectual Property and
Records that are maintained on items of Collateral for which Borrower is unable to provide a Waiver also shall be maintained or backed
up in a manner sufficient that Lender shall be able to have access to such Intellectual Property and Records in accordance with the exercise
of Lender’s rights hereunder.


 


(f) Certain
Agreements on Rights to Payment. Other than in the ordinary course of business, not make any material discount, credit, rebate or
other reduction in the original amount owing on a Right to Payment or accept in satisfaction of a Right to Payment less than the original
amount thereof.


 


5.10
Authorization for Automated Clearinghouse Funds Transfer. (i) Authorize Lender to initiate debit entries to Borrower’s
Primary Operating Account, specified in the Supplement hereto, through Automated Clearinghouse (“ACH”)
transfers, in order to satisfy the regularly scheduled payments of principal and interest; (ii) provide Lender at least thirty (30)
days’ notice of any change in Borrower’s Primary Operating Account; and (iii) grant Lender any additional authorizations
necessary to begin ACH debits from a new account which becomes the Primary Operating Account.


 


5.11 Anti-Corruption
Laws. Provide true, accurate and complete information, in all material respects, in all product orders, reimbursement requests and
other communications relating to Borrower and its products.


 


ARTICLE 6 - NEGATIVE COVENANTS


 


During the term
of this Agreement and until the performance of all Obligations (other than inchoate indemnity obligations), Borrower will not:


 


6.1 Indebtedness.
Be indebted for borrowed money, the deferred purchase price of property, or leases which would be capitalized in accordance with GAAP;
or become liable as a surety, guarantor, accommodation party or otherwise for or upon the obligation of any other Person, except:


 


(a) Indebtedness
incurred for the acquisition of supplies, inventory or other property or services on normal trade credit;


 


(b) Indebtedness
incurred pursuant to one or more transactions permitted under Section 6.4;


 


(c) Indebtedness
of Borrower under this Agreement;


 


 (d) Subordinated Debt;




 


(e) any
Indebtedness approved by Lender prior to the Closing Date as shown on Schedule 6.1, including but not limited to the Maryland Indebtedness;


 


(f) Indebtedness
secured by a lien described in clause (c) of the defined term “Permitted Liens” not to exceed $250,000 in aggregate principal
amount outstanding at any time:


 


(g) Indebtedness
incurred under corporate credit cards not to exceed $100,000 in aggregate principal amount outstanding at any time;


 




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(h) guaranties
and similar surety obligations in respect of Indebtedness permitted under this Section 6.1;


 


(i) Indebtedness
incurred in connection with Bank Services, provided that such Indebtedness does not exceed $100,000 in the aggregate amount
outstanding at any time;


 


(j) letters of credit
securing performance of operating leases, real estate leases or appeal bonds and other obligations permitted under this Agreement, provided
that such Indebtedness does not exceed $100,000 in the aggregate amount outstanding at any time;


 


(k) unsecured
Indebtedness to be incurred in an additional aggregate original principal amount (in addition to the Maryland Indebtedness) of up to
$10,000,000 with the state of Maryland or its associated government associations or departments at preferential interest rates in
connection with matching funding programs;


 


(l) Indebtedness
secured by a lien described in clause (c) of the defined term “Permitted Liens” to be incurred in an additional aggregate
original principal amount (in addition to the Maryland Indebtedness) of up to $3,000,000 with the state of Maryland or its associated
government associations or departments;


 


(m) other unsecured Indebtedness not
to exceed $ 250,000 in the aggregate principal amount outstanding at any time; and


 


(n) extensions,
refinancings and renewals of any of the foregoing; provided that the principal amount thereof is not increased.


 


6.2 Liens.
Create, incur, assume or permit to exist any Lien, or grant any other Person a negative pledge, on any of Borrower’s property, except
Permitted Liens and any negative pledge in respect of any asset subject to a Lien permitted by clause (c) of the definition of Permitted
Liens. Borrower and Lender agree that this covenant is not intended to constitute a lien, deed of trust, equitable mortgage, or security
interest of any kind on any of Borrower’s real property or intellectual property, and this Agreement shall not be recorded or recordable.
Notwithstanding the foregoing, however, violation of this covenant by Borrower shall constitute an Event of Default.


 


6.3
Dividends. Pay any dividends or purchase, redeem or otherwise acquire or make any other distribution with respect to any of
Borrower’s capital stock, except (a) dividends or other distributions solely of capital stock of Borrower, (b) so long as no
Event of Default has occurred and is continuing, repurchases of stock from employees or contractors upon termination of employment
or services under reverse vesting or similar repurchase plans not to exceed $250,000 in any calendar year, (c) the conversion of
Borrower’s convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in
exchange thereof, and (d) the purchase, redemption or other acquisition of shares of Borrower’s capital stock with the
proceeds received from a substantially concurrent issue of new shares of its capital stock.


 


6.4 Fundamental
Changes. (a) Liquidate or dissolve; (b) enter into, or permit any of Borrower’s Subsidiaries to enter into, any Change of Control;
or (c) acquire, or permit any of Borrower’s Subsidiaries to acquire, all or substantially all of the capital stock or property of
another Person. Notwithstanding anything to the contrary in this Section 6.4, Borrower may enter into a transaction that will constitute
a Change of Control so long as: (i) the Person that results from such Change of Control (the “Surviving Entity”)
shall have executed and delivered to Lender an agreement in form and substance reasonably satisfactory to Lender, containing an assumption
by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant
and condition of Borrower in the Loan Documents; (ii) all such obligations of the Surviving Entity to Lender shall be guaranteed by any
Person that directly or indirectly owns or controls 50% or more of the voting stock of the Surviving Entity; (iii) immediately after giving
effect to such Change of Control, no Event of Default or, event which with the lapse of time or giving of notice or both, would result
in an Event of Default shall have occurred and be continuing; and (iv) the credit risk to Lender, in its sole discretion, with respect
to the Obligations and the Collateral shall not be increased. In determining whether the proposed Change of Control would result in an
increased credit risk, Lender may consider, among other things, changes in Borrower’s management team, employee base, access to
equity markets, venture capital support, financial position and/or disposition of intellectual property rights which may reasonably be
anticipated as a result of the Change of Control. In addition, (i) a Subsidiary may merge or consolidate into another Subsidiary and (ii)
Borrower may consolidate or merge with any of Borrower’s Subsidiaries provided that Borrower is the continuing or surviving Person.


 






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6.5 Sales of
Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) any of Borrower’s
assets except (i) exclusive or non-exclusive licenses or sublicenses of Intellectual Property in the ordinary course of business,
provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual
Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property
(each as determined by Borrower in its reasonable judgment); (iii) Transfers of Inventory in the ordinary course of business; (iv)
Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.3, 6.4, 6.6 or 6.7 hereunder; (vi) Transfers of assets
(other than Intellectual Property) for fair consideration and in the ordinary course of its business; and (vii) to the extent
constituting a Transfer, any reorganization, merger, amalgamation or consolidation of a Subsidiary with or into another Subsidiary
or Borrower.


 


6.6 Loans/Investments.
Make or suffer to exist any loans, guaranties, advances, or investments (“Investments”), except:


 


(a) accounts
receivable in the ordinary course of Borrower’s business;


 


(b) Investments
in domestic certificates of deposit issued by, and other domestic investments with, financial institutions organized under the laws of
the United States or a state thereof, having at least One Hundred Million Dollars ($100,000,000) in capital and a rating of at least “investment
grade” or “A” by Moody’s or any successor rating agency;


 


(c) Investments
in marketable obligations of the United States of America and in open market commercial paper given the highest credit rating by a national
credit agency and maturing not more than one year from the creation thereof;


 


(d) temporary
advances to cover incidental expenses to be incurred in the ordinary course of business;


 


(e) Investments
in joint ventures, strategic alliances, licensing and similar arrangements customary in Borrower’s industry and which do not require
Borrower to assume or otherwise become liable for the obligations of any third party not directly related to or arising out of such arrangement
or, without the prior written consent of Lender, require Borrower to transfer ownership of non-cash assets to such joint venture or other
entity;


 


(f) Investments
in (i) one or more wholly-owned domestic Subsidiaries of Borrower, so long as in accordance with Section 6.14(a) of this Agreement,
each such Person has been made a co-borrower hereunder or has executed and delivered to Lender an agreement, in form and substance
reasonably satisfactory to Lender, containing a guaranty of the Obligations, (ii) Borrower’s Foreign Subsidiaries, consistent
with the Projections (which shall be updated, and provided to and approved by Lender (such approval not to be unreasonably withheld
or delayed)), no less frequently than every six (6) months during the term hereof and (iii) without duplication with (ii),
Investments in Clene Australia consisting of tax refunds or credits received by such entity and retained for the purpose of funding
ongoing operations;


 


(g) Investments
approved by Lender prior to the Closing Date as shown on Schedule 6.6;


 


(h) Investments
accepted in connection with Transfers permitted by Section 6.5;


 


(i) non-cash
loans approved by Borrower’s Board of Directors to employees, officers or directors relating to the purchase of equity securities
of Borrower pursuant to employee stock purchase plans or agreements approved by Borrower’s Board of Directors, limited to an aggregate
total of $100,000 at any time outstanding;


 


(j) Investments
(including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement
of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of Borrower’s business;


 


 (k) Investments permitted under Section 6.11;




 


(l) Investments
consisting of notes receivable of, or prepaid royalties and other credit extensions to, customers and suppliers in the ordinary course
of business;


 


(m) endorsements
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;


 


(n) deferred
purchase obligations accepted in connection with transfers expressly permitted under Section 6.5; and


 


(o) Investments
by wholly owned Subsidiaries in other wholly owned Subsidiaries or in Borrower.


 






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6.7
Transactions with Related Persons. Directly or indirectly enter into any transaction with or for the benefit of a Related Person
on terms more favorable to the Related Person than would have been obtainable in an “arms’ length” dealing, except
(a) sales of equity securities by Borrower and incurrence of Subordinated Debt for capital raising purposes, (b) Investments
permitted under clauses (d), (f), (i) or (m) of Section 6.6, and (c) customary compensation or severance arrangements with
employees, officers, directors and managers.


 


6.8 Other
Business. Engage in any material line of business other than the business Borrower conducts as of the Closing Date and any business
substantially similar or related or incidental thereto.


 


6.9 Financing
Statements and Other Actions. Fail to execute and deliver to Lender all financing statements, notices and other documents (including,
without limitation, any filings with the United States Patent and Trademark Office and the United States Copyright Office) from time to
time reasonably requested by Lender to maintain a perfected first priority security interest in the Collateral in favor of Lender, subject
to Permitted Liens; perform such other acts, and execute and deliver to Lender such additional conveyances, assignments, agreements and
instruments, as Lender may at any time reasonably request in connection with the administration and enforcement of this Agreement or Lender’s
rights, powers and remedies hereunder.


 


6.10 Compliance.
Become required to be registered as an “investment company” or controlled by an “investment company,” within the
meaning of the Investment Company Act of 1940, or become principally engaged in, or undertake as one of its important activities, the
business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of any Loan for such purpose.
Fail to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur,
fail to comply with the Federal Fair Labor Standards Act or violate any law or regulation, which violation could reasonably be expected
to have a Material Adverse Effect or a material adverse effect on the Collateral or the priority of Lender’s Lien on the Collateral,
or permit any of its subsidiaries to do any of the foregoing.


 


6.11 Other Deposit
and Securities Accounts. Maintain any Deposit Accounts or accounts holding securities owned by Borrower except (i) Deposit
Accounts and investment/securities accounts as set forth in the Supplement, and (ii) other Deposit Accounts and
securities/investment accounts, in each case, with respect to which Borrower and Lender shall have taken such action as Lender
reasonably deems necessary to obtain a perfected first priority security interest therein, subject to Permitted Liens. The
provisions of the previous sentence shall not apply to Excluded Accounts.


 


6.12 Prepayment of
Indebtedness. Prepay, redeem or otherwise satisfy in any manner prior to the scheduled repayment thereof any Indebtedness (other
than the Loans and Indebtedness permitted by Section 6.1  hereof). Notwithstanding the foregoing, Lender agrees that the
conversion or exchange into Borrower’s equity securities of any Indebtedness (other than the Loans) shall not be prohibited by
this Section 6.12.


 


6.13 Repayment
of Subordinated Debt. Repay, prepay, redeem or otherwise satisfy in any manner any Subordinated Debt, except in accordance with the
terms of any subordination agreement among Borrower, Lender and the holder(s) of such Subordinated Debt. Notwithstanding the foregoing,
Lender agrees that the conversion or exchange into Borrower’s equity securities of any Subordinated Debt and the payment of cash
in lieu of fractional shares shall not be prohibited by this Section 6.13.


 


6.14 Subsidiaries.




 


(a) Acquire
or create any Subsidiary, unless such Subsidiary becomes, at Lender’s option, either a co-borrower hereunder or executes and
delivers to Lender one or more agreements, in form and substance reasonably satisfactory to Lender, containing a guaranty of the
Obligations that is secured by first priority Liens on such Person’s assets, subject to Permitted Liens. For clarity, the
parties acknowledge and agree that Lender shall have the exclusive right to determine whether any such Person will be made a co-borrower hereunder or a guarantor of the Obligations. Prior to the acquisition or creation of any such Subsidiary, Borrower shall
notify Lender thereof in writing, which notice shall contain the jurisdiction of such Person’s formation and include a
description of such Person’s fully diluted capitalization and Borrower’s purpose for its acquisition or creation of such
Subsidiary. Notwithstanding the foregoing, solely in the circumstance in which Borrower or any Subsidiary creates or acquires a
Foreign Subsidiary in an acquisition permitted hereby or as otherwise approved by Lender, (i) such Foreign Subsidiary shall not be
required to guarantee the Obligations of Borrower under the Loan Documents and grant a continuing pledge and security interest in
and to the assets of such Foreign Subsidiary, and (ii) Borrower shall not be required to grant and pledge to Lender a perfected
security interest in more than sixty five percent (65%) of the Shares of such Foreign Subsidiary, if (A) Borrower demonstrates to the
reasonable satisfaction of Lender that such Foreign Subsidiary providing such guarantee or pledge and security interest or Borrower
providing a perfected security interest in more than sixty five percent (65%) of the Shares would create a present and existing
adverse tax consequence to Borrower under the U.S. Internal Revenue Code; (B) no Intellectual Property is held or maintained by such
Foreign Subsidiary at any time (unless otherwise consented to in writing by Lender); and (C) subject to Section 6.6(f), the
aggregate value of cash and cash equivalents held or maintained by such Foreign Subsidiary does not exceed $100,000 (or such greater
amount as required to be retained in order to comply with applicable local laws and regulations or as otherwise consented to by
Lender) at any time. For the avoidance of doubt, it is understood and agreed that no Foreign Subsidiary in existence as of the
Closing Date shall be required, as of the Closing Date, to guarantee the Obligations of Borrower under the Loan Documents or grant a
continuing pledge and security interest in and to the assets of such Foreign Subsidiary.


 






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(b) Sell,
transfer, encumber or otherwise dispose of Borrower’s ownership interest in any Subsidiary other than Permitted Liens or any transfer
expressly permitted under Section 6.5.


 


(c) Cause
or permit a Subsidiary to do any of the following: (i) grant Liens on such Subsidiary’s assets, except for Liens that would constitute
Permitted Liens if incurred by Borrower and Liens on any property held or acquired by such Subsidiary in the ordinary course of its business
securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring such property; provided,
that such Lien attaches solely to the property acquired with such Indebtedness and that the principal amount of such Indebtedness does
not exceed one hundred percent (100%) of the cost of such property; and (ii) issue any additional Shares, except to Borrower or a wholly
owned Subsidiary of Borrower.


 


(d) Notwithstanding
any other provision of this Agreement or the Supplement to the contrary, Borrower shall not invest in or loan to, directly or indirectly,
or cause or permit any Excluded Subsidiary, to maintain, cash or other assets of a value in excess of such amounts as are expressly permitted
under Section 6.6(f) during the term of this Agreement.


 


6.15 Leases.
Create, incur, assume, or suffer to exist any obligation as lessee for the rental or hire of any personal property
(“Personal Property Leases”), except for Personal Property Leases of Equipment in the ordinary course of business
that do not in the aggregate require Borrower to make payments (including taxes, insurance, maintenance and similar expenses which
Borrower is required to pay under the terms of any such lease) in any calendar year in excess of $600,000 in aggregate amount. For
the avoidance of doubt, this Section 6.15 will not be applicable to Indebtedness otherwise permitted under Section 6.1(f) of this
Agreement.


 


6.16 Anti-Corruption
Laws.




 


(a) Take
any action that would cause a violation of any anti-corruption law, including but not limited to, the Foreign Corrupt Practices Act, the
United Kingdom Bribery Act, and all other applicable anti-corruption laws.


 


(b) Directly
or indirectly, offer, pay, give, promise or authorize the payment of any money, gift, or anything of value to any person acting in an
official capacity for any government department, agency, or instrumentality, including state-owned or controlled companies or entities,
and public international organizations, as well as a political party or official thereof or candidates for political office, except in
compliance with applicable law.


 


ARTICLE 7 - EVENTS OF DEFAULT


 


7.1 Events
of Default; Acceleration. Upon the occurrence and during the continuation of any Event of Default, the obligation of Lender to make
any additional Loan shall be suspended. The occurrence and continuation of any of the following (each, an “Event of Default”)
shall at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under
any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment
or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract
or applicable law:


 


(a) Borrower
shall fail to pay any principal or interest under this Agreement or any Note, or fail to pay any fees or other charges when due under
any Loan Document, and such failure continues for three (3) Business Days or more after the same first becomes due; or an Event of Default
as defined in any other Loan Document shall have occurred.


 






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(b) Any
representation or warranty made, or financial statement, certificate or other document provided, by Borrower under any Loan
Document, taken together with all such representations, warranties, statements, certificates and documents, shall prove to have been
false or misleading in any material respect when made or deemed made herein.


 


(c) The
occurrence of a Material Adverse Effect.


 


(d) (i)
Borrower shall fail to pay its debts generally as they become due; or (ii) Borrower shall commence any Insolvency Proceeding with respect
to itself, an involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit
of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and
such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45)
days; or (iii) the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction
or series of related transactions deemed to be a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s
charter documents); or (iv) Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to any of
the foregoing.


 


(e) Borrower
shall be in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase
of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the
Threshold Amount.


 


(f) Any
governmental or regulatory authority shall take any final and non-appealable judicial or administrative action, or any defined benefit
pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the reasonable judgment of Lender, could reasonably
be expected to have a Material Adverse Effect.


 


(g) Any
sale, transfer or other disposition of all or a substantial or material part of the assets of Borrower, including without limitation to
any trust or similar entity, shall occur.


 


(h) Any
judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated
or unstayed pending appeal for thirty (30) or more days after entry thereof (other than those Borrower has tendered to its insurer and
for which the insurer has accepted coverage).


 


(i) Borrower shall
fail to perform or observe any covenant contained in Article 6 of this Agreement.


 


(j) Borrower
shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other
than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant
is not cured within 10 days after the sooner to occur of Borrower’s receipt of notice of such breach from Lender or the date on
which such breach first becomes known to any officer of Borrower (the “Notice Date”); provided, however
that if such breach is not capable of being cured within such 10-day period and Borrower timely notifies Lender of such fact and Borrower
diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice but in no event
more than 30 days from the Notice Date; provided, further, that such 30-day opportunity to cure shall not apply in the
case of any failure to perform or observe any covenant which has been the subject of a prior failure within the preceding 180 days or
which is a willful and knowing breach by Borrower.


 


7.2 Remedies
upon Default. Upon the occurrence and during the continuance of an Event of Default, and upon written notice to Borrower in connection
with any exercise of its right to sell the whole or any part of the Shares hereunder unless following an Event of Default specified under
Section 7.1(d)(ii) or (iii), Lender shall be entitled to, at its option, exercise any or all of the rights and remedies available to a
secured party under the UCC or any other applicable law, and exercise any or all of its rights and remedies provided for in this Agreement
and in any other Loan Document. The obligations of Borrower under this Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any Obligations is rescinded or must otherwise be returned by Lender upon, on account of, or
in connection with, the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though such payment had not been made.


 






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7.3 Sale of
Collateral. Upon the occurrence and during the continuance of an Event of Default, Lender may sell all or any part of the
Collateral, at public or private sales, to itself, a wholesaler, retailer or investor, for cash, upon credit or for future delivery,
and at such price or prices as Lender may deem commercially reasonable. To the extent permitted by law, Borrower hereby specifically
waives all rights of redemption and any rights of stay or appraisal which it has or may have under any applicable law in effect from
time to time. Any such public or private sales shall be held at such times and at such place(s) as Lender may determine. In case of
the sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Lender
until the selling price is paid by the purchaser, but Lender shall not incur any liability in case of the failure of such purchaser
to pay for the Collateral and, in case of any such failure, such Collateral may be resold. Lender may, instead of exercising its
power of sale, proceed to enforce its security interest in the Collateral by seeking a judgment or decree of a court of competent
jurisdiction. Without limiting the generality of the foregoing, if an Event of Default is in existence,


 


(1) Solely
in connection with the exercise of its remedies hereunder, and subject to the rights of any third parties, Lender may license, or sublicense,
on a non-exclusive basis, any Copyrights, Patents or Trademarks on such conditions and in such manner as Lender shall in its sole reasonable
discretion determine is necessary to dispose of the Collateral, excluding, for clarity’s sake any disposition of Intellectual Property
collateral that arises solely from the operation of clause (ii)(x) of the definition of “Collateral”;


 


(2) Lender
may (without assuming any obligations or liability thereunder), at any time and from time to time, enforce (and shall have the exclusive
right to enforce) against any licensee or sublicensee all rights and remedies of Borrower in, to and under any Copyright Licenses, Patent
Licenses or Trademark Licenses and take or refrain from taking any action under any thereof, and Borrower hereby releases Lender from,
and agrees to hold Lender free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken
with respect thereto other than claims arising out of Lender’s gross negligence or willful misconduct; and


 


(3) If, at any time
when Lender shall determine to exercise its right to sell the whole or any part of the Shares hereunder, such Shares or the part
thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act (or any similar
statute), then Lender may, in its discretion (subject only to applicable requirements of law), sell such Shares or part thereof by
private sale in such manner and under such circumstances as Lender may deem necessary or advisable, but subject to the other
requirements of this Article 7, and shall not be required to effect such registration or to cause the same to be effected.
Without limiting the generality of the foregoing, in any such event, Lender in its discretion may (i) in accordance with applicable
securities laws proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such
Shares or part thereof could be or shall have been filed under the Securities Act (or similar statute), (ii) approach and negotiate
with a single possible purchaser to effect such sale, and (iii) restrict such sale to a purchaser who is an accredited investor
under the Securities Act and who will represent and agree that such purchaser is purchasing for its own account, for investment and
not with a view to the distribution or sale of such Shares or any part thereof. In addition to a private sale as provided above in
this Article 7, if any of the Shares shall not be freely distributable to the public without registration under the
Securities Act (or similar statute) at the time of any proposed sale pursuant to this Article 7, then Lender shall not be
required to effect such registration or cause the same to be effected but, in its discretion (subject only to applicable
requirements of law), may require that any sale hereunder (including a sale at auction) be conducted subject to restrictions:


 


 (A) as to the financial sophistication and ability of any Person permitted to bid or purchase at any such sale;




 


(B) as
to the content of legends to be placed upon any certificates representing the Shares sold in such sale, including restrictions on future
transfer thereof;


 


(C) as
to the representations required to be made by each Person bidding or purchasing at such sale relating to such Person’s access to
financial information about Borrower or any of its Subsidiaries and such Person’s intentions as to the holding of the Shares so
sold for investment for its own account and not with a view to the distribution thereof; and


 


(D) as
to such other matters as Lender may, in its discretion, deem necessary or appropriate in order that such sale (notwithstanding any failure
so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights
and the Securities Act and all applicable state securities laws.


 






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(4) Borrower
recognizes that Lender may be unable to effect a public sale of any or all the Shares and may be compelled to resort to one or more
private sales thereof in accordance with clause (4) above. Borrower also acknowledges that any such private sale may result
in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of
such sale being private. Lender shall be under no obligation to delay a sale of any of the Shares for the period of time necessary
to permit the applicable Subsidiary to register such securities for public sale under the Securities Act, or under applicable state
securities laws, even if Borrower and/or the Subsidiary would agree to do so.


 


7.4 Borrower’s
Obligations upon Default. Upon the request of Lender after the occurrence and during the continuance of an Event of Default, Borrower
will:


 


(a) Assemble
and make available to Lender the Collateral at such place(s) as Lender shall reasonably designate, segregating all Collateral so that
each item is capable of identification; and


 


(b) Subject
to the rights of any lessor, permit Lender, by Lender’s officers, employees, agents and representatives, to enter any premises where
any Collateral is located, to take possession of the Collateral, to complete the processing, manufacture or repair of any Collateral,
and to remove the Collateral, or to conduct any public or private sale of the Collateral, all without any liability of Lender for rent
or other compensation for the use of Borrower’s premises.


 


ARTICLE 8 - SPECIAL COLLATERAL
PROVISIONS


 


8.1 Compromise
and Collection. Borrower and Lender recognize that setoffs, counterclaims, defenses and other claims may be asserted by obligors with
respect to certain of the Rights to Payment; that certain of the Rights to Payment may be or become uncollectible in whole or in part;
and that the expense and probability of success of litigating a disputed Right to Payment may exceed the amount that reasonably may be
expected to be recovered with respect to such Right to Payment. Borrower hereby authorizes Lender, after and during the continuance of
an Event of Default, to compromise with the obligor, accept in full payment of any Right to Payment such amount as Lender shall negotiate
with the obligor, or abandon any Right to Payment. Any such action by Lender shall be considered commercially reasonable so long as Lender
acts in good faith based on information known to it at the time it takes any such action.


 


8.2 Performance of
Borrower’s Obligations. Without having any obligation to do so, upon reasonable prior notice to Borrower, Lender may
perform or pay any obligation which Borrower has agreed to perform or pay under this Agreement, including, without limitation, the
payment or discharge of taxes or Liens levied or placed on or threatened against the Collateral. In so performing or paying, Lender
shall determine the action to be taken and the amount necessary to discharge such obligations. Borrower shall reimburse Lender on
demand for any amounts paid by Lender pursuant to this Section, which amounts shall constitute Obligations secured by the Collateral
and shall bear interest from the date of demand at the Default Rate.


 


8.3 Power
of Attorney. For the purpose of protecting and preserving the Collateral and Lender’s rights under this Agreement, Borrower
hereby irrevocably appoints Lender, with full power of substitution, as its attorney-in-fact with full power and authority, after the
occurrence and during the continuance of an Event of Default, to do any act which Borrower is obligated to do hereunder; to exercise such
rights with respect to the Collateral as Borrower might exercise; to use such Inventory, Equipment, Fixtures or other property as Borrower
might use; to enter Borrower’s premises; to give notice of Lender’s security interest in, and to collect the Collateral; and
before or after Default, to execute and file in Borrower’s name any financing statements, amendments and continuation statements,
account control agreements or other Security Documents necessary or desirable to create, maintain, perfect or continue the perfection
of Lender’s security interests in the Collateral. Borrower hereby ratifies all that Lender shall lawfully do or cause to be done
by virtue of this appointment.


 






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8.4 Authorization
for Lender to Take Certain Action. The power of attorney created in Section 8.3 is a power coupled with an interest and shall be irrevocable.
The powers conferred on Lender hereunder are solely to protect its interests in the Collateral and shall not impose any duty upon Lender
to exercise such powers. Lender shall be accountable only for amounts that it actually receives as a result of the exercise of such powers
and in no event shall Lender or any of its directors, officers, employees, agents or representatives be responsible to Borrower for any
act or failure to act, except for gross negligence or willful misconduct. After the occurrence and during the continuance of an Event
of Default, Lender may exercise this power of attorney without notice to or assent of Borrower, in the name of Borrower, or in Lender’s
own name, from time to time in Lender’s sole discretion and at Borrower’s expense. To further carry out the terms of this
Agreement, after the occurrence and during the continuance of an Event of Default, Lender may:


 


(a) Execute any
statements or documents or take possession of, and endorse and collect and receive delivery or payment of, any checks, drafts, notes,
acceptances or other instruments and documents constituting Collateral, or constituting the payment of amounts due and to become due
or any performance to be rendered with respect to the Collateral.


 


(b) Sign
and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts; drafts, certificates and statements
under any commercial or standby letter of credit relating to Collateral; assignments, verifications and notices in connection with Accounts;
or any other documents relating to the Collateral, including without limitation the Records.


 


(c) Use or operate
Collateral or any other property of Borrower for the purpose of preserving or liquidating Collateral.


 


(d) File
any claim or take any other action or proceeding in any court of law or equity or as otherwise deemed appropriate by Lender for the purpose
of collecting any and all monies due or securing any performance to be rendered with respect to the Collateral.


 


(e) Commence,
prosecute or defend any suits, actions or proceedings or as otherwise deemed appropriate by Lender for the purpose of protecting or collecting
the Collateral. In furtherance of this right, upon the occurrence and during the continuance of an Event of Default, Lender may apply
for the appointment of a receiver or similar official to operate Borrower’s business.


 


(f) Prepare,
adjust, execute, deliver and receive payment under insurance claims, and collect and receive payment of and endorse any instrument in
payment of loss or returned premiums or any other insurance refund or return, and apply such amounts at Lender’s sole discretion,
toward repayment of the Obligations or replacement of the Collateral.


 


8.5 Application
of Proceeds. Any Proceeds and other monies or property received by Lender pursuant to the terms of this Agreement or any Loan Document
may be applied by Lender first to the payment of expenses of collection, including without limitation reasonable attorneys’ fees,
and then to the payment of the Obligations in such order of application as Lender may elect.


 


8.6 Deficiency.
If the Proceeds of any disposition of the Collateral are insufficient to cover all costs and expenses of such sale and the payment
in full of all the Obligations, plus all other sums required to be expended or distributed by Lender, then Borrower shall be liable
for any such deficiency.


 


8.7 Lender
Transfer. Upon the transfer of all or any part of the Obligations, Lender may transfer all or part of the Collateral and shall be
fully discharged thereafter from all liability and responsibility with respect to such Collateral so transferred, and the transferee shall
be vested with all the rights and powers of Lender hereunder with respect to such Collateral so transferred, but with respect to any Collateral
not so transferred, Lender shall retain all rights and powers hereby given.


 


8.8 Lender’s
Duties.




 


(a) Lender
shall use reasonable care in the custody and preservation of any Collateral in its possession. Without limitation on other conduct which
may be considered the exercise of reasonable care, Lender shall be deemed to have exercised reasonable care in the custody and preservation
of such Collateral if such Collateral is accorded treatment substantially equal to that which Lender accords its own property, it being
understood that Lender shall not have any responsibility for ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, declining value, tenders or other matters relative to any Collateral, regardless of whether Lender has or is deemed to have
knowledge of such matters; or taking any necessary steps to preserve any rights against any Person with respect to any Collateral. Under
no circumstances shall Lender be responsible for any injury or loss to the Collateral, or any part thereof, arising from any cause beyond
the reasonable control of Lender.


 


(b) Lender
may at any time deliver the Collateral or any part thereof to Borrower and the receipt of Borrower shall be a complete and full acquittance
for the Collateral so delivered, and Lender shall thereafter be discharged from any liability or responsibility therefor.


 


(c) Neither
Lender, nor any of its directors, officers, employees, agents, attorneys or any other person affiliated with or representing Lender shall
be liable for any claims, demands, losses or damages, of any kind whatsoever, made, claimed, incurred or suffered by Borrower or any other
party through the ordinary negligence of Lender, or any of its directors, officers, employees, agents, attorneys or any other person affiliated
with or representing Lender.


 




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8.9 Termination
of Security Interests and Loan Documents. Upon the payment in full of the Obligations (other than inchoate indemnity obligations)
and satisfaction of all Borrower’s obligations under this Agreement and the other Loan Documents, and if Lender has no further obligations
under its Commitment, the security interest granted hereby shall automatically terminate, all rights to the Collateral shall automatically
revert to Borrower and this Agreement and the other Loan Documents shall terminate; provided that (i) those obligations, liabilities,
covenants and terms that are expressly specified herein and in any other Loan Document as surviving that respective agreement’s
termination, including without limitation, Borrower’s indemnity obligations set forth in this Agreement, shall continue to survive
notwithstanding anything to the contrary set forth herein, and (ii) nothing set forth herein shall affect or be deemed to affect those
obligations, liabilities, covenants and terms set forth in any warrant instrument issued to Lender’s parent company or set forth
in any other equity securities or convertible debt securities of Borrower acquired by Lender in connection with this Agreement. Upon any
such termination, Lender shall return all Collateral in its possession or control to Borrower and, at Borrower’s expense, execute
and deliver to Borrower such documents as Borrower shall reasonably request to evidence such termination. In connection therewith, Borrower
agrees to provide Lender with such information as may be reasonably requested by Lender as to whether the securities issuable upon the
exercise of any Warrant issued in connection with this Agreement constitute “qualified small business stock” for purposes
of Section 1202(c) of the Internal Revenue Code and Section 18152.5 of the California Revenue and Taxation Code.


 


ARTICLE 9 - GENERAL PROVISIONS


 


9.1 Notices.
Any notice given by any party under any Loan Document shall be in writing and personally delivered, sent by overnight courier, or United
States mail, postage prepaid, or sent by e-mail, or other authenticated message, charges prepaid, to the other party’s or parties’
addresses shown on the Supplement. Each party may change the physical or electronic address to which notices, requests and other communications
are to be sent by giving written notice of such change to each other party. Notice given by hand delivery shall be deemed received on
the date delivered; if sent by overnight courier, on the next Business Day after delivery to the courier service; if by first class mail,
on the third Business Day after deposit in the U.S. Mail; and if by email, on the date of transmission provided that such transmission
is either confirmed in writing or otherwise recorded.


 


9.2 Binding Effect. The Loan Documents shall be binding upon and inure to the benefit of Borrower and Lender and their respective successors
and assigns; provided, however, that Borrower may not assign or transfer Borrower’s rights or obligations under any Loan Document.
Lender reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, Lender’s
rights and obligations under the Loan Documents provided that, so long as no Event of Default has occurred and is continuing, Lender shall
not assign any of such rights or obligations to any competitor of Borrower. In connection with any of the foregoing, Lender may disclose
all documents and information which Lender now or hereafter may have relating to the Loans, Borrower, or its business, provided that any
Person who receives such information shall have agreed in writing in advance to maintain the confidentiality of such information on terms
no less favorable to Borrower than are set forth in Section 9.13 hereof.


 


9.3 No
Waiver. Any waiver, consent or approval by Lender of any Event of Default or breach of any provision, condition, or covenant of any
Loan Document must be in writing and shall be effective only to the extent set forth in writing. No waiver of any breach or default shall
be deemed a waiver of any later breach or default of the same or any other provision of any Loan Document. No failure or delay on the
part of Lender in exercising any power, right, or privilege under any Loan Document shall operate as a waiver thereof, and no single or
partial exercise of any such power, right, or privilege shall preclude any further exercise thereof or the exercise of any other power,
right or privilege. Lender has the right at its sole option to continue to accept interest and/or principal payments due under the Loan
Documents after default, and such acceptance shall not constitute a waiver of said default or an extension of the maturity of any Loan
unless Lender agrees otherwise in writing.


 


9.4 Rights
Cumulative. All rights and remedies existing under the Loan Documents are cumulative to, and not exclusive of, any other rights or
remedies available under contract or applicable law.


 


9.5 Unenforceable
Provisions. Any provision of any Loan Document executed by Borrower which is prohibited or unenforceable in any jurisdiction, shall
be so only as to such jurisdiction and only to the extent of such prohibition or unenforceability, but all the remaining provisions of
any such Loan Document shall remain valid and enforceable.


 






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9.6 Accounting
Terms. Except as otherwise provided in this Agreement, accounting terms and financial covenants and information shall be
determined and prepared in accordance with GAAP (except for the absence of footnotes and subject to normal year-end
adjustments).


 


9.7 Indemnification;
Exculpation. Borrower shall pay and protect, defend and indemnify Lender and Lender’s employees, officers, directors, shareholders,
affiliates, correspondents, agents and representatives (other than Lender, collectively “Agents”) against, and
hold Lender and each such Agent harmless from, all claims, actions, proceedings, liabilities, damages, losses, expenses (including, without
limitation, attorneys’ fees and costs) and other amounts incurred by Lender and each such Agent, arising from (i) the matters contemplated
by this Agreement or any other Loan Documents, (ii) any dispute between Borrower and a third party, or (iii) any contention that Borrower
has failed to comply with any law, rule, regulation, order or directive applicable to Borrower’s business; provided, however,
that this indemnification shall not apply to any of the foregoing to the extent incurred as the result of Lender’s or any Agent’s
gross negligence or willful misconduct. This indemnification shall survive the payment and satisfaction of all of Borrower’s Obligations
to Lender.


 


9.8
Reimbursement. Borrower shall reimburse Lender for all reasonable and documented costs and expenses, including without
limitation reasonable and documented attorneys’ fees and disbursements expended or incurred by Lender in any arbitration,
mediation, judicial reference, legal action or otherwise in connection with (a) the preparation and negotiation of the Loan
Documents, (b) the amendment and enforcement of the Loan Documents, including without limitation during any workout, attempted
workout, and/or in connection with the rendering of legal advice as to Lender’s rights, remedies and obligations under the
Loan Documents, (c) collecting any sum which becomes due Lender under any Loan Document, (d) any proceeding for declaratory relief,
any counterclaim to any proceeding, or any appeal, or (e) the protection, preservation or enforcement of any rights of Lender. For
the purposes of this section, attorneys’ fees shall include, without limitation, fees incurred in connection with the
following: (1) contempt proceedings; (2) discovery; (3) any motion, proceeding or other activity of any kind in connection with an
Insolvency Proceeding; (4) garnishment, levy, and debtor and third party examinations; and (5) postjudgment motions and proceedings
of any kind, including without limitation any activity taken to collect or enforce any judgment. All of the foregoing costs and
expenses shall be payable upon demand by Lender, and if not paid within forty-five (45) days of presentation of invoices shall bear
interest at the Default Rate.


 


9.9 Execution
in Counterparts; Electronic Signatures. This Agreement and the other Loan Documents may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. This Agreement and each
of the other Loan Documents may be executed by electronic signatures. Borrower and Lender expressly agree to conduct the transactions
contemplated by this Agreement and the other Loan Documents by electronic means (including, without limitation, with respect to the execution,
delivery, storage and transfer of this Agreement and each of the other Loan Documents by electronic means and to the enforceability of
electronic Loan Documents). Delivery of an executed signature page to this Agreement and each of the other Loan Documents by email or
other electronic mail transmission (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
www.docusign.com) shall be effective as delivery of a manually executed counterpart hereof and thereof, as applicable. The words “execution,”
“signed,” “signature” and words of like import herein shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed
signature or the use of a paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law,
including, without limitation, any state law based on the Uniform Electronic Transactions Act.


 


9.10 Entire
Agreement. The Loan Documents are intended by the parties as the final expression of their agreement and therefore contain the entire
agreement between the parties and supersede all prior understandings or agreements concerning the subject matter hereof. This Agreement
may be amended only in a writing signed by Borrower and Lender.


 


9.11 Governing Law
and Jurisdiction.




 


(a) THIS
AGREEMENT AND THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.


 






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(b) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
BORROWER AND LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF
BORROWER AND LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. BORROWER AND LENDER EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.


 


9.12 Waiver
of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, BORROWER AND LENDER EACH WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. BORROWER AND LENDER EACH AGREES
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEMS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS.


 


9.13
Confidentiality. Lender agrees to hold in confidence all confidential information that it receives from Borrower pursuant to the
Loan Documents, except for disclosure as shall be reasonably required: (a) to legal counsel and accountants for Lender (who are
subject to the same confidentiality obligation set forth herein); (b) to other professional advisors to Lender (subject to the same
confidentiality obligation set forth herein); (c) to regulatory officials having jurisdiction over Lender to the extent required by
law; (d) to Lender’s investors and prospective investors (subject to the same confidentiality obligation set forth herein),
and in Lender’s SEC filings as required by law; (e) as required by law or legal process or in connection with any legal
proceeding to which Lender and Borrower are adverse parties; (f) in connection with a disposition or proposed disposition of any or
all of Lender’s rights hereunder to any assignee or participant (subject to the same confidentiality obligation set forth
herein); (g) to Lender’s subsidiaries or Affiliates in connection with their business with Borrower (subject to the same
confidentiality obligation set forth herein); (h) as required by valid order of a court of competent jurisdiction, administrative
agency or governmental body, or by any applicable law, rule, regulation, subpoena, or any other administrative or legal process, or
by applicable regulatory or professional standards, including in connection with any judicial or other proceeding involving Lender
relating to this Agreement and the transactions contemplated hereby; and (i) as required in connection with Lender’s
examination or audit. For purposes of this section, Lender and Borrower agree that “confidential information” shall mean
any information regarding or relating to Borrower other than: (i) information which is or becomes generally available to the public
other than as result of a disclosure by Lender in violation of this section, (ii) information which becomes available to Lender from
any other source (other than Borrower) which Lender does not know is bound by a confidentiality agreement with respect to the
information made available, and (iii) information that Lender knows on a non-confidential basis prior to Borrower disclosing it to
Lender. In addition, Borrower agrees that Lender may use Borrower’s name, logo and/or trademark in connection with certain
promotional materials that Lender may disseminate to the public, including, but are not limited to, brochures, internet website,
press releases and any other materials relating to the fact that Lender has a financing relationship with Borrower.


 




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ARTICLE 10  - DEFINITIONS


 


The definitions appearing
in this Agreement or any Supplement shall be applicable to both the singular and plural forms of the defined terms:


 


“Account” means
any “account,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds
or hereafter acquires any interest and, in any event, shall include, without limitation, all accounts receivable, book debts and other
forms of obligations (other than forms of obligations evidenced by Chattel Paper, Documents or Instruments) now owned or hereafter received
or acquired by or belonging or owing to Borrower (including, without limitation, under any trade name, style or division thereof) whether
arising out of goods sold or services rendered by Borrower or from any other transaction, whether or not the same involves the sale of
goods or services by Borrower (including, without limitation, any such obligation that may be characterized as an account or contract
right under the UCC) and all of Borrower’s rights in, to and under all purchase orders or receipts now owned or hereafter acquired
by it for goods or services, and all of Borrower’s rights to any goods represented by any of the foregoing (including, without limitation,
unpaid seller’s rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed
goods), and all monies due or to become due to Borrower under all purchase orders and contracts for the sale of goods or the performance
of services or both by Borrower or in connection with any other transaction (whether or not yet earned by performance on the part of Borrower),
now in existence or hereafter occurring, including, without limitation, the right to receive the proceeds of said purchase orders and
contracts, and all collateral security and guarantees of any kind given by any Person with respect to any of the foregoing.


 


“Advance Cecil”
means Advance Cecil, Inc.


 


“Advance Cecil Indebtedness”
means owing by Clene Nanomedicine, Inc. to Advance Cecil, pursuant to that certain Loan Agreement (and accompanying promissory note) dated
April 5, 2019 (as amended, modified, or amended and restated from time to time), in an original principal amount of $100,000.


 


“Affiliate” means
any Person which directly or indirectly controls, is controlled by, or is under common control with Borrower. “Control,”
“controlled by” and “under common control with” mean direct or indirect possession of the power to direct or
cause the direction of management or policies (whether through ownership of voting securities, by contract or otherwise); provided,
that control shall be conclusively presumed when any Person or affiliated group directly or indirectly owns five percent (5%) or
more of the securities having ordinary voting power for the election of directors of a corporation.


 


“Agreement” means
this Loan and Security Agreement and each Supplement thereto, as each may be amended or supplemented from time to time.


 


“Bank Services” means
cash management services, treasury, depository, overdraft, electronic funds transfer, automatic clearing house arrangements, cash pooling
arrangements, netting services, merchant services, interest rate swap arrangements, foreign exchange services and other similar arrangements
or financial accommodations, in each case in the ordinary course of business


 


“Bankruptcy Code”
means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended.


 


“Basic Interest”
means the rate of interest payable on the outstanding balance of each Loan at the applicable Designated Rate.


 


“Borrowing Date”
means the Business Day on which the proceeds of a Loan are disbursed by Lender.


 


“Borrowing Request”
means a written request from Borrower in substantially the form of Exhibit “B” to the Supplement, requesting the
funding of one or more Loans on a particular Borrowing Date.


 


“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks in New York City or San Francisco are authorized or required
by law to close.


 


“Change of Control”
means: (a) any sale, license, or other disposition of all or substantially all of the assets of Borrower; (b) any reorganization,
consolidation, merger or other transaction involving Borrower; or (c) any transaction or series of related transactions in which any Person
or two or more Persons acting in concert shall have acquired by contract or otherwise, the power to control the management of Borrower,
or to control the equity interests of Borrower entitled to vote for members of the Board of Directors or equivalent governing body of
Borrower on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire
pursuant to any option right) representing 50% or more of the combined voting power of such securities.


 




    21


     


    

 


“Chattel Paper” means
any “chattel paper,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower
now holds or hereafter acquires any interest.


 


“Clene Australia” means
Clene Australia Pty Ltd., an entity organized under the laws of Australia and a wholly-owned Subsidiary of Clene Inc.


 


“Clene Netherlands”
means Clene Netherlands B.V., an entity organized under the laws of the Netherlands and a wholly-owned Subsidiary of Clene Inc.


 


“Closing Date”
means the date of this Agreement.


 


“Collateral” means
all of Borrower’s right, title and interest in and to the following property, whether now owned or hereafter acquired and wherever
located: (a) all Receivables; (b) all Equipment; (c) all Fixtures; (d) all General Intangibles; (e) all Inventory; (f) all Investment
Property; (g) all Deposit Accounts; (h) all Shares; (i) all other Goods and personal property of Borrower, whether tangible or intangible
and whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located; (j) all Records;
and (k) all Proceeds of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products
of each of the foregoing.


 


Notwithstanding
the foregoing the term “Collateral” shall not include: (i) more than sixty-five percent (65%) of the issued and
outstanding capital stock, membership units or other securities entitled to vote owned or held of record by Borrower in any
Subsidiary that is a controlled foreign corporation (as defined in the Internal Revenue Code), if Borrower demonstrates to
Lender’s reasonable satisfaction that a pledge of more than sixty-five percent (65%) of the Shares of such Subsidiary creates
a present and existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code; provided that the Collateral shall
include one hundred percent (100%) of the issued and outstanding non-voting capital stock of such Subsidiary; (ii) (x) any
Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property;
provided further that, if a judicial authority (including a U.S. Bankruptcy Court) holds (or, would hold, but for this proviso) that
a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such
property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date,
include the Intellectual Property, subject to the rights of third parties with respect to such Intellectual Property and solely to
the extent necessary to permit perfection of Lender’s security interest in such Accounts and such other property of Borrower
that are proceeds of the Intellectual Property; and (y) “intent-to-use” trademarks at all times prior to the first use
thereof, whether by the actual use thereof in commerce, the recording of a statement of use with the United States Patent and
Trademark Office or otherwise, but only to the extent the granting of a security interest in such “intent to use”
trademarks would be contrary to applicable law; or (iii) any contract, Instrument or Chattel Paper in which Borrower has any right,
title or interest if and to the extent such contract, Instrument or Chattel Paper includes a provision containing a restriction on
assignment such that the creation of a security interest in the right, title or interest of Borrower therein would be prohibited and
would, in and of itself, cause or result in a default thereunder enabling another person party to such contract, Instrument or
Chattel Paper to enforce any remedy with respect thereto; provided, however, that the foregoing exclusion shall not apply if
(A) such prohibition has been waived or such other person has otherwise consented to the creation hereunder of a security interest
in such contract, Instrument or Chattel Paper, or (B) such prohibition would be rendered ineffective pursuant to Sections 9-407(a)
or 9-408(a) of the UCC, as applicable and as then in effect in any relevant jurisdiction, or any other applicable law (including the
Bankruptcy Code or principles of equity); provided, further, that immediately upon the ineffectiveness, lapse or termination
of any such provision, the term “Collateral” shall include, and Borrower shall be deemed to have granted a security
interest in, all its rights, title and interests in and to such contract, Instrument or Chattel Paper as if such provision had never
been in effect; and provided further that the foregoing exclusion shall in no way be construed so as to limit, impair or otherwise
affect Lender’s unconditional continuing security interest in and to all rights, title and interests of Borrower in or to any
payment obligations or other rights to receive monies due or to become due under any such contract, Instrument or Chattel Paper and
in any such monies and other proceeds of such contract, Instrument or Chattel Paper.


 


“Commitment” means
the obligation of Lender to make Loans to Borrower up to the aggregate principal amount set forth in the Supplement.


 


“Copyright License”
means any written agreement granting any right to use any Copyright or Copyright registration now owned or hereafter acquired by Borrower
or in which Borrower now holds or hereafter acquires any interest.


 




    22


     


    

 


“Copyrights” means
all of the following now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest:
(i) all copyrights, whether registered or unregistered, held pursuant to the laws of the United States, any State thereof or of any
other country; (ii) all registrations, applications and recordings in the United States Copyright Office or in any similar office or
agency of the United States, any State thereof or any other country; (iii) all continuations, renewals or extensions thereof; and
(iv) any registrations to be issued under any pending applications.


 


“d’Orbital”
means d’Orbital, Inc., a Delaware corporation and a wholly-owned Subsidiary of Clene Inc.


 


“Default” means
an event which with the giving of notice, passage of time, or both would constitute an Event of Default.


 


“Default Rate” means
the applicable Designated Rate plus five percent (5%) per annum.


 


“Deposit Accounts”
means any “deposit accounts,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which
Borrower now holds or hereafter acquires any interest.


 


“Designated Rate” means
the rate of interest per annum described in the Supplement as being applicable to an outstanding Loan from time to time.


 


“Documents” means
any “documents,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now
holds or hereafter acquires any interest.


 


“Dollars” or “$”
means lawful currency of the United States.


 


“Environmental Laws”
means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative
orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any governmental authorities, in each
case relating to environmental, health, or safety matters.


 


“Equipment”
means any “equipment,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower
now holds or hereafter acquires any interest and any and all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.


 


“Event of Default”
means any event described in Section 7.1.


 


“Excluded Subsidiary”
means each, and “Excluded Subsidiaries” means all, of Clene Australia, Clene Netherlands and d’Orbital.


 


“Excluded Account”
means any Deposit Accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit
of Borrower’s employees, any cash collateral account securing repayment of indebtedness permitted under Section 6.1(g) hereof, and,
for the avoidance of doubt, any foreign accounts of any Subsidiary which does not guarantee (or become a co-borrower under) this Agreement;
in each case, identified to Lender in writing as such.


 


“Fixtures” means
any “fixtures,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds
or hereafter acquires any interest.


 


“Foreign Subsidiary”
is a Subsidiary that is not an entity organized under the laws of the United States or any territory thereof.


 


“GAAP” means
generally accepted accounting principles and practices consistent with those principles and practices promulgated or adopted by the Financial
Accounting Standards Board and the Board of the American Institute of Certified Public Accountants, their respective predecessors and
successors. Each accounting term used but not otherwise expressly defined herein shall have the meaning given it by GAAP.


 






    23


     


    

 


“General
Intangibles” means any “general intangibles,” as such term is defined in the UCC, now owned or hereafter
acquired by Borrower or in which Borrower now holds or hereafter acquires any interest and, in any event, shall include, without
limitation, all right, title and interest that Borrower may now or hereafter have in or under any contract, all customer lists,
Copyrights, Trademarks, Patents, websites, domain names, and all applications therefor and reissues, extensions, or renewals
thereof, other items of, and rights to, Intellectual Property, interests in partnerships, joint ventures and other business
associations, Licenses, permits, trade secrets, proprietary or confidential information, inventions (whether or not patented or
patentable), technical information, procedures, designs, knowledge, know-how, software, data bases, data, skill, expertise, recipes,
experience, processes, models, drawings, materials and records, goodwill (including, without limitation, the goodwill associated
with any Trademark, Trademark registration or Trademark licensed under any Trademark License), claims in or under insurance
policies, including unearned premiums, uncertificated securities, money, cash or cash equivalents, deposit, checking and other bank
accounts, rights to sue for past, present and future infringement of Copyrights, Trademarks and Patents, rights to receive tax
refunds and other payments and rights of indemnification.


 


“Goods” means any
“goods,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now holds or
hereafter acquires any interest.


 


“Indebtedness”
of any Person means at any date, without duplication and without regard to whether matured or unmatured, absolute or contingent: (i) all
obligations of such Person for borrowed money; (ii) all obligations of such Person evidenced by bonds, debentures, notes, or other similar
instruments; (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business; (iv) all obligations of such Person as lessee under capital leases; (v) all obligations of
such Person to reimburse or prepay any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance,
or similar instrument, whether drawn or undrawn; (vi) all obligations of such Person to purchase securities which arise out of or in connection
with the sale of the same or substantially similar securities; (vii) all obligations of such Person to purchase, redeem, exchange, convert
or otherwise acquire for value any capital stock of such Person or any warrants, rights or options to acquire such capital stock, now
or hereafter outstanding, except to the extent that such obligations remain performable solely at the option of such Person; (viii) all
obligations to repurchase assets previously sold (including any obligation to repurchase any accounts or chattel paper under any factoring,
receivables purchase, or similar arrangement); (ix) obligations of such Person under interest rate swap, cap, collar or similar hedging
arrangements; and (x) all obligations of others of any type described in clause (i) through clause (ix) above guaranteed by such Person.


 


“Insolvency
Proceeding” means with respect to a Person (a) any case, action or proceeding before any court or other governmental
authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors with respect to such Person, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets
for creditors, or other, similar arrangement in respect of such Person’s creditors generally or any substantial portion of its
creditors, undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code, but in each case, excluding any
avoidance or similar action against such Person commenced by an assignee for the benefit of creditors, bankruptcy trustee, debtor in
possession, or other representative of another Person or such other Person’s estate.


 


“Instruments” means
any “instrument,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which Borrower now
holds or hereafter acquires any interest.


 


“Intellectual Property”
means all of Borrower’s Copyrights, Trademarks, Patents, Licenses, trade secrets, source codes, customer lists, proprietary or confidential
information, inventions (whether or not patented or patentable), technical information, procedures, designs, knowledge, know-how, software,
data bases, skill, expertise, experience, processes, models, drawings, materials, records and goodwill associated with the foregoing.


 


“Inventory” means
any “inventory,” as such term is defined in the UCC, wherever located, now owned or hereafter acquired by Borrower or in which
Borrower now holds or hereafter acquires any interest, and, in any event, shall include, without limitation, all inventory, goods and
other personal property that are held by or on behalf of Borrower for sale or lease or are furnished or are to be furnished under a contract
of service or that constitute raw materials, work in process or materials used or consumed or to be used or consumed in Borrower’s
business, or the processing, packaging, promotion, delivery or shipping of the same, and all finished goods, whether or not the same is
in transit or in the constructive, actual or exclusive possession of Borrower or is held by others for Borrower’s account, including,
without limitation, all goods covered by purchase orders and contracts with suppliers and all goods billed and held by suppliers and all
such property that may be in the possession or custody of any carriers, forwarding agents, truckers, warehousemen, vendors, selling agents
or other Persons.


 


“Investment Property”
means any “investment property,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in which
Borrower now holds or hereafter acquires any interest.


 


“Letter
of Credit Rights” means any “letter of credit rights,” as such term is defined in the UCC, now owned or
hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest, including any right to payment
under any letter of credit.


 






    24


     


    

 


“License” means
any Copyright License, Patent License, Trademark License or other license of rights or interests now held or hereafter acquired by Borrower
or in which Borrower now holds or hereafter acquires any interest and any renewals or extensions thereof.


 


“Lien” means
any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance, levy, lien or charge of any
kind, whether voluntarily incurred or arising by operation of law or otherwise, against any property, any conditional sale or other title
retention agreement, any lease in the nature of a security interest, and the filing of any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the nature of a security interest) under the UCC or comparable law of any jurisdiction.


 


“Loan” means an
extension of credit by Lender under this Agreement.


 


“Loan Documents”
means, individually and collectively, this Loan and Security Agreement, each Supplement, each Note, and any other security or pledge agreement(s),
any Warrant issued by Borrower in connection with this Agreement, and all other contracts, instruments, addenda and documents executed
in connection with this Agreement or the extensions of credit which are the subject of this Agreement.


 


“Maryland HCD” means
the Department of Housing and Community Development, a principal department of the State of Maryland.


 


“Maryland Indebtedness”
means the Advance Cecil Indebtedness and the Maryland HCD Indebtedness.


 


“Maryland HCD Indebtedness”
means Indebtedness in the original principal amount of Five Hundred Thousand Dollars ($500,000) owing by Clene Nanomedicine, Inc.
to the Maryland HCD, pursuant to that certain Loan Agreement by and between Clene Inc. and the Maryland HCD dated as of February 22, 2019
(as amended, modified, or amended and restated from time to time).


 


“Maryland HCD Lien”
means the Lien to secure repayment of the Maryland HCD Indebtedness, provided that such Lien is limited to the building and equipment
financed with such Maryland HCD Indebtedness, and the Proceeds thereof.


 


“Material Adverse Effect”
or “Material Adverse Change” means (a) a material adverse change in, or a material adverse effect upon, the
operations, business, properties, or financial condition of Borrower; (b) a material impairment of the ability of Borrower to perform
under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against Borrower
of any Loan Document.


 


“Material Contract”
means any indenture, agreement or contract that has been publicly disclosed in connection with the Borrower’s required reporting
to the SEC.


 


“Note” means
a promissory note substantially in the form attached to the Supplement as Exhibit “A”, executed by Borrower evidencing
each Loan.


 


“Obligations”
means all debts, obligations and liabilities of Borrower to Lender now or hereafter made, incurred or created under, pursuant to or in
connection with this Agreement or any other Loan Document (other than the Warrant), whether voluntary or involuntary and however arising
or evidenced, whether direct or acquired by Lender by assignment or succession, whether due or not due, absolute or contingent, liquidated
or unliquidated, determined or undetermined, and whether Borrower may be liable individually or jointly, or whether recovery upon such
debt may be or become barred by any statute of limitations or otherwise unenforceable; and all renewals, extensions and modifications
thereof; and all attorneys’ fees and costs incurred by Lender in connection with the collection and enforcement thereof as provided
for in any such Loan Document.


 


“Patent License”
means any written agreement granting any right with respect to any invention on which a Patent is in existence now owned or hereafter
acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.


 


“Patents” means
all of the following property now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any
interest: (a) all letters patent of, or rights corresponding thereto in, the United States or any other country, all registrations
and recordings thereof, and all applications for letters patent of, or rights corresponding thereto in, the United States or any
other country, including, without limitation, registrations, recordings and applications in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State thereof or any other country; (b) all reissues,
continuations, continuations-in-part or extensions thereof; (c) all petty patents, divisionals, and patents of addition; and (d) all
patents to be issued under any such applications.


 






    25


     


    

 


“Permitted Lien” means:


 


(a) involuntary
Liens which, in the aggregate, would not have a Material Adverse Effect and which in any event would not exceed, in the aggregate, the
Threshold Amount;


 


(b) Liens
for current taxes or other governmental or regulatory assessments which are not delinquent, or which are contested in good faith by the
appropriate procedures and for which appropriate reserves are maintained;


 


(c) security
interests on any property held or acquired by Borrower in the ordinary course of business securing Indebtedness incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such property; provided, that such Lien attaches solely to the
property acquired with such Indebtedness (and the Proceeds thereof) and that the principal amount of such Indebtedness does not exceed
one hundred percent (100%) of the cost of such property;


 


 (d) Liens in favor of Lender;




 


(e) bankers’
liens, rights of setoff and similar Liens incurred on deposits made in the ordinary course of business as long as an account control agreement
(or equivalent) for each account in which such deposits are held in a form acceptable to Lender has been executed and delivered to Lender
to the extent required under Section 6.11;


 


(f) materialmen’s,
mechanics’, repairmen’s, warehousemen’s, carriers’, landlord’s (subject to Section 5.9(e) hereof), employees’
or other like Liens arising in the ordinary course of business and which are not delinquent for more than 45 days or are being contested
in good faith by appropriate proceedings;


 


(g) any
judgment, attachment or similar Lien, unless the judgment it secures exceeds the Threshold Amount and has not been discharged or execution
thereof effectively stayed and bonded against pending appeal within 30 days of the entry thereof;


 


(h) licenses
or sublicenses of Intellectual Property in accordance with the terms of Section 6.5 hereof;


 


 (i) Liens securing Subordinated Debt;


 




(j) Liens
which have been approved by Lender in writing prior to the Closing Date, as shown on Schedule 6.2 hereto, including but not limited
to the Maryland HCD Lien;


 


(k) the
interests of licensors under inbound licenses to Borrower;


 


(l) the
interests of sub-lessees under subleases of real property and statutory or common law Liens of landlords;


 


(m) Liens
to secure payment of workers’ compensation, employment insurance, old-age pensions, social security and other like obligations incurred
in the ordinary course of business (other than Liens imposed by ERISA);


 


(n) deposits
to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than capital lease obligations), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature arising as a matter of law and incurred
in the ordinary course of business; and


 


(o) zoning
restrictions, easements, rights of way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course
of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries.


 


“Person” means
any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, other entity or government (whether federal, state, county, city, municipal,
local, foreign, or otherwise, including any instrumentality, division, agency, body or department thereof).


 






    26


     


    

 


“Proceeds” means
“proceeds,” as such term is defined in the UCC and, in any event, shall include, without limitation, (a) any and all
Accounts, Chattel Paper, Instruments, cash or other forms of money or currency or other proceeds payable to Borrower from time to
time in respect of the Collateral, (b) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to Borrower
from time to time with respect to any of the Collateral, (c) any and all payments (in any form whatsoever) made or due and payable
to Borrower from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any Person acting under color of governmental authority), (d) any claim of
Borrower against third parties (i) for past, present or future infringement of any Copyright, Patent or Patent License or (ii) for
past, present or future infringement or dilution of any Trademark or Trademark License or for injury to the goodwill associated with
any Trademark, Trademark registration or Trademark licensed under any Trademark License and (e) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.


 


“Receivables” means
all of Borrower’s Accounts, Instruments, Documents, Chattel Paper, Supporting Obligations, and letters of credit and Letter of Credit
Rights.


 


“Records” means
all Borrower’s computer programs, software, hardware, source codes and data processing information, all written documents, books,
invoices, ledger sheets, financial information and statements, and all other writings concerning Borrower’s business.


 


“Related Person”
means any Affiliate of Borrower, or any officer, employee, director or equity security holder of Borrower or any Affiliate.


 


“Rights to Payment”
means all Borrower’s accounts, instruments, contract rights, documents, chattel paper and all other rights to payment, including,
without limitation, the Accounts, all negotiable certificates of deposit and all rights to payment under any Patent License, any Trademark
License, or any commercial or standby letter of credit.


 


“Security Documents”
means this Loan and Security Agreement, the Supplement hereto, and any and all account control agreements, collateral assignments,
chattel mortgages, financing statements, amendments to any of the foregoing and other documents from time to time executed or filed to
create, perfect or maintain the perfection of Lender’s Liens on the Collateral.


 


“Shares” means:
one hundred percent (100%) of the issued and outstanding capital stock, membership units or other securities owned or held of record
by Borrower in any Subsidiary; provided that, in the event Borrower demonstrates to Lender’s reasonable satisfaction that a
pledge of more than sixty five percent (65%) of the Shares of such Subsidiary which is a Foreign Subsidiary, creates a present and
existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code, “Shares” shall mean sixty five
percent (65%) of the issued and outstanding capital stock, membership units or other securities owned or held of record by Borrower
or its Subsidiary in such Foreign Subsidiary.


 


“Subordinated Debt”
means Indebtedness (i) approved by Lender; and (ii) where the holder’s right to payment of such Indebtedness, the priority of any
Lien securing the same, and the rights of the holder thereof to enforce remedies against Borrower following default have been made subordinate
to the Liens of Lender and to the prior payment to Lender of the Obligations, either (A) pursuant to a written subordination agreement
approved by Lender in its sole but reasonable discretion or (B) on terms otherwise approved by Lender in its sole but reasonable discretion.


 


“Subsidiary”
means any Person a majority of the equity ownership or voting stock of which is directly or indirectly now owned or hereafter acquired
by Borrower or by one or more other Subsidiaries.


 


“Supplement” means
that certain supplement to the Loan and Security Agreement, as the same may be amended or restated from time to time, and any other supplements
entered into between Borrower and Lender, as the same may be amended or restated from time to time.


 


“Supporting Obligations”
means any “supporting obligations,” as such term is defined in the UCC, now owned or hereafter acquired by Borrower or in
which Borrower now holds or hereafter acquires any interest.


 


“Termination Date”
has the meaning specified in the Supplement.


 


“Threshold Amount”
has the meaning specified in the Supplement.


 


“Trademark License”
means any written agreement granting any right to use any Trademark or Trademark registration now owned or hereafter acquired by Borrower
or in which Borrower now holds or hereafter acquires any interest.


 






    27


     


    

 


“Trademarks” means
all of the following property now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any
interest: (a) all trademarks, tradenames, corporate names, business names, trade styles, service marks, logos, other source or
business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of
like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and any applications in
connection therewith, including, without limitation, registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political
subdivision thereof and (b) reissues, extensions or renewals thereof.


 


“UCC” means
the Uniform Commercial Code as the same may, from time to time, be in effect in the State of California; provided, that in the
event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect
to, Lender’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other
than the State of California, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes
of definitions related to such provisions. Unless otherwise defined herein, terms that are defined in the UCC and used herein shall have
the meanings given to them in the UCC.


 


“Warrant” has the
meaning specified in the Supplement.


 


[Signature page follows]








 






     


     


    

 


[Signature page to Loan and
Security Agreement]


 


IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.


 


	BORROWER:	 
			 
	CLENE INC.	 
			 
	By:
    	/s/
    Rob Etherington	 
	Name: 
    	Rob
    Etherington	 
	Title:	President	 
			 
	CLENE NANOMEDICINE,
    INC.	 
			 
	By:
    	/s/
    Rob Etherington	 
	Name:
    	Rob
    Etherington	 
	Title:	President	 
			 
	LENDER:	 
			 
	AVENUE VENTURE
    OPPORTUNITIES FUND, L.P.	 
			 
	By:	Avenue Venture Opportunities
    Partners, LLC	 
	Its:	General Partner	 
			 
	By:
    	/s/
    Sonia Gardner	 
	Name:
    	Sonia
    Gardner	 
	Title:	Authorized Signatory	 



 


[Schedules to Loan and Security Agreement follow]


 




     


     


    

 


Schedules to


Loan and Security Agreement

dated as of
May 21, 2021


among


CLENE INC.,


CLENE NANOMEDICINE, INC.


and


Avenue Venture Opportunities Fund, L.P.


 





 



 


 


Schedule of Exceptions


 


See attachment hereto.


 


Schedule 6.1. Permitted Indebtedness


 


Schedule 6.2. Permitted Liens