Second Amendment to Loan and Security Agreement with Oxford Finance, LLC

CONSENT UNDER AND SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT

THIS CONSENT UNDER AND SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of July 3, 2018 (the “Second Amendment Date”), by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 133 North Fairfax Street, Alexandria, Virginia 22314 (in its individual capacity, “Oxford”; and in its capacity as Collateral Agent, “Collateral Agent”), the Lenders listed on Schedule 1.1 thereof from time to time including Oxford in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”), and MABVAX THERAPEUTICS HOLDINGS, INC., a Delaware corporation with offices located at 11533 Sorrento Valley Road, Suite 400, San Diego, CA 92121 (“Holdings”), MABVAX THERAPEUTICS, INC., a Delaware corporation with offices located at 11533 Sorrento Valley Road, Suite 400, San Diego, CA 92121 (“MabVax” and together with Holdings, individually and collectively, jointly and severally, “Borrower”).

WHEREAS, Collateral Agent, Borrower and the Lenders party thereto from time to time have entered into that certain Loan and Security Agreement, dated as of January 15, 2016 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which the Lenders have provided to Borrower certain loans in accordance with the terms and conditions thereof;

WHEREAS, Holdings anticipates entering into a certain Asset Purchase and License Agreement, on July 3, 2018, contract number 43088525, with Boehringer Ingelheim International GmbH, with a principal place of business at Binger Strasse 173, 55216 Ingelheim, Germany (“BII”), the form of which is attached hereto as Exhibit A (the “Asset Purchase and License Agreement”) and in connection with the consummation of the transactions contemplated therein pay certain fees to Greenhill & Co., LLC (“Greenhill”) in the aggregate amount of Three Hundred Eighty-Five Thousand Dollars ($385,000.00) (the “Greenhill Payment”) in six equal monthly installments commencing with the date of the consummation of the transactions contemplated in the Asset Purchase and License Agreement;

WHEREAS, Borrower has requested that Collateral Agent and Lenders consent to the sale, conveyance, assignment and transfer of Borrower’s right, title and interest in and to certain of Borrower’s assets by Borrower to BII pursuant to the Asset Purchase and License Agreement (the “Acquired Assets”), as described in Section 2 hereof, the licenses granted by Borrower to BII pursuant to the Asset Purchase and License Agreement, the release of any encumbrances, if any, under the Loan Agreement that relate to the Acquired Assets, and to the making of the Greenhill Payment, in each case to the extent that such consent may be required pursuant to Section 7.1 of the Loan Agreement;

WHEREAS, Collateral Agent and Lenders have agreed to provide such consents, but only to the extent set forth herein, in accordance with the terms and subject to the conditions set forth herein, and in reliance upon the representations and warranties set forth herein;

NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Lenders and Collateral Agent hereby agree as follows:

require the consent of Collateral Agent or the Lenders or the Required Lenders under the terms of the Loan Agreement). Collateral Agent and Lenders agree that they shall have no right and title to and in the Acquired Assets which are released from the scope of, and shall be unencumbered by the Loan Agreement. For clarity, the Loan Agreement shall not apply to, and shall have no force and effect as far as the Acquired Assets are concerned.

(3) a repayment schedule equal to thirty-six (36) months; provided, however, that the payment of principal that otherwise would have been due on the Amortization Date will be due and payable on May 1, 2017 along with any other payment of principal due on May 1, 2017. Borrower shall make monthly payments of interest only commencing on July 1, 2018, and continuing on the Payment Date of each successive month thereafter through and including December 1, 2018. Commencing on the January 1, 2019, and continuing on the Payment Date of each month thereafter, Borrower shall make consecutive equal monthly payments of principal, together with applicable interest, in arrears, to each Lender, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (1) the unpaid principal amount of such Lender’s Term Loan as of January 1, 2019, (2) the effective rate of interest, as determined in Section 2.3(a), and (3) a repayment schedule equal to fourteen (14) months. The Final Payment and all unpaid principal and accrued and unpaid interest with respect to each Term Loan are due and payable in full on the Maturity Date. Each Term Loan may only be prepaid in accordance with Sections 2.2(c) and 2.2(d).

Borrower and each of its Subsidiaries is the sole owner of the Intellectual Property each respectively purports to own, free and clear of all Liens other than Permitted Liens. (i) Each of Borrower’s and its Subsidiaries’ Copyrights, Trademarks and issued Patents are valid and enforceable and no part of Borrower’s or its Subsidiaries’ Intellectual Property has been judged invalid or unenforceable, in whole or in part, and (ii) to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property or any practice by Borrower or its Subsidiaries violates the rights of any third party except to the extent such claim could not reasonably be expected to have a Material Adverse Change.

Except as noted on the Perfection Certificates, neither Borrower nor any of its Subsidiaries is a party to, nor is bound by, any material license or other material agreement with respect to which Borrower or such Subsidiary is the licensee that (i) prohibits or otherwise restricts Borrower or its Subsidiaries from granting a security interest in Borrower’s or such Subsidiaries’ interest in such material license or material agreement or any other property, or (ii) for which a default under or termination of could interfere with Collateral Agent’s or any Lender’s right to sell any Collateral. Borrower shall provide written notice to Collateral Agent and each Lender within ten (10) days of Borrower or any of its Subsidiaries entering into or becoming bound by any license or agreement with respect to which Borrower or any Subsidiary is the licensee (other than over the counter software that is commercially available to the public).

prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;

Borrower and each of its Subsidiaries shall: (a) use commercially reasonable efforts to protect, defend and maintain the validity and enforceability of its Intellectual Property that is material to Borrower’s business;

(b) promptly advise Collateral Agent in writing of material infringement by a third party of its Intellectual Property; and (c) not allow any Intellectual Property material to Borrower’s business to be abandoned, forfeited or dedicated to the public without Collateral Agent’s prior written consent. If Borrower or any of its Subsidiaries (i) obtains any patent, registered trademark or servicemark, registered copyright, registered mask work, or any pending application for any of the foregoing, whether as owner, licensee or otherwise, or (ii) applies for any patent or the registration of any trademark or servicemark, then Borrower or such Subsidiary shall substantially contemporaneously provide written notice thereof to Collateral Agent and each Lender and shall execute such intellectual property security agreements and other documents and take such other actions as Collateral Agent shall reasonably request in its good faith business judgment to perfect and maintain a first priority perfected security interest in favor of Collateral Agent, for the ratable benefit of the Lenders, in such property. If Borrower or any of its Subsidiaries decides to register any copyrights or mask works in the United States Copyright Office, Borrower or such Subsidiary shall: (x) provide Collateral Agent and each Lender with at least fifteen (15) days prior written notice of Borrower’s or such Subsidiary’s intent to register such copyrights or mask works together with a copy of the application it intends to file with the United States Copyright Office (excluding exhibits thereto); (y) execute an intellectual property security agreement and such other documents and take such other actions as Collateral Agent may reasonably request in its good faith business judgment to perfect and maintain a first priority perfected security interest in favor of Collateral Agent, for the ratable benefit of the Lenders, in the copyrights or mask works intended to be registered with the United States Copyright Office; and (z)

record such intellectual property security agreement with the United States Copyright Office contemporaneously with filing the copyright or mask work application(s) with the United States Copyright Office. Borrower or such Subsidiary shall promptly provide to Collateral Agent and each Lender with evidence of the recording of the intellectual property security agreement necessary for Collateral Agent to perfect and maintain a first priority perfected security interest in such property.

“Loan Documents” are, collectively, this Agreement, the Warrants, the Perfection Certificates, each Compliance Certificate, each Disbursement Letter, the Post Closing Letter, the IP Agreement, any subordination agreements, any note, or notes or guaranties executed by Borrower or any other Person, and any other present or future agreement entered into by Borrower, any Guarantor or any other Person for the benefit of the Lenders and Collateral Agent in connection with this Agreement; all as amended, restated, or otherwise modified.

“Second Amendment Date” is July 3, 2018.

“IP Agreement” is that certain Intellectual Property Security Agreement entered into by and between Borrower and Collateral Agent dated as of the Second Amendment Date, as such may be amended from time to time.

(iv) the organizational documents of Borrower;

[Balance of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first set forth above.

BORROWER:

MABVAX THERAPEUTICS HOLDINGS, INC.

Name: .David Hansen

BORROWER:

MABVAX THERAPEUTICS, INC.

By: /s/ J. David Hansen

COLLATERAL AGENT AND LENDER:

OXFORD FINANCE LLC

By: /s/ Colette H. Featherly

Name: Colette H. Featherly

Title: Senior Vice President

The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property:

All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (including all Intellectual Property), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts and other Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and

All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.