Consulting
Agreement


 


THIS
CONSULTING AGREEMENT (the “Agreement”) is effective as the last date provided for on the signature page and is entered
into by and between Mark L. Baum, an individual (“Consultant”) and Surface Pharmaceuticals, Inc., a Delaware corporation
with its principal address located at 12264 El Camino Real, Suite 350, San Diego, CA 92130 (the “Company”).


 


WHEREAS,
the Company wishes to retain Consultant as an advisor to the Company; and


 


WHEREAS,
Consultant wishes to provide advisory services to the Company as set forth below.


 


NOW
THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Consultant and the Company agree, intending to be legally bound, as follows:


 


	1.	Consulting
    Services.


 


	 	1.1.	Consultant
    will provide consulting services to the Company during the Term (as further defined below) of this Agreement. The consulting
    services (“Services”) are set forth in the Statement of Work (“SOW”) that is attached hereto as Appendix
    A and made a part hereof, as it may be amended from time to time by the parties hereto. Consultant shall perform all
    Services in compliance with all applicable laws.


 


	2.	Effective
    Date; Term and Termination.


 














	 	2.1.	This
    Agreement shall be effective on the later of the dates that it is executed by the Company and Consultant (the “Effective
    Date”) and shall terminate as of the date Services are completed (the “Term” as further defined and outlined
    in Appendix A) unless: (i) this Agreement is sooner terminated as provided in Section 2.2 below; or (ii) the
    parties agree in writing to extend the Term for a mutually agreed upon period.
	 	 	 
	 	2.2.	The
    Agreement and the Services provided by Consultant may be terminated by either Consultant or the Company, at any time and for
    any reason, upon five (5) days prior written notice of termination.







 





	3.	Consulting
    Fees.










 


	 	3.1.	In
    consideration of the Services provided hereunder, the Company shall provide Consultant the compensation as set forth in the
    applicable SOW (“Consulting Fee”).
	 	 	 
	 	3.2.	Consultant
    shall be responsible for all expenses incurred in association with performance of the Services, unless pre-approved by the
    Company in writing in advance.


 


	4.	Confidentiality.
    Consultant acknowledges that Consultant will receive confidential and proprietary information from, on behalf of, or at the
    direction of, the Company in connection with, and during the course of providing, the Services, including but not limited
    to technical, clinical, marketing, commercial and/or legal information, data, reports, drawings, models, designs, prototypes,
    biological material, specimens, chemical compounds, formulas, manufacturing or other processes, software, specifications,
    patent applications, marketing strategies, customer information and customer lists (“Confidential Information”).
    All Confidential Information is and shall at all times remain the exclusive property of the Company. Consultant agrees:


 




    	 



     


    

 


	 	4.1.	to
    hold the Confidential Information in strict confidence and not to disclose or make available any Confidential Information
    to any third party whatsoever, without the prior written consent of the Company;
	 	 	 
	 	4.2.	to
    use the Confidential Information only for the benefit of the Company and only for the purpose of providing the Services;
	 	 	 
	 	4.3.	to
    take at least the same degree of care to prevent disclosure of Confidential Information as Consultant takes to preserve and
    safeguard Consultant’s own confidential and proprietary information, but in any event, no less than a reasonable degree
    of care;
	 	 	 
	 	4.4.	not
    to make copies of the Confidential Information except to the extent that the copies are reasonably necessary for providing
    the Services;
	 	 	 
	 	4.5.	to
    return or destroy (as the Company may direct) any Confidential Information held by Consultant immediately upon termination
    of the Term of this Agreement pursuant to Section 2 above and provide the Company with a letter certifying that all such Confidential
    Information has been returned or destroyed as directed;
	 	 	 
	 	4.6.	that
    Confidential Information excludes information that:


 


	 	(a)	as
    evidenced by Consultant’s written records, was lawfully known to Consultant prior to its communication by, on behalf
    of, or at the direction of the Company and was not communicated to Consultant subject to any restrictions on disclosure or
    use; or
	 	 	 
	 	(b)	as
    evidenced by Consultant’s written records, is independently developed by Consultant without use or knowledge of the
    Confidential Information; or
	 	 	 
	 	(c)	is
    or becomes a part of the public domain other than by a breach of this Agreement by Consultant;
	 	 	 
	 	(d)	becomes
    known to Consultant by the action of a third party not in breach of any obligation of confidence; or
	 	 	 
	 	(e)	is
    required to be disclosed or made available by Consultant to a third party pursuant to any applicable law, governmental regulation,
    or decision of any court or tribunal of competent jurisdiction, so long as Consultant takes reasonable steps, in light of
    the circumstances, to give the Company sufficient prior notice in order to contest such law, governmental regulation, or decision;


 




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	 	4.7.	that
    no representation or warranty, express or implied, is made by the Company as to the accuracy, completeness or reasonableness
    of any Confidential Information and that neither the Company will have any liability to Consultant as a result of Consultant’s
    possession or use of the Confidential information; and
	 	 	 
	 	4.8.	that
    money damages may not be sufficient remedy for any breach of this Section and that the Company will be entitled to seek specific
    performance and injunctive or equitable relief as a remedy for any such breach.
	 	 	 
	 	4.9.	Nothing
    in this Section is intended to limit any remedy of the Company under the California Uniform Trade Secrets Act (California
    Civil Code Section 3426), or otherwise available under law.
	 	 	 
	 	4.10.	Notwithstanding
    the other provisions of this Agreement, pursuant to 18 U.S.C. Section 1833(b), Consultant shall not be held criminally or
    civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence
    to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose
    of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit
    or other proceeding, if such filing is made under seal.


 


	5.	Independent
    Contractor. The relationship of Consultant to the Company shall be that of an independent contractor rendering professional
    services. Consultant is not an employee of the Company. Nothing contained in this Agreement shall be deemed to create a relationship
    of employer and employee or principal and agent between the Company and Consultant. In no circumstance shall Consultant look
    to the Company as Consultant’s employer, partner, agent or principal. Consultant is not entitled to and will be excluded
    from participating in any of Company’s fringe benefit plans or programs as a result of the performance of the Services
    under this Agreement, including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability
    benefits, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage,
    and pension or 401(k) benefit(s) provided by Company to its employees (and Consultant waives the right to receive any such
    benefits). Consultant agrees, as an independent contractor, that Consultant is not entitled to unemployment benefits in the
    event this Agreement terminates, or workers’ compensation benefits in the event that Consultant is injured in any manner
    or becomes ill while performing the work under this Agreement. Consultant is solely responsible for all tax returns, payments,
    or reports required to be filed with or made to any federal, state or local tax authority with respect to Consultant’s
    performance of Services and receipt of consideration (including Consulting Fees) under this Agreement. Consultant is not authorized
    to make any representation, contract or commitment on behalf of the Company unless specifically requested or authorized in
    writing to do so by an executive officer or Board member of the Company.


 




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	6.	Waiver.
    No waiver of this Agreement or any of its provisions shall be binding upon a party unless in writing and signed by each party.
    The waiver by either party of a breach or violation of any provision of this Agreement shall not constitute or be construed
    as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other
    provision.
	 	 
	7.	Severability.
    If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the
    remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced
    by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties
    underlying the invalid, illegal or unenforceable provision.
	 	 
	8.	Survival.
    The provisions of Sections 2.2, 3, 4, 6-11 and any other obligation under this Agreement which is to survive or be performed
    after termination of this Agreement, regardless of the cause therefor, shall survive any termination or expiration of this
    Agreement.
	 	 
	9.	Notices.
    Any notice or other communication required or permitted to be made or given under this Agreement to either party shall be
    in writing and shall be sufficiently given if (i) hand delivered, (ii) sent by overnight guaranteed delivery service, such
    as Federal Express or UPS; or (iii) sent by facsimile transmission or electronic mail during addressee’s normal business
    hours, with a duplicate copy sent by overnight delivery or certified or registered mail, addressed as either party may from
    time to time designate to the other by written notice. Any such notice or other communication shall be deemed to be given
    as of the date it is received by the addressee.
	 	 
	10.	Governing
    Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding
    the choice of law rules, and the parties hereby agree to submit to the jurisdiction and venue of the State and Federal courts
    of the State of California, and agree that the State and Federal courts of the State of California shall be the exclusive
    forum for the resolution of all disputes related to or arising out of this Agreement.
	 	 
	11.	Entire Agreement; Amendments. This Agreement,
including any applicable SOW, represents the entire agreement between the parties in relation to the subject matter contained
herein and supersedes all previous other agreements and representations, whether oral or written. This Agreement may be modified
only if such modification is in writing and signed by a duly authorized representative of each party.


 


***SIGNATURE
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SIGNATURE
PAGE


 


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


 


	COMPANY:





	 	CONSULTANT:






	 	 	 	 	 
	SURFACE
                                         PHARMACEUTICALS, INC.





	 	MARK
                                         L. BAUM






	 	                                              	 	 	 
		/s/
    Andrew Boll	 		/s/
    Mark Baum 
	By:	Andrew
                                         R. Boll

        
	 	By:	Mark
                                         L. Baum

        

	Its:	Executive
                                         Director

        
	 	 	An
    individual
	 	 	 	 	 
	Date:	10/27/2017	 	Date:	10/27/2017


 


	Reviewed
    and approved by: 	 	 
	 	 	 	 
	IMPRIMIS
    PHARMACEUTICALS, INC. 	 	 
	 	 	 
	 	/s/
    Robert  Kammer	 	 
	By:	Robert
    J. Kammer

        
	 	 
	Chairman
                                         of the Surface Committee of 





	 	 
	Imprimis
                                         Pharmaceutical, Inc., 





	 	 
	Parent
                                         Corporation to 





	 	 
	Surface
                                         Pharmaceuticals, Inc.





	 	 


 










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Appendix
A


Statement
of Work 


under
Consulting Agreement 


by
and between 


Mark
L. Baum and Surface Pharmaceuticals, Inc.


 


Services:


 


Consultant
shall provide management advisory services to the Company relating to its establishment, formulation development and optimization,
invention support and other related services as may be requested from time to time by the Company.


 


Compensation:


 


Upon
or shortly following commencement of Consultant’s Services to the Company, the Company shall grant to Consultant 725,000
shares (the “Shares”) of the Company’s restricted common stock, par value $0.001 (“Common Stock”)
under the terms of the Company’s 2017 Equity Incentive Plan (the “Plan”) and a Restricted Stock Award Grant
Notice and Agreement thereunder to be provided to Consultant by the Company (collectively with the Plan, the “Restricted
Stock Documents”).


 


The
Shares shall vest upon the earliest of:


 


	 	(1)	a
    Change in Control (as defined in the Plan);
	 	 	 
	 	(2)	the
    date of any underwriting agreement between the Company and the underwriter(s) managing an initial public offering of the Company’s
    common stock, pursuant to which the common stock is priced for initial public offering (the “IPO”);
	 	 	 
	 	(3)	the
    date of closing of any bona-fide equity financing with third party investors resulting in cash gross proceeds to the Company
    of at least $10,000,000 (“Subsequent Financing”); or
	 	 	 
	 	(4)	immediately
    prior to the one year anniversary of the date of grant of the Shares (as indicated in the Restricted Stock Documents) (the
    “Date of Grant”).


 


and
in any case of (1), (2), (3) and (4), subject to Consultant’s Continuous Service through such vesting date; provided,
however, in the event Consultant’s Continuous Service is terminated by the Company (other than for Cause) or by death
of Consultant prior to the completion of the Term (as defined in this Consulting Agreement), the Shares shall vest immediately
upon such termination.


 


Consultant
understands that that the receipt of the Shares hereunder will trigger tax consequences to Consultant for which Consultant will
be solely responsible and that the Shares have not been registered under the Securities Act of 1933, as amended, or any applicable
state securities law. Consultant must execute the Restricted Stock Documents as a condition to receipt of the Shares hereunder.


 


Term:


 


Consultant
commenced providing Services to the Company on or about July 30, 2017 and shall provide the Services through the earlier of (i)
one year from the Date of Grant, (ii) a Change in Control, (iii) the IPO, (iv) a Subsequent Financing or (v) such earlier date
as the Services are terminated by the Company or Consultant in accordance with this Agreement (the “Term”).


 




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