Exhibit
10.1


 


CONSULTING
AGREEMENT


 


This
Consulting Agreement (the “Agreement”) is made effective as of November 30, 2021 (the “Effective Date”), by and
between PULMATRIX, Inc., a Delaware corporation, with its principal place of business being 99 Hayden Avenue, Suite 390, Lexington, MA
02421 (the “Company”) and Danforth Advisors, LLC, a Massachusetts limited liability company, with its principal place of
business being 91 Middle Road, Southborough, MA 01772 (“Danforth”). The Company and Danforth are herein sometimes referred
to individually as a “Party” and collectively as the “Parties.”


 


WHEREAS,
the Company is a clinical stage biopharmaceutical company developing innovative inhaled therapies to address serious pulmonary and non-pulmonary
disease using its patented iSPERSETM technology; and


 


WHEREAS,
Danforth has expertise in financial and corporate operations and strategy; and


 


WHEREAS,
Danforth desires to serve as an independent consultant for the purpose of providing the Company with certain strategic and financial
advice and support services, using personnel described in Exhibit A attached hereto, (the “Services”); and


 


WHEREAS,
the Company wishes to engage Danforth on the terms and conditions set forth herein.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which are hereby acknowledged,
the Parties agree and covenant as follows.


 


	1.	Services
                                            of Consultant. Danforth will assist the Company with matters relating to the Services.
                                            The Services are more fully described in Exhibit A attached hereto. Danforth and the
                                            Company will review the Services on a monthly basis to determine appropriate staffing requirements.
                                            The Company shall have the right to request changes to the Danforth personnel at any time
                                            in writing. If Company makes a written request, Danforth shall replace such personnel subject
                                            to the Company’s right of pre-approval.
	 	 
	2.	Compensation
                                            for Services. In full consideration of Danforth’s full, prompt and faithful performance
                                            of the Services, the Company shall compensate Danforth a consulting fee more fully described
                                            in Exhibit A (the “Consulting Fee”). Danforth shall, from time to time,
                                            but not more frequently than twice per calendar month, invoice the Company for Services rendered,
                                            and such invoice will be paid upon 15 days of receipt. Each month the Parties shall evaluate
                                            jointly the current fee structure and scope of Services. Danforth reserves the right to an
                                            annual increase in consultant rates of up to 4%, effective January 1 of each year. Upon termination
                                            of this Agreement pursuant to Section 3, no compensation or benefits of any kind as described
                                            in this Section 2 shall be payable or issuable to Danforth after the effective date of such
                                            termination. In addition, the Company will reimburse Danforth for reasonable out-of-pocket
                                            business expenses, including but not limited to travel and parking, incurred by Danforth
                                            in performing the Services hereunder, upon submission by Danforth of supporting documentation
                                            reasonably acceptable to the Company. Any such accrued expenses in any given three (3) month
                                            period that exceed $1,000 shall be submitted to the Company for its prior written approval.



 




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All
Danforth invoices and billing matters should be addressed to:


 


Company
Accounts Payable Contact:


 


	 	Name:	Ted
    Raad
	 	Title:	Chief
    Executive Officer
	 	Address:	99
    Hayden Avenue, Suite 390, Lexington, MA 02421
	 	Phone:	781-357-2333
	 	E-mail:	traad@Pulmatrix.com


 


All
Company payments and billing inquiries should be addressed to:


 


	 	Danforth
    Accounting:	Betsy
    Sherr bsherr@danforthadvisors.com
	 	 	(508)
    277-0031
	 	 	Danforth
    Advisors
	 	 	PO
    Box 335
	 	 	Southborough,
    MA 01772


 


	3.	Term
    and Termination. The term of this Agreement will commence on the Effective Date and will continue until such time as either Party
    has given notice of termination pursuant to this paragraph 3 (the “Term”). This Agreement may be terminated by either
    Party hereto: (a) with Cause (as defined below) upon written notice to the other Party; or (b) without cause upon 30 days prior written
    notice to the other Party. For purposes of this Section 3, “Cause” shall include: (i) a breach of the terms of this Agreement
    which is not cured within 10 days of written notice of such default or (ii) the commission of any act of fraud, embezzlement or deliberate
    disregard of a rule or policy of the Company.
	 	 
	4.	Time
    Commitment. Danforth will devote such time to perform the Services under this Agreement as may reasonably be required. Danforth
    does not guarantee time and materials estimates in any way and such estimates are not fixed prices. Danforth will notify the Company
    as soon as practicable if an estimate will be exceeded.
	 	 
	5.	Place
    of Performance. Danforth will perform the Services at such locations upon which the Company and Danforth may mutually agree.
    Danforth will not, without the prior written consent of the Company, perform any of the Services at any facility or in any manner
    that might give anyone other than the Company any rights to or allow for disclosure of any Confidential Information (as defined below).
	 	 
	6.	Compliance
    with Policies and Guidelines. Danforth will perform the Services in accordance with all rules or policies adopted by the Company
    that the Company discloses in writing to Danforth, and in compliance with all applicable laws and regulations.


 




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	7.	Confidential
    Information. Danforth acknowledges and agrees that during the course of performing the Services, the Company may furnish, disclose
    or make available to Danforth information, including, but not limited to, all trade secrets material, compilations, data, formulae,
    models, patent disclosures, procedures, processes, business plans, projections, protocols, results of experimentation and testing,
    specifications, strategies and techniques, and all tangible and intangible embodiments thereof of any kind whatsoever (including,
    but not limited to, any apparatus, biological or chemical materials, animals, cells, compositions, documents, drawings, machinery,
    patent applications, records and reports), which is owned or controlled by the Company and is marked or designated as confidential
    at the time of disclosure or is of a type that is customarily considered to be confidential information (collectively the “Confidential
    Information”). Danforth acknowledges that the Confidential Information or any part thereof is the exclusive property of the
    Company and shall not be used for any purpose whatsoever other than as necessary for the performance of the Services on behalf of
    the Company, or disclosed to any third party without first obtaining the written consent of the Company. Danforth further agrees
    to take all practical steps to ensure that the Confidential Information, and any part thereof, shall not be disclosed or issued to
    its affiliates, agents or employees, except on like terms of confidentiality. The above provisions of confidentiality shall apply
    for a period of five years. Pursuant to the Defend Trade Secrets Act of 2016, Danforth acknowledges that Danforth will not have criminal
    or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence
    to a federal, state, or local government official, either directly or indirectly, or to an attorney and (B) solely for the purpose
    of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or
    other proceeding, if such filing is made under seal. In addition, if Danforth files a lawsuit for retaliation by Company for reporting
    a suspected violation of law, Danforth may disclose the trade secret to its attorney and may use the trade secret information in
    the court proceeding, if Danforth (i) files any document containing the trade secret under seal and (ii) does not disclose the trade
    secret, except pursuant to court order.
	 	 
	8.	Use
    of Name and Logo. The Company agrees to permit the use of its name and logo in a roster of Danforth clients, which may appear
    on the Danforth website and in its marketing materials.
	 	 
	9.	Intellectual
    Property. Danforth agrees that all ideas, inventions, discoveries, creations, manuscripts, properties, innovations, improvements,
    know-how, designs, developments, apparatus, techniques, methods, and formulae that Danforth conceives, makes, develops or improves
    as a result of performing the Services, whether or not reduced to practice and whether or not patentable, alone or in conjunction
    with any other party and whether or not at the request or upon the suggestion of the Company (all of the foregoing being hereinafter
    collectively referred to as the “Inventions”), shall be the sole and exclusive property of the Company and shall be a
    “work made for hire” as that term is defined in the U.S. Copyright Act, and will be the Company’s sole and exclusive
    property. If any Inventions are for any reason not a “work made for hire,” this Agreement constitutes an irrevocable
    assignment to the Company of the copyright to the Inventions throughout the world.


 




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	10.	Non
    Solicitation. All personnel representing Danforth are employees or contracted agents of Danforth. Accordingly, they are not retainable
    as employees or contractors by the Company and the Company hereby agrees not to solicit, hire or retain their services for so long
    as they are employees or contracted agents of Danforth and for two years thereafter. Should the Company violate this restriction,
    it agrees to pay Danforth liquidated damages equal to fifty percent (50%) of the employee’s starting annual base salary and
    target annual bonus for each Danforth contracted agent hired by the Company in violation of this Agreement plus Danforth’s
    reasonable attorneys’ fees and costs incurred in enforcing this agreement should the Company fail or refuse to pay the liquidated
    damages amount in full within 30 days following its violation. For purposes herein, “solicit” does not include broad-based
    recruiting efforts, including, without limitation, help wanted advertising and posting of open positions on a party’s internet
    site.
	 	 
	11.	Placement
    Services. In the event that Danforth refers a potential employee to the Company and that individual is hired, Danforth shall
    receive a fee equal to 20% of the employee’s starting annual base salary and target annual bonus. This fee is due and owing
    whether an individual is hired, directly or indirectly on a permanent basis or on a contract or consulting basis by the Company,
    as a result of Danforth’s efforts within one year of the date applicant(s) are submitted to the Company. Such payment is due
    within 30 days of the employee’s start date.
	 	 
	12.	No
    Implied Warranty. Except for any express warranties stated herein, the Services are provided on an “as is” basis,
    and the Company disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating
    to the Services or any part thereof. Further, in performing the Services, Danforth is not engaged to disclose illegal acts, including
    fraud or defalcations, which may have taken place. The foregoing notwithstanding, Danforth will promptly notify the Company if Danforth
    becomes aware of any such illegal acts during the performance of the Services. Because the Services do not constitute an examination
    in accordance with standards established by the American Institute of Certified Public Accountants (the “AICPA”), Danforth
    is precluded from expressing an opinion as to whether financial statements provided by the Company are in conformity with generally
    accepted accounting principles or any other standards or guidelines promulgated by the AICPA, or whether the underlying financial
    and other data provide a reasonable basis for the statements.
	 	 
	13.	Indemnification.
    Each Party hereto agrees to indemnify and hold the other Party hereto, its directors, officers, agents and employees harmless against
    any claim based upon circumstances alleged to be inconsistent with such representations and/or warranties contained in this Agreement.
    Further, Danforth shall indemnify and hold harmless the Company and any of its managers, officers, directors, employees, trustees,
    shareholders, partners, principals, agents, parents, subsidiaries, and other affiliates and representatives against any claims, losses,
    damages or liabilities (or actions in respect thereof) that arise out of or are based on arising out of the gross negligence or willful
    misconduct of Danforth or any of its subcontractors or representatives. The Company shall indemnify and hold harmless Danforth and
    any of its subcontractors against any claims, losses, damages or liabilities (or actions in respect thereof) that arise out of or
    are based on the Services performed hereunder, except for any such claims, losses, damages or liabilities arising out of the gross
    negligence or willful misconduct of Danforth or any of its subcontractors. The Company will endeavor to add Consultant and any applicable
    subcontractor to its insurance policies as additional insureds. Furthermore, during the Term of this Agreement, if the Company desires
    that Danforth provide treasury services, the Company shall obtain and maintain a Crime and Cyber Insurance Policy that includes coverage
    for “Social Engineering” claims and extends coverage to Danforth.


 




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	14.	D&O
    Insurance. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, Danforth
    staff serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under
    the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain
    such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right
    to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include
    Danforth under the Company’s policy or does not have first dollar coverage acceptable to Danforth in effect for at least $10
    million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors
    alleging prior acts that may give rise to a claim), Danforth may, at its option, attempt to purchase a separate D&O policy that
    will cover the Danforth staff only. The cost of same shall be invoiced to the Company as an out -of -pocket cash expense. If Danforth
    is unable to purchase such D&O insurance, then Danforth reserves the right to terminate the Agreement upon delivery of written
    notice.
	 	 
	15.	Independent
    Contractor. Danforth is not, nor shall Danforth be deemed to be at any time during the term of this Agreement, an employee of
    the Company, and therefore Danforth shall not be entitled to any benefits provided by the Company to its employees, if applicable.
    Danforth’s status and relationship with the Company shall be that of an independent contractor and consultant. Danforth shall
    not state or imply, directly or indirectly, that Danforth is empowered to bind the Company without the Company’s prior written
    consent. Nothing herein shall create, expressly or by implication, a partnership, joint venture or other association between the
    parties. Danforth will be solely responsible for payment of all charges and taxes arising from his or her relationship to the Company
    as a consultant. Except as expressly provided herein, nothing in this Agreement shall preclude Danforth from consulting for or being
    employed by any other person or entity.
	 	 
	16.	Records.
    Upon termination of Danforth’s relationship with the Company, Danforth shall deliver to the Company any property or Confidential
    Information of the Company relating to the Services which may be in its possession including products, project plans, materials,
    memoranda, notes, records, reports, laboratory notebooks, or other documents or photocopies and any such information stored using
    electronic medium.
	 	 
	17.	Notices.
    Any notice under this Agreement shall be in writing (except in the case of verbal communications, emails and teleconferences updating
    either Party as to the status of work hereunder) and shall be deemed delivered upon personal delivery, one day after being sent via
    a reputable nationwide overnight courier service or two days after deposit in the mail or on the next business day following transmittal
    via facsimile. Notices under this


 




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Agreement
shall be sent to the following representatives of the Parties:


 


If
to the Company:


 


	 	Name:	Ted
    Raad
	 	Title:	Chief
    Executive Officer
	 	Address:	99
    Hayden Avenue, Suite 390, Lexington, MA 02421
	 	Phone:	781-357-2333
	 	E-mail:	traad@Pulmatrix.com


 


If
to Danforth:


 


	 	Name:	Gregg
    Beloff
	 	Title:	Managing
    Director
	 	Address:	91
    Middle Road

Southborough, MA 01772
	 	Phone:	(617)
    686-7679
	 	E-mail:	gbeloff@danforthadvisors.com


 


	18.	Assignment
    and Successors. This Agreement may not be assigned by a Party without the consent of the other which consent shall not be unreasonably
    withheld, except that each Party may assign this Agreement and the rights, obligations and interests of such Party, in whole or in
    part, to any of its Affiliates, to any purchaser of all or substantially all of its assets or to any successor corporation resulting
    from any merger or consolidation of such Party with or into such corporation.
	 	 
	19.	Force
    Majeure. Neither Party shall be liable for failure of or delay in performing obligations set forth in this Agreement, and neither
    shall be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any causes beyond the reasonable
    control of either Party. In the event of such force majeure, the Party affected thereby shall use reasonable efforts to cure or overcome
    the same and resume performance of its obligations hereunder.
	 	 
	20.	Headings.
    The Section headings are intended for convenience of reference only and are not intended to be a part of or to affect the meaning
    or interpretation of this Agreement.
	 	 
	21.	Integration;
    Severability. This Agreement is the sole agreement with respect to the subject matter hereof and shall supersede all other agreements
    and understandings between the Parties with respect to the same. If any provision of this Agreement is or becomes invalid or is ruled
    invalid by any court of competent jurisdiction or is deemed unenforceable, it is the intention of the Parties that the remainder
    of the Agreement shall not be affected.
	 	 
	22.	Governing
    Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding
    choice of law principles. The Parties agree that any action or proceeding arising out of or related in any way to this Agreement
    shall be brought solely in a Federal or State court of competent jurisdiction sitting in the Commonwealth of Massachusetts.


 




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	23.	Amendments
    and Waivers. This Agreement may be amended or supplemented only by a written instrument duly executed by each of the Parties.
    No provision of this Agreement may be waived except by a written instrument signed by the Party hereto sought to be bound. No failure
    or delay by any Party in exercising any right or remedy hereunder or under applicable law will operate as a waiver thereof, and a
    waiver of a particular right or remedy on one occasion will not be deemed a waiver of any other light or remedy, or a waiver on any
    subsequent occasion.
	 	 
	24.	Counterparts.
    This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute
    one agreement. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying
    with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall
    be deemed to have been duly and validly delivered and be valid and effective for all purposes.


 


If
you are in agreement with the foregoing, please sign where indicated below, whereupon this Agreement shall become effective as of the
Effective Date.


 


	DANFORTH
    ADVISORS, LLC	 	PULMATRIX,
    INC.
	 	 	 	 	 
	By:	/s/
    Chris Connors	 	By:	/s/
    Ted Raad
	 	 	 	 	 
	Print
    Name:	Chris
    Connors	 	Print
    Name: 	Ted
    Raad
	 	 	 	 	 
	Title:	Chief
    Executive Officer	 	Title:	Chief
    Executive Officer
	 	 	 	 	 
	Date:	11/30/2021	 	Date:	11/29/2021


 




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EXHIBIT
A


 


Schedule
of Fees


 


	Initial Staffing:	 	 	 	 	 
	 
Role
	 	 
Hourly Rate
	 	 	 
Function

	Sr. Advisor	 	 	$500/hour	 	 	Senior Advisory
	CFO	 	 	$400/hour	 	 	CFO
	Sr. Director	 	 	$355/hour	 	 	Principal Accounting Officer
	Sr. HR Director	 	 	$330/hour	 	 	Human Resources
	HR Director	 	 	$300/hour	 	 	Human Resources
	Director	 	 	$290/hour	 	 	VP Finance
	Sr HR Manager	 	 	$255/hour	 	 	Human Resources
	Sr Manager	 	 	$235/hour	 	 	Sr Controller/FP&A
	Manager	 	 	$195/hour	 	 	Controller
	HR Manager	 	 	$195/hour	 	 	Human Resources
	Sr. Consultant	 	 	$160/hour	 	 	Asst. Controller
	Consultant	 	 	$130/hour	 	 	Staff Accountant



 


Initial
Staffing will be Peter Ludlum, a Danforth Sr Director who has been interviewed and approved by management of the Company. Additional
personnel will be added in accordance with Section 1 of this Agreement.


 




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