Exhibit
10.31


 


CONSULTING
AGREEMENT


 


THIS
CONSULTING AGREEMENT (the “Agreement”), is made and entered into as of the 5th day of August, 2020,
by and between RODERICK L. HALL (“Consultant”), and COVISTAT, INC., a Delaware corporation (“Client”)
(Consultant and Client are sometimes collectively referred to as the “parties” and each individually as a “party”).


 


WHEREAS,
the Client is a biosciences company that is engaged in efforts to develop an inhaled nafamostat program (the “Program”);


 


WHEREAS,
Consultant, individually and in his capacity as a founder and owner of Mucokinetica, Ltd. (“Mucokinetica”),
is experienced in the development of respiratory disease treatments;


 


WHEREAS,
Client is party to a Technology Transfer Agreement (the “Transfer Agreement”) with Mucokinetica pursuant to
which Client has agreed to acquire, and Mucokinetica has agreed to sell, rights to certain technologies (the “Mucokinetica
Technology”) developed by Mucokinetica for the treatment of respiratory disease; and


 


WHEREAS,
as a condition of the transfer of the Mucokinetica Technology pursuant to the terms of the Transfer Agreement, Client has undertaken
to retain Consultant and Consultant has agreed to serve on Client’s Scientific Advisory Board and provide consulting services
to Client on the terms described herein.


 


NOW,
THEREFORE, in consideration of the premises above, the mutual promises contained herein, and for other good and valuable consideration,
the parties agree as follows:


 


ARTICLE
1

SERVICES


 


1.1
Advisory Board Service. During the Term, Client shall appoint Consultant, and Consultant shall serve (such service being
referred to as “Advisory Board Service”), as a member of Client’s Scientific Advisory Board.


 


1.2
Consultant Obligations. During the Term, commencing on the Start Date, Consultant agrees to provide drug development and
identification services (the “Consulting Services” and, together with Advisory Board Service, the “Services”),
as requested from time to time by Client, with respect to targeted drug products (the “Targeted Products”)
described on Exhibit A hereto. The “Start Date” shall be the date on which both (i) Client shall have
advised Consultant that Client has secured adequate financing to commence work on its Program; and (ii) Client and Consultant
shall have executed Exhibit B hereto setting forth the Base Consulting Fee.


 


1.3
Manner, Means, Location and Time of Services. Consultant shall devote such time and effort as is necessary to discharge
its duties hereunder and shall exercise reasonable care in the performance of such Services but shall have sole and exclusive
discretion and control with regard to the manner, means, location and time of provision of the Services subject to the right of
Client to establish deliverables and deadlines for Services to be provided.


 






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1.4
Client Cooperation; Reliance on Information. As a condition of the provision of Services, Client agrees to fully cooperate
with Consultant in order to facilitate the performance of Services, including providing to Consultant such information as shall
be reasonably necessary to perform the Services. Consultant shall, in the performance of Services, be entitled to rely upon any
information provided by Client and shall be under no obligation to verify the accuracy of any such information.


 


1.5
Nature of Services. Client acknowledges and agrees that Consultant may engage in the development of drugs on its own behalf
and on behalf of other clients and that nothing herein shall prohibit Consultant from engaging in such activities or create rights
in Client with respect to drugs that may be developed as a result of such efforts; provided, however, that, during the Term, Consultant
shall not engage in the development of drugs, on its own behalf or on behalf of parties other than Client, that compete, or could
compete, with the Targeted Products.


 


1.6
Independent Contractor. The parties do not intend for this Agreement to create an agency relationship between Client and
Consultant. Consultant is acting as an independent contractor and is not, and shall not be deemed to be, an employee, agent, partner
or affiliate of Client. Consultant shall not have, and shall not represent that it has, the authority to bind Client or direct
any management action or policy as a result of this agreement or the provision of Services to Client. As Consultant is not an
employee of Client, Consultant is not entitled to any benefits otherwise payable to Client employees and is responsible for paying
all required state and federal taxes and, accordingly, Client will not (i) withhold FICA (Social Security) from payments to Consultant
or make FICA contributions on behalf of Consultant, (ii) make state or federal unemployment insurance contributions on behalf
of Consultant, (iii) withhold state or federal income tax from payments to Consultant, (iv) make disability insurance contributions
on behalf of Consultant, or (v) obtain workers’ compensation insurance on behalf of Consultant.


 


ARTICLE
2

CHARGES AND PAYMENTS


 


2.1
Base Consulting Fee. Client will pay Consultant a “Base Consulting Fee” on the terms set forth on Exhibit
B.


 


2.2
Expenses. Client will reimburse or advance expenses (the “Reimbursable Expenses”) incurred in connection
with performance of the Services if and to the extent, and only if and to the extent, approved in advance in writing by Client.


 


2.3
Out-Licensing Fee. In the event that a Targeted Drug is out-licensed or sold by Client during or following the Term, Client
will pay to Consultant the Out-Licensing Fee as described on Exhibit C.


 


ARTICLE
3

TERM


 


This
Agreement will be effective as of the date herein first set forth (the “Effective Date”), and will continue
for a period of one year (the “Initial Term”). The term of this Agreement shall continue following the Initial
Term for sequential one year terms unless either party shall, not later than thirty (30) days prior to the end of the then current
term of this Agreement, have given notice to other party of termination (as extended from time to time, the “Term”).


 






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ARTICLE
4

PROPRIETARY RIGHTS


 


4.1
Confidential Information. Consultant agrees that at no time (either during or subsequent to the Term of this Agreement)
will Consultant disclose or use, except in pursuit of the business of Client or any of its subsidiaries or affiliates, any Proprietary
and Confidential Information of Client, or any subsidiary or affiliate of Client. The term “Proprietary and Confidential
Information” shall mean, but is not limited to, all information which is known or intended to be known only to Client,
its subsidiaries and affiliates, and their employees, including any document, record, financial or other information of Client,
or others in a confidential relationship with Client, and further relates to specific business matters such as the Client’s
financial information, product formulations, policies and procedures, fee structures, trade secrets, proprietary know-how, account
information, and other information relating to other business of Client, its subsidiaries and affiliates, and their employees.
It is specifically acknowledged and agreed that all information pertaining to the Mocukenitica Patents and the Mucokinetica Technology
is Proprietary and Confidential Information, even if such information was obtained by Consultant prior to the Term of this Agreement.
Consultant agrees not to remove from the premises of Client, except as necessary for Consultant to perform Services in accordance
with the terms of this Agreement, any document, record, or other information of Client or its affiliates.


 


Consultant
agrees to return or destroy, immediately upon termination of Consultant’s Services hereunder, any and all documentation
relating to Proprietary and Confidential Information of Client that is in the possession of Consultant, in whatever format it
may be maintained, whether provided to, or developed by, Consultant, and to provide a certificate of destruction if required by
Client.


 


4.2
Ownership of Intellectual Property. The parties acknowledge that Client is the owner of (i) all intellectual property rights
created by Consultant during the Term as part of the Services, and that such works shall be deemed “works made for hire”
under copyright laws and (ii) the Mucokinetica Patents and Mucokinetica Technology (as defined in the Transfer Agreement). The
Parties further acknowledge that, except as provided in the preceding sentence, Consultant shall retain all ownership rights with
respect to any intellectual property created by Consultant during the Term or thereafter that have no connection at all to Client
or to the Services provided hereunder or to the Target Products; provided that the foregoing shall not modify the obligations
of Consultant under Section 4.1 above.


 


ARTICLE
5

QUALITY OF WORK; STANDARD OF CARE; LEGAL COMPLIANCE


 


5.1
Quality of Work. Consultant shall perform the Services in a professional manner, to the best of his ability.


 


5.2
Standard of Care. Consultant shall perform the Services in a diligent, productive and efficient manner as is customary
in the profession of health care research and development.


 






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5.3
Compliance With Law. Subject to the foregoing, Consultant shall perform the Services in a manner that complies with applicable
laws in all material respects.


 


ARTICLE
6

MISCELLANEOUS


 


6.1
Force Majeure. Neither party will be liable for any delay or failure of performance (except for the payment of money) affecting
such party or its contractors arising from any cause, circumstance or contingency beyond the reasonable control of such party,
including acts of God, acts of terrorism, governmental acts, accidents, wars, riots or civil unrest, labor disputes, fires, storms,
earthquakes, floods and latent defects which are not reasonably discoverable and cannot be reasonably remedied.


 


6.2
Entire Agreement. Except as otherwise provided herein, this Agreement represents the entire understanding and agreement
between the parties, and supersedes any prior agreement, understanding or communication between the parties, with respect to the
subject matter hereof. This Agreement may only be amended by a writing executed by both parties. In addition, no representation,
promise or inducement has been made by either party that is not embodied in this Agreement, and no party shall be bound by or
liable for any alleged representation, promise or inducement not so set forth.


 


6.3
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which
taken together will constitute a single instrument.


 


6.4
Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties
and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions
of this Agreement.


 


6.5
Assignment. This Agreement will be binding on the parties and their respective successors and permitted assigns. Neither
party may, nor will either party have the power to, assign this Agreement or any of its rights and obligations under this Agreement
without the prior written consent of the other party, except that either party may assign, upon written notice to the other party,
its rights and obligations under this Agreement, in whole or in part, without the approval of the other party to any successor
in a merger or acquisition of such party, or an entity that acquires all or substantially all of the assets of such party. In
no event will any assignment relieve the assigning party of its obligations under this Agreement. Any attempted assignment, delegation,
or subcontracting in contravention of this Section will be void and ineffective.


 


6.6
Survival. The provisions of Articles 2.3 and 4 shall survive any termination of this Agreement.


 


6.7
Remedies. In addition to any other remedies Client may have by virtue of this Agreement, Consultant agrees that Client
is entitled to seek equitable relief, including injunctive relief to restrain any breach of the proprietary rights provisions
of Article 4 of this Agreement.


 






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6.8
Limitation on Liability. Notwithstanding any other provision of this Agreement, in no event shall either party be liable
to the other for lost profits, or special, incidental, punitive, or consequential damages or costs and attorney’s fees relating
to litigation relating to such losses, costs or damages arising from or relating to this Agreement.


 


6.9
Notices. All notices and other communications hereunder will be in writing and will be deemed given if delivered personally
or by email (receipt verified), or sent by express courier service, to the parties at the following addresses (or at such other
address for a party as will be specified by like notice; provided, that notices of a change or address will be effective only
upon receipt thereof):


 


If
to Client, addressed to:


 


Covistat,
Inc.


3210 Merryfield Row


San Diego, CA 92121


Attn: Dr. Lynn Kirkpatrick


Email:
lkirkpatrick@ensysce.com


 


If
to Consultant addressed to:


 


Roderick
Hall


 


Email:
rod.hall@mucokinetica.com


 


6.10
Waiver. The failure of either party to insist upon the strict and punctual performance of any provision hereof will not
constitute a waiver of, or estoppel against asserting the right to require such performance, nor should a waiver or estoppel in
one case constitute a waiver or estoppel with respect to a later breach whether of a similar nature or otherwise.


 


6.11
Governing Law. All rights and obligations of the parties relating to this Agreement will be governed by and construed in
accordance with the law of the State of California, without giving effect to any choice-of-law provision or rule (whether of the
State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.


 


6.12
No Third Party Beneficiary Status. The terms and provisions of this Agreement are intended solely for the benefit of each
party hereto and their respective successors or permitted assigns, and it is not the intention of the parties to confer third-party
beneficiary rights upon any other party, including employees.


 






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IN
WITNESS WHEREOF, each of the parties hereto, by its duly authorized representative, has hereby executed this Consulting Agreement
as of the date herein first set forth.


 



	“CLIENT”	 	“CONSULTANT”
	 	 	 
	By:	/s/
    Lynn Kirkpatrick	 	/s/
    Roderick Hall
	Name:	Lynn
    Kirkpatrick	 	Roderick
    Hall
	Title:	CEO	 	 


 




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EXHIBIT
A


 


Targeted
Products and Services


 


[Omitted]


 




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EXHIBIT
B


 


Base
Consulting Fee


 


[Omitted]


 




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EXHIBIT
C


 


Out-Licensing
Fee


 


[Omitted]


 




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