In the course of the engagement with the Company, the Consultant may have access to, and become familiar with, “Confidential Information” of the Company (as hereinafter defined).  The Consultant shall at all times hereinafter maintain in the strictest confidence all such Confidential Information and shall not divulge any Confidential Information to any person, firm or corporation without the prior written consent of the Company.  For purposes hereof, “Confidential Information” shall mean all information in any and all medium which is identified or treated by the Company as confidential or otherwise is confidential by its nature or the circumstances or manner of its disclosure is evidently confidential, including, without limitation, data, technology, know-how, inventions, ideas, discoveries, designs, processes, formulations, samples, compositions, methods, models, and/or trade and business secrets.  Confidential Information will also include the Company’s development, marketing and business plans relating to current, planned, old or future products.

The consultant shall not use Confidential Information for, or in connection with, the development, manufacture or the use of any product or for any other purpose whatsoever except as and to the extent provided in this Undertaking, or in any other subsequent agreement between the parties.

Notwithstanding the foregoing, Confidential Information shall not include information which the Consultant can evidence that:

is in the public domain through no action on Consultant’s part;

was rightfully obtained by Consultant from a third party on a non-confidential basis, without breach of any obligation to Company, which is outside the scope of the CSO Services and is not related to the Field of Business;

is independently developed by Consultant outside the scope of the CSO Services and is not related to the Field of Business; and

The Company recognizes that UBC is Consultant’s employer and the Company recognizes that Consultant may be required, from time to time, to report to UBC regarding his activities for the Company.

Nothing herein shall in any way derogate from Consultant’s academic freedom regarding scientific materials, and shall not be restricted from presenting at symposia, national or regional professional meetings, or from publishing in journals or other publications, accounts of his research within the Field of Business, provided that with respect to the Company Inventions, Intellectual Property Rights and Confidential Information, the Company shall be provided with copies of the proposed disclosure at least 60 days before the presentation or publication date and does not, within 30 days after delivery of the Proposed disclosure, give notice to Consultant indicating that it objects to the proposed disclosure.  Further, nothing herein shall restrict Consultant’s research, disclosure, engagement or activity in academics, business or science outside the Company’s Field of Business.  For the avoidance of any doubt, nothing contained in this Section 1 of the Undertaking shall derogate in any manner from any rights and entitlements of UBC granted to it in accordance with the provisions of UBC License Agreement

All Confidential Information made available to, or received by, the Consultant shall remain the property of the Company and no license or other rights in or to the Confidential Information is granted hereby, the obligation of the Consultant is not to use any Confidential Information disclosed during engagement with the Company except as provided in this Undertaking, shall remain in effect indefinitely, and the Consultant shall be prohibited from disclosing any such Confidential Information during the term of engagement with Company and/or thereafter.

All files, records, documents, drawings, specifications, equipment and similar items relating to the business of the Company, whether prepared by the Consultant or otherwise coming into his possession, and whether classified as Confidential Information or not, shall remain the exclusive property of the Company.  Upon termination of Consultant engagement with the Company, or upon request, by the Company, the Consultant shall promptly turn over to the Company all such files, records, reports analysis, documents and other material of any kind concerning the Company, which the Consultant obtained, received or prepared during his engagement with the Company.

Except with prior written authorization by the Board of Directors of the Company (“BOD”), the Consultant agrees not to disclose or publish any of the Confidential Information or material of the Company, its clients, partners, shareholders or suppliers, or any other party to whom the Company owes an obligation of confidence, at any time during or after his engagement with the Company.

The Consultant agrees, during his engagement with the Company, not to improperly use or disclose to the Company any proprietary information or trade secrets or any other information which is confidential or subject to restriction on disclosure of any third party, including former or concurrent employer or other person or entity and that he will not bring onto the premises of the Company any such information, unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity, unless otherwise agreed by the Company.

The Consultant recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes.  The Consultant agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out such Consultant’s work for the Company consistent with the Company’s agreement with such third party.

The provisions of this Section 1 shall apply with respect to Confidential Information of the Company received by or made available to or developed by, the Consultant in connection with his engagement with the Company prior to the date hereof, including, without limitations, prior to the execution of the CSO Agreement by and between the Company and the Consultant (the “CSO Agreement”).  The Consultant represents that until the date of this Undertaking, he/she has been in full compliance with the provisions of this Section 1 with respect to any Confidential Information of the Company received by or made available to the Consultant prior to the date hereof.  The provisions of this Section 1 shall supersede any previous agreements between the Company and the Consultant in relation to the matters referred to in this Section, including, without limitations, non-disclosure agreement entered into by and between the Company and the Consultant, if any.

INVENTIONS.

“Intellectual Property Rights” means any and all intellectual or industrial property rights (whether registered or unregistered) limited to the field of nitric oxide (NO) delivery by inhalation technologies (the “Field of Business”), including, without prejudice to the generality of the foregoing, all existing and future copyrights, design rights, database rights, trade marks, internet rights/domain names, know-how, patents and any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing; and

“Inventions” means, as limited to the Field of Business, documents, materials, designs, drawings, discoveries, processes, formulae, algorithms, works of authorship, computer coding, methodologies, method of manufacture, techniques, developments, research data, including specifically technical aspects of the technology and devices that are not common knowledge, trade secrets, marketing plans, financial information, business development information and strategic plans.

RESERVED

During the term of the engagement with the Company, to the extent generated in connection with CSO Agreement or pertain to or result from any work which the Consultant has done or may hereafter do for the Company, Consultant may either alone or in conjunction with others, generate or assist in the generation of Inventions and other works deemed as Intellectual Property Rights or Confidential Information of the Company, and Consultant agrees such Inventions and the related Intellectual Property Rights will belong to and be the absolute property of the Company or any other person the Company may nominate.  The Consultant further agrees, acknowledges and represents that he did not prior to the date of this Undertaking, and will not during the Term of this Undertaking and the CSO Agreement, use any funding or facilities of U BC or any other academic or governmental institution or authority for the purpose of providing the CSO Services hereunder or otherwise for the creation or generation of any Inventions or other Intellectual Property Rights for the Company.

The Consultant will disclose and deliver to the Company for the exclusive use and benefit of the Company any such Inventions, promptly upon the making, devising, or discovering of the same, and will give all information and data in his possession as to the exact mode of working, producing, and using the same and also all such explanations and instructions as may in the view of the Company be necessary to enable the full and effectual working, production, or use of the same and will at the expense of the Company furnish it with all necessary plans, drawings, formulae, models and other Intellectual Property Rights related thereto.

The Consultant, during his engagement with the Company, will without charge to but at the expense of the Company, apply or join with the Company in applying for any Intellectual Property Rights or other protection or registration (“Protection”) for, or in relation to, any Inventions of the Company and execute and do all acts, matters, documents, and things to enable the Company or its nominee to apply for and obtain Protection for the Inventions in any or all countries and to vest title in the Company or such nominee absolutely.

The Consultant hereby irrevocably appoints the Chairman of the BOD of the Company to be his attorney in his name and on his behalf to execute and do such acts, matters, documents, and things as aforesaid and generally to use his name for the purpose of giving to the Company (or its nominee) the full benefit of the provisions of this section, and the Consultant hereby waives and quitclaim to the Company any and all claims, of any nature whatsoever, which he now or may hereafter have for infringement of any Inventions and related Intellectual Property Rights assigned hereunder to the Company.  In favor of any third party, a certificate signed by any director or the secretary of the Company that an instrument or act falls within the authority hereby conferred shall be conclusive evidence that such is the case.

During his engagement with the Company and at all times thereafter the Consultant will (whether by omission or commission) do nothing to affect or imperil the validity of the Protection for the Inventions obtained or applied for by the Company or its nominee pursuant to this section.  The Consultant will at the direction and expense of the Company render all assistance within his power to obtain and maintain such Protection or application or any extension thereof.

The Consultant hereby agrees to keep and maintain adequate records of all Inventions developed by Consultant during Consultant’s engagement with the Company, which records shall be available to and remain the sole property of the Company.

Nothing in this Undertaking shall oblige the Company to seek patent or other protection for any Invention nor to exploit any Invention.

For the removal of any doubt, it is hereby clarified that the provisions contained in Section 2.3 above will apply also to any “Service Inventions” as defined in the Israeli Patent Law, 1967 (the “Patent Law”).  However, in no event will such Service Invention become the property of the Consultant and the provisions contained in Section 132(b) of the Patent Law shall not apply unless the Company provides in writing otherwise.  The Consultant will not be entitled to royalties or other payment with regard to any Inventions, Service Inventions or any of the Intellectual Property Rights set forth above, including any commercialization of such Prior Inventions, Inventions, Service Inventions or other Intellectual Property Rights.

For the further removal of any doubt, the terms Inventions, Service Inventions or other Intellectual Property Rights are restricted to the Company’s Field of Business, as defined in this Schedule A.

It is hereby clarified that Consultant specifically waives any interest, claim, legal right, or demand that she/he had, has or may have in the future for, or may be entitled to, with respect to consideration, compensation or royalties or any other payment from the Company with regard to the assigned Inventions, including, but not limited to, any claims for consideration, compensation, or royalty payment pursuant to Section 134 to the Patent Law.  The Consultant further acknowledges and declares that the compensation payable by the Company constitutes the entire compensation to which she/he is entitled to and includes any and all consideration with respect to Inventions which he had developed, made, authored, contributed to or worked on, in whole or in part, independently or jointly with others.

In the event that following the termination Consultant’s engagement with the Company, the Consultant is requested to assist the Company on any matter related to this Section 2, the Company will be required to pay the Consultant the standard fee the Consultant may charge at that time for consulting or advising other third parties as remuneration for the Consultant’s efforts hereunder.

The provisions of this Section 2 shall apply with respect to Inventions, Confidential Information and other Intellectual Property Rights which the Consultant, either alone or in conjunction with others, generated or assisted in the generation during his engagement with the Company prior to the date hereof, including, without limitations, prior to the execution of the CSO Agreement.  The Consultant represents that until the date of this Undertaking, he has been in full compliance with the provisions of this Section 2 with respect to any such to Inventions, Confidential Information and other Intellectual Property Rights of the Company.  The provisions of this Section 2 are restricted to the Company’s Field of Business and shall supersede any previous agreements between the Company and the Consultant in relation to the matters referred to in this Section, if any.

NO COMPETITION AND NON-SOLICITATION.

The Consultant hereby acknowledges that the pursuit of the activities forbidden by this Section 3 would necessarily involve the use or disclosure of Confidential Information in breach of Section 1, but that proof of such breach would be extremely difficult.  To forestall such disclosure, use and breach, and in exchange for consideration, the receipt and sufficiency of which is acknowledged by Consultant, the Consultant agrees that for the term of the CSO Agreement and a period of one (1) year after termination of the Consultant’s engagement with the Company (“Non-Compete Period”), the Consultant shall not engage in any business activity relating to applications, markets and technologies which is or may be competitive with the Company or any affiliate in the Field of Business, including by way of owning, managing, operating, joining, controlling, or participating in the ownership, management, operation or control of, or be connected as an officer, employee, partner, creditor, licensor or in any capacity whatsoever with any business which competes in the Field of Business with the business activity of the Company or any of its subsidiaries and affiliates.

The Consultant further undertakes that, for so long as he is engaged with the Company and continuing for one (1) year after the termination or expiration of the CSO Agreement, the Consultant shall not, directly or indirectly, for himself or any third party, (a) induce or attempt to induce any employee of the Company or any of its subsidiaries and affiliates to leave the employ of the Company or any of its subsidiaries and affiliates, (b) in any way interfere with the relationship between the Company or any of its subsidiaries and affiliates and any employee of the Company or any of its subsidiaries and affiliates (c) employ, or otherwise engage as an employee, independent contractor, or otherwise, any employee of the Company or any of its subsidiaries and affiliates, (d) induce or attempt to induct any customer, supplier, licensee, or business relation of the Company or any of its subsidiaries and affiliates to cease doing business with the Company or any of its subsidiaries and affiliates, or in any way interfere with the relationship between any customer, supplier, licensee, or business relation of the Company or any of its subsidiaries and affiliates or (e) solicit the business of any person or organization who is, or was within the preceding two years, a customer of the Company or any of Its subsidiaries.

In the event of a breach by Consultant of any covenant set forth in Section 3 of this Agreement, the term of such covenant will be extended by the period of the duration of such breach.

Notwithstanding anything contained in this Section 3, the Consultant may, after the termination of his engagement with the Company and during the one-year Non-Compete Period following such termination, enter into the employment, or serve as a consultant, of any entity or company, in a position or a division of such entity or company which does not compete directly or indirectly with the scope of activity within the Company’s Field of Business that he is performing during her/his engagement with the Company as set forth in the CSO Agreement, even though such entity or company does have another division or position which competes with the Company, including in the Field of Business.

The Consultant acknowledges that the provisions of this Undertaking, and the undertaking of non-competition provided in Section 3.1 in particular, serve as an integral part of the terms of his CSO Agreement and reflect the reasonable requirements of the Company in order to protect its legitimate interests with respect to the subject matter hereof.  If any provision of this Undertaking (Including any sentence, clause or part thereof) shall be adjudicated to be invalid or unenforceable, such provisions shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of such provision in the particular jurisdiction in which such adjudicate is made.  In addition, if any particular provision contained in this undertaking shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing such provision as to such characteristic so that the provision Is enforceable to the fullest extent compatible with applicable law as it shall then appear.