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vi. |
all other deductions allowed by relevant accounting standards, as consistently applied by Virpax and its
affiliates (or their licensees or sub-licensees, as applicable) in determining net product sales. |
For clarification, sale of a Product by a selling party to another selling party for resale by such entity to a third party shall not be deemed
a sale for purposes of this definition of Net Sales, provided that the subsequent resale is included in the computation of Net Sales. Further, transfers or dispositions of Product, without consideration: (A) in connection with
patient assistance programs; (B) for charitable or promotional purposes; (C) for preclinical, clinical, regulatory or governmental purposes or under so-called named patient or other
limited access programs; or (D) for use in any tests or studies reasonably necessary to comply with applicable law, regulation or request by a regulatory authority, shall not, in each case of (A) through (D), be deemed sales of such
product for purposes of this definition of Net Sales.
4. Destruction of Scilex Information. Within 30 days of the
Effective Date, Virpax shall perform a search of its systems for Scilexs nonpublic information, including all documents identified in the pleadings and alleged to be Scilexs confidential information. Virpax shall destroy all hard copies
of such information and shall remove any such information from its computing systems but shall create a preservation copy of such information on a hard drive that shall be maintained by Virpaxs counsel Ballard Spahr during the pendency of this
Action until there is a binding settlement or final, non-appealable decision as to all parties to the Action.
5. Affidavit regarding Scilexs Confidential Information. Within 30 days of the Effective Date, Virpax will provide Scilex with an
affidavit from its CEO confirming that that Virpax has complied with its obligation to destroy Scilex confidential information and confirming that no Scilex confidential information remains in Virpaxs possession.
6. Release by Sorrento and Scilex. Upon payment of the Initial Payment, and in exchange for the consideration set forth in this
Agreement, Sorrento and Scilex, on behalf of themselves, their parents, subsidiaries, affiliates, directors, managers, officers, shareholders, members, employees, attorneys, agents, representatives, predecessors, successors and assigns, knowingly
and voluntarily releases and forever discharges Virpax and its respective parents, subsidiaries, affiliates, directors, managers, officers, shareholders, members, employees, attorneys, agents, representatives, predecessors, successors and assigns
(as applicable), of any and all causes of action, claims, demands, damages, debts, liabilities, attorneys fees and all other manner of actions (Claims) that were asserted in the Action, that could have been asserted in the Action,
and/or that arise from or are related to the facts and circumstances alleged in the Action, and existed as of the Effective Date and could have been asserted against such released persons. For the avoidance of doubt, Defendant Anthony Mack,
Virpaxs former CEO and Chairman, is not included in this release and Sorrento and Scilex reserve the ability to pursue all Claims against Mr. Mack.
7. Release by Virpax. Upon the Effective Date, and in exchange for the consideration set forth in this Agreement, Virpax, on behalf of
itself and its attorneys, agents, representatives, predecessors, successors, and assigns, knowingly and voluntarily releases and forever discharges Sorrento and Scilex, and their respective parents, subsidiaries, affiliates, directors, managers,
officers, shareholders, members, employees, attorneys, agents, representatives, predecessors, successors and assigns, of any and all Claims, that could have been asserted in the Action and/or that arise from or are related to the facts and
circumstances alleged in the Action, and existed as of the Effective Date and could have been asserted against such released persons.
8.
Releases Include Unknown Claims. The Parties acknowledge that the releases in this Agreement may include a release of Claims, whether fixed or contingent, at law or in equity that are unknown or unsuspected up to the Effective Date. The
releases in this Agreement are to be interpreted as broadly as the law allows. The Parties hereby waive any common law or statutory doctrine or provision that limits the effect of a release of unknown or unsuspected claims, counterclaims, demands,
damages, debts, liabilities, attorneys fees, actions, causes of action, obligations,
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