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<br />14 <br /> <br /> <br />3. By executing this Agreement the State and the Participating Subdivisions certify <br />that: (a) the Compensatory Restitution Amount is no greater than the amount, in the <br />aggregate, of the Alleged Harms allegedly suffered by the State and Participating <br />Subdivisions; and (b) the portion of the Compensatory Restitution Amount received <br />by the State or Participating Subdivision is no greater than the amount of the Alleged <br />Harms allegedly suffered by the State or Participating Subdivision; <br />4. The payment of the Compensatory Restitution Amount by Janssen constitutes, and is <br />paid for, compensatory restitution (within the meaning of 26 U.S.C. § 162(f)(2)(A)) <br />for Alleged Harms allegedly caused by Janssen; <br />5. The Compensatory Restitution Amount is being paid as compensatory restitution <br />(within the meaning of 26 U.S.C. § 162(f)(2)(A)) in order to restore, in whole or in <br />part, the State and Participating Subdivisions to the same position or condition that <br />they would be in had the State and Participating Subdivisions not suffered the <br />Alleged Harms; <br />6. For the avoidance of doubt: (a) no portion of the Compensatory Restitution Amount <br />represents reimbursement to the State, any Participating Subdivision, or other person <br />or entity for the costs of any investigation or litigation, (b) the entire Compensatory <br />Restitution Amount is properly characterized as described in this subsection XI.B, <br />and (c) no portion of the Compensatory Restitution Amount constitutes <br />disgorgement or is properly characterized as the payment of statutory or other fines, <br />penalties, punitive damages, other punitive assessments, or attorneys’ fees; and <br />7. The State, on behalf of all itself and Participating Subdivisions (the “Form 1098-F <br />Filer”) shall complete and file Form 1098-F with the Internal Revenue Service on or <br />before February 28 (March 31 if filed electronically) of the year following the <br />calendar year in which the order entering this Agreement becomes binding. On the <br />Form 1098-F, the Form 1098-F Filer shall identify the entire Compensatory <br />Restitution Amount received by the Form 1098-F Filer as remediation/restitution. <br />The Form 1098-F Filer shall also, on or before January 31 of the year following the <br />calendar year in which the order entering this Agreement becomes binding, furnish <br />Copy B of such Form 1098-F (or an acceptable substitute statement) to Janssen. <br />C. Tax Reporting and Cooperation. <br />1. Upon request by Janssen, the State and Participating Subdivisions agree to perform <br />such further acts and to execute and deliver such further documents as may be <br />reasonably necessary for Janssen to establish the statements set forth in subsection <br />XI.B to the satisfaction of their tax advisors, their independent financial auditors, the <br />Internal Revenue Service, or any other governmental authority, including as <br />contemplated by Treasury Regulations Section 1.162-21(b)(3)(ii) and any <br />subsequently proposed or finalized relevant regulations or administrative guidance. <br />2. Without limiting the generality of this subsection XI.C, the State and each <br />Participating Subdivision shall cooperate in good faith with Janssen with respect to