AND SHALL NOT ASSERT ANY
DEFENSES THEY MAY HAVE TO CRIMINAL PROSECUTION OR ADMINISTRATIVE ACTION RELATING
TO THE COVERED CONDUCT, WHICH
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DEFENSES MAY BE BASED IN WHOLE OR IN PART ON A CONTENTION THAT, UNDER THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE CONSTITUTION OR THE EXCESSIVE
FINES CLAUSE OF THE EIGHTH AMENDMENT OF THE CONSTITUTION, THIS AGREEMENT BARS A
REMEDY SOUGHT IN SUCH CRIMINAL PROSECUTION OR ADMINISTRATIVE ACTION.
9.
IN CONSIDERATION OF THE OBLIGATIONS OF THE STATE SET FORTH IN
THIS AGREEMENT, THE CEPHALON RELEASED ENTITIES WAIVE AND DISCHARGE THE STATE,
ITS AGENCIES, POLITICAL SUBDIVISIONS, EMPLOYEES, SERVANTS, AND AGENTS FROM ANY
CLAIMS (INCLUDING ATTORNEYS' FEES, COSTS, AND EXPENSES OF EVERY KIND AND HOWEVER
DENOMINATED) WHICH THE CEPHALON RELEASED ENTITIES HAVE ASSERTED, COULD HAVE
ASSERTED, OR MAY ASSERT IN THE FUTURE AGAINST THE STATE, ITS AGENCIES, POLITICAL
SUBDIVISIONS, EMPLOYEES, SERVANTS, AND AGENTS, RELATED TO OR ARISING FROM THE
STATE'S INVESTIGATION AND PROSECUTION OF THE COVERED CONDUCT.
10.
THE SETTLEMENT AMOUNT THAT CEPHALON MUST PAY PURSUANT TO PARAGRAPH
1 ABOVE WILL NOT BE DECREASED AS A RESULT OF THE DENIAL OF CLAIMS FOR PAYMENT
NOW BEING WITHHELD FROM PAYMENT BY THE STATE'S MEDICAID PROGRAM, OR ANY OTHER
STATE PAYOR, RELATED TO THE COVERED CONDUCT; AND, IF APPLICABLE, CEPHALON AGREES
NOT TO RESUBMIT TO THE STATE'S MEDICAID PROGRAM OR ANY OTHER STATE PAYOR, ANY
PREVIOUSLY DENIED CLAIMS, WHICH DENIALS WERE BASED ON THE COVERED CONDUCT, AND
AGREES NOT TO APPEAL OR CAUSE THE APPEAL OF ANY SUCH DENIALS OF CLAIMS.
11.
CEPHALON WAIVES AND SHALL NOT SEEK PAYMENT FOR ANY OF THE HEALTH
CARE BILLINGS COVERED BY THIS AGREEMENT FROM ANY HEALTH CARE BENEFICIARIES OR
THEIR PARENTS, SPONSORS, LEGALLY RESPONSIBLE INDIVIDUALS, OR THIRD PARTY PAYORS
BASED UPON THE CLAIMS FOR PAYMENT COVERED BY THIS AGREEMENT.
12.
CEPHALON EXPRESSLY WARRANTS THAT IT HAS REVIEWED ITS FINANCIAL
CONDITION AND THAT IT IS CURRENTLY SOLVENT WITHIN THE MEANING OF 11 U.S.C. §§
547(B)(3) AND 548(A)(B)(II)(I), AND SHALL
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REMAIN SOLVENT FOLLOWING PAYMENT OF THE SETTLEMENT AMOUNT.
FURTHER, THE PARTIES
EXPRESSLY WARRANT THAT, IN EVALUATING WHETHER TO EXECUTE THIS AGREEMENT, THE
PARTIES (A) HAVE INTENDED THAT THE MUTUAL PROMISES, COVENANTS, AND OBLIGATIONS
SET FORTH HEREIN CONSTITUTE A CONTEMPORANEOUS EXCHANGE FOR NEW VALUE GIVEN TO
CEPHALON WITHIN THE MEANING OF 11 U.S.C. § 547(C)(1), AND (B) HAVE CONCLUDED
THAT THESE MUTUAL PROMISES, COVENANTS AND OBLIGATIONS DO, IN FACT, CONSTITUTE
SUCH A CONTEMPORANEOUS EXCHANGE.
13.
IN THE EVENT CEPHALON COMMENCES, OR ANOTHER PARTY COMMENCES,
WITHIN 91 DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT OR ANY PAYMENT MADE
HEREUNDER, ANY CASE, PROCEEDING, OR OTHER ACTION UNDER ANY LAW RELATING TO
BANKRUPTCY, INSOLVENCY, REORGANIZATION, OR RELIEF OF DEBTORS (A) SEEKING TO HAVE
ANY ORDER FOR RELIEF OF CEPHALON'S DEBTS, OR SEEKING TO ADJUDICATE CEPHALON AS
BANKRUPT OR INSOLVENT, OR (B) SEEKING APPOINTMENT OF A RECEIVER, TRUSTEE,
CUSTODIAN OR OTHER SIMILAR OFFICIAL FOR CEPHALON OR FOR ALL OR ANY SUBSTANTIAL
PART OF CEPHALON'S ASSETS, CEPHALON AGREES AS FOLLOWS:
A.
CEPHALON'S OBLIGATIONS UNDER THIS AGREEMENT MAY