or administrative claims relating to the
Covered Conduct against individuals, including officers and employees, who, as
of the Effective Date of this Agreement, received written notification that they
are the target of a criminal investigation, are criminally indicted or charged,
or are convicted, or who enter into a criminal plea agreement.
The State
represents that any mandatory exclusion provisions under its state law do not
apply in the facts and circumstances of this case.
5.
THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON RESOLUTION OF THE
FEDERAL CRIMINAL ACTION.
IN CONSIDERATION OF THE ACCEPTANCE OF CEPHALON'S PLEA
OF GUILTY IN THE FEDERAL CRIMINAL ACTION, THE STATE, TO THE EXTENT THE ATTORNEY
GENERAL IS AUTHORIZED TO DO SO, AGREES THAT IT SHALL NOT FURTHER CRIMINALLY
INVESTIGATE, PROSECUTE, OR REFER FOR PROSECUTION OR INVESTIGATION TO ANY AGENCY,
THE CEPHALON RELEASED ENTITIES.
6.
IN CONSIDERATION OF THE OBLIGATIONS OF CEPHALON SET FORTH IN THIS
AGREEMENT, AND THE CIA THAT CEPHALON HAS ENTERED INTO WITH HHS-OIG IN CONNECTION
WITH THIS MATTER, AND CONDITIONED ON CEPHALON'S PAYMENT IN FULL OF THE
SETTLEMENT AMOUNT, EXCEPT AS RESERVED IN PARAGRAPH 4 ABOVE AND SUBJECT TO
PARAGRAPH 13 BELOW (CONCERNING BANKRUPTCY PROCEEDINGS COMMENCED WITHIN 91 DAYS
OF THE EFFECTIVE DATE OF THIS AGREEMENT OR ANY PAYMENT UNDER THIS
7
AGREEMENT), THE STATE AGREES TO RELEASE AND REFRAIN FROM INSTITUTING, DIRECTING,
OR MAINTAINING ANY ADMINISTRATIVE CLAIM OR ANY ACTION SEEKING EXCLUSION FROM THE
STATE'S MEDICAID PROGRAM AGAINST CEPHALON, ITS PREDECESSORS, AND THEIR CURRENT
OR FORMER PARENTS, AFFILIATES, DIVISIONS, SUBSIDIARIES, SUCCESSORS, AND ASSIGNS
FOR THE COVERED CONDUCT.
THE MEDICAID FRAUD CONTROL UNIT FOR THE STATE FURTHER
AGREES TO REFRAIN FROM RECOMMENDING, CAUSING OR ATTEMPTING TO CAUSE ANY
ADMINISTRATIVE ACTION OR SANCTION, INCLUDING DEBARMENT, BY ANY OTHER GOVERNMENT
AGENCY OF THE STATE FOR THE COVERED CONDUCT.
NOTHING IN THIS AGREEMENT
PRECLUDES THE STATE FROM TAKING ACTION AGAINST CEPHALON IN THE EVENT THAT
CEPHALON IS EXCLUDED BY THE FEDERAL GOVERNMENT, OR FOR CONDUCT AND PRACTICES
OTHER THAN THE COVERED CONDUCT OR CONDUCT UNDERLYING THE CONVICTION IN THE
FEDERAL CRIMINAL ACTION.
THE STATE DOES NOT RELEASE CEPHALON FROM ANY CLAIMS OR
ACTIONS WHICH MAY BE ASSERTED BY PRIVATE PAYORS OR INSURERS, INCLUDING THOSE
THAT ARE PAID BY A STATE'S MEDICAID PROGRAM ON A CAPITATED BASIS.
7.
WITHIN FOURTEEN BUSINESS DAYS OF THE EFFECTIVE DATE OF THIS
AGREEMENT, THE STATE AGREES TO DISMISS WITH PREJUDICE ANY LAWSUIT SPECIFICALLY
AS TO THE CEPHALON RELEASED ENTITIES, INCLUDING ANY QUI TAM "WHISTLEBLOWER"
LAWSUITS, IN WHICH THE STATE HAS INTERVENED, IS A PARTY AND/OR HAS THE AUTHORITY
TO DISMISS, CURRENTLY PENDING AGAINST CEPHALON IN ANY COURT ASSERTING
ALLEGATIONS OR CLAIMS RELATING TO THE COVERED CONDUCT.
THIS AGREEMENT IS
CONTINGENT UPON DISMISSAL WITH PREJUDICE OF ALL SUCH QUI TAM "WHISTLEBLOWER"
LAWSUITS.
TO THE EXTENT ANY SUCH QUI TAM "WHISTLEBLOWER" LAWSUIT IS NOT
DISMISSED WITH PREJUDICE, THIS AGREEMENT SHALL BECOME NULL AND VOID AND THE
AMOUNT ALLOCABLE TO THE STATE UNDER THIS AGREEMENT, AS SET FORTH IN PARAGRAPH
III 1(C), SHALL BE RETURNED TO CEPHALON.
8.
THE CEPHALON RELEASED ENTITIES WAIVE