agree
SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (the "Agreement") is entered into by Schering-Plough Corporation (n/k/a/ Merck & Co., Inc.), Schering Corporation and Warrick Pharmaceuticals Corporation (Warrick) (hereinafter collectively known as the "Defendants") and the Commonwealth of Massachusetts (the "Commonwealth"), acting through its Executive Office of Health and Human Services ("EOHHS"), in its role as the single State agency responsible for administering the Massachusetts Medicaid program, known as MassHealth, and the Medicaid Fraud Division of the Office of the Attorney General. The Defendants and the Commonwealth will sometimes be referred to collectively as the "Parties."
Section I: Preamble A.
During all relevant times Schering-Plough Corporation ("Schering-Plough") was
a corporation organized under the laws of the State of New Jersey. Effective November 3, 2009, Schering-Plough changed its name to Merck & Co., Inc. B.
During all relevant times Schering Corporation ("Schering") was a corporation
organized under the laws of the State of New Jersey and a wholly-owned subsidiary of ScheringPlough. C.
During all relevant times Warrick Pharmaceuticals Corporation ("Warrick") was a
corporation organized under the laws of the State of Delaware and a wholly-owned subsidiary of Schering.
D.
The Commonwealth sued Schering-Plough, Schering and Warrick, among others,
in litigation captioned The Commonwealth of Massachusetts v. Mylan Laboratories, Inc., et al., C.A. No. 03-CV-I 1865-PBS, in the United States District Court for the District of Massachusetts (the "Litigation"). The Litigation went to trial as to Schering-Plough, Schering and Warrick and
resulted in a judgment in favor of the Commonwealth. Both the Commonwealth and the Defendants have filed Notices of Appeal to the United States Court of Appeals for the First
Circuit. E.
Settlement of the Litigation on the terms set forth herein shall not be construed as
an admission by the Commonwealth that the evidence it presented at trial is not sufficient to establish its claims or that it would not prevail on appeal. F.
The Defendants have filed an Answer to the Commonwealth's Second Amended
Complaint in the Litigation in which they expressly deny the Commonwealth's claims. Settlement of the Litigation on the terms set forth herein shall not be construed as an admission by the Defendants that the evidence presented at trial was sufficient to establish the Commonwealth's claims or that they did not have defenses to those claims or that the Defendants would not prevail on appeal. G.
This Agreement shall not be admissible for any purpose in any judicial
proceeding, except to enforce the settlement described herein. H.
Medicaid is a government program to provide health care services to the poor and
disabled which is jointly funded by the federal and state governments. The Defendants have previously entered into a separate settlement agreement relating to the federal share of the Medicaid recovery for the claims set forth in the Litigation. The Parties represent that the Amended Judgment entered in the Litigation on May 23, 2011 relates only to the state share of the Medicaid claims involved in the Litigation. The Commonwealth represents that no interest in its state share claims set forth in the Litigation has been assigned or otherwise transferred by the Commonwealth to any third party.
2
I.
Notwithstanding the foregoing, and in order to avoid the additional expense and
delay of protracted litigation, the Commonwealth and the Defendants have reached an Agreement to settle and resolve the Litigation and all claims related to the Covered Conduct defined in Paragraph 2, below.
Section II: Terms and Conditions NOW THEREFORE, for the mutual promises, covenants and obligations set forth below, and for good and valuable consideration as stated herein, the sufficiency of which are hereby acknowledged, the Commonwealth and the Defendants agree as follows: 1.
The foregoing Preamble is incorporated herein.
2.
The "Covered Conduct" that is addressed by this Agreement is (a) the
Defendant's conduct described in the Second Amended Complaint filed in the Litigation with regard to the drugs and time periods listed in Attachments D and E to the Hartman Report [Dkt. No. 460] as referenced in the Second Amended Complaint; and (b) conduct similar to that alleged in the Second Amended Complaint as may have been engaged in by any of the Defendant Released Parties with regard to any of the drugs manufactured, distributed, marketed, co-marketed, co-promoted or sold by any of the Defendant Released Parties through the Effective Date of this Agreement (the "Covered Drugs").
The Settlement Payment The Defendants agree to pay the Commonwealth, by wire transfer, the total amount of Twenty Four million ($24,000,000.00) USD (the "Settlement Payment") within five (5) business days following the Effective Date of this Agreement or the date on which the Defendants receive wire instructions from the Commonwealth designating the account to which the funds should be wired, whichever is later.
3
4.
The Settlement Payment shall be in fall and final satisfaction of all claims,
demands and allegations relating to the Covered Conduct.
The Commonwealth's Release of the Defendants 5.
The Commonwealth hereby fully and finally releases the Defendants, their parent
corporation, subsidiaries and direct and indirect affiliates (defined for purposes of this Agreement to mean any related corporate entity in which Defendants have or prior to the Effective Date had at least a 50% ownership interest), including their predecessors, successors, and assigns, as well as any of their current and former directors, officers, employees, agents, shareholders and attorneys (the "Defendant Released Parties"), from any claim, action, suit or proceeding of any and every nature whatsoever that the Commonwealth has or could have asserted arising from the Covered Conduct. This release fully discharges the Defendant Released Parties from any obligation to pay restitution, interest of any kind, compensatory damages or other damages of any kind, civil penalties, or the costs and expenses of litigation, including attorneys' fees, or to provide any other relief to the Commonwealth pertaining to the Covered Conduct. The Parties agree that this Agreement is not punitive in purpose or effect. 6.
In the event that during a period of five years following the Effective Date of this
Agreement the Commonwealth is unable to obtain the Defendants' Average Manufacturer's Prices (AMPs) or other, similar sales data (the "Sales Data"), as reported by the Defendants to the federal Centers for Medicare and Medicaid Services ("CMS"), the Defendants shall, upon request, provide the AMPs, or such other Sales Data to the Commonwealth under the same terms of confidentiality as it was provided to CMS. 7.
The Commonwealth agrees that it will not commence any action asserting claims
against any of the Defendant Released Parties for reporting, alleged misreporting or failing to
4
report Wholesale Acquisition Costs (WACs), Average Wholesale Prices (AWPs) or Direct Prices (DPs) for the Covered Drugs that occurs during a period of five years following the Effective Date of this Agreement, provided that the Defendants comply with paragraph 6 above. The Defendants acknowledge, however, that this agreement shall not prohibit the Commonwealth from bringing suit, or taking other actions, against the Defendants for reporting false, misleading or fraudulent AMPs for any of their drugs at any time. 8.
In consideration of the obligations of the Defendants set forth in this Agreement,
the Commonwealth agrees to release and refrain from instituting, directing, recommending or maintaining any action seeking suspension, exclusion, or any other administrative action against the Defendant Released Parties from any of the Commonwealth's healthcare programs, including the Medicaid program, based on the Covered Conduct. Nothing in this Agreement precludes the Commonwealth from taking action against any of the Defendant Released Parties (a) to the extent that they are excluded by the federal government from participation in any federal program, through the operation of 42 USC ยง 1396r-8 or otherwise for any reason, and to the extent that the federal government's action also requires that the Commonwealth exclude them from the Massachusetts Medicaid program; or (b) for conduct or practices other than the Covered Conduct. 9.
Notwithstanding any other provision of this Agreement, specifically reserved and
excluded from the scope and terms of any release are any and all of the following: a.
any claim based upon such obligations as are created by this Agreement;
b.
any claim for rebates payable to the Commonwealth in the ordinary course of business under any federal or state health care program or any other law or contract (although claims relating to the rebate allegations described in the Second Amended Complaint shall be released);
c.
any liability of any sort arising under the Commonwealth's tax laws; 5
d.
any express or implied warranty claim, or other claim, for defective or deficient products, including with respect to quality of goods, provided by the Defendants;
e.
the subrogation rights, if any, otherwise possessed by the Commonwealth to claims for personal injury arising from usage by a participant in the Medicaid or other state-sponsored health program of any of the Covered Drugs; any claim based on a failure to deliver items due;
g.
any claim of natural persons or consumers, or claims the Commonwealth can assert on behalf of such natural persons or consumers, including for co-payments or co-insurance under Medicare Part B, occurring prior to the Effective Date of this Agreement. Notwithstanding the foregoing, the Commonwealth covenants not to sue the Defendant Released Parties based on the claims reserved by this subparagraph (g) if such claims are based upon the Covered Conduct or any allegations or claims that were or could have been asserted in the Litigation based on the Covered Conduct; and
h.
any administrative, civil or disciplinary action by any state governmental agency for conduct or practices unrelated to the Covered Conduct or the Litigation or for any civil or administrative liability under any statute, regulation, rule, policy or contract unrelated either to the Covered Conduct or to any allegations or claims that were or could have been asserted in the Litigation based on the Covered Conduct, or of any other sort not expressly released by this Agreement.
Defendants' Release of the Commonwealth 10.
The Defendants fully and finally release the Commonwealth, its agencies,
employees, servants, attorneys and agents (the "Commonwealth Released Parties") from any claim, suit or cause of action of every kind and however denominated, which the Defendants could have asserted against the Commonwealth Released Parties, related to the Covered Conduct, the Litigation and the Commonwealth's investigation and prosecution of the Litigation. Notwithstanding any other provisions of this Agreement, specifically reserved and excluded from the scope and terms of the Defendants' release of the Commonwealth are any and all of the fo (lowing: a.
any claims based upon such obligations as are created by this Agreement;
6
b.
any claim for refund or adjustment of rebates paid by the Defendant Released Parties to the Commonwealth under any federal or state health care program or any other law or contract; and
c.
any claim based on a failure to pay for items delivered or services rendered by the Defendants
Withdrawal of Appeals
11.
Within five (5) business days of receipt by the Commonwealth of the Settlement
Payment, the Commonwealth and the Defendants shall file in the United States Court of Appeals for the First Circuit a Stipulation of Voluntary Dismissal, with prejudice, and without costs, as to both the Commonwealth's and the Defendants' appeals. A copy of this Agreement shall not, however, be filed with the Court. The Defendants understand that the Commonwealth will announce the settlement contained herein in a press release. 12.
The terms of the Protective Order entered in the Litigation on May 11, 2006, shall
remain in full force and effect. Notice to Parties
13.
Unless otherwise instructed in writing subsequent to the Effective Date of this
Agreement, all notifications and communications made pursuant to this Agreement shall be submitted to the entities listed below by facsimile and U.S. Mail: a.
To the Commonwealth for all purposes: Director Medicaid Fraud Division Office of the Attorney General Commonwealth of Massachusetts One Ashburton Place, Rm 1813 Boston, MA 02108-1598 617-727-2200, Ex. 2381 Fax: 617-727-2008
7
b.
To the Massachusetts EORE-IS for all purposes: Barbara Wexler, Esq. Second Deputy General Counsel Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 617-573-1600 Fax: 617-573-1893 and Paul L. Jeffrey, Pharm.D. Director of Pharmacy, MassHealth 100 Hancock Street Quincy, MA 02170 617-847-3732
c.
To Defendants for all purposes: Bruce N. Kuhlik Executive Vice President and General Counsel Merck & Co., Inc. One Merck Drive Whitehouse Station, NJ 08889 and John P. Bueker, Esquire Ropes & Gray LLP 800 Boylston Street Boston, MA 20199-3600 617-951-7000 Fax: 617-235-0609
Miscellaneous Provisions 14.
This Agreement is intended solely for the benefit of the Defendant and
Commonwealth Released Parties. The Parties do not by this Agreement release any claim against any other person or entity, other than the Defendant and Commonwealth Released Parties.
8
15.
This Agreement constitutes the complete agreement between the Commonwealth
and the Defendants and may be amended or supplemented only by a writing signed by the Parties. 16.
This Agreement shall be equally binding on, and inure to the benefit of, the
successors, transferees and assigns of the Parties. 17.
Subject to the settlement herein, nothing in this Agreement shall relieve the
Defendants of their other obligations under applicable federal, state and local law. 18.
The Parties represent that this Agreement is entered into freely and voluntarily,
without duress or compulsion. 19.
The Commonwealth represents that the terms of this Agreement do not require it
to waive its sovereign immunity and expressly denies that by entering into this Agreement it is waiving its sovereign immunity. 20.
Each party to this Agreement shall bear its own legal and other costs in
connection with this litigation, including the preparation and performance of this Agreement. 21.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts. 22.
The exclusive forum for resolving any dispute regarding this Agreement shall be
the United States District Court for the District of Massachusetts. 23.
The bold-faced captions in this Agreement are for convenience only and do not
add to, detract from or change the substantive language or terms of this Agreement. 24.
The undersigned individual signing this Agreement on behalf of the Defendants
represents and warrants that he is duly authorized by the Defendants to execute this Agreement.
9
25.
The undersigned individuals signing this Agreement on behalf of the
Commonwealth represent that they are signing this Agreement in their official capacities and that they are authorized to do so. 26.
The Parties agree that should any non-material portion of this Agreement be
found to be void, unenforceable or otherwise invalid, by any court of competent jurisdiction, after the exhaustion of all rights to appeal, the entire Agreement shall not be nullified and such invalid portion shall be severed from the remainder of the Agreement as if it had never been entered into and the remainder of the Agreement shall be enforced. The Parties agree that portions of this Agreement concerning the enforceability or scope of the release of claims and/or payment of the Settlement Payment are material. 27.
This Agreement shall be executed in counterparts, each of which shall constitute
an original and all of which shall be deemed to constitute one and the same Agreement. Facsimile or .PDF signatures shall be valid signatures as of the date thereof. 28.
The Effective Date of this Agreement shall be the date upon which all of the
Parties have executed this Agreement. IN WITNESS WHEREOF, the Commonwealth and the Defendants set their hands and seals on the dates set forth below:
COMMONWEALTH OF MASSACHUSETTS By: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES
Date: DecernberlY, 2011
-,exe,2rx^74
Bar'Fa-ra L. Wexler, Esq. Second Deputy General Counsel 10
By: MARTHA COAKLEY Attorney General
Date: Decembee, 2011
By: K. Nathaniel Yeager Assistant Attorney General Director Medicaid Fraud Division
SCHERING PLOUGH CORPORATION -
By:
Date: December , 2011 Bruce N. Kuhlik, Esq. Executive Vice President and General Counsel Merck & Co., Inc.
SCHERING CORPORATION
By:
Date: December , 2011 Bruce N. Kuhlik, Esq. Executive Vice President and General Counsel Merck & Co., Inc.
WARRICK PHARMACUETICALS CORPORATION
By:
Date: December , 2011 Bruce N. Kuhlik, Esq. Executive Vice President and General Counsel Merck & Co., Inc.
By: MARTHA COAKLEY Artorney Geiteral
By:
hier;1010.4t..
Date: Decembee, 2011
K. Nathaniel Yeager Assistant Attorney General Director Medicaid Fraud Division
SCHERING-PLOUGH CORPORATION By:
t vAp_."
[ Date: December 12011
Bruce N. Kuhlik, Executive Vice President and General Counsel Merck & Co., Inc.
SCHERING CORPORATION
By:
Date: December
011
Bruce N. Kuhlik, Esq. Executive Vice Pre4dent and General Counsel Merck & Co., Inc.
WARRICK PHARMACUETICALS CORPORATION
By:
(4,1.
07' Date: December /2011
Bruce N. Kuhlik. Esq. Executive Vice President and General Counsel Merck & Co., Inc.
Section I: Preamble A.
During all relevant times Schering-Plough Corporation ("Schering-Plough") was
a corporation organized under the laws of the State of New Jersey. Effective November 3, 2009, Schering-Plough changed its name to Merck & Co., Inc. B.
During all relevant times Schering Corporation ("Schering") was a corporation
organized under the laws of the State of New Jersey and a wholly-owned subsidiary of ScheringPlough. C.
During all relevant times Warrick Pharmaceuticals Corporation ("Warrick") was a
corporation organized under the laws of the State of Delaware and a wholly-owned subsidiary of Schering.
D.
The Commonwealth sued Schering-Plough, Schering and Warrick, among others,
in litigation captioned The Commonwealth of Massachusetts v. Mylan Laboratories, Inc., et al., C.A. No. 03-CV-I 1865-PBS, in the United States District Court for the District of Massachusetts (the "Litigation"). The Litigation went to trial as to Schering-Plough, Schering and Warrick and
resulted in a judgment in favor of the Commonwealth. Both the Commonwealth and the Defendants have filed Notices of Appeal to the United States Court of Appeals for the First
Circuit. E.
Settlement of the Litigation on the terms set forth herein shall not be construed as
an admission by the Commonwealth that the evidence it presented at trial is not sufficient to establish its claims or that it would not prevail on appeal. F.
The Defendants have filed an Answer to the Commonwealth's Second Amended
Complaint in the Litigation in which they expressly deny the Commonwealth's claims. Settlement of the Litigation on the terms set forth herein shall not be construed as an admission by the Defendants that the evidence presented at trial was sufficient to establish the Commonwealth's claims or that they did not have defenses to those claims or that the Defendants would not prevail on appeal. G.
This Agreement shall not be admissible for any purpose in any judicial
proceeding, except to enforce the settlement described herein. H.
Medicaid is a government program to provide health care services to the poor and
disabled which is jointly funded by the federal and state governments. The Defendants have previously entered into a separate settlement agreement relating to the federal share of the Medicaid recovery for the claims set forth in the Litigation. The Parties represent that the Amended Judgment entered in the Litigation on May 23, 2011 relates only to the state share of the Medicaid claims involved in the Litigation. The Commonwealth represents that no interest in its state share claims set forth in the Litigation has been assigned or otherwise transferred by the Commonwealth to any third party.
2
I.
Notwithstanding the foregoing, and in order to avoid the additional expense and
delay of protracted litigation, the Commonwealth and the Defendants have reached an Agreement to settle and resolve the Litigation and all claims related to the Covered Conduct defined in Paragraph 2, below.
Section II: Terms and Conditions NOW THEREFORE, for the mutual promises, covenants and obligations set forth below, and for good and valuable consideration as stated herein, the sufficiency of which are hereby acknowledged, the Commonwealth and the Defendants agree as follows: 1.
The foregoing Preamble is incorporated herein.
2.
The "Covered Conduct" that is addressed by this Agreement is (a) the
Defendant's conduct described in the Second Amended Complaint filed in the Litigation with regard to the drugs and time periods listed in Attachments D and E to the Hartman Report [Dkt. No. 460] as referenced in the Second Amended Complaint; and (b) conduct similar to that alleged in the Second Amended Complaint as may have been engaged in by any of the Defendant Released Parties with regard to any of the drugs manufactured, distributed, marketed, co-marketed, co-promoted or sold by any of the Defendant Released Parties through the Effective Date of this Agreement (the "Covered Drugs").
The Settlement Payment The Defendants agree to pay the Commonwealth, by wire transfer, the total amount of Twenty Four million ($24,000,000.00) USD (the "Settlement Payment") within five (5) business days following the Effective Date of this Agreement or the date on which the Defendants receive wire instructions from the Commonwealth designating the account to which the funds should be wired, whichever is later.
3
4.
The Settlement Payment shall be in fall and final satisfaction of all claims,
demands and allegations relating to the Covered Conduct.
The Commonwealth's Release of the Defendants 5.
The Commonwealth hereby fully and finally releases the Defendants, their parent
corporation, subsidiaries and direct and indirect affiliates (defined for purposes of this Agreement to mean any related corporate entity in which Defendants have or prior to the Effective Date had at least a 50% ownership interest), including their predecessors, successors, and assigns, as well as any of their current and former directors, officers, employees, agents, shareholders and attorneys (the "Defendant Released Parties"), from any claim, action, suit or proceeding of any and every nature whatsoever that the Commonwealth has or could have asserted arising from the Covered Conduct. This release fully discharges the Defendant Released Parties from any obligation to pay restitution, interest of any kind, compensatory damages or other damages of any kind, civil penalties, or the costs and expenses of litigation, including attorneys' fees, or to provide any other relief to the Commonwealth pertaining to the Covered Conduct. The Parties agree that this Agreement is not punitive in purpose or effect. 6.
In the event that during a period of five years following the Effective Date of this
Agreement the Commonwealth is unable to obtain the Defendants' Average Manufacturer's Prices (AMPs) or other, similar sales data (the "Sales Data"), as reported by the Defendants to the federal Centers for Medicare and Medicaid Services ("CMS"), the Defendants shall, upon request, provide the AMPs, or such other Sales Data to the Commonwealth under the same terms of confidentiality as it was provided to CMS. 7.
The Commonwealth agrees that it will not commence any action asserting claims
against any of the Defendant Released Parties for reporting, alleged misreporting or failing to
4
report Wholesale Acquisition Costs (WACs), Average Wholesale Prices (AWPs) or Direct Prices (DPs) for the Covered Drugs that occurs during a period of five years following the Effective Date of this Agreement, provided that the Defendants comply with paragraph 6 above. The Defendants acknowledge, however, that this agreement shall not prohibit the Commonwealth from bringing suit, or taking other actions, against the Defendants for reporting false, misleading or fraudulent AMPs for any of their drugs at any time. 8.
In consideration of the obligations of the Defendants set forth in this Agreement,
the Commonwealth agrees to release and refrain from instituting, directing, recommending or maintaining any action seeking suspension, exclusion, or any other administrative action against the Defendant Released Parties from any of the Commonwealth's healthcare programs, including the Medicaid program, based on the Covered Conduct. Nothing in this Agreement precludes the Commonwealth from taking action against any of the Defendant Released Parties (a) to the extent that they are excluded by the federal government from participation in any federal program, through the operation of 42 USC ยง 1396r-8 or otherwise for any reason, and to the extent that the federal government's action also requires that the Commonwealth exclude them from the Massachusetts Medicaid program; or (b) for conduct or practices other than the Covered Conduct. 9.
Notwithstanding any other provision of this Agreement, specifically reserved and
excluded from the scope and terms of any release are any and all of the following: a.
any claim based upon such obligations as are created by this Agreement;
b.
any claim for rebates payable to the Commonwealth in the ordinary course of business under any federal or state health care program or any other law or contract (although claims relating to the rebate allegations described in the Second Amended Complaint shall be released);
c.
any liability of any sort arising under the Commonwealth's tax laws; 5
d.
any express or implied warranty claim, or other claim, for defective or deficient products, including with respect to quality of goods, provided by the Defendants;
e.
the subrogation rights, if any, otherwise possessed by the Commonwealth to claims for personal injury arising from usage by a participant in the Medicaid or other state-sponsored health program of any of the Covered Drugs; any claim based on a failure to deliver items due;
g.
any claim of natural persons or consumers, or claims the Commonwealth can assert on behalf of such natural persons or consumers, including for co-payments or co-insurance under Medicare Part B, occurring prior to the Effective Date of this Agreement. Notwithstanding the foregoing, the Commonwealth covenants not to sue the Defendant Released Parties based on the claims reserved by this subparagraph (g) if such claims are based upon the Covered Conduct or any allegations or claims that were or could have been asserted in the Litigation based on the Covered Conduct; and
h.
any administrative, civil or disciplinary action by any state governmental agency for conduct or practices unrelated to the Covered Conduct or the Litigation or for any civil or administrative liability under any statute, regulation, rule, policy or contract unrelated either to the Covered Conduct or to any allegations or claims that were or could have been asserted in the Litigation based on the Covered Conduct, or of any other sort not expressly released by this Agreement.
Defendants' Release of the Commonwealth 10.
The Defendants fully and finally release the Commonwealth, its agencies,
employees, servants, attorneys and agents (the "Commonwealth Released Parties") from any claim, suit or cause of action of every kind and however denominated, which the Defendants could have asserted against the Commonwealth Released Parties, related to the Covered Conduct, the Litigation and the Commonwealth's investigation and prosecution of the Litigation. Notwithstanding any other provisions of this Agreement, specifically reserved and excluded from the scope and terms of the Defendants' release of the Commonwealth are any and all of the fo (lowing: a.
any claims based upon such obligations as are created by this Agreement;
6
b.
any claim for refund or adjustment of rebates paid by the Defendant Released Parties to the Commonwealth under any federal or state health care program or any other law or contract; and
c.
any claim based on a failure to pay for items delivered or services rendered by the Defendants
Withdrawal of Appeals
11.
Within five (5) business days of receipt by the Commonwealth of the Settlement
Payment, the Commonwealth and the Defendants shall file in the United States Court of Appeals for the First Circuit a Stipulation of Voluntary Dismissal, with prejudice, and without costs, as to both the Commonwealth's and the Defendants' appeals. A copy of this Agreement shall not, however, be filed with the Court. The Defendants understand that the Commonwealth will announce the settlement contained herein in a press release. 12.
The terms of the Protective Order entered in the Litigation on May 11, 2006, shall
remain in full force and effect. Notice to Parties
13.
Unless otherwise instructed in writing subsequent to the Effective Date of this
Agreement, all notifications and communications made pursuant to this Agreement shall be submitted to the entities listed below by facsimile and U.S. Mail: a.
To the Commonwealth for all purposes: Director Medicaid Fraud Division Office of the Attorney General Commonwealth of Massachusetts One Ashburton Place, Rm 1813 Boston, MA 02108-1598 617-727-2200, Ex. 2381 Fax: 617-727-2008
7
b.
To the Massachusetts EORE-IS for all purposes: Barbara Wexler, Esq. Second Deputy General Counsel Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 617-573-1600 Fax: 617-573-1893 and Paul L. Jeffrey, Pharm.D. Director of Pharmacy, MassHealth 100 Hancock Street Quincy, MA 02170 617-847-3732
c.
To Defendants for all purposes: Bruce N. Kuhlik Executive Vice President and General Counsel Merck & Co., Inc. One Merck Drive Whitehouse Station, NJ 08889 and John P. Bueker, Esquire Ropes & Gray LLP 800 Boylston Street Boston, MA 20199-3600 617-951-7000 Fax: 617-235-0609
Miscellaneous Provisions 14.
This Agreement is intended solely for the benefit of the Defendant and
Commonwealth Released Parties. The Parties do not by this Agreement release any claim against any other person or entity, other than the Defendant and Commonwealth Released Parties.
8
15.
This Agreement constitutes the complete agreement between the Commonwealth
and the Defendants and may be amended or supplemented only by a writing signed by the Parties. 16.
This Agreement shall be equally binding on, and inure to the benefit of, the
successors, transferees and assigns of the Parties. 17.
Subject to the settlement herein, nothing in this Agreement shall relieve the
Defendants of their other obligations under applicable federal, state and local law. 18.
The Parties represent that this Agreement is entered into freely and voluntarily,
without duress or compulsion. 19.
The Commonwealth represents that the terms of this Agreement do not require it
to waive its sovereign immunity and expressly denies that by entering into this Agreement it is waiving its sovereign immunity. 20.
Each party to this Agreement shall bear its own legal and other costs in
connection with this litigation, including the preparation and performance of this Agreement. 21.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts. 22.
The exclusive forum for resolving any dispute regarding this Agreement shall be
the United States District Court for the District of Massachusetts. 23.
The bold-faced captions in this Agreement are for convenience only and do not
add to, detract from or change the substantive language or terms of this Agreement. 24.
The undersigned individual signing this Agreement on behalf of the Defendants
represents and warrants that he is duly authorized by the Defendants to execute this Agreement.
9
25.
The undersigned individuals signing this Agreement on behalf of the
Commonwealth represent that they are signing this Agreement in their official capacities and that they are authorized to do so. 26.
The Parties agree that should any non-material portion of this Agreement be
found to be void, unenforceable or otherwise invalid, by any court of competent jurisdiction, after the exhaustion of all rights to appeal, the entire Agreement shall not be nullified and such invalid portion shall be severed from the remainder of the Agreement as if it had never been entered into and the remainder of the Agreement shall be enforced. The Parties agree that portions of this Agreement concerning the enforceability or scope of the release of claims and/or payment of the Settlement Payment are material. 27.
This Agreement shall be executed in counterparts, each of which shall constitute
an original and all of which shall be deemed to constitute one and the same Agreement. Facsimile or .PDF signatures shall be valid signatures as of the date thereof. 28.
The Effective Date of this Agreement shall be the date upon which all of the
Parties have executed this Agreement. IN WITNESS WHEREOF, the Commonwealth and the Defendants set their hands and seals on the dates set forth below:
COMMONWEALTH OF MASSACHUSETTS By: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES
Date: DecernberlY, 2011
-,exe,2rx^74
Bar'Fa-ra L. Wexler, Esq. Second Deputy General Counsel 10
By: MARTHA COAKLEY Attorney General
Date: Decembee, 2011
By: K. Nathaniel Yeager Assistant Attorney General Director Medicaid Fraud Division
SCHERING PLOUGH CORPORATION -
By:
Date: December , 2011 Bruce N. Kuhlik, Esq. Executive Vice President and General Counsel Merck & Co., Inc.
SCHERING CORPORATION
By:
Date: December , 2011 Bruce N. Kuhlik, Esq. Executive Vice President and General Counsel Merck & Co., Inc.
WARRICK PHARMACUETICALS CORPORATION
By:
Date: December , 2011 Bruce N. Kuhlik, Esq. Executive Vice President and General Counsel Merck & Co., Inc.
By: MARTHA COAKLEY Artorney Geiteral
By:
hier;1010.4t..
Date: Decembee, 2011
K. Nathaniel Yeager Assistant Attorney General Director Medicaid Fraud Division
SCHERING-PLOUGH CORPORATION By:
t vAp_."
[ Date: December 12011
Bruce N. Kuhlik, Executive Vice President and General Counsel Merck & Co., Inc.
SCHERING CORPORATION
By:
Date: December
011
Bruce N. Kuhlik, Esq. Executive Vice Pre4dent and General Counsel Merck & Co., Inc.
WARRICK PHARMACUETICALS CORPORATION
By:
(4,1.
07' Date: December /2011
Bruce N. Kuhlik. Esq. Executive Vice President and General Counsel Merck & Co., Inc.
