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IN THE UNITED STATES DISTRICT COURT
The United States of America and Maymead, Inc., the defendant, hereby enter into the following Plea Agreement pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure (the "Fed. R. Crim. P."):
RIGHTS OF DEFENDANT
1. The defendant understands its right:
AGREEMENT TO PLEAD GUILTY AND WAIVE CERTAIN RIGHTS
2. The defendant waives the rights set out in Paragraph 1(b)-(g) above. The defendant also waives the right to appeal the imposition of sentence against it (Paragraph 1(h)), so long as the sentence imposed is consistent with the recommendation in Paragraph 8 of this Plea Agreement; and the defendant waives the right to contest its sentence on collateral attack (Paragraph 1(i)), excluding any potential claims of ineffective assistance of counsel or prosecutorial misconduct. The defendant expressly and explicitly agrees and understands that the United States preserves all its rights and duties with respect to appeal as set forth in 18 U.S.C. § 3742(b), while the defendant waives all rights to appeal or collaterally attack the sentence or conviction, saving only those appellate and collateral rights set out in the first sentence of this Paragraph. Pursuant to Fed. R. Crim. P. 7(b), the defendant will waive indictment and plead guilty pursuant to Fed. R. Crim. P. 11(e)(1)(C) to an Information, to be filed in the United States District Court for the Western District of North Carolina. The Information will charge that in or about November 2000, the defendant did knowingly and willfully make and cause to be made a materially false, fictitious, and fraudulent statement and representation in a matter within the jurisdiction of the Federal Highway Administration ("FHWA"), an agency of the United States Department of Transportation, a department of the United States, by falsely certifying that it had not disclosed its bid prices on a federal project to any other competitor, when in truth and fact it had, in violation of 18 U.S.C. § 1001.
3. Pursuant to the terms of this Plea Agreement, the defendant will plead guilty at arraignment to the criminal charge described in Paragraph 2 above, and will make a factual admission of guilt to the Court in accordance with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below.
FACTUAL BASIS FOR OFFENSE CHARGED
4. Had this case gone to trial, the United States would have presented evidence to prove the following facts:
POSSIBLE MAXIMUM SENTENCE
5. The defendant understands that the maximum penalty that may be imposed against it upon conviction for a violation of the False Statements Statute, 18 U.S.C. § 1001, charged in Count One is a fine in an amount equal to the greatest of: (a) $500,000 (18 U.S.C. § 3571(c)(3)); or (b) twice the gross pecuniary gain or loss resulting from the offense (18 U.S.C. § 3571(d)).
6. In addition, the defendant understands that:
7. The United States and defendant agree that sentencing for the offense charged will be conducted pursuant to the USSG in effect on November 9, 2000, up to and including the November 1, 2000 amendments to the USSG.
8. Pursuant to Fed. R. Crim. P. 11(e)(1)(C), the United States and the defendant agree that the appropriate disposition of this case is, and agree jointly to recommend that the Court impose, a sentence of the payment of a criminal fine of $100,000 to be paid immediately.
9. (a) The United States and the defendant understand that the Court retains complete discretion to accept or reject the agreed-upon recommendations provided for in this Plea Agreement. If the Court does not accept the recommended sentence, this Plea Agreement, except for Paragraph 9(b) below, will be void and the defendant will be free to withdraw its guilty plea (Fed. R. Crim. P. 11(e)(4)).
(b) If the defendant does withdraw its plea of guilty, the United States will dismiss the Information without prejudice, and this Plea Agreement, the guilty plea, and any statements made in the course of any proceedings under Fed. R. Crim. P. 11 regarding the plea or this Plea Agreement, or made in the course of plea discussions with an attorney for the government, shall not be admissible against the defendant in any criminal or civil proceeding as provided in Fed. R. Crim. P. 11(e)(6).
10. The defendant will fully and truthfully cooperate with the United States in the prosecution of this case, the conduct of the current federal investigation of violations of the federal antitrust and related criminal laws in the road construction industry in North Carolina and Tennessee, any other federal investigation resulting therefrom, and any litigation or other proceeding arising or resulting from any such investigation to which the United States is a party ("Federal Proceeding"). The ongoing, full, and truthful cooperation of the defendant shall include, but not be limited to:
11. The ongoing, full, and truthful cooperation of each person described in Paragraph 10(b) above will be subject to the procedures and protections of this paragraph, and shall include, but not be limited to:
12. Subject to the defendant's full and continuing cooperation, as described in Paragraph 10 above, and upon the Court's acceptance of the defendant's guilty plea and imposition of sentence in this case, the United States agrees not to bring further criminal charges against the defendant for any violations committed before the date of this Plea Agreement relating to or arising out of its making false statements as charged in the Information. The non-prosecution terms of this agreement do not apply to any civil liability of any kind, to any violation of the federal tax or securities laws, or to any crime of violence. The terms of this agreement do not obligate the United States to consider defendant's cooperation for purposes of a motion, pursuant to USSG § 8C4.1, for imposition of a sentence below the applicable Sentencing Guidelines, and the defendant recognizes that the Court cannot depart below the Sentencing Guidelines for substantial assistance absent such a motion from the United States.
13. The defendant understands that it may be subject to administrative or other action by federal or state agencies other than the United States Department of Justice, Antitrust Division, based upon any conviction resulting from this Plea Agreement, and that this Plea Agreement in no way controls whatever action, if any, such other agencies may take.
REPRESENTATION BY COUNSEL
14. Defendant has been represented by counsel and is fully satisfied that its attorneys have provided competent legal representation. Defendant has thoroughly reviewed this Plea Agreement and acknowledges that its attorneys have advised it of the nature of the charges, any possible defenses to the charges, and the nature and range of possible sentences.
15. Defendant's decision to enter into this Plea Agreement and defendant's decision to tender a plea of guilty are freely and voluntarily made and are not the result of force, threats, assurances, promises, or representations other than the representations contained in this Plea Agreement. The United States has made no promises or representations to defendant as to whether the Court will accept or reject this Plea Agreement.
VIOLATION OF PLEA AGREEMENT
16. The defendant agrees that, should the United States determine in good faith, during the period that any Federal Proceeding is pending, that the defendant has failed to provide full cooperation (as described in Paragraph 10 of this Plea Agreement) or otherwise has violated any other provision of this Plea Agreement, the United States shall notify counsel for defendant in writing by personal or overnight delivery or facsimile transmission of its intention to void any of its obligations under this Plea Agreement (except its obligations under this paragraph), and the defendant shall be subject to prosecution for any federal crime of which the United States has knowledge including, but not limited to, the substantive offense relating to the investigation resulting in this Plea Agreement. This prosecution may be based upon information provided by the defendant during the course of its cooperation, and this information and any leads derived from this information may be used as evidence against it, notwithstanding the protections of Fed. R. Crim. P. 11(e)(6) and Fed. R. Evid. 410. Should this Plea Agreement become void, defendant agrees that it will waive any defense it might otherwise have to any charges for any offense referred to in Paragraph 12 above, under any statute of limitations or the Speedy Trial Act, with regard to any period which passes after the date of this Plea Agreement.ENTIRETY OF AGREEMENT
17. This Plea Agreement constitutes the entire agreement between the United States and the defendant concerning the disposition of the criminal charges in this case. This Plea Agreement cannot be modified except in writing signed by the United States and the defendant.
18. The undersigned, B. K. Mount, the President of Maymead, Inc., is authorized to enter this Plea Agreement on behalf of Maymead, Inc. as evidenced by the Resolution of the Board of Directors of Maymead, Inc., attached hereto, and incorporated herein by reference.
19. The undersigned attorneys for the United States have been authorized by the Assistant Attorney General of the Antitrust Division of the United States Department of Justice to enter this Plea Agreement on behalf of the United States.