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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
The United States of America and ABB MIDDLE EAST & AFRICA PARTICIPATIONS AG ("ABB MEA") hereby enter into the following Plea Agreement pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."):RIGHTS OF DEFENDANT
1. ABB MEA understands its rights:
AND WAIVE CERTAIN RIGHTS
2. ABB MEA waives the rights set out in Paragraph 1(b)-(f) above. ABB MEA also waives the right to appeal the imposition of the sentence against it, so long as the sentence imposed is consistent with the recommendation in Paragraph 8 of this Plea Agreement. Pursuant to Fed. R. Crim. P. 7(b), ABB MEA will waive indictment and plead guilty under Fed. R. Crim. P. 11(e)(1)(C) to a one-count Information to be filed in the United States District Court for the Northern District of Alabama. The Information will charge ABB MEA with participating in a conspiracy to suppress and eliminate competition by rigging the bids on a United States-funded wastewater construction project in the Arab Republic of Egypt, beginning at least as early as June 1989 and continuing at least through September 20, 1996, in violation of 15 U.S.C. § 1.
3. Pursuant to the terms of this Plea Agreement, ABB MEA 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.
5. ABB MEA understands that the maximum penalty that may be imposed against it upon conviction for a violation of the Sherman Antitrust Act is a fine in an amount equal to the largest of:
6. In addition, ABB MEA understands that:
7. Sentencing for the offense to be charged will be conducted pursuant to the Federal Sentencing Guidelines Manual in effect on the day of sentencing. Pursuant to U.S.S.G. § 1B1.8, self-incriminating information provided to the United States pursuant to this Plea Agreement, or in negotiation of this Plea Agreement, will not be used to increase the affected volume of commerce attributable to ABB MEA or to determine the applicable Guidelines range, except to the extent provided for in U.S.S.G. § 1B1.8(b). For purposes of calculating the volume of commerce in U.S.S.G. § 2R1.1 under this Plea Agreement, only evidence relating to Contract 29 is attributable to ABB MEA.SENTENCING AGREEMENT
8. Pursuant to Fed. R. Crim. P. 11(e)(1)(C), the United States and ABB MEA agree that the appropriate disposition of the case is, and agree jointly to recommend, that the Court impose a sentence requiring ABB MEA to pay a fine to the United States in the amount of fifty-three million dollars ($53,000,000), pursuant to 18 U.S.C. § 3571(d), without interest, in accordance with 18 U.S.C. § 3612(f)(3)(A) and U.S.S.G. § 8C3.2.
9. The United States and ABB MEA jointly submit that this Plea Agreement, together with the record that will be created by the United States and ABB MEA at sentencing and the further disclosure described in Paragraph 10 of this Plea Agreement, provides sufficient information concerning ABB MEA, the offense charged in this case, and ABB MEA's role in the offense to enable the meaningful exercise of sentencing authority by the Court under 18 U.S.C. § 3553. The United States and ABB MEA will jointly request that the Court accept ABB MEA's guilty plea and immediately impose sentence on the day of arraignment pursuant to the provisions of Fed. R. Crim. P. 32(b)(1) and U.S.S.G. § 6A1.1. The Court's denial of the request to impose sentence immediately based upon the record provided by ABB MEA and the United States will not void this Plea Agreement.
10. The United States, prior to the sentencing in this case, will fully advise the Court of: all facts relating to ABB MEA's involvement in the charged offense; all other relevant conduct; the fact, manner, and extent of ABB MEA's ongoing cooperation pursuant to Paragraph 11 of this Plea Agreement; and its commitment to prospective cooperation with the United States' investigation and prosecutions.ABB MEA'S COOPERATION
11. ABB MEA and its parent organization, subsidiaries, and affiliates will provide full and truthful continuing cooperation to 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 international construction industry in the Arab Republic of Egypt, any other federal investigation resulting therefrom, and any litigation or other proceedings arising or resulting from any such investigation to which the United States is a party ("Federal Proceeding"). Such cooperation in any Federal Proceeding shall include, but not be limited to:
12. The ongoing, full, and truthful cooperation of each person described in Paragraph 11(b) above will be subject to the procedures and protections of this paragraph, and shall include, but not be limited to:
13. The United States agrees to the following:
14. Upon tender of the guilty plea called for by this Plea Agreement and imposition of the agreed-upon sentence, and subject to the cooperation requirements of Paragraph 11 of this Plea Agreement, the United States agrees that it will not bring further criminal charges against ABB MEA and its parent organization, subsidiaries, and affiliates for any Relevant Offense. The non-prosecution terms of this paragraph do not apply to any civil liability to the United States, to any violation of the federal tax or securities laws, or to any crime of violence.
15. The United States agrees that when any person travels to the United States for interviews, court appearances, or grand jury appearances pursuant to this Plea Agreement, or for meetings with counsel in preparation thereof, the United States will take no action, based upon any Relevant Offense, to subject such person to arrest or service of process, or to prevent such person from departing the United States. This paragraph does not apply to an individual's commission of perjury (18 U.S.C. § 1621), making a false statement or declaration in grand jury or court proceedings (18 U.S.C. § 1623), obstruction of justice (18 U.S.C. § 1503), or contempt (18 U.S.C. §§ 401-402) in connection with any testimony provided in trial, grand jury, or other judicial proceedings in the United States.
16. ABB MEA 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. However, the United States Department of Justice, Antitrust Division, agrees that, if requested, it will advise the appropriate officials of any government agency considering administrative or other action against ABB MEA or its parent organization, subsidiaries, or affiliates, based upon any conviction resulting from this Plea Agreement, of the fact, manner, and extent of ABB MEA's cooperation, as a matter for such agency to consider before determining what administrative or other action, if any, to take with regard to ABB MEA or its parent organization, subsidiaries, or affiliates.REPRESENTATION BY COUNSEL
17. ABB MEA has been represented by counsel and is fully satisfied that its attorneys have provided competent legal representation. ABB MEA 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.VOLUNTARY PLEA
18. ABB MEA's decision to enter into this Plea Agreement and ABB MEA'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 ABB MEA as to whether the Court will accept or reject this Plea Agreement.VIOLATION OF PLEA AGREEMENT
19. ABB MEA agrees that, should the United States determine in good faith, while any Federal Proceeding is pending, that ABB MEA has failed to provide full cooperation (as described in Paragraph 11 of this Plea Agreement) or otherwise has violated any other provision of this Plea Agreement, the United States shall notify counsel for ABB MEA 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 ABB MEA and its parent organization, subsidiaries, and affiliates shall be subject to prosecution for any federal crime of which the United States has knowledge including, but not limited to, the substantive offenses relating to the investigation resulting in this Plea Agreement. ABB MEA may seek Court review of any determination by the United States of a violation of the Plea Agreement. In the event of any further prosecution of ABB MEA resulting from a breach of this agreement, ABB MEA will not interpose the statute of limitations as a defense with regard to any period which passes after the date of this Plea Agreement.ENTIRETY OF AGREEMENT
20. This Plea Agreement constitutes the entire agreement between the United States and ABB MEA 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 ABB MEA. ABB Limited has made certain additional commitments in connection with this Plea Agreement, as reflected in Attachment B.
21. The undersigned, Max Abitbol, the President of ABB MEA, is authorized to enter this Plea Agreement on behalf of ABB MEA as evidenced by the Resolution of the Board of Directors of ABB MEA, attached hereto, and incorporated herein by reference.
22. The undersigned attorneys for the United States have been authorized by the Assistant Attorney General of the United States to enter this Plea Agreement on behalf of the United States.
April 10, 2001
Mr. Beat Hess
Dear Mr. Hess,
This letter confirms that the United States Agency for International Development ("USAID") has agreed to accept as restitution in the matter of United States v. ABB MIDDLE EAST & AFRICA PARTICIPATIONS AG, now pending in the Northern District of Alabama, the provision of services by ABB Middle East & Africa Participations AG and ABB Limited, and the payment to the U.S. Department of Justice, Civil Division, of ten million dollars ($10,000,000), pursuant to 18 U.S.C. § 3663(b)(5).
The terms of the services that have been provided, and will continue to be provided, are as follows:
ABB Middle East & Africa Participations AG, and its parent and subsidiary organizations, and sister companies will provide full and truthful continuing cooperation to the United States in: the prosecution of this case; the conduct of the current federal investigation into violations of the federal antitrust laws and any other federal criminal laws in the international construction industry in the Arab Republic of Egypt and any other federal investigation resulting therefrom; and any litigation or other proceedings arising or resulting from any such investigation to which the United States is a party. Such cooperation shall include, but not be limited to:
The ongoing, full, and truthful cooperation of each person described above will be subject to the requirements outlined in the plea agreement, and shall include, but not be limited to:
USAID shall completely release, acquit, and forever discharge ABB MEA, the employees, officers, and directors of ABB MEA, its subsidiaries, sister companies, and parent companies, and their employees, officers, and directors from any administrative claims, actions, or proceedings, including but not limited to suspension and debarment proceedings/actions under 48 C.F.R. part 9, or any applicable USAID supplement to that regulation, revocation of eligibility waiver, or any other statute or regulation, for actions relating to the award of USAID-funded construction contracts in the Arab Republic of Egypt from 1988 through 1996. USAID has not become aware that any other federal agency is contemplating bringing a suspension or debarment action against the above-referenced entities. Further, USAID will not request, instigate, or otherwise encourage any other federal agency to take any suspension or debarment action against any of the above-referenced entities or individuals. Finally, USAID will inform any federal agency that contacts USAID regarding the above-referenced entities that ABB MEA cooperated fully with the government in this matter.
ABB Ltd. and any organization affiliated with ABB Ltd. will ensure that it partipates fully in the compliance program that was presented to the USAID Office of Inspector General (OIG), and when requested, ABB Ltd. will respond to any questions presented to it concerning the compliance program. In the event that there are any changes made to the program that substantially alter the present curriculum, ABB Ltd. will advice the USAID OIG in writing.
USAID agrees that the services outlined above, in conjunction with the payment of ten million dollars ($10,000,000) to the U.S. Department of Justice, Civil Division, constitute adequate restitution, and USAID agrees to waive any further claim it may have to restitution in this matter.
Finally, it is emphsized that all USAID commitments herein are subject to the continuing observance of the commitments made by ABB Ltd. herein.
William D. Dillon
Dear Mr. Dillon:
This letter confirms the agreement of ABB Ltd of Zurich, Switzerland, parent company of ABB MIDDLE EAST & AFRICA PARTICIPATIONS AG ("ABB MEA") that it will guarantee payment of the fine levied against ABB MEA in the criminal case currently pending against ABB MEA in the Northern District of Alabama, in consideration for the plea agreement with the United States in that case. ABB Ltd hereby agrees that it will guarantee the financial support necessary to ABB MEA to make the periodic payments required by the United States District Court in accordance with the Plea Agreement filed in the case.
In the event of bankruptcy or dissolution of ABB MEA, or any other event that would prevent payment of the fine imposed by the United States District Court for the Northern District of Alabama in the matter, or upon failure of payment, ABB Ltd agrees that it will pay any sums due to be paid by ABB MEA in accordance with the sentence imposed by the District Court pursuant to the attached Plea Agreement. By execution of this letter, I hereby confirm as Secretary of ABB Ltd that this guarantee of payment is binding upon ABB Ltd.