UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA

Transcription

1 UNITED STATES DISTRICT COURT THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. ALCOA WORLD ALUMINA LLC, Defendant. CRIMINAL NO. Count FCPA Anti-Bribery Provision, 15 U.S.C. 78dd-2 18 U.S.C. 2 PLEA AGREEMENT The United States of America, by and through the Fraud Section of the Criminal Division of the United States Department of Justice and the United States Attorney's Office for the District of Pennsylvania (the "United States" or the "Department"), and the defendant, Alcoa World Alumina LLC (the "Defendant"), by and through its undersigned attorneys, and through its authorized representative, pursuant to authority granted by Defendant's Board of Member Representatives, hereby submit and enter into this plea agreement (the "Agreement"), pursuant to Rule of the Federal Rules of Criminal Procedure. The terms and conditions of this Agreement are as follows: The Defendant's Agreement Pursuant to Fed. R. Crim. P. the Defendant agrees to waive its right to grand jury indictment and its right to challenge venue in the District Court for the Western District of Pennsylvania, and to plead guilty to a one-count Information charging the Defendant with one count of violating the anti-bribery provisions of the Foreign Corrupt Practices Act of ("FCPA"), as amended, Title United States Code, Section 78dd-2, and Title United

2 States Code, Section 2. Upon acceptance by the Court of this Agreement, the Defendant further agrees to persist in that plea through sentencing and, as set forth below, to cooperate fully with the Department in its investigation into all matters related to the conduct charged in the Information. 2. The Defendant understands and agrees that this Agreement is between the Department and the Defendant and does not bind any other division or section of the Department of Justice or any other federal, state, or local prosecuting, administrative, or regulatory authority. Nevertheless, the Department will bring this Agreement and the cooperation of the Defendant, its direct or indirect affiliates, subsidiaries, and majority shareholder to the attention of other prosecuting authorities or other agencies, if requested by the Defendant. The Defendant agrees that this Agreement will be executed by an authorized corporate representative. The Defendant further agrees that a resolution duly adopted by the Defendant's Board of Member Representatives, attached to this Agreement as Exhibit 1, or in similar form, authorizes the Defendant to enter into this Agreement and take all necessary steps to effectuate this Agreement, and that the signatures on this Agreement by the Defendant and its counsel are authorized by the Defendant's Board of Member Representatives on behalf of the Defendant. In connection with this Agreement, the Defendant will also provide to the Department a certified resolution of the Board of Directors of Alcoa Inc., attached as Exhibit 2 hereto, or in similar form, that provides that Alcoa Inc. ("Alcoa"), and its subsidiaries, divisions, groups and affiliates, except for the Defendant, agree to certain undertakings as set forth in this Agreement in exchange for the United States' agreement in paragraph Except as may otherwise be agreed by the parties hereto in connection with a particular transaction, the Defendant agrees that if, at any time while the Defendant has

3 obligations under this Agreement, the Defendant sells, merges, or transfers all or substantially all of its business operations as they exist as of the date of this Agreement, whether such sale(s) is/are structured as a stock or asset sale, merger, or transfer, the Defendant shall include in any contract for sale, merger, or transfer a provision fully binding the purchaser(s) or any successor(s) in interest thereto to the guarantees and obligations described in this Agreement. 5. The Defendant waives any statute of limitations with regard to any conduct relating to corrupt payments and related internal accounting controls or books and records violations as date of this Agreement through the full term of the Defendant's probation and until all of the Defendant's obligations under this Agreement have been satisfied. 6. The Defendant agrees and represents that it has the full legal right, power, and authority to enter into and perform all of its obligations under this Agreement. 7. The Defendant agrees to pay the United States a criminal in the amount of $209,000,000 in equal annual installments of The first payment shall be made in full on or before the tenth (10) business day after the date of the entry of the judgment of conviction following the Defendant's sentencing, and the second, third, fourth and fifth payments shall be due in full, respectively, on the first, second, third, and fourth-year anniversaries of the entry of the judgment of conviction. The Defendant agrees to wire transfer these payments to the Clerk of the Court for the United States District Court for the Western District of Pennsylvania. The Defendant further agrees to pay the Clerk of the Court for the United States District Court for the Western District of Pennsylvania the mandatory special assessment of $400 within ten business days from the date of entry of the judgment of conviction. The Defendant acknowledges that no tax deductions may be sought in connection with the payment of the

4 As a result of the conduct as set forth in the Statement of Facts, attached as Exhibit 3 hereto, the parties agree the Department could institute a civil and/or criminal forfeiture action against certain funds held by the Defendant and that such funds would be forfeitable pursuant to Title United States Code, Section and Title 28, United States Code, Section The Defendant hereby acknowledges that at least was involved in transactions described in Exhibit 3 in violation of Title United States Code, Section 78dd-2 and Title United States Code, Section 2. The Defendant hereby agrees to administratively forfeit to the United States the sum of $14,000,000 (the "Forfeiture Amount"). The Defendant and Alcoa hereby agree that, in the event the funds used to pay the Forfeiture Amount are not directly traceable to the transactions, the monies used to pay the Forfeiture Amount shall be considered substitute res for the purpose of forfeiture to the United States pursuant to Title United States Code, Section and the Defendant and Alcoa release any and all right, title, interest, and claims they may have to such funds. To accomplish this administrative forfeiture, the Defendant agrees to pay the Forfeiture Amount plus any associated transfer fees within ten (10) business days of the date of entry of the judgment of conviction following the Defendant's sentencing by check or wire transfer made payable to the United States Internal Revenue Service-Criminal Investigation. The Defendant and Alcoa agree to sign any additional documents necessary to complete forfeiture of the funds. The Defendant and Alcoa take no position as to the disposition of the funds after payment and waive any statutory or procedural notice requirements with respect to the United disposition of the funds. The Defendant and Alcoa knowingly and voluntarily waive any claim or defense they may have under the Eighth Amendment of the United States Constitution, including any claim of excessive fine or penalty with respect to the forfeited assets. In the event of a breach of this Agreement,

5 the Defendant and Alcoa acknowledge that the United States may pursue additional civil and criminal forfeiture in excess of the Forfeiture Amount. 9. The Defendant agrees to abide by all terms and obligations of this Agreement as described herein, including, but not limited to, the following: a. to plead guilty as set forth in this Agreement; b. to abide by all sentencing stipulations contained in this Agreement; c. to appear, through its duly appointed representatives, as ordered for all court appearances, and obey any other ongoing court order in this matter; d. to commit no further crimes; e. to be truthful at all times with the Court; f. to pay the applicable and special assessment; and g. to continue to participate in and abide by the Corporate Compliance Program established by Alcoa, which Alcoa has separately agreed to continue to implement and maintain, attached as Exhibit 4. The Defendant agrees to continue to cooperate fully with the Department, the Internal Revenue Service-Criminal Investigations Division (the "IRS"), the Federal Bureau of Investigation (the "FBF'), and the U.S. Securities and Exchange Commission (the "SEC") in a manner consistent with applicable law and regulations, in any and all matters relating to the conduct described in this Agreement and Exhibit 3, and other conduct under investigation by the Department that has commenced before or during the term of this Agreement, until the date upon which all investigations and prosecutions arising out of such conduct are concluded, whether or not those investigations and prosecutions are concluded within the term of Defendant's probation in paragraph At the request of the Department, the Defendant shall also cooperate fully

6 with foreign law enforcement authorities and agencies and the Multilateral Development Banks ("MDBs"). Such cooperation shall include, but not be limited to, the following: a. The Defendant shall, to the extent consistent with the foregoing, truthfully disclose to the Department all factual information not protected by a valid claim of attorneyclient privilege or work product doctrine protection with respect to the activities Defendant, Alcoa and their affiliates, their present and former member representatives, directors, officers, employees, agents, consultants, contractors, and subcontractors, concerning all matters relating to corrupt payments to foreign public officials or to employees of private customers or concerning related internal controls or books and records violations about which the Defendant or Alcoa have any knowledge and about which the Department, the FBI, the IRS, the SEC, or, at the request of the Department, any foreign law enforcement authorities and agencies and MDBs, shall inquire; b. The Defendant shall provide to the Department, upon request, any nonprivileged or non-protected document, record, or other tangible evidence relating to such corrupt payments to foreign public officials or to employees of private customers about which the aforementioned authorities and agencies shall inquire of the Defendant, to the direction of the Department; and c. The Defendant shall ensure that the Department is given access to all current, and to the extent possible, former member representatives, officers, employees, agents, and consultants of the Defendant and Alcoa for interviews and testimony in the United States relating to such payments. The Defendant agrees that if it or any of its direct or indirect affiliates or subsidiaries issues a press release or holds a press conference in connection with this Agreement,

7 the Defendant shall first consult with the Department to determine whether (a) the text release or proposed statements at any press conference are true and accurate with respect to matters between the Department and the Defendant and Alcoa; and (b) the Department has no objection to the release or statement. Statements at any press conference concerning this matter shall be consistent with this press release. Alcoa's Agreement 12. In exchange for the United States' agreement in paragraph Alcoa agrees that it and its subsidiaries, divisions, groups and affiliates will fulfill the commitments and be bound to the terms outlined in paragraphs 8, 9(g), and 13 to 19 of this Agreement and in Exhibits 2 and 4 attached hereto. Alcoa agrees to guarantee, secure and ensure delivery by the Defendant of all payments due from the Defendant under the Agreement; provided, however, that such guarantee shall be expressly conditioned upon the Court's acceptance of the Agreement and entry judgment consistent with all of the Agreement. Alcoa acknowledges that no tax deductions may be sought in connection with the payment Alcoa agrees not to institute or participate in any proceeding to interfere with, alter, or bar enforcement of any penalty, special assessment or forfeiture order imposed on the Defendant pursuant to this Agreement pursuant to the automatic stay or other provision United States Bankruptcy Code. Except as may otherwise be by the parties hereto in connection with a particular transaction, Alcoa agrees that if, at any time while Alcoa still has obligations and commitments to the United States as set forth in this Agreement, Alcoa sells, merges, or transfers all or substantially all of its business operations as they exist as date Agreement,

8 whether such sale(s) is/are structured as a stock or asset sale, merger, or transfer, Alcoa shall include in any contract for sale, merger, or transfer a provision fully binding the purchaser(s) or any in interest thereto to the guarantees and obligations described in this Agreement. Alcoa agrees that it and its subsidiaries, divisions, groups and affiliates shall continue to cooperate fully on matters and in a manner substantially similar to the cooperation required of the Defendant in paragraphs with the Department, the IRS, the FBI, and the SEC. Such cooperation shall be in a manner consistent with applicable law and regulations. This includes cooperating fully in any investigation of Alcoa and its subsidiaries, divisions, groups and affiliates, and any of its present and former officers, directors, employees, agents and consultants, or any other party, in any and all matters relating to this Agreement and Exhibit 3. Alcoa agrees that if it or any of its direct or indirect affiliates or subsidiaries issues a press release or holds a press conference in connection with this Agreement, Alcoa shall first consult with the Department to determine whether (a) the text of the release or proposed statements at any press conference are true and accurate with respect to matters between the Department and the Defendant and Alcoa; and (b) the Department has no objection to the release or statement. Statements at any press conference concerning this matter shall be consistent with this press release. Other than as may be necessary with respect to defense of civil litigation or arbitration relating to this matter, Alcoa waives all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution case, including without limitation any records that may be sought under the Freedom of Information Act, Title 5, United States Code, Section 552, or the Privacy Act, Title 5, United States Code, Section 552a.

9 Alcoa waives all defenses based on the statute of limitations, venue, speedy trial under the United States Constitution and the Speedy Trial Act, and any and all constitutional and defenses with respect to any prosecution of Alcoa that is not time-barred on the date that this Agreement is signed related to or arising from the conduct charged in the Information to be filed against the Defendant, in the event that Alcoa fails to fulfill its commitments as set forth in this Agreement for any reason, provided such prosecution is brought within one year of such breach or failure plus the remaining time period of the statute of limitations as of the date that this Agreement is signed. The United Agreement 20. In exchange for the guilty plea of the Defendant and the complete fulfillment of all of the Defendant's and Alcoa's obligations as set forth in this Agreement, the Department agrees that it will not file additional criminal charges against the Defendant or Alcoa, or any of their direct or indirect affiliates or subsidiaries, relating to (a) any of the conduct described in the Statement of Facts, attached as Exhibit 3, or the criminal information filed pursuant to this Agreement or (b) information disclosed by the Defendant or Alcoa to the Department prior to the date of this Agreement. This paragraph does not provide any protection against prosecution for any corrupt payments, false accounting, or failure to implement internal controls or circumvention of internal controls, if any, made in the future by the Defendant or Alcoa. This Agreement does not close or preclude the investigation or prosecution of any natural persons, including any officers, directors, member representatives, employees, agents, or consultants of the Defendant or Alcoa, who may have been involved in any of the matters set forth in the Information, Statement of Facts, or in any other matters.

10 Factual Basis The Defendant is pleading guilty because it is guilty of the charge contained in the Information. The Defendant admits, agrees, and stipulates only that the factual allegations with respect to its conduct as set forth in the Statement of Facts, attached hereto as Exhibit 3 and incorporated herein, are true and correct, that it is responsible for the acts of its officers and employees described in the Statement of Facts, and that the Statement of Facts accurately reflects the Defendant's criminal conduct. Defendant's Waiver of Rights, Including the Right to Appeal 22. Federal Rule of Criminal Procedure and Federal Rule of Evidence limit the admissibility of statements made in the course of plea proceedings or plea discussions in both civil and criminal proceedings, if the guilty plea is later withdrawn. The Defendant expressly warrants that it has discussed these rules with its counsel and understands them. Solely to the extent set forth below, the Defendant voluntarily waives and gives up the rights enumerated in Federal Rule of Criminal Procedure and Federal Rule of Evidence Specifically, the Defendant understands and agrees that any statements that it makes in the course of its guilty plea or in connection with the Agreement are admissible against it for any purpose in any U.S. federal criminal proceeding if, even though the Department has fulfilled all of its obligations under this Agreement and the Court has imposed the agreed-upon sentence, the Defendant nevertheless withdraws its guilty plea. 23. The Defendant is satisfied that the Defendant's attorneys have rendered effective assistance. The Defendant understands that by entering into this Agreement, the Defendant surrenders certain rights as provided in this Agreement. The Defendant understands that the rights of criminal defendants include the following:

11 a. If the Defendant had persisted in a plea of not guilty to the charges, the Defendant would have the right to a speedy jury trial with the assistance of counsel. The trial may be conducted by a judge sitting without a jury if the Defendant, the United States, and the Court all agree. b. At a trial, the United States would be required to present its witnesses and other evidence against the Defendant. The Defendant would be able to confront and crossexamine adverse witnesses. In turn, the Defendant could, but would not be required to, present witnesses and other evidence on its own behalf. If the witnesses for the Defendant would not appear voluntarily, the Defendant could require their attendance through the subpoena power of the Court. c. At a trial, no inference of guilt could be drawn from the Defendant's refusal to present evidence. However, if the Defendant desired to do so, it could present evidence on its own behalf. 24. The Defendant also understands that Title United States Code, Section 3742, affords a defendant the right to appeal the sentence imposed. Nonetheless, the Defendant knowingly waives the right to appeal the conviction and sentence imposed by the Court, provided that such sentence is consistent with the terms Agreement, in exchange for concessions made by the United States in this Agreement. This Agreement does not affect the rights or obligations of the United States as set forth in Title United States Code, Section 3742(b). 25. The Defendant is also aware that the United States Constitution and the laws of the United States afford the Defendant the right to contest or "collaterally attack" its conviction or sentence after the conviction has become final. Knowing that, the Defendant knowingly

12 waives the right to contest or "collaterally attack" the Defendant's plea, conviction, and sentence, provided that such sentence is consistent with the terms of this Agreement, by means post-conviction proceeding. 26. Other than as may be necessary with respect to defense of civil litigation or arbitration relating to this matter, the Defendant also hereby waives all rights, whether asserted directly or by a representative, to request or receive from any department or agency United States any records pertaining to the investigation or prosecution of this case, including without limitation any records that may be sought under the Freedom of Information Act, Title 5, United States Code, Section 552, or the Privacy Act, Title 5, United States Code, Section 552a. 27. The Defendant waives all defenses based on the statute of limitations and venue with respect to any prosecution that is not time-barred on the date that this Agreement is signed in the event that: (a) the conviction is later vacated for any reason; (b) the Defendant or Alcoa violates this Agreement; or (c) the plea is later withdrawn, provided such prosecution is brought within one year of any such vacation of conviction, violation of agreement, or withdrawal of plea plus the remaining time period statute of limitations as of the date that this Agreement is signed. The Department free to take any position on appeal or any other post-judgment matter. 28. The Defendant waives all defenses to its conduct charged in the Information based on venue, speedy trial under the Unites States Constitution and the Speedy Trial Act, and any and all constitutional and non-jurisdictional defects. 29. The Defendant acknowledges that no threats have been made against the Defendant and that the Defendant is pleading guilty freely and voluntarily because the Defendant is guilty.

13 Penalty 30. The statutory maximum sentence that the Court can impose for a violation of Title United States Code, Section 78dd-2, is a of $2,000,000 or twice the gross pecuniary gain or gross pecuniary loss resulting from the offense, whichever is greatest, Title United States Code, Section and (d); years' probation, Title United States Code, Section and a mandatory special assessment of $400, Title 18, United States Code, Section 3013(a)(2)(B). The Defendant hereby stipulates and agrees not to institute or participate in any proceeding to interfere with, alter, or bar enforcement of any fine, penalty, special assessment or forfeiture order pursuant to the automatic stay or other provision of the United States Bankruptcy Code. 32. The Defendant agrees that nothing in this Agreement is intended to release the Defendant from any and all of the Defendant's excise and income tax liabilities and reporting obligations for any and all income not properly reported and/or legally or illegally obtained or derived. Sentencing Recommendation The United States and the Defendant agree that pursuant to United States v. Booker, 543 U.S. 220 (2005), the Court must determine an advisory sentencing guideline range pursuant to the United States Sentencing Guidelines. The Court will then determine a reasonable sentence within the statutory range after considering the advisory sentencing guideline range and the factors listed in Title 18, United States Code, Section 3553(a). The parties' agreement herein to any guideline sentencing factors constitutes proof of those factors sufficient to satisfy the applicable burden of proof.

14 34. The United States and the Defendant agree that a faithful application of the United States Sentencing Guidelines (U.S.S.G.) to determine the applicable range yields the following analysis: a. The 2012 U.S.S.G. are applicable to this matter. b. Offense Based upon U.S.S.G. 2C1.1, the total offense level is 48, calculated as follows: (a) (2) Base Offense Level (1) Multiple Bribes TOTAL Value of benefit received More than $400,000,000 Offense involved a high-level decision-making public official c. Base Fine. Based upon U.S.S.G. 8C2.4(a)(l) and 2Cl.l(d), the base fine is $446,000,000 (the pecuniary gain from the offense) d. Culpability Score. Based upon U.S.S.G. the culpability score is 5, calculated as follows: (a) Base Culpability Score 5 (4) the organization had 50 or more employees and an individual within substantial authority personnel participated in, condoned, or was willfully ignorant of the offense +2 (g)(1) The organization fully cooperated in the investigation and clearly demonstrated recognition and affirmative acceptance of responsibility for its criminal conduct -2 TOTAL 5

15 Calculation of Fine Range: Base Fine $446,000,000 Multipliers 1.0(min)/2.0(max) Fine Range $446,000,000 / $892,000, Pursuant to Rule Federal Rules of Criminal Procedure, the United States and the Defendant agree that the following represents the appropriate disposition of the case: a. Fine. Pursuant to Fed. R. Crim. P. the United States and the Defendant agree that the appropriate disposition of this case is, and agree to recommend jointly, that the Court impose a sentence requiring the Defendant to pay to the United States a criminal fine of $209,000,000. Because the immediate payment of the entire fine "would pose an undue burden on" the Defendant and Alcoa, U.S.S.G. 8C3.2(b), the United States and the Defendant agree that the entire shall be paid in equal annual installments of with the first payment due in full on or before the tenth business day after the date of the entry of the judgment of conviction. Thereafter, the second, third, fourth and fifth payments shall each be due in full, respectively, on the first, second, third, and fourth-year anniversaries of the date of the entry of judgment of conviction ("the recommended sentence"). The United States and the Defendant have agreed that a fine of $209,000,000 is the appropriate disposition based on the following factors and those in U.S.C. 3553(a): (a) the impact of a penalty within the guidelines range on the financial condition of the Defendant's majority shareholder, Alcoa, and its potential to "substantially jeopardiz[e]" Alcoa's ability to compete, see U.S.S.G. 8C3.3(b), including, but not limited to, its ability to fund its sustaining and improving capital expenditures,

16 its ability to invest in research and development, its ability to fund its pension obligations, and its ability to maintain necessary cash reserves to fund its operations and meet its liabilities; (b) the significant remedy being imposed on the Defendant's majority shareholder, Alcoa, by the U.S. Securities and Exchange Commission for Alcoa's conduct in this matter; (c) after learning allegations of FCPA violations, Alcoa's Board of Directors appointed a Special Committee of the Board of Directors to oversee an internal investigation by independent counsel; (d) the substantial cooperation provided to the Department by the Defendant's majority shareholder, Alcoa, including conducting an extensive internal investigation, voluntarily making employees available for interviews, and collecting, analyzing, and organizing voluminous evidence and information for the Department; (e) the remedial efforts already undertaken and to be undertaken by the Defendant's majority shareholder, Alcoa, which affect both the Defendant's operations and those of Alcoa, including the hiring of new senior legal and ethics and compliance officers and the implementation of enhanced due diligence reviews of the retention of third-party agents and consultants; and (f) Alcoa's separate commitment to ensuring that its anti-corruption compliance program will be maintained to continue to satisfy the minimum elements set forth in Exhibit 4 to this Agreement. b. Mandatory Special Assessment. The Defendant shall pay to the Clerk of the Court for the United States District Court for the Western District of Pennsylvania within ten business days of the date of the entry of the judgment of conviction the mandatory special assessment of $400. c. A Term of Four Years Probation. A four-year term of probation shall be imposed on the Defendant. The term of probation shall include the following mandatory and discretionary special conditions, pursuant to 18 U.S.C. 3563(a) and (b): (i) The Defendant

17 shall not commit another federal, state or local crime; (ii) the Defendant shall provide the probation officer with any information or documents requested by the probation officer; (iii) the Defendant shall notify the Court of any material change in the Defendant's economic circumstances that might affect the Defendant's ability to pay the fines and other financial obligations set forth herein; and (iv) the Defendant shall pay the criminal set forth in paragraph 35(a) above. d. Court Not Bound. This Agreement is presented to the Court pursuant to Fed. R. Crim. P. The Defendant understands that, if the Court rejects this Agreement, the Court must: (a) inform the parties that the Court rejects the Agreement; (b) advise the Defendant's counsel that the Court is not required to follow the Agreement and afford the Defendant the opportunity to withdraw its plea; and (c) advise the Defendant that if the plea is not withdrawn, the Court may dispose of this case less favorably toward the Defendant than the Agreement contemplated. If the Court this Agreement pursuant to Fed. R. Crim. P. the United States and the Defendant agree that the Defendant will be allowed to withdraw its plea, and that neither the Defendant nor the United States shall be bound by the provisions of this Agreement. If the Defendant withdraws its plea of guilty under the circumstances described in the immediately preceding sentence, this Agreement, the guilty plea, and any statement made in the course of any proceeding under Fed. R. Crim. P. regarding the guilty plea or this Agreement, or made in the course of plea discussions with an attorney for the United States, shall not be admissible against the Defendant in any criminal or civil proceeding. The Defendant, however, also understands that if the Court accepts this Agreement, the Court is bound by the sentencing provisions in paragraphs 35(a), (b) and (c).

18 36. The parties further agree, with the permission of the Court, to waive the requirement of a pre-sentence investigation report pursuant to Federal Rule of Criminal Procedure 32(c)(l)(A)(ii), based on a finding by the Court that the record contains information sufficient to enable the Court to meaningfully exercise its sentencing power. The parties agree, however, that in the event the Court orders the preparation of a pre-sentence investigation report prior to sentencing, such order will not affect the Agreement set forth herein. In the event the Court so orders, the Department will fully inform the preparer of the pre-sentence report and the Court of the facts and law related to the Defendant's case. 37. The parties further agree to ask the Court's permission to combine the entry plea and sentencing into one proceeding, and to conduct the plea and sentencing hearings Defendant in one proceeding. The parties agree, however, that in the event the Court orders that the entry guilty plea and sentencing hearing occur at separate proceedings, such an order will not affect the Agreement set forth herein. Breach of Agreement 38. The Defendant agrees that if it breaches the terms of this Agreement, commits any federal crime subsequent to the date of this Agreement, or has provided or provides deliberately false, incomplete, or misleading information in connection with this Agreement, the Department may, in its sole discretion, characterize such conduct as a breach Agreement. In the event of such a breach, (a) the Department will be free from its obligations under the Agreement and may take whatever position it believes appropriate as to the sentence; (b) the Defendant will not have the right to withdraw the guilty plea; (c) the Defendant shall be fully subject to criminal prosecution for any other crimes that it has committed, if any, including perjury and obstruction of justice; and (d) the Department will be free to use against the Defendant, directly and

19 indirectly, in any criminal or civil proceeding any information or materials provided by the Defendant and Alcoa pursuant to this Agreement, as well as the admitted Statement of Facts. 39. In the event of a breach of this Agreement by the Defendant, if the Department elects to pursue criminal charges or any civil or administrative action that was not filed as a result of this Agreement, then: a. The Defendant agrees that any applicable statute of limitations is tolled between the date of the Defendant's signing of this Agreement and the discovery by the Department of any breach by the Defendant, plus one year; and b. The Defendant gives up all defenses based on the statute of limitations relating to the facts and conduct described in the Statement of Facts and the criminal information to be filed against the Defendant pursuant to this Agreement, any claim of delay, or any speedy trial claim with respect to any such prosecution or action, except to the extent that such defenses existed as of the date of the signing of this Agreement.

20 Complete Agreement 40. This document states the full extent of the agreement between the parties. There are no other promises or agreements, express or implied. Any modification Agreement shall be valid only if set forth in writing in a supplemental or revised plea agreement signed by all parties. AGREED: FOR ALCOA WORLD ALUMINA LLC: Date: January By: Date: January By: DECHERT By: Robert J. Jossen No Jonathan R. Streeter NY No Counsel for Alcoa World Alumina LLC THE DEPARTMENT OF JUSTICE: JEFFREY H. KNOX Chief, Fraud Section Criminal Division, Department of Justice By: Adam G. Deputy Chief, Fraud Section NY ID No Andrew N. Gentin DC ID No Allan J. Medina Andrew H. Warren Trial Attorneys, Fraud Section By: DAVID J. IIICKTON Attorney PA No Date: January 2014