Exhibit 10.10
UNITED STATES DEPARTMENT OF STATE
BUREAU OF POLITICAL-MILITARY AFFAIRS
WASHINGTON, D.C. 20520
In the Matter of:
ORBIT/FR INCORPORATED
Delaware
Respondent
CONSENT AGREEMENT
WHEREAS, the Office of Defense Trade Controls Compliance, Directorate of Defense
Trade Controls ("DDTC"), Bureau of Political-Military Affairs, U.S. Department
of State ("Department") has notified the Respondent, Orbit/FR, Inc.
("Orbit/FR"), of its intent to institute an administrative proceeding pursuant
to the Arms Export Control Act ("Act") (22 U.S.C. 2778(e)) and its implementing
regulations, the International Traffic in Arms Regulations ("Regulations") (22
CFR Parts 120- l3O), based on allegations of violations of Section 38 of the Act
and Section 127 of the Regulations arising from activities of Orbit/FR, Inc.
involving the unauthorized export of a defense article and a defense service, as
set forth in a draft Charging Letter attached hereto and incorporated by
reference herein;
WHEREAS, the Respondent wishes to dispose of all civil charges, penalties and
sanctions arising from the draft Charging Letter by entering into this Consent
Agreement;
WHEREAS, these civil charges arise from the same transactions for which the
Respondent, pursuant to a 1999 guilty plea agreement, was convicted in March
2000 of two counts of violating the Act and paid a $600,000 penalty and, as a
consequence of the conviction, has been subject to statutory debarment under
Section 127.7 of the Regulations;
WHEREAS, the Department acknowledges that Respondent's parent company,
Orbit-Alchut Technologies Ltd. ("Orbit-Alchut") located in Israel, was not
charged or involved in the criminal proceeding or matters set forth in the draft
Charging Letter, but nevertheless Orbit-Alchut agrees to the undertakings and
other provisions set forth herein to further the implementation of effective
organization-wide export control compliance policies and procedures;
WHEREAS, the Respondent and Orbit-Alchut have reviewed the draft Charging Letter
and this Consent Agreement, fully understand these documents and enter into this
Agreement voluntarily and with full knowledge of their rights;
WHEREAS, the Parties agree to be bound by this Consent Agreement and a related
Administrative Order ("Order") (attached) to be entered and approved by the
Assistant Secretary of State for Political-Military Affairs;
Now, WHEREFORE, the Department and the Respondent and Orbit-Alchut agree as
follows:
Parties
(1) The Parties to this Consent Agreement are the Department, the Respondent,
and Orbit-Alchut.
Jurisdiction
(2) The Department has jurisdiction over Orbit/FR under the Act and the
Regulations in connection with the matters identified in the draft Charging
Letter.
Penalty
(3) The Respondent agrees that it shall pay in fines and remedial compliance
measures a civil penalty in the amount of $500,000 (five hundred thousand
dollars) in a complete settlement of the alleged civil violations as set forth
in the draft Charging Letter. The Respondent agrees that the effect of any
statutory limitation to the collection of the civil penalty
imposed by this Agreement will be tolled until the last payment is made and all
terms of the Consent Agreement are satisfied.
The civil penalty shall consist of cash, remedial measures and suspended
portions as follows:
(a) A penalty of $100,000 (one hundred thousand dollars) is hereby assessed of
which $33,333.34 (thirty-three thousand dollars and thirty- four cents) shall be
paid within ten (10) days of the signing of the Order and the balance shall be
paid in two installments on the first and second anniversary of the date of the
signing of the Order in the amount of $33,333.33 (thirty-three thousand dollars
and thirty-three cents) each.
(b) A penalty of $200,000 (two hundred thousand dollars) is hereby assessed for
remedial compliance measures. This amount shall be applied over the three (3)
years of this Consent Agreement for the purpose of defraying a portion of the
costs associated with the remedial compliance measures specified herein and in
the Annex of Compliance Measures attached hereto and incorporated by reference
herein, including costs associated with the Special Compliance Official ("SCO")
and the implementation of that official's recommendations.
(c) A penalty of $200,000 (two hundred thousand dollars) is hereby assessed, but
shall be suspended on condition that Respondent and Orbit-Alchut comply with the
undertakings set forth in paragraph 10.
The Respondent shall provide annually to the Department on the anniversary of
the date of the Order a written accounting of the expenditures associated with
paragraph 3(b) and certification that such expenditures meet the requirements of
that paragraph. The accounting shall be accompanied by the . recommendation of
the SCO as to whether the expenditures meet the requirements of paragraph 3(b)
and shall include a separate accounting by the SCO of expenses incurred under
paragraph 4(f) of the Annex of Compliance Measures.
The Respondent is prohibited from applying or claiming any of the amounts
expended for remedial compliance measures under this paragraph as reimbursable
or recoverable costs in any contract with any agency of the U.S. Government
(including any subcontract with respect to such a contract). In the event the
Respondent violates this prohibition, the Department will deem it a "failure to
apply funds appropriately for the required purposes." Each written accounting to
the Department shall include a specific certification by Respondent that it has
complied with this prohibition.
Any failure to apply funds appropriately for the required purposes or to provide
a satisfactory accounting shall be deemed by the Department to be a failure to
comply with the requirements of paragraph 3(b) and the Respondent shall be
required immediately to pay to the Department the amount specified in that
paragraph, less credit for amounts the Department deems to have been properly
applied and accounted for expenditures in compliance with this Agreement.
In the event of any failure to comply with the undertakings in paragraph 10,
Respondent shall pay immediately to the Department the amount specified in
paragraph 3(C).
Debarment and Policy of Denial
(10) Based on its March 2000 conviction for violations of the Act and the
Regulations, the Respondent has been subject to statutory debarment under
Section 127.7 of the Regulations. Under this debarment, the Department has
imposed a policy whereby it has generally denied applications for licenses or
other approvals involving the Respondent's subsidiaries and other affiliates.
The Respondent has acknowledged the seriousness of those violations as well as
those cited in the draft Charging Letter. The Respondent also notes its
cooperation with the Government in resolving the criminal charges; its and its
affiliates' loss of substantial business while under debarment and the policy of
denial; its significant efforts and costs incurred to establish and strengthen
its export control program; its willingness to make amends by paying the civil
cash penalty and implementing the significant remedial compliance actions
specified in this Consent Agreement; and the cooperation of its parent
Orbit-Alchut in signing this Agreement. For these reasons, the Department has
determined that an administrative debarment of Respondent based on the civil
charges in the draft charging letter is not appropriate at this time and has
further determined to terminate the statutory debarment of Respondent and to
resume normal processing of license applications involving Respondent and its
affiliates upon payment of the portion of the civil penalty due within ten (10)
days of the signing of the Order.
The Department reserves the right to consider imposing additional sanctions,
including debarment under the Regulations, against the Respondent or any
subsidiary or other affiliate, if it does not fulfill the provisions of this
Consent Agreement or is responsible for other compliance or law enforcement
concerns under the Act or other statutes specified in Section 120.27 of the
Regulations.
Defense Service and Defense Articles
(5) Respondent and Orbit-Alchut acknowledge their understanding and accept the
definition of defense services in the Regulations that the Regulations require
written authorization before such services are furnished to foreign persons
regardless of whether the underlying defense article is of U.S. or foreign
origin and even when no technical data is involved (e.g., all the information
relied upon in furnishing the defense service to a foreign person is in the
public domain); that furnishing technical assistance to a foreign person to
modify, adapt or configure a non-defense article for a military purpose would
constitute a defense service and may also render such article a defense article;
and that a foreign defense article in the United States is subject to the export
license and approval requirements of the Regulations.
Appointment of a Special Compliance Official
(6) The Respondent shall appoint a SCO for a period of three (3) years, the
position to be filled during the first two years by a qualified professional who
has had no past nor will have any future relationship to Respondent, its parent
company, Orbit-Alchut, or any of their subsidiaries or other affiliates. The
authorities and responsibilities for monitoring, oversight and reporting on the
implementation of provisions of the Consent Agreement are set forth herein and
in the attached Annex of Compliance Measures.
Other Compliance Measures
(7) The Respondent and Orbit-Alchut shall also implement the other requirements
of this Consent Agreement, as set forth herein and in the attached Annex of
Compliance Measures, including restricting certain exports by Respondent's
foreign affiliates; strengthening compliance policies, procedures and training;
providing legal oversight; establishing a hotline for reporting possible
violations; and conducting certain audits.
The Respondent and Orbit-Alchut acknowledge the need to include in their and
their affiliates' compliance policies and procedures measures to ensure the
documentation and tracking of all U.S.-origin defense articles, including
technical data, and U.S.-finished defense services and to prevent any re-
export, re-transfer, or use of the same that is not authorized in writing by the
Department.
On-Site Audits by the Department
(8) For the purpose of assessing compliance with the provisions of the Act, the
Regulations, this Consent Agreement, and future munitions licenses and
authorizations, Respondent agrees to arrange and facilitate, within minimum
advance notice, on-site audits by the Department for three (3) years commencing
on the date of the signing of the Order of itself, its direct and indirect
subsidiaries, and other affiliates covered by the Respondent's restructured
registration under the Regulations. To this end, Orbit-Xxxxxx also agrees to
arrange and facilitate such audits of itself and its non-Orbit/FR direct and
indirect subsidiaries that are involved in activities subject to the Act, the
Regulations and this Consent Agreement.
Understandings
(9) No agreement, understanding, representation or interpretation not contained
in this Agreement may be used to vary or otherwise affect the terms of this
Agreement or the Order, when entered, nor shall this Agreement serve to bind,
constrain, or otherwise limit any action by any agency or department of the
United States Government with respect to the facts and circumstances addressed
herein, except as otherwise noted. Respondent acknowledges and accepts that
there is no understanding expressed or implied through this Agreement with
respect to any decision by the Department of State concerning its interest in
the approval of export licenses or other U.S. Government authorizations
necessary to past, pending or future munitions license applications or other
authorizations. The Department agrees, assuming
Respondent and Orbit-Alchut adhere to the terms of this Agreement, that
decisions concerning future applications for export licenses and other
authorizations involving the Respondent and its affiliates will be made on the
basis of the national security and foreign policy interests of the United States
and without reference to the facts alleged in the draft Charging Letter and the
Department's previously expressed concerns regarding the Respondent's
reliability, which are considered to be appropriately mitigated through the
faithful operation of this Consent Agreement.
(10) Orbit-Alchut and Respondent acknowledge their obligation, including that of
their U.S. and foreign affiliates, to comply fully with the Act and Regulations
and the need to further strengthen their compliance program, including by
implementing the measures specified in this Consent Agreement. As further
measures, Orbit-Alchut and Respondent make the following additional
undertakings:
(a) During the three (3) year term of this Consent Agreement Orbit-Alchut agrees
that it and its direct and indirect foreign subsidiaries, will not make any new
export (including any re-export or re-transfer) of any foreign defense article
as defined by Section 120.6 and 121.1 of the Regulations or furnish any foreign
defense service, even if such defense article or defense service has no U.S.
content or the export or transfer of which would otherwise have no U.S.
involvement, to any country subject to Part 126 of the Regulations. Following
such three year term, Xxxxx-Xxxxxx agrees that it will submit to the Director of
the Office Defense Trade Controls Compliance (Director DTCC) a copy of its
measures designed to ensure full compliance with the Act and the Regulations
before engaging in any activity described in this subparagraph (a).
(b) For the three (3) year term of this Consent Agreement and thereafter for an
additional three (3) years, Respondent agrees that its direct and indirect
foreign subsidiaries will not make any new export (including any re-export or
re-transfer) of any foreign defense article as defined by Section 120.6 and
121.1 of the Regulations or furnish any foreign defense service, even if such
defense article or defense service has no U.S. content or the export or transfer
of which would otherwise have no US. involvement, to any country subject to Part
126 of the Regulations. Following such six (6) year term, Respondent agrees that
it will submit to the Director of the Office Defense Trade Controls Compliance
(Director DTCC) a copy of its measures designed to ensure full compliance with
the Act and the Regulations before engaging in any activity described in this
subparagraph (b).
(c) An exception to the provisions of subparagraphs (a) or (b) may be granted
only by the Assistant Secretary of State for Political-Military Affairs.
(11) The Parties agree that this Consent Agreement is for settlement purposes
only. For purposes of this Agreement, the Respondent admits the allegations in
the draft Charging Letter, which are based on the criminal charges of violations
of the Act and the Regulations with respect to which the Respondent pled guilty
and was convicted. Respondent acknowledges the nature and seriousness of the
offenses alleged by the Department in the draft Charging Letter, including the
risk of harm to the national security and foreign policy interests of the United
States, and wishes to resolve this matter by undertaking the obligations set
forth in this Consent Agreement, including payment of a cash penalty and
establishment of an effective compliance program that will prevent any future
actions such as those addressed in the draft Charging Letter. If this Consent
Agreement is not approved pursuant to an Order entered into by the Assistant
Secretary for Political-Military Affairs, the Parties agree that they may not
use this Agreement in any administrative or judicial proceeding and that neither
party shall be bound by the settlement terms contained in this Agreement in any
subsequent administrative or judicial proceeding.
(12) The Department agrees that, upon signing of the Order and entry into force
of this Agreement, this Consent Agreement resolves with respect to the
Respondent any civil penalties or sanctions imposed with respect to violations
of Section 38 of the Act or the Regulations alleged in the draft Charging Letter
or arising from facts that have been identified in the draft Charging Letter.
Waiver
(13) The Respondent and Xxxxx-Xxxxxx agree that, upon signing of the Order and
entry into force of this Consent Agreement, they waive all rights to any further
procedural steps in this matter, including an administrative hearing pursuant to
Part 128 of the Regulations (except with respect to any alleged violations of
this Consent Agreement or Order). The Respondent and Orbit- Alchut also waive
all rights to seek administrative or judicial review or to otherwise
contest the validity of this Consent Agreement or the Order, including any
action that may be bought for the enforcement of any civil fine, penalty or
forfeiture in connection with this Consent Agreement or Order.
Documents to be Made Public
(14) The Respondent and Orbit-Alchut understand that the Department will make
this Agreement, including the Annex of Compliance Measures, the draft Charging
Letter, and the Order, when entered, available to the public.
When Order Becomes Effective
(15) This Consent Agreement Shall become binding on the Department only when the
Assistant Secretary for Political-Military Affairs approves it by entering the
Order, which will have the same force and effect as a decision and Order issued
after full administrative hearing on the record.
U.S. Department of State
Xxxx X. Xxxxxx
Acting Assistant Secretary for
Political-Military Affairs
8/29/05
Orbit/FR, Inc.
Xxxxxx Xxxx
Orbit/FR, Inc.
President and CEO
3/22/05
Orbit-Alchut Technologies Ltd.
Xxxxxx Xxxxx
President
Orbit-Alchut Technologies Ltd.
3/20/05
Xxxxxxx X. Xxxxxxx
Attorney at Law
Counsel for Orbit, FR, Inc. and
Orbit-Alchut Technologies Ltd.
4/7/05
ANNEX OF COMPLIANCE MEASURES
Orbit/FR, Inc. ("Orbit/FR") and its parent Orbit-Alchut Technologies, Ltd.
("Orbit-Alchut"), reflecting their commitment to conduct the business of
Orbit/FR and its affiliates (i.e., entities controlling, controlled by or under
common control with Orbit/FR, including Orbit-Alchut, the direct and indirect
subsidiaries of Orbit/FR and the non-Orbit/FR direct and indirect subsidiaries
of Orbit-Alchut) in full compliance with the Arms Export Control Act ("Act" or
"AECA") and the International Traffic in Arms Regulations ("Regulations" or
"ITAR), and in order to ensure, in particular, that there is no unauthorized
use, export, re-export, transfer or re-transfer of U.S.-origin defense articles
(including technical data) or defense services (including any technical
assistance whatsoever), agree to implement the following remedial measures and
such additional measures as may be mutually agreed upon by Orbit/FR,
Orbit-Alchut, the Special Compliance Official and the Director, Office of
Defense Trade Controls Compliance ("DTCC"). These measures apply for a period of
three (3) years, except where otherwise noted.
Appointment of a Special Compliance Official
(I) The President & CEO of Orbit/FR shall, with the concurrence of the Director,
DTCC, appoint a qualified individual from outside of Orbit/FR and its
affiliates, to serve as a Special Compliance Official ("SCO") for an initial
term of two (2) years to be succeeded by an individual from inside Orbit/FR who
will serve for an additional one (1) year, in both instances reporting to
Orbit/FR's President & CEO, the Director of Compliance and Board of Directors
and to the Director, DDTC as set forth herein.
(2) The outside SCO shall not have been employed in any prior capacity by or
previously represented 0l;bitlFR or any of its affiliates, past or present, and,
as a condition of appointment as SCO, shall agree to forsake for all time any
such future employment or representation. The appointment shall be made within
thirty (30) days of the signing of the accompanying Order and, unless agreed to
by the parties to this settlement prior to or at the time of settlement, the
appointment shall be subject to the written approval of the Director, DTCC.
(3) The SCO shall have three principal areas of responsibility regarding the
future conduct of Orbit/FR:
(a) Strengthening the export compliance program of Orbit/FR and its subsidiaries
with primary attention to enhancing corporate oversight and compliance
infrastructure of Orbit/FR (including those business units associated with the
violations alleged in the draft Charging Letter), as well as the direct or
indirect U.S. subsidiaries of Orbit-Alchut whose registrations under the ITAR
have been consolidated under that of Orbit/FR, and to improving written policies
and procedures for AECAIITAR-regulated activities carried out by Orbit/FR and
its affiliates;
(b) Overseeing the audit referred to in paragraph 8 below and ensuring that
Orbit/FR and its affiliates perform their responsibilities in a timely and
satisfactory manner as required by this Agreement and the accompanying Order;
and
(c) Monitoring all AECAIITAR-regulated activities of Orbit/FR and its affiliates
for the period covered by this Consent Agreement.
Both Orbit/FR and Orbit-Alchut acknowledge and accept their obligation to ensure
that they have and continue to maintain effective export control oversight,
infrastructure, policies and procedures for the AECAIITAR- regulated activities
of Orbit/FR and its affiliates. To this end, Orbit/FR and Xxxxx Xxxxxx undertake
to ensure that there will be appropriate cooperation and coordination between
and among the President & CEO, the Director of Compliance of Orbit/FR, the SCO
and senior officials of Orbit-Alchut and all other Orbit/FR affiliates.
The SCO may also be requested to perform additional export oversight, monitoring
and coordination activities as agreed by Xxxxx/FR's President & CEO and the
Director, DTCC.
In fulfilling the responsibilities set forth in this Consent Agreement, the SCO
may at his/her sole discretion present any disagreement with Orbit/FR's
employees or management involved in export regulated activities directly to any
or all of Orbit/FR's President & CEO and Board of Directors or the Director,
DTCC.
(4) The Board of Directors of Orbit/FR shall consent to the following terms and
conditions regarding the power, duties, authorities, and responsibilities of the
SCO and receive reports on SCO findings and recommendations:
(a) The SCO shall have the power and authority to monitor compliance by Orbit/FR
(including its affiliates) with the terms of this Consent Agreement and
accompanying Order and shall exercise such power and authority and carry out the
duties and responsibilities of the SCO as set forth herein in a manner
consistent with this Consent Agreement, the accompanying Order, the specific
terms and conditions of munitions licenses and other authorizations within the
scope of paragraph 3 above with respect to which Orbit/FR or any subsidiary or
other business unit or affiliate is an applicant, end-user or otherwise involved
other activities subject to the Regulations and the Act, and shall do so in
consultation with the Office of DTCC.
(b) Within fifteen (15) days of the appointment of the SCO, Orbit/FR shall
confer on this individual all rights and powers necessary to permit the SCO to
monitor, oversee and promote Orbit/FR's compliance with the terms of this
Agreement in a manner consistent with the purposes of this Agreement and the
Order, and the specific terms and conditions of pertinent (i.e., covered by
paragraph 3 above) munitions license authorizations and other activities subject
to the Act and the Regulations. Such rights and powers shall be conferred in
writing; they shall be made in writing and made known throughout Orbit/FR and
its affiliates; and a certified copy of the resolution of the Board of Directors
shall be deposited with the Office of DTCC by the forty-sixth (46th) day after
the signing of the Order.
(c) The outside SCO shall serve for a two (2) year period from the date of his
or her appointment. If for any reason the appointed SCO is unable to serve the
full period of his/her appointment, the President & CEO of Orbit/FR may
recommend a successor acceptable to the Director, DTCC, the latter's agreement
to the replacement to be confirmed and provided in writing. Such a
recommendation shall be made at least thirty (30) days in advance of a new
appointment. If the SCO for any reason is unable to carry out the
responsibilities described herein on a temporary basis (i.e., not to exceed
thirty (30) days), then the Director of Compliance of Orbit/FR shall assume the
power and authority of SCO in the interim. The conferring of rights and powers
described in subparagraph (b) above shall make provision for this event. Within
twenty-one (21) months of appointment, the SCO, after consultations with
Xxxxx/FR's President & CEO and Director of Compliance shall recommend a
successor SCO acceptable to Orbit/FR and the Director, DTCC, who shall serve for
the remaining one (I) year period, the latter's agreement to the replacement to
be confirmed and provided in writing. The successor SCO shall be an employee of
Orbit/FR and capable of performing the responsibilities of the SCO, including
all authorities applicable to the outside SCO. The term of an SCO may not be
extended without written approval of the Director, DTCC. The Director, DTCC
shall have the authority to recommend removal of the SCO in the event the
Department determine the SCO is not fulfilling the responsibilities of the SCO
position in a satisfactory manner.
(d) The SCO shall have full and complete access to Orbit/FR's and its
affiliates' personnel, books, records, documents, facilities and technical
information relating to compliance with this Consent Agreement, Order, including
pertinent munitions authorizations, licenses, guidance and the like relating to
the use, export and re- export, transfer, re-transfer of defense articles and
defense services associated with Orbit/FR's business and that of its affiliates.
(e) Orbit/FR and its affiliates shall cooperate with any reasonable request of
the SCO, including any request for assistance to obtain any necessary security
clearances, and shall take no action to interfere with or impede the SCO's
ability to monitor Orbit/FR's compliance with this Agreement, the Act and the
Regulations or to carry out his/her other responsibilities set forth in this
Agreement.
(f) The SCO, with Orbit/FR's consent, which shall not be unreasonably withheld,
and subject to the written approval of the Director, DTCC, shall have the
authority to employ, at the expense of Orbit/FR, such assistants and other
professional staff as are reasonably necessary to carry out the SCO's duties and
responsibilities in connection with this Consent Agreement and Order. Such
expenses, including salaries and expenses of the SCO, may be counted toward the
penalty for remedial measures described in paragraph 3(B) of the Consent
Agreement.
(g) The Office of DTCC may, on its own initiative or at the request of the SCO,
issue such guidance as may be necessary or appropriate to ensure compliance with
the Act and the explanations and the terms and conditions of licenses and other
authorizations DTCC has provided to Orbit/FR. Upon a showing of good cause by
the SCO and the President & CEO of Orbit/FR, the Director of DTCC may grant an
extension of time to ensure full implementation of the compliance measures
specified herein. The SCO and the President of Orbit/FR may request relief from
other provisions of the Consent Agreement by submitting such a request,
including justification and supporting documentation, to the Director, DTCC.
(h) The SCO shall provide reports to the President & CEO, the Director of
Compliance and Board of Directors of Orbit/FR, Inc., as well as to the Director,
DTCC, concerning Orbit/FR's and its affiliates' compliance with this Agreement
and Order, including pertinent (i.e., covered by paragraph 3 above) U. S.
Government munitions licenses and authorizations, guidance and the like then in
force pertaining to Orbit/FR's and its affiliates' activities regulated by the
Act and the Regulations. These reports shall include conclusions and any
recommendations necessary to ensure compliance with the Act and Regulations and
the Consent Agreement, including the Annex of Compliance Measures, and shall
specifically address compliance with paragraph 10 of the Agreement; state
whether the SCO has encountered any difficulties in exercising the duties and
responsibilities assigned herein; describe any and all instances of
non-compliance without waiving Orbit/FR's ability to submit voluntary
disclosures; and advise on progress in implementing previous recommendations
advanced by the SCO. These reports may, in a separate annex, also include any
relevant comments or input by Xxxxx/FR's President & CEO and the Director of
Compliance. The reports shall be provided:
Every sixty (60) days for a period of six months from the date of the signing of
the Order; and Every ninety (90) days thereafter during the remainder of the
SCO's period of appointment.
To further the objectives of this paragraph and the Consent Agreement generally,
Orbit-Alchut undertakes that it and its non-Orbit/FR subsidiaries will cooperate
with the SCO, including by complying with requests made by the SCO for documents
and other information necessary to carry out the SCO's responsibilities. To this
end, Orbit- Alchut shall provide an appropriate written authorization and
directive to its non-Orbit/FR direct and indirect subsidiaries, a copy of which
shall be deposited with the Office of DTCC by the forty-sixth (46th) day after
the signing of the Order.
Strengthened Compliance Policies, Procedures, Training
(5) Within 120 days of the signing of the Order, Orbit/FR shall have reviewed
and instituted strengthened export compliance policies, procedures and training
focusing primarily on Orbit/FR, its direct and indirect subsidiaries, and the
U.S. subsidiaries of Orbit-Alchut whose registrations under the ITAR will be
consolidated under that of Orbit/FR. Within the same time period, Orbit-Alchut
shall also have reviewed and instituted strengthened export compliance
procedures and training appropriate to itself and its non-Orbit/FR direct and
indirect subsidiaries whose registrations under the ITAR will not be
consolidated under that of Orbit/FR (which shall be primarily responsible for
their compliance with the AECA and ITAR and the provisions of the Consent
Agreement). Orbit/FR shall ensure that by the 120" day:
(a) All employees involved in AECAIITAR-regulated activities of Orbit/ FR and
its affiliates are familiar with the AECA and ITAR, Orbit/FR policies and
procedures for compliance with the AECNITAR, and their and Orbit/FR's and its
affiliates' responsibilities under the AECAIITAR;
(b) All persons responsible for supervising those employees and all officers and
other senior managers of Orbit/FR and its affiliates are knowledgeable about the
underlying policies and principles of the AECA and the ITAR and Orbit/FR, Inch
policies and procedures;
(c) There are records maintained of the names of the employees and other
personnel trained, the trainers, and area of training received (i.e.,
determination of what is a US.-origin defense article, including technical data,
and U.S.-furnished defense service, the applicability of AECNITAR requirements
to Israeli defense articles incorporating or produced from U.S. defense
articles, including technical data, and defense services) and copies of training
materials used. Compliance policies, procedures and training will ensure that
"defense services" and defense articles will be treated consistent with the
definitions of those terms and requirements for approvals in the Regulations, as
provided in paragraph 5 of the Consent Agreement. To this end, U.S. and foreign
product and service lines shall be reviewed within thel20-day period referred to
above to determine or confirm which are defense articles or defense services;
thereafter, any new products and services shall be reviewed as developed;
Commodity Jurisdiction determinations with respect to U.S. product or service
lines under Section 120.4 of the Regulations and shall be requested in
appropriate circumstances, e.g., to clarify uncertain regulatory status (for the
purposes of paragraph 11 of the Annex, requests as to whether foreign products
or services are defense articles or defense services, shall be submitted to the
Office of DTCC).
Legal Oversight
(6) Within thirty (30) days of signing the Order, Orbit/FR shall establish
measures such that Orbit/FR's president & CEO and/or Director of Compliance,
with the assistance of legal counsel, will provide oversight and support to
Orbit/FR and its affiliates for all matters involving compliance with export
control laws and regulations, including the Act and the Regulations. These
measures shall be structured to achieve consistent application of the Act and
Regulations by Orbit/FR and its affiliates. The President & CEO and/or the
Director of Compliance, with the assistance of legal counsel, shall consider and
implement those improvements in the compliance program for Orbit/FR and its
affiliates recommended by the SCO. In addition, the SCO and the President & CEO
and/or Director of Compliance, with the assistance of legal counsel, shall also
have the opportunity for input in performance reviews of the appropriate
personnel responsible for compliance with the Act and Regulations.
Hotline for AECA and ITAR
(7) Within thirty (30) days of the signing of the Order, Orbit/FR shall
publicize the availability of an Ethics Hotline for reporting possible
violations of export control laws and regulations, including the AECA and the
ITAR, to enable personnel of Orbit/FR and its affiliates to readily report via
this channel, without fear of recrimination or retaliation. Xxxxxxx calls about
export matters will be directed to the SCO and the Director of Compliance. Based
on consultations with Xxxxx/FR's President & CEO and legal counsel, the Director
of Compliance or the President will be responsible for responding to such calls.
Orbit/FR's Director of Compliance shall also advise the President & CEO of
Orbit-Alchut, or his designated representative, of any Ethics Hotline calls
involving Orbit-Alchut, including any of non-Orbit direct or indirect
subsidiaries. In such circumstances, the President & CEO of Orbit-Alchut shall
have the opportunity to participate in the consultation described above in
prepare the response to such calls. The SCO shall prepare a quarterly report
assessing the effectiveness of the hotline system. A copy of the report shall be
provided to the President and Director of Compliance of Orbit/FR and to the
Director, DTCC. This written report shall contain sufficient detail such that
the Department may, consistent with its responsibilities under the law and
regulations, form an opinion about the seriousness of any alleged violations,
without disclosing employee confidentiality.
Audit
(8) No later than twelve (12) months after the signing of the Order, Orbit/FR,
in coordination with the SCO, shall commence a thorough audit and assessment of
Orbit/FR's and its affiliates' implementation of all measures set forth in the
Consent Agreement and this Annex of & compliance Measures, with the primary
focus on those undertaken to address the problems illustrated in the draft
Charging Letter, the policies, procedures and training established for Orbit/FR,
its subsidiaries, affiliates covered under Orbit/FR's restructured registration,
and such other areas as may be identified by the SCO or the Director, DTCC. The
draft audit plan shall be submitted to the Director, DTCC for his review,
comment and approval prior to the start of the audit. No later than the second
anniversary of the signing of the Order, Orbit/FR shall submit a written report
containing audit findings and recommendations for improvements with respect to
the aforesaid measures and compliance with the Act and Regulations more
generally to the Orbit/FR's President & CEO and legal counsel and to the
Director DTCC. Recommended compliance program improvements identified in the
report shall be incorporated in compliance policies, procedures and training
applicable to Orbit/FR and its affiliates (see paragraph 5 of the Annex).
Orbit-Alchut shall ensure that it and its non-Orbit/FR direct and indirect
subsidiaries cooperate with the audit and implement recommended compliance
program improvements.
Costs Counted Toward Penalty for Remedial Measures
(9) Orbit/FR's costs associated with increasing in-house export control
personnel associated with additional export compliance enhancements, as
required, including auditor(s) and attorney(s), Orbit/FR's export compliance
manual, internal web site, and other export control compliance procedures and
documents, as well as consultants and experts from outside Orbit/FR to support
the above described activities may be counted toward the penalty imposed under
paragraph 3(B) of the Consent Agreement. Such costs incurred by Orbit-Alchut and
its non-Orbit/FR direct and indirect subsidiaries toward implementing the
requirements of the Consent : Agreement and the Annex Compliance Measures shall
also count toward such penalty.
Certifications
(10) At the conclusion of the three (3) year term of this Consent Agreement, the
President & CEO and SCO of, Orbit/FR and the President & CEO of Orbit-Alchut
shall each submit to the Director, DTCC a written certification that
all aspects of the Consent Agreement have been implemented and that they have
assessed its current compliance program and attest that it is adequate to
prevent and identify violations of the AECA and the ITAR. Such certification
shall specifically address compliance with paragraphs 3 and paragraph 10 of the
Consent Agreement.
