The United States of America and Dae Soo Kim ("Defendant") hereby enter into the following Plea Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."):
1. Defendant understands that he has the right:
AND WAIVE CERTAIN RIGHTS
2. Defendant knowingly and voluntarily waives the rights set out in Paragraph 1(b)-(h) above, including all jurisdictional defenses to the prosecution of this case, and agrees voluntarily to consent to the jurisdiction of the United States to prosecute this case against him in the United States District Court for the Northern District of California. Defendant also knowingly and voluntarily waives the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2241 or 2255 that challenges the sentence imposed by the Court, if that sentence is consistent with or below the recommended sentence in Paragraph 8 of this Plea Agreement, regardless of how the sentence is determined by the Court. This agreement does not affect the rights or obligations of the United States as set forth in 18 U.S.C. § 3742(b)-(c). Nothing in this paragraph, however, shall act as a bar to the Defendant perfecting any legal remedies he may otherwise have on appeal or collateral attack respecting claims of ineffective assistance of counsel. Further, pursuant to Fed. R. Crim. P. 7(b), Defendant will waive Indictment and plead guilty at arraignment to a one-count Information to be filed in the United States District Court for the Northern District of California. The Information will charge that beginning on or about April 1, 1999, and continuing until on or about June 15, 2002, Hynix Semiconductor Inc. ("Hynix") and co-conspirators participated in a conspiracy in the United States and elsewhere to suppress and eliminate competition by fixing the price of dynamic random access memory ("DRAM")to be sold to certain original equipment manufacturers of personal computers and servers ("OEMs"), in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. The Information will further charge that Defendant, an employee of Hynix, joined and participated in the charged conspiracy from on or about April 1, 2001, until on or about June 15, 2002.
3. Defendant, pursuant to the terms of this Plea Agreement, will plead guilty 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.
4. Had this case gone to trial, the United States would have presented evidence to prove the following facts:
5. Defendant understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of Section One of the Sherman Antitrust Act is:
6. In addition, Defendant understands that:
7. Defendant understands that the Sentencing Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines, along with the other factors set forth in 18 U.S.C. § 3553(a), in determining and imposing sentence. Defendant understands that the Guidelines determinations will be made by the Court by a preponderance of the evidence standard. Defendant understands that although the Court is not ultimately bound to impose a sentence within the applicable Guidelines range, its sentence must be reasonable based upon consideration of all relevant sentencing factors set forth in 18 U.S.C. § 3553(a). Pursuant to U.S.S.G. § 1B1.8, the United States agrees that self-incriminating information that Defendant provides to the United States pursuant to this Plea Agreement will not be used to increase the volume of affected commerce attributable to Defendant or in determining the Defendant's applicable Guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b). Defendant and the United States agree that the Court should consider the Guidelines in effect at the time of the offense, June 15, 2002, rather than at the time of sentencing, in accordance with U.S.S.G. § 1B1.11(b). The United States and Defendant agree that the Guidelines may be applied and, if applied, the applicable sentencing guidelines is U.S.S.G. § 2R1.1 with a base level of 10, a volume of commerce adjustment of plus 7 pursuant to U.S.S.G. § 2R1.1(b)(2)(G); a role in the offense adjustment of plus 3 pursuant to U.S.S.G. § 3B1.1 for a total of 20, less a 3-level adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total offense level of 17. Further, the United States agrees to make a motion for downward departure pursuant to Paragraph 10 herein and U.S.S.G. § 5K1.1, recommending that Defendant be sentenced to the recommended sentence agreed to below.
9. The United States and Defendant agree that, pursuant to U.S.S.G. § 5E1.1(b), Defendant should not be ordered to pay restitution in light of the civil cases filed against Hynix, Defendant's employer, including In re DRAM Antitrust Litigation, No. M-02-1486-PJH, MDL No. 1486, consolidated in the United States District Court, Northern District of California, which potentially provide for a recovery of a multiple of actual damages.
10. The United States and Defendant agree that the applicable Guidelines fine and incarceration ranges exceed the fine and term of imprisonment contained in the recommended sentence set out in Paragraph 8 above. Subject to the full and continuing cooperation of Defendant, as described in Paragraph 13 of this Plea Agreement, and prior to sentencing in this case, the United States agrees that it will make a motion, pursuant to U.S.S.G. § 5K1.1, for a downward departure from the Guidelines fine and incarceration ranges in this case. The motion for downward departure is based on cooperation that has already occurred and any additional cooperation that may occur prior to sentencing. Furthermore, the United States will request that this Court impose the fine and term of imprisonment contained in the recommended sentence set out in Paragraph 8 of this Plea Agreement because of Defendant's substantial assistance in the government's investigation and prosecutions of violations of federal criminal law in the DRAM industry.
11. The United States and Defendant jointly submit that this Plea Agreement and the record that will be created by the United States and Defendant at the plea and sentencing hearing will provide sufficient information concerning Defendant, the offense charged in this case, and Defendant's role in the offense to enable the meaningful exercise of sentencing authority by this Court under 18 U.S.C. § 3553. The United States will not object to Defendant's request that this Court accept Defendant's plea of guilty and impose sentence on an expedited schedule as early as the date of arraignment, based upon the record provided by Defendant and the United States, under the provisions of Rule 32(b)(1), Fed. R. Crim. P., U.S.S.G. § 6A1.1, and Criminal Local Rule 32-1(b). The Court's denial of the request to impose sentence on an expedited schedule will not void this Plea Agreement. Should the Court deny Defendant's request to impose sentence on an expedited schedule, the United States agrees that, at the initial appearance or arraignment, it will recommend the release of Defendant on his personal recognizance and without bond, under 18 U.S.C. § 3142, without restriction as to travel, pending the sentencing hearing in this case.
12. The United States and Defendant understand that this Court retains complete discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea Agreement.
13. Defendant will cooperate fully and truthfully with the United States in the prosecution of this case, the current federal investigation of violations of federal antitrust and related criminal laws involving the manufacture or sale of DRAM, 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"). The ongoing, full, and truthful cooperation of Defendant shall include, but not be limited to:
14. Subject to the full, truthful, and continuing cooperation of Defendant, as described in Paragraph 13 of this Plea Agreement, and upon the Court's acceptance of the guilty plea called for by this Plea Agreement and the imposition of the recommended sentence, the United States will not bring further criminal charges against Defendant for any act or offense committed before the date of this Plea Agreement that was undertaken in furtherance of an antitrust conspiracy involving the manufacture or sale of DRAM or undertaken in connection with any investigation of such a conspiracy ("Relevant Offense"). The nonprosecution terms of this paragraph do not apply to civil matters of any kind, to any violation of the federal tax or securities laws, or to any crime of violence.
15. The United States agrees that when Defendant travels to the United States for interviews, grand jury appearances, or court appearances pursuant to this Plea Agreement, or for meetings with counsel in preparation therefor, the United States will take no action, based upon any Relevant Offense, to subject Defendant to arrest, detention, or service of process, or to prevent Defendant from departing the United States. This paragraph does not apply to Defendant's commission of perjury (18 U.S.C. § 1621), making false statements (18 U.S.C. § 1001), making false statements or declarations 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 or information provided or requested in any Federal Proceeding.
17. Defendant understands that he may be subject to administrative action by federal, state or foreign agencies other than the United States Department of Justice, Antitrust Division, based upon the conviction resulting from this Plea Agreement, and that this Plea Agreement in no way controls whatever action, if any, other agencies may take. However, the United States agrees that, if requested, it will advise the appropriate officials of any governmental agency considering such administrative action of the fact, manner, and extent of the cooperation of Defendant as a matter for that agency to consider before determining what administrative action, if any, to take.
18. Defendant has reviewed all legal and factual aspects of this case with his attorney and is fully satisfied with his attorney's legal representation. Defendant has thoroughly reviewed this Plea Agreement with his attorney and has received satisfactory explanations from his attorney concerning each paragraph of this Plea Agreement and alternatives available to Defendant other than entering into this Plea Agreement. After conferring with his attorney and considering all available alternatives, Defendant has made a knowing and voluntary decision to enter into this Plea Agreement.
19. Defendant's decision to enter into this Plea Agreement and to tender a plea of guilty is freely and voluntarily made and is 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 this Court will accept or reject the recommendations contained within this Plea Agreement.
20. Defendant agrees that, should the United States determine in good faith, during the period that any Federal Proceeding is pending, that Defendant has failed to provide full and truthful cooperation, as described in Paragraph 13 of this Plea Agreement, or has otherwise violated any provision of this Plea Agreement,the United States will notify Defendant or his counsel in writing by personal or overnight delivery or facsimile transmission and may also notify his counsel by telephone of its intention to void any of its obligations under this Plea Agreement (except its obligations under this paragraph), and Defendant 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. Defendant may seek Court review of any determination made by the United States under this Paragraph to void any of its obligations under the Plea Agreement.Defendant agrees that, in the event that the United States is released from its obligations under this Plea Agreement and brings criminal charges against Defendant for any Relevant Offense, the statute of limitations period for such offense will be tolled for the period between the date of the signing of this Plea Agreement and six (6) months after the date the United States gave notice of its intent to void its obligations under this Plea Agreement.
21. Defendant understands and agrees that in any further prosecution of him resulting from the release of the United States from its obligations under this Plea Agreement based on Defendant's violation of the Plea Agreement, any documents, statements, information, testimony, or evidence provided by him to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against him in any such further prosecution. In addition, Defendant unconditionally waives his right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410.
22. Defendant agrees to and adopts as his own the factual statement contained in Paragraph 4 above. In the event that Defendant breaches the Plea Agreement, Defendant agrees that the Plea Agreement, including the factual statement contained in Paragraph 4 above, provides a sufficient basis for any possible future extradition request that may be made for his return to the United States to face charges either in the Information referenced in Paragraph 2 of this Plea Agreement or in any related indictment. Defendant further agrees not to oppose or contest any request for extradition by the United States to face charges either in the Information referenced in Paragraph 2 of this Plea Agreement or in any related indictment.
23. This Plea Agreement constitutes the entire agreement between the United States and Defendant concerning the disposition of the criminal charge in this case. This Plea Agreement cannot be modified except in writing, signed by the United States and Defendant.
24. The undersigned attorneys for the United States have been authorized by the Attorney General of the United States to enter this Plea Agreement on behalf of the United States.
25. A facsimile signature shall be deemed an original signature for the purpose of executing this Plea Agreement. Multiple signature pages are authorized for the purpose of executing this Plea Agreement.