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SAN FRANCISCO VENUE
The United States of America and DEGUSSA U.K. HOLDINGS LTD. ("the defendant"), a corporation organized and existing under the laws of the United Kingdom, 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."):
RIGHTS OF DEFENDANT
1. The defendant understands its rights:
AND WAIVE CERTAIN RIGHTS
2. The defendant waives the rights set out in Paragraph 1(b)-(h), above, including all jurisdictional defenses to the prosecution of this case, and voluntarily consents to the jurisdiction of the United States to prosecute this case against it in the United States District Court for the Northern District of California. The defendant agrees to have its sentence determined under the United States Sentencing Guidelines ("U.S.S.G.") and waives all constitutional challenges to the validity of the U.S.S.G. The defendant waives any right it may have to have facts that determine its Guidelines fine range under the U.S.S.G. (including any facts used to determine its offense level, base fine amount, culpability score, any specific offense characteristic, or other enhancement or adjustment) alleged in an indictment and found by a jury beyond a reasonable doubt. The defendant agrees that facts that determine its Guidelines fine range will be found by the Court at sentencing by a preponderance of the evidence and that the Court may consider any reliable evidence, including hearsay, in making such determinations. The defendant further agrees that it is making the above waivers knowingly and voluntarily, after fully conferring with and on the advice of counsel, and that the waivers are for the defendant's own benefit. The defendant also waives the right to appeal the imposition of sentence against it, so long as the sentence imposed is consistent with the Recommended Sentence in Paragraph 8 of this Plea Agreement. Pursuant to Fed. R. Crim. P. 7(b), the 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 the defendant with participating in a conspiracy to suppress and eliminate competition by fixing the prices of organic peroxides ("OP"), specifically t-butyl perbenzoate and t-butyl peracetate dedicated to styrene polymerization (the "Specified OP Products"), sold in the United States and elsewhere, beginning in or about August 1997 and continuing until in or about March 1998, in violation of the Sherman Antitrust Act, 15 U.S.C. § 1.
3. The 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.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. The defendant understands that the maximum penalty which may be imposed against it upon conviction for a violation of Section One of the Sherman Antitrust Act is a fine in an amount equal to the greatest of:
6. In addition, the defendant understands that:
7. Sentencing for the offense to be charged will be conducted pursuant to the U.S.S.G. Manual in effect on the day of sentencing. Pursuant to U.S.S.G. § 1B1.8, the United States agrees that self-incriminating information that the defendant provides to the United States pursuant to this Plea Agreement will not be used to increase the volume of affected commerce attributable to the defendant or to otherwise enhance the defendant's applicable sentencing guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b).
8. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), 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 $1.5 million, payable in full before the fifteenth (15th) day after the date of judgment (the "Recommended Sentence").
9. Subject to the ongoing, full, and truthful cooperation of the defendant described in Paragraph 12 of this Plea Agreement, and before sentencing in this case, the United States will fully advise the Court of the fact, manner, and extent of the defendant's cooperation with the United States's investigations and prosecutions; of the defendant's commitment to prospective cooperation with such investigations and prosecutions; of all material facts relating to the defendant's involvement in the charged offense; and of all other relevant considerations.
10. The United States and the defendant understand that the Court retains complete discretion to accept or reject the Recommended Sentence provided for in Paragraph 8 of this Plea Agreement.
11. In light of the civil cases filed, which potentially provide for a recovery of a multiple of actual damages, the United States agrees that it will not seek a restitution order for the offense charged in the Information.DEFENDANT'S COOPERATION
12. The defendant, along with its parent company Degussa Aktiengesellschaft and their successors and subsidiaries (collectively, "Related Entities"), will cooperate fully and truthfully with the United States in any "Federal Proceeding," hereby defined to encompass the prosecution of this case, the ongoing federal investigation of violations of antitrust laws and related criminal laws in the OP industry, and any litigation or other proceeding arising or resulting from any such investigation to which the United States is a party. The ongoing, full, and truthful cooperation of the defendant shall include, but not be limited to:
13. The ongoing, full, and truthful cooperation of each person described in Paragraph 12(b) above will be subject to the procedures and protections of this paragraph, and shall include, but not be limited to:
14. Upon acceptance of the guilty plea called for by this Plea Agreement and the imposition of the Recommended Sentence, and subject to the cooperation requirements of Paragraph 12 of this Plea Agreement, the United States agrees that it will not bring further criminal charges against the defendant or any of its Related Entities 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 the Specified OP Products. 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 to the following:
16. The United States agrees that when any person 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 such person to arrest, detention, 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 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. The defendant understands that it may be subject to administrative action by federal or state 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 the defendant and its Related Entities as a matter for that agency to consider before determining what administrative action, if any, to take.REPRESENTATION BY COUNSEL
18. The defendant has been represented by counsel and is fully satisfied that its attorneys have provided competent legal representation. The defendant has thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised it of the nature of the charge, any possible defenses to the charge, and the nature and range of possible sentences.VOLUNTARY PLEA
19. The 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 and in the Degussa Cooperation Agreement, filed separately with the Court. The United States has made no promises or representations to the defendant as to whether the Court will accept or reject the recommendations contained within this Plea Agreement.VIOLATION OF PLEA AGREEMENT
20. The defendant agrees that, should the United States at any time determine in good faith that the defendant or any of its Related Entities have failed to provide full and truthful cooperation, as described in Paragraph 12 of this Plea Agreement, or has otherwise violated any provision of this Plea Agreement, the United States will notify counsel for the defendant in writing by personal or overnight delivery or by facsimile transmission of its intention to void any or all of its obligations under this Plea Agreement (except its obligations under this paragraph), and the defendant and its Related Entities 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. The defendant may seek Court review of any determination made by the United States under this Paragraph to void its obligations under the Plea Agreement. The defendant and its Related Entities agree that, in the event that the United States is released from its obligations under this Plea Agreement and brings criminal charges against the defendant or its Related Entities for any offense referred to in Paragraph 14 of this Plea Agreement, 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.
21. The defendant understands and agrees that in any further prosecution of it or of its Related Entities resulting from the release of the United States from its obligations under this Plea Agreement due to the defendant's or its Related Entities' violation of the Plea Agreement, any documents, statements, information, testimony, or evidence provided by it, its Related Entities, or current or former directors, officers, or employees of it or its Related Entities to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against it or its Related Entities in any such further prosecution. In addition, the defendant unconditionally waives its right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410.ENTIRETY OF AGREEMENT
22. This Plea Agreement and the Degussa Cooperation Agreement, filed separately with the Court, constitute the entire agreement between the United States and the defendant concerning the disposition of the criminal charge in this case. No modification of this Plea Agreement shall be valid unless made in writing and signed by both the United States and the defendant.
23. The undersigned is authorized to enter this Plea Agreement on behalf of the defendant as evidenced by the Resolution of the Board of Directors of the defendant attached to, and incorporated by reference in, this Plea Agreement.
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.
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on October 21, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
Dana R. Wagner
Michael F. Tubach
Degussa U.K. Holdings
Dated: October 21, 2004
LIMITED POWER OF ATTORNEY
DEGUSSA UK HOLDINGS LTD, a company registered in England and Wales under company number 2895034, and whose registered office is at 66 Wigmore Street, London, W1U 2HQ , (the "Company") herebyt grants a limited power of attorney to:John R. Pendergast 23700 Chagrin Blvd., Cleveland, Ohio 44122 (hereinafter the "attorney-in-fact")
individually and with the right to delegate his limited power of attorney, to execute, acknowledge and deliver and to make and to receive on behalf of the Company the attached Plea Agreement with the U.S. Department of Justice regarding organic peroxides (the "Agreement"). The attorney-in-fact shall have full authority to take any other steps and such further acts as are deemed requisite or necessary by the attorney-in-fact to effect the Agreement.
All steps already taken by the attorney-in-fact in connection with the Agreement are hereby expressly ratified. The rights, powers and authority of the attorney-in-fact granted herein shall remain in full force and effect unless and until rescinded in a signed instrument by the Company delivered this attorney-in-fact, or consummation of the underlying transaction to which the Agreement relates, whichever first occurs.
In cases of doubt, this limited power of attorney shall be interpreted broadly to realize the purpose of its granting.
This Power of Attorney shall be governed by the laws of England and Wales.
IN WITNESS WHEREOF, the Company has caused this Limited Power of Attorney to be executed and delivered as a deed by the Company this 31st day of August 2004.