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UNITED STATES DISTRICT COURT FOR
STIPULATION AND ORDER
WHEREAS, plaintiff, United States of America, having filed its complaint on July , 1997, and plaintiff and AIG Trading Corporation, BP Exploration & Oil, Inc. and Cargill International, S.A. ("defendants"), by their respective attorneys, having agreed to the entry of this stipulation and order without trial or adjudication of any issue of fact or law herein and without this stipulation and order constituting any evidence against or an admission by any party with respect to any such issue;
NOW, THEREFORE, before the taking of any testimony and without trial or adjudication of any issue of fact or law herein,
Plaintiff and defendants hereby agree as follows:
This Court has jurisdiction over the subject matter of this action and over each of the parties consenting hereto. Venue is proper in the Southern District of New York.
As used in this stipulation and order:
A. "Brent contract" means a commercial transaction (i) calling for the delivery FOB at Sullom Voe, United Kingdom, of Brent blend crude oil, a crude oil produced in the North Sea, in cargo lots of 500,000 barrels (plus or minus a 5% operational tolerance at the buyer's option) on an unspecified day in a given month forward; (ii) where the seller is obligated to give notice, by 1700 hours London time, not less than fifteen (15) days prior to the first loading day, of a three day loading range within which the buyer must take delivery; (iii) at a price fixed at the time of that contract; (iv) with payment within thirty (30) days of the bill of lading date; and (v) the contract is governed by English law, with jurisdiction over disputes in the English courts, or should any of these terms be changed or amended, any successor contract for a future purchase of Brent blend crude oil.
B. "Brent spread contract" means a commercial transaction in which there is simultaneous: (i) purchase of a Brent contract for a given month forward; and (ii) sale of a Brent contract for a different month forward.
C. "CFD" means a commercial transaction involving the purchase of an instrument (a "Contract for Differences") the price of which is determined by the difference between: (i) the published price of a cargo of Brent blend crude oil already loaded or available to be loaded on a specified day ("dated Brent") and; (ii) the published price of a cargo of Brent blend crude oil available to be loaded on an unspecified day of the first month forward. The "published prices" referred to are those reported presently in Platt's Oilgram Price Report.
D. "Broker" means any person, other than a trader, who is regularly engaged in the business of providing, for remuneration, the service of locating buyers for prospective sellers, or sellers for prospective buyers, of Brent spread contracts or CFDs.
E. "Brokerage commission" means the amount of remuneration paid to a broker for arranging the purchase and sale of Brent spread contracts or CFDs by other persons.
F. "Person" means any individual, corporation, partnership, company, sole proprietorship, firm or other legal entity.
G. "Trader" means any person who, in the ordinary course of its business, purchases or sells Brent spread contracts or CFDs.
H. "Any" means one or more.
I. "Or" means and/or.
This stipulation and order applies to each defendant; to each of its executive officers, directors, successors and assigns, during the respective periods that they serve as such; and to any agents and employees assigned to purchase or sell any Brent spread contracts or CFDs or assigned to supervise the purchases and sale of such contracts.
Each defendant shall not, directly or indirectly:
(A) agree with any other trader unrelated to such defendant to (1) fix, lower, raise, stabilize or maintain any brokerage commission for Brent spread contracts and CFDs or (2) exchange any information for that purpose; and
(B) request or advise any other trader unrelated to such defendant to lower, raise or change any brokerage commission for Brent spread contracts and CFDs to be paid by it.
A. Notwithstanding the provisions of Section IV, any defendant shall be entitled to:
B. Nothing in this stipulation and order shall prohibit defendants from engaging in any activity lawful under the Foreign Trade Antitrust Improvements Act, 15 U.S.C. §6a.
C. No finding of any violation of this stipulation and order may be made based solely on parallel conduct.
In order to ensure compliance with the provisions of Section IV of the stipulation and order:
(A) Each defendant shall maintain an antitrust compliance program which shall include designating, within sixty (60) days of entry of this stipulation and order, an Antitrust Compliance Officer with responsibility for implementing the antitrust compliance program and achieving full compliance with this stipulation and order. The Antitrust Compliance Officer shall, on a continuing basis, supervise the review of the current and proposed activities of his or her defendant company to ensure that it complies with this stipulation and order.
(B) The Antitrust Compliance Officer shall, on a continuing basis, be responsible for the following:
A. Within seventy-five (75) days after the entry of this stipulation and order, each defendant shall certify to the plaintiff whether it has designated an Antitrust Compliance Officer and has distributed the stipulation and order in accordance with Section VI (B) above.
B. For five (5) years after the entry of this stipulation and order, on or before its anniversary date, each defendant shall file with the plaintiff an annual statement as to the fact and manner of its compliance with the provisions of Section VI.
A. For the sole purpose of determining or securing compliance with this stipulation and order, and subject to any legally recognized privilege or work product protection, from time to time duly authorized representatives of the Department of Justice shall, upon written request of the Attorney General or of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to any defendant at its principal office, be permitted:
B. Upon the written request of the Attorney General or the Assistant Attorney General in charge of the Antitrust Division made to any defendant, such defendant shall prepare and submit such written reports, under oath if requested, relating to defendant's compliance with this stipulation and order as may be requested.
C. No information, tape recordings, or documents obtained by the means provided in Sections VI, VII, and VIII shall be divulged by plaintiff to any person other than a duly authorized representative of the Executive Branch of the United States, except in the course of legal proceedings to which the United States is a party, or for the purpose of securing compliance with this stipulation and order, or as otherwise required by law.
D. If at the time information, tape recordings, or documents are furnished by any defendant to plaintiff, such defendant represents and identifies in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26 (c) (7) of the Federal Rules of Civil Procedure and said defendant marks each page of such material, "Subject to Claims of Protection under Rule 26 (c) (7) of the Federal Rules of Civil Procedure," then plaintiff shall give ten (10) business days notice to such defendant at its Office of General Counsel prior to divulging such material in any legal proceeding (other than a grand jury proceeding) to which that defendant is not a party.
The parties agree that the Court may enter this stipulation and order, upon motion of any party or upon the Court's own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, and without further notice to any party or other proceedings, provided that the plaintiff has not notified the parties and the Court that it wishes to rescind its agreement to entry of the stipulation and order. Plaintiff may rescind its agreement to entry of the stipulation and order at any time before entry of the stipulation and order by the Court by serving notice thereof on the defendants and by filing that notice with the Court. In the event plaintiff rescinds its agreement to entry of the stipulation and order, the stipulation and order shall be of no effect whatever, and the agreement among the parties shall be without prejudice to any party in this or any other proceeding.
Jurisdiction shall be retained by the Court to enable any of the parties to this stipulation and order to apply at any time for such further orders and directions as may be necessary or appropriate for the construction or implementation of this stipulation and order, for the enforcement or modification of any of its provisions, or for punishment by contempt.
This stipulation and order shall expire ten (10) years from its date of entry by the Court.
FOR PLAINTIFF UNITED STATES OF AMERICA:
ORDER OF THE COURT
The Court having reviewed the Complaint and other filings by the United States, having found that this Court has jurisdiction over the parties to this stipulation and order, having heard and considered the respective positions of the United States and the defendants [at a hearing on _______________ ] and having concluded that entry of this stipulation and order is in the public interest, it is hereby ORDERED:
THAT the parties comply with the terms of this stipulation and order;
THAT the Complaint of the United States is dismissed with prejudice;
THAT the Court retains jurisdiction to enable any of the parties to this stipulation and order to apply to the Court at any time for such further orders and directions as may be necessary or appropriate for the construction or implementation of this stipulation and order, for the enforcement or modification of any of its provisions, or for punishment by contempt.
SO ORDERED this _____ day of _____________, 1997