Contract analysis

I. Purpose and Scope of Memorandum The purpose of this memorandum is to memorialize the preparation of Thomas Eriksen for his voluntary proffer session with the United States Department of Justice, Antitrust Division, San Francisco Field Office, currently scheduled for April 22, 2023. Mr. Eriksen serves as Regional Sales Manager, Western Region, U.S. Specialty Minerals Division of Torchlight Mining Corp. ("TMC"). Thi

1. Background on Thomas Eriksen and his role within TMC's organizational structure during the Conspiracy Period;

2. The terms and protections afforded by the negotiated proffer agreement, including the scope and limitations of "queen for a day" protections;

3. Anticipated lines of questioning by DOJ prosecutors during the proffer session;

4. Key documents that DOJ is likely to reference or present to Mr. Eriksen during the session;

5. Notes and guidance from the preparation sessions, including specific topical guidance and general witness instructions; and

6. Strategic considerations relevant to TMC's cooperation posture, Mr. Eriksen's individual exposure, and the broader context of the investigation. As context for this memorandum, it should be noted that Sandra Chu, Director of Pricing Analytics for the U.S. Specialty Minerals Division, completed her own voluntary proffer session with the DOJ on March 10, 2023. Lessons learned from Ms. Chu's proffer session, includin

II. Background on Thomas Eriksen A. Position and Tenure Thomas Eriksen currently holds the title of Regional Sales Manager, Western Region, U.S. Specialty Minerals Division, Torchlight Mining Corp. In this capacity, Mr. Eriksen is responsible for managing TMC's commercial relationships with customers in the Western United States for the company's specialty minerals products, including high-purity feldspar, industrial

III. Proffer Agreement Terms and Protections A. Negotiated Proffer Letter The terms of Mr. Eriksen's proffer session have been negotiated by Elaine Forsythe with the DOJ Antitrust Division, San Francisco Field Office. Reference is made to the Letter to DOJ re Proffer Terms for Thomas Eriksen, dated April 15, 2023, from Elaine Forsythe to Denise Kowalski, Trial Attorney, DOJ Antitrust Division, San Francisco Field Off

1. Calderwood & Harkness LLP represents Torchlight Mining Corp., the corporate entity, and does not represent Mr. Eriksen in his individual capacity.

2. The attorney-client privilege with respect to communications between Calderwood & Harkness and Mr. Eriksen in the course of the internal investigation and the proffer preparation belongs to TMC, not to Mr. Eriksen. TMC, acting through its authorized representatives, has the sole authority to assert or waive the attorney-client privilege with respect to those communications.

3. Mr. Eriksen has the right to retain separate personal legal counsel at any time, at his own expense, to represent his individual interests in connection with this investigation or any related proceeding.

4. Information that Mr. Eriksen provides to Calderwood & Harkness, including information provided during the internal investigation interview and during the proffer preparation sessions, may be disclosed to the DOJ or other third parties at the direction of TMC. Mr. Eriksen acknowledged his understanding of each of these warnings during the July 22, 2022 interview and signed a written acknowledgment, which is maintai

IV. Anticipated Lines of DOJ Questioning Based on Calderwood & Harkness's understanding of the investigation, the evidence developed during the internal investigation, the experience gained from Sandra Chu's proffer session on March 10, 2023, and our assessment of the government's theory of the case, the following are the anticipated lines of questioning that DOJ prosecutors are likely to pursue during Mr. Eriksen's

V. Key Documents Likely to Be Discussed The following categories of documents are likely to be referenced or presented to Mr. Eriksen by DOJ prosecutors during the proffer session. Counsel should review all identified documents with Mr. Eriksen during the preparation sessions, and Mr. Eriksen should be prepared to discuss his recollection and understanding of each document. A. NASMC Conference Materials DOJ is likely

VI. Preparation Session Notes and Guidance to Witness A. Pre-Session Preparation Meetings Two preparation sessions have been scheduled with Mr. Eriksen in advance of the April 22, 2023 proffer session: First Preparation Session: Scheduled for April 11, 2023, at Calderwood & Harkness's San Francisco office, 555 California Street, 40th Floor. The session is scheduled to begin at 9:00 a.m. and is expected to last approx

1. Answer only the question asked. Mr. Eriksen should listen carefully to each question and answer only what is being asked. He should not volunteer information beyond the scope of the question or attempt to explain or contextualize matters that were not the subject of the question. Brevity and precision are preferred. If a "yes" or "no" answer is appropriate and complete, he should give a "yes" or "no" answer.

2. If you do not know, say so. If Mr. Eriksen does not know the answer to a question, he should state clearly: "I don't know." He should not speculate, guess, or reconstruct what might have happened. Similarly, if Mr. Eriksen does not recall a specific event, conversation, or detail, he should state: "I don't recall" or "I don't have a specific recollection of that." There is no obligation to provide an answer to eve

3. Look to counsel before answering if unsure. If Mr. Eriksen is unsure whether a question calls for information that may be protected by the attorney-client privilege, the work-product doctrine, or that is outside the agreed scope of the proffer, he should pause and look to counsel before answering. Counsel will intervene if necessary. Mr. Eriksen should not feel pressure to answer immediately; it is appropriate to

4. Be prepared for document walk-throughs. DOJ prosecutors may present Mr. Eriksen with specific documents during the proffer session — including emails, memoranda, conference materials, and pricing records — and ask for his recollection and interpretation of those documents. Mr. Eriksen should take time to read each document carefully before answering any questions about it. If the document is unfamiliar to him, he

5. Be truthful in all responses. This is the single most important instruction. Mr. Eriksen must be truthful and complete in all of his responses during the proffer session. Any materially false or misleading statement could result in criminal liability under 18 U.S.C. § 1001, could void the protections of the Proffer Letter, and could undermine TMC's cooperation credit with the DOJ. If the truth is unfavorable to TM

1. NASMC Conferences With respect to questions about NASMC conference attendance, Mr. Eriksen should describe his attendance factually and straightforwardly. He should identify which conferences he attended, what formal sessions and events he participated in, and what the stated business purpose of his attendance was. If Mr. Eriksen observed Mr. Holt meeting separately with competitor personnel at any NASMC conferenc

2. Pricing Practices With respect to questions about TMC's pricing practices, Mr. Eriksen should describe the internal pricing process as he understood it from his position as Regional Sales Manager for the Western Region. This includes the receipt of published price lists, the application of regional adjustments within his authorized discretion, the role of Sandra Chu in pricing analytics, and the role of Gavin Holt

3. Relationship with Holt With respect to questions about his relationship with Gavin Holt, Mr. Eriksen should describe his professional interactions with Mr. Holt factually and in a measured manner. He should describe the frequency and nature of their communications, the types of instructions and guidance he received from Mr. Holt, and the context in which they interacted at NASMC conferences and in other settings.

4. VaultChat. Mr. Eriksen has stated in his internal investigation interview that he was not aware of the VaultChat encrypted messaging application and did not use it at any time. If this question arises during the proffer session, as it almost certainly will, Mr. Eriksen should reaffirm this statement clearly and unambiguously. He should state that he did not use VaultChat, was not aware that TMC employees used it t

VII. Strategic Considerations A. TMC's Cooperation Posture Mr. Eriksen's proffer session is a key element of TMC's cooperation with the DOJ Antitrust Division, as outlined in the Cooperation Proffer submitted by Calderwood & Harkness on behalf of TMC on February 15, 2023. The Cooperation Proffer committed TMC to, among other things, making current and former employees available for voluntary proffer sessions and inte

1. Risk of inadvertent disclosure of unfavorable information. There is a risk that Mr. Eriksen's testimony could inadvertently reveal information that is unfavorable to TMC or that expands the scope of the DOJ's inquiry beyond its current focus. For example, if Mr. Eriksen recalls details about TMC's internal practices or Mr. Holt's conduct that were not surfaced during the internal investigation, such information co

2. Risk of confrontation with previously unseen documents or information. There is a risk that DOJ prosecutors may confront Mr. Eriksen with documents or information that he has not previously seen and that Calderwood & Harkness has not previously reviewed. Such documents could come from the productions of other investigation targets, including Ridgecrest, Pinnacle, or Cascade Chemical Supply Co. (which is cooperatin

3. Risk that DOJ perceives Eriksen as more culpable than currently assessed. Based on the internal investigation, Calderwood & Harkness's current assessment is that Mr. Eriksen's involvement in the alleged conspiracy was at most peripheral. However, the DOJ may possess evidence not known to Calderwood & Harkness that suggests a greater degree of involvement. If the tenor of the proffer session reveals that the DOJ vi