npa-appendix-b-agreed-statement-facts-draft.docx

1039-00001 · Torchlight Mining Corp · documents

npa-appendix-b-agreed-statement-facts-draft.docx DOCUMENT Litigation

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PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT — SETTLEMENT COMMUNICATION — FRE 408 Calderwood & Harkness LLP — Matter No. 1039-00001

APPENDIX B

AGREED STATEMENT OF FACTS

Appendix B to the Non-Prosecution Agreement between the United States Department of Justice, Antitrust Division, and Torchlight Mining Corp.

DOJ Reference No. ATR-SF-2024-00312

DRAFT — Prepared by Calderwood & Harkness LLP on behalf of Torchlight Mining Corp. — February 5, 2024

I. INTRODUCTION AND PURPOSE

1. This Agreed Statement of Facts ("Statement") is attached as Appendix B to the Non-Prosecution Agreement ("Agreement" or "NPA") dated as of May 6, 2024, between the United States of America, acting through the United States Department of Justice, Antitrust Division ("DOJ" or the "Government"), and Torchlight Mining Corp. ("TMC" or "Torchlight"), a corporation organized under the Canada Business Corporations Act.

2. The purpose of this Statement is to set forth the factual basis upon which the Agreement is entered into by the parties. TMC accepts and stipulates to the accuracy of the facts set forth herein for purposes of the Agreement. This Statement reflects the joint understanding of the DOJ and TMC regarding the relevant factual circumstances that form the basis of the NPA and the undertakings of TMC contained therein.

3. This Statement does not constitute a complete recitation of all facts known to the parties, whether derived from the DOJ's investigation, the grand jury proceedings, TMC's internal investigation, or any other source. Rather, this Statement is limited to those facts that are sufficient to establish the basis for the Agreement, including the nature and scope of the conduct at issue, the parties and individuals involved, the affected commerce, the cooperation and remediation undertaken by TMC, and the monetary payment to be made by TMC under the Agreement.

4. As set forth in Section VIII of the Agreement, in the event that TMC materially breaches the NPA during the term thereof, the DOJ may use the admissions and stipulations contained in this Statement in any subsequent criminal prosecution of TMC, in any proceeding before any court or tribunal, and in any other forum, without limitation, subject only to the provisions of the Agreement governing dispute resolution over the existence of a material breach.

II. THE PARTIES AND RELEVANT ENTITIES

A. Torchlight Mining Corp.

5. Torchlight Mining Corp. ("TMC" or "Torchlight") is a corporation organized and existing under the Canada Business Corporations Act, CBCA Corporation No. 7841526-1. TMC's registered office is located at 200 Bay Street, Suite 3400, Toronto, Ontario M5J 2J2, Canada.

6. TMC is a publicly traded corporation. Its common shares are listed and traded on the Toronto Stock Exchange under the ticker symbol "TSX: TRCL" and on the New York Stock Exchange under the ticker symbol "NYSE: TMC." As a dual-listed issuer, TMC is subject to the regulatory requirements of both Canadian provincial securities regulators and the United States Securities and Exchange Commission.

7. For its fiscal year ended December 31, 2021 ("FY 2021"), TMC reported consolidated revenue of approximately CAD 4.27 billion (approximately USD 3.38 billion, based on the average exchange rate for the reporting period), and earnings before interest, taxes, depreciation, and amortization ("EBITDA") of approximately CAD 812 million.

8. TMC is a diversified mining company that operates fourteen (14) mines across Canada, the United States, Brazil, and Australia, as well as six (6) downstream chemical-processing facilities. TMC's operations span a range of mineral products, including base metals, precious metals, industrial minerals, and specialty mineral concentrates.

9. TMC's wholly owned U.S. subsidiary is Torchlight Mining (U.S.) Inc. ("TMC-US"), a corporation organized and existing under the laws of the State of Nevada, Entity No. NV20160438721, with its principal office located at 8750 West Sahara Avenue, Suite 210, Reno, Nevada 89117. TMC-US's Federal Employer Identification Number is 83-2947106. TMC-US serves as the operating entity for TMC's U.S.-based mining operations and downstream activities.

10. Within TMC's corporate structure, the U.S. Specialty Minerals Division (the "Division") is the business unit responsible for the extraction, processing, and sale of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. industrial and chemical-manufacturing customers. In FY 2021, the U.S. Specialty Minerals Division generated approximately USD 687 million in revenue, representing approximately twenty percent (20%) of TMC's consolidated revenue. The Division was at the center of the conduct described in this Statement.

11. During the period relevant to this Statement, TMC's senior leadership included: Søren Dalmqvist, Chief Executive Officer; Priya Anand, General Counsel; Richard Fong, Chief Financial Officer; and Margaret Caldwell, Chair of the Board of Directors.

B. Ridgecrest Minerals Inc.

12. Ridgecrest Minerals Inc. ("Ridgecrest") is a corporation organized and existing under the laws of the State of Delaware, with its principal office and headquarters located at 1700 Lincoln Street, Suite 4200, Denver, Colorado 80203.

13. Ridgecrest is the second-largest North American producer of high-purity feldspar and industrial talc. For its fiscal year ended December 31, 2021, Ridgecrest reported total revenue of approximately USD 1.92 billion. Ridgecrest's products are sold to industrial and chemical-manufacturing customers throughout the United States and internationally.

14. Ridgecrest is a portfolio company of Marlowe Asset Management Peak Capital Partners LP ("Marlowe Asset Management Peak"), a private equity fund organized under the laws of the State of Delaware. Marlowe Asset Management Peak acquired a controlling interest in Ridgecrest in approximately 2013 and has maintained that interest throughout the period relevant to this Statement.

15. During the period relevant to this Statement, Ridgecrest's senior leadership included: Brian Novotny, Chief Executive Officer; and Carl Edgerton, Vice President of Sales. As described further in Section IV below, Edgerton has been identified as a key participant in the conduct described herein.

C. Pinnacle Earth Resources Ltd.

16. Pinnacle Earth Resources Ltd. ("Pinnacle") is a corporation organized and existing under the laws of the Province of Ontario, Canada, with its principal office and headquarters located at 85 Elm Street West, Suite 600, Sudbury, Ontario P3C 1T3, Canada. Pinnacle's U.S. operations are headquartered at 222 South Main Street, Suite 1500, Salt Lake City, Utah 84101.

17. Pinnacle is among the top five North American producers of rare-earth concentrates and specialty industrial minerals. For its fiscal year ended December 31, 2021, Pinnacle reported total revenue of approximately CAD 1.45 billion (approximately USD 1.15 billion, based on the average exchange rate for the reporting period). Pinnacle's products are sold to industrial and chemical-manufacturing customers located in the United States, Canada, and other markets worldwide.

18. During the period relevant to this Statement, Pinnacle's senior leadership included: Douglas Harlowe, Chief Executive Officer; and Kevin Tsang, Senior Vice President of Commercial Operations. As described further in Section IV below, Tsang has been identified as a key participant in the conduct described herein. Tsang departed Pinnacle in approximately early 2022.

D. Cascade Chemical Supply Co.

19. Cascade Chemical Supply Co. ("Cascade") is a corporation organized and existing under the laws of the State of Washington, with its principal office and headquarters located at 901 West Riverside Avenue, Suite 300, Spokane, Washington 99201.

20. Cascade is a downstream distributor and processor of specialty minerals, including high-purity feldspar, industrial talc, and rare-earth concentrates. Cascade purchases these minerals from producers, including TMC, Ridgecrest, and Pinnacle, and processes and resells them to end-use customers in the United States.

21. On or about September 15, 2021, Cascade entered into a cooperation agreement with the DOJ. Pursuant to that agreement, Cascade provided the DOJ with documents and testimony that triggered the broader investigation into the specialty-minerals sector, as further described in Section VIII of this Statement.

22. During the period relevant to this Statement, Cascade's president was Leonard Massey.

E. North American Specialty Minerals Council (NASMC)

23. The North American Specialty Minerals Council ("NASMC") is a trade association organized as a tax-exempt entity under Section 501(c)(6) of the Internal Revenue Code. NASMC is headquartered at 2300 Wilson Boulevard, Suite 400, Arlington, Virginia 22201.

24. NASMC's mission includes promoting the interests of the specialty minerals industry in North America, facilitating industry dialogue, and publishing pricing benchmarks and market data for specialty minerals. NASMC organizes and hosts quarterly industry conferences at locations throughout the United States, which are attended by representatives of mining companies, distributors, processors, and end-use customers in the specialty minerals sector.

25. As described further in Section V of this Statement, several of the meetings and communications relevant to the conduct at issue occurred on the margins of NASMC quarterly conferences. NASMC itself is not alleged to have participated in, endorsed, or been aware of the unlawful conduct described herein.

III. THE RELEVANT PRODUCTS AND MARKETS

A. Products at Issue

26. The products at the center of the conduct described in this Statement are the following three categories of specialty mineral products:

(a) High-purity feldspar: a group of rock-forming tectosilicate minerals used extensively in the manufacture of ceramics, glass, specialty coatings, and related industrial applications. High-purity feldspar is sold in bulk quantities to U.S. industrial and chemical-manufacturing customers, who use it as a key feedstock or component in their production processes.

(b) Industrial talc: a hydrous magnesium silicate mineral used in the manufacture of paper, plastics, paint, ceramics, rubber, and pharmaceutical products. Industrial talc is sold in processed and graded form to U.S. industrial and chemical-manufacturing customers across a wide range of end-use applications.

(c) Rare-earth concentrates: mineral concentrates containing one or more rare-earth elements (e.g., cerium, lanthanum, neodymium, praseodymium), used in the manufacture of electronics, permanent magnets, catalysts, advanced-materials components, and other high-technology applications. Rare-earth concentrates are sold to U.S. industrial and chemical-manufacturing customers, including defense and aerospace contractors and electronics manufacturers.

B. The Affected Market

27. The relevant market encompasses sales of high-purity feldspar, industrial talc, and rare-earth concentrates to industrial and chemical-manufacturing customers located in the United States. TMC, Ridgecrest, and Pinnacle are among the largest suppliers of these products to U.S. customers, and each made substantial sales in interstate and international commerce during the period relevant to this Statement.

28. The conduct described herein affected interstate and international commerce in and into the United States within the meaning of the Sherman Antitrust Act, 15 U.S.C. § 1. The products at issue were extracted, processed, and shipped across state and national boundaries, and were sold to customers located in multiple states throughout the United States. Payments for the products at issue crossed state lines, and the pricing, supply, and distribution of these products had a direct, substantial, and reasonably foreseeable effect on U.S. commerce.

IV. THE RELEVANT INDIVIDUALS

A. Gavin Holt (TMC)

29. Gavin Holt ("Holt") served as Vice President, U.S. Specialty Minerals Sales, Torchlight Mining Corp. from approximately 2016 through September 30, 2021. In that capacity, Holt led TMC's commercial pricing function for the U.S. Specialty Minerals Division. Holt reported to the Division's Senior Vice President and had direct authority over the Division's pricing strategies, customer-relationship management, and bid preparation for large-volume supply contracts.

30. Holt resigned from TMC effective September 30, 2021, approximately four months before the commencement of the DOJ's grand jury investigation described in Section VIII below. TMC's internal investigation has not identified evidence that Holt's resignation was prompted by knowledge of an impending government investigation, although the timing of his departure has been noted by the parties.

31. As described further in Section V below, Holt was the individual most directly involved in the pricing communications with counterparts at Ridgecrest and Pinnacle that form the basis of the conduct described in this Statement. Holt initiated and maintained regular contact with his counterparts through in-person meetings, encrypted messaging, and telephone calls over the course of the conspiracy period.

32. The NPA does not cover Gavin Holt individually. The DOJ expressly reserves the right to pursue criminal charges against Holt separately, and nothing in this Statement or the Agreement is intended to limit the DOJ's ability to do so.

B. Carl Edgerton (Ridgecrest)

33. Carl Edgerton ("Edgerton") has served as Vice President of Sales, Ridgecrest Minerals Inc., during the period relevant to this Statement and continues to hold that position. In that capacity, Edgerton is responsible for Ridgecrest's sales operations, customer-relationship management, and pricing for specialty mineral products, including sales to U.S. industrial and chemical-manufacturing customers.

34. Edgerton was Holt's principal counterpart at Ridgecrest in the conduct described in this Statement. Edgerton participated in in-person meetings, encrypted messaging communications, and telephone calls with Holt throughout the conspiracy period.

C. Kevin Tsang (Pinnacle)

35. Kevin Tsang ("Tsang") served as Senior Vice President of Commercial Operations, Pinnacle Earth Resources Ltd., during the period relevant to this Statement. Tsang departed Pinnacle in approximately early 2022. In his role at Pinnacle, Tsang was responsible for overseeing Pinnacle's commercial operations, including the pricing and sale of rare-earth concentrates and specialty industrial minerals to U.S. customers.

36. Tsang was Holt's principal counterpart at Pinnacle in the conduct described in this Statement. Tsang participated in in-person meetings, encrypted messaging communications, and telephone calls with Holt throughout the conspiracy period.

D. Sandra Chu (TMC)

37. Sandra Chu ("Chu") served as Director, Pricing Analytics, U.S. Specialty Minerals Division, Torchlight Mining Corp. during the period relevant to this Statement and continues to hold that position. In that capacity, Chu was responsible for maintaining and updating TMC's published price lists for specialty mineral products, implementing pricing adjustments as directed by her superiors, and conducting pricing analysis to support the Division's commercial operations.

38. Chu reported directly to Gavin Holt during the relevant period. As described further in Section V below, Chu received pricing-adjustment instructions from Holt on multiple occasions and implemented those instructions through the Division's pricing system. Based on the evidence reviewed to date, including documents produced in the internal investigation and Chu's voluntary proffer session with the DOJ on March 10, 2023, there is no direct evidence that Chu knew or had reason to know that the pricing adjustments she implemented resulted from communications between Holt and his counterparts at Ridgecrest and Pinnacle.

E. Thomas Eriksen (TMC)

39. Thomas Eriksen ("Eriksen") served as Regional Sales Manager (Western Region), U.S. Specialty Minerals Division, Torchlight Mining Corp. during the period relevant to this Statement and continues to hold that position. In that capacity, Eriksen was responsible for managing customer relationships and sales activities for the Division's Western Region, which encompassed customers located in states west of the Mississippi River.

40. Eriksen attended certain NASMC quarterly conferences during the relevant period where side meetings between Holt, Edgerton, and Tsang are known to have occurred. However, the evidence of Eriksen's direct participation in the conduct described in this Statement is ambiguous. Eriksen has denied knowledge of any agreements between TMC and its competitors regarding pricing, customer allocation, or bid coordination. Eriksen participated in a voluntary proffer session with the DOJ on April 22, 2023.

V. THE CONSPIRACY

A. Overview and Duration

41. From approximately January 2017 through at least August 2021, a period of approximately four (4) years and eight (8) months (the "conspiracy period"), senior commercial personnel at TMC, Ridgecrest, and Pinnacle engaged in an unlawful agreement to fix prices, allocate customers, and rig bids for the sale of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. industrial and chemical-manufacturing customers.

42. The agreement constituted an unreasonable restraint of trade and commerce in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. The conspiracy was carried out through a series of in-person meetings, encrypted electronic communications, and telephone calls among the principal participants, as described in further detail below.

43. The objective of the conspiracy was to suppress and eliminate competition among TMC, Ridgecrest, and Pinnacle in the sale of the products described in Section III above, to artificially inflate and maintain prices at supracompetitive levels, to allocate customers among the participants so as to reduce competitive pressure, and to coordinate bids for large-volume supply contracts in order to predetermine the outcome of purportedly competitive bidding processes.

B. Means and Methods of the Conspiracy

1. NASMC Conference Meetings.

44. Throughout the conspiracy period, Holt (TMC), Edgerton (Ridgecrest), and Tsang (Pinnacle) met in person on the margins of NASMC quarterly industry conferences. These side meetings were not part of the official NASMC conference agenda and were not sanctioned, organized, or facilitated by NASMC or its staff. Rather, the participants used the occasion of NASMC conferences—which brought together representatives from across the specialty minerals industry—as a convenient pretext to meet discreetly and discuss competitively sensitive matters without attracting undue attention.

45. Based on the evidence reviewed to date, these side meetings occurred at NASMC conferences held in, among other locations, Arlington, Virginia; Scottsdale, Arizona; and Orlando, Florida, during the period from approximately 2017 through 2021. Evidence indicates that side meetings took place at no fewer than eight (8) NASMC conferences during the conspiracy period, though the precise number may be higher.

46. During these meetings, the participants discussed and agreed upon pricing levels for high-purity feldspar, industrial talc, and rare-earth concentrates to be sold to U.S. customers. The participants also allocated specific customer accounts among themselves, with each participant agreeing to refrain from competing aggressively for customers assigned to another participant. In addition, the participants coordinated bids for large-volume supply contracts, agreeing in advance on which company would submit the winning bid, the price level of the winning bid, and the price levels of the complementary (losing) bids to be submitted by the other participants.

47. Thomas Eriksen (TMC) attended four (4) NASMC conferences during the conspiracy period at which such side meetings are believed to have occurred. However, as noted in Section IV.E above, the evidence of Eriksen's direct participation in the agreements reached during these side meetings is ambiguous. Eriksen has denied any knowledge of the agreements, and no documentary evidence directly linking Eriksen to the substance of the agreements has been identified. The parties acknowledge this ambiguity in the evidentiary record.

2. VaultChat Encrypted Messaging Communications.

48. In addition to in-person meetings, Holt, Edgerton, and Tsang communicated extensively through an encrypted messaging application known as "VaultChat" throughout the conspiracy period. VaultChat is a commercial encrypted-messaging platform that allows users to exchange text messages, images, and files with end-to-end encryption and configurable message-deletion settings. The participants used VaultChat as their primary channel for ongoing communications regarding pricing, customer allocation, and bid coordination because it provided a degree of security and confidentiality not available through corporate email or other standard communication channels.

49. The earliest documented VaultChat exchange between Holt and Edgerton occurred on or about March 14, 2017. Communications between Holt and Tsang through VaultChat commenced shortly thereafter. The participants continued to use VaultChat as a regular channel of communication through at least July 2021.

50. In total, at least thirty-seven (37) documented VaultChat exchanges and related communications between Holt and his counterparts (Edgerton and Tsang, individually and in group messages) have been identified through the DOJ's investigation and TMC's internal investigation. These communications occurred between approximately March 2017 and July 2021 and were recovered from device forensics, backup data, and related sources.

51. The content of these VaultChat communications included, among other things:

(a) the sharing of confidential, competitively sensitive pricing information, including current and planned price levels for high-purity feldspar, industrial talc, and rare-earth concentrates;

(b) agreements on price increases and the specific timing of their implementation, including coordinated announcements of price increases to customers;

(c) the division of customer accounts among the three companies, including agreements to refrain from soliciting or competing for specified accounts;

(d) the coordination of bid levels for large-volume supply contracts, including the designation of which company would submit the winning bid for particular contracts and the agreed-upon price level for that bid; and

(e) discussions of market conditions, customer demand, and supply constraints, shared for the purpose of facilitating and maintaining the agreements described herein.

3. Telephone Calls.

52. In addition to the NASMC conference side meetings and VaultChat messaging communications described above, the participants occasionally communicated by telephone to discuss pricing, customer-allocation, and bid-coordination matters. These telephone calls supplemented the other channels of communication and were used on an ad hoc basis to address time-sensitive matters, clarify agreements previously reached, or resolve disputes among the participants regarding customer assignments or bidding strategy. The precise number and dates of all such telephone calls have not been established; however, references to telephone conversations appear in certain VaultChat messages and in documents produced during the investigation.

C. Implementation of the Conspiracy

1. Price-Fixing.

53. Based on the agreements reached through the NASMC conference meetings, VaultChat communications, and telephone calls described above, Holt directed the implementation of agreed-upon pricing through TMC's U.S. Specialty Minerals Division. Holt was the decision-maker with respect to the Division's pricing for high-purity feldspar, industrial talc, and rare-earth concentrates, and he exercised that authority to ensure that TMC's pricing was consistent with the agreements reached with Edgerton (Ridgecrest) and Tsang (Pinnacle).

54. Specifically, Holt instructed Sandra Chu (Director, Pricing Analytics) to adjust TMC's published price lists on at least twelve (12) occasions during the conspiracy period. These adjustments correlated in timing, direction, and magnitude with price movements announced by Ridgecrest and Pinnacle during the same period, a pattern consistent with the implementation of coordinated pricing.

55. Chu implemented these pricing-adjustment instructions through the Division's internal pricing system in the ordinary course of her duties. As noted above, based on the evidence reviewed to date, there is no direct evidence that Chu was aware that the price adjustments she implemented resulted from communications between Holt and his counterparts at Ridgecrest and Pinnacle, or that the adjustments were part of a coordinated pricing scheme.

2. Customer Allocation.

56. The participants agreed to allocate certain customer accounts among themselves, with each company refraining from competing aggressively for customers assigned to another participant. Under these arrangements, each participant understood which major customer accounts were "assigned" to it and which were assigned to the other participants. The effect of this allocation was to reduce competitive pressure on each participant with respect to its assigned customers, enabling the participants to maintain higher prices and more favorable contract terms than would have prevailed in a competitive market.

57. Evidence of the customer-allocation arrangements includes references in VaultChat messages to specific customer names and agreements regarding which participant would "hold" or "keep" particular accounts, as well as patterns in the participants' sales data consistent with a reduction in head-to-head competition for allocated customers during the conspiracy period.

3. Bid-Rigging.

58. The participants coordinated bids for large-volume supply contracts issued by U.S. industrial and chemical-manufacturing customers. In advance of a customer's solicitation of bids, the participants would agree—through VaultChat messages, NASMC conference side meetings, or telephone calls—on which company would submit the winning bid and at what price level. The designated winner would submit a bid at the agreed-upon price, while the other participants would submit complementary (non-competitive) bids at higher price levels designed to create the appearance of genuine competition while ensuring that the designated winner prevailed.

59. This practice of bid-rigging was employed on multiple occasions during the conspiracy period in connection with supply contracts for high-purity feldspar, industrial talc, and rare-earth concentrates. The bid-rigging resulted in customers paying higher prices for these products than they would have paid in a competitive bidding environment.

VI. AFFECTED COMMERCE

A. Total Affected Commerce

60. The total volume of affected commerce—defined as the aggregate sum of U.S. sales of high-purity feldspar, industrial talc, and rare-earth concentrates by TMC, Ridgecrest, and Pinnacle to U.S. industrial and chemical-manufacturing customers during the conspiracy period (approximately January 2017 through August 2021)—is estimated at approximately USD 1.34 billion. This figure is based on sales data produced by TMC in response to the grand jury subpoenas and on information provided by the DOJ regarding the sales of Ridgecrest and Pinnacle during the same period.

B. TMC's Share of Affected Commerce

61. TMC's share of the total affected commerce during the conspiracy period is estimated at approximately USD 478 million. This figure represents TMC's aggregate U.S. sales of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. industrial and chemical-manufacturing customers from approximately January 2017 through August 2021.

62. TMC's share of total affected commerce represents approximately 35.7% of the estimated total affected commerce (i.e., USD 478 million divided by USD 1.34 billion equals approximately 35.7%). This calculation is relevant to the determination of the monetary payment to be made by TMC under the Agreement, as further described in Section X below.

VII. KNOWLEDGE AND AUTHORIZATION WITHIN TMC

A. C-Suite and Board Knowledge

63. TMC, through its outside counsel Calderwood & Harkness LLP, conducted an extensive internal investigation into the conduct described in this Statement. That investigation encompassed the review of approximately 555,000 documents (approximately 3.2 million pages) and interviews of twenty-three (23) current and former TMC employees, including members of TMC's senior management and personnel within the U.S. Specialty Minerals Division.

64. Based on the results of that internal investigation, no evidence has been identified that TMC's Chief Executive Officer (Søren Dalmqvist), General Counsel (Priya Anand), Chief Financial Officer (Richard Fong), Board Chair (Margaret Caldwell), or any other member of TMC's Board of Directors had knowledge of, authorized, directed, or condoned the conduct described herein. The evidence reviewed to date indicates that the conduct was initiated and carried out by Gavin Holt, acting within his authority over the Division's pricing function, without the knowledge or approval of TMC's C-suite executives or Board of Directors.

B. Compliance Program Deficiencies

65. TMC adopted an initial antitrust compliance policy in approximately 2014. That policy set forth general principles regarding compliance with applicable antitrust and competition laws, including prohibitions on price-fixing, market allocation, and bid-rigging. However, the compliance program as implemented during the conspiracy period was inadequate in several material respects.

66. Specifically, the deficiencies identified through TMC's internal investigation include the following:

(a) No annual antitrust training had been conducted for commercial personnel in the U.S. Specialty Minerals Division, or for TMC employees generally, since approximately 2018. Prior to 2018, antitrust training was conducted on an irregular basis and was not mandatory for all commercial personnel.

(b) No monitoring of trade-association interactions was in place during the conspiracy period. TMC had no policies or procedures requiring pre-approval of employee attendance at trade-association events, no protocols for documenting interactions with competitors at such events, and no post-event reporting or review process.

(c) No systematic audit of competitor contacts was performed during the conspiracy period. TMC did not maintain a log of employee contacts with competitors, did not require employees to report competitor contacts, and did not conduct periodic reviews or audits to identify potentially improper competitor interactions.

67. These deficiencies in TMC's antitrust compliance program created an environment in which the conduct described herein could occur over a period of more than four years without detection by TMC management, compliance personnel, or the Board of Directors. TMC acknowledges that these deficiencies were material and contributed to the duration and scope of the conspiracy.

VIII. DISCOVERY OF THE CONDUCT AND COOPERATION

A. Cascade Chemical Supply Co. Cooperation

68. On or about September 15, 2021, Cascade Chemical Supply Co. ("Cascade") entered into a cooperation agreement with the DOJ, Antitrust Division. Pursuant to that agreement, Cascade provided documents and testimony to the DOJ regarding certain pricing practices in the specialty-minerals sector. The information and evidence provided by Cascade triggered the DOJ's broader investigation into potential antitrust violations in the sale of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. customers, which ultimately led to the grand jury investigation described below.

B. Grand Jury Investigation

69. On February 10, 2022, the DOJ formally opened a federal grand jury investigation, Grand Jury No. GJ-22-0194, in the United States District Court for the Northern District of California, San Francisco Division. The grand jury investigation focused on potential violations of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, in connection with the sale of specialty mineral products to U.S. customers.

70. On February 14, 2022, TMC received Grand Jury Subpoena Duces Tecum No. GJ-22-0194-SD-003, requiring the production of documents relating to TMC's pricing, sales, customer relationships, and competitor contacts in the U.S. Specialty Minerals Division. TMC subsequently received a second Grand Jury Subpoena Duces Tecum, No. GJ-22-0194-SD-007, seeking additional categories of documents.

71. On May 20, 2022, TMC received a target letter from the DOJ, Antitrust Division, advising TMC that it was a target of the grand jury investigation.

C. TMC's Cooperation

72. Upon receipt of the initial grand jury subpoena, TMC promptly engaged Calderwood & Harkness LLP as outside counsel to represent TMC in connection with the investigation. Calderwood & Harkness LLP was formally retained on February 18, 2022. TMC commenced immediate cooperation with the DOJ and has maintained that cooperation throughout the investigation.

73. On March 1, 2022, TMC issued a company-wide litigation hold, directing the preservation of all documents and electronically stored information potentially relevant to the DOJ's investigation, including email communications, instant messages, documents stored on shared drives and individual workstations, mobile-device data, and hard-copy files.

74. In response to the two grand jury subpoenas (GJ-22-0194-SD-003 and GJ-22-0194-SD-007), TMC produced approximately 555,000 documents, comprising approximately 3.2 million pages. These productions were made on a rolling basis and included email correspondence, pricing data, sales records, customer files, internal memoranda, board materials, compliance records, and data extracted from employee mobile devices and messaging platforms.

75. TMC conducted an extensive internal investigation under the direction of Calderwood & Harkness LLP. The internal investigation encompassed the review and analysis of the approximately 555,000 documents described above, as well as interviews of twenty-three (23) current and former TMC employees. The individuals interviewed included senior executives, Division management, sales and pricing personnel, compliance staff, and administrative personnel with knowledge potentially relevant to the investigation.

76. TMC made current and former employees available for voluntary proffer sessions with the DOJ, Antitrust Division. These proffer sessions included, among others:

(a) Sandra Chu, Director of Pricing Analytics, who participated in a proffer session on March 10, 2023; and

(b) Thomas Eriksen, Regional Sales Manager (Western Region), who participated in a proffer session on April 22, 2023.

77. On February 15, 2023, TMC submitted a comprehensive written cooperation proffer to the DOJ, summarizing the findings of TMC's internal investigation and providing the DOJ with a detailed factual narrative of the conduct at issue, the individuals involved, and the timeline of events. TMC made supplemental submissions to the DOJ thereafter, updating and expanding upon the initial proffer as additional information became available.

D. Gavin Holt's Separate Posture

78. Gavin Holt retained personal counsel, Patrick Dunleavy of Briarcliff Law Group PLLC, on or about June 10, 2022, following the commencement of the grand jury investigation.

79. On June 14, 2022, Holt appeared before the grand jury and asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Holt declined to testify before the grand jury on that basis.

80. Holt also declined to participate in TMC's internal investigation, on the advice of his personal counsel. TMC was unable to conduct an interview of Holt, and Holt did not provide a voluntary proffer or any other form of cooperation to TMC or to the DOJ.

81. As noted in Section IV.A above, the NPA does not extend coverage to Holt individually. The DOJ expressly reserves the right to pursue criminal charges against Holt in his individual capacity, and nothing in this Statement or the Agreement is intended to limit the DOJ's ability to do so.

IX. REMEDIATION

A. Enhanced Antitrust Compliance Program

82. In connection with the NPA, TMC has designed and committed to implement an Enhanced Antitrust Compliance Program (the "Compliance Program"), the details of which are set forth in Appendix A to the Agreement. The Compliance Program is designed to prevent, detect, and remediate antitrust violations and to address the compliance deficiencies identified in Section VII.B above.

83. Key elements of the Enhanced Antitrust Compliance Program include:

(a) Mandatory Annual Antitrust Training: All commercial personnel, including sales, pricing, marketing, and business-development employees, as well as senior executives and members of the Board of Directors, will be required to complete annual antitrust compliance training. Training will cover the fundamentals of antitrust law, the prohibition on price-fixing, customer allocation, and bid-rigging, and the specific risks associated with competitor contacts and trade-association interactions.

(b) Appointment of an Independent Chief Compliance Officer: TMC will appoint an independent Chief Compliance Officer ("CCO") with direct reporting authority to the Board of Directors and dotted-line reporting to the CEO. The CCO will have the authority, resources, and independence necessary to oversee the Compliance Program effectively.

(c) Annual Compliance Certifications: TMC's CEO and General Counsel will be required to provide annual written certifications to the Board of Directors confirming that, to the best of their knowledge, TMC is in compliance with the Compliance Program and applicable antitrust laws.

(d) Competitor-Contact Protocols: TMC will implement and enforce written protocols governing contacts between TMC employees and employees of competitors, including requirements for pre-approval of substantive competitor contacts, contemporaneous documentation of the substance of any such contacts, and prompt reporting of any potentially improper communications.

(e) Trade-Association Interaction Policies and Monitoring: TMC will adopt and implement written policies governing employee participation in trade-association events and activities, including requirements for pre-approval of attendance, advance review of agendas, post-event reporting, and periodic compliance reviews.

(f) Periodic Compliance Auditing: TMC will conduct periodic audits of the Compliance Program, including reviews of competitor-contact logs, trade-association interaction reports, pricing decisions, and related records, to assess the effectiveness of the Compliance Program and identify any areas for improvement.

B. Compliance Monitor

84. TMC has agreed to retain an independent compliance monitor for a period of two (2) years from the date of execution of the NPA. The monitorship period will run from May 6, 2024 through May 6, 2026. The purpose of the monitorship is to provide independent oversight of TMC's implementation and operation of the Enhanced Antitrust Compliance Program and to report to the DOJ on TMC's compliance efforts.

85. The independent compliance monitor, Meridian Compliance Partners LLC (principal contact: Claudia Ferraro), has been pre-approved by the DOJ. The monitor will have access to TMC's records, personnel, and facilities as necessary to fulfill the monitor's responsibilities, and will submit periodic reports to the DOJ and to TMC's Board of Directors, as further described in the Agreement.

C. Personnel Actions

86. As noted above, Gavin Holt resigned from TMC effective September 30, 2021, prior to the commencement of the DOJ's grand jury investigation and prior to the initiation of TMC's internal investigation. Holt's departure from TMC was voluntary and was not the result of any disciplinary action by TMC, as the conduct described herein had not yet been discovered by TMC at the time of Holt's resignation.

87. Following the conclusion of the internal investigation, TMC has taken appropriate personnel measures with respect to individuals within the U.S. Specialty Minerals Division to ensure that the conduct described herein does not recur. These measures have included organizational restructuring within the Division, enhanced oversight of pricing and sales functions, and other steps consistent with TMC's obligations under the Agreement and the Enhanced Antitrust Compliance Program.

X. MONETARY PAYMENT

88. As set forth in the Agreement, TMC has agreed to make a monetary payment of USD 48,500,000 (forty-eight million five hundred thousand United States dollars) to the United States Treasury in connection with the conduct described in this Statement.

89. The basis for the monetary payment is the DOJ's standard methodology for determining monetary penalties in antitrust non-prosecution agreements. The starting point under that methodology is twenty percent (20%) of the respondent's affected commerce during the conspiracy period. Applying this methodology to TMC's affected commerce of approximately USD 478 million yields a starting figure of approximately USD 95,600,000 (i.e., $478,000,000 × 20% = $95,600,000).

90. The starting figure of approximately USD 95.6 million was reduced by approximately 49.2% to reflect cooperation credit and remediation credit earned by TMC. The cooperation credit reflects TMC's prompt, thorough, and continuing cooperation with the DOJ's investigation, including the production of documents, the conduct of an extensive internal investigation, the submission of a detailed cooperation proffer, and the making available of employees for voluntary proffer sessions. The remediation credit reflects TMC's design and implementation of the Enhanced Antitrust Compliance Program, its agreement to retain an independent compliance monitor, and the personnel and organizational measures taken to prevent recurrence of the conduct. After application of these credits, the resulting monetary payment is USD 48,500,000.

91. Payment of the USD 48,500,000 monetary penalty is due within sixty (60) days of execution of the Agreement, i.e., by July 5, 2024. The terms of payment, including wire-transfer instructions and any applicable interest on late payments, are set forth in the Agreement.

XI. STIPULATIONS AND RESERVATIONS

92. TMC accepts and stipulates to the accuracy of the facts set forth in this Statement for the purposes of the Agreement. This stipulation is made voluntarily and with full knowledge of its terms and consequences, and upon the advice of counsel.

93. This Statement does not constitute an admission of criminal liability by TMC. TMC's acceptance of and stipulation to the facts set forth herein is made solely for the purposes of the Agreement and is subject to the terms and conditions thereof. In the event the Agreement is terminated other than by reason of a material breach by TMC, TMC's stipulations under this Statement shall be of no further force or effect, and no admission made herein may be used against TMC in any proceeding.

94. The facts set forth in this Statement may be used by the DOJ in any prosecution of TMC in the event of a material breach of the Agreement by TMC, as provided in Section VIII of the Agreement. In the event of a material breach, the DOJ may introduce this Statement, or any portion thereof, in any criminal, civil, or administrative proceeding against TMC without limitation.

95. The DOJ reserves the right to pursue criminal charges against Gavin Holt individually, and this Statement may be used by the DOJ in connection with any such proceedings against Holt. Nothing in this Statement or the Agreement is intended to limit the DOJ's ability to investigate or prosecute Holt or to require any additional showing by the DOJ before such charges may be brought.

96. Nothing in this Statement is intended to limit the DOJ's ability to investigate or prosecute any other entity or individual not covered by the Agreement, including but not limited to Ridgecrest Minerals Inc., Pinnacle Earth Resources Ltd., Carl Edgerton, Kevin Tsang, or any other person or entity that may have participated in or been aware of the conduct described herein.

XII. SIGNATURES

The undersigned represent that they are authorized to execute this Agreed Statement of Facts on behalf of their respective principals, and that the facts set forth herein are true and accurate to the best of their knowledge, information, and belief.

FOR TORCHLIGHT MINING CORP.:

TORCHLIGHT MINING CORP.

By: ________

Name: Søren Dalmqvist

Title: Chief Executive Officer

Date: ________

FOR THE UNITED STATES DEPARTMENT OF JUSTICE:

UNITED STATES DEPARTMENT OF JUSTICE ANTITRUST DIVISION

By: ________

Name: Julia Stafford-Hayes

Title: Deputy Assistant Attorney General

Date: ________

Note: This is the initial Calderwood & Harkness LLP draft dated February 5, 2024. Signature lines are placeholders reflecting anticipated signatories. Final language, including the content of this Agreed Statement of Facts and the identity of the signatories, is subject to negotiation and agreement with the Department of Justice, Antitrust Division. This draft is circulated for internal review and discussion purposes only and does not represent a final or agreed document.

DRAFT — February 5, 2024 — Calderwood & Harkness LLP — C&H Matter No. 1039-00001

PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT — SETTLEMENT COMMUNICATION — FRE 408

PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT — SETTLEMENT COMMUNICATION — FRE 408 Calderwood & Harkness LLP — Matter No. 1039-00001
APPENDIX B
AGREED STATEMENT OF FACTS
Appendix B to the Non-Prosecution Agreement between the United States Department of Justice, Antitrust Division, and Torchlight Mining Corp.
DOJ Reference No. ATR-SF-2024-00312
DRAFT — Prepared by Calderwood & Harkness LLP on behalf of Torchlight Mining Corp. — February 5, 2024
I. INTRODUCTION AND PURPOSE
1.  This Agreed Statement of Facts ("Statement") is attached as Appendix B to the Non-Prosecution Agreement ("Agreement" or "NPA") dated as of May 6, 2024, between the United States of America, acting through the United States Department of Justice, Antitrust Division ("DOJ" or the "Government"), and Torchlight Mining Corp. ("TMC" or "Torchlight"), a corporation organized under the Canada Business Corporations Act.
2.  The purpose of this Statement is to set forth the factual basis upon which the Agreement is entered into by the parties. TMC accepts and stipulates to the accuracy of the facts set forth herein for purposes of the Agreement. This Statement reflects the joint understanding of the DOJ and TMC regarding the relevant factual circumstances that form the basis of the NPA and the undertakings of TMC contained therein.
3.  This Statement does not constitute a complete recitation of all facts known to the parties, whether derived from the DOJ's investigation, the grand jury proceedings, TMC's internal investigation, or any other source. Rather, this Statement is limited to those facts that are sufficient to establish the basis for the Agreement, including the nature and scope of the conduct at issue, the parties and individuals involved, the affected commerce, the cooperation and remediation undertaken by TMC, and the monetary payment to be made by TMC under the Agreement.
4.  As set forth in Section VIII of the Agreement, in the event that TMC materially breaches the NPA during the term thereof, the DOJ may use the admissions and stipulations contained in this Statement in any subsequent criminal prosecution of TMC, in any proceeding before any court or tribunal, and in any other forum, without limitation, subject only to the provisions of the Agreement governing dispute resolution over the existence of a material breach.
II. THE PARTIES AND RELEVANT ENTITIES
A. Torchlight Mining Corp.
5.  Torchlight Mining Corp. ("TMC" or "Torchlight") is a corporation organized and existing under the Canada Business Corporations Act, CBCA Corporation No. 7841526-1. TMC's registered office is located at 200 Bay Street, Suite 3400, Toronto, Ontario M5J 2J2, Canada.
6.  TMC is a publicly traded corporation. Its common shares are listed and traded on the Toronto Stock Exchange under the ticker symbol "TSX: TRCL" and on the New York Stock Exchange under the ticker symbol "NYSE: TMC." As a dual-listed issuer, TMC is subject to the regulatory requirements of both Canadian provincial securities regulators and the United States Securities and Exchange Commission.
7.  For its fiscal year ended December 31, 2021 ("FY 2021"), TMC reported consolidated revenue of approximately CAD 4.27 billion (approximately USD 3.38 billion, based on the average exchange rate for the reporting period), and earnings before interest, taxes, depreciation, and amortization ("EBITDA") of approximately CAD 812 million.
8.  TMC is a diversified mining company that operates fourteen (14) mines across Canada, the United States, Brazil, and Australia, as well as six (6) downstream chemical-processing facilities. TMC's operations span a range of mineral products, including base metals, precious metals, industrial minerals, and specialty mineral concentrates.
9.  TMC's wholly owned U.S. subsidiary is Torchlight Mining (U.S.) Inc. ("TMC-US"), a corporation organized and existing under the laws of the State of Nevada, Entity No. NV20160438721, with its principal office located at 8750 West Sahara Avenue, Suite 210, Reno, Nevada 89117. TMC-US's Federal Employer Identification Number is 83-2947106. TMC-US serves as the operating entity for TMC's U.S.-based mining operations and downstream activities.
10.  Within TMC's corporate structure, the U.S. Specialty Minerals Division (the "Division") is the business unit responsible for the extraction, processing, and sale of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. industrial and chemical-manufacturing customers. In FY 2021, the U.S. Specialty Minerals Division generated approximately USD 687 million in revenue, representing approximately twenty percent (20%) of TMC's consolidated revenue. The Division was at the center of the conduct described in this Statement.
11.  During the period relevant to this Statement, TMC's senior leadership included: Søren Dalmqvist, Chief Executive Officer; Priya Anand, General Counsel; Richard Fong, Chief Financial Officer; and Margaret Caldwell, Chair of the Board of Directors.
B. Ridgecrest Minerals Inc.
12.  Ridgecrest Minerals Inc. ("Ridgecrest") is a corporation organized and existing under the laws of the State of Delaware, with its principal office and headquarters located at 1700 Lincoln Street, Suite 4200, Denver, Colorado 80203.
13.  Ridgecrest is the second-largest North American producer of high-purity feldspar and industrial talc. For its fiscal year ended December 31, 2021, Ridgecrest reported total revenue of approximately USD 1.92 billion. Ridgecrest's products are sold to industrial and chemical-manufacturing customers throughout the United States and internationally.
14.  Ridgecrest is a portfolio company of Marlowe Asset Management Peak Capital Partners LP ("Marlowe Asset Management Peak"), a private equity fund organized under the laws of the State of Delaware. Marlowe Asset Management Peak acquired a controlling interest in Ridgecrest in approximately 2013 and has maintained that interest throughout the period relevant to this Statement.
15.  During the period relevant to this Statement, Ridgecrest's senior leadership included: Brian Novotny, Chief Executive Officer; and Carl Edgerton, Vice President of Sales. As described further in Section IV below, Edgerton has been identified as a key participant in the conduct described herein.
C. Pinnacle Earth Resources Ltd.
16.  Pinnacle Earth Resources Ltd. ("Pinnacle") is a corporation organized and existing under the laws of the Province of Ontario, Canada, with its principal office and headquarters located at 85 Elm Street West, Suite 600, Sudbury, Ontario P3C 1T3, Canada. Pinnacle's U.S. operations are headquartered at 222 South Main Street, Suite 1500, Salt Lake City, Utah 84101.
17.  Pinnacle is among the top five North American producers of rare-earth concentrates and specialty industrial minerals. For its fiscal year ended December 31, 2021, Pinnacle reported total revenue of approximately CAD 1.45 billion (approximately USD 1.15 billion, based on the average exchange rate for the reporting period). Pinnacle's products are sold to industrial and chemical-manufacturing customers located in the United States, Canada, and other markets worldwide.
18.  During the period relevant to this Statement, Pinnacle's senior leadership included: Douglas Harlowe, Chief Executive Officer; and Kevin Tsang, Senior Vice President of Commercial Operations. As described further in Section IV below, Tsang has been identified as a key participant in the conduct described herein. Tsang departed Pinnacle in approximately early 2022.
D. Cascade Chemical Supply Co.
19.  Cascade Chemical Supply Co. ("Cascade") is a corporation organized and existing under the laws of the State of Washington, with its principal office and headquarters located at 901 West Riverside Avenue, Suite 300, Spokane, Washington 99201.
20.  Cascade is a downstream distributor and processor of specialty minerals, including high-purity feldspar, industrial talc, and rare-earth concentrates. Cascade purchases these minerals from producers, including TMC, Ridgecrest, and Pinnacle, and processes and resells them to end-use customers in the United States.
21.  On or about September 15, 2021, Cascade entered into a cooperation agreement with the DOJ. Pursuant to that agreement, Cascade provided the DOJ with documents and testimony that triggered the broader investigation into the specialty-minerals sector, as further described in Section VIII of this Statement.
22.  During the period relevant to this Statement, Cascade's president was Leonard Massey.
E. North American Specialty Minerals Council (NASMC)
23.  The North American Specialty Minerals Council ("NASMC") is a trade association organized as a tax-exempt entity under Section 501(c)(6) of the Internal Revenue Code. NASMC is headquartered at 2300 Wilson Boulevard, Suite 400, Arlington, Virginia 22201.
24.  NASMC's mission includes promoting the interests of the specialty minerals industry in North America, facilitating industry dialogue, and publishing pricing benchmarks and market data for specialty minerals. NASMC organizes and hosts quarterly industry conferences at locations throughout the United States, which are attended by representatives of mining companies, distributors, processors, and end-use customers in the specialty minerals sector.
25.  As described further in Section V of this Statement, several of the meetings and communications relevant to the conduct at issue occurred on the margins of NASMC quarterly conferences. NASMC itself is not alleged to have participated in, endorsed, or been aware of the unlawful conduct described herein.
III. THE RELEVANT PRODUCTS AND MARKETS
A. Products at Issue
26.  The products at the center of the conduct described in this Statement are the following three categories of specialty mineral products:
(a) High-purity feldspar: a group of rock-forming tectosilicate minerals used extensively in the manufacture of ceramics, glass, specialty coatings, and related industrial applications. High-purity feldspar is sold in bulk quantities to U.S. industrial and chemical-manufacturing customers, who use it as a key feedstock or component in their production processes.
(b) Industrial talc: a hydrous magnesium silicate mineral used in the manufacture of paper, plastics, paint, ceramics, rubber, and pharmaceutical products. Industrial talc is sold in processed and graded form to U.S. industrial and chemical-manufacturing customers across a wide range of end-use applications.
(c) Rare-earth concentrates: mineral concentrates containing one or more rare-earth elements (e.g., cerium, lanthanum, neodymium, praseodymium), used in the manufacture of electronics, permanent magnets, catalysts, advanced-materials components, and other high-technology applications. Rare-earth concentrates are sold to U.S. industrial and chemical-manufacturing customers, including defense and aerospace contractors and electronics manufacturers.
B. The Affected Market
27.  The relevant market encompasses sales of high-purity feldspar, industrial talc, and rare-earth concentrates to industrial and chemical-manufacturing customers located in the United States. TMC, Ridgecrest, and Pinnacle are among the largest suppliers of these products to U.S. customers, and each made substantial sales in interstate and international commerce during the period relevant to this Statement.
28.  The conduct described herein affected interstate and international commerce in and into the United States within the meaning of the Sherman Antitrust Act, 15 U.S.C. § 1. The products at issue were extracted, processed, and shipped across state and national boundaries, and were sold to customers located in multiple states throughout the United States. Payments for the products at issue crossed state lines, and the pricing, supply, and distribution of these products had a direct, substantial, and reasonably foreseeable effect on U.S. commerce.
IV. THE RELEVANT INDIVIDUALS
A. Gavin Holt (TMC)
29.  Gavin Holt ("Holt") served as Vice President, U.S. Specialty Minerals Sales, Torchlight Mining Corp. from approximately 2016 through September 30, 2021. In that capacity, Holt led TMC's commercial pricing function for the U.S. Specialty Minerals Division. Holt reported to the Division's Senior Vice President and had direct authority over the Division's pricing strategies, customer-relationship management, and bid preparation for large-volume supply contracts.
30.  Holt resigned from TMC effective September 30, 2021, approximately four months before the commencement of the DOJ's grand jury investigation described in Section VIII below. TMC's internal investigation has not identified evidence that Holt's resignation was prompted by knowledge of an impending government investigation, although the timing of his departure has been noted by the parties.
31.  As described further in Section V below, Holt was the individual most directly involved in the pricing communications with counterparts at Ridgecrest and Pinnacle that form the basis of the conduct described in this Statement. Holt initiated and maintained regular contact with his counterparts through in-person meetings, encrypted messaging, and telephone calls over the course of the conspiracy period.
32.  The NPA does not cover Gavin Holt individually. The DOJ expressly reserves the right to pursue criminal charges against Holt separately, and nothing in this Statement or the Agreement is intended to limit the DOJ's ability to do so.
B. Carl Edgerton (Ridgecrest)
33.  Carl Edgerton ("Edgerton") has served as Vice President of Sales, Ridgecrest Minerals Inc., during the period relevant to this Statement and continues to hold that position. In that capacity, Edgerton is responsible for Ridgecrest's sales operations, customer-relationship management, and pricing for specialty mineral products, including sales to U.S. industrial and chemical-manufacturing customers.
34.  Edgerton was Holt's principal counterpart at Ridgecrest in the conduct described in this Statement. Edgerton participated in in-person meetings, encrypted messaging communications, and telephone calls with Holt throughout the conspiracy period.
C. Kevin Tsang (Pinnacle)
35.  Kevin Tsang ("Tsang") served as Senior Vice President of Commercial Operations, Pinnacle Earth Resources Ltd., during the period relevant to this Statement. Tsang departed Pinnacle in approximately early 2022. In his role at Pinnacle, Tsang was responsible for overseeing Pinnacle's commercial operations, including the pricing and sale of rare-earth concentrates and specialty industrial minerals to U.S. customers.
36.  Tsang was Holt's principal counterpart at Pinnacle in the conduct described in this Statement. Tsang participated in in-person meetings, encrypted messaging communications, and telephone calls with Holt throughout the conspiracy period.
D. Sandra Chu (TMC)
37.  Sandra Chu ("Chu") served as Director, Pricing Analytics, U.S. Specialty Minerals Division, Torchlight Mining Corp. during the period relevant to this Statement and continues to hold that position. In that capacity, Chu was responsible for maintaining and updating TMC's published price lists for specialty mineral products, implementing pricing adjustments as directed by her superiors, and conducting pricing analysis to support the Division's commercial operations.
38.  Chu reported directly to Gavin Holt during the relevant period. As described further in Section V below, Chu received pricing-adjustment instructions from Holt on multiple occasions and implemented those instructions through the Division's pricing system. Based on the evidence reviewed to date, including documents produced in the internal investigation and Chu's voluntary proffer session with the DOJ on March 10, 2023, there is no direct evidence that Chu knew or had reason to know that the pricing adjustments she implemented resulted from communications between Holt and his counterparts at Ridgecrest and Pinnacle.
E. Thomas Eriksen (TMC)
39.  Thomas Eriksen ("Eriksen") served as Regional Sales Manager (Western Region), U.S. Specialty Minerals Division, Torchlight Mining Corp. during the period relevant to this Statement and continues to hold that position. In that capacity, Eriksen was responsible for managing customer relationships and sales activities for the Division's Western Region, which encompassed customers located in states west of the Mississippi River.
40.  Eriksen attended certain NASMC quarterly conferences during the relevant period where side meetings between Holt, Edgerton, and Tsang are known to have occurred. However, the evidence of Eriksen's direct participation in the conduct described in this Statement is ambiguous. Eriksen has denied knowledge of any agreements between TMC and its competitors regarding pricing, customer allocation, or bid coordination. Eriksen participated in a voluntary proffer session with the DOJ on April 22, 2023.
V. THE CONSPIRACY
A. Overview and Duration
41.  From approximately January 2017 through at least August 2021, a period of approximately four (4) years and eight (8) months (the "conspiracy period"), senior commercial personnel at TMC, Ridgecrest, and Pinnacle engaged in an unlawful agreement to fix prices, allocate customers, and rig bids for the sale of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. industrial and chemical-manufacturing customers.
42.  The agreement constituted an unreasonable restraint of trade and commerce in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. The conspiracy was carried out through a series of in-person meetings, encrypted electronic communications, and telephone calls among the principal participants, as described in further detail below.
43.  The objective of the conspiracy was to suppress and eliminate competition among TMC, Ridgecrest, and Pinnacle in the sale of the products described in Section III above, to artificially inflate and maintain prices at supracompetitive levels, to allocate customers among the participants so as to reduce competitive pressure, and to coordinate bids for large-volume supply contracts in order to predetermine the outcome of purportedly competitive bidding processes.
B. Means and Methods of the Conspiracy
1. NASMC Conference Meetings.  
44.  Throughout the conspiracy period, Holt (TMC), Edgerton (Ridgecrest), and Tsang (Pinnacle) met in person on the margins of NASMC quarterly industry conferences. These side meetings were not part of the official NASMC conference agenda and were not sanctioned, organized, or facilitated by NASMC or its staff. Rather, the participants used the occasion of NASMC conferences—which brought together representatives from across the specialty minerals industry—as a convenient pretext to meet discreetly and discuss competitively sensitive matters without attracting undue attention.
45.  Based on the evidence reviewed to date, these side meetings occurred at NASMC conferences held in, among other locations, Arlington, Virginia; Scottsdale, Arizona; and Orlando, Florida, during the period from approximately 2017 through 2021. Evidence indicates that side meetings took place at no fewer than eight (8) NASMC conferences during the conspiracy period, though the precise number may be higher.
46.  During these meetings, the participants discussed and agreed upon pricing levels for high-purity feldspar, industrial talc, and rare-earth concentrates to be sold to U.S. customers. The participants also allocated specific customer accounts among themselves, with each participant agreeing to refrain from competing aggressively for customers assigned to another participant. In addition, the participants coordinated bids for large-volume supply contracts, agreeing in advance on which company would submit the winning bid, the price level of the winning bid, and the price levels of the complementary (losing) bids to be submitted by the other participants.
47.  Thomas Eriksen (TMC) attended four (4) NASMC conferences during the conspiracy period at which such side meetings are believed to have occurred. However, as noted in Section IV.E above, the evidence of Eriksen's direct participation in the agreements reached during these side meetings is ambiguous. Eriksen has denied any knowledge of the agreements, and no documentary evidence directly linking Eriksen to the substance of the agreements has been identified. The parties acknowledge this ambiguity in the evidentiary record.
2. VaultChat Encrypted Messaging Communications.  
48.  In addition to in-person meetings, Holt, Edgerton, and Tsang communicated extensively through an encrypted messaging application known as "VaultChat" throughout the conspiracy period. VaultChat is a commercial encrypted-messaging platform that allows users to exchange text messages, images, and files with end-to-end encryption and configurable message-deletion settings. The participants used VaultChat as their primary channel for ongoing communications regarding pricing, customer allocation, and bid coordination because it provided a degree of security and confidentiality not available through corporate email or other standard communication channels.
49.  The earliest documented VaultChat exchange between Holt and Edgerton occurred on or about March 14, 2017. Communications between Holt and Tsang through VaultChat commenced shortly thereafter. The participants continued to use VaultChat as a regular channel of communication through at least July 2021.
50.  In total, at least thirty-seven (37) documented VaultChat exchanges and related communications between Holt and his counterparts (Edgerton and Tsang, individually and in group messages) have been identified through the DOJ's investigation and TMC's internal investigation. These communications occurred between approximately March 2017 and July 2021 and were recovered from device forensics, backup data, and related sources.
51.  The content of these VaultChat communications included, among other things:
(a) the sharing of confidential, competitively sensitive pricing information, including current and planned price levels for high-purity feldspar, industrial talc, and rare-earth concentrates;
(b) agreements on price increases and the specific timing of their implementation, including coordinated announcements of price increases to customers;
(c) the division of customer accounts among the three companies, including agreements to refrain from soliciting or competing for specified accounts;
(d) the coordination of bid levels for large-volume supply contracts, including the designation of which company would submit the winning bid for particular contracts and the agreed-upon price level for that bid; and
(e) discussions of market conditions, customer demand, and supply constraints, shared for the purpose of facilitating and maintaining the agreements described herein.
3. Telephone Calls.  
52.  In addition to the NASMC conference side meetings and VaultChat messaging communications described above, the participants occasionally communicated by telephone to discuss pricing, customer-allocation, and bid-coordination matters. These telephone calls supplemented the other channels of communication and were used on an ad hoc basis to address time-sensitive matters, clarify agreements previously reached, or resolve disputes among the participants regarding customer assignments or bidding strategy. The precise number and dates of all such telephone calls have not been established; however, references to telephone conversations appear in certain VaultChat messages and in documents produced during the investigation.
C. Implementation of the Conspiracy
1. Price-Fixing.  
53.  Based on the agreements reached through the NASMC conference meetings, VaultChat communications, and telephone calls described above, Holt directed the implementation of agreed-upon pricing through TMC's U.S. Specialty Minerals Division. Holt was the decision-maker with respect to the Division's pricing for high-purity feldspar, industrial talc, and rare-earth concentrates, and he exercised that authority to ensure that TMC's pricing was consistent with the agreements reached with Edgerton (Ridgecrest) and Tsang (Pinnacle).
54.  Specifically, Holt instructed Sandra Chu (Director, Pricing Analytics) to adjust TMC's published price lists on at least twelve (12) occasions during the conspiracy period. These adjustments correlated in timing, direction, and magnitude with price movements announced by Ridgecrest and Pinnacle during the same period, a pattern consistent with the implementation of coordinated pricing.
55.  Chu implemented these pricing-adjustment instructions through the Division's internal pricing system in the ordinary course of her duties. As noted above, based on the evidence reviewed to date, there is no direct evidence that Chu was aware that the price adjustments she implemented resulted from communications between Holt and his counterparts at Ridgecrest and Pinnacle, or that the adjustments were part of a coordinated pricing scheme.
2. Customer Allocation.  
56.  The participants agreed to allocate certain customer accounts among themselves, with each company refraining from competing aggressively for customers assigned to another participant. Under these arrangements, each participant understood which major customer accounts were "assigned" to it and which were assigned to the other participants. The effect of this allocation was to reduce competitive pressure on each participant with respect to its assigned customers, enabling the participants to maintain higher prices and more favorable contract terms than would have prevailed in a competitive market.
57.  Evidence of the customer-allocation arrangements includes references in VaultChat messages to specific customer names and agreements regarding which participant would "hold" or "keep" particular accounts, as well as patterns in the participants' sales data consistent with a reduction in head-to-head competition for allocated customers during the conspiracy period.
3. Bid-Rigging.  
58.  The participants coordinated bids for large-volume supply contracts issued by U.S. industrial and chemical-manufacturing customers. In advance of a customer's solicitation of bids, the participants would agree—through VaultChat messages, NASMC conference side meetings, or telephone calls—on which company would submit the winning bid and at what price level. The designated winner would submit a bid at the agreed-upon price, while the other participants would submit complementary (non-competitive) bids at higher price levels designed to create the appearance of genuine competition while ensuring that the designated winner prevailed.
59.  This practice of bid-rigging was employed on multiple occasions during the conspiracy period in connection with supply contracts for high-purity feldspar, industrial talc, and rare-earth concentrates. The bid-rigging resulted in customers paying higher prices for these products than they would have paid in a competitive bidding environment.
VI. AFFECTED COMMERCE
A. Total Affected Commerce
60.  The total volume of affected commerce—defined as the aggregate sum of U.S. sales of high-purity feldspar, industrial talc, and rare-earth concentrates by TMC, Ridgecrest, and Pinnacle to U.S. industrial and chemical-manufacturing customers during the conspiracy period (approximately January 2017 through August 2021)—is estimated at approximately USD 1.34 billion. This figure is based on sales data produced by TMC in response to the grand jury subpoenas and on information provided by the DOJ regarding the sales of Ridgecrest and Pinnacle during the same period.
B. TMC's Share of Affected Commerce
61.  TMC's share of the total affected commerce during the conspiracy period is estimated at approximately USD 478 million. This figure represents TMC's aggregate U.S. sales of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. industrial and chemical-manufacturing customers from approximately January 2017 through August 2021.
62.  TMC's share of total affected commerce represents approximately 35.7% of the estimated total affected commerce (i.e., USD 478 million divided by USD 1.34 billion equals approximately 35.7%). This calculation is relevant to the determination of the monetary payment to be made by TMC under the Agreement, as further described in Section X below.
VII. KNOWLEDGE AND AUTHORIZATION WITHIN TMC
A. C-Suite and Board Knowledge
63.  TMC, through its outside counsel Calderwood & Harkness LLP, conducted an extensive internal investigation into the conduct described in this Statement. That investigation encompassed the review of approximately 555,000 documents (approximately 3.2 million pages) and interviews of twenty-three (23) current and former TMC employees, including members of TMC's senior management and personnel within the U.S. Specialty Minerals Division.
64.  Based on the results of that internal investigation, no evidence has been identified that TMC's Chief Executive Officer (Søren Dalmqvist), General Counsel (Priya Anand), Chief Financial Officer (Richard Fong), Board Chair (Margaret Caldwell), or any other member of TMC's Board of Directors had knowledge of, authorized, directed, or condoned the conduct described herein. The evidence reviewed to date indicates that the conduct was initiated and carried out by Gavin Holt, acting within his authority over the Division's pricing function, without the knowledge or approval of TMC's C-suite executives or Board of Directors.
B. Compliance Program Deficiencies
65.  TMC adopted an initial antitrust compliance policy in approximately 2014. That policy set forth general principles regarding compliance with applicable antitrust and competition laws, including prohibitions on price-fixing, market allocation, and bid-rigging. However, the compliance program as implemented during the conspiracy period was inadequate in several material respects.
66.  Specifically, the deficiencies identified through TMC's internal investigation include the following:
(a) No annual antitrust training had been conducted for commercial personnel in the U.S. Specialty Minerals Division, or for TMC employees generally, since approximately 2018. Prior to 2018, antitrust training was conducted on an irregular basis and was not mandatory for all commercial personnel.
(b) No monitoring of trade-association interactions was in place during the conspiracy period. TMC had no policies or procedures requiring pre-approval of employee attendance at trade-association events, no protocols for documenting interactions with competitors at such events, and no post-event reporting or review process.
(c) No systematic audit of competitor contacts was performed during the conspiracy period. TMC did not maintain a log of employee contacts with competitors, did not require employees to report competitor contacts, and did not conduct periodic reviews or audits to identify potentially improper competitor interactions.
67.  These deficiencies in TMC's antitrust compliance program created an environment in which the conduct described herein could occur over a period of more than four years without detection by TMC management, compliance personnel, or the Board of Directors. TMC acknowledges that these deficiencies were material and contributed to the duration and scope of the conspiracy.
VIII. DISCOVERY OF THE CONDUCT AND COOPERATION
A. Cascade Chemical Supply Co. Cooperation
68.  On or about September 15, 2021, Cascade Chemical Supply Co. ("Cascade") entered into a cooperation agreement with the DOJ, Antitrust Division. Pursuant to that agreement, Cascade provided documents and testimony to the DOJ regarding certain pricing practices in the specialty-minerals sector. The information and evidence provided by Cascade triggered the DOJ's broader investigation into potential antitrust violations in the sale of high-purity feldspar, industrial talc, and rare-earth concentrates to U.S. customers, which ultimately led to the grand jury investigation described below.
B. Grand Jury Investigation
69.  On February 10, 2022, the DOJ formally opened a federal grand jury investigation, Grand Jury No. GJ-22-0194, in the United States District Court for the Northern District of California, San Francisco Division. The grand jury investigation focused on potential violations of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, in connection with the sale of specialty mineral products to U.S. customers.
70.  On February 14, 2022, TMC received Grand Jury Subpoena Duces Tecum No. GJ-22-0194-SD-003, requiring the production of documents relating to TMC's pricing, sales, customer relationships, and competitor contacts in the U.S. Specialty Minerals Division. TMC subsequently received a second Grand Jury Subpoena Duces Tecum, No. GJ-22-0194-SD-007, seeking additional categories of documents.
71.  On May 20, 2022, TMC received a target letter from the DOJ, Antitrust Division, advising TMC that it was a target of the grand jury investigation.
C. TMC's Cooperation
72.  Upon receipt of the initial grand jury subpoena, TMC promptly engaged Calderwood & Harkness LLP as outside counsel to represent TMC in connection with the investigation. Calderwood & Harkness LLP was formally retained on February 18, 2022. TMC commenced immediate cooperation with the DOJ and has maintained that cooperation throughout the investigation.
73.  On March 1, 2022, TMC issued a company-wide litigation hold, directing the preservation of all documents and electronically stored information potentially relevant to the DOJ's investigation, including email communications, instant messages, documents stored on shared drives and individual workstations, mobile-device data, and hard-copy files.
74.  In response to the two grand jury subpoenas (GJ-22-0194-SD-003 and GJ-22-0194-SD-007), TMC produced approximately 555,000 documents, comprising approximately 3.2 million pages. These productions were made on a rolling basis and included email correspondence, pricing data, sales records, customer files, internal memoranda, board materials, compliance records, and data extracted from employee mobile devices and messaging platforms.
75.  TMC conducted an extensive internal investigation under the direction of Calderwood & Harkness LLP. The internal investigation encompassed the review and analysis of the approximately 555,000 documents described above, as well as interviews of twenty-three (23) current and former TMC employees. The individuals interviewed included senior executives, Division management, sales and pricing personnel, compliance staff, and administrative personnel with knowledge potentially relevant to the investigation.
76.  TMC made current and former employees available for voluntary proffer sessions with the DOJ, Antitrust Division. These proffer sessions included, among others:
(a) Sandra Chu, Director of Pricing Analytics, who participated in a proffer session on March 10, 2023; and
(b) Thomas Eriksen, Regional Sales Manager (Western Region), who participated in a proffer session on April 22, 2023.
77.  On February 15, 2023, TMC submitted a comprehensive written cooperation proffer to the DOJ, summarizing the findings of TMC's internal investigation and providing the DOJ with a detailed factual narrative of the conduct at issue, the individuals involved, and the timeline of events. TMC made supplemental submissions to the DOJ thereafter, updating and expanding upon the initial proffer as additional information became available.
D. Gavin Holt's Separate Posture
78.  Gavin Holt retained personal counsel, Patrick Dunleavy of Briarcliff Law Group PLLC, on or about June 10, 2022, following the commencement of the grand jury investigation.
79.  On June 14, 2022, Holt appeared before the grand jury and asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Holt declined to testify before the grand jury on that basis.
80.  Holt also declined to participate in TMC's internal investigation, on the advice of his personal counsel. TMC was unable to conduct an interview of Holt, and Holt did not provide a voluntary proffer or any other form of cooperation to TMC or to the DOJ.
81.  As noted in Section IV.A above, the NPA does not extend coverage to Holt individually. The DOJ expressly reserves the right to pursue criminal charges against Holt in his individual capacity, and nothing in this Statement or the Agreement is intended to limit the DOJ's ability to do so.
IX. REMEDIATION
A. Enhanced Antitrust Compliance Program
82.  In connection with the NPA, TMC has designed and committed to implement an Enhanced Antitrust Compliance Program (the "Compliance Program"), the details of which are set forth in Appendix A to the Agreement. The Compliance Program is designed to prevent, detect, and remediate antitrust violations and to address the compliance deficiencies identified in Section VII.B above.
83.  Key elements of the Enhanced Antitrust Compliance Program include:
(a) Mandatory Annual Antitrust Training: All commercial personnel, including sales, pricing, marketing, and business-development employees, as well as senior executives and members of the Board of Directors, will be required to complete annual antitrust compliance training. Training will cover the fundamentals of antitrust law, the prohibition on price-fixing, customer allocation, and bid-rigging, and the specific risks associated with competitor contacts and trade-association interactions.
(b) Appointment of an Independent Chief Compliance Officer: TMC will appoint an independent Chief Compliance Officer ("CCO") with direct reporting authority to the Board of Directors and dotted-line reporting to the CEO. The CCO will have the authority, resources, and independence necessary to oversee the Compliance Program effectively.
(c) Annual Compliance Certifications: TMC's CEO and General Counsel will be required to provide annual written certifications to the Board of Directors confirming that, to the best of their knowledge, TMC is in compliance with the Compliance Program and applicable antitrust laws.
(d) Competitor-Contact Protocols: TMC will implement and enforce written protocols governing contacts between TMC employees and employees of competitors, including requirements for pre-approval of substantive competitor contacts, contemporaneous documentation of the substance of any such contacts, and prompt reporting of any potentially improper communications.
(e) Trade-Association Interaction Policies and Monitoring: TMC will adopt and implement written policies governing employee participation in trade-association events and activities, including requirements for pre-approval of attendance, advance review of agendas, post-event reporting, and periodic compliance reviews.
(f) Periodic Compliance Auditing: TMC will conduct periodic audits of the Compliance Program, including reviews of competitor-contact logs, trade-association interaction reports, pricing decisions, and related records, to assess the effectiveness of the Compliance Program and identify any areas for improvement.
B. Compliance Monitor
84.  TMC has agreed to retain an independent compliance monitor for a period of two (2) years from the date of execution of the NPA. The monitorship period will run from May 6, 2024 through May 6, 2026. The purpose of the monitorship is to provide independent oversight of TMC's implementation and operation of the Enhanced Antitrust Compliance Program and to report to the DOJ on TMC's compliance efforts.
85.  The independent compliance monitor, Meridian Compliance Partners LLC (principal contact: Claudia Ferraro), has been pre-approved by the DOJ. The monitor will have access to TMC's records, personnel, and facilities as necessary to fulfill the monitor's responsibilities, and will submit periodic reports to the DOJ and to TMC's Board of Directors, as further described in the Agreement.
C. Personnel Actions
86.  As noted above, Gavin Holt resigned from TMC effective September 30, 2021, prior to the commencement of the DOJ's grand jury investigation and prior to the initiation of TMC's internal investigation. Holt's departure from TMC was voluntary and was not the result of any disciplinary action by TMC, as the conduct described herein had not yet been discovered by TMC at the time of Holt's resignation.
87.  Following the conclusion of the internal investigation, TMC has taken appropriate personnel measures with respect to individuals within the U.S. Specialty Minerals Division to ensure that the conduct described herein does not recur. These measures have included organizational restructuring within the Division, enhanced oversight of pricing and sales functions, and other steps consistent with TMC's obligations under the Agreement and the Enhanced Antitrust Compliance Program.
X. MONETARY PAYMENT
88.  As set forth in the Agreement, TMC has agreed to make a monetary payment of USD 48,500,000 (forty-eight million five hundred thousand United States dollars) to the United States Treasury in connection with the conduct described in this Statement.
89.  The basis for the monetary payment is the DOJ's standard methodology for determining monetary penalties in antitrust non-prosecution agreements. The starting point under that methodology is twenty percent (20%) of the respondent's affected commerce during the conspiracy period. Applying this methodology to TMC's affected commerce of approximately USD 478 million yields a starting figure of approximately USD 95,600,000 (i.e., $478,000,000 × 20% = $95,600,000).
90.  The starting figure of approximately USD 95.6 million was reduced by approximately 49.2% to reflect cooperation credit and remediation credit earned by TMC. The cooperation credit reflects TMC's prompt, thorough, and continuing cooperation with the DOJ's investigation, including the production of documents, the conduct of an extensive internal investigation, the submission of a detailed cooperation proffer, and the making available of employees for voluntary proffer sessions. The remediation credit reflects TMC's design and implementation of the Enhanced Antitrust Compliance Program, its agreement to retain an independent compliance monitor, and the personnel and organizational measures taken to prevent recurrence of the conduct. After application of these credits, the resulting monetary payment is USD 48,500,000.
91.  Payment of the USD 48,500,000 monetary penalty is due within sixty (60) days of execution of the Agreement, i.e., by July 5, 2024. The terms of payment, including wire-transfer instructions and any applicable interest on late payments, are set forth in the Agreement.
XI. STIPULATIONS AND RESERVATIONS
92.  TMC accepts and stipulates to the accuracy of the facts set forth in this Statement for the purposes of the Agreement. This stipulation is made voluntarily and with full knowledge of its terms and consequences, and upon the advice of counsel.
93.  This Statement does not constitute an admission of criminal liability by TMC. TMC's acceptance of and stipulation to the facts set forth herein is made solely for the purposes of the Agreement and is subject to the terms and conditions thereof. In the event the Agreement is terminated other than by reason of a material breach by TMC, TMC's stipulations under this Statement shall be of no further force or effect, and no admission made herein may be used against TMC in any proceeding.
94.  The facts set forth in this Statement may be used by the DOJ in any prosecution of TMC in the event of a material breach of the Agreement by TMC, as provided in Section VIII of the Agreement. In the event of a material breach, the DOJ may introduce this Statement, or any portion thereof, in any criminal, civil, or administrative proceeding against TMC without limitation.
95.  The DOJ reserves the right to pursue criminal charges against Gavin Holt individually, and this Statement may be used by the DOJ in connection with any such proceedings against Holt. Nothing in this Statement or the Agreement is intended to limit the DOJ's ability to investigate or prosecute Holt or to require any additional showing by the DOJ before such charges may be brought.
96.  Nothing in this Statement is intended to limit the DOJ's ability to investigate or prosecute any other entity or individual not covered by the Agreement, including but not limited to Ridgecrest Minerals Inc., Pinnacle Earth Resources Ltd., Carl Edgerton, Kevin Tsang, or any other person or entity that may have participated in or been aware of the conduct described herein.
XII. SIGNATURES
The undersigned represent that they are authorized to execute this Agreed Statement of Facts on behalf of their respective principals, and that the facts set forth herein are true and accurate to the best of their knowledge, information, and belief.
FOR TORCHLIGHT MINING CORP.:
TORCHLIGHT MINING CORP.
By: ________
Name: Søren Dalmqvist
Title: Chief Executive Officer
Date: ________
FOR THE UNITED STATES DEPARTMENT OF JUSTICE:
UNITED STATES DEPARTMENT OF JUSTICE ANTITRUST DIVISION
By: ________
Name: Julia Stafford-Hayes
Title: Deputy Assistant Attorney General
Date: ________
Note: This is the initial Calderwood & Harkness LLP draft dated February 5, 2024. Signature lines are placeholders reflecting anticipated signatories. Final language, including the content of this Agreed Statement of Facts and the identity of the signatories, is subject to negotiation and agreement with the Department of Justice, Antitrust Division. This draft is circulated for internal review and discussion purposes only and does not represent a final or agreed document.
DRAFT — February 5, 2024 — Calderwood & Harkness LLP — C&H Matter No. 1039-00001
PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT — SETTLEMENT COMMUNICATION — FRE 408

APPENDIX B

AGREED STATEMENT OF FACTS

I. INTRODUCTION AND PURPOSE

II. THE PARTIES AND RELEVANT ENTITIES

III. THE RELEVANT PRODUCTS AND MARKETS

IV. THE RELEVANT INDIVIDUALS

V. THE CONSPIRACY

VI. AFFECTED COMMERCE

VII. KNOWLEDGE AND AUTHORIZATION WITHIN TMC

VIII. DISCOVERY OF THE CONDUCT AND COOPERATION

IX. REMEDIATION

X. MONETARY PAYMENT

XI. STIPULATIONS AND RESERVATIONS

XII. SIGNATURES

FOR TORCHLIGHT MINING CORP.:

TORCHLIGHT MINING CORP.

FOR THE UNITED STATES DEPARTMENT OF JUSTICE:

UNITED STATES DEPARTMENT OF JUSTICE ANTITRUST DIVISION

Record

Parties

Dates

Amounts