Government's Proposed Conclusions of Law

Dated: August 20, 2007

TABLE OF CONTENTS

I. INTRODUCTION

1. Third Circuit Directive
2. Standard and Burden of Proof

II. THE COURT'S ROLE AS FACT-FINDER

1. Witness Credibility and Weight of Evidence
2. Inferences

III. THE CONDITIONAL LENIENCY AGREEMENT

1. Construed According to Principles of Contract Law
2. Stolt's Required Performance Under the Conditional Agreement
   1. Prompt and effective action to terminate upon discovery
   2. Full, continuing and complete cooperation
3. Antitrust Division's Required Performance Under the Conditional Agreement
   1. Not to prosecute
   2. Right to verify
   3. Right to declare void and revoke conditional acceptance into Corporate
      Leniency Program
4. Conditional Agreement Did Not Grant Stolt Leniency
   1. Leniency to the date of the Agreement granted only if Stolt first strictly complied with its obligations
   2. If leniency granted, granted to date of certain legal withdrawal
5. Stolt's Directors, Officers and Employees
6. Integration Clause

IV. STOLT BREACHED THE AGREEMENT'S CONDITION
PRECEDENT OF PROMPT AND EFFECTIVE ACTION TO TERMINATE

1. The Anticompetitive Activity Being Reported: Worldwide Customer Allocation Scheme
2. The Date of Discovery: When O'Brien Found and Read the Jansen Memo in
   January 2002
3. Actions Stolt Took Were Not Prompt and Effective Action to Terminate Its
   Part in the Anticompetitive Activity
   1. Meaning of prompt and effective action to terminate
   2. Stolt failed to take prompt and effective action to terminate because
      Wingfield and Jansen continued to conspire
      1. Wingfield and Jansen continued to have conspiratorial meetings and discussions with Jo Tankers and Odfjell until November 2002
      2. Stolt's revised antitrust policy did not effectively terminate its participation in the conspiracy
   3. Stolt is responsible for the conspiratorial conduct of
      Wingfield and Jansen

V. STOLT BREACHED THE AGREEMENT'S COOPERATION PROVISION

VI. THE ANTITRUST DIVISION PROPERLY REVOKED THE AGREEMENT

1. Conditional Agreement Is Void upon Stolt's Breach
2. Stolt's Breach Was Material
3. Government Did Not Receive the Benefit of Its Bargain
4. Although Not Required, Defendants Received Sufficient Opportunity to Cure
5. Government Revoked the Conditional Agreement Because of
   Information It Learned Only after the Agreement was Signed

VII. NEITHER COOPERMAN NOR WINGFIELD IS ENTITLED TO LENIENCY

1. Cooperman and Wingfield Have No Rights as Third-Party Beneficiaries Because the Conditional Agreement Is Void
2. Cooperman and Wingfield Are Not Entitled to Leniency Because Stolt Failed to Cooperate Fully
3. Neither Cooperman nor Wingfield Can Claim Detrimental Reliance
4. Wingfield Independently Breached the Agreement By Failing to Cooperate Fully
   

VIII. CONCLUSION

TABLE OF AUTHORITIES

FEDERAL CASES

American Tobacco Co. v. United States, 147 F.2d 93 (6th Cir. 1944)

Bein v. Heath, 47 U.S. 228 (1848)

Bourjaily v. United States, 483 U.S. 171 (1987)

Calvert v. Doctor Pet Ctr, Inc., No. Civ. A. 93-4956, 1995 WL 541826,
at *1 (E.D. Pa. Sept. 11, 1995)

Central Pa. Teamsters Pension Fund v. McCormick Dray Line, Inc.,
85 F.3d 1098 (3d Cir. 1996)

Champion Papers, Inc. v. N.L.R.B., 393 F.2d 388 (6th Cir. 1968)

CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc., 381 F.3d 131 (3d Cir. 2004)

Drysdale v. Woerth, 153 F. Supp. 2d 678 (E.D. Pa. 2001)

Government of Virgin Islands v. Testamark, 570 F.2d. 1162 (3d Cir. 1978)

H.C. Lawton, Jr., Inc. v. Truck Drivers, 755 F.2d 324 (3d Cir. 1985)

Hoffa v. United States, 385 U.S. 293 (1966)

Hyde v. United States, 225 U.S. 347 (1912)

In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir. 2004)

In Re New Valley Corp., 181 F.3d 517 (3d Cir. 1999)

In re Tops Appliance City, Inc., 372 F.3d 510 (3d Cir. 2004)

Johnson v. United States, 291 F.2d 150 (8th Cir. 1961)

Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253 (10th Cir. 2002)

Livingstone v. North Belle Vernon Borough, 91 F.3d 515 (3d Cir. 1996)

McClanahan v. United States, 230 F.2d 919 (5th Cir. 1956)

Monsanto Co. v. Rohm & Haas, Co., 456 F.2d 592 (3d Cir. 1972)

New Wrinkle, Inc. v. John L. Armitage & Co., 238 F.2d 753 (3d Cir. 1956)

Pinkerton v. United States, 328 U.S. 640 (1946)

Piraino v. Int'l Orientation Resources, Inc., 137 F.3d 987 (7th Cir. 1998)

Portuondo v. Agard, 529 U.S. 61 (2000)

Reagan v. United States, 157 U.S. 301 (1895)

Rock v. Nat'l R.R. Passenger Corp., No. Civ. A. 04-1434, 2005
WL 1899503, at *8 (E.D. Pa. Aug. 9, 2005)

Safarik v. United States, 62 F.2d 892 (8th Cir. 1933)

Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir. 1985)

Stolt-Nielsen S.A. v. United States, 442 F.3d 177 (3d Cir. 2006)

United States v. American Radiator & Standard Sanitary Corp.,
433 F.2d 174 (3d Cir. 1970)

United States v. Antar, 53 F.3d 568 (3d Cir. 1995)

United States v. Armour & Co., 168 F.2d 342 (3d Cir. 1948)

United States v. Automated Med. Labs., Inc., 770 F.2d 399 (4th Cir. 1985)

United States v. Baird, 218 F.3d 221 (3d Cir. 2000)

United States v. Baldacchino, 762 F.2d 170 (1st Cir. 1985)

United States v. Boone, 279 F.3d 163 (3d Cir. 2002)

United States v. Butch, 256 F.3d 171 (3d Cir. 2001)

United States v. Carrara, 49 F.3d 105 (3d Cir. 1995)

United States v. Castaneda, 162 F.3d 832 (5th Cir. 1998)

United States v. Chaney, 446 F.2d 571 (3d Cir. 1971)

United States v. Davis, 393 F.3d 540 (5th Cir. 2004)

United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971)

United States v. DePeri, 778 F.2d 963 (3d Cir. 1985)

United States v. Drozdowski, 313 F.3d 819 (3d Cir. 2002)

United States v. Flores, 454 F.3d 149 (3d Cir. 2006)

United States v. Flores, 975 F. Supp. 731 (E.D. Pa. 1997)

United States v. Floyd, 428 F.3d 513 (3d Cir. 2005)

United States v. Gerant, 995 F.2d 505 (4th Cir. 1993)

United States v. Gillen, 599 F.2d 541 (3d Cir. 1979)

United States v. Gonzales-Sanchez, 825 F.2d 572 (1st Cir. 1987)

United States v. Gregory, 245 F.3d 160 (2d Cir. 2001)

United States v. Hilton Hotels Corp., 467 F.2d 1000 (9th Cir. 1972)

United States v. Hoffenberg, 908 F. Supp. 1265 (S.D.N.Y. 1995)

United States v. Hudson, 717 F.2d 1211 (8th Cir. 1983)

United States v. Isabella, 582 F. Supp. 1534 (E.D. Pa. 1984)

United States v. Jackson, 257 F.2d 41 (3d Cir. 1958)

United States v. Jackson, No. 93-57-4, 1995 WL 27161, at *2 (E.D. Pa. Jan. 20, 1995)

United States v. Jones, 404 F. Supp. 529 (E.D. Pa. 1975)

United States v. Keller, 512 F.2d 182 (3d Cir. 1975)

United States v. Kirk, 584 F.2d 773 (6th Cir. 1978)

United States v. Kushner, 305 F.3d 194 (3d Cir. 2002)

United States v. Leahy, 445 F.3d 634 (3d Cir. 2006)

United States v. Lopez, 944 F.2d 33 (1st Cir. 1991)

United States v. Martin, 525 F.2d 703 (2d Cir. 1975)

United States v. McCarthy, 54 F.3d 51 (2d Cir. 1995)

United States v. Perez, 280 F.3d 318 (3d Cir. 2002)

United States v. Reardon, 787 F.2d 512 (10th Cir. 1986)

United States v. Roman, 121 F.3d 136 (3d Cir. 1997)

United States v. Rothrock, 806 F.2d 318 (1st Cir. 1986)

United States v. Schilling, 142 F.3d 388 (7th Cir. 1998)

United States v. Skalsky, 616 F. Supp. 676 (D.N.J. 1985)

United States v. Skalsky, 621 F. Supp. 528 (D.N.J. 1985)

United States v. Skalsky, 857 F.2d 172 (3d Cir. 1988)

United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940)

United States v. Steele, 685 F.2d 793 (3d Cir. 1982)

United States v. Trenton Potteries Co., 273 U.S. 392 (1927)

United States v. Turner, 319 F.3d 716 (5th Cir. 2003)

United States v. U.S. Gypsum Co., 600 F.2d 414 (3d Cir. 1979)

United States v. Universal Rehab. Serv., Inc., 205 F.3d 657 (3d Cir. 2000)

United States v. Verrusio, 803 F.2d 885 (7th Cir. 1986)

United States v. W.F. Brinkley & Son Constr. Co., Inc., 783 F.2d 1157 (4th Cir. 1986)

United States v. Wasserson, 418 F.3d 225 (3d Cir. 2005)

United States v. Wells, M.D., 211 F.3d 988 (6th Cir. 2000)

United States v. Wise, 370 U.S. 405 (1962)

Williamson v. United States, 512 U.S. 594 (1994)

FEDERAL STATUTES

15 U.S.C. § 1 1, 21

OTHER AUTHORITIES

Fed. R. Evid. Rule 105

U.S.S.G. § 1B1.8

U.S.S.G. § 2R1.1

U.S.S.G. § 8B2.1(b)(3)

U.S.S.G. § 8C2.5(f)(3)(A)

13 Samuel Williston & Richard A. Lord
A Treatise on the Law of Contracts § 37:23 (4th ed. 2000)

American Heritage Dictionary of the English Language (4^th ed. 2000)

GOVERNMENT'S PROPOSED CONCLUSIONS OF LAW

I.

A. Third Circuit Directive

3. In this proceeding, the Court has followed the Court of Appeals directive that:

   if appellees assert the Agreement as a defense after they are indicted, the District Court must consider the Agreement anew and determine the date on which Stolt-Nielsen discovered its anticompetitive conduct, the Company's and Wingfield's subsequent actions, and whether, in light of those actions, Stolt-Nielsen complied with its obligation under the Agreement to take "prompt and effective action to terminate its part in the anticompetitive activity being reported upon discovery of the activity."

Stolt-Nielsen S.A. v. United States, 442 F.3d 177, 187 n.7 (3d Cir.), cert. denied, 127 S. Ct. 494 (2006).

4. When a judgment is reversed, it is deprived of all conclusive effect. Id. (citing Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1266 (10th Cir. 2002)). Thus, the Court gives no weight to Judge Savage's findings and conclusions in the prior civil proceeding (which were based on a two-witness hearing), to which defendants refer throughout their proposed findings of fact and conclusions of law.
5. The Court held an evidentiary hearing and received testimony from numerous witnesses, voluminous documentary evidence and heard argument of counsel. The Court is now prepared to answer the three critical questions posed by the Third Circuit: (1) when Stolt discovered its anticompetitive conduct, (2) what actions, if any, Stolt took and (3) whether Stolt's actions satisfied the express terms of the Conditional Agreement to take "prompt and effective action to terminate its part in the anticompetitive activity being reported upon discovery of the activity." (Stolt-Nielsen, 442 F.3d 177 at 181; see also GX-1 ¶ 1(a)).
6. The Court is also prepared to determine whether Stolt provided the Government with full, continuing and complete cooperation as required by the Conditional Agreement. (See GX-1 ¶ 2).

B. Standard and Burden of Proof

7. A majority of the Circuits (including the Third Circuit) has set the standard of proof for establishing breach of a non-prosecution or plea agreement at preponderance of the evidence. Compare, e.g., United States v. Wells, M.D., 211 F.3d 988, 995 (6th Cir. 2000) (proof of breach by preponderance of evidence); United States v. Castaneda, 162 F.3d 832, 836 (5th Cir. 1998) (same); United States v. Roman, 121 F.3d 136, 142 (3d Cir. 1997) (same); United States v. Gerant, 995 F.2d 505, 508 (4th Cir. 1993) (same); with, e.g., United States v. Gregory, 245 F.3d 160, 164 (2d Cir. 2001) (whether government's decision to revoke cooperation agreement was reasonable); United States v. Gonzales-Sanchez, 825 F.2d 572, 578 (1st Cir. 1987) (proof by "adequate evidence"); United States v. Verrusio, 803 F.2d 885, 891 (7th Cir. 1986) (proof beyond a reasonable doubt is not required).
8. Defendants mistakenly rely on the district court's decision in United States v. Skalsky, 621 F. Supp. 528, 530 (D.N.J. 1985), in asserting that the standard for establishing breach is clear and convincing evidence. In Skalsky, the Third Circuit merely held that the lower court's finding that Skalsky had materially breached his non-prosecution agreement "was not clearly erroneous," without ever addressing whether the lower court's application of a clear and convincing standard was correct. United States v. Skalsky, 857 F.2d 172, 179 (3d Cir. 1988).
9. The Court sees no reason to depart from the majority and concludes that the standard of proof for establishing breach of the Conditional Agreement is preponderance of the evidence.
10. In this Circuit, the party alleging breach bears the burden of proof. United States v. Floyd, 428 F.3d 513, 515-16 (3d Cir. 2005); United States v. Roman, 121 F.3d at 142. The Government, however, has assumed the burden of proving by a preponderance of the evidence that Stolt breached the Conditional Agreement.

II.

THE COURT'S ROLE AS FACT-FINDER

11. The Court has considered all of the evidence, including the testimony of over twenty witnesses and thousands of pages of documentary evidence. The Court has weighed the relevant evidence, drawn reasonable inferences, and has made credibility determinations as reflected in the findings of fact. These determinations were made in accordance with the following principles of law:

A. Witness Credibility and Weight of Evidence

12. Credibility of witnesses is determined from several factors, including witness demeanor and manner while on the witness stand, relation to a party in the case, self-interest, motives and state of mind. See, e.g., Hoffa v. United States, 385 U.S. 293, 312 n.14 (1966); United States v. Universal Rehab. Serv., Inc., 205 F.3d 657, 666 (3d Cir. 2000). Among other things, in assessing the credibility of the Stolt employee witnesses, including Bjorn Jansen, the Court considered their status as employees of defendant Stolt and their motive to provide testimony helpful to defendants.
13. In assessing the credibility of defendant Richard Wingfield, the Court considered his status as a defendant in this criminal case. When a defendant takes the stand, "his credibility may be impeached and his testimony assailed like that of any other witness." Portuondo v. Agard, 529 U.S. 61, 69 (2000) (internal quotations and citation omitted). The interests of the defendant, however, may seriously affect the credibility of the defendant's testimony and may create a motive to testify falsely. See Reagan v. United States, 157 U.S. 301, 305-6 (1895) (when witness is a defendant, fact that his interest is greater than that of any other witness affects evaluation of his credibility); United States v. Martin, 525 F.2d 703, 706 (2d Cir. 1975) (same).
14. The Court has considered the inconsistencies, if any, in the testimony of all the witnesses ­ both the defense witnesses and the Government witnesses ­ and has given their testimony the weight it deems proper in light of all other evidence. See Piraino v. Int'l Orientation Resources, Inc., 137 F.3d 987, 991 n.2 (7th Cir. 1998) ("[I]t is within the district judge's discretion to believe or disbelieve testimony based on the overall credibility of the witness; a misleading statement does not require the judge to disbelieve everything the witness says."); Champion Papers, Inc. v. N.L.R.B., 393 F.2d 388, 394 (6th Cir. 1968) ("A factfinder ­ jury, judge or administrative agency ­ is not barred from finding elements both of truth and untruth in a witness' testimony."); see also United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002) ("witness' testimony is not insufficient to establish a point simply because he or she later contradicts or alters it").
15. Uncorroborated testimony of a cooperating coconspirator is sufficient to satisfy the Government's burden of proof here because such testimony may be sufficient to support a conviction, which requires a greater burden of proof. See Boone, 279 F.3d at 188 (citation omitted); United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003) ("As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a co-conspirator, even one who has chosen to cooperate with the government in exchange for non-prosecution of [sic] leniency, may be constitutionally sufficient evidence to convict.") (internal quotations and citation omitted) (emphasis added); see also United States v. Perez, 280 F.3d 318, 344 (3d Cir. 2002) (following "Supreme Court in holding that uncorroborated accomplice testimony may constitutionally provide the exclusive basis for a criminal conviction.") (citing United States v. DeLarosa, 450 F.2d 1057, 1060 (3d Cir. 1971) (internal quotations omitted)).
16. In assessing the credibility of the Jo Tankers B.V. ("Jo Tankers") and Odfjell Seachem AS ("Odfjell") witnesses, each of whom was a coconspirator of the defendants, the Court concludes that on the critical factual issues in this case, their testimony was corroborated by defense admissions, by the testimony of other witnesses including Stolt employees, and by contemporaneous documentary evidence from the files of defendant Stolt and its coconspirators, Odfjell and Jo Tankers. (See, e.g., Gov't Proposed Findings of Fact ("Gov't FOF") 265-296). The Court finds that their testimony was more than sufficient to satisfy the Government's standard of proof on the factual issues in this case.
17. Expert testimony is weighed by the Court in the same manner as other testimony. See, e.g., Drysdale v. Woerth, 153 F. Supp. 2d 678, 689 (E.D. Pa. 2001). "The fact finder is free to accept or reject expert testimony as it deems proper, even if such testimony is uncontroverted." Id. (citation omitted). In assessing the credibility of defendants' expert witness, the Court considered, among other things, his motive and bias in favor of defendants.
18. Unlike testimony, questions posed to witnesses by counsel are not evidence. See United States v. McCarthy, 54 F.3d 51, 55-56 (2d Cir. 1995); Rock v. Nat'l R.R. Passenger Corp., No. Civ. A. 04-1434, 2005 WL 1899503, at *8 (E.D. Pa. Aug. 9, 2005); Calvert v. Doctor Pet Ctr, Inc., No. Civ. A. 93-4956, 1995 WL 541826, at *1 (E.D. Pa. Sept. 11, 1995).
19. The Court has disregarded any proposed defense findings based upon questions of counsel rather than the witness' testimony, e.g., defendants have improperly proposed findings based on facts found in counsel's questions asking a witness whether he was aware of certain facts, to which the witness responded he was not. For example, Stolt has proposed the following finding: ". . . Unknown to Mr. Haugsdal, Mr. Holsen had informed the Division that Odfjell reduced its rates . . . ." (Stolt Proposed Findings of Fact ("Stolt FOF") 393). In fact, what Mr. Holsen had informed the Division is not in evidence and Stolt is improperly basing its proposed finding solely on the question of counsel, to which Mr. Haugsdal replied "No, I'm not aware of it." (Haugsdal, 6/12/07 p. 215 lines 14-19).
20. Evidence admitted for a limited purpose is considered for that purpose only. Fed. R. Evid. Rule 105; see also, e.g., United States v. Butch, 256 F.3d 171, 176 n.4 (3d Cir. 2001) ("for the limited purpose for which . . . evidence has been received, you may give it such weight as you feel it deserves"); Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1117 (8th Cir. 1985).
21. Documents that were admitted not for their truth, but for a limited purpose will be relied upon solely for that purpose. Defendants' reliance on any such document for any other purpose is improper. For example, in Stolt FOF 418­420, Stolt repeatedly relies on documents not admitted for the truth to support its proposed findings. (E.g., DX-2543) (limited purpose - fact of communication). In considering any proposed findings improperly based on documents admitted for limited purposes, the Court has given such documents the weight they deserve.

B. Inferences

22. The Court may infer consciousness of guilt from false exculpatory statements of a defendant. See Government of Virgin Islands v. Testamark, 570 F.2d. 1162, 1168 (3d Cir. 1978); United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971) (exculpatory statements when shown to be false are circumstantial evidence of guilty consciousness and have independent probative value); see also United States v. Hudson, 717 F.2d 1211, 1215 (8th Cir. 1983); United States v. Kirk, 584 F.2d 773, 778-790 (6th Cir. 1978). "One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." Williamson v. United States, 512 U.S. 594, 599-600 (1994).
23. For example, the Court has considered the fact that Wingfield made a false exculpatory entry in his business journal concerning his discussions with Nilsen of Odfjell about the Sasol bid. Wingfield wrote that he "told [Nilsen] won't discuss" Sasol (GX-26B.5747), when in fact he admitted on cross examination that he had a number of discussions with Nilsen about Sasol on the day bids were submitted. (See Gov't FOF 139-144). The Court concludes that this false entry by Wingfield is strong evidence of his consciousness of guilt, i.e., Wingfield knew that his discussions with Nilsen concerning the Sasol bid in October 2002 were conspiratorial, but tried to conceal them.
24. The Court also considered the false statements defendant Cooperman made following O'Brien's discovery of the Jansen Memo. For example, Cooperman wrote a report in which he stated that he conducted an investigation in February 2002, that Stolt business directors denied knowledge of ongoing antitrust violations, and that Wingfield and Jansen denied the Jansen Memo involved Stolt's illegal agreement with competitors. (GX-13B, at 2-3). Cooperman's statements were shown to be false in light of the testimony of Stolt business directors. (See Gov't FOF 39-48). Cooperman also made false statements to SNSA's Board of Directors both in August and November 2002. (See Gov't FOF 116-121, 255-258). Cooperman's false statements were intended to conceal evidence of the conspiratorial agreement and the fact that the Jansen Memo contained an analysis of that conspiracy, and the Court has considered them in assessing the other evidence of Cooperman's conduct following O'Brien's discovery of the conspiracy.
25. An adverse inference should not be drawn against the Government where an absent witness' testimony would be cumulative and the witness was not peculiarly within the control of the Government. See United States v. Drozdowski, 313 F.3d 819, 824 n.3 (3d Cir. 2002); United States v. Jones, 404 F. Supp. 529, 546 (E.D. Pa. 1975). A missing witness inference likewise should not be drawn where the uncalled witness is available to both parties. See Johnson v. United States, 291 F.2d 150, 155 (8th Cir. 1961); McClanahan v. United States, 230 F.2d 919, 925 (5th Cir. 1956); cf. United States v. Jackson, 257 F.2d 41, 44 (3d Cir. 1958) ("in passing upon this question of equal availability, the trial Judge is called upon to take into account all of the attendant facts and circumstances bearing upon the situation of the witnesses with relation to the parties, respectively").
26. In this case, the Court declines defendants' invitation to infer that Knut Holsen's testimony would have been adverse to the Government simply because the Government did not call him (see, e.g., Stolt FOF 392, 405, 719): First, contrary to defendants' assertions, Holsen was not solely in the Government's control. Defendants themselves were free to call Holsen ­ and indeed had Holsen under subpoena prior to the hearing ­ but chose not to call him. (See May 3, 2007 Stipulation and Order Regarding Subpoenas by Stolt-Nielsen to Employees of Odfjell Seachem and Odfjell USA, Inc. (Doc. No. 159); see also, e.g., Unites States v. Keller, 512 F.2d 182, 186 (3d Cir. 1975) ("It is perfectly proper to comment on failure of defense to call a potentially helpful witness . . . ."). Second, Holsen's testimony would have been cumulative. Government witnesses Nilsen and Haugsdal ­ who participated directly in rigging the Sasol bid with Wingfield ­ testified about Holsen's role in Sasol. (See Gov't FOF 136-137, 154). Stolt witness Vogth Eriksen testified about Holsen's call to complain about Sasol, supporting and corroborating the Government's other evidence. (See Gov't FOF 136-137, 453).

III.

THE CONDITIONAL LENIENCY AGREEMENT

A. Construed According to Principles of Contract Law

27. The January 15, 2003 Agreement conditionally admitted Stolt into the Division's Corporate Leniency Program and is a type of non-prosecution agreement. (GX-1).
28. Non-prosecution agreements, like plea bargains, are binding contracts and, as such, are construed under general principles of contract law. United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000); United States v. Castaneda, 162 F.3d 832, 835 (5th Cir. 1998).
29. As such, the Conditional Agreement should be read according to its plain meaning. See In re Tops Appliance City, Inc., 372 F.3d 510, 514 (3d Cir. 2004) ("while the plain-meaning rule is not absolute, the words used, even in their literal sense, are the primary, and ordinarily most reliable, source of interpreting the measure of any writing . . ..") (internal quotations and citation omitted).
30. And, "like any contract, [it] should be construed as a whole, so that various provisions of the contract are harmonized and none are rendered meaningless." United States v. Schilling, 142 F.3d 388, 395 (7th Cir. 1998) (internal quotations and citations omitted); accord United States v. Skalsky, 857 F.2d 172, 176 (3d Cir. 1988); H.C. Lawton, Jr., Inc. v. Truck Drivers, 755 F.2d 324, 328 (3d Cir. 1985) (contract to be read as a whole; contract terms "must be construed so as to render none nugatory") (internal quotations and citation omitted); see also CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc., 381 F.3d 131, 137 (3d Cir. 2004).
31. Accordingly, while enforcing what "[t]he plea agreement explicitly states," the Third Circuit explained in United States v. Carrara, 49 F.3d 105, 107 (3d Cir. 1995), that "[s]pecific performance requires that the court enforce every portion of the agreement, which most specifically here includes the government's right to withhold its [promised downward departure] motion because Carrara gave false testimony." See also New Wrinkle, Inc. v. John L. Armitage & Co., 238 F.2d 753, 757 (3d Cir. 1956) ("[O]ne of the basic canons of contract construction . . . is that the Court must look to the whole instrument, and ascertain the intention of the parties by an examination of all that they have said, rather than of a part only.").

B. Stolt's Required Performance Under the Conditional Agreement

1. Prompt and effective action to terminate upon discovery