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EXHIBIT 10.26
[* * *] -- TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED UNDER
17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 240.24b-2
SETTLEMENT AGREEMENT
This Settlement Agreement and Mutual Release (hereinafter "Settlement
Agreement") is entered into effective as of June 8, 2000 by and between XX0.XXX,
INC. ("MP3" herein) on the one hand, and BMG Entertainment ("Company") on the
other hand, both of which are sometimes collectively referred to as the
"Parties" and is made with reference to the following:
1. RECITALS:
a) Company, through its related entities BMG Music d/b/a The RCA
Records Label and Arista Records, Inc., is a Plaintiff and MP3
is the defendant in the following litigation (the "Litigation"):
UMG RECORDINGS, INC., SONY MUSIC ENTERTAINMENT INC., WARNER
BROS. RECORDS INC., ARISTA RECORDS INC., ATLANTIC RECORDING
CORPORATION, BMG MUSIC D/B/A THE RCA RECORDS LABEL, CAPITOL
RECORDS, INC., ELEKTRA ENTERTAINMENT GROUP, INC., INTERSCOPE
RECORDS, AND SIRE RECORDS GROUP INC., Plaintiffs, vs. XX0.XXX,
INC., Defendant, Case Xx. 00 Xxx. 0000 (XXX).
b) Each of the Parties to this Settlement Agreement desire to
permanently settle and resolve any and all claims, disputes,
issues or matters that exist between them as of the date of this
Settlement Agreement and to dismiss with prejudice the
Litigation.
c) NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements set forth herein, and subject to the
terms and conditions set forth below, the Parties desire to, and
hereby do, resolve their differences and agree as follows:
2. SETTLEMENT TERMS:
a) In consideration hereof, concurrently with the execution hereof
and of the License Agreement referred to in subparagraph (e)
below, and the execution and filing of the Dismissal With
Prejudice of the Litigation as described hereinbelow MP3 will
pay Company the sum of [* * *] by wire transfer as follows:
[* * *].
b) [* * *]
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[* * *]
i) [* * *]
ii) [* * *]
a) Sony Music Entertainment, Inc., - [* * *];
b) Warner Music Group, Inc. - [* * *];
c) UMG Recordings, Inc. - [* * *]; and
d) EMI Records Group - [* * *].
iii) [* * *]
c) For the consideration set forth hereinabove, Company also hereby
agrees that the master recordings previously copied by MP3 which
are owned or controlled by Company shall be deemed to have been
copied with Company's consent.
d) [* * *]
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[* * *].
e) It specifically is understood that the term "Company" shall
include any corporation or other entity controlling, or
controlled by, or under common control therewith, [* * *].
f) Concurrently herewith, Company and MP3 are entering into a
License Agreement in the form annexed hereto as Exhibit A (the
"License Agreement").
3. RELEASES
a) Company Release. Company, on behalf of itself and its heirs,
agents, employees, representatives, partners, owners, related
entities, officers, parents, shareholders, directors,
subsidiaries, affiliates, attorneys, transferees, predecessors,
successors, and assigns does hereby irrevocably release, acquit
and forever discharge MP3 and each of its respective heirs,
agents, employees, representatives, partners, owners, related
entities, officers, parents, shareholders, directors,
subsidiaries, parents, subsidiaries, divisions, affiliates,
officers, directors, shareholders, investors, family members,
attorneys, transferees, predecessors, successors, and assigns,
jointly and severally (the "MP3 Releasees"), of and from any and
all debts, suits, claims, actions, causes of action,
controversies, demands, rights, damages, losses, expenses,
costs, attorneys' fees, compensation, liabilities and
obligations whatsoever (hereinafter referred to collectively as
"Claims"), suspected or unsuspected, known or unknown, foreseen
or unforeseen, arising at any time up to and including the date
of this Settlement Agreement, which Company may now have or at
any time heretofore may have had, or which at any time hereafter
may have or claim to have against the MP3 Releasees, relating
to, arising from, or concerning the MyMP3 service, the
Litigation or the subject matter thereof (hereinafter "Released
Claims").
b) MP3 Release. MP3, on behalf of itself and its heirs, agents,
employees, representatives, partners, owners, related entities,
officers, parents,
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shareholders, directors, subsidiaries, affiliates, attorneys,
transferees, predecessors, successors, and assigns does hereby
irrevocably release, acquit and forever discharge Company and
each of its respective heirs, agents, employees,
representatives, partners, owners, related entities, officers,
parents, shareholders, directors, subsidiaries, affiliates,
attorneys, transferees, predecessors, successors, and assigns,
jointly and severally (the "Company Releasees"), of and from any
and all debts, suits, claims, actions, causes of action,
controversies, demands, rights, damages, losses, expenses,
costs, attorneys' fees, compensation, liabilities and
obligations whatsoever (hereinafter referred to collectively as
"Claims"), suspected or unsuspected, known or unknown, foreseen
or unforeseen, arising at any time up to and including the date
of this Settlement Agreement, which MP3 may now have or at any
time heretofore may have had, or which at any time hereafter may
have or claim to have against the Company Releasees, relating
to, arising from, or concerning the MyMP3 service, the
Litigation or the subject matter thereof and any counter claims
which MP3 could have asserted in connection with the Litigation
(hereinafter "Released Claims").
c) Statutory Waiver. With respect to the Released Claims, all
rights under California Civil Code Section 1542 (and any other
law of similar effect), are hereby expressly waived by the
Parties, and each of them, notwithstanding any provision to the
contrary. Section 1542 provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the Release, which if known by
him must have materially affected his settlement with
the debtor."
d) The Parties, and each of them, and their representatives, heirs
and assigns expressly waive and release any right or benefit
which they have or may have under Section 1542 of the Civil Code
of the State of California, to the fullest extent that they may
waive all such rights and benefits pertaining to the matters
released herein. It is the intention of the Parties, and each of
them, through this Settlement Agreement, and with the advice of
counsel, to fully, finally and forever settle and release all
such matters, and all claims relative thereto, in furtherance of
such intention.
e) Dismissal With Prejudice. Company, concurrently with the
execution and delivery hereof and payment of the sum described
in 2(a) above, shall execute, file and deliver to MP3 a
Dismissal With Prejudice of the Litigation, in the form annexed
hereto as Exhibit B.
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4. NOTICES
a) Any notice, demand, request, consent, approval, or communication
that either Party desires or is required to give to the other
Party is ordered to be addressed and served on or delivered to
the other Party at the address set forth below. Any Party may
change his/his/its address by notifying the other Parties of
their change of address(es) in writing.
i) The addresses for MP3 are as follows:
XX0.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: General counsel and VP Legal
With simultaneous copies to:
Xxxx Xxxxxxxxxx, Esq.
Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
ii) The address for Company is as follows:
BMG Entertainment
Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Senior Vice President and General Counsel
5. MISCELLANEOUS PROVISIONS
a) In order to carry out the terms and conditions of this
Settlement Agreement, the Parties agree to promptly execute upon
reasonable request any and all documents and instruments
consistent herewith necessary to effectuate the terms of this
Settlement Agreement.
b) By entering into this Settlement Agreement, no Party admits or
acknowledges that they committed any wrongdoing on their part.
c) This Settlement Agreement and any controversy which might arise
therefrom shall in all respects be interpreted, enforced and
governed by the laws of the
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State of New York applicable to agreements made and to be fully
performed therein. All parties consent to the sole and exclusive
personal jurisdiction and venue in the United States District
Court for the SDNY, and agree that all disputes or litigation
regarding this Settlement Agreement shall be submitted to and
determined by said court which shall have sole and exclusive
jurisdiction. Subsequent changes in New York law or federal law
through legislation or judicial interpretation that creates or
finds additional or different rights and obligations of the
Parties shall not affect this Settlement Agreement.
d) This Settlement Agreement, together with the License Agreement,
is the entire agreement between the Parties with respect to the
Released Claims or subject matter of this Settlement Agreement
and supersedes all prior and contemporaneous oral and written
agreements and discussions pertaining to the Released Claims or
subject matter of this Settlement Agreement. This Settlement
Agreement may be amended only by a written agreement executed by
each of the Parties hereto. No breach of the License Agreement
may or shall be deemed a breach of this Settlement Agreement.
e) No breach of any provision hereof can be waived unless in
writing signed by the party to be charged with such a waiver.
Waiver of any one breach of any provision hereof shall not be
deemed to be a waiver of any other breach of the same or any
other provision hereof.
f) This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and his/his/its respective heirs,
agents, employees, representatives, partners, parents,
subsidiaries, divisions, affiliates, officers, related entities,
licensees, directors, shareholders, investors, attorneys,
transferors, transferees, predecessors, successors, trustees in
bankruptcy, and assigns and each and every entity which now or
ever was a division, parent, successor, predecessor, division,
affiliate, officer, director, shareholder, investor, employee,
attorney, transferor, transferee, or subsidiary for each Party
and its respective legal successors and assigns.
g) The Parties represent and warrant that each of them have not
assigned all or any portion of any claim pertaining to the
Released Claims to any person or entity. In the event any claims
are made by any third persons or entities based upon any
purported assignment or any such liens or claims are asserted in
connection with the Released Claims or proceeds of the
Settlement Agreement, then the Party who has breached his
representation or warranty contained herein agrees to indemnify
and hold harmless the other Party from any said claims being
made.
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h) In the event that any covenant, condition or other provision
herein contained is held to be invalid, void or illegal by any
court of competent jurisdiction, the same shall be deemed
severable from the remainder of this Settlement Agreement and
shall in no way affect, impair or invalidate any other covenant,
condition or other provision herein contained. If such
condition, covenant or other provisions shall be deemed invalid
due to its scope or breadth, such covenant, condition or other
provision shall be deemed valid to the extent of the scope or
breadth permitted by law.
i) Each of the Parties hereto represent and declare that in
executing this Settlement Agreement, they rely solely upon their
own judgment, belief and knowledge, and on the advice and
recommendations of their own independently selected counsel,
concerning the nature, extent and duration of their rights and
claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or
statements covering any matters made by any of the Parties
hereto or by any person representing them or any of them. The
Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or
warranty whatsoever, written or oral to any other party, as any
inducement to enter into this Settlement Agreement, except as
expressly set forth in this Settlement Agreement.
j) The Parties hereto or responsible officer or representative
thereof, and each of them, further represent and warrant that
they have carefully read this Settlement Agreement and know and
understand the contents hereof, and that they signed this
Settlement Agreement freely and voluntarily and have had the
benefit of the advice of legal counsel before executing this
Settlement Agreement. Each of the representatives executing this
Settlement Agreement on behalf of their respective corporations
or partnerships is empowered to do so and thereby binds his
respective corporation or partnership. The Parties hereto
acknowledge and agree that this Settlement Agreement shall be
deemed to have been drafted jointly by all Parties hereto.
Ambiguities shall not be construed against the interest of
either party by reason of it having drafted all or any part of
this Settlement Agreement.
k) This Settlement Agreement may be executed in counterparts and
when each Party has signed and delivered at least one such
counterpart to each of the other Parties, each counterpart shall
be deemed an original, and all counterparts taken together shall
constitute one and the same agreement, which shall be binding
and effective as to all Parties. This Settlement Agreement may
be executed via facsimile signatures, which shall have the same
force and effect as if they were original signatures to be
followed by executed originals.
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l) Each party hereto warrants and represents that it has all
necessary right, title, and authority to enter into this
Settlement Agreement, to grant the rights and interests herein
granted, and to perform all of its obligations under this
Settlement Agreement.
m) The provisions and existence of this Settlement Agreement (a)
may not be cited by any party hereto as an admission of any
issue of fact or law; and (b) shall not be disclosed to any
third party or entity, except (i) as required by law or
regulation, (ii) to the parties respective professional advisors
and executives on a "need to know" basis, provided that such
parties agree to be bound by these confidentiality provisions,
and (iii) the Internal Revenue Service, or any state or
municipal taxing authority or other regulatory body having
jurisdiction. [* * *] It is understood and agreed that if the
foregoing provision is breached by any party hereto, the
non-breaching parties may be entitled to injunctive or other
equitable relief to prevent such a breach. Any non-breaching
party seeking such injunctive relief will not be obligated to
secure any bond or give any security in connection with the
application for such relief. The right to seek injunctive relief
under this paragraph shall be in addition to all other rights,
remedies and forms of relief which may be available. In
furtherance of the foregoing, any and all press releases
relating to the subject matter hereof shall not be released
until approved in writing by Company's Senior Vice President,
World Wide Marketing or Senior Vice President and General
Counsel; provided, the parties agree than a press release with
respect to this Settlement Agreement shall be mutually agreed
and issued within a reasonable period after execution hereof. //
// // // //
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IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside his/his/its name, respectively.
BMG Music d/b/a BMG Entertainment
Dated: By: //signed//
-------------------- -----------------------------------
Its:
----------------------------------
Dated: XX0.xxx, Inc.
--------------------
By: //signed//
-----------------------------------
Its:
----------------------------------
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EXHIBIT A TO SETTLEMENT AGREEMENT - LICENSE AGREEMENT
XX0.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
May 2, 2000
BMG Entertainment
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Senior Vice President and General Counsel
Gentlepersons:
This letter, when and if fully executed, will set forth the basic terms of the
license agreement between ("Company" or "you", which terms are deemed to include
all of Company's Affiliates) and XX0.xxx, Inc. ("MP3", "us" or "we"), with
respect to your licensing certain rights to us on the following terms:
1. DEFINITIONS:
a) [* * *]
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[* * *].
b) "Affiliate": Any corporation or other person or entity
controlling, or controlled by, or under common control with a
party or Person, as the case may be. It expressly is
acknowledged that [* * *] is not an Affiliate of Company.
c) "Artist": A recording artist, record producer, or other third
party entitled to a royalty or other participation in revenues
derived from the exploitation of Company Recordings, subject to
paragraph 2(f) below.
d) "Beam It": [* * *]
e) "Company Album": [* * *]
f) "Company Master": [* * *]
g) "Company Recordings": [* * *]
h) "Company Shelf": [* * *]
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[* * *].
i) "Download" or "Downloading": [* * *].
j) [* * *].
k) "Instant Listen": [* * *].
l) "Internet": A medium consisting of wired or wireless electronic
or electromagnetic networks (including without limitation, fiber
optic, microwave, twisted-pair copper wires, coaxial cable,
satellite, wireless transmission, cellular networks, and
combinations thereof) and collections thereof now or hereafter
existing, wherever, located, for the transmission from a distant
location of digital data (e.g., text, information, graphics,
audio, video, or combination of the foregoing), through the use
of any protocols or standards now known or hereafter devised
(including without limitation, Transmission Control
Protocol/Internet Protocol ["TCP/IP"] and subsequent extensions
or modifications thereof) from or to electronic devices (e.g.,
computers [mainframe, desktop, laptop, handheld, etc.], set-top
boxes, cable modems, handheld devices, cell phones, televisions,
etc.) capable of transmitting or receiving digital data or
digital information, irrespective of
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whether such networks are open or proprietary, public or
private, or whether a fee is charged or a subscription or
membership is required in order to access such networks.
"Internet" also includes without limitation the computer network
comprising inter-connected networks commonly referred to as the
"Internet" and the "World Wide Web." [* * *]
m) "Locker": [* * *].
n) "Locker Owner": The Person who shall have established a
particular Locker. Each prospective Locker Owner shall be
required to enter the name of an individual as part of the "sign
on" process.
o) "MyMP3": [* * *].
p) "Person": Any individual, corporation, partnership or other
legal entity.
q) "Record": Any and all forms of reproductions of audio recordings
(e.g., Albums, singles, etc.), now or hereafter known,
manufactured or distributed primarily for non-public use,
including, without limitation, home use, school use, juke box
use, or use in means of transportation including both physical
and digitized reproductions.
r) "Recording": every recording of sound, whether or not coupled
with a visual image, by any method and on any substance or
material, whether now or hereafter known, which is used or
useful in the recording, production and/or manufacture of
Records.
s) "Stream": [* * *].
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"Title List(s)": The unique set of Recordings, including Albums
and individual master recordings or other copyrightable
recordings, accessible from within an individual Locker.
2. LICENSE:
a) Company hereby licenses to MP3 the right to make any and all
Company Recordings available for inclusion on Title Lists in
accordance with the methods set forth herein and to do the
following:
i) The right to make a number of copies of Company
Recordings employing any compression technologies
selected by MP3 as may reasonably be needed in order to
create a database of recorded music which Locker Owners
can access only via the methods described herein.
ii) The right to use the names and tradenames of Company and
its Affiliates (as same appear on Company Recordings),
the titles of Company Albums and Company Masters, the
names and approved likenesses of any Artists or other
Persons rendering services or granting rights to Company
with respect to recordings embodied on Company
Recordings on an informational basis and as a part of
any and all Title Lists and Lockers (it being understood
that any Album cover artwork shall be deemed approved
for purposes hereof). MP3 also shall have the right to
use any of said materials, with Company's reasonable
approval, in the promotion, marketing and advertising of
MyMP3. With respect to the use of artist-related
material for the promotion, marketing and advertising of
MyMP3, Company will not be deemed to be acting
unreasonably in refusing to consent based on artist
relations concerns. The use of the foregoing names and
tradenames will not be used in a manner which would
suggest or imply an endorsement of MP3 or MyMP3.
b) MP3 covenants and agrees that Company Recordings can be added to
or inserted in an individual Locker only as follows:
i) Via MP3's "Instant Listen" system (or any equivalent
system established by MP3), or
ii) Via MP3's "Beam-it" system (or any equivalent system
established by MP3).
c) [* * *]
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[* * *].
d) [* * *]
e) It is agreed that rights to musical compositions, or to use the
names and other identification in their capacity as songwriters
or music publishers, are not being conveyed herein.
f) [* * *]
3. EXCLUSIVITY: The rights granted to MP3 hereunder shall be non-exclusive.
4. TERM AND TERRITORY:
a) The territory shall be [* * *]
b) The term of this license shall commence forthwith and shall
continue until [* * *]
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5. CONSIDERATION:In consideration of this license, Company shall receive
the following:
a) Concurrently with the execution hereof and the execution by
Company of a Settlement Agreement and the filing of a dismissal
with prejudice by Company insofar as Company is concerned in
respect of the following lawsuit: UMG RECORDINGS, INC., SONY
MUSIC ENTERTAINMENT INC., WARNER BROS. RECORDS INC., ARISTA
RECORDS INC., ATLANTIC RECORDING CORPORATION, BMG MUSIC D/B/A
THE RCA RECORDS LABEL, CAPITOL RECORDS, INC., ELEKTRA
ENTERTAINMENT GROUP, INC., INTERSCOPE RECORDS, AND SIRE RECORDS
GROUP INC., Plaintiffs, vs. XX0.XXX, INC., Defendant, Case Xx.
00 Xxx. 0000 (XXX), MP3 will pay Company [* * *].
b) [* * *]
c) [* * *]
d) [* * *]
e) [* * *]
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[* * *]
f) [* * *]
6. COMPANY SHELF:[* * *]
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[* * *]
7. ACCOUNTINGS:
a) MP3 will compute the sums due Company under paragraphs 5(b),
5(c) and 5(e) as of each March 31, June 30, September 30 and
December 31 after the date hereof. Within ninety-(90) days after
each calendar quarterly period , MP3 will send Company a
statement covering sums due hereunder and shall concurrently pay
Company any sums shown due thereunder..
b) MP3 will maintain books and records with respect to sums payable
to Company hereunder, including, for example, calculations with
respect to the definition of Adjusted Gross Revenues. Company
may, at its own expense no more than once per calendar year,
examine and copy those books and records, as provided in this
paragraph. Company may make such an examination for a particular
statement within three (3) years after the date when MP3 sends
Company the statement concerned. Company shall only have the
right to institute suit with respect to a particular statement
within three and one-half (3-1/2) years after the rendition
thereof. Company may make those examinations only during MP3's
usual business hours, and at the place where it keeps the books
and records. Such books and records shall be kept at the MP3
office in San Diego, California, unless otherwise notified.
Company will be required to notify MP3 at least ten (10) days
before the date of planned examination. No audit shall exceed 30
consecutive days. If an audit reveals an underpayment which the
parties agree or which is determined by a court of competent
jurisdiction to be greater than 10% of the total amount payable
throughout the applicable period of the audit, MP3 shall
reimburse Company for its reasonable audit costs.
c) MP3 shall provide Company information setting forth [* * *] MP3
will work in good faith with Company to develop formats for
MP3's accounting statements which will assist Company in
accounting to Artists with respect to the exploitation by MP3 of
Company Recordings.
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8. AUTHORITY TO CONTRACT: Each party represents and warrants to the other
party that such party has the full legal right, power and all authority
and approval required to enter into, execute and deliver this Agreement,
to grant the rights and licenses herein granted and fully to perform its
obligations hereunder. Company represents that no third party consent is
required to grant to MP3 the rights and licenses herein granted. Company
will be responsible for payment of any sums due [* * *]. MP3 will be
responsible for the payment of sums due [* * *]. MP3 warrants that it
has the right to the software and methodologies used in connection with
MyMP3 and that MP3's use thereof will not result in any liability of
Company to third parties other than [* * *] as described herein. [* * *]
This Agreement has been duly authorized, executed and delivered by such
party and constitutes the valid and binding obligation of such party
enforceable in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally.
9. INDEMNITY: Each party hereby agrees to hold harmless and indemnify the
other party from any and all damages, liabilities, costs, losses and
expenses (including costs and reasonable attorneys' fees) arising out of
or connected with any claim, demand or action (collectively referred to
as a "Claim") which:
a) If proven, would constitute a breach of any of the warranties,
representations or covenants made by the indemnifying party in
this Agreement, and
b) is reduced to a final, adverse judgment or settled with the
indemnified party's consent, which consent shall not
unreasonably be withheld. The indemnifying party agrees to
reimburse the indemnified party, on demand, for any payment made
by the indemnified party at any time with respect to any such
damage, liability, cost, loss or expense to which the foregoing
indemnity applies.
c) The indemnified party shall promptly notify the indemnifying
party of any action commenced on such a claim. The indemnifying
party in respect of any claim shall have the right to control
the prosecution, defense, settlement or compromise thereof;
provided that the indemnified party will be entitled, at its
sole cost and expense, to participate therein with counsel of
its own choosing. The indemnifying party's decisions, however,
in connection with any such claim shall be final and binding,
except that the indemnifying party will not be entitled, without
the indemnified party's prior written consent (which the
indemnified party may withhold in its sole discretion) to agree
to the imposition of any equitable relief applicable to such
indemnified party.
10. NOTICES: All notices to be given hereunder shall be sent to the
applicable address set forth on page 1 hereof or at such other address
as shall be designated in
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writing from time to time by the party receiving notice. Company shall
send a copy of each such notice to MP3 to Ziffren, Brittenham, Branca &
Xxxxxxx, LLP., 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attn: Xxxx Xxxxxxxxxx, Esq. MP3 shall send a copy of each notice to
Company to Company's Senior Vice President, Worldwide Marketing at BMG
Entertainment, 0000 Xxxxxxxx, XX, XX 00000. All notices shall be in
writing and shall either be served by personal delivery, registered or
certified mail, return receipt requested,, all charges prepaid. Except
as otherwise provided herein, such notices shall be deemed given when
personally delivered or mailed, all charges prepaid, except that notices
of change of address shall be effective only after the actual receipt
thereof.
11. MISCELLANEOUS:
a) This Agreement sets forth the entire understanding of the
parties hereto relating to the subject matter hereof and
supersedes all prior and contemporaneous agreements and
understandings, whether oral or written. This Agreement may be
amended, modified, superseded, canceled, renewed or extended,
and the terms hereof may be waived, only by a written instrument
signed by the parties hereto or, in the case of a waiver, by the
party waiving compliance.
b) Each party shall have the right to assign this Agreement and any
or all of its rights and obligations hereunder only to a Person
owning or acquiring all or substantially all of its stock or
assets. No such assignments shall relieve the assignor of any of
its obligations hereunder. Any purported assignment in violation
of this subparagraph shall be void.
c) This Agreement shall be binding upon and inure to the benefit of
the parties, their permitted assigns and the respective
successors and legal representatives of the foregoing.
d) THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE (WITHOUT
GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES UNDER NEW YORK
LAW). THE NEW YORK COURTS (STATE AND FEDERAL), SHALL HAVE SOLE
JURISDICTION OF ANY CONTROVERSIES REGARDING THIS AGREEMENT; ANY
ACTION OR OTHER PROCEEDING WHICH INVOLVES SUCH A CONTROVERSY
SHALL BE BROUGHT IN THOSE COURTS IN NEW YORK COUNTY AND NOT
ELSEWHERE PROVIDED, HOWEVER, IF COMPANY IS SUED OR JOINED IN ANY
OTHER COURT OR FORUM (INCLUDING AN ARBITRATION PROCEEDING) IN
RESPECT OF ANY MATTER WHICH MAY GIVE RISE TO A CLAIM BY RCA
HEREUNDER, COMPANY AND MP3 CONSENT TO THE JURISDICTION OF SUCH
COURT OR FORUM OVER ANY SUCH CLAIM WHICH MAY BE ASSERTED. THE
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PARTIES WAIVE ANY AND ALL OBJECTIONS TO VENUE IN THOSE COURTS
AND HEREBY SUBMIT TO THE JURISDICTION OF THOSE COURTS. ANY
PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY, AMONG OTHER
METHODS, BE SERVED UPON MP3 BY DELIVERING IT OR MAILING IT, BY
REGISTERED OR CERTIFIED MAIL, DIRECTED TO THE ADDRESS DESIGNATED
PURSUANT TO PARAGRAPH 10 ABOVE. ANY SUCH DELIVERY OR MAIL
SERVICE SHALL BE DEEMED TO HAVE THE SAME FORCE AND EFFECT AS
PERSONAL SERVICE WITHIN THE STATE OF NEW YORK. Except as is
specifically provided herein, nothing in this Agreement is
intended to confer on any person not a party hereto any rights
or remedies under this Agreement.
e) Neither party shall be deemed to be in breach of any of its
obligations hereunder unless and until the other party shall
have given specific written notice in accordance with paragraph
10 above, describing in detail the breach and the allegedly
breaching party shall have failed to cure that breach within
thirty (30) days (fifteen (15) days with respect to payment of
monies) after its receipt of that written notice.
f) This Agreement may be executed in counterparts and when each
Party has signed and delivered at least one such counterpart to
each of the other Parties, each counterpart shall be deemed an
original, and all counterparts taken together shall constitute
one and the same agreement, which shall be binding and effective
as to all Parties. This Agreement may be executed via facsimile
signatures, which shall have the same force and effect as if
they were original signatures to be followed by executed
originals.
g) The Parties hereto acknowledge and agree that this Agreement
shall be deemed to have been drafted jointly by all Parties
hereto. Ambiguities shall not be construed against the interest
of either party by reason of it having drafted all or any part
of this Agreement.
h) The provisions and existence of this agreement: (a) may not be
cited by any party hereto as an admission of any issue of fact
or law; and (b) shall not be disclosed to any third party or
entity, except (i) as required by law or regulation, (ii) to the
parties respective professional advisors and executives on a
"need to know" basis, provided that such parties agree to be
bound by these confidentiality provisions, and (iii) the
Internal Revenue Service, or any state or municipal taxing
authority or other regulatory body having jurisdiction. [* * *]
It is understood and agreed that if the foregoing provision is
breached by any party hereto, the non-breaching parties may be
entitled to injunctive or other equitable relief to
-12-
22
prevent such a breach. Any non-breaching party seeking such
injunctive relief will not be obligated to secure any bond or
give any security in connection with the application for such
relief. In furtherance of the foregoing, any and all press
releases relating to the subject matter hereof shall not be
released until approved in writing by Company's Senior Vice
President, World Wide Marketing or Senior Vice President and
General Counsel; provided, the parties agree that a press
release with respect to this Agreement shall be mutually agreed
and issued within a reasonable period after execution hereof.
12. [* * *]
Please indicate your acceptance of the above terms by signing in the
space indicated below.
Very truly yours,
-13-
23
XX0.XXX, INC.
By: //signed//
-----------------------------
AGREED AND ACCEPTED:
BMG Entertainment
By: //signed//
-----------------------------
-14-
24
EXHIBIT A TO LICENSE AGREEMENT
[* * *]
25
EXHIBIT B TO LICENSE AGREEMENT
[* * *]
26
EXHIBIT B TO SETTTLEMENT AGREEMENT - DISMISSAL WITH PREJUDICE
27
EXHIBIT B
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
--------------------------------------
UMG RECORDINGS, INC., SONY MUSIC
ENTERTAINMENT INC., WARNER BROS.
RECORDS INC., ARISTA RECORDS INC.,
ATLANTIC RECORDING CORPORATION, BMG
MUSIC d/b/a THE RCA RECORDS LABEL,
CAPITOL RECORDS, INC, ELEKTRA
ENTERTAINMENT GROUP INC., INTERSCOPE
RECORDS, and SIRE RECORDS GROUP INC., Case No.: 00 CIV. 0472 (JSR)
Plaintiffs,
v.
XX0.XXX, INC.,
Defendant.
--------------------------------------
STIPULATION OF DISMISSAL WITH PREJUDICE OF PLAINTIFFS
BMG MUSIC d/b/a THE RCA RECORDS LABEL AND ARISTA RECORDS INC.
Plaintiffs BMG Music d/b/a The RCA Records Label and Arista Records Inc.
and defendant XX0.xxx, Inc. hereby stipulate that all claims of plaintiffs BMG
Music d/b/a The RCA Records Label and Arista Records Inc. herein are dismissed
with prejudice, pursuant to rule 41 of the Federal Rules of Civil Procedure.
Plaintiffs BMG Music d/b/a The RCA Records Label and Arista Records Inc. and
defendant XX0.xxx, Inc. shall bear their own costs and expenses, including
attorneys' fees.
Dated: New York, New York
June 8, 2000
XXXXXX & XXXXXX
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx
00
Xxx Xxxx, XX 00000
(000) 000-0000
-and-
Hadrian X. Xxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X., 00000
(000) 000-0000
Counsel for Plaintiffs
BMG Music d/b/a The RCA Records Label
and Arista Records Inc.
XXXXXX GODWARD LLP
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Xxxxxxx X. Xxxxxx (MR-0426)
0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
-and-
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000
(000) 000-0000
Counsel for Defendant
XX0.xxx, Inc.
So ordered:
-----------------------------------
United States District Judge
2
