Settlement Agreement - MP3.com Inc. and Warner Music Group Inc.
SETTLEMENT AGREEMENT
This Settlement Agreement and Mutual Release (hereinafter "Settlement
Agreement") is entered into effective as of June 8, 2000 by and between MP3.COM,
INC. ("MP3" herein) on the one hand, and Warner Music Group Inc. ("Company"), on
the other hand, all of which are sometimes collectively referred to as the
"Parties" and is made with reference to the following:
1. RECITALS:
a) Company's affiliates, Warner Bros. Records Inc., Atlantic
Recording Corporation, Sire Records Group Inc. (now known as
London-Sire Records Inc.) and Elektra Entertainment Group Inc.,
are Plaintiffs (the "Company Plaintiffs") 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. MP3.COM,
INC., Defendant.
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 raised by or related
to the Litigation as of the date of this Settlement Agreement
and to dismiss the Litigation with prejudice .
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, promptly upon execution hereof and the
filing of the Dismissal With Prejudice of the Litigation as
described hereinbelow MP3 will pay Company the sum of [* * *].
b) As further consideration, promptly upon execution hereof and the
filing of the Dismissal With Prejudice of the Litigation as
described hereinbelow, MP3 will [* * *]
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[* * *].
c) [* * *]
i) [* * *]
ii) [* * *]
a) Sony Music Entertainment, Inc., - [* * *];
b) BMG Entertainment - [* * *];
c) UMG Recordings, Inc. - [* * *]; and
d) EMI Records Group - [* * *].
iii) [* * *]
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[* * *].
d) Intentionally deleted.
e) Concurrently herewith, Company and MP3 are entering into a
License Agreement in the form annexed hereto as Exhibit A. As
soon as reasonably possible (but in no event more than ninety
(90) days following the date hereof), MP3 shall provide Company
detailed information on a confidential basis setting forth [* *
*]. MP3 shall not be in breach of this Agreement by reason of
any inadvertent failure resulting in a deficiency with respect
to the foregoing [* * *] provided such failure promptly is cured
by MP3 following its receipt of written notice thereof from
Company.
f) The parties agree that a press release with respect to this
Settlement Agreement shall be issued within a reasonable period
after execution hereof, the text of which shall be approved in
writing by each party.
3. RELEASES
a) Company Release. Company, on behalf of Company and entities
controlled by Company and each of their heirs, agents,
employees, representatives, attorneys, transferees,
predecessors, successors and assigns (the "Company Releasors")
does hereby irrevocably release, acquit and forever discharge
MP3 and each of its respective heirs, agents, employees,
representatives, partners, parents, subsidiaries, divisions,
affiliates, officers, directors, 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, suspected
or unsuspected, known or unknown, foreseen or unforeseen,
arising at any time up to and including the date of this
Settlement Agreement, (i) which Company Releasors have asserted
or at any time
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heretofore could have asserted against the MP3 Releasees with
respect to the subject matter of the Litigation [* * *]
(hereinafter "Claims"). "Claims" shall not include any claims
with respect to which a Company Releasor, [* * *] is party to a
written contract which requires that it secure the consent of an
unrelated third party prior to its settlement; provided, the
Company Releasors, Warner/Chappell Music, Inc. and the
Warner/Chappell Affiliates hereby waive their separate right to
retain their share of any compensation payable as a result of
any such excluded claims and/or shall repay such share to MP3
promptly upon receipt thereof. Company shall not include labels
owned, distributed or controlled [* * *].
b) Statutory Waiver. With respect to the 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."
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.
c) Dismissal With Prejudice. Company concurrently shall execute 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:
MP3.com, Inc.
4790 Eastgate Mall
San Diego, CA 92121
Attn: General Counsel
With simultaneous copies to:
Gary Stiffelman, Esq.
Ziffren, Brittenham, Branca & Fischer
1801 Century Park West
Los Angeles, CA 90067
ii) The address for Company is as follows:
Warner Music Group Inc.
75 Rockefeller Plaza
New York, NY 10019
Attn: 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 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
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entirely within such State. The New York courts (State and
Federal), will have exclusive jurisdiction over any
controversies regarding this agreement; any action or other
proceeding which involves such a controversy will be brought in
those courts and not elsewhere. Nothing in this Agreement is
intended to confer on any person not a party hereto any rights
or remedies under this Agreement.
d) This Settlement Agreement is the entire agreement between the
Parties with respect to the Claims or subject matter of this
Settlement Agreement and supersedes all prior and
contemporaneous oral and written agreements and discussions
pertaining to the 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.
e) No breach of any provision hereof can be waived unless in
writing. 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, 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
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 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. [* * *]
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
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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) The Parties hereto, and each of them, 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, 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. 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.
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.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement
on the date(s) written beside his/his/its name, respectively.
Warner Music Group Inc.
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Dated: By: //signed//
------------------------- -------------------------
Its:
-------------------------
Dated: MP3.com, Inc.
-------------------------
By: //signed//
-------------------------
Its:
-------------------------
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EXHIBIT A TO SETTLEMENT AGREEMENT - LICENSE AGREEMENT
MP3.com, Inc.
4790 Eastgate Mall
San Diego, CA 92121
June 8, 2000
Warner Music Group Inc.
75 Rockefeller Plaza
New York, NY 10019
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 MP3.com, Inc. ("MP3", "us" or "we"), with
respect to your licensing certain rights to us on the following terms:
1. DEFINITIONS:
a) [* * *]
b) "Affiliate": Any corporation or other person or entity
controlled by a party or Person, as the case may be. Affiliates
shall not include [* * *].
c) "Artist": A recording artist, record producer, or other third
party entitled to a royalty or other participation in revenues
derived from Company or its
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Affiliate's exploitation of Company Recordings ("Record Revenue
Participation"). [* * *].
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 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
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such networks. "Internet" also includes 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. A Locker Owner shall not be authorized to
transfer, sell or otherwise assign ownership of such Person's
Locker without Company's consent.
o) "MyMP3": [* * *].
p) "Person": Any individual, corporation, partnership or other
legal entity.
q) "Record": Any and all forms of reproductions of audio-only
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. A DVD-audio is not included in the
definition of a Record hereunder.
r) "Recording": every audio recording of an individual performance
or medley, 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": [* * *].
t) "Title List(s)": The unique set of Recordings, including Albums
and individual master recordings or other copyrightable
recordings, accessible from within an individual Locker.
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2. LICENSE:
a) Company hereby irrevocably licenses to MP3 the right to make any
and all Company Recordings available for inclusion on Title
Lists and to do only the following:
i) The right to make only that 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 Company Recordings (it being understood
that any Album cover artwork utilized by Company and its
Affiliates in connection with Company Recordings other
than soundtrack album cover artwork shall be deemed
approved for purposes hereof), and any Album cover
artwork utilized by Company and its Affiliates in
connection with Company Recordings other than soundtrack
album cover artwork, all of the foregoing for
informational purposes as part of MyMP3, in any and all
Title Lists and Lockers. MP3 shall not have the right to
use any of said materials, without Company's reasonable
approval, in the promotion, marketing and advertising of
MyMP3 or MP3.
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).
iii) [* * *]
c) [* * *]
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d) [* * *]
e) It is agreed that if any Person can enhance that Person's speed
and method of access to Recordings using any consumer
electronics device, MP3 shall have the right to provide such
enhancement through any means on a basis which [* * *].
f) It is agreed that no rights whatsoever to musical compositions
are being conveyed herein and that MP3 separately shall secure
any rights required in connection with the use of musical
compositions in connection with MyMP3.
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 [* * *].
5. CONSIDERATION: In consideration of this license, Company shall receive
the following:
a) [* * *]
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[* * *].
b) [* * *].
c) It is agreed that revenues associated with a Company-owned or
controlled Locker(s) shall be excluded in computing MP3's
payment obligations hereunder.
d) [* * *]
6. COMPANY SHELF:[* * *]
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[* * *].
7. ACCOUNTINGS:
a) MP3 will compute the sums due Company under paragraphs 5(a),
5(b) and 5(d) as of each March 31, June 30, September 30 and
December 31 after the date hereof. Within forty-five (45) 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. 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 two (2) years
after the date when Company receives the statement concerned.
Company shall only have the right to institute suit with respect
to a particular statement within three (3) years after Company's
receipt thereof. Company shall be deemed to have received each
statement hereunder when due unless MP3 receives notice of
non-receipt from Company within 120 days thereafter. Company's
failure to send such notice shall not affect its right to
receive such statement (and, if applicable, payments due
thereunder) after such 120-day period. 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
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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) The statements referred to in paragraph 7(a) above shall provide
Company information setting forth [* * *]. MP3 will work in good
faith with Company to develop formats for MP3's accounting
statements, including computer-sensible formats, which will
assist Company in accounting to Artists with respect to the
exploitation by MP3 of Company Recordings and incorporating the
information directly into Company's royalty accounting systems.
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 by
Company to MP3. Company will be responsible for payment of any sums due
[* * *]. 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.
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 &
Fischer, LLP., 1801 Century Park West, Los Angeles, California 90067,
Attn: Gary Stiffelman, Esq. MP3 shall send a copy of each notice to
Company to the attention of its General Counsel at the address set forth
above. All notices shall be in writing and shall either be served by
personal delivery, mail or telefax, all charges prepaid. Except as
otherwise provided herein, such notices shall be deemed given when
personally delivered, mailed or telefaxed, 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.
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. Subject to
paragraph 12(a) and (b), the New York courts (State and
Federal), will have exclusive jurisdiction over any
controversies regarding this Agreement; any action or other
proceeding which involves such a controversy will be brought in
those courts and not elsewhere. 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 by certified or registered
mail, return receipt requested, describing in detail the breach
and the allegedly breaching party shall have failed to cure that
breach within thirty (30) days (ten (10) days with respect to
payment of monies) after its receipt of that written notice. If
MP3 fails to tender payment of a specific sum which MP3
acknowledges in writing is due and payable to Company (it being
acknowledged that an accounting statement prepared and
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sent to Company shall constitute such an acknowledgment in
writing) within ten (10) business days after written demand
therefor from Company, Company shall have the right to terminate
the term hereof by written notice at any time prior to the date
payment of such sum is tendered.
12. [* * *]
13. PRESS RELEASE:The parties agree that a press release with respect to
this Agreement shall be issued within a reasonable period after
execution hereof, the text of which shall be approved in writing by each
party.
Please indicate your acceptance of the above terms by signing in the
space indicated below.
Very truly yours,
MP3.COM, INC.
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By: //signed//
-------------------------
AGREED AND ACCEPTED:
Warner Music Group Inc.
By: //signed//
-------------------------
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EXHIBIT A TO LICENSE AGREEMENT
[* * *]
<PAGE> 22
EXHIBIT B TO LICENSE AGREEMENT
[* * *]
<PAGE> 23
EXHIBIT B TO SETTTLEMENT AGREEMENT - DISMISSAL WITH PREJUDICE
<PAGE> 24
EXHIBIT B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________
UMG RECORDINGS, INC., SONY
MUSIC ENTERTAINMENT INC.,
WARNER BROS. RECORDS INC.,
ARISTA RECORDS INC., ATLANTIC
RECORDING CORPORATION, BMG STIPULATION AND ORDER
MUSIC d/b/a THE RCA RECORDS OF DISCONTINUANCE
LABEL, CAPITOL RECORDS, INC., WITH PREJUDICE
ELEKTRA ENTERTAINMENT
GROUP, INC., INTERSCOPE
RECORDS, and SIRE RECORDS 00 Civ. 0472 (JSR)
GROUP INC.,
Plaintiffs,
vs.
MP3.COM, INC.,
Defendant.
__________________________________
1.
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IT IS HEREBY STIPULATED AND AGREED, by and among the undersigned counsel
for Plaintiffs Warner Bros. Records Inc., Atlantic Recording Corporation,
Elektra Entertainment Group, Inc., and London-Sire Records Inc. (formerly Sire
Records Group Inc.) only (the "Settling Plaintiffs"), and Defendant MP3.com,
Inc. that, pursuant to said parties' settlement agreement, the Complaint in the
above-captioned action is hereby dismissed with prejudice pursuant to Fed. R.
Civ. P. 41(a)(1)(ii) as to the claims of the Settling Plaintiffs.
June __, 2000 CRAVATH, SWAINE & MOORE
----------------------------------------
KATHERINE B. FORREST (KF 1979)
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 715-1000
Attorneys for Plaintiffs
Warner Bros. Records Inc.,
Atlantic Recording Corporation,
Elektra Entertainment Group, Inc., and
Sire Records Group, Inc.
COOLEY GODWARD LLP
----------------------------------------
MICHAEL G. RHODES (MR 0426)
4365 Executive Drive, Suite 1100
San Diego, California 92121
(858) 550-6000
Attorneys for Defendant MP3.com, Inc.
IT IS SO ORDERED.
Dated: June __, 2000
-------------------------------------
Hon. Jed Rakoff
U.S.D.J.
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