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Napster Inc.’s general counsel and CEO returned to their posts at the Redwood City, Calif.-based company Friday when board members agreed to a deal that has German media giant Bertelsmann AG acquiring the music-swapping company’s assets. Under the agreement, Bertelsmann will pay $8 million to Napster’s creditors and won’t seek repayment on the $85 million it has invested in the company. Napster is also to file for bankruptcy protection in the near future, a person familiar with the deal said. General Counsel Jonathan Schwartz, CEO Konrad Hilbers, founder Shawn Fanning and two other executives had resigned in protest May 14 after Napster board members Hank Barry and John Hummer, of Hummer Winblad Venture Partners, rejected Bertelsmann’s offer. Under that deal Bertelsmann was set to pay $5 million to help Napster pay its creditors plus additional money to pay employees. The deal fell apart when Barry and Hummer sought protection from liability in future litigation by the record labels. “I am pleased that Bertelsmann has agreed to buy Napster’s assets and provide funding for creditors,” Schwartz said in a written statement. “I look forward to working with Konrad Hilbers, Shawn Fanning and the rest of the returning management team in the next phase.” Barry and Hummer could not be reached for comment. Barry — a former Wilson Sonsini Goodrich & Rosati and Cooley Godward partner — said in a written statement that Bertelsmann “is the right company to help Napster move into the future.” Napster’s ongoing litigation with the record labels and music publishers was put on hold after the deal with Bertelsmann fell through. The parties agreed Wednesday to a two-week stay. If Napster files for bankruptcy, the litigation will automatically be stayed and it would be left to the plaintiffs to request the bankruptcy court to lift the stay.

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