Exhibit 10.70
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and Release (the
“Agreement”) is entered into as of
August 31, 2007 by and between ARTISTdirect, Inc. a
Delaware corporation (the “Company”), and Robert N.
Weingarten (“Executive”) (together “the
Parties”). This Agreement is effective only if it has
been executed by the Parties and the revocation period has
expired without revocation as set forth in Sections 16(c) and (d)
below (the “Effective Date”).
WHEREAS , Executive
was an employee of Company and served as Chief Financial
Officer;
WHEREAS , the
Company and Executive have mutually agreed (i) to terminate their
employment relationship as of August 31, 2007 (the
“Separation Date”), and (ii) that the Parties will
release each other from any and all claims as of the effective date
of this Agreement in accordance with the terms of this Agreement;
and
WHEREAS, the
Parties have agreed to enter into a consulting agreement pursuant
to the terms of the Agreement For Consulting Services of even date
herewith (the “Consulting Agreement”).
NOW, THEREFORE , in
consideration of the mutual promises contained herein, the Parties
agree as follows:
1.
Termination of Employment .
Executive and the Company acknowledge and agree that
Executive’s employment with the Company terminated as of the
close of business on the Separation Date. As of the Separation
Date, it is mutually agreed that except as provided for in the
Consulting Agreement, Executive is no longer an employee of the
Company and no longer holds any positions or offices with the
Company or its affiliates and the Employment Agreement between the
parties dated July 28, 2005 is hereby terminated except for the
provisions of Sections 8, 9, 16, and 17 thereof which shall
continue in accordance with their terms. Executive’s
termination of employment shall be considered as voluntary as a
result of this Agreement.
2.
Consulting Agreement . In
consideration for the release of claims set forth below and other
obligations under this Agreement and in satisfaction of all of its
obligations to Executive and further provided that (i) this
Agreement is signed by Executive and not revoked by Executive under
Section 16 herein and (ii) the Executive remains in continuing
compliance with all of the terms of this Agreement, the Company
agrees to enter into the Consulting Agreement.
3.
Confidential Information
. Executive agrees to continue to be bound by and comply
with Executive’s obligations to not use or disclose Company
proprietary and/or confidential information and such obligations
shall survive the termination of this Agreement.
4.
Conflicting Obligations
. Executive certifies that Executive has no outstanding
agreement or obligation that is in conflict with any of the
provisions of this Agreement, or that would preclude Executive from
complying with the provisions hereof, and further certifies that
Executive will not enter into any such conflicting agreement.
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5.
Non-Disparagement . As a
material condition of this Agreement, Executive agrees not to
directly or indirectly make any unfavorable or disparaging written
or oral remarks about the Company to third parties.
6.
Arbitration .
(a) Disputes . ANY AND ALL
DISPUTES OR CONTROVERSIES BETWEEN EXECUTIVE AND COMPANY ARISING OUT
OF, RELATING TO OR OTHERWISE CONNECTED WITH EXECUTIVE’S
EMPLOYMENT OR THE TERMINATION OF SUCH EMPLOYMENT, THIS AGREEMENT,
OR THE VALIDITY, CONSTRUCTION, PERFORMANCE OR TERMINATION OF THIS
AGREEMENT SHALL BE SETTLED EXCLUSIVELY BY BINDING ARBITRATION TO BE
HELD IN LOS ANGELES, CALIFORNIA. THE ARBITRATION PROCEEDINGS SHALL
BE GOVERNED BY (i) THE NATIONAL RULES FOR THE RESOLUTION OF
EMPLOYMENT DISPUTES THEN IN EFFECT OF THE AMERICAN ARBITRATION
ASSOCIATION AND (ii) THE FEDERAL ARBITRATION ACT.
THE
ARBITRATOR SHALL HAVE THE SAME, BUT NO GREATER, REMEDIAL AUTHORITY
AS WOULD A COURT HEARING THE SAME DISPUTE. THE DECISION OF THE
ARBITRATOR SHALL BE WRITTEN, FINAL, CONCLUSIVE AND BINDING ON THE
PARTIES TO THE ARBITRATION AND SHALL BE IN LIEU OF THE RIGHTS THOSE
PARTIES MAY OTHERWISE HAVE TO A JURY TRIAL; PROVIDED, HOWEVER, THAT
SUCH DECISION SHALL BE SUBJECT TO CORRECTION, CONFIRMATION OR
VACATION IN ACCORDANCE WITH THE PROVISIONS AND STANDARDS OF
APPLICABLE LAW GOVERNING THE JUDICIAL REVIEW OF ARBITRATION
AWARDS.
THE
PREVAILING PARTY IN SUCH ARBITRATION, AS DETERMINED BY THE
ARBITRATOR, AND IN ANY ENFORCEMENT OR OTHER COURT PROCEEDINGS,
SHALL BE ENTITLED, TO THE EXTENT PERMITTED BY LAW, TO REIMBURSEMENT
FROM THE OTHER PARTY FOR ALL OF THE PREVAILING PARTY’S COSTS
(EXCLUDING THE ARBITRATOR’S COMPENSATION AND OTHER
ARBITRATION FEES AND COSTS, WHICH SHALL BE PAID BY COMPANY IN
ACCORDANCE WITH APPLICABLE STATE LAW), EXPENSES AND
ATTORNEY’S FEES. JUDGMENT SHALL BE ENTERED ON THE
ARBITRATOR’S DECISION IN ANY COURT HAVING JURISDICTION OVER
THE SUBJECT MATTER OF SUCH DISPUTE OR CONTROVERSY. NOTWITHSTANDING
THE FOREGOING, EITHER PARTY MAY IN AN APPROPRIATE MATTER APPLY TO A
COURT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
1281.8, OR ANY COMPARABLE STATUTORY PROVISION OR COMMON LAW
PRINCIPLE, FOR PROVISIONAL RELIEF, INCLUDING A TEMPORARY
RESTRAINING ORDER OR A PRELIMINARY INJUNCTION. TO THE EXTENT
PERMITTED BY LAW, THE PROCEEDINGS AND RESULTS, INCLUDING THE
ARBITRATOR’S DECISION, SHALL BE KEPT
CONFIDENTIAL.
(b) Consent to Personal
Jurisdiction . The arbitrator(s) will apply California law to
the merits of any dispute or claim, without deference to conflicts
of law rules. Executive hereby consents to the personal
jurisdiction of the state and federal courts located in California
for any
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action or proceeding arising from or relating
to this Agreement or relating to any arbitration in which the
Parties are participants.
(c) Acknowledgment . EXECUTIVE
HAS READ AND UNDERSTANDS THIS AGREEMENT, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
EXECUTIVE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO,
OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF,
TO BINDING ARBITRATION AND THAT THIS ARBITRATION CLAUSE CONSTITUTES
A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
RELATIONSHIP BETWEEN THE PARTIES.
7.
Governing Law . This
Agreement will be governed by the internal substantive laws, but
not the choice of law rules, of the State of California.
8.
Assignment . This Agreement
and all rights under this Agreement will be binding upon and inure
to the benefit of and be enforceable by the Parties hereto and
their respective owners, agents, officers, shareholders, employees,
directors, attorneys, subsidiaries, parents, affiliates,
successors, personal or legal representatives, executors,
administrators, heirs, distributes, devisees, legatees, and
assigns. This Agreement is personal in nature, and none of the
Parties to this Agreement will, without the written consent of the
other, assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity; except that the
rights and obligations of the Company under this Agreement may be
assigned (without the consent of the Executive) to an entity which
becomes the successor to the Company as the result of a merger or
other corporate reorganization or sale of substantially all the
assets to a successor which continues the business of the Company
or any other subsidiary of the Company, provided , that such
assignment will not relieve the Company of its obligations
hereunder.
9.
Notices . For purposes of
this Agreement, notices and other communications provided for in
this Agreement will be in writing and will be delivered personally
or sent by United States certified mail, return receipt requested,
postage prepaid, addressed as follows:
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If to the Executive:
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Robert N. Weingarten
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5439 Lockhurst Drive
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Woodland Hills, CA 91367
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If
to the Company:
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ARTISTdirect, Inc.
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1601 Cloverfield Boulevard
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Suite 400 South
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Santa Monica, CA 90404
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or
to such other address or the attention of such other person as the
recipient party has previously furnished to the other party
in
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