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SEPARATION AGREEMENT AND RELEASE

Release Agreement

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This Release Agreement involves

ARTISTdirect, Inc

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Title: SEPARATION AGREEMENT AND RELEASE
Governing Law: California     Date: 11/14/2007
Industry: Retail (Specialty)     Sector: Services

SEPARATION AGREEMENT AND RELEASE, Parties: artistdirect  inc
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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:

 

If to the Executive:

 

Robert N. Weingarten

 

 

5439 Lockhurst Drive

 

 

Woodland Hills, CA 91367

 

 

 

If to the Company:

 

ARTISTdirect, Inc.

 

 

1601 Cloverfield Boulevard

 

 

Suite 400 South

 

 

Santa Monica, CA 90404

 

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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