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
writing in accordance with this Section 10. Such notices or other
communications will be effective upon delivery or, if earlier, three days after
they have been mailed as provided above.


 


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10.    Integration. This Agreement represents the entire agreement
and understanding between the parties as to the subject matter hereof and
supersedes all prior agreements whether written or oral.


 


11.    Modification. This Agreement may only be amended in a writing
signed by Executive and the Company. No waiver, alteration, or modification of
any of the provisions of this Agreement will be binding unless in writing and
signed by the party against whom enforcement of the change or modification is
sought. Failure or delay on the part of either party hereto to enforce any
right, power, or privilege hereunder will not be deemed to constitute a waiver
thereof. Additionally, a waiver by either party or a breach of any promise
hereof by the other party will not operate as or be construed to constitute a
waiver of any subsequent waiver by such other party.


 


12.    Right to Advice of Counsel. Executive acknowledges that Executive has had
the opportunity to fully review this Agreement and, if Executive so chooses, to
consult with counsel, and is fully aware of Executive’s rights and obligations
under this Agreement.


 


13.    Civil Code Section 1542. Executive and the Company acknowledge that they
are familiar with the provisions of California Civil Code Section 1542,
which 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.


 


Executive,
being aware of said Code section, agrees to expressly waive any rights
Executive may have thereunder, as well as under any other statute or common law
principles of similar effect except for indemnification that he may have
pursuant to applicable law or under the Company’s Certificate of Incorporation,
Bylaws or resolutions of the Board of Directors.


 


14.    Executive’s Covenants.


 


(a)     Confidentiality
of this Agreement. Executive agrees to use Executive’s reasonable efforts
to maintain in confidence the existence of this Agreement, the contents and
terms of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as “Separation Information”). Executive hereto agrees
to take every reasonable precaution to prevent disclosure of any Separation
Information to third parties, except for disclosures required by law or
necessary to effectuate the terms of this Agreement.


 


(b)     Company
Resources. As of the Separation Date, Executive will no longer represent
that Executive is an employee of the Company. As soon as practicable (but in no
event more than 5 days) following execution of this Agreement, Executive will
return all Company property to the Company including but not limited to
Confidential Information, credit cards, telephone calling cards, keys,
computers, cell phones, pagers, monitors, business cards, devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, laboratory notebooks, flow charts, materials,
equipment, other documents or physical 


 


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property, or
copies or reproductions of any aforementioned items belonging to  the Company. Executive will not make or retain copies,
reproductions or summaries of any such property.


 


15.    Executive’s Release of Claims. In exchange for the Company’s promises set forth
herein, all of which are good and valuable consideration, Executive hereby covenants
not to sue and releases and forever discharges the Company, its parents,
subsidiaries, attorneys, insurers, agents, employees, shareholders, directors,
officers, affiliates, predecessors and successors of and from any and all
rights, claims, actions, demands, causes of action, obligations, attorneys’
fees, costs, damages, and liabilities of whatever kind or nature, in law or in
equity, that Executive may have (whether known or not known) (collectively, “Claims”),
accruing to Executive as of the Effective Date, that Executive has ever had,
including but not limited to Claims based on and/or arising under
Title VII of the Civil Rights Act of 1964, as amended, The Americans with
Disabilities Act, The Family Medical Leave Act, The Equal Pay Act, The Employee
Retirement Income Security Act, The Fair Labor Standards Act, and/or the
California Fair Employment and Housing Act; The California Constitution, The
California Government Code, The California Labor Code, The Industrial Welfare
Commission’s Orders, The Securities Act of 1933, The Securities Exchange Act of
1934, the Worker Adjustment and Retraining Notification Act, California Labor
Code sections 1400-1408, and any and all other Claims Executive may have under
any other federal, state or local Constitution, Statute, Ordinance and/or
Regulation; and all other Claims arising under common law including but not
limited to tort, express and/or implied contract and/or quasi-contract, arising
out of or, in any way, related to Executive’s previous relationship with the
Company as an employee, consultant and/ or director. Furthermore, Executive
acknowledges that Executive is waiving and releasing any rights Executive may
have under the Older Workers Benefit Protection Act, Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, and that this waiver and release
is knowing and voluntary. Executive acknowledges that the consideration given
for this waiver and release is in addition to anything of value to which
Executive was already entitled. Executive further acknowledges that Executive
has been advised by this writing that:


 


(a)   Executive should consult with
an attorney prior to executing this Agreement;


 


(b)   Executive has at least twenty-one
(21) days within which to consider this Agreement;


 


(c)   Executive has up to seven (7)
days following the execution of this Agreement by the Parties to revoke the
Agreement; and


 


(d)   this Agreement shall not be
effective until the revocation period in Section 16(c) has expired without
revocation by Executive.


 


The Company and Executive
agree that the release set forth in this Section 15 shall be and remain in
effect in all respects as a complete general release as to the matters released.
Notwithstanding the foregoing, the Parties agree that Executive is not waiving
any Claims to unemployment compensation and indemnification that he may have pursuant
to applicable law or under the Company’s Certificate of Incorporation, Bylaws
or resolutions of the Board of Directors. 


 


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Furthermore, not
withstanding any provisions of this Agreement, Executive is not waiving or
releasing any insurance coverage as a prior officer, director, employee or
agent of the Company.


 


16.    Company’s Release of Claims. In exchange for the Executive’s promises set forth
herein, all of which are good and valuable consideration, Company hereby
covenants not to sue and releases and forever discharges the Executive from any
and all rights, claims, actions, demands, causes of action, obligations,
attorneys’ fees, costs, damages, and liabilities of whatever kind or nature, in
law or in equity, that Company may have (whether known or not known)
(collectively, “Claims”), accruing to Company as of the Effective Date and any
and all other Claims Company may have under any federal, state or local
Constitution, Statute, Ordinance and/or Regulation; and all other Claims
arising under common law including but not limited to tort, express and/or
implied contract and/or quasi-contract, arising out of or, in any way, related
to the Executive’s employment with Company.


 


The Company and Executive
agree that the release set forth in this Section 16 shall be and remain in
effect in all respects as a complete general release as to the matters released.
Notwithstanding the foregoing, the Parties agree that Company is not waiving
any rights it may have under applicable statutory law or under the Company’s
Certificate of Incorporation or Bylaws to deny executive indemnification.


 


17.    Labor Code Section 206.5. Executive agrees that the Company has paid to
Executive his salary and vacation accrued as of the Separation Date and that
these payments represent all such monies due to Executive through the
Separation Date. In light of the payment by the Company of all wages due, or to
become due to Executive, California Labor Code Section 206.5 is not applicable
to the Parties hereto. That section provides in pertinent part as follows:


 


No employer shall require the execution of any release of any claim or
right on account of wages due, or to become due, or made as an advance on wages
to be earned, unless payment of such wages has been made.


 


18.    Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.


 


19.    No Representations. Each Party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither Party has
relied upon any representations or statements made by any other Party hereto which
are not specifically set forth in this Agreement.


 


20.    Authority. The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and to bind the
Company and all who may claim through it to the 


 


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terms and conditions of this
Agreement. Executive represents and warrants that he has the capacity to act on
his own behalf and on behalf of all who might claim through Executive to bind
them to the terms and conditions of this Agreement. Each Party warrants and
represents that there are no liens or claims of lien or assignments in law or
equity or otherwise of or against any of the claims or causes of action
released herein.


 


21.    Voluntary Execution of Agreement. This Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the Parties
hereto, with the full intent of releasing all claims. The Parties acknowledge
that:


 


(a)   They have read this Agreement;


 


(b)   They have been represented in
the preparation, negotiation, and execution of this Agreement by legal counsel
of their own choice or that they have voluntarily declined to seek such
counsel;


 


(c)   They understand the terms and
consequences of this Agreement and of the releases it contains;


 


(d)   They are fully aware of the
legal and binding effect of this Agreement.


 


22.    Press Release. If the Company intends to publish a press
release pertaining to Executive’s separation from the Company, the Parties
shall confer on the substance of the press release, and the press release shall
not be published without the prior written approval of Executive, which
approval shall not be unreasonably withheld.


 


23.    Execution in Multiple
Counterparts. This Agreement may be executed in multiple counterparts,
each of which when together shall be deemed to constitute the executed
original, and each counterpart shall have the same force and effect as an
original and shall constitute an effective, binding agreement on the part of
the undersigned.


 


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IN WITNESS WHEREOF, the
Parties hereto have executed this Agreement as of the date first written above.


 


	
  “Executive”

  	
  “Company”

  
	
   

  	
   

  
	
  Robert N. Weingarten

  	
  ARTISTdirect, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  [NAME/TITLE]

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dated:

  
						



 


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