Exhibit 10.1


 


AMENDED
AND RESTATED SERVICES AGREEMENT


 


THIS AMENDED AND RESTATED
SERVICES AGREEMENT (this “Agreement”), dated as of March 6, 2008, (the “Effective
Date”) is entered into between ARTISTdirect, Inc., a Delaware corporation
(the “Company”), and Jon Diamond (“Diamond”).


 


RECITALS


 


WHEREAS, the Company has
employed Diamond as its Chief Executive Officer pursuant to the terms set forth
in the July 28, 2005 Employment Agreement (“2005 Employment Agreement”),
as amended from time to time.


 


WHEREAS, the Company and
Diamond mutually desire to amend and restate the 2005 Employment Agreement to
set forth the manner in which Diamond will end his employment as Chief
Executive Officer and become the Chairman of its Board of Directors.


 


AGREEMENT


 


In consideration for the
promises set forth in this Agreement, the sufficiency of which is hereby
acknowledged, the parties mutually agree as follows:


 


1.             Effect On 2005 Employment
Agreement.  The Parties hereby agree
that the 2005 Employment Agreement is hereby terminated except as provided
herein and for the provisions of Sections 8, 9 and 16 thereof which shall
continue in accordance with their terms.


 


Except as expressly
provided herein, all rights and obligations that arose pursuant to the 2005
Employment Agreement and all subsequent amendments are hereby extinguished
including, without limitation, Diamond’s right to payments and/or benefits
pursuant to Section 7(f)(ii). 
Furthermore, and without limitation to the foregoing, all Performance
Vesting Options provided for by Diamond’s Employment Agreement, as amended by
that document entitled Amendment No. 1 entered into between the Parties on
October 11, 2005, shall be terminated.


 


2.             Employment and Duties.  Subject to the other terms and conditions set
forth herein, as of the Effective Date, (a) Diamond hereby resigns from
the position of Chief Executive Officer and (b) Diamond will be elected as
the non-executive Chairman of the Board (the “Chairman”).  Diamond will serve as Chairman at the
discretion of the Board of Directors (“Term”). 
Diamond agrees that he will resign from the position of Chairman upon
five day’s notice from the Board.  As of
the Effective Date, Diamond will no longer be an employee of the Company and
shall not be considered an employee for any purpose including, without
limitation, under Company benefit plans.


 


3.             Consideration.


 


(a)           Consideration.  In exchange for the promises and agreements
set forth in Section 3(b) below, Diamond hereby promises and agrees
to:


 


(i)            Waive all rights arising out the
2005 Employment Agreement as set forth in Section 1 above;


 


(ii)           Execute the General Release and
Waiver attached as Exhibit 1 (“General Release”) and not revoke the
General Release.


 





















 


(b)           Company Consideration.  In consideration for Diamond’s (i) waiver
of his rights contained in the 2005 Employment Agreement, (ii) execution
and non-revocation of the General Release, and (iii) agreement to serve as
Chairman, the Company agrees that:


 


(i)            Diamond shall receive no less than
the compensation available to the Company’s independent directors.


 


(ii)           The Company will pay the Diamond
severance in the total amount of Three Hundred Fifty Thousand Dollars
($350,000.00) (“Severance Pay”), minus applicable withholding.  The Severance Pay shall be payable in semi-monthly
increments for a period of six months (i.e. 12 payments, each of which
constitutes 1/12th of the Severance Pay) in accordance with the Company’s
standard payroll schedule (each such payment constitutes a “Severance Pay
Payment”).  If Diamond’s services are
terminated hereunder prior to the end of such six-month period, the Severance
Pay Payments shall continue to be made as provided herein.


 


(iii)          Diamond’s Time Vesting Options
provided for by the 2005 Employment Agreement, as amended by that document
entitled Amendment No.  1 entered into between the parties on October 11,
2005 (the term of which expires July 28, 2008), shall fully vest as of the
Effective Date;


 


(iv)          Diamond’s options granted in 2004 to
purchase 259,659 shares (the “2004 Options”) shall fully vest as of the
Effective Date;


 


(v)           The Company will extend to February 5,
2011 the amount of time Diamond shall have to exercise his Time Vesting Options
and to March 29, 2011 to exercise the 2004 Options, provided that such
options must be exercised pursuant to the terms and procedures set forth in
Company’s Stock Option Agreement; and


 


(vi)          The Company shall pay Diamond: (i) the
amount of any Base Salary accrued through February 29, 2008, it being
understood that, notwithstanding the Effective Date, Diamond shall not be
entitled to any Base Salary or other compensation after February 29, 2008;
and (ii) the amount of any accrued but unused vacation time (which the
Parties agree is 40 days).


 


(c)           Diamond acknowledges and agrees that
each item of consideration set forth in Section 3(b) above
independently constitutes fair, adequate and reasonable consideration for
Diamond’s promises and releases set forth in this Agreement.


 


4.             Terms and Conditions of
Employment as Chairman of the Board. 
During the Term, Diamond’s employment shall be governed by the following
terms and conditions (it being understood that nothing contained in this
agreement shall affect any right Diamond may have pursuant to the federal
entitlement to continued group health care coverage as provided in the
consolidated omnibus Budget Reconciliation Act of 1985 (“COBRA”) or any
successor legislation or comparable state law):


 


(a)           Employee Benefits; Reimbursement
for Expenses.


 


(1)           Medical
Reimbursement.  As of the Effective
Date, Diamond shall have no right to participate in any employee benefit plans
or programs of the Company.  However, the
Company will pay Diamond a lump sum amount equal to Diamond’s cost of
continuing medical coverage under COBRA for a period of four months from the
Effective Date.


 


(2)           The Company shall
permit Diamond to continue to use the computer and one Blackberry (for data)
previously provided to him which items shall promptly be returned to the
Company upon expiration of the Term and to retain one Blackberry (voice), it
being understood that Diamond shall be 


 


2





















 


responsible
for all service charges for the Blackberry (voice) from the Effective
Date.  Diamond shall return to the
Company any other cell phone presently in his possession.


 


(3)           Reimbursement of
Expenses.  The Company agrees to
reimburse Diamond for all reasonable and necessary out-of-pocket expenses
incurred by Diamond during his performing of services for the Company,
including but not limited to expenses for business-related travel, hotel,
meals, telephone calls and entertainment, to the extent such expenses are
consistent with the Company’s expense reimbursement policy as in effect from
time-to-time.  As a condition to the
reimbursement of such expenses by the Company to Diamond, Diamond shall provide
the Company with copies of invoices, receipts or other satisfactory
documentation in sufficient detail to allow the Company to confirm the business
nature of the expenses and to claim an income tax deduction for such paid
items, if such items are deductible. 
Furthermore, Diamond shall be required to obtain the prior approval of
the Company’s Chief Executive Officer or Chief Financial Officer for any
expenses in excess of $500 in any month. 
The obligations of the Company to make the reimbursements specified
hereunder for expenses accrued prior to the effective date of termination of
employment shall survive any termination of the Term.  The Company reserves the right to offset
against any amounts owed, expenses paid prior to the Effective Date until full
documentation thereof is received and approved by the Company.


 


5.             Termination.


 


Diamond may be removed
from the position of Chairman at any time, for any reason, or for no reason at
all, by the Board upon five day’s notice. 
This Section 5 shall apply regardless of whether Diamond remains as
a member of the Board following the termination of his tenure as Chairman.


 


6.             Diamond’s Representations.  Diamond hereby represents and warrants that: (a) he
has the right to enter into this Agreement and to grant the rights granted by
him herein, (b) the provisions of this Agreement do not violate any other
contracts or agreements to which he is a party and that would adversely affect
his ability to perform his obligations hereunder, and (c) he will comply
with all policies of the Company of which he has notice, provided they are
consistent with applicable laws.


 


7.             The Company’s Representations.  The Company hereby represents and warrants
that: (a) it has the right, power and authority to enter into this
Agreement and to incur the obligations incurred by it herein, (b) this
Agreement has been duly and validly authorized by the Company, and (c) the
provisions of this Agreement do not violate any other contracts or agreements
to which it is a party that would adversely affect its ability to perform its
obligations hereunder.


 


8.             Diamond’s Release of Claims.  Except for the obligations undertaken in this
Agreement, Diamond hereby fully and forever release and discharge the Company
as well as, to the extent applicable, current and former parents, subsidiaries,
affiliates, divisions, employees, former employees, insurers, officers,
directors, investors, shareholders, owners, attorneys, agents, successors,
assignees and representatives (“Releases”) from any and all claims, actions,
suits, losses, rights, damages, costs, fees, expenses, accounts, demands,
obligations, liabilities, and causes of action of every character, nature, kind
or description whatsoever, known or unknown, foreseen or unforeseen, and
suspected or unsuspected, arising out of, or relating to, any act or omission,
whatsoever arising from, occurring during or related in any manner to Diamond’s
hiring, employment, and termination/resignation from the Company, including
without limitation to those arising out of the California Labor Code; the
California Wage Orders; The California Private Attorneys General Act; Title VII
of the Civil Rights Act of 1964, which prohibits discrimination in employment
based on race, color, national origin, religion and sex; the California Fair
Employment and Housing Act, which prohibits discrimination based on, among
other protected classifications, race, color, national origin, ancestry,
physical and mental disability, medical condition, marital status, sex, age and
sexual orientation; the Age Discrimination in
Employment Act, as amended by the Older Workers Benefit Protection Act of 1990;
the Family and Medical Leave Act; the California Family Rights Act; the Fair
Labor Standards Act, the Americans with Disabilities Act, which prohibits
discrimination based upon disability or 


 


3





















 


handicap; and/or any
other federal, state or local laws, common law, or regulations prohibiting
employment discrimination, harassment, and/or retaliation.


 


This Agreement also
includes a release of any claim for breach of contract, wrongful termination,
violation of California Business & Professions Code § 17200,
interference with contractual relations or economic advantage, defamation,
misrepresentation, fraud, wages, benefits, penalties including but not limited
to Labor Code Section 2699 (“The California Private Attorneys General Act”),
or any other claim relating to or arising out of Diamond’s employment with the
Company and any alleged injuries he may have suffered during that employment
and up to and including the Effective Date of this Agreement.  Notwithstanding the foregoing, Diamond is not
waiving his right to enforce the terms of this Agreement or bring any other
claims that cannot be released as a matter of law.


 


The Company and Diamond
agree that the release set forth in this Section 8 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 Diamond 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.  Furthermore, not
withstanding any provisions of this Agreement, Diamond is not waiving or
releasing any insurance coverage as a prior officer, director, employee or
agent of the Company.


 


The parties expressly
represent, warrant and covenant not to sue any Releases to enforce any
Claim  released pursuant to this
Agreement.  This covenant not to bring or
maintain any action in law or equity shall be specifically enforced.  This covenant does not apply to any suits or
other proceedings to enforce the provisions of this Agreement.


 


9.             Civil Code Section 1542.  Diamond 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 OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.


 


Diamond, being aware of
said Code section, agrees to expressly waive any rights Diamond 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.


 


Review of Agreement and
Revocation Period.  It is strongly recommended, urged, and
advised that Diamond discuss this Agreement with his attorney before executing
it.


 


Without limiting the
scope of this Agreement in any way, Diamond also certifies that this Agreement
constitutes a knowing and voluntary waiver of any and all rights or claims that
exist or that Diamond has or may claim to have under the Federal Age
Discrimination in Employment Act (“ADEA”), as amended by the Older Workers
Benefit Protection Act of 1990 (“OWBPA”), which is set forth at 29 U.S.C. §
621, et seq.


 


Claims Against Diamond. 
Except as provided in the last sentence of Section 4(a)(3), as of
the Effective Date, the Company is not aware of any claims it may have against
Diamond.


 


10.           Governing Law.  This Agreement shall be governed by and
construed and enforced in accordance with the internal substantive laws (and
not the laws of choice of laws) of the State of California.


 


4





















 


11.           Entire Agreement.  This Agreement constitutes the whole
agreement of the parties hereto in reference to any employment of Diamond by
the Company and in reference to the subject matter hereof (including, without
limitation, in reference to any grant of stock options or other equity-based
awards to Diamond), and all prior agreements, promises, representations and
understandings relative thereto are merged herein.


 


12.           Assignability.  The services to be performed by Diamond
hereunder are personal in nature and, accordingly, Diamond may not, without the
prior express written consent of Company in each instance, assign or transfer
this Agreement or any rights or obligations hereunder.  Nothing expressed or implied herein is
intended or shall be construed to confer upon or give to any person, other than
the parties hereto, any right, remedy or claim under or by reason of this
Agreement or of any term, covenant or condition hereof.


 


13.           No Third Party Beneficiaries.  Nothing expressed or implied herein is
intended or shall be construed to confer upon or give to any person, other than
the parties hereto, any right, remedy or claim under or by reason of this
Agreement or of any term, covenant or condition hereof.


 


14.           Covenants Reasonable as to Time
and Territory.  Diamond and the
Company have considered carefully the nature and extent of the restrictions set
forth in this Agreement and the rights and remedies conferred upon the Company
under this Agreement, and hereby acknowledge and agree that: (i) such
restrictions are reasonable in time and territory; and (ii) the
consideration provided and to be provided to Diamond is sufficient to
compensate Diamond for such restrictions.


 


15.           Amendments; Waivers.  This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived only by a written instrument executed by the parties hereto or, in
the case of a waiver, by the party waiving compliance.  The failure of any party at any time or times
to require performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. 
No waiver by any party of the breach of any term or provision contained
in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in this Agreement.


 


16.           Notices.  All notices, consents, requests and other
communications hereunder shall be in writing and, if given by personal
delivery, shall be deemed to have been validly served, given or delivered upon
actual delivery and, if mailed or delivered by overnight courier, shall be deemed
to have been validly served, given or delivered when deposited in the United
States mail, as registered or certified mail, with proper postage prepaid, or
when deposited with the courier service, and addressed to the party or parties
to be notified, at the following addresses (or such other addresses) as a party
may designate for itself by like notice):


 


	
  If to Diamond:

   

  	
  Jon Diamond

  c/o
  Ken  Ziffren

  1801
  Century Park West

  Los
  Angeles, California 90067-6406

   

  
	
  If to the Company:

  	
  ARTISTdirect, Inc.

  1601 Cloverfield
  Boulevard, Suite 400S

  Santa Monica, California
  90404-4082

  Attention: Chairman

   

  
	
  With copies to:

  	
  David L. Ficksman

  TroyGould PC

  1801 Century Park East, 16th
  Floor

  Los Angeles, California
  90067

   

  



 


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17.           Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.  To the extent that a restrictive covenant contained
herein may, at any time, be more restrictive than permitted under the laws of
any jurisdiction where this Agreement may be subject to review and
interpretation, the terms of such restrictive covenant shall be those allowed
by law and the covenant shall be deemed to have been revised accordingly.  Each and every term of this Agreement shall
be enforced to the fullest extent permitted by law.


 


18.           Section Headings.  The Section headings herein are used
solely for convenience and shall not be used in the interpretation or
construction of this Agreement.


 


19.           Counterparts; Facsimile.  This Agreement may be executed in two (2) counterparts
and by facsimile, each of which shall be deemed an original and both of which
together shall be deemed one (1) Agreement.


 


20.           CIRCULAR 230 DISCLAIMER.  EACH PARTY TO THIS AGREEMENT (FOR PURPOSES OF
THIS SECTION, THE “ACKNOWLEDGING PARTY”; AND EACH PARTY TO THIS AGREEMENT OTHER
THAN THE ACKNOWLEDGING PARTY, AN “OTHER PARTY”) ACKNOWLEDGES AND AGREES THAT (1) NO
PROVISION OF THIS AGREEMENT, AND NO WRITTEN COMMUNICATION OR DISCLOSURE BETWEEN
OR AMONG THE PARTIES OR THEIR ATTORNEYS AND OTHER ADVISERS, IS OR WAS INTENDED
TO BE, NOR SHALL ANY SUCH COMMUNICATION OR DISCLOSURE CONSTITUTE OR BE
CONSTRUED OR BE RELIED UPON AS, TAX ADVICE WITHIN THE MEANING OF UNITED STATES
TREASURY DEPARTMENT CIRCULAR 230 (31 CFR PART 10, AS AMENDED); (2) THE
ACKNOWLEDGING PARTY (A) HAS RELIED EXCLUSIVELY UPON HIS, HER OR ITS OWN,
INDEPENDENT LEGAL AND TAX ADVISERS FOR ADVICE (INCLUDING TAX ADVICE) IN
CONNECTION WITH THIS AGREEMENT, (B) HAS NOT ENTERED INTO THIS AGREEMENT
BASED UPON THE RECOMMENDATION OF ANY OTHER PARTY OR ANY ATTORNEY OR ADVISOR TO
ANY OTHER PARTY, AND (C) IS NOT ENTITLED TO RELY UPON ANY COMMUNICATION OR
DISCLOSURE BY ANY ATTORNEY OR ADVISER TO ANY OTHER PARTY TO AVOID ANY TAX
PENALTY THAT MAY BE IMPOSED ON THE ACKNOWLEDGING PARTY; AND (3) NO
ATTORNEY OR ADVISER TO ANY OTHER PARTY HAS IMPOSED ANY LIMITATION THAT PROTECTS
THE CONFIDENTIALITY OF ANY SUCH ATTORNEY’S OR ADVISER’S TAX STRATEGIES
(REGARDLESS OF WHETHER SUCH LIMITATION IS LEGALLY BINDING) UPON DISCLOSURE BY
THE ACKNOWLEDGING PARTY OF THE TAX TREATMENT OR TAX STRUCTURE OF ANY
TRANSACTION, INCLUDING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.


 


	
   

  	
   

  	
  “COMPANY”

  
	
   

  	
   

  	
   

  
	
  JON DIAMOND

  	
   

  	
  ARTISTdirect, Inc. 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  	
  Dimitri Villard (Interim
  CEO)

  
	
   

  	
   

  	
   

  	
   

  



 


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EXHIBIT
1


 


GENERAL
RELEASE AND WAIVER


 


I, Jon Diamond,
(hereinafter referred to as the “Releasing Party”), in consideration for the
Consideration provided for by that Amended And Restated Services Agreement
dated as of March 6, 2008, by and between Releasing Party and ARTISTdirect, Inc.  (“Company”), which I acknowledge provides
value beyond that to which I am otherwise entitled, do as follows:


 


1.             Fully
release and discharge forever Company and its current and former agents,
executives, officers, directors, trustees, representatives, owners, attorneys,
subsidiaries, related corporations, assigns, successors, and affiliated
organizations (hereafter referred to collectively as the “Released Parties”),
and each and all of them, from any and all liabilities, claims, causes of
action, charges, complaints, obligations, costs, losses, damages, injuries,
penalties, attorneys’ fees, and other legal responsibilities, of any form
whatsoever, whether known or unknown, unforeseen, unanticipated, unsuspected or
latent, which Releasing Party or Releasing Party’s heirs, administrators,
executors, successors in interest, and/or assigns have incurred or expect to
incur, or now own or hold, or have at any time heretofore owned or held, or may
at any time own, hold, or claim to hold by reason of any matter or thing
arising from any cause whatsoever as of the Effective Date of this General
Release and Waiver.


 


2.             Without
limiting the generality of the foregoing, and by way of example only, I fully
release and discharge each and all of the Released Parties from any and all
claims, demands, rights, and causes of action that have been or could be
alleged against any of said Released Parties (a) in connection with my
employment, prior employment agreements, or the termination of such employment;
(b) in connection with any and all matters pertaining to my employment by
any of the Released Parties, including, but not limited to, any and all
compensation, salaries, wages, bonuses, commissions, overtime, monies, pay,
penalties, allowances, benefits, sick pay, severance pay, retention pay or benefits,
paid leave benefits, penalties, interest, damages, and promises on any and all
of the above; and (c) under or in connection with the state and federal
age discrimination laws, as explained further in Section 3 below.


 


3.             Without
limiting the scope of this Agreement in any way, I also certify that this
Agreement constitutes a knowing and voluntary waiver of any and all rights or
claims that exist or that I have or may claim to have under the Age Discrimination in Employment Act of 1967 (29
U.S.C.  Section 621 et seq.), as
amended by the OWBPA.  This
Agreement does not govern any rights or claims that may arise under the ADEA
after the date this Agreement is signed by me.


 


4.             This
release extends to all claims of every nature and kind whatsoever, known or
unknown, suspected or unsuspected, past or present, which existed before the
execution of this release, including, but not limited to, any claims in tort or
contract related to Releasing Party’s employment, termination of employment, or
to any acts or omissions of the Company or its employees, agents, officers,
directors, representative, former supervisors, related persons, entities and
assigns, involving Releasing Party.  It
is expressly understood by Releasing Party that among the various rights and claims
being waived in this release are those arising under federal and state equal
employment laws, including all state and federal wage laws, California Labor
Code; the California Wage Orders; The California Private Attorneys General Act;
Title VII of the Civil Rights Act of 1964, which prohibits discrimination in
employment based on race, color, national origin, religion and sex; the
California Fair Employment and Housing Act, which prohibits discrimination
based on, among other protected classifications, race, color, national origin,
ancestry, physical and mental disability, medical condition, marital status,
sex, age and sexual orientation; the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit
Protection Act of 1990; the Family and Medical Leave Act; the
California Family Rights Act; the Fair Labor Standards Act, the Americans with
Disabilities Act, which prohibits discrimination based upon disability or
handicap; and/or any other federal, state or local laws, common law, or regulations
prohibiting employment discrimination, harassment, and/or retaliation.


 


7

















 


This Agreement also
includes a release of any claim for breach of contract, wrongful termination,
violation of California Business & Professions Code § 17200,
interference with contractual relations or economic advantage, defamation,
misrepresentation, fraud, wages, benefits, penalties including but not limited
to Labor Code Section 2699 (“The California Private Attorneys General Act”),
or any other claim relating to or arising out of Releasing Party’s employment
with the Company and any alleged injuries he may have suffered during that
employment and up to and including the Effective Date of this Agreement.  Notwithstanding the foregoing, this Release
does not release claims that cannot be released as a matter of law.


 


5.             Releasing
Party is hereby advised to consult with an attorney prior to executing this
Release.  This Release constitutes
written notice that the Releasing Party has been advised to consult with an
attorney prior to executing this Release and that the Releasing Party has
carefully considered other alternatives to executing this Release.


 


6.             Releasing
Party understands that the aforementioned consideration is not to be construed
as an admission on the part of said Released Parties of any liability
whatsoever and that the Released Parties deny that they have engaged in any
wrongdoing or have any liability whatsoever.


 


7.             Releasing
Party understands that the Released Parties dispute that any amounts whatsoever
are owed to the Releasing Party, but wish to avoid the disruption,
inconvenience, and the administrative, legal, and other costs associated with
any litigation or other claims by the Releasing Party.  Accordingly, the RELEASING  PARTY AGREES 
NOT TO DISCLOSE, PUBLICIZE OR ALLOW OR CAUSE TO BE PUBLICIZED OR
DISCLOSED ANY OF THE TERMS AND CONDITIONS OF THIS RELEASE, THE SETTLEMENT, OR THAT
THIS OR ANY SETTLEMENT OR RELEASE HAS BEEN ENTERED INTO, EXCEPT FOR DISCLOSURES
TO THE RELEASING PARTY’S SPOUSE AND TAX CONSULTANT.


 


8.             Releasing
Party expressly represents, warrants and covenants not to sue any Released
Party to enforce any charge, claim or cause of action released pursuant to this
Agreement.  This covenant not to bring or
maintain any action in law or equity shall be specifically enforced.  This covenant does not apply to any suits or
other proceedings to enforce the provisions of this Agreement.  Notwithstanding the foregoing, neither this
Covenant, nor any provision of this Agreement, prevents Releasing Party from: (1) filing
suit to challenge the Company’s compliance with the waiver requirements of the
Age Discrimination in Employment Act, as amended by the Older Worker Benefit
Protection Act; or (2) filing a charge with the Equal Employment
Opportunity Commission.


 


9.             In
the event Releasing Party breaches the covenant not to sue as set forth in
paragraph 8, subject to the limitations provided therein, and files any claim,
charge or action with any court or administrative body arising from Releasing
Party’s employment or for any alleged violation of any ordinance, statute or
other provision of law, Releasing Party shall be liable for all damages
incurred by the Released Parties, including without limitation, compensatory
damages as well as attorneys’ fees and costs.


 


10.           Releasing
Party expressly waives all rights under Section 1542 of the California
Civil Code.  Said Section reads as
follows:


 


Section 1542.  A general release does not extend to claims
which the creditor does not know or suspect to exist in his or her favor at the
time of executing the release, which if known to him or her must have
materially affected his or her settlement with the debtor.


 


11.           Releasing
Party expressly acknowledges that he has been provided at least 21 days to
review and consider this Agreement before signing it.  Should Releasing Party decide not to use the
full 21 days, then he knowingly and voluntarily waives any claim that he was
not given that period of time or did not use the entire 21 days to consult an
attorney or consider this Agreement.


 


8

















 


12.           Releasing
Party acknowledges that he is relying solely upon the contents of this Release
and is not relying on any other representations whatsoever of the Released
Parties as an inducement to enter into this agreement and Release.


 


13.           The
Releasing Party further acknowledges that the Releasing Party (a) has read
this Release, (b) has been provided a full and ample opportunity to study
it, including a period of at least 21 days within which to consider it, (c) has
been advised in writing to consult with an attorney prior to signing it, and (d) is
signing it voluntarily with full knowledge that it is intended, to the maximum
extent permitted by law, as a complete release and waiver of any and all
claims.


 


14.           CIRCULAR
230 DISCLAIMER.  EACH PARTY TO THIS
AGREEMENT (FOR PURPOSES OF THIS SECTION, THE “ACKNOWLEDGING PARTY”; AND EACH
PARTY TO THIS AGREEMENT OTHER THAN THE ACKNOWLEDGING PARTY, AN “OTHER PARTY”)
ACKNOWLEDGES AND AGREES THAT (1) NO PROVISION OF THIS AGREEMENT, AND NO
WRITTEN COMMUNICATION OR DISCLOSURE BETWEEN OR AMONG THE PARTIES OR THEIR
ATTORNEYS AND OTHER ADVISERS, IS OR WAS INTENDED TO BE, NOR SHALL ANY SUCH
COMMUNICATION OR DISCLOSURE CONSTITUTE OR BE CONSTRUED OR BE RELIED UPON AS,
TAX ADVICE WITHIN THE MEANING OF UNITED STATES TREASURY DEPARTMENT CIRCULAR 230
(31 CFR PART 10, AS AMENDED); (2) THE ACKNOWLEDGING PARTY (A) HAS
RELIED EXCLUSIVELY UPON HIS, HER OR ITS OWN, INDEPENDENT LEGAL AND TAX ADVISERS
FOR ADVICE (INCLUDING TAX ADVICE) IN CONNECTION WITH THIS AGREEMENT, (B) HAS
NOT ENTERED INTO THIS AGREEMENT BASED UPON THE RECOMMENDATION OF ANY OTHER
PARTY OR ANY ATTORNEY OR ADVISOR TO ANY OTHER PARTY, AND (C) IS NOT ENTITLED
TO RELY UPON ANY COMMUNICATION OR DISCLOSURE BY ANY ATTORNEY OR ADVISER TO ANY
OTHER PARTY TO AVOID ANY TAX PENALTY THAT MAY BE IMPOSED ON THE
ACKNOWLEDGING PARTY; AND (3) NO ATTORNEY OR ADVISER TO ANY OTHER PARTY HAS
IMPOSED ANY LIMITATION THAT PROTECTS THE CONFIDENTIALITY OF ANY SUCH ATTORNEY’S
OR ADVISER’S TAX STRATEGIES (REGARDLESS OF WHETHER SUCH LIMITATION IS LEGALLY
BINDING) UPON DISCLOSURE BY THE ACKNOWLEDGING PARTY OF THE TAX TREATMENT OR TAX
STRUCTURE OF ANY TRANSACTION, INCLUDING ANY TRANSACTION CONTEMPLATED BY THIS
AGREEMENT.


 


IN WITNESS WHEREOF, this
General Release and Waiver is executed as of the date stated below:


 


	
   

  	
   

  	
  “COMPANY”

  
	
   

  	
   

  	
   

  
	
  JON DIAMOND

  	
   

  	
  ARTISTdirect, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  
	
  Jon Diamond

  	
   

  	
   

  	
  Dimitri Villard (Interim
  CEO)

  
	
   

  	
   

  	
   

  	
   

  



 


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