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EXHIBIT 10.53
AGREEMENT TO EXTEND INITIAL PERIOD OF EMPLOYMENT
This Agreement To Extend Initial Period of Employment (the "Agreement") is
being executed and delivered in connection with ARTISTdirect, Inc.'s (the
"Company") annual meeting of stockholders for the fiscal year ended December
31, 2001 (the "2001 Annual Meeting"), and is being entered into this 27th day
of April, 2001, by and between the Company and Xxxx X. Xxxxxx ("Employee").
Recitals
WHEREAS, Employee currently serves as Chairman of the Board and Chief
Executive Officer of the Company; and
WHEREAS, Employee and the Company are parties to that certain Employment
Agreement, dated July 28, 1998 (the "Employment Agreement"), pursuant to which
either the Employee or the Company has a right to terminate the Employment
Agreement upon written notice to the other not less than ninety (90) days prior
to July 27, 2001 (the "Initial Period"), as provided for in Section 4 therein;
and
WHEREAS, the Company intends to nominate Xxxxxxxxx X. Field to be elected
as a director of the Company, and to retain him as Chairman of the Board and
Chief Executive Officer of the Company; and
WHEREAS, the Company will be seeking the approval of its stockholders at
the 2001 Annual Meeting to elect Mr. Field as a director of the Company and to
approve an employment agreement with Mr. Field whereby Mr. Field will be
retained as Chairman of the Board and Chief Executive Officer of the Company;
and
WHEREAS, the parties acknowledge that upon the approval by the Company's
stockholders at the 2001 Annual Meeting, Mr. Field will become a director,
Chairman of the Board and Chief Executive Officer of the Company and, in order
to effectuate this transition, the undersigned must voluntarily resign his
position as Chairman of the Board and Chief Executive Officer of the Company;
WHEREAS, the parties acknowledge that they are presently engaged in
discussions regarding Employee's new job title and job duties and that the
parties anticipate Employee will be offered and will accept the position of
Vice Chairman of the Board and President, Artist Services, of the Company for
the remaining part of the "Term" as that term is defined in Section 4 of the
Employment Agreement; and
WHEREAS, Employee acknowledges that Mr. Field's retention as a director,
Chairman of the Board and Chief Executive Officer of the Company is in the best
interests of the Company and, as a result, in his best interests, and that the
election of Mr. Field as a
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director of the Company and retention of Xx. Xxxxxx as Chairman of the Board
and Chief Executive Officer of the Company will be expedited in light of this
Agreement; and
WHEREAS, in lieu of exercising its right to give notice that it will
not be extending the Term of Employee's employment beyond July 27, 2001,
pursuant to Section 4 of the Employment Agreement, the Company is willing to
extend the Initial Term conditioned upon the exchange of consideration as
referenced in Sections 1 and 2 of this Agreement.
Agreement
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Employee waives any right he now has, or in the future may
have, to terminate his employment in accordance with Section 7(d)(i) of the
Employment Agreement in connection with: (a) Mr. Field's election as a director
of the Company; (b) the retention of Mr. Field's as Chairman of the Board and
Chief Executive Officer of the Company; (c) Employee resigning, terminating
and/or relinquishing his position as Chairman of the Board and Chief Executive
Officer of the Company; or (d) Employee being offered, accepting, or performing
the job duties assigned to him in connection with the position of Vice Chairman
of the Board and President, Artist Services, of the Company. The parties
acknowledge and agree that Employee's waiver of Section 7(d)(i) of the
Employment Agreement, as set forth in Section 1 of this Agreement, shall not in
any way constitute, and should not be construed as, a waiver of any other
section, provision, term or condition, of the Employment Agreement and that all
other sections, provisions, terms and conditions, contained in the Employment
Agreement shall remain in full force and effect.
2. Employee also agrees to voluntarily resign his position as
Chairman and Chief Executive Officer in the event that the Company's
stockholder elect Mr. Field as a director and approve Mr. Field's employment
agreement at the 2001 Annual Meeting.
3. In consideration for Employee's waiver as set forth in Section
1 of this Agreement, and Employee's agreement to voluntarily resign his
position as set forth in Section 2 of this Agreement, the Company agrees to (a)
extend the Initial Period to September 30, 2001, unless terminated sooner as
provided for in Section 7 of the Employment Agreement and (b) in the event that
Employee voluntarily resigns as Chairman and Chief Executive Officer pursuant
to Section 2, retain Employee as Vice Chairman and President, ARTIST Services,
for the remainder of the Term, pursuant to the Employment Agreement, as amended
herein. Subject to this Section 3, the reference to "July 28, 2001," in the
third line of Section 4 of the Employment Agreement shall hereafter be deemed
to refer to "October 1, 2001."
4. The parties agree that the prevailing party in any action, suit
or proceeding based on, or arising out of, or in any way connected with, the
matters which are referenced or
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covered in this Agreement, shall be entitled to recover its costs, expenses
and attorneys' fees incurred in such action, suit or proceeding.
5. This Agreement sets forth the entire agreement between the parties
hereto and fully supersedes any and all prior or contemporaneous agreements or
understandings, written or oral, between the parties hereto pertaining to the
subject matter hereof. In particular, the parties agree that this Agreement
shall supersede, replace, and cancel the "Amendment to Employment Agreement"
executed by Employee and the Company on April 27, 2001. Additionally, this
Agreement cannot be changed or modified except by a writing signed by both
parties.
6. In entering into this Agreement, the undersigned acknowledges that he
may be waiving significant legal rights and that he has sought and obtained the
legal advice of his attorneys, who are the attorneys of his own choice. The
undersigned further represents that he has completely read the terms of this
Agreement, and that he fully understands and voluntarily accepts those terms.
7. This Agreement may not be changed except in a writing signed by the
person(s) against whose interest such change shall operate. This Agreement
shall be binding upon and inure to the benefit of Employee's and the Company's
respective legal heirs, successors and assigns. This Agreement shall be
governed by and construed under the laws of the State of California without
regard to principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Agreement as of this 27th day of April 2001.
/s/ XXXX X. XXXXXX
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XXXX X. XXXXXX
ACKNOWLEDGED AND AGREED:
ARTISTDIRECT, INC.
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Title Chief Financial Officer
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