Employment Agreement - AdStar Inc. and Eli Rousso
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 1st day of July 2002 by and between
ADSTAR, INC., a Delaware corporation (the "Company") and ELI ROUSSO, an
individual (the "Executive").
1. PERIOD. Subject to the terms and conditions hereof, the term of
employment of the Executive under this Agreement shall be for the period (the
"Employment Period") commencing on July 1, 2002 and terminating on the
expiration of four (4) years from such date, unless sooner terminated by the
death of the Executive or as provided in Paragraphs 4, 5 or 6 hereof.
2. DUTIES AND RESPONSIBILITIES. The Company shall employ the Executive and
the Executive accepts such employment as EXECUTIVE VICE PRESIDENT of the Company
during the Employment Period. The Executive shall report to and be subject to
the direction of the Board of Directors and shall perform such duties
commensurate with his title and position as may be assigned to him from time to
time by the Board of Directors. During the Employment Period, the Executive
shall devote his full time, energy, skill and attention to the businesses of the
Company and shall perform his duties in a diligent, trustworthy, loyal and
businesslike manner.
3. COMPENSATION AND BENEFITS.
(a) The Executive's compensation shall be at the annual rate of
$212,800, less applicable withholding for income and employment taxes as
required by law and other deductions to which the Executive shall agree.
(b) The Executive shall be entitled to such increase in compensation
or bonuses as and when determined by the Board of Directors.
(c) Except as otherwise provided herein, the Executive shall be
entitled to participate, to the extent he qualifies, in any bonus or other
incentive compensation, profit-sharing or retirement plans, life or health
insurance plans or other benefit plans maintained by the Company, upon such
terms and conditions as are made available to executives of the Company,
generally.
(d) The Executive shall be entitled to reimbursement of all
reasonable, ordinary and necessary business related expenses incurred by him in
the course of his duties and upon submission of appropriate documentation in
accordance with the Company's procedures.
(e) The Executive shall be entitled to paid vacation during each
calendar year in accordance with the procedures of the Company in effect from
time to time.
(f) The Executive shall be entitled to disability benefits and
medical insurance at the same level as now provided by the Company or at such
higher level as the Company may hereafter provide for other executives or
employees in the Company.
4. TERMINATION IN CASE OF DEATH OR DISABILITY. In case of a Disability,
which for this purpose shall mean that as a result of illness or
<PAGE>
injury, the Executive is unable substantially to perform his duties hereunder
for a period of at least one hundred eighty (180) consecutive days, the Company
may terminate the Executive's employment hereunder upon giving the Executive at
least thirty (30) days' written notice of termination; provided, however, that
if the Executive is eligible to receive disability payments pursuant to a
disability insurance policy paid for by the Company, the Executive shall assign
such benefits to the Company for all periods as to which he is receiving full
payment under this Agreement. This Agreement shall terminate upon the death of
the Executive.
5. OTHER TERMINATION BY THE COMPANY.
(a) The Company may terminate the Executive's employment for Cause
(as defined in sub-paragraph (b) below); provided, however, that the Company
shall not terminate this Agreement for reasons set forth in Section 5(b)(i)
unless the Company shall first have delivered to the Executive a notice which
specifically identifies such Cause and the Executive shall not have cured the
same within thirty (30) days after receipt of such notice (the "Cure Period").
(b) "Cause" shall mean (i) a material breach by the Executive of any
of the terms, covenants, agreements or representations set forth herein, or (ii)
the Executive willingly engaging in misconduct which is materially injurious to
the Company, monetarily or otherwise, including, but not limited to, engaging in
any conduct which constitutes a crime under federal, state or local laws (other
than traffic violations).
6. TERMINATION BY THE EXECUTIVE FOR "GOOD REASON". The Executive may
terminate his employment for "Good Reason" if:
(a) he is assigned, without his express written consent, any duties
inconsistent with his positions, duties, responsibilities, authority and status
with the Company as of the date hereof, or his reporting responsibilities or
titles as in effect as of the date hereof are changed; provided, however, that
prior to termination of employment by Executive pursuant to this Section 6(a),
Executive shall notify the Company's Board of Directors in writing of the causes
for such termination and the Board shall have twenty (20) days from the receipt
of such notice to substantially cure such causes for termination; or
(b) his compensation or benefits are reduced.
7. LIQUIDATED DAMAGES. It is understood that if the Executive (i) shall
elect to terminate his employment for a Good Reason (as defined above) or (ii)
his employment is terminated by the Company otherwise than as provided in
Section 4 and 5, the Executive will suffer damages which will be difficult to
calculate. Consequently, in the event of a termination of the Executive's
employment for either of these reasons, the Executive shall be entitled by way
of liquidated damages and not as a penalty to receive a single lump sum payment
in an amount equal to the amount of the compensation payments that, but for his
termination of employment under this Section 7, would have been payable to the
Executive for the remainder of the Employment Period or twelve (12) months,
whichever is higher.
Such payment shall be made by the Company to the Executive within fifteen
(15) days following his termination of employment for the reason set forth in
this Section 7. The Executive shall not be required to mitigate the amount of
any payment provided in this Section 7 nor shall the amount payable
<PAGE>
under this Section be reduced by any compensation earned by the Executive after
the date of his termination of employment.
8. CONFIDENTIALITY; NON-COMPETE.
(a) The Executive agrees that during the Employment Period, or at
any time thereafter, he will not, directly or indirectly, use for his own
benefit or for the benefit of any third party, or reveal or cause to be revealed
to any person, firm, entity or corporation, any Confidential Information (as
defined herein) which relates to the Company or its customers. Confidential
Information shall include, but not be limited to, trade secrets, supplier lists,
customer lists, intellectual property and any other information, whether or not
proprietary, which relates to the business of the Company and which otherwise is
not considered to be public information; provided, however, that the parties
acknowledge that it is not the intention of this paragraph to include within its
subject matter (i) information not proprietary to the Company, (ii) information
which is then in the public domain, or (iii) information required to be
disclosed by law.
(b) The Executive further agrees that during the Employment Period
and for a period of eighteen (18) months thereafter, he will not, directly or
indirectly, in any manner (i) engage in any business which competes with any
business conducted by the Company, and will not, directly or indirectly, own,
manage, operate, join, control or participate in the ownership, management,
operation or control of, or be employed by or connected in any manner with any
corporation, firm, entity, or business that is so engaged unless duly authorized
by written consent of the Company; provided, however, that nothing herein shall
prohibit the Executive from owning not more than three (3%) percent of the
outstanding stock of any publicly held corporation; (ii) persuade or attempt to
persuade any employee of the Company to leave the employ of the Company or to
become employed by any other entity; (iii) persuade or attempt to persuade any
current customer or former customer to reduce the amount of business it does or
intends or anticipates doing with the Company or (iv) take any action which
might divert from the Company any opportunity of which he became aware during
his employment with the Company which would be within the scope of any of the
businesses then engaged in or planned to be engaged in by the Company.
(c) The Executive acknowledges that a violation of any of the
covenants contained in this paragraph 8 may cause irreparable injury to the
Company and that the Company will be entitled, in addition to any other rights
and remedies it may have, to injunctive relief; provided, however, that nothing
contained herein constitutes a waiver by the Executive of his rights to contest
the existence of any such violation of such covenants.
(d) In the event the covenants contained in this paragraph 8 should
be held by any court or other duly constituted judicial authority to be void or
otherwise unenforceable in any particular jurisdiction or with respect to any
particular activity, then such covenants so affected shall be deemed to have
been amended and modified so as to eliminate therefrom the particular
jurisdiction or activity as to which such covenants are so held to be void or
otherwise unenforceable, and, as to all other jurisdictions and activities
covered hereby, the terms and provisions hereof shall remain in full force and
effect.
<PAGE>
(e) In the event this Agreement shall be terminated, then
notwithstanding such termination, the provisions of this paragraph 8 shall
survive such termination.
9. SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to the
benefit of and be enforceable by the parties hereto, their personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
10. NOTICE. Any notice, request, instruction or other document to be given
hereunder by any party shall be in writing and shall be deemed to have been duly
given when delivered personally or five (5) days after dispatch by registered or
certified mail, postage prepaid, return receipt requested, to the party to whom
the same is so given or made:
If to the Company
addressed to: AdStar, Inc.
4553 Glencoe Avenue, Suite 325
Marina del Rey, California 90292
If to the Executive
to: Eli Rousso
AdStar, Inc.
4553 Glencoe Avenue, Suite 325
Marina del Rey, California 90292
11. GOVERNING LAW; CHANGE OR TERMINATION. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
[California] applicable to agreements made and to be performed in California,
and may not be changed or terminated orally.
12. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement in any respect shall not affect the validity or enforceability of such
provision in any other respect or of any other provision of this Agreement, all
of which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed and delivered as of the date first hereinabove
written.
ADSTAR, INC.
BY: /s/ Leslie Bernhard /s/ Eli Rousso
--------------------------- ---------------------------
NAME: Leslie Bernhard Eli Rousso
TITLE: CEO