exv10w16



 






Exhibit 10.16




EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT dated as of the 21st day of December 2005 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 December 21,
2005 and terminating on the expiration of four (4) years from such date, unless extended as
provided in Paragraph 2 or terminated as provided in Paragraphs 5, 6 or 7 hereof.



     2. RENEWAL. The Employment Period shall be extended for successive one-year periods unless
prior to December 1 of any year, either party notifies the other that he or it chooses not to
extend the employment term. By way of example, if neither party makes an election prior to
December 1, 2006 then the Employment Term shall automatically be extended by one additional year to
December 20, 2010.



     3. DUTIES AND RESPONSIBILITIES. The Company shall employ the Executive and the executive
accepts such employment as EXECUTIVE VICE PRESIDENT AND CHIEF TECHNOLOGY OFFICER 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.



     4. 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.




 









 








     5. TERMINATION IN CASE OF DEATH OR DISABILITY. In case of Disability, which for this purpose
shall mean that as a result of illness or 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.



     6. 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).




     7. 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
7(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.




     8. 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 5 and 6, 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 8, 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 8. The Executive shall not
be required to mitigate the amount of any payment provided in this Section 8

 









 








nor shall the amount payable under this Section be reduced by any compensation earned by the
Executive after the date of his termination of employment.




     9. 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 9 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 9 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.




          (e) In the event this Agreement shall be terminated, then notwithstanding such termination,
the provisions of this paragraph 9 shall survive such termination.




     10. 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.



 









 





     11. 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 300

Marina del Rey, California 90292




     If to the Executive to:


Eli Rousso

AdStar, Inc.

4553 Glencoe Avenue, Suite 300

Marina del Rey, California 90292




     12. GOVERNING LAW; CHANGE OR TERMINATION. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California applicable to agreements made and to be
performed in California, and may not be changed or terminated orally.



     13. 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:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Name	 	 
	 

	 	 	 	 
	Its:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Title	 	 
	 

	 	 	 	 
	 
	Executive
 	 	 
	 

	 	 	 	 
	 	 	 
	Eli Rousso