Exhibit 10.13


 


KEY
EMPLOYEE AGREEMENT


 


This
KEY EMPLOYEE AGREEMENT (the “Agreement”) is made and entered into as of the 8th
day of October, 2002, by and between ValueClick, Inc. a Delaware
corporation (the “Company” or “ValueClick”) and Scott Ray (“Executive”).


 


WHEREAS,
the Company is a global Internet advertising network enabling advertisers to
take advantage of the Internet to sell their products and increase brand
awareness;


 


WHEREAS,
Executive possesses unique technical and operational skills which are valuable
to the business and financial prospects of the Company;


 


WHEREAS,
in light of the foregoing, the Company desires to employ Executive as General
Manager, Mediaplex and Adware divisions and Executive desires to accept such
employment;


 


NOW
THEREFORE, in consideration of the mutual promises contained herein, Company
and Executive agree as follows:


 


I.    Description of Employment Position and Responsibilities.    You will serve in the
position of General Manager, Mediaplex and Adware divisions. By executing this
offer letter, you agree to assume and discharge such duties and
responsibilities as are commensurate with this position and such other duties
and responsibilities that are assigned to you from time to time by the Company’s
Chief Executive Officer. During the term of your employment, you shall devote
your full time, skill and attention to your duties and responsibilities and
shall perform them faithfully, diligently and competently. In addition, you
shall comply with and be bound by the operating policies, procedures and
practices of the Company in effect from time to time during your employment. To
the fullest extent permitted by Delaware law, Company shall indemnify and
defend Executive from all costs, expenses and losses whether direct or indirect,
including consequential damages and attorney’s fees, incurred or sustained by
Executive in consequence of the lawful discharge of his duties on Company’s
behalf.


 


II.    Employment Considerations.


 


2.1    At-Will Employment. You acknowledge that
your employment with the Company is for an unspecified duration that
constitutes at-will employment, and that either you or the Company can
terminate this relationship at any time, with or without Cause (as defined
below) and without notice.


 


III.   Compensation.


 


3.1    Base Salary. In consideration of your
services, to be effective on your start date (TBD but no later than November
11, 2002), you will be paid an annual base salary of $235,000 (Two Hundred Thirty
Five Thousand Dollars and no Cents), payable no less frequently than on a
monthly basis in accordance with the Company’s standard payroll practices (“Standard
Payment Schedule”). Your base salary, in conjunction with your performance
evaluation, is normally reviewed annually by the Company’s Chief Executive
Officer.


 


3.2    Incentive Compensation. In addition to
your base salary, you will be entitled to participate in an incentive
compensation plan with the opportunity to receive an annual bonus of $100,000 (One
Hundred Thousand Dollars and no Cents) paid quarterly upon the achievement of
certain milestones as established by the Company’s Chief Executive Office and
ratified by the Company’s Board of Directors or the Compensation Committee of
the Board.


 

















 


IV.    Additional Benefits.


 


4.1    Health Insurance/Vacation/Benefit Plans.
You will be entitled to receive the standard employee benefits made available
by the Company to its employees to the full extent of your eligibility therefore.
You shall be entitled to three (3) weeks of paid vacation per year, the
terms and conditions of your vacation benefits shall be in accordance with the
Company’s vacation policy in effect at that time. During your employment, you
shall be permitted, to the extent eligible, to participate in any group
medical, dental, life insurance and disability insurance plans, or similar
benefit plan of the Company that is available to employees generally.
Participation in any such plan shall be consistent with your rate of
compensation to the extent that compensation is a determinative factor with
respect to coverage under any such plan. The Company also agrees to pay for
your COBRA coverage until Executive is eligible for coverage under the Company’s
benefit plans.


 


4.2    Reimbursement of Expenses. The Company
shall reimburse you for all reasonable expenses actually incurred or paid by
you in the performance of your services on behalf of the Company, upon prior
authorization and approval in accordance with the Company’s expense
reimbursement policy as from time to time in effect.


 


4.3    Stock Options. Pursuant to Board approval,
and under the terms and conditions of the Company’s Stock Option Plan and Stock
Option Agreement, including the stock vesting provisions contained therein, you
will be granted an option to purchase 150,000 shares of common stock of the
Company as set forth in a Stock Option Agreement, which will be sent to you
separately. In addition to the options set out in your Stock Option Agreement,
you may be granted an option to purchase additional shares of common stock from
time to time in the Company’s discretion (the options in your Stock Option
Agreement and any and all options you may be granted in the future are
collectively referred to herein as the “Options”).


 


V.    Termination.


 


5.1    Voluntary Termination; Cause. At any time,
if your employment is terminated by the Company with Cause, or if you resign
your employment voluntarily, no compensation or other payments will be paid or
provided to you for periods following the date when such a termination of
employment is effective, provided that any rights you may have under the
benefit plans of the Company shall be determined under the provisions of those
plans. If your employment terminates as a result of your death or disability,
no compensation or payments will be made to you other than those to which you
may otherwise be entitled under the benefit plans of the Company.


 


VI.   Change
of Control Benefits.


 


6.1    Change of Control Compensation. In the
event there should occur a Change of Control (as defined below), and
(i) your employment by the Company terminates for any reason other than
for Cause or on account of your permanent disability or death or
(ii) there occurs a Constructive Termination, the Company will pay to you
as severance, in one lump sum amount (unless you indicate in writing to the
Company prior to the Company’s payment of your election to be paid in
installments over a specified period) an amount equal to six (6) months of
your annual base salary in effect immediately prior to the time of such termination.
Such amount will be paid by the Company as soon as administratively possible
following such termination, but in all events not later than fifteen
(15) days following the effective date of such termination. Such amounts
paid will be reduced by all applicable withholding taxes and other deductions
required by law and any additional amounts authorized by you to be withheld.


 


6.2    Other Change of Control Benefits. In
addition to any amounts payable under Section 6.1 above, upon the
occurrence of a Change of Control and (i) your employment by the Company
terminates for any reason other than for Cause or on account of your permanent
disability or death or (ii) there occurs a Constructive Termination, the
vesting of fifty percent (50%) of the unvested Options shall be immediately
exercisable.


 

















 


6.3  Change
in Control Definitions. For purposes of this Agreement:


 


(a)
A “Change in Control” will be deemed to occur upon consummation of any one of
the following:


 


(i)
a sale, lease or other
disposition of all or any material portion of the assets of the Company;


 


(ii)
a merger, consolidation or other reorganization in which the Company is not the
surviving corporation and the stockholders of the Company immediately prior to
the merger, consolidation or other reorganization fail to possess direct or
indirect ownership of more than fifty percent (50%) of the voting power of the
securities of the surviving corporation (or if the surviving corporation is a
controlled affiliate of another Person, then the required beneficial ownership
will be determined with respect to the securities of that Person which controls
the surviving corporation and is not itself a controlled affiliate of any other
Person) immediately following such transaction;


 


(iii)
a merger, consolidation or other
reorganization in which the Company is the surviving corporation and the
stockholders of the Company immediately prior to such merger, consolidation or
other reorganization fail to possess direct or indirect beneficial ownership of
more than fifty percent (50%) of the securities of the Company (or if the
Company is a controlled affiliate of another Person, then the required
beneficial ownership will be determined with respect to the securities of that
Person which controls the Company and is not itself a controlled affiliate of
any other Person) immediately following such transaction;


 


For purposes of Sections 6.3(a)(ii) and
6.3(a)(iii) above, any Person who acquired securities of the Company prior
to the occurrence of the specified transaction in contemplation of such
transaction and who immediately after such transaction possesses direct or
indirect beneficial ownership of at least ten percent (10%) of the securities
of the Company or the surviving corporation, as appropriate (or if the Company
or the surviving corporation is a controlled affiliate, then of the appropriate
Person as determined above), will not be included in the group of stockholders
of the Company immediately prior to such transaction.


 


(b)
A “Constructive Termination”
means any of the following occurring after a Change in Control:


 


(i)
a reduction, without your written consent, in your then current annual base
salary;


 


(c)
“Cause” means (i) a final conviction of a felony or a crime involving
moral turpitude causing material harm to the standing and reputation of the
Company; (ii) refusal to comply with reasonable directives of the Company’s
Board of Directors; (iii) negligence or reckless or willful misconduct in
the performance of Executive’s duties; (iv) failure to perform, or continuing
neglect in the performance of Executive’s duties; (v) misconduct which has
materially adverse effect upon the Company’s business or reputation;
(vi) violation of the Company policies, including, without limitation, the
Company’s policies on equal employment opportunity and prohibition of unlawful
harassment.


 


(d)
“Person” means an individual,
corporation, partnership, limited liability company, association, trust,
unincorporated organization or other legal entity including any governmental
entity.


 


VII.    Assumption.    Prior to or upon consummation of the Change in
Control, the Company shall obtain the assumption of this offer letter by the
surviving corporation of any merger, consolidation or other reorganization (if
such surviving corporation is not the Company) and the ultimate parent of the
Person engaging in the transaction or transactions constituting a Change in
Control.


 


VIII.    Intellectual Property Rights/Confidential
Information.    You
agree that the Company is the owner of valuable trade secrets, client, vendor,
customer and contractor lists and other confidential and proprietary
information. As such, you agree that your employment is contingent upon your
execution of,


 

















 


and
delivery to, the Company of a Confidential Information and Invention Assignment
Agreement in the standard form utilized by the Company.


 


IX.    Non-Competition/Conflicting Employment.    You agree that,
during the term of your employment with the Company, you will not engage in any
other employment, occupation, consulting or other business activity directly
related to the business in which the Company and/or its customers are now
involved or become involved during the term of your employment, nor will you
engage in any other activities that conflict with your obligations to the
Company.


 


X.   General
Provisions.


 


10.1    Governing Law. This offer letter will be
governed by the laws of the State of California, applicable to agreements made
and to be performed entirely within such state.


 


10.2    Entire Agreement. This offer letter sets
forth the entire agreement and understanding between the Company and you
relating your employment and supersedes all prior verbal discussion and written
agreements between us. Any subsequent change or changes in your duties, salary
or other compensation will not affect the validity or scope of this agreement.
Any change to the at-will term of this agreement must be executed in writing
and signed by you and the President of the Company.


 


10.3    Successors/Assigns. This agreement will be
binding upon your heirs, executors, administrators and other legal
representatives and will be for the benefit of the Company and its respective
successors and assigns.


 


Please acknowledge and confirm your acceptance of
this letter by signing and returning the enclosed copy of this offer letter. If
you have any questions about this offer letter, please call me directly. 


 


	
   

  	
  VALUECLICK, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Lynn
  M. Johnson

  
	
   

  	
   

  	
   

  	
  Vice
  President, Human Resources

  



 


ACCEPTANCE:


 


I
accept the terms of my employment with ValueClick, Inc. as set forth
herein. I understand that this offer letter does not constitute a contract of
employment for any specified period of time, and that my employment
relationship may be terminated by either party, with or without cause and with
or without notice.


 


	
  Mr. Scott
  Ray

  
	
   

  
	
  /s/ Scott H. Ray