Exhibit 10.1


 


FORM OF INDEMNIFICATION AGREEMENT


 


THIS AGREEMENT (the “Agreement”) is made and entered into this       
day of November, 2005 between ValueClick, Inc., a Delaware corporation (the “Company”)
and              (“Indemnitee”).


 


WITNESSETH THAT:


 


WHEREAS, Indemnitee performs a valuable service for
the Company; and


 


WHEREAS, the Bylaws of the Company (the “Bylaws”)
require indemnification of its directors (the “Directors”) and executive
officers (the “Officers”) to the fullest extent permitted by the Delaware
General Corporation Law and provide that those indemnification rights are not
exclusive; and


 


WHEREAS, the Bylaws specifically authorize the Company
to enter into individual contracts with any or all of its directors, officers,
employees or agents regarding indemnification and advancement of expenses; and


 


WHEREAS, Section 145 of the Delaware General
Corporation Law, as amended (“Law”), by its nonexclusive nature permits
contracts between the Company and the Officers and Directors of the Company
with respect to indemnification of such Officers and Directors; and


 


WHEREAS, in accordance with the authorization as
provided by the Law, the Company may purchase and maintain a policy or policies
of Directors’ and Officers’ liability insurance (“D & O Insurance”),
covering certain liabilities which may be incurred by its Officers and
Directors in the performance of their obligations as Officers and Directors of
the Company; and


 


WHEREAS, as a result of recent developments affecting
the terms, scope and availability of D & O Insurance there exists
general uncertainty as to the extent of protection afforded the Company’s
Officers and Directors by such D & O Insurance and said uncertainty
also exists under statutory and bylaw indemnification provisions; and


 


WHEREAS, in recognition of past services and in order
to induce Indemnitee to continue to serve as an officer and/or a director of
the Company, the Company has determined and agreed to enter into this contract
with Indemnitee;


 


NOW, THEREFORE, in consideration of Indemnitee’s continued
service as an officer and/or a director after the date hereof, the parties
hereto agree as follows:


 


1.         Indemnity of Indemnitee. The Company
hereby agrees to hold harmless and indemnify to the full extent authorized or
permitted by the provisions of the Law, as such may be amended from time to
time, and Article VIII of the Certificate, as such may be amended. In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:


 

















 


(a)        Proceedings
Other Than Proceedings by or in the Right of the Company. Indemnitee shall be
entitled to the rights of indemnification provided in this Section 1(a) if, by
reason of his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to or participant in any Proceeding (as
hereinafter defined) other than a Proceeding by or in the right of the Company.
Pursuant to this Section 1(a), Indemnitee shall be indemnified against all
Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was unlawful.


 


(b)       Proceedings
by or in the Right of the Company. Indemnitee shall be entitled to the rights
of indemnification provided in this Section 1(b) if, by reason of his Corporate
Status, he is, or is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the Company to procure a judgment in
its favor. Pursuant to this Section 1(b), Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by him or on his behalf
in connection with such Proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, that, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall have been
adjudged to be liable to the Company unless and to the extent that the Court of
Chancery of the State of Delaware, or the court in which such Proceeding shall
have been brought or is pending, shall determine that such indemnification may
be made.


 


(c)        Indemnification
for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified to the maximum extent
permitted by law against all Expenses actually and reasonably incurred by him
or on his behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.


 


2.         Additional Indemnity.


 


(a)        Subject
only to the exclusions set forth in Section 2(b) hereof, the Company hereby
further agrees to hold harmless and indemnify Indemnitee against any and all
Expenses, judgments, decisions of arbitrators, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
any Proceeding (including an action by or on behalf of the Company) to which
Indemnitee is, was or at any time becomes a party, or is threatened to be made
a party, by reason of his Corporate Status; provided, however, that with
respect to actions by or on behalf of the Company, indemnification of
Indemnitee against any judgments shall be made by the Company only as
authorized in the specific case upon a 


 


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determination
that Indemnitee acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company; and


 


(b)       No
indemnity pursuant to this Section 2 shall be paid by the Company:


 


(i)        In
respect to remuneration paid to Indemnitee if it shall be determined by a final
judgment or other final adjudication that such remuneration was in violation of
law;


 


(ii)       On
account of any suit in which judgment is rendered against Indemnitee for an
accounting of profits made from the purchase or sale by Indemnitee of
securities of the Company pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of
any federal, state or local statutory law;


 


(iii)      On
account of Indemnitee’s conduct which is finally adjudged to have been
knowingly fraudulent or deliberately dishonest, or to constitute willful
misconduct; or


 


(iv)      If
a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful.


 


3.         Contribution.


 


(a)        If
the indemnification provided in Sections 1 and 2 is unavailable in whole
or in part and may not be paid to Indemnitee for any reason other than those
set forth in paragraphs (i), (ii) and (iii) of Section 2(b), then in respect to
any Proceeding in which the Company is jointly liable with Indemnitee (or would
be if joined in such Proceeding), to the fullest extent permissible under
applicable law,  the Company, in lieu of
indemnifying and holding harmless Indemnitee, shall pay, in the first instance,
the entire amount incurred by Indemnitee, whether for Expenses, judgments,
decisions of arbitrators, fines, penalties, and/or amounts paid or to be paid
in settlement, in connection with any Proceeding without requiring Indemnitee
to contribute to such payment, and the Company hereby waives and relinquishes
any right of contribution it may have at any time against Indemnitee.


 


(b)       Without
Indemnitee’s prior written consent, the Company shall not enter into any
settlement of any Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding) unless such settlement
provides for a full and final release of all claims asserted against
Indemnitee.


 


(c)        The
Company hereby agrees to fully indemnify and hold harmless Indemnitee from any
claims for contribution which may be brought by Officers, Directors or
employees of the Company (other than Indemnitee) who may be jointly liable with
Indemnitee.


 


4.         Indemnification For Expenses Of A Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding
to which Indemnitee is not a party, he shall be indemnified and held 


 


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harmless
against all Expenses actually and reasonably incurred by him or on his behalf
in connection therewith.


 


5.         Advancement Of Expenses. Notwithstanding
any other provision of this Agreement, the Company shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding by reason of Indemnitee’s Corporate Status within ten days after the
receipt by the Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses advanced if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses. Any
advances and undertakings to repay pursuant to this Section 5 shall be
unsecured and interest free. Notwithstanding the foregoing, the obligation of
the Company to advance Expenses pursuant to this Section 5 shall be
subject to the condition that, if, when and to the extent that the Company
determines that Indemnitee would not be permitted to be indemnified under
applicable law, the Company shall be entitled to be reimbursed, within thirty
(30) days of such determination, by Indemnitee (who hereby agrees to reimburse
the Company) for all such amounts theretofore paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Company that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company
for any advance of Expenses until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed).


 


6.         Procedure For Determination Of Entitlement To
Indemnification.


 


(a)        To
obtain indemnification (including, but not limited to, the advancement of
Expenses and contribution by the Company) under this Agreement, Indemnitee shall
submit to the Company, in a written request directed to Chief Executive Officer
or Chief Financial Officer, including therein or therewith such documentation
and information as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary or any Assistant Secretary of the Company shall,
promptly upon the Company’s receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has requested
indemnification.


 


(b)       Upon
written request by Indemnitee for indemnification pursuant to the first
sentence of Section 6(a) hereof, a determination, if required by applicable
law, with respect to Indemnitee’s entitlement thereto shall be made in the
specific case:  (i) if a Change in
Control (as hereinafter defined) shall have occurred, by Independent Counsel
(as hereinafter defined) in a written opinion to the Board of Directors, a copy
of which shall be delivered to Indemnitee (unless Indemnitee shall request that
such determination be made by the Board of Directors or the stockholders, in
which case the determination shall be made in the manner provided in Clause
(ii) below), or (ii) if a Change in Control shall not have occurred,
(A) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (B) if a quorum of
the Board of Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, said Disinterested Directors so direct, by Independent
Counsel 


 


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in a
written opinion to the Board of Directors, a copy of which shall be delivered
to Indemnitee, or (C) if so directed by said Disinterested Directors, by
the stockholders of the Company; and, if it is determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such person, persons or
entity upon reasonable advance request any documentation or information which
is not privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary to such
determination. Any Independent Counsel, member of the Board of Directors, or
stockholder of the Company shall act reasonably and in good faith in making a determination
under the Agreement of the Indemnitee’s entitlement to indemnification. Any
costs or expenses (including attorneys’ fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification) and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.


 


(c)        If
the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel
shall be selected as provided in this Section 6(c). If a Change in Control
shall not have occurred, the Independent Counsel shall be selected by the Board
of Directors, and the Company shall give written notice to Indemnitee advising
him of the identity of the Independent Counsel so selected. If a Change in
Control shall have occurred, the Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be made by the
Board of Directors, in which event the preceding sentence shall apply), and
Indemnitee shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either event, Indemnitee or the
Company, as the case may be, may, within 10 days after such written notice of
selection shall have been given, deliver to the Company or to Indemnitee, as
the case may be, a written objection to such selection; provided, however, that
such objection may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirements of “Independent Counsel” as defined
in Section 15 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If a
written objection is made and substantiated, the Independent Counsel selected
may not serve as Independent Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without merit. If,
within 20 days after submission by Indemnitee of a written request for
indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may
petition the Court of Chancery of the State of Delaware or other court of
competent jurisdiction for resolution of any objection which shall have been
made by the Company or Indemnitee to the other’s selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the
person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 6(b) hereof. The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section 6(b) hereof, and the Company shall pay all reasonable fees and
expenses of Indemnitee incident to the procedures of this Section 6(c),
regardless of the manner in which such Independent Counsel was selected or
appointed. Upon the due commencement of any judicial proceeding or arbitration
pursuant to 


 


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Section 9(a)(iii)
of this Agreement, Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).


 


7.         Defense by the Company.


 


(a)        With
respect to any Proceeding (other than a Proceedings by or in the rights of the
Company) to which Indemnitee is or becomes a party, the Company may, in its
sole discretion and except as otherwise provided below, assume the defense of
such Proceeding using counsel selected by the Company, but subject to
Indemnitee’s reasonable approval. Any defense so assumed by the Company may be
conducted jointly with any other indemnifying party. In the event the Company
elects to assume the defense of a Proceeding, the Company shall provide notice
of the same to Indemnitee and, after Indemnitee’s receipt of such notice,
Indemnitee shall have the right to employ separate legal counsel, but any legal
fees and expenses thereafter incurred by Indemnitee in connection with the
defense of such Proceeding shall not be subject to indemnification by the
Company (except for reasonable costs of transitioning the defense to the
Company’s counsel and reasonable costs of investigation) unless:  (i) the Company has authorized, in
writing, such separate counsel; (ii) there exists an actual conflict of
interest between the Company and Indemnitee; or (iii) the Company has not
in fact employed or ceases to employ counsel in such defense. In addition, if,
under applicable laws and rules of attorney professional conduct, there exists
a potential, but not actual, conflict of interest between the Company and
Indemnitee, the Company’s indemnification and Expense advancement obligations
to Indemnitee under this Agreement shall include reasonable legal fees and
reasonable costs incurred by Indemnitee for separate counsel retained by
Indemnitee to monitor the litigation (so that such separate counsel may assume
Indemnitee’s defense if the conflict of interest between the Company and
Indemnitee becomes an actual conflict of interest). The existence of an actual
or potential conflict, and whether any such conflict may be waived, shall be
determined pursuant to the rules of attorney professional conduct and
applicable law.


 


(b)       The
Company shall not be required to obtain the consent of the Indemnitee for the
settlement of any Proceeding the Company has undertaken to defend if the
Company assumes full and sole responsibility for each such settlement;
provided, however, that the Company shall be required to obtain Indemnitee’s
prior written approval, which may be granted or withheld in Indemnitee’s sole,
reasonable discretion, before entering into any settlement which (i) does not
grant Indemnitee a complete and unqualified release of liability; (ii) would
impose any penalty or limitation on Indemnitee or (b) would admit any liability
or misconduct by Indemnitee.


 


8.         Presumptions And Effect Of Certain Proceedings.


 


(a)        In
making a determination with respect to entitlement to indemnification
hereunder, the person or persons or entity making such determination shall
presume that Indemnitee is entitled to indemnification under this Agreement if
Indemnitee has submitted a request for indemnification in accordance with
Section 6(a) of this Agreement, and the Company shall have the burden of proof
to overcome that presumption in connection with the making by any person,
persons or entity of any determination contrary to that presumption.


 


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(b)       If
the person, persons or entity empowered or selected under Section 6 of
this Agreement to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within thirty (30) days after receipt by
the Company of the request therefor, the requisite determination of entitlement
to indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee
of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such 30 day period may be
extended for a reasonable time, not to exceed an additional fifteen (15) days,
if the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such additional time for
the obtaining or evaluating documentation and/or information relating thereto;
and provided, further, that the foregoing provisions of this Section 7(b) shall
not apply (i) if the determination of entitlement to indemnification is to
be made by the stockholders pursuant to Section 6(b) of this Agreement and if
(A) within fifteen (15) days after receipt by the Company of the request
for such determination the Board of Directors or the Disinterested Directors,
if appropriate, resolve to submit such determination to the stockholders for
their consideration at an annual meeting thereof to be held within seventy five
(75) days after such receipt and such determination is made thereat, or
(B) a special meeting of stockholders is called within fifteen (15) days
after such receipt for the purpose of making such determination, such meeting
is held for such purpose within sixty (60) days after having been so called and
such determination is made thereat, or (ii) if the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to Section
6(b) of this Agreement, in which case the determination of entitlement shall be
made within thirty (30) days after the earlier of the date on which (a)
the non-selecting party has agreed to the selection of Independent Counsel; (b)
the time for objection to the selection of Independent Counsel has expired; or
(c) any objection to the selection of Independent Counsel has been resolved.


 


(c)        The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement (with or without court approval), conviction, or
upon a plea of nolo contendere or its equivalent, shall not (except as
otherwise expressly provided in this Agreement) of itself adversely affect the
right of Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company and, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that his
conduct was unlawful.


 


(d)       For
purposes of any determination of good faith, Indemnitee shall be deemed to have
acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal action
or proceeding, to have had no reasonable cause to believe his or her conduct
was unlawful, if Indemnitee’s action is based on the records or books of
account of the Enterprise (as hereinafter defined), including financial
statements, or on information supplied to Indemnitee by the Officers and
Directors of the Enterprise in the course of their duties, or on the advice of
legal counsel for the Enterprise or on information or records given or reports
made to the Enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Enterprise. In
addition, the knowledge and/or actions, or failure to act, of any other director,
officer, agent or employee of the Enterprise shall not be imputed to 


 


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Indemnitee
for purposes of determining the right to indemnification under this Agreement. The
provisions of this Section 8(d) shall not be deemed to be exclusive or to limit
in any way the other circumstances in which the Indemnitee may be deemed to
have met the applicable standard of conduct set forth in this Agreement.


 


(e)        Notwithstanding
anything to the contrary in this Agreement, the parties acknowledge and agree
that the entry of a guilty plea by Indemnitee in a criminal Proceeding shall,
for purposes of this Agreement, be deemed to be a final judicial decision from
which there is no further right to appeal, irrespective of whether a sentence
has been entered on such guilty plea, and an ultimate determination of
Indemnitee’s entitlement to indemnification or advancement of Expenses under
this Agreement may be made on the basis of such plea.


 


9.         Remedies Of Indemnitee.


 


(a)        In
the event that (i) a determination is made pursuant to Section 6 of
this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 5 of this Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 6(b) of this Agreement
within 90 days after receipt by the Company of the request for indemnification,
(iv) payment of indemnification is not made pursuant to Section 3 or
4 of this Agreement within ten (10) days after receipt by the Company of a
written request therefor, or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification or such determination is deemed to have been made
pursuant to Section 6 or 8 of this Agreement, Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of his entitlement to such
indemnification. Alternatively, Indemnitee, at his option, may seek an award in
arbitration to be conducted by a single neutral arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section 8(a); provided,
however, that no failure to commence such proceeding within 180 days shall
be deemed to reduce or limit the Company’s obligations under this Agreement
unless (and only to the extent) such failure materially prejudices the Company.
The Company shall not oppose Indemnitee’s right to seek any such adjudication
or award in arbitration.


 


(b)       In
the event that a determination shall have been made pursuant to Section 6(b) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 9 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination.


 


(c)        If
a determination shall have been made pursuant to Section 6(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 9, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.


 


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(d)       In
the event that Indemnitee, pursuant to this Section 9, seeks a judicial
adjudication of or an award in arbitration to enforce his rights under, or to
recover damages for breach of, this Agreement, the Company shall indemnify and
hold Indemnitee harmless against any and all expenses (of the type described in
the definition of Expenses in Section 15 of this Agreement) and, if requested
by Indemnitee, shall (within ten (10) days after receipt by the Company of a
written request therefore) advance such expenses to Indemnitee, actually and
reasonably incurred by him in such judicial adjudication or arbitration, unless
the court (in a judicial adjudication) or the arbitrator determines that one or
more of the material assertions made by Indemnitee as the basis for each claim
to enforce Indemnitee’s rights under, or to recover damages for breach of, this
Agreement in such action were not made in good faith or were frivolous. If it
shall be determined in such judicial proceeding or arbitration that fewer than
all of such claims were based on one or more material assertions not made in
good faith or that were frivolous, Indemnitee shall be entitled to be
indemnified and held harmless by the Company on a pro rated basis for any claim
the court or arbitrator determines was based entirely on material assertions
made in good faith and not frivolous. The Company shall indemnify and hold Indemnitee
harmless against any and all expenses (of the types described in the definition
of Expenses in Section 15 of this Agreement) and, if requested by
Indemnitee, shall (within ten (10) days after receipt by the Company of a
written request therefor) advance such expenses to Indemnitee, which are
incurred by Indemnitee in connection with any action brought by Indemnitee to
recover under any Directors’ and Officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advancement of expenses or
insurance recovery, as the case may be.


 


(e)        The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 9 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.


 


10.       Nonexclusivity; Survival Of Rights; Insurance;
Subrogation.


 


(a)        The
rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate, any agreement, a vote of stockholders or
a resolution of Directors, or otherwise. No amendment, alteration or repeal of
this Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in the Law, whether by statute or judicial
decision, permits greater indemnification than would be afforded currently
under the Certificate and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall
be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other right or remedy.


 


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(b)       To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for Directors, Officers, employees, or agents or
fiduciaries of the Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person serves at
the request of the Company, Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the
coverage available for any such director, officer, employee or agent under such
policy or policies. If, at the time the Company receives notice from any source
of a Proceeding as to which Indemnitee is a party or a participant and the
Company has one or more director and officer liability insurance policies in
effect, the Company shall give prompt notice of the Proceeding to the insurers
in accordance with the procedures set forth in the respective policies. The
Company shall thereafter use its best efforts to cause the insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of the Proceeding in
accordance with the terms of the policies.


 


(c)        In
the event of any payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of Indemnitee,
who shall execute all papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable
the Company to bring suit to enforce such rights.


 


(d)       The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.


 


(e)        The
Company and Indemnitee agree that a monetary remedy for breach of this
Agreement may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the
parties hereto agree that Indemnitee may enforce this Agreement by seeking
injunctive relief and/or specific performance hereof, without any necessity of
showing actual damage or irreparable harm and that by seeking injunctive relief
and/or specific performance, Indemnitee shall not be precluded from seeking or
obtaining any other relief to which he may be entitled. The Company and
Indemnitee further agree that Indemnitee shall be entitled to such specific
performance and injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the necessity of
posting bonds or other undertaking in connection therewith. The Company
acknowledges that in the absence of a waiver, a bond or undertaking may be
required of Indemnitee by the Court, and the Company hereby waives any such
requirement of a bond or undertaking.


 


11.       Exception To Right Of Indemnification. Notwithstanding
any other provision of this Agreement, Indemnitee shall not be entitled to
indemnification under this Agreement with respect to any Proceeding brought by
Indemnitee, or any claim therein, unless (a) the bringing of such
Proceeding or making of such claim shall have been approved by the Board of
Directors or (b) such Proceeding is being brought by the Indemnitee to
assert his rights under this Agreement.


 


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12.       Duration Of Agreement. All agreements
and obligations of the Company contained herein shall continue during the
period Indemnitee is an officer and/or a director of the Company (or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise)
and shall continue thereafter so long as Indemnitee may be subject to any
Proceeding (including any rights of appeal and any proceeding commenced under
Section 9 hereof) by reason of his Corporate Status, whether or not he is
acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as an
officer and/or a director of the Company or any other enterprise at the Company’s
request.


 


13.       Security. To the extent requested by
the Indemnitee and approved by the Board of Directors, the Company may at any
time and from time to time provide security to the Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit, funded trust
or other collateral. Any such security, once provided to the Indemnitee, may
not be revoked or released without the prior written consent of the Indemnitee.


 


14.       Enforcement.


 


(a)        The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as an officer and/or a director of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in serving as an
officer and/or a director of the Company.


 


(b)       This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.


 


15.       Definitions. For purposes of this
Agreement:


 


(a)        “Change
In Control” means a change in control of the Company occurring after the
date of this Agreement of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to
any similar item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934 (the “Act”), whether or not the Company is then
subject to such reporting requirement; provided, however, that, without
limitation, such a Change in Control shall be deemed to have occurred if after
the date of this Agreement (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Act, as amended) other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), 


 


11

















 


directly
or indirectly, of securities of the Company representing 15% or more of the
combined voting power of the Company’s then outstanding securities (other than
any such person or any affiliate thereof that is such a 15% beneficial owner as
of the date hereof) without the prior approval of at least two-thirds of the
members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (ii) there occurs a proxy contest, or
the Company is a party to a merger, consolidation, sale of assets, plan of
liquidation or other reorganization, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or
(iii) during any period of two consecutive years, other than as a result
of an event described in clause (a)(ii) of this Section 16, individuals
who at the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or nomination for
election by the Company’s stockholders was approved by a vote of at least
two-thirds of the Directors then still in office who were Directors at the
beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors. A Change in Control shall not be deemed to
have occurred under item (i) above if the “person” described under
item (i) is entitled to report its ownership on Schedule 13G
promulgated under the Act and such person is able to represent that it acquired
such securities in the ordinary course of its business and not with the purpose
nor with the effect of changing or influencing the control of the Company, nor
in connection with or as a participant in any transaction having such purpose
or effect. If the “person” referred to in the previous sentence would at any
time not be entitled to continue to report such ownership on Schedule 13G
pursuant to Rule 13d1(b)(3)(i)(B) of the Act, then a Change in Control shall be
deemed to have occurred at such time.


 


(b)       “Corporate
Status” describes the status of a person who is or was a director, officer,
employee or agent or fiduciary of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the express written request of the
Company.


 


(c)        “Disinterested
Director” means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.


 


(d)       “Enterprise” shall mean the Company and any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise of which Indemnitee is or was serving at the express written
request of the Company as a director, officer, employee, agent or fiduciary.


 


(e)        “Expenses” shall include all reasonable
attorneys’ fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, participating, or
being or preparing to be a witness in a Proceeding. Expenses also shall include
Expenses incurred in connection with any appeal resulting from any Proceeding,
including without limitation the premium, security for, and other costs
relating to any cost bond, supersedeas bond, or other appeal bond or its
equivalent.


 


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(f)        “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: 
(i) the Company or Indemnitee in any matter material to either such
party (other than with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification agreements),
or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees to pay the
reasonable fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


 


(g)       “Proceeding” includes any threatened, pending
or completed action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in
which Indemnitee was, is or may be involved as a party or otherwise, by reason
of the fact that Indemnitee is or was an officer and/or a director of the
Company, by reason of any action taken by him or of any inaction on his part
while acting as an officer and/or a director of the Company, or by reason of
the fact that he is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise; in each case whether or not he is acting or serving
in any such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement; including one pending on
or before the date of this Agreement; and excluding one initiated by an
Indemnitee pursuant to Section 9 of this Agreement to enforce his rights
under this Agreement.


 


16.       Severability. If any provision or
provisions of this Agreement shall be held by a court of competent jurisdiction
to be invalid, void, illegal or otherwise unenforceable for any reason
whatsoever:  (a) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent
permitted by law; and (b) to the fullest extent possible, the provisions
of this Agreement (including, without limitation, each portion of any section
of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.


 


17.       Modification And Waiver. No supplement,
modification, termination or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.


 


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18.       Notice By Indemnitee. Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which may be subject to indemnification
covered hereunder. The failure to so notify the Company shall not relieve the
Company of any obligation which it may have to the Indemnitee under this
Agreement or otherwise.


 


19.       Notices. All notices, requests, demands
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if (i) delivered by hand and receipted for by the
party to whom said notice or other communication shall have been directed, or
(ii) mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed:


 


(a)        If
to Indemnitee, to:


 


 


 


(b)       If
to the Company, to:


 


ValueClick, Inc.

30699 Russell Ranch Road, Suite 250

Westlake Village, CA 91362

Attention:  James R. Zarley


 


or to such other address as may have been furnished to Indemnitee by
the Company or to the Company by Indemnitee, as the case may be.


 


20.       Identical Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original but all of which together shall constitute
one and the same Agreement. Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.


 


21.       Headings. The headings of the
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
thereof.


 


22.       Governing Law. The parties agree that
this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware without application of the conflict of
laws principles thereof.


 


23.       Gender. Use of the masculine pronoun
shall be deemed to include usage of the feminine pronoun where appropriate.


 


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


 


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  VALUECLICK, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
  James R. Zarley

  
	
   

  	
  Title:

  	
  Chairman of the Board and Chief

  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Indemnitee

  
						



 


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