EX-10.1






Exhibit 10.1




KEY EMPLOYEE AGREEMENT





This KEY EMPLOYEE AGREEMENT (the “Agreement”) is made and entered into as of the 3rd day of
January 2008, by and between ValueClick, Inc. a Delaware corporation (the “Company” or
“ValueClick”) and David Yovanno (“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 Chief
Operating Officer of U.S. Media 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 Chief Operating Officer of U.S. Media. 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 January 1,
2008, you will be paid an annual base salary of $360,000 (Three Hundred and Sixty 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 Compensation Committee of the Board of Directors.




3.2 Incentive Compensation. In addition to Executive’s base salary, Executive will
be entitled to participate in an incentive compensation plan for fiscal 2008 and subsequent
years based upon terms to be approved by the Compensation Committee of the Company’s Board
of Directors. For each of the three-month periods ended March 31, 2008 and June 30, 2008,
Executive will be guaranteed a quarterly bonus of $50,000.




	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 therefor. 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.




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 may, from time to time in the Company’s discretion, be
granted an option to purchase shares of common stock of the Company as set forth in a Stock
Option Agreement. Any and all options you have been granted by the Company in the past or
may be granted by the Company in the future are collectively referred to herein as the
“Options”).




	V.	 	Termination; Change of Control Benefits.






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.




5.2 Change of Control Compensation. In the event there should occur a Change of
Control (as defined below), and (i) your employment by the Company is terminated by the
Company 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 an amount equal to twelve (12) months of your annual base
salary in effect immediately prior to the time of such termination. Subject to Section 5.6,
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.




5.3 Other Change of Control Benefits. In addition to any amounts payable under
Section 5.2 above, upon the occurrence of a Change of Control and (i) your employment by the
Company is terminated by the Company 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 one hundred percent (100%) of the Options shall be immediately exercisable.



5.5 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 5.5(a)(ii) and 5.5(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 your resignation within sixty (60) days
following the occurrence of any of the following occurring after a Change in Control after
having given the Company at least 30 days notice of the same and a reasonable opportunity to
cure during such 30-day notice period:




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




(ii) a relocation of your principal place of employment outside the contiguous
48 states of the United States of America.




(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.




5.6 Effect of Section 409A of the Code. Notwithstanding anything to the contrary in
this Agreement, if the Company determines (a) that on the date your employment with the
Company terminates or at such other time that the Company determines to be relevant, you are
a “specified employee” (as such term is defined under Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”)) of the Company and (b) that any payments to be
provided to you pursuant to Section 5.2 of this Agreement are or may become subject to the
additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties
imposed under Section 409A of the Code (“Section 409A Taxes”) if provided at the time
otherwise required under this Agreement then such payments shall be delayed until the date
that is six months after date of your “separation from service” (as such term is defined
under Section 409A of the Code) with the Company, or such shorter period that, as determined
by the Company, is sufficient to avoid the imposition of Section 409A Taxes. The provisions
of this Section 5.6 shall only apply to the minimum extent required to avoid your incurrence
of any Section 409A Taxes.



	 	 	 
	VI.

VII.

VIII.

IX.

	 	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.

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.

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.

Arbitration.
	
 
	 	 







9.1 Arbitration Generally. You and the Company expressly agree that, to the extent
permitted by law and to the extent that the enforceability of this Agreement is not thereby
impaired, any and all disputes, controversies or claims between you and the Company,
including, without limitation, those arising out of or concerning your employment by the
Company or its termination or this Agreement, and including, without limitation, claims by
you against directors or employees of the Company, whether arising under theories of
liability or damages based on contract, tort or statute, shall be determined exclusively by
final and binding arbitration before a single arbitrator in accordance with the National
Rules For the Resolution of Employment Disputes of the American Arbitration Association, or
successor rules then in effect, and that judgment upon the award of the arbitrator may be
rendered in any court of competent jurisdiction. Claims subject to exclusive final and
binding arbitration under this Agreement include, without limitation, claims that otherwise
could be tried in court to a jury in the absence of this Agreement. Such claims include,
without limitation, statutory claims for employment discrimination based on race, color,
national origin, sex, religion, disability, age, harassment of any type, and other statutory
or constitutional claims for employment discrimination; claims for wrongful termination
including employment termination in violation of public policy; and claims for personal
injury including, without limitation, defamation, fraud, and infliction of emotional
distress. As a material part of this agreement to arbitrate claims, you expressly waive all
rights to a jury trial in court on all statutory or other claims including, without
limitation, those identified in this Section X.




9.2 Location of Arbitration; Applicable Law. The arbitration shall be held in the
Los Angeles, California, and this Agreement shall be construed according to the substantive
law of the State of California as provided in Section IX.




9.3 AAA Arbitration. The arbitration shall be administered by the American
Arbitration Association, and the arbitrator shall be selected from a list of arbitrators
provided by the American Arbitration Association following a request by the party seeking
arbitration for a list of five retired or former jurists with substantial professional
experience in employment matters. The arbitration shall be conducted under the procedures
applicable to arbitrations in the state of California. The arbitrator’s authority and
jurisdiction shall be limited to determining the dispute in arbitration in conformity with
law, to the same extent as if such dispute were determined as to liability and any remedy by
a court without a jury. The arbitrator shall render an award which shall include a written
statement of opinion setting forth the arbitrator’s findings of fact and conclusions of law.




9.4 Costs of Arbitration. The Company or its successor shall pay the costs of
arbitration including, without limitation, attorneys’ fees and costs, and fees and costs of
any experts except that, if any party prevails on a statutory claim that entitles the
prevailing party to a reasonable attorneys’ fee (with or without expert fees) as part of the
costs, the arbitrator may award reasonable attorneys’ fees (with or without expert fees) to
the prevailing party in accord with such statute.




9.5 Authority of Arbitrator. Any controversy over whether a dispute is an
arbitrable dispute or as to the interpretation or enforceability of this Section X with
respect to such arbitration shall be determined by the arbitrator.




9.6 Ongoing Rights and Obligations. You acknowledge that the Company and you have
ongoing rights and obligations relating to intellectual property, confidential information
and non-competition with the Company, together with fiduciary rights and obligations, which
will survive the termination of your employment. The Company and you agree that nothing in
this Agreement shall waive or otherwise preclude any otherwise available right to temporary
restraining orders or other injunctive relief for any breach or threatened breach of any of
these obligations. You understand that injunctive relief may include, but shall not be
limited to, restraining continuing breaches of such obligations. Any such injunctive
proceedings shall be without prejudice to any rights the Company or you may have under this
Agreement to obtain relief in arbitration with respect to such matters.




	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.



1



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:







Tom Vadnais



Chief Executive Officer



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. David Yovanno








2