**Exhibit 10.13**

 

**KEYEMPLOYEE AGREEMENT**

 

ThisKEY EMPLOYEE AGREEMENT (the “Agreement”) is made and entered into as of the 8thday of October, 2002, by and between ValueClick, Inc. a Delawarecorporation (the “Company” or “ValueClick”) and Scott Ray (“Executive”).

 

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

 

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

 

WHEREAS,in light of the foregoing, the Company desires to employ Executive as GeneralManager, Mediaplex and Adware divisions and Executive desires to accept suchemployment;

 

NOWTHEREFORE, in consideration of the mutual promises contained herein, Companyand Executive agree as follows:

 

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

 

**II.    *Employment Considerations.***

 

2.1    *At-Will Employment.* You acknowledge thatyour employment with the Company is for an unspecified duration thatconstitutes at-will employment, and that either you or the Company canterminate this relationship at any time, with or without Cause (as definedbelow) and without notice.

 

**III.   *Compensation.***

 

3.1    *Base Salary.* In consideration of yourservices, to be effective on your start date (TBD but no later than November11, 2002), you will be paid an annual base salary of $235,000 (Two Hundred ThirtyFive Thousand Dollars and no Cents), payable no less frequently than on amonthly basis in accordance with the Company’s standard payroll practices (“StandardPayment Schedule”). Your base salary, in conjunction with your performanceevaluation, is normally reviewed annually by the Company’s Chief ExecutiveOfficer.

 

3.2    *Incentive Compensation.* In addition toyour base salary, you will be entitled to participate in an incentivecompensation plan with the opportunity to receive an annual bonus of $100,000 (OneHundred Thousand Dollars and no Cents) paid quarterly upon the achievement ofcertain milestones as established by the Company’s Chief Executive Office andratified by the Company’s Board of Directors or the Compensation Committee ofthe Board.

 

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**IV.    *Additional Benefits.***

 

4.1    *Health Insurance/Vacation/Benefit Plans.*You will be entitled to receive the standard employee benefits made availableby 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, theterms and conditions of your vacation benefits shall be in accordance with theCompany’s vacation policy in effect at that time. During your employment, youshall be permitted, to the extent eligible, to participate in any groupmedical, dental, life insurance and disability insurance plans, or similarbenefit plan of the Company that is available to employees generally.Participation in any such plan shall be consistent with your rate ofcompensation to the extent that compensation is a determinative factor withrespect to coverage under any such plan. The Company also agrees to pay foryour COBRA coverage until Executive is eligible for coverage under the Company’sbenefit plans.

 

4.2    *Reimbursement of Expenses.* The Companyshall reimburse you for all reasonable expenses actually incurred or paid byyou in the performance of your services on behalf of the Company, upon priorauthorization and approval in accordance with the Company’s expensereimbursement 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 StockOption Agreement, including the stock vesting provisions contained therein, youwill be granted an option to purchase 150,000 shares of common stock of theCompany as set forth in a Stock Option Agreement, which will be sent to youseparately. 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 fromtime to time in the Company’s discretion (the options in your Stock OptionAgreement and any and all options you may be granted in the future arecollectively 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 resignyour employment voluntarily, no compensation or other payments will be paid orprovided to you for periods following the date when such a termination ofemployment is effective, provided that any rights you may have under thebenefit plans of the Company shall be determined under the provisions of thoseplans. 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 youmay otherwise be entitled under the benefit plans of the Company.

 

**VI.   *Changeof Control Benefits.***

 

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

 

6.2    *Other Change of Control Benefits.* Inaddition to any amounts payable under Section 6.1 above, upon theoccurrence of a Change of Control and (i) your employment by the Companyterminates for any reason other than for Cause or on account of your permanentdisability or death or (ii) there occurs a Constructive Termination, thevesting of fifty percent (50%) of the unvested Options shall be immediatelyexercisable.

 

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6.3  *Changein Control Definitions.* For purposes of this Agreement:

 

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

 

(i)a sale, lease or otherdisposition 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 thesurviving corporation and the stockholders of the Company immediately prior tothe merger, consolidation or other reorganization fail to possess direct orindirect ownership of more than fifty percent (50%) of the voting power of thesecurities of the surviving corporation (or if the surviving corporation is acontrolled affiliate of another Person, then the required beneficial ownershipwill be determined with respect to the securities of that Person which controlsthe surviving corporation and is not itself a controlled affiliate of any otherPerson) immediately following such transaction;

 

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

 

For purposes of Sections 6.3(a)(ii) and6.3(a)(iii) above, any Person who acquired securities of the Company priorto the occurrence of the specified transaction in contemplation of suchtransaction and who immediately after such transaction possesses direct orindirect beneficial ownership of at least ten percent (10%) of the securitiesof the Company or the surviving corporation, as appropriate (or if the Companyor the surviving corporation is a controlled affiliate, then of the appropriatePerson as determined above), will not be included in the group of stockholdersof 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 basesalary;

 

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

 

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

 

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

 

**VIII.    *Intellectual Property Rights/ConfidentialInformation.***    Youagree that the Company is the owner of valuable trade secrets, client, vendor,customer and contractor lists and other confidential and proprietaryinformation. As such, you agree that your employment is contingent upon yourexecution of,

 

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anddelivery to, the Company of a Confidential Information and Invention AssignmentAgreement 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 anyother employment, occupation, consulting or other business activity directlyrelated to the business in which the Company and/or its customers are nowinvolved or become involved during the term of your employment, nor will youengage in any other activities that conflict with your obligations to theCompany.

 

**X.   *GeneralProvisions.***

 

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

 

10.2    *Entire Agreement.* This offer letter setsforth the entire agreement and understanding between the Company and yourelating your employment and supersedes all prior verbal discussion and writtenagreements between us. Any subsequent change or changes in your duties, salaryor 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 writingand signed by you and the President of the Company.

 

10.3    *Successors/Assigns.* This agreement will bebinding upon your heirs, executors, administrators and other legalrepresentatives and will be for the benefit of the Company and its respectivesuccessors and assigns.

 

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

 
|   | VALUECLICK, INC. |
|--------|-----------------------|
|   |                  |   |
|   |                  |   |
|   | By:                   |   |
|   |                  |   | Lynn  M. Johnson |
|   |                  |   | Vice  President, Human Resources |

 

ACCEPTANCE:

 

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

 
| Mr. Scott  Ray |
|---------------------|
|                |
| /s/ *Scott H. Ray*  |   |

 

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