**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 forthe Company; and

 

**WHEREAS**, the Bylaws of the Company (the “Bylaws”)require indemnification of its directors (the “Directors”) and executiveofficers (the “Officers”) to the fullest extent permitted by the DelawareGeneral Corporation Law and provide that those indemnification rights are notexclusive; and

 

**WHEREAS**, the Bylaws specifically authorize the Companyto 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 GeneralCorporation Law, as amended (“Law”), by its nonexclusive nature permitscontracts between the Company and the Officers and Directors of the Companywith respect to indemnification of such Officers and Directors; and

 

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

 

**WHEREAS**, as a result of recent developments affectingthe terms, scope and availability of D & O Insurance there existsgeneral uncertainty as to the extent of protection afforded the Company’sOfficers and Directors by such D & O Insurance and said uncertaintyalso exists under statutory and bylaw indemnification provisions; and

 

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

 

**NOW, THEREFORE**, in consideration of Indemnitee’s continuedservice as an officer and/or a director after the date hereof, the partieshereto agree as follows:

 

1.         **Indemnity of Indemnitee**. The Companyhereby agrees to hold harmless and indemnify to the full extent authorized orpermitted by the provisions of the Law, as such may be amended from time totime, and Article VIII of the Certificate, as such may be amended. Infurtherance of the foregoing indemnification, and without limiting thegenerality thereof:

 

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(a)        ProceedingsOther Than Proceedings by or in the Right of the Company. Indemnitee shall beentitled to the rights of indemnification provided in this Section 1(a) if, byreason of his Corporate Status (as hereinafter defined), he is, or isthreatened to be made, a party to or participant in any Proceeding (ashereinafter defined) other than a Proceeding by or in the right of the Company.Pursuant to this Section 1(a), Indemnitee shall be indemnified against allExpenses (as hereinafter defined), judgments, penalties, fines and amounts paidin settlement actually and reasonably incurred by him or on his behalf inconnection with such Proceeding or any claim, issue or matter therein, if heacted in good faith and in a manner he reasonably believed to be in or notopposed to the best interests of the Company and, with respect to any criminalProceeding, had no reasonable cause to believe his conduct was unlawful.

 

(b)       Proceedingsby or in the Right of the Company. Indemnitee shall be entitled to the rightsof indemnification provided in this Section 1(b) if, by reason of his CorporateStatus, he is, or is threatened to be made, a party to or participant in anyProceeding brought by or in the right of the Company to procure a judgment inits favor. Pursuant to this Section 1(b), Indemnitee shall be indemnifiedagainst all Expenses actually and reasonably incurred by him or on his behalfin connection with such Proceeding if he acted in good faith and in a manner hereasonably believed to be in or not opposed to the best interests of theCompany; provided, however, that, if applicable law so provides, noindemnification against such Expenses shall be made in respect of any claim,issue or matter in such Proceeding as to which Indemnitee shall have beenadjudged to be liable to the Company unless and to the extent that the Court ofChancery of the State of Delaware, or the court in which such Proceeding shallhave been brought or is pending, shall determine that such indemnification maybe made.

 

(c)        Indemnificationfor Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding anyother provision of this Agreement, to the extent that Indemnitee is, by reasonof his Corporate Status, a party to and is successful, on the merits orotherwise, in any Proceeding, he shall be indemnified to the maximum extentpermitted by law against all Expenses actually and reasonably incurred by himor on his behalf in connection therewith. If Indemnitee is not whollysuccessful in such Proceeding but is successful, on the merits or otherwise, asto one or more but less than all claims, issues or matters in such Proceeding,the Company shall indemnify Indemnitee against all Expenses actually andreasonably incurred by him or on his behalf in connection with eachsuccessfully resolved claim, issue or matter. For purposes of this Section andwithout limitation, the termination of any claim, issue or matter in such aProceeding by dismissal, with or without prejudice, shall be deemed to be asuccessful result as to such claim, issue or matter.

 

2.         **Additional Indemnity**.

 

(a)        Subjectonly to the exclusions set forth in Section 2(b) hereof, the Company herebyfurther agrees to hold harmless and indemnify Indemnitee against any and allExpenses, judgments, decisions of arbitrators, fines and amounts paid insettlement actually and reasonably incurred by Indemnitee in connection withany Proceeding (including an action by or on behalf of the Company) to whichIndemnitee is, was or at any time becomes a party, or is threatened to be madea party, by reason of his Corporate Status; provided, however, that withrespect to actions by or on behalf of the Company, indemnification ofIndemnitee against any judgments shall be made by the Company only asauthorized in the specific case upon a 

 

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

 

(b)       Noindemnity pursuant to this Section 2 shall be paid by the Company:

 

(i)        Inrespect to remuneration paid to Indemnitee if it shall be determined by a finaljudgment or other final adjudication that such remuneration was in violation oflaw;

 

(ii)       Onaccount of any suit in which judgment is rendered against Indemnitee for anaccounting of profits made from the purchase or sale by Indemnitee ofsecurities of the Company pursuant to the provisions of Section 16(b) of theSecurities Exchange Act of 1934 and amendments thereto or similar provisions ofany federal, state or local statutory law;

 

(iii)      Onaccount of Indemnitee’s conduct which is finally adjudged to have beenknowingly fraudulent or deliberately dishonest, or to constitute willfulmisconduct; or

 

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

 

3.         **Contribution**.

 

(a)        Ifthe indemnification provided in Sections 1 and 2 is unavailable in wholeor in part and may not be paid to Indemnitee for any reason other than thoseset forth in paragraphs (i), (ii) and (iii) of Section 2(b), then in respect toany Proceeding in which the Company is jointly liable with Indemnitee (or wouldbe if joined in such Proceeding), to the fullest extent permissible underapplicable law,  the Company, in lieu ofindemnifying 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 paidin settlement, in connection with any Proceeding without requiring Indemniteeto contribute to such payment, and the Company hereby waives and relinquishesany right of contribution it may have at any time against Indemnitee.

 

(b)       WithoutIndemnitee’s prior written consent, the Company shall not enter into anysettlement of any Proceeding in which the Company is jointly liable withIndemnitee (or would be if joined in such Proceeding) unless such settlementprovides for a full and final release of all claims asserted againstIndemnitee.

 

(c)        TheCompany hereby agrees to fully indemnify and hold harmless Indemnitee from anyclaims for contribution which may be brought by Officers, Directors oremployees of the Company (other than Indemnitee) who may be jointly liable withIndemnitee.

 

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

 

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harmlessagainst all Expenses actually and reasonably incurred by him or on his behalfin connection therewith.

 

5.         **Advancement Of Expenses**. Notwithstandingany other provision of this Agreement, the Company shall advance all reasonableExpenses incurred by or on behalf of Indemnitee in connection with anyProceeding by reason of Indemnitee’s Corporate Status within ten days after thereceipt by the Company of a statement or statements from Indemnitee requestingsuch advance or advances from time to time. Such statement or statements shallreasonably evidence the Expenses incurred by Indemnitee and shall include or bepreceded or accompanied by an undertaking by or on behalf of Indemnitee torepay any Expenses advanced if it shall ultimately be determined thatIndemnitee is not entitled to be indemnified against such Expenses. Anyadvances and undertakings to repay pursuant to this Section 5 shall beunsecured and interest free. Notwithstanding the foregoing, the obligation ofthe Company to advance Expenses pursuant to this Section 5 shall besubject to the condition that, if, when and to the extent that the Companydetermines that Indemnitee would not be permitted to be indemnified underapplicable law, the Company shall be entitled to be reimbursed, within thirty(30) days of such determination, by Indemnitee (who hereby agrees to reimbursethe Company) for all such amounts theretofore paid; provided, however, that ifIndemnitee has commenced or thereafter commences legal proceedings in a courtof competent jurisdiction to secure a determination that Indemnitee should beindemnified under applicable law, any determination made by the Company thatIndemnitee would not be permitted to be indemnified under applicable law shallnot be binding and Indemnitee shall not be required to reimburse the Companyfor any advance of Expenses until a final judicial determination is made withrespect thereto (as to which all rights of appeal therefrom have been exhaustedor lapsed).

 

6.         **Procedure For Determination Of Entitlement ToIndemnification**.

 

(a)        Toobtain indemnification (including, but not limited to, the advancement ofExpenses and contribution by the Company) under this Agreement, Indemnitee shallsubmit to the Company, in a written request directed to Chief Executive Officeror Chief Financial Officer, including therein or therewith such documentationand information as is reasonably available to Indemnitee and is reasonablynecessary to determine whether and to what extent Indemnitee is entitled toindemnification. 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 requestedindemnification.

 

(b)       Uponwritten request by Indemnitee for indemnification pursuant to the firstsentence of Section 6(a) hereof, a determination, if required by applicablelaw, with respect to Indemnitee’s entitlement thereto shall be made in thespecific case:  (i) if a Change inControl (as hereinafter defined) shall have occurred, by Independent Counsel(as hereinafter defined) in a written opinion to the Board of Directors, a copyof which shall be delivered to Indemnitee (unless Indemnitee shall request thatsuch determination be made by the Board of Directors or the stockholders, inwhich 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 ofDisinterested Directors (as hereinafter defined), or (B) if a quorum ofthe Board of Directors consisting of Disinterested Directors is not obtainableor, even if obtainable, said Disinterested Directors so direct, by IndependentCounsel 

 

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in awritten opinion to the Board of Directors, a copy of which shall be deliveredto Indemnitee, or (C) if so directed by said Disinterested Directors, bythe stockholders of the Company; and, if it is determined that Indemnitee isentitled 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’sentitlement to indemnification, including providing to such person, persons orentity upon reasonable advance request any documentation or information whichis not privileged or otherwise protected from disclosure and which isreasonably available to Indemnitee and reasonably necessary to suchdetermination. Any Independent Counsel, member of the Board of Directors, orstockholder of the Company shall act reasonably and in good faith in making a determinationunder the Agreement of the Indemnitee’s entitlement to indemnification. Anycosts or expenses (including attorneys’ fees and disbursements) incurred byIndemnitee in so cooperating with the person, persons or entity making suchdetermination shall be borne by the Company (irrespective of the determinationas to Indemnitee’s entitlement to indemnification) and the Company herebyindemnifies and agrees to hold Indemnitee harmless therefrom.

 

(c)        Ifthe determination of entitlement to indemnification is to be made byIndependent Counsel pursuant to Section 6(b) hereof, the Independent Counselshall be selected as provided in this Section 6(c). If a Change in Controlshall not have occurred, the Independent Counsel shall be selected by the Boardof Directors, and the Company shall give written notice to Indemnitee advisinghim of the identity of the Independent Counsel so selected. If a Change inControl shall have occurred, the Independent Counsel shall be selected byIndemnitee (unless Indemnitee shall request that such selection be made by theBoard of Directors, in which event the preceding sentence shall apply), andIndemnitee shall give written notice to the Company advising it of the identityof the Independent Counsel so selected. In either event, Indemnitee or theCompany, as the case may be, may, within 10 days after such written notice ofselection shall have been given, deliver to the Company or to Indemnitee, asthe case may be, a written objection to such selection; provided, however, thatsuch objection may be asserted only on the ground that the Independent Counselso selected does not meet the requirements of “Independent Counsel” as definedin Section 15 of this Agreement, and the objection shall set forth withparticularity the factual basis of such assertion. Absent a proper and timelyobjection, the person so selected shall act as Independent Counsel. If awritten objection is made and substantiated, the Independent Counsel selectedmay not serve as Independent Counsel unless and until such objection iswithdrawn or a court has determined that such objection is without merit. If,within 20 days after submission by Indemnitee of a written request forindemnification pursuant to Section 6(a) hereof, no Independent Counsel shallhave been selected and not objected to, either the Company or Indemnitee maypetition the Court of Chancery of the State of Delaware or other court ofcompetent jurisdiction for resolution of any objection which shall have beenmade by the Company or Indemnitee to the other’s selection of IndependentCounsel and/or for the appointment as Independent Counsel of a person selectedby the court or by such other person as the court shall designate, and theperson with respect to whom all objections are so resolved or the person soappointed shall act as Independent Counsel under Section 6(b) hereof. TheCompany shall pay any and all reasonable fees and expenses of IndependentCounsel incurred by such Independent Counsel in connection with acting pursuantto Section 6(b) hereof, and the Company shall pay all reasonable fees andexpenses of Indemnitee incident to the procedures of this Section 6(c),regardless of the manner in which such Independent Counsel was selected orappointed. Upon the due commencement of any judicial proceeding or arbitrationpursuant to 

 

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

 

7.         **Defense by the Company**.

 

(a)        Withrespect to any Proceeding (other than a Proceedings by or in the rights of theCompany) to which Indemnitee is or becomes a party, the Company may, in itssole discretion and except as otherwise provided below, assume the defense ofsuch Proceeding using counsel selected by the Company, but subject toIndemnitee’s reasonable approval. Any defense so assumed by the Company may beconducted jointly with any other indemnifying party. In the event the Companyelects to assume the defense of a Proceeding, the Company shall provide noticeof the same to Indemnitee and, after Indemnitee’s receipt of such notice,Indemnitee shall have the right to employ separate legal counsel, but any legalfees and expenses thereafter incurred by Indemnitee in connection with thedefense of such Proceeding shall not be subject to indemnification by theCompany (except for reasonable costs of transitioning the defense to theCompany’s counsel and reasonable costs of investigation) unless:  (i) the Company has authorized, inwriting, such separate counsel; (ii) there exists an actual conflict ofinterest between the Company and Indemnitee; or (iii) the Company has notin fact employed or ceases to employ counsel in such defense. In addition, if,under applicable laws and rules of attorney professional conduct, there existsa potential, but not actual, conflict of interest between the Company andIndemnitee, the Company’s indemnification and Expense advancement obligationsto Indemnitee under this Agreement shall include reasonable legal fees andreasonable costs incurred by Indemnitee for separate counsel retained byIndemnitee to monitor the litigation (so that such separate counsel may assumeIndemnitee’s defense if the conflict of interest between the Company andIndemnitee becomes an actual conflict of interest). The existence of an actualor potential conflict, and whether any such conflict may be waived, shall bedetermined pursuant to the rules of attorney professional conduct andapplicable law.

 

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

 

8.         **Presumptions And Effect Of Certain Proceedings**.

 

(a)        Inmaking a determination with respect to entitlement to indemnificationhereunder, the person or persons or entity making such determination shallpresume that Indemnitee is entitled to indemnification under this Agreement ifIndemnitee has submitted a request for indemnification in accordance withSection 6(a) of this Agreement, and the Company shall have the burden of proofto 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)       Ifthe person, persons or entity empowered or selected under Section 6 ofthis Agreement to determine whether Indemnitee is entitled to indemnificationshall not have made a determination within thirty (30) days after receipt bythe Company of the request therefor, the requisite determination of entitlementto indemnification shall be deemed to have been made and Indemnitee shall beentitled to such indemnification, absent (i) a misstatement by Indemniteeof a material fact, or an omission of a material fact necessary to makeIndemnitee’s statement not materially misleading, in connection with therequest for indemnification, or (ii) a prohibition of such indemnificationunder applicable law; provided, however, that such 30 day period may beextended for a reasonable time, not to exceed an additional fifteen (15) days,if the person, persons or entity making the determination with respect toentitlement to indemnification in good faith requires such additional time forthe obtaining or evaluating documentation and/or information relating thereto;and provided, further, that the foregoing provisions of this Section 7(b) shallnot apply (i) if the determination of entitlement to indemnification is tobe 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 requestfor such determination the Board of Directors or the Disinterested Directors,if appropriate, resolve to submit such determination to the stockholders fortheir 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) daysafter such receipt for the purpose of making such determination, such meetingis held for such purpose within sixty (60) days after having been so called andsuch determination is made thereat, or (ii) if the determination of entitlementto indemnification is to be made by Independent Counsel pursuant to Section6(b) of this Agreement, in which case the determination of entitlement shall bemade 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)        Thetermination of any Proceeding or of any claim, issue or matter therein, byjudgment, order, settlement (with or without court approval), conviction, orupon a plea of nolo contendere or its equivalent, shall not (except asotherwise expressly provided in this Agreement) of itself adversely affect theright of Indemnitee to indemnification or create a presumption that Indemniteedid not act in good faith and in a manner which he reasonably believed to be inor not opposed to the best interests of the Company and, with respect to anycriminal Proceeding, that Indemnitee had reasonable cause to believe that hisconduct was unlawful.

 

(d)       Forpurposes of any determination of good faith, Indemnitee shall be deemed to haveacted in good faith and in a manner he reasonably believed to be in or not opposedto the best interests of the Company, and, with respect to any criminal actionor proceeding, to have had no reasonable cause to believe his or her conductwas unlawful, if Indemnitee’s action is based on the records or books ofaccount of the Enterprise (as hereinafter defined), including financialstatements, or on information supplied to Indemnitee by the Officers andDirectors of the Enterprise in the course of their duties, or on the advice oflegal counsel for the Enterprise or on information or records given or reportsmade to the Enterprise by an independent certified public accountant or by anappraiser or other expert selected with reasonable care by the Enterprise. Inaddition, 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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Indemniteefor purposes of determining the right to indemnification under this Agreement. Theprovisions of this Section 8(d) shall not be deemed to be exclusive or to limitin any way the other circumstances in which the Indemnitee may be deemed tohave met the applicable standard of conduct set forth in this Agreement.

 

(e)        Notwithstandinganything to the contrary in this Agreement, the parties acknowledge and agreethat 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 fromwhich there is no further right to appeal, irrespective of whether a sentencehas been entered on such guilty plea, and an ultimate determination ofIndemnitee’s entitlement to indemnification or advancement of Expenses underthis Agreement may be made on the basis of such plea.

 

9.         **Remedies Of Indemnitee**.

 

(a)        Inthe event that (i) a determination is made pursuant to Section 6 ofthis Agreement that Indemnitee is not entitled to indemnification under thisAgreement, (ii) advancement of Expenses is not timely made pursuant toSection 5 of this Agreement, (iii) no determination of entitlement toindemnification shall have been made pursuant to Section 6(b) of this Agreementwithin 90 days after receipt by the Company of the request for indemnification,(iv) payment of indemnification is not made pursuant to Section 3 or4 of this Agreement within ten (10) days after receipt by the Company of awritten request therefor, or (v) payment of indemnification is not madewithin ten (10) days after a determination has been made that Indemnitee isentitled to indemnification or such determination is deemed to have been madepursuant to Section 6 or 8 of this Agreement, Indemnitee shall be entitledto an adjudication in an appropriate court of the State of Delaware, or in anyother court of competent jurisdiction, of his entitlement to suchindemnification. Alternatively, Indemnitee, at his option, may seek an award inarbitration to be conducted by a single neutral arbitrator pursuant to theCommercial Arbitration Rules of the American Arbitration Association. Indemniteeshall commence such proceeding seeking an adjudication or an award inarbitration within 180 days following the date on which Indemnitee first hasthe right to commence such proceeding pursuant to this Section 8(a); provided,however, that no failure to commence such proceeding within 180 days shallbe deemed to reduce or limit the Company’s obligations under this Agreementunless (and only to the extent) such failure materially prejudices the Company.The Company shall not oppose Indemnitee’s right to seek any such adjudicationor award in arbitration.

 

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

 

(c)        Ifa determination shall have been made pursuant to Section 6(b) of this Agreementthat Indemnitee is entitled to indemnification, the Company shall be bound bysuch determination in any judicial proceeding or arbitration commenced pursuantto this Section 9, absent (i) a misstatement by Indemnitee of amaterial fact, or an omission of a material fact necessary to make Indemnitee’sstatement not materially misleading, in connection with the request forindemnification, or (ii) a prohibition of such indemnification underapplicable law.

 

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(d)       Inthe event that Indemnitee, pursuant to this Section 9, seeks a judicialadjudication of or an award in arbitration to enforce his rights under, or torecover damages for breach of, this Agreement, the Company shall indemnify andhold Indemnitee harmless against any and all expenses (of the type described inthe definition of Expenses in Section 15 of this Agreement) and, if requestedby Indemnitee, shall (within ten (10) days after receipt by the Company of awritten request therefore) advance such expenses to Indemnitee, actually andreasonably incurred by him in such judicial adjudication or arbitration, unlessthe court (in a judicial adjudication) or the arbitrator determines that one ormore of the material assertions made by Indemnitee as the basis for each claimto enforce Indemnitee’s rights under, or to recover damages for breach of, thisAgreement in such action were not made in good faith or were frivolous. If itshall be determined in such judicial proceeding or arbitration that fewer thanall of such claims were based on one or more material assertions not made ingood faith or that were frivolous, Indemnitee shall be entitled to beindemnified and held harmless by the Company on a pro rated basis for any claimthe court or arbitrator determines was based entirely on material assertionsmade in good faith and not frivolous. The Company shall indemnify and hold Indemniteeharmless against any and all expenses (of the types described in the definitionof Expenses in Section 15 of this Agreement) and, if requested byIndemnitee, shall (within ten (10) days after receipt by the Company of awritten request therefor) advance such expenses to Indemnitee, which areincurred by Indemnitee in connection with any action brought by Indemnitee torecover under any Directors’ and Officers’ liability insurance policiesmaintained by the Company, regardless of whether Indemnitee ultimately isdetermined to be entitled to such indemnification, advancement of expenses orinsurance recovery, as the case may be.

 

(e)        TheCompany shall be precluded from asserting in any judicial proceeding orarbitration commenced pursuant to this Section 9 that the procedures andpresumptions of this Agreement are not valid, binding and enforceable and shallstipulate in any such court or before any such arbitrator that the Company isbound by all the provisions of this Agreement.

 

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

 

(a)        Therights of indemnification as provided by this Agreement shall not be deemedexclusive of any other rights to which Indemnitee may at any time be entitledunder applicable law, the Certificate, any agreement, a vote of stockholders ora resolution of Directors, or otherwise. No amendment, alteration or repeal ofthis Agreement or of any provision hereof shall limit or restrict any right ofIndemnitee under this Agreement in respect of any action taken or omitted bysuch Indemnitee in his Corporate Status prior to such amendment, alteration orrepeal. To the extent that a change in the Law, whether by statute or judicialdecision, permits greater indemnification than would be afforded currentlyunder the Certificate and this Agreement, it is the intent of the partieshereto that Indemnitee shall enjoy by this Agreement the greater benefits soafforded by such change. No right or remedy herein conferred is intended to beexclusive of any other right or remedy, and every other right and remedy shallbe cumulative and in addition to every other right and remedy given hereunder ornow or hereafter existing at law or in equity or otherwise. The assertion oremployment of any right or remedy hereunder, or otherwise, shall not preventthe concurrent assertion or employment of any other right or remedy.

 

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(b)       Tothe extent that the Company maintains an insurance policy or policies providingliability insurance for Directors, Officers, employees, or agents orfiduciaries of the Company or of any other corporation, partnership, joint venture,trust, employee benefit plan or other enterprise which such person serves atthe request of the Company, Indemnitee shall be covered by such policy orpolicies in accordance with its or their terms to the maximum extent of thecoverage available for any such director, officer, employee or agent under suchpolicy or policies. If, at the time the Company receives notice from any sourceof a Proceeding as to which Indemnitee is a party or a participant and theCompany has one or more director and officer liability insurance policies ineffect, the Company shall give prompt notice of the Proceeding to the insurersin accordance with the procedures set forth in the respective policies. TheCompany shall thereafter use its best efforts to cause the insurers to pay, onbehalf of Indemnitee, all amounts payable as a result of the Proceeding inaccordance with the terms of the policies.

 

(c)        Inthe event of any payment under this Agreement, the Company shall be subrogatedto 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 securesuch rights, including execution of such documents as are necessary to enablethe Company to bring suit to enforce such rights.

 

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

 

(e)        TheCompany and Indemnitee agree that a monetary remedy for breach of thisAgreement may be inadequate, impracticable and difficult of proof, and furtheragree that such breach may cause Indemnitee irreparable harm. Accordingly, theparties hereto agree that Indemnitee may enforce this Agreement by seekinginjunctive relief and/or specific performance hereof, without any necessity ofshowing actual damage or irreparable harm and that by seeking injunctive reliefand/or specific performance, Indemnitee shall not be precluded from seeking orobtaining any other relief to which he may be entitled. The Company andIndemnitee further agree that Indemnitee shall be entitled to such specificperformance and injunctive relief, including temporary restraining orders,preliminary injunctions and permanent injunctions, without the necessity ofposting bonds or other undertaking in connection therewith. The Companyacknowledges that in the absence of a waiver, a bond or undertaking may berequired of Indemnitee by the Court, and the Company hereby waives any suchrequirement of a bond or undertaking.

 

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

 

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12.       **Duration Of Agreement**. All agreementsand obligations of the Company contained herein shall continue during theperiod Indemnitee is an officer and/or a director of the Company (or is or wasserving at the request of the Company as a director, officer, employee or agentof another corporation, partnership, joint venture, trust or other enterprise)and shall continue thereafter so long as Indemnitee may be subject to anyProceeding (including any rights of appeal and any proceeding commenced underSection 9 hereof) by reason of his Corporate Status, whether or not he isacting or serving in any such capacity at the time any liability or expense isincurred for which indemnification can be provided under this Agreement. ThisAgreement shall be binding upon and inure to the benefit of and be enforceableby the parties hereto and their respective successors (including any direct orindirect successor by purchase, merger, consolidation or otherwise to all orsubstantially all of the business or assets of the Company), assigns, spouses,heirs, executors and personal and legal representatives. This Agreement shallcontinue in effect regardless of whether Indemnitee continues to serve as anofficer and/or a director of the Company or any other enterprise at the Company’srequest.

 

13.       **Security**. To the extent requested bythe Indemnitee and approved by the Board of Directors, the Company may at anytime and from time to time provide security to the Indemnitee for the Company’sobligations hereunder through an irrevocable bank line of credit, funded trustor other collateral. Any such security, once provided to the Indemnitee, maynot be revoked or released without the prior written consent of the Indemnitee.

 

14.       **Enforcement**.

 

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

 

(b)       ThisAgreement constitutes the entire agreement between the parties hereto withrespect to the subject matter hereof and supersedes all prior agreements andunderstandings, oral, written and implied, between the parties hereto withrespect to the subject matter hereof.

 

15.       **Definitions**. For purposes of thisAgreement:

 

(a)        “ChangeIn Control” means a change in control of the Company occurring after thedate of this Agreement of a nature that would be required to be reported inresponse to Item 6(e) of Schedule 14A of Regulation 14A (or in response toany similar item on any similar schedule or form) promulgated under theSecurities Exchange Act of 1934 (the “Act”), whether or not the Company is thensubject to such reporting requirement; provided, however, that, withoutlimitation, such a Change in Control shall be deemed to have occurred if afterthe date of this Agreement (i) any “person” (as such term is used inSections 13(d) and 14(d) of the Act, as amended) other than a trustee or otherfiduciary holding securities under an employee benefit plan of the Company or acorporation owned directly or indirectly by the stockholders of the Company insubstantially 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), 

 

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directlyor indirectly, of securities of the Company representing 15% or more of thecombined voting power of the Company’s then outstanding securities (other thanany such person or any affiliate thereof that is such a 15% beneficial owner asof the date hereof) without the prior approval of at least two-thirds of themembers of the Board of Directors in office immediately prior to such personattaining such percentage interest; (ii) there occurs a proxy contest, orthe Company is a party to a merger, consolidation, sale of assets, plan ofliquidation or other reorganization, as a consequence of which members of theBoard of Directors in office immediately prior to such transaction or eventconstitute less than a majority of the Board of Directors thereafter; or(iii) during any period of two consecutive years, other than as a resultof an event described in clause (a)(ii) of this Section 16, individualswho at the beginning of such period constituted the Board of Directors(including for this purpose any new director whose election or nomination forelection by the Company’s stockholders was approved by a vote of at leasttwo-thirds of the Directors then still in office who were Directors at thebeginning of such period) cease for any reason to constitute at least amajority of the Board of Directors. A Change in Control shall not be deemed tohave occurred under item (i) above if the “person” described underitem (i) is entitled to report its ownership on Schedule 13Gpromulgated under the Act and such person is able to represent that it acquiredsuch securities in the ordinary course of its business and not with the purposenor with the effect of changing or influencing the control of the Company, norin connection with or as a participant in any transaction having such purposeor effect. If the “person” referred to in the previous sentence would at anytime not be entitled to continue to report such ownership on Schedule 13Gpursuant to Rule 13d1(b)(3)(i)(B) of the Act, then a Change in Control shall bedeemed to have occurred at such time.

 

(b)       “CorporateStatus” 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 enterprisewhich such person is or was serving at the express written request of theCompany.

 

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

 

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

 

(e)        “Expenses” shall include all reasonableattorneys’ 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 disbursementsor expenses of the types customarily incurred in connection with prosecuting,defending, preparing to prosecute or defend, investigating, participating, orbeing or preparing to be a witness in a Proceeding. Expenses also shall includeExpenses incurred in connection with any appeal resulting from any Proceeding,including without limitation the premium, security for, and other costsrelating to any cost bond, supersedeas bond, or other appeal bond or itsequivalent.

 

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(f)        “IndependentCounsel” means a law firm, or a member of a law firm, that is experiencedin matters of corporation law and neither presently is, nor in the past five yearshas been, retained to represent: (i) the Company or Indemnitee in any matter material to either suchparty (other than with respect to matters concerning the Indemnitee under thisAgreement, or of other indemnitees under similar indemnification agreements),or (ii) any other party to the Proceeding giving rise to a claim forindemnification hereunder. Notwithstanding the foregoing, the term “IndependentCounsel” shall not include any person who, under the applicable standards ofprofessional conduct then prevailing, would have a conflict of interest inrepresenting either the Company or Indemnitee in an action to determineIndemnitee’s rights under this Agreement. The Company agrees to pay thereasonable fees of the Independent Counsel referred to above and to fullyindemnify such counsel against any and all Expenses, claims, liabilities anddamages arising out of or relating to this Agreement or its engagement pursuanthereto.

 

(g)       “Proceeding” includes any threatened, pendingor completed action, suit, arbitration, alternate dispute resolution mechanism,investigation, inquiry, administrative hearing or any other actual, threatenedor completed proceeding, whether brought by or in the right of the Company orotherwise and whether civil, criminal, administrative or investigative, inwhich Indemnitee was, is or may be involved as a party or otherwise, by reasonof the fact that Indemnitee is or was an officer and/or a director of theCompany, by reason of any action taken by him or of any inaction on his partwhile acting as an officer and/or a director of the Company, or by reason ofthe 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 servingin any such capacity at the time any liability or expense is incurred for whichindemnification can be provided under this Agreement; including one pending onor before the date of this Agreement; and excluding one initiated by anIndemnitee pursuant to Section 9 of this Agreement to enforce his rightsunder this Agreement.

 

16.       **Severability**. If any provision orprovisions of this Agreement shall be held by a court of competent jurisdictionto be invalid, void, illegal or otherwise unenforceable for any reasonwhatsoever:  (a) the validity,legality and enforceability of the remaining provisions of this Agreement(including without limitation, each portion of any section of this Agreementcontaining any such provision held to be invalid, illegal or unenforceable,that is not itself invalid, illegal or unenforceable) shall not in any way beaffected or impaired thereby and shall remain enforceable to the fullest extentpermitted by law; and (b) to the fullest extent possible, the provisionsof this Agreement (including, without limitation, each portion of any sectionof this Agreement containing any such provision held to be invalid, illegal orunenforceable, that is not itself invalid, illegal or unenforceable) shall beconstrued 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 bindingunless executed in writing by both of the parties hereto. No waiver of any ofthe provisions of this Agreement shall be deemed or shall constitute a waiverof any other provisions hereof (whether or not similar) nor shall such waiverconstitute a continuing waiver.

 

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18.       **Notice By Indemnitee**. Indemnitee agreespromptly to notify the Company in writing upon being served with any summons,citation, subpoena, complaint, indictment, information or other documentrelating to any Proceeding or matter which may be subject to indemnificationcovered hereunder. The failure to so notify the Company shall not relieve theCompany of any obligation which it may have to the Indemnitee under thisAgreement or otherwise.

 

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

 

(a)        Ifto Indemnitee, to:

 

 

 

(b)       Ifto the Company, to:

 

ValueClick, Inc.30699 Russell Ranch Road, Suite 250Westlake Village, CA 91362Attention:  James R. Zarley

 

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

 

20.       **Identical Counterparts**. This Agreementmay be executed in one or more counterparts, each of which shall for allpurposes be deemed to be an original but all of which together shall constituteone and the same Agreement. Only one such counterpart signed by the partyagainst whom enforceability is sought needs to be produced to evidence theexistence of this Agreement.

 

21.       **Headings**. The headings of theparagraphs of this Agreement are inserted for convenience only and shall not bedeemed to constitute part of this Agreement or to affect the constructionthereof.

 

22.       **Governing Law**. The parties agree thatthis Agreement shall be governed by, and construed and enforced in accordancewith, the laws of the State of Delaware without application of the conflict oflaws principles thereof.

 

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

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement onand 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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