ex101to8k07554_02172010.htm


    Exhibit
10.1

     

    YOUBET.COM,
INC.

     

    RETENTION
PROGRAM

     

    


     

    1.           Effective
Date.  This Retention Program (the “Plan”) of Youbet.com,
Inc. (the “Company”) shall be
effective as of February 17, 2010 (the “Effective Date”) and
shall remain in effect until the Termination Date (as defined in Exhibit A) (the
“Term”).

     

    2.           Participants
Covered.  Each person listed on Exhibit B shall become a
participant in the Plan on the Effective Date (each such person, a “Participant”) and,
except as otherwise determined in writing by the Compensation Committee (the
“Compensation
Committee”) of the Company’s Board of Directors, no person who is not
listed on Exhibit B on the date hereof shall become a Participant in this
Plan.

     

    3.           Retention
Payments.  On the Effective Date, the Company shall establish a
Retention Payment for each Participant, which shall be set forth on Exhibit
B.  A Participant’s Retention Payment shall be a bookkeeping entry
only and no trust, security, escrow, or similar account need be established for
the purpose of paying benefits hereunder.  Each Participant’s
Retention Payment shall be a general obligation of the Company and the claim of
a Participant or beneficiary to a benefit shall at all times be merely the claim
of an unsecured creditor of the Company.

     

    4.           Vesting of Retention
Payment.  A Participant’s right to receive all or a portion of
his/her Retention Payment shall vest and become non-forfeitable as set forth
below.

     

    4.1           Normal
Vesting.  50% of each Participant’s Retention Payment shall
vest on the Closing (as defined in Exhibit A) and the remaining 50% shall vest
on the six-month anniversary of the Closing (each, a “Vesting Date”) if the
Participant is then employed by the Company, any of its direct or indirect
subsidiaries or any affiliate thereof (an “Affiliate”).

     

    4.2           Accelerated
Vesting.  A Participant shall become 100% vested in his/her
Retention Payment immediately upon the termination of the Participant’s
employment with the Company and its Affiliates (i) by the Company or its
Affiliates for any reason other than for Cause (as defined in Exhibit A), (ii)
by the Participant for Good Reason (as defined in Exhibit A) or (iii) due to the
Participant’s death; provided, however, that in the event such termination
occurs prior to the Closing, the Participant’s Retention Payment shall not vest
until the Closing.

     

    5.           Forfeiture of Retention
Payment.  Subject to Section 4.2, above, a Participant shall
forfeit the Retention Payment upon any termination of employment with the
Company and its Affiliates.

     

    6.           Distribution of Vested
Retention Payment.

     

    6.1           General.  The
vested portion of a Participant’s Retention Payment shall be distributed in a
cash lump sum to the Participant (or his/her beneficiaries) within 10 days of
the date the Participant’s right to such portion becomes vested in accordance
with Section 4.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    6.2           Section
409A.  To the extent necessary to avoid imposition on the
Executive of a penalty tax pursuant to Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”), any
distribution payable as a result of a Participant’s termination of employment
shall be deferred for six months and one day after such termination and shall be
made in accordance with the provisions of Section 6.1.

     

    7.           Miscellaneous.

     

    7.1           Spendthrift
Clause.  No benefit, distribution or payment under the Plan may
be anticipated, assigned (either at law or in equity), alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable process
whether pursuant to a “qualified domestic relations order” as defined in
Section 414(p) of the Code or otherwise.

     

    7.2           Withholding.  Any
amounts payable hereunder shall be reduced by all required withholdings for
state, federal and local employment, income, payroll or other
taxes.

     

    7.3           Beneficiary
Designation.  A Participant may from time to time designate, in
the manner specified by the Company, a beneficiary to receive payment pursuant
to Section 6 in the event of his/her death.  In the event that
there is no properly designated beneficiary living at the time of a
Participant’s death, his/her benefit hereunder shall be paid to his/her
estate.

     

    7.4           Amendment.  On
and after the Effective Date, the Plan may not be amended by the Company in a
manner that adversely affects a Participant without his/her written consent. The
Plan may be amended with the consent of Participants to comply with Section 409A
of the Code so long as such amendments do not materially adversely affect the
rights of any Participant hereunder.

     

    7.5           Governing
Law.  This Plan shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware without giving effect to
the conflict of law principles thereof.  For purposes of jurisdiction
and venue, the Company hereby consents to jurisdiction and venue in any action,
suit or proceeding in any court of competent jurisdiction in any state in which
the Participant resides at the commencement of such action, suit of proceeding
and waives any objection, challenge or dispute as to such jurisdiction or venue
being proper.

     

    7.6           Right of Discharge
Preserved.  Nothing contained in this Plan shall be construed
as a guarantee or right of any Participant to be continued as an employee of the
Company or its Subsidiaries or as a limitation of the right of the Company or
its Subsidiaries to terminate the employment of any Participant.

     

    7.7           Successors and
Assigns.  This Plan shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns, and the Company shall
require any successor or assign (including any purchaser of all or substantially
all the Company’s asset) to expressly assume and agree to maintain this Plan and
to perform under this Plan to the same extent that the Company would be required
to perform under the Plan if no such succession or assignment had taken
place.  The term "Company" as used herein shall include such
successors and assigns.

     

    
      
        
        

      

      
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    IN WITNESS WHEREOF, the Company has
caused this Plan to be adopted February 17, 2010.

     

    
      
        
        

      

      
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    EXHIBIT
A

    CERTAIN
DEFINITIONS

    


    A-1           Cause. The Company
and its Subsidiaries may terminate a Participant for Cause in the event that,
after the Effective Date, the Participant:

    


    (i)           Continues
to fail to perform any of the material duties of his/her position with the
Company or its Subsidiaries, including special projects and assignments, after
notice and a reasonable opportunity to correct performance;

    


    (ii)           Breaches
any material provision of the Company’s Code of Conduct; or

    


    (iii)           Is
convicted of, or pleads nolo
contendere to, any felony or misdemeanor which has a material impact on
the Participant’s ability to perform the duties of his/her
position.

    


    A-2           Closing means the
“Closing” as defined in the Agreement and Plan of Merger, dated as of November
11, 2009, by and among Churchill Downs Incorporated, Tomahawk Merger Corp.,
Tomahawk Merger LLC and the Company (the “Merger
Agreement”).

    


    A-3           Good
Reason.  A Participant may terminate his/her employment with
the Company and its Subsidiaries for Good Reason in the event that, on or after
the Closing, (i) the Participant is subjected to a reduction in base salary paid
by the Company to a level that is less than the Participant’s base salary
immediately prior to the Closing or (ii) the Participant is subjected to a
substantial relocation of the Participant’s principal place of employment from
his/her principal place of employment immediately prior to the Closing without
the Participant’s consent.

    


    A-4           Termination Date
means the earlier to occur of (i) the termination of the Merger Agreement in
accordance with its terms or (ii) the date of payment of all payments required
to be made hereunder.

     

    
      
        
        

      

      
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