ex102to8k307554_11112009.htm


    Exhibit 10.2

     

    
      VOTING
AGREEMENT

       

      This
VOTING AGREEMENT (the “Agreement”), dated as
of November 11, 2009, is made by and between New World Opportunity Partners I,
L.P., a Delaware limited partnership (the “Stockholder”), and
Churchill Downs Incorporated, a Kentucky corporation (“Parent”).  Capitalized
terms used herein but not otherwise defined herein shall have the meanings
ascribed to such terms in the Merger Agreement (as defined below).

       

      WHEREAS,
concurrently herewith, Parent, Tomahawk Merger Corp., a Delaware corporation and
a wholly owned subsidiary of Parent (“Merger Sub”),
Tomahawk Merger LLC, a single member Delaware limited liability company and
wholly owned subsidiary of Parent (“Merger LLC”) and
Youbet.com, Inc., a Delaware corporation (the “Company”), are
entering into an Agreement and Plan of Merger, dated as of the date hereof (for
purposes of this definition, substantially in the form provided to the
Stockholder prior to the Stockholder’s execution hereof and as may hereafter be
amended in a manner not materially adverse to the Stockholder (provided that any
reduction in the Exchange Ratio or reduction in the Per Share Cash Consideration
payable in the Merger to the Stockholder shall be deemed an amendment materially
adverse to the Stockholder), the “Merger Agreement”),
providing for the merger of Merger Sub with and into the Company, with the
Company continuing as the Surviving Corporation, and as soon as reasonably
practicable thereafter, the Surviving Corporation will merge with and into
Merger LLC, upon the terms and subject to the conditions set forth in the Merger
Agreement (the “Merger”);

       

      WHEREAS,
as of the date hereof, the Stockholder owns, beneficially or of record, or has
complete investment authority over, and has (or upon exercise or exchange of a
convertible security will have), except as set forth on Schedule A hereto,
the power to vote and dispose of the number of shares of Company Common Stock
set forth on Schedule
A hereto (the “Owned Shares” and,
together with any securities issued or exchanged with respect to such shares of
Company Common Stock during the term of this Agreement upon any
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up or combination of the securities
of the Company or any other change in the Company’s capital structure or
securities of which such Stockholder acquires beneficial or record ownership
after the date hereof and prior to the termination hereof, whether by purchase,
acquisition or upon exercise of options, warrants, conversion of other
convertible securities or otherwise, collectively referred to herein as, the
“Covered
Shares”); and

       

      WHEREAS,
as a condition to the willingness of Parent to enter into the Merger Agreement,
Parent has required that the Stockholder agree, and in order to induce Parent to
enter into the Merger Agreement, the Stockholder has agreed, to enter into this
Agreement with respect to the Covered Shares and certain other matters as set
forth herein.

       

      NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      ARTICLE
I.

      VOTING
AGREEMENT

      


      Section
1.1                      Voting
Agreement.  The Stockholder hereby irrevocably and
unconditionally covenants and agrees that during the Voting Period (as defined
below), at any meeting of the stockholders of the Company (whether annual or
special), however called, or at any adjournment or postponement thereof or in
any other circumstances (including an action by written consent) upon which a
vote or other approval is sought with respect to any of the matters referred to
in clause (ii) below, the Stockholder shall (i) when a meeting is held, appear
at such meeting or otherwise cause the Covered Shares as to which the
Stockholder controls the right to vote to be counted as present thereat for the
purpose of establishing a quorum, and (ii) vote (or cause to be voted) in person
or by proxy the Covered Shares as to which the Stockholder controls the right to
vote (A) in favor of the adoption of the Merger Agreement and the transactions
contemplated by the Merger Agreement, (B) in favor of the approval of any other
matter to be approved by the stockholders of the Company in connection with the
Merger, the adoption of the Merger Agreement and the transactions contemplated
by the Merger Agreement, (C) against any extraordinary corporate transaction
(other than the Merger), such as a merger, consolidation, business combination,
tender or exchange offer, reorganization, recapitalization, liquidation, sale or
transfer of all or substantially all of the assets or securities of the Company
and any of its subsidiaries (other than pursuant to the Merger) or any other
Alternative Transaction, (D) against any amendment of the Company’s certificate
of incorporation or by-laws other than as permitted by the Merger Agreement, (E)
in a manner that is not inconsistent with the publicly stated position or
recommendation of Parent (but only to the extent Parent publicly states a
position or recommendation) with respect to any other proposal, action or
transaction involving the Company or any of its Subsidiaries, which amendment or
other proposal, action or transaction would reasonably be expected to in any
manner impede, frustrate, prevent or nullify the Merger Agreement, the Company
Stockholder Approval, the Merger or any of the other transactions contemplated
by the Merger Agreement or change in any manner the voting rights of any class
of the Company’s capital stock, and (F) against any extraordinary dividend,
distribution or recapitalization by the Company or change in the capital
structure of the Company (other than pursuant to or as permitted by the Merger
Agreement).  For the purposes of this Agreement, “Voting Period” shall
mean the period commencing on the date hereof and ending immediately prior to
any termination of this Agreement in accordance with its terms pursuant to
Section 5.1 hereof.  The Stockholder further agrees not to commit
or agree to take any action inconsistent with the foregoing.

       

      Section
1.2                      Grant of
Proxy.  In order to secure the performance of Stockholder’s
obligations under this Agreement, the Stockholder hereby revokes any and all
previous proxies granted with respect to the Covered Shares and irrevocably
grants to, and appoints, Parent and each executive officer of Parent, and any
other individual designated in writing by Parent, as such Stockholder’s proxy
and attorney-in-fact (with full power of substitution), for and in its name,
place and stead, to be counted as present, vote, express consent or dissent or
otherwise to act on behalf of such Stockholder with respect to the Covered
Shares in the manner contemplated by Section 1.1 during the Voting
Period.  The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder’s execution
and delivery of this Agreement.  The Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 1.2 is given in connection with
the execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of the Stockholder under this
Agreement.  Except as provided for in the last sentence of this
Section 1.2, the Stockholder hereby (i) affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked and
(ii) ratifies and confirms all that the proxies appointed hereunder may
lawfully do or cause to be done by virtue hereof.  Notwithstanding any
other provisions of this Agreement, the irrevocable proxy granted hereunder
shall automatically terminate upon the termination of this Agreement without any
notice or other action by any person.

       

      
        
           

        

        
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      Section
1.3                      Waiver of Appraisal
Rights.  The Stockholder hereby irrevocably and unconditionally
waives, and agrees not to assert or perfect, any rights of appraisal,
dissenters’ rights or similar rights that such Stockholder may have in
connection with the Merger.

       

      ARTICLE
II.

      REPRESENTATIONS AND
WARRANTIES OF PARENT

       

      Parent
hereby represents and warrants to each Stockholder as follows:

       

      Section
2.1                      Valid
Existence.  Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Kentucky and has
the requisite corporate power and authority to carry on its business as it is
now being conducted.

       

      Section
2.2                      Authority Relative to This
Agreement.  Parent has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated
hereby.  This Agreement has been duly and validly authorized, executed
and delivered by Parent and, assuming the due execution and delivery by the
Stockholder, constitutes a legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws
relating to creditors rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).

       

      Section
2.3                      No
Conflicts.

       

      (a)           The
execution and delivery of this Agreement by Parent does not, and the performance
of Parent’s obligations under this Agreement and the consummation by Parent of
the transactions contemplated hereby will not, (i) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to Parent or any of
Parent’s properties or assets, (ii) contravene or conflict with the articles of
incorporation or the bylaws of Parent or (iii) result in any violation or the
breach of, or constitute a default under, or give rise to any right of
termination, cancellation or acceleration or any payments under, or result in a
loss of a benefit or in the creation or imposition of an Encumbrance under, any
of the terms, conditions or provisions of any contract, note, lease, mortgage,
indenture, license or other instrument to which Parent is a party, except for
conflicts, violations, breaches or defaults that would not impair the ability of
Parent to perform its obligations hereunder or prevent or delay the consummation
of the transactions contemplated by this Agreement.

       

      (b)           Except
for the applicable requirements of the Exchange Act, no filing or notification
with, and no permit, authorization, consent or approval of, any Governmental
Entity is necessary on the part of Parent for the execution and delivery of this
Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby, except where the failure to obtain such permits,
authorizations, consents or approvals, or to make such filings or notifications,
would not impair the ability of Parent to perform its obligations
hereunder.

       

      
        
           

        

        
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      ARTICLE
III.

      REPRESENTATIONS AND
WARRANTIES

      OF THE
STOCKHOLDER

       

      The
Stockholder hereby represents and warrants to Parent as follows:

       

      Section
3.1                      Authority Relative To This
Agreement.  If the Stockholder is a natural person, the
Stockholder has the capacity to execute and deliver this Agreement, to perform
the Stockholder’s obligations hereunder and to consummate the transactions
contemplated hereby.  If the Stockholder is other than a natural
person, the Stockholder (a) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and (b) has all
necessary organizational power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.  This Agreement has been duly and
validly executed and delivered by the Stockholder and, assuming the due
authorization, execution and delivery by Parent, constitutes a legal, valid and
binding obligation of the Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).

       

      Section
3.2                      No
Conflicts.

       

      (a)           The
execution and delivery of this Agreement by the Stockholder do not, and the
performance of the Stockholder’s obligations under this Agreement and the
consummation by the Stockholder of the transactions contemplated hereby will
not, (i) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to the Stockholder, the Covered Shares or any of the
Stockholder’s properties or assets, (ii) if such Stockholder is other than a
natural person, contravene or conflict with the certificate of incorporation or
the bylaws or other organizational documents of such Stockholder or (iii) result
in any violation or the breach of, or constitute a default under, or give rise
to any right of termination, cancellation or acceleration or any payments under,
or result in a loss of a benefit or in the creation or imposition of an
Encumbrance under, any of the terms, conditions or provisions of any contract,
note, lease, mortgage, indenture, license or other instrument to which the
Stockholder is a party, except for conflicts, violations, breaches or defaults
that would not impair the ability of the Stockholder to perform such
Stockholder’s obligations hereunder or prevent or delay the consummation of the
transactions contemplated by this Agreement.

       

      (b)           Except
for the applicable requirements of the Exchange Act, no filing or notification
with, and no permit, authorization, consent or approval of, any Governmental
Entity is necessary on the part of the Stockholder for the execution and
delivery of this Agreement, except where the failure to obtain such permits,
authorizations, consents or approvals, or to make such filings or notifications,
would not impair the ability of such Stockholder to perform such Stockholder’s
obligations hereunder.

       

      
        
           

        

        
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      Section
3.3                      Ownership Of
Shares.  As of the date hereof, except as set forth in Schedule A hereto,
the Stockholder has good and valid and marketable title to and is the record or
beneficial owner of the Owned Shares set forth opposite the Stockholder’s name
on Schedule A
hereto free and clear of all pledges, liens, proxies, claims, charges, security
interests, preemptive rights, voting trusts, voting agreements, options, rights
of first offer or refusal and any other encumbrances, restrictions or
arrangements whatsoever with respect to the ownership, transfer or other voting
of the Owned Shares.  Except as set forth in Schedule A hereto,
the Stockholder has full and unrestricted power to dispose of and vote all of,
and has not granted any proxy inconsistent with this Agreement that is still
effective with respect to, the Owned Shares.  The Stockholder does not
own, beneficially or of record, any shares of capital stock of the Company or
securities convertible into or exercisable or exchangeable for shares of capital
stock of the Company, other than the Covered Shares.  As of the date
hereof, no proceedings are pending which, if adversely determined, will have a
material adverse effect on any ability to vote or dispose of any of the Covered
Shares.

       

      Section
3.4                      Stockholder Has Adequate
Information.  The Stockholder is a sophisticated investor with
respect to the Covered Shares and has independently and without reliance upon
Parent and based on such information as the Stockholder has deemed appropriate,
made such Stockholder’s own analysis and decision to enter into this
Agreement.  The Stockholder acknowledges that Parent has not made nor
makes to the Stockholder any representation or warranty, whether express or
implied, of any kind or character in connection with this Agreement except as
expressly set forth in this Agreement.

       

      Section
3.5                      No
Setoff.  To the knowledge of the Stockholder, there are no
legal or equitable defenses or counterclaims that have been or may be asserted
by or on behalf of the Company, as applicable, to reduce the amount of the
Covered Shares or affect the validity or enforceability of this
Agreement.

       

      Section
3.6                      Finder’s
Fees.  Except as disclosed pursuant to the Merger Agreement, no
investment banker, broker, finder or other intermediary is entitled to a fee or
commission from Parent, Merger Sub or the Company in respect of this Agreement
based upon any arrangement or agreement made by or on behalf of the
Stockholder.

       

      Section
3.7                      No Other Representations or
Warranties.  Except for the representations and warranties
expressly contained in this Article III, the Stockholder makes no express or
implied representation or warranty with respect to such Stockholder, the Covered
Shares, or otherwise.

       

      ARTICLE
IV.

      COVENANTS OF THE
STOCKHOLDER

       

      The
Stockholder hereby covenants and agrees as follows:

       

      
        
           

        

        
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      Section
4.1                      No
Transfer.

       

      (a)           Other
than pursuant to the terms of this Agreement or the Merger Agreement, without
the prior written consent of Parent or as otherwise provided in this Agreement,
during the term of this Agreement, the Stockholder hereby agrees to not,
directly or indirectly, (i) grant any proxies, options, rights of first offer or
refusal or power of attorney or enter into any voting trust or other agreement
or arrangement with respect to, or restricting the voting of, any Covered
Shares, (ii) enter into a swap or any other agreement or any transaction that
transfers, in whole or in part, the economic consequence of ownership of any
Covered Shares or (iii) sell, pledge, assign, transfer, tender, exchange, offer,
encumber or otherwise dispose of (including by merger or consolidation), or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect assignment, transfer, tender, exchange, offer,
encumbrance or other disposition of (including by merger or consolidation)
(each, a “Transfer”), any
Covered Shares.  Any action taken or attempted to be taken in
violation of the preceding sentence will be null and void.  The
Stockholder further agrees to authorize and request Parent and the Company to
notify the Company’s transfer agent that there is a stop transfer order
consistent herewith with respect to the Covered Shares and that this Agreement
places limits on the voting of the Covered Shares.  Notwithstanding
the foregoing or anything to the contrary set forth in this Agreement, the
Stockholder may Transfer any or all of the Covered Shares (i) by will, or by
operation of law, in which case this Agreement shall, to the extent permitted by
Law, bind the transferee, or (ii) to affiliates, trusts and charitable
organizations, so long as the transferee, prior to such Transfer executes a
counterpart of this Agreement (with such modifications as Parent may reasonably
request solely to reflect such Transfer) and agrees to be bound by its
terms.

       

      (b)           The
Stockholder hereby covenants and agrees that for a period of 90 days following
the Effective Time (the “Lock-Up Period”),
such Stockholder shall not Transfer or consent to any Transfer of, any shares of
Parent Common Stock received by such Stockholder in the Merger with respect to
the Covered Shares, or any interest therein, or enter into any contract, option
or other arrangement or understanding with respect to the direct or indirect
Transfer of, any shares of Parent Common Stock received by such Stockholder in
the Merger with respect to the Covered Shares or any interest therein to any
Person (other than Parent); provided, however, that the
Stockholder may participate during the Lock-Up Period with respect to its shares
of Parent Common Stock in any merger, tender offer or other business combination
or other transaction, in each case, which the Board of Directors of Parent has
recommended to Parent’s stockholders; provided, further, that after
the Effective Time and during the Lock-Up Period, the Stockholder may Transfer
any or all of the shares of Parent Common Stock received by such Stockholder in
the Merger with respect to the Covered Shares (i) by will, or by operation of
law, in which case this Section 4.1(b) shall,
to the extent permitted by Law, bind the transferee until the expiration of the
Lock-Up Period, or (ii) to affiliates, trusts and charitable organizations, so
long as the transferee, prior to such Transfer executes a counterpart of this
Agreement (with such modifications as Parent may reasonably request solely to
reflect such Transfer) and agrees to be bound by its terms (including this Section
4.1(b)).  The Stockholder hereby agrees that, in order to
ensure compliance with the restrictions referred to herein, Parent may issue
appropriate stop transfer instructions to its transfer agent in respect of the
Stockholder’s Parent Common Stock.  Parent agrees that it will cause
any stop transfer instructions imposed pursuant to this Section 4.1(b) to be
lifted, and any legended certificates of Parent Common Stock delivered to the
Stockholder pursuant to the Merger Agreement to be replaced with certificates
not bearing such legend, promptly following the termination of the Lock-Up
Period. The restrictions on transfer provided in this Section 4.1(b) shall
be in addition to any restrictions on transfer of the Parent Common Stock
imposed by any applicable Laws.

       

      
        
           

        

        
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      Section
4.2                      Public
Announcement.  The Stockholder shall consult with Parent before
issuing any press releases or otherwise making any public statements with
respect to the transactions contemplated herein, in such Stockholder’s capacity
as a stockholder of the Company, except as may be required by applicable
Law.  The Stockholder hereby consents to disclosure in the
Registration Statement and the Proxy Statement (including all documents and
schedules filed with the SEC) and press releases with respect to the Merger in
accordance with the Merger Agreement, of the identity of the Stockholder and
ownership of the Covered Shares and the nature of such Stockholder’s
commitments, arrangements and understandings pursuant to this
Agreement.

       

      Section
4.3                      Additional
Shares.  The Stockholder shall promptly notify Parent of the
number of any new Covered Shares acquired by the Stockholder, if any, after the
date hereof.  Any such shares shall be automatically subject to the
terms of this Agreement as though owned by the Stockholder on the date
hereof.

       

      Section
4.4                      No Restraint on Officer or
Director Action; Etc.  Notwithstanding anything to the contrary
herein, Parent hereby acknowledges and agrees that no provision in this
Agreement shall limit or otherwise restrict the Stockholder with respect to any
act or omission that the Stockholder may undertake or authorize in such
Stockholder’s capacity as a director or officer of the Company or any subsidiary
thereof, including any vote that such individual may make as a director of the
Company with respect to any matter presented to the Company’s board of
directors.  The Stockholder has executed this Agreement solely in such
Stockholder’s capacity as the record and/or beneficial owner of the Covered
Shares and no action taken by the Stockholder in such Stockholder’s capacity as
a director or officer of the Company or any subsidiary thereof shall be deemed
to constitute a breach of any provision of this Agreement.

       

      Section
4.5                      Other
Obligations.  From and after the date of this Agreement until
the termination hereof in accordance with its terms pursuant to Section 5.1
hereof, the Stockholder agrees (a) not to, and to cause any investment banker,
attorney or other advisor or representative of such Stockholder not to, directly
or indirectly, solicit, initiate, knowingly encourage or facilitate, or furnish
or disclose non-public information relating to the Company in furtherance of,
any inquiries or the making of any Alternative Proposal, or negotiate, explore
or otherwise engage in discussions with any Person with respect to any
Alternative Transaction, or approve, endorse or recommend any Alternative
Transaction, or enter into any agreement, arrangement or understanding with
respect to any Alternative Transaction and (b) not to take any action which
makes, or would reasonably be expected to make, any representation or warranty
of such Stockholder herein untrue or incorrect in a material
respect.  The Stockholder shall notify Parent promptly of any such
inquiries, proposals or offers received by, or any such discussions or
negotiations sought to be initiated or continued with, the Stockholder or, to
the Stockholder’s knowledge, any of its representatives, indicating the name of
such Person and providing to Parent a summary of the material terms of such
proposal or offer for an Alternative Transaction.  Notwithstanding the
foregoing, the Stockholder shall be permitted to engage in discussions or
negotiations with, or furnish or disclose non-public information relating to the
Company to, any Person or group of related Persons that has made an Alternative
Proposal if, and only to the extent that, the Company is permitted under Section
4.3(b) of the Merger Agreement to engage in discussions or negotiations with, or
to furnish or disclose non-public information to, such Person or group of
related Persons.

       

      
        
           

        

        
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      ARTICLE
V.

      MISCELLANEOUS

       

      Section
5.1                      Termination.  This
Agreement and all of its provisions shall terminate upon the earlier of (i) the
Effective Time, (ii) the termination of the Merger Agreement in accordance with
its terms, (iii) written notice of termination of this Agreement by Parent to
the Stockholder or (iv) any amendment or modification to the Merger Agreement
that results in a reduction in the Exchange Ratio or a reduction in the Per
Share Cash Consideration or any other amendment or modification of the Merger
Agreement that is in any manner materially adverse to the Stockholder (such date
of termination, the “Termination Date”),
except that the provisions of Section 4.1(b) and
Article V shall
survive any such termination of this Agreement; provided, that no
such termination shall relieve any party of liability for a willful breach
hereof prior to termination.

       

      Section
5.2                      Survival of Representations
and Warranties.  The respective representations and warranties
of the Stockholder and Parent contained herein shall not be deemed waived or
otherwise affected by any investigation made by the other party
hereto.  The representations and warranties contained herein shall
expire with, and be terminated and extinguished upon, consummation of the Merger
or termination of this Agreement pursuant to Section 5.1, and thereafter no
party hereto shall be under any liability whatsoever with respect to any such
representation or warranty.

       

      Section
5.3                      Fees And
Expenses.  Except as otherwise provided herein or as set forth
in the Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.

       

      Section
5.4                      Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed given when delivered personally, one day after being delivered to a
nationally recognized overnight courier or on the business day received (or the
next business day if received after 5 p.m. local time or on a weekend or day on
which banks are closed) when sent via facsimile (with a confirmatory copy sent
by overnight courier) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):

       

      if to
Parent:

       

      Churchill
Downs Incorporated

      700
Central Avenue

      Louisville,
Kentucky 40208

      Telecopy:
(502) 636-4548

      Attention:
General Counsel

       

      
        
           

        

        
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      with
copies to:

       

      Sidley
Austin LLP

      One South
Dearborn

      Chicago,
Illinois  60603

      Telecopy:  (312)
853-7036

      Attention:     
Brian J. Fahrney

      Matthew G. McQueen

      


      if to the
Stockholder:

       

      At the
address and facsimile number, and with copies, as set forth on Schedule A
hereto.


       

      Additionally,
any notice delivered to any party hereto shall also be given to the Company in
accordance with this Section 5.4 at:

       

      Youbet.com,
Inc.

      2600 West
Olive Avenue, 5th Floor

      Burbank,
CA 91505

      Telecopy:  (818)
668-2101

      Attention:
General Counsel

      


      with
copies to:

       

      Kirkland
& Ellis LLP

      300 North
LaSalle Street

      Chicago,
Illinois 60654

      Telecopy:  (312)
862-2200

      Attention:      
Jon A. Ballis, P.C.

      James S. Rowe

      Theodore A. Peto

      


      Section
5.5                      Severability.  If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other terms,
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and legal substance of the transactions
contemplated hereby are not affected in any manner materially adverse to any
party.  Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement may be consummated as originally
contemplated to the fullest extent possible.

       

      Section
5.6                      Entire Agreement;
Assignment.  This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties hereto, or any of them, with respect to the subject matter
hereof.  This Agreement shall not be assigned (whether pursuant to a
merger, by operation of law or otherwise) without the prior written consent of
the other party, except that Parent may assign all or any of its rights and
obligations hereunder to an affiliate; provided, however, that no such
assignment shall relieve the assigning party of its obligations hereunder if
such assignee does not perform such obligations.

       

      
        
           

        

        
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      Section
5.7                      Amendment.  This
Agreement may be amended by the parties at any time prior to the Effective
Time.  This Agreement may not be amended except by an instrument in
writing signed by each of the parties hereto.

       

      Section
5.8                      Waiver.  At
any time prior to the Effective Time, the parties hereto may (i) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and/or (iii) waive
compliance with any of the covenants, agreements or conditions contained herein
which may legally be waived.  Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.

       

      Section
5.9                      Parties in
Interest.  This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.  However, if after the execution hereof and before the
Termination Date the Stockholder should die or become incapacitated, this
Agreement shall be binding on the Stockholder’s estate or other legal
representative.

       

      Section
5.10                   Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.

       

      Section
5.11                   
Specific Performance;
Submission To Jurisdiction.  (a) The parties agree that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached.  It is accordingly agreed that each of the parties shall be
entitled (in addition to any other remedy that may be available to it, including
monetary damages) to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
exclusively in the Delaware Court of Chancery and any state appellate court
therefrom within the State of Delaware (or, if the Delaware Court of Chancery
declines to accept jurisdiction over a particular matter, any state and federal
courts located within the State of Delaware).  The parties further
agree that no party to this Agreement shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 5.11 and each party waives any
objection to the imposition of such relief or any right it may have to require
the obtaining, furnishing or posting of any such bond or similar
instrument.  In addition, each of the parties irrevocably agrees that
any legal action or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any
judgment in respect of this Agreement and the rights and obligations arising
hereunder brought by the other party hereto or its successors or assigns, shall
be brought and determined exclusively in the Delaware Court of Chancery and any
state appellate court therefrom within the State of Delaware (or, if the
Delaware Court of Chancery declines to accept jurisdiction over a particular
matter, any state and federal courts located within the State of
Delaware).  Each of the parties hereby irrevocably submits with regard
to any such action or proceeding for itself and in respect of its property,
generally and unconditionally, to the personal jurisdiction of the aforesaid
courts and agrees that it will not bring any action relating to this Agreement
or any of the transactions contemplated by this Agreement in any court other
than the aforesaid courts.  Each of the parties hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (i)
any claim that it is not personally subject to the jurisdiction of the above
named courts for any reason other than the failure to serve in accordance with
this Section 5.11, (ii) any claim that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (iii) to the fullest extent permitted by the applicable Law, any claim that
(A) the suit, action or proceeding in such court is brought in an inconvenient
forum, (B) the venue of such suit, action or proceeding is improper or (C) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.  Parent and the Stockholder hereby consent to service being
made through the notice procedures set forth in Section 5.4 and agree that
service of any process, summons, notice or document by registered mail (return
receipt requested and first-class postage prepaid) to the respective addresses
set forth in Section 5.4 shall be effective service of process for any suit or
proceeding in connection with this Agreement or the transactions contemplated by
this Agreement.

       

      
        
           

        

        
          -10-

          
            

          

        

        
           

        

      

       

      (b)           EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 5.11(b).

       

      Section
5.12                    Other Voting
Agreements.  Parent represents and warrants to the Stockholder
that each of the voting agreements that Parent is entering into with each of the
Company’s directors (the “Company Director Voting
Agreements”) and other stockholders of the Company in connection with the
Merger Agreement (collectively with the Company Director Voting Agreements, the
“Other Voting
Agreements”) are substantially in the form of this Agreement, with the
exception of (i) Section 4.5, which is not included in the Company Director
Voting Agreements, (ii) the information set forth on Schedule A of each of the
Other Voting Agreements, and (iii) the third recital and penultimate sentence of
Section 1.1 of the Voting Agreement between Parent and Lloyd I. Miller, III (the
“Miller Voting
Agreement”), each of which is not included in this Agreement or any of
the Other Voting Agreements (other than the Miller Voting
Agreement).  Parent further agrees that it will not make any amendment
or modification to, or waive any provision of, any of the Other Voting
Agreements without offering to also make such amendment, modification or waiver
to this Agreement.

       

      
        
           

        

        
          -11-

          
            

          

        

        
           

        

      

       

      Section
5.13                    Interpretation.  Headings
of the Articles and Sections of this Agreement are for convenience of the
parties only and shall be given no substantive or interpretive effect
whatsoever.   The language used in this Agreement shall be deemed
to be the language chosen by the parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against any
party.  Whenever the words “include,” “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words
“without limitation.”

       

      Section
5.14                    Counterparts.  This
Agreement may be executed in counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties
(which may be effected by facsimile or other electronic
transmission).

       

      Section
5.15                    Further
Assurances.  From time to time, at the request of another party
and without further consideration, each party hereto shall take such reasonable
further action as may be reasonably necessary to confirm and assure the rights
and obligations set forth in this Agreement or to consummate and make effective
the transactions contemplated by this Agreement.

       

      


       

      


      [SIGNATURE PAGE
FOLLOWS]

       

      
        
           

        

        
          -12-

          
            

          

        

        
           

        

      

       

      IN
WITNESS WHEREOF, Parent and the Stockholder have caused this Agreement to be
duly executed on the date hereof.

       

      
        
          	
                  CHURCHILL
      DOWNS INCORPORATED

                
	 
      	 
      
	 
      	 
      
	
                  By:

                	
                  
                    /s/
      William Carstanjen

                  

                
	 
      	
                  Name:

                	
                  William
      Carstanjen

                
	 
      	
                  Title:

                	
                  Chief
      Operating Officer

                
	 
      	 
      
	 
      	 
      
	
                  NEW
      WORLD OPPORTUNITY PARTNERS I, L.P.

                
	 
      	 
      
	 
      	 
      
	 
      	
                  By:

                	
                  New
      World Venture Advisors, LLC

                
	 
      	
                  Its:

                	
                  General
      Partner

                
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                  
                    By:  /s/
      Jay R. Pritzker

                  

                
	 
      	
                  Name:

                	
                  Jay
      R. Pritzker

                
	 
      	
                  Title:

                	
                  Manager

                


        

      

      


       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      Schedule
A

      


      


      


      
        	
                 

                Name
      and Contact

                Information
      for Stockholder

              	
                 

                Shares
      of Common Stock

              	
                 

                Securities
      Convertible or 

                Exercisable
      or 

                Exchangeable
      

                for
      Common Stock

                 

              
	
                 

                New
      World Opportunity 

                Partners
      I, L.P., a Delaware

                limited
      partnership

                 

                1603
      Orrington Avenue

                Suite
      1600

                Evanston,
      IL 60201

                Telecopy:
      (847) 328-8297

                Attention:
      Michael Brodsky

                 

                with
      copies to:

                 

                Katten
      Muchin Rosenman LLP

                525
      West Monroe Street

                Chicago,
      IL  60661

                (312)
      577-8858

                Attention:
      Mark D. Wood

                 

              	
                 

                5,302,347

              	
                 

                0

              


      

      


      


      Pursuant
to Section 3.3, please note below any exceptions to title over the Owned Shares,
including pledges, liens, proxies, claims, charges, security interests,
preemptive rights, voting trusts, voting agreements, options, rights of first
offer or refusal and any other encumbrances or arrangements whatsoever with
respect to the ownership, transfer or other voting of the Owned
Shares:

      


      None.