EX-10.1






Exhibit 10.1




FIRST AMENDED AND RESTATED SERVICES AGREEMENT




THIS FIRST AMENDED AND RESTATED SERVICES AGREEMENT (the “Agreement”) is made as of January 28,
2005, by and between YOUBET.COM, INC., a Delaware corporation (the “Company”), and DAVID MARSHALL,
INC., a California corporation (“DMI”).



W I T N E S S E T H:




WHEREAS, pursuant to a Services Agreement dated as of February 1, 2002 (the “2002 Services
Agreement”), the Company engaged DMI to retain the services of David Marshall (“Mr. Marshall”) to
provide certain consulting and other services to the Company;




WHEREAS, the term of the 2002 Services Agreement expires on January 31, 2005;



WHEREAS, the Company desires to continue to engage DMI to retain the services of Mr. Marshall
from and after January 31, 2005; and



WHEREAS, the Company and DMI have agreed to amend and restate the 2002 Services Agreement in
its entirety, effective as of February 1, 2005 (the “Effective Date”), all as more fully set forth
in this Agreement;



NOW, THEREFORE, in consideration of the covenants and agreements contained in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of which the parties
hereby acknowledge, the parties agree as follows:




1. Engagement and Acceptance. The Company hereby engages DMI for the services of
Mr. Marshall for a term commencing on the Effective Date and, unless extended or sooner
terminated as hereinafter provided, continuing until January 31, 2008 (the “Initial term”). The
Initial term will renew automatically for successive one (1) year terms (each a “Renewal term”)
unless a party delivers written notice to the other party terminating the Initial term or a
Renewal term, as the case may be, at least ninety (90) days before the expiration of the Initial
term or a Renewal term, as the case may be. As used in this Agreement, the word the “Term” shall
mean the Initial term and any and all Renewal terms. Each of DMI and Mr. Marshall hereby accepts
such engagement, commencing as of the Effective Date.




2. Services.



A. Services. During the Term, DMI shall cause Mr. Marshall to provide consulting
services to the Company in the areas of strategic planning and partnering, business development,
business operations, investor relations and such other areas as may be mutually agreed to by the
parties, including making introductions to, and meeting with, existing and prospective investors,
partners, licensees, licensors, consultants, employees, financiers, racing commissions and other
regulatory bodies, and acquisition targets. During the Term, Mr. Marshall will, subject to the
provisions contained herein, devote a sufficient amount of his work time to fulfill his duties and
responsibilities to the Company. Neither DMI nor Mr. Marshall will divert from the Company, or
appropriate for itself, himself or any other person or entity, any business opportunity which
relates to the Company’s existing business or prospective business opportunities in development by
or on behalf of the Company, as the same may exist from time to time. In addition, Mr. Marshall
shall not enter into any legally binding agreement (whether oral or written) on behalf of the
Company, and shall (if requested by the Company) disclose to any person that he has no authority to
bind the Company to any agreement.



B. Reporting. Mr. Marshall shall report solely to the Company’s Chief Executive
Officer.




3. Compensation.



A. Fees. Subject to upward adjustment as provided below, the Company shall, during
the Term of this Agreement, pay to DMI, and DMI agrees to accept, in consideration of making Mr.
Marshall’s services available to the Company, two hundred seventy-five thousand and no/100 dollars
($275,000) per each twelve-month period during the Term (the “Base Fee”). The Base Fee shall be
payable in equal semi-monthly or bi-weekly installments. During the Term, the Base Fee will be
increased on each anniversary of the Effective Date by six percent (6%) over what it was during the
preceding one-year period.



B. Other Payments. In addition, the Company will pay DMI the amounts set forth on
Schedule 3B attached hereto.



C. Stock Options. The Company hereby acknowledges that the one million (1,000,000)
options (“Options”) referenced in Section 3D of the 2002 Services Agreement, and granted to DMI
pursuant to that certain Incentive Stock Option Agreement (“Grant”) dated as of February 1, 2002,
(a) have been assigned to the David Marshall Inc. Pension Trust, and (b) are fully vested. For
purposes of clarifying the last sentence of Section 3D of the 2002 Services Agreement, such options
must be exercised (if at all) before the earlier to occur of (i) two (2) years after the expiration
or termination of this Agreement, or (ii) January 31, 2012.



D. Additional Fee. As additional consideration for DMI’s agreement to continue to
provide Mr. Marshall’s services to the Company from and after the expiration of the 2002 Services
Agreement, the Company will pay DMI an amendment and renewal fee of $175,000.00 within fifteen (15)
days after the Effective Date.




4. Benefits.



A. Staff. During the Term, the Company shall, at its cost and expense, provide Mr.
Marshall with access to, and use of, such of the then secretarial and other administrative support
that may exist from time to time at the Company’s headquarters as may be reasonably necessary in
connection with the performance of his duties.



B. Additional Benefits. During the Term, the Company shall, at its cost and expense,
provide Mr. Marshall, or reimburse DMI to the extent DMI provides Mr. Marshall (but at a cost no
greater than that if provided by the Company) , with the following benefits:




(i) a car allowance of seven hundred fifty and no/100 dollars ($750.00) per month:




(ii) all benefits and perquisites under any and all, group insurance, hospitalization,
medical, dental, health and accident and disability plans, supplemental health care plans
and plans providing for life insurance coverage (inclusive of insurance related to
accidental death or dismemberment), and medical reimbursement plans which are available, and
which shall not be less than those provided from time to time, to the Company’s senior
executive officers, subject, in each instance, to the eligibility requirements and other
terms and conditions of said plans (collectively referred to herein as “Fringe Benefits”);




(iii) reimbursement of Mr. Marshall’s cellular phone bills, Company-issued PDA/TREO,
and long distance telephone calls related to the Company’s business;




(iv) reimbursement of Mr. Marshall’s annual YPO dues and the pre-approved expenses to
be incurred by Mr. Marshall to attend YPO educational seminars;




(v) reimbursement of other expenses (whether incurred in the past or in the future) as
approved by the Chief Executive Officer of the Company; and




(vi) access to and use of the Company’s email system for Company-related
communications.




5. Independent Contractor. DMI shall at all times have the status of an independent
contractor, and the Company shall not deduct from the Base Fee, or any other amounts payable to
DMI by the Company (such as any withholding of taxes with respect to (a) the Options (provided
that the Company has received from Mr. Marshall either a legal opinion that no withholding by
the Company is required or written confirmation or other evidence of payment of such taxes), or
(b) payment of any amounts pursuant to Section 3B hereof), any social security taxes, federal,
state or municipal taxes or any other charges and deductions which are required to be made from
wages of employees. Each of DMI and Mr. Marshall shall indemnify and hold the Company harmless,
jointly and severally, from and against any damages or penalties incurred by the Company by
reason of its not withholding such taxes or other amounts from such amounts payable to DMI
hereunder. The Company acknowledges that (i) DMI and Mr. Marshall may determine the time(s) and
place(s) its and his services hereunder shall be rendered, (ii) there shall be no minimum number
of hours required to perform the services described herein, and (iii) nothing contained herein
shall preclude DMI or Mr. Marshall from providing consulting services to other parties, subject
in each case to Sections 2, 8, 9 and 10 (C)(v) hereof and any similar or other restrictive
covenant contained in any other agreement with the Company.




6. Reimbursement of Certain Expenses. The Company shall promptly reimburse DMI and
Mr. Marshall for reasonable out-of-pocket expenses incurred in connection with the Company’s
business, including all pre-approved and reasonable travel, and entertainment expenses, subject
to such policies as the Company may from time to time reasonably establish. The Company shall
reimburse DMI and Mr. Marshall for the reasonable out-of-pocket legal fees they incur in
connection with the negotiation, preparation and enforcement of this Agreement (but in no event
greater than $12,000.00).




7. Certain Other Provisions. Mr. Marshall will comply with all reasonable and
lawful policies, procedures and practices of the Company from time to time in effect of which he
is provided notice.




8. Certain Agreements.



A. Confidential Information. DMI and Mr. Marshall shall not during the Term or at any
time thereafter (i) except during the Term for the benefit of the Company, disclose to any person
not employed by the Company or to any person, firm or corporation not engaged to render services to
the Company, or (ii) use for the benefit of either of DMI or Mr. Marshall, or others, any
confidential information of the Company obtained by DMI or Mr. Marshall prior to the date hereof,
during the Term or any time thereafter, including “know-how,” trade secrets, details of supplier’s,
manufacturer’s or distributor’s contracts, pricing policies, financial data, operational methods,
marketing and sales information or strategies, product development techniques or plans or any
strategies relating thereto, technical processes, designs and design projects, and other
proprietary information of the Company provided however, that this provision shall not preclude DMI
or Mr. Marshall from (a) upon advice of counsel and after reasonable notice to the Company, making
any disclosure required by any applicable law, or (b) using or disclosing information known
generally to the public (other than information known generally to the public as a result of any
violation of this Section 8 by or on behalf of DMI or Mr. Marshall).



B. Property of Company. All services and works, and any elements thereof, created,
performed, contributed or prepared by DMI or Mr. Marshall pursuant to this Agreement during the
Term, and any results or proceeds therefrom, are and shall be the Company’s property. Consistent
therewith, any interest in trademarks, service-marks, copyrights, copyright applications, patents,
patent applications, slogans, developments and processes which DMI or Mr. Marshall, during the
Term, may develop relating to the business of the Company in which the Company may then be engaged
and any memoranda, notes, lists, records and other documents (and all copies thereof) made or
compiled by DMI or Mr. Marshall or made available to DMI or Mr. Marshall concerning the business of
the Company shall belong to and remain in the possession of the Company, and shall be delivered to
the Company promptly upon the termination of DMI’s services with the Company or at any other time
upon request and reasonable notice.



C. Non-Interference. DMI and Mr. Marshall will not, during the Term and for a period
of one (1) year after the expiration or termination of DMI’s engagement with the Company, induce
any person who is an employee of the Company to terminate his or her relationship with the Company.



D. Non-Competition. Without the prior written consent of the Company, neither Mr.
Marshall nor any other employee of DMI shall be employed by or provide consulting services to the
Internet gaming divisions of Magna, Inc., TVG, Inc. or by any other direct competitor of the
Company during the Term, or for a period of one (1) year after the expiration or termination of
DMI’s engagement with the Company.




9. Other Provisions.



A. Rights and Remedies Upon Breach. If DMI or Mr. Marshall breach, or threaten to
commit a breach of, any of the provisions of Section 8 hereof (the “Restrictive Covenants”), the
Company shall have all of the rights and remedies set forth herein, each of which rights and
remedies shall be independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and remedies available to
the Company at law or in equity.



B. Severability of Covenants. If any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the remainder of the Restrictive
Covenants shall not thereby be affected and shall be given full effect, without regard to the
invalid portions.



C. Blue-Penciling. If any court construes any of the Restrictive Covenants, or any
part thereof, to be unenforceable because of the duration or geographic scope of such provision,
such court shall have the power to reduce the duration or scope of such provision and, in its
reduced form, such provision shall then be enforceable.



D. Enforceability in Jurisdictions. The parties intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants unenforceable by reason of the breadth of such scope
or otherwise, it is the intention of the parties that such determination not bar or in any way
affect Company’s right to the relief provided in this Section 9 in the courts of any other
jurisdiction within the geographical scope of such Restrictive Covenants, as to breaches of such
Restrictive Covenants in such other respective jurisdictions, such Restrictive Covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and independent
covenants.



E. Injunctive Relief. Each of DMI and Mr. Marshall agrees and understands that the
remedy at law for any breach by Executive of the provisions of Section 8 hereof may be inadequate
and that damages resulting from such breach may not be susceptible to being measured in monetary
terms. Accordingly, it is acknowledged that upon any breach of any provision of Section 8 hereof,
the Company shall be entitled to seek to obtain from any court of competent jurisdiction injunctive
relief to prevent the continuation of such breach. Nothing contained herein shall be deemed to
limit the Company’s remedies at law or in equity for any breach of the provisions of Section 8
hereof which may be available to the Company.




10. Termination:



A. Termination Upon Death. If, during the Term, Mr. Marshall dies, DMI shall be
entitled to receive any unpaid Base Fee, prorated up until the date of Mr. Marshall’s death, and
Fringe Benefits earned through the date of Mr. Marshall’s death. The Company shall also pay DMI or
Mr. Marshall, as the case may be, any unpaid reimbursable business expenses incurred through the
last day of Mr. Marshall’s services. In the event of Mr. Marshall’s death, the Options shall be
exercisable until the earlier to occur of (i) two (2) years from Mr. Marshall’s death, or (ii)
January 31, 2012.



B. Termination Upon Disability. If, during the Term, Mr. Marshall should become so
physically or mentally disabled, whether totally or partially, that Mr. Marshall is unable to
perform the duties, functions and responsibilities required hereunder for (i) a period of at least
six (6) consecutive months or (ii) shorter periods aggregating to at least twelve (12) months
(“Disability”), then in such event, the Company may, at any time thereafter, by written notice to
DMI and Mr. Marshall, terminate DMI’s engagement. Mr. Marshall agrees to submit to reasonable
medical examinations upon the request of Company to determine whether he has a Disability. The
determination of whether or not Mr. Marshall is subject to a Disability shall be made jointly by
Mr. Marshall’s doctor of choice (“Mr. Marshall’s Doctor”) and by a board certified doctor selected
by Company of the appropriate recognized field of medicine or psychiatric practice who has examined
Mr. Marshall (the “Company’s Doctor”). If Mr. Marshall’s Doctor and the Company’s Doctor cannot
agree on such determination, then they shall select a mutually agreeable board certified doctor or
practitioner of the appropriate recognized field of medicine or psychiatric practice (the “Third
Doctor”) to make the determination. After the Third Doctor has examined Mr. Marshall and reviewed
the findings of Mr. Marshall’s Doctor and the Company’s Doctor, the Third Doctor shall determine
whether Mr. Marshall has a Disability, and his or her determination shall be final and binding.
The Company and Mr. Marshall shall pay for the cost and expense of their own doctors, and the
Company shall pay for the cost of the Third Doctor, should the Third Doctor be required. If DMI’s
engagement is terminated, as aforesaid, DMI shall be entitled to receive any unpaid Base Fee,
prorated through the date of the termination of DMI’s engagement, and Fringe Benefits earned
through the date of the termination of DMI’s engagement. The Company shall also pay DMI or Mr.
Marshall, as the case may be, any unpaid reimbursable business expenses incurred through the last
day of Mr. Marshall’s services. In the event of Mr. Marshall’s Disability, the Options shall be
exercisable until the earlier to occur of (i) two (2) years from the termination of DMI’s
engagement by reason of Mr. Marshall’s Disability, or (ii) January 31, 2012.



C. Termination for Cause. As used in this Agreement, the term “Cause” means only any
of the following:




(i) DMI’s or Mr. Marshall’s theft or embezzlement of the Company’s money, equipment,
or securities;




(ii) DMI’s or Mr. Marshall’s conviction of a felony (other than a traffic violation)
which results in material injury to the Company;




(iii) DMI’s or Mr. Marshall’s willful act of disloyalty that is intended to and results
in material injury to the Company;




(iv) Mr. Marshall’s chronic alcoholism or addiction to non-medically prescribed drugs
(provided that such alcoholism or addiction occurs during the Term);




(v) material breach by DMI or Mr. Marshall of Sections 2A or 8 of this Agreement, which
breach (if subject to cure) shall not have been cured within thirty (30) days after receipt
by DMI or Mr. Marshall of written notice thereof from the Company, provided, however, that
such right of cure will exist only if the material breach has not caused material damage to
the Company; or




(vi) the Company is unable to obtain or renew a license in a jurisdiction which is
material to the Company as a result of material actions or omissions on the part of Mr.
Marshall, provided, however, that actions or omissions which Mr. Marshall reasonably
believed were in the best interests of the Company, or which were taken pursuant to the
Articles or Certificate of Incorporation of the Company or Bylaws of the Company, pursuant
to the direction of the Board, or on the advice of legal counsel shall not constitute
“Cause”.



The Company shall have the option to terminate this Agreement, upon written notice, if there
is Cause as defined above. Such right to terminate shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company at law or in equity. If this Agreement is
terminated as set forth in this Section 10.C., DMI’s and Mr. Marshall’s services shall cease as of
the effective date of termination set forth in said notice, and all compensation shall cease as of
such effective date provided that (1) DMI shall be entitled to receive any unpaid Base Fee,
prorated to the termination date, and (2) the Company shall pay DMI or Mr. Marshall, as the case
may be, for any unpaid reimbursable business expenses incurred through the termination date. For
purposes of this Agreement, this Agreement shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to DMI and Mr. Marshall a copy of a resolution,
duly adopted by the affirmative vote of a majority of the entire membership of the Board (excluding
Mr. Marshall if he is then a Director) at a meeting called and held for this purpose after
reasonable notice to DMI and Mr. Marshall and an opportunity for them, together with their counsel,
to be heard by the Board, finding that, in the good faith opinion of the Board, DMI or Mr.
Marshall, as the case may be, is guilty of misconduct of the type described in this Section 10.C.
hereof and specifying the particulars thereof in detail. Any act or omission of DMI or Mr.
Marshall based upon authority given pursuant to the Articles or Certificate of Incorporation of the
Company or Bylaws of the Company or a resolution duly adopted by the Company’s Board or based upon
the advice of counsel for the Company shall be conclusively deemed to be done by DMI and Mr.
Marshall in good faith and in the best interests of the Company and shall not constitute “Cause.”
Notwithstanding anything to the contrary set forth herein or in the Articles or Certificate of
Incorporation or Bylaws of the Company, upon any termination for Cause and the Board’s request, Mr.
Marshall shall resign as a Director of the Board (if he is then serving in such capacity).



D. Termination With Good Reason or Without Cause. If during the Term (i) DMI
terminates this Agreement for Good Reason (defined below), or (ii) his or DMI’s services are
terminated without Cause (as defined above), then immediately upon such event:




(i) The Company shall (1) pay DMI any unpaid portion of the Base Fee then in effect
through the last day of DMI’s services, and (2) pay Mr. Marshall or DMI, as the case may be,
for unpaid reimbursable business expenses incurred through the last day of Mr. Marshall’s
services.




(ii) The Company shall also, (1) pay DMI, in a lump sum, an amount equal to the Base
Fee DMI would have received had it remained engaged by the Company for the remainder of the
then current Term, and (2) continue to provide the additional benefits set forth in
Sections 4B (i), (ii) and (iv) for the remainder of the then current Term; provided,
however, that if Mr. Marshall becomes employed or retained to provide consulting or other
services by another company and is eligible to receive reasonably comparable medical or
other benefits, such particular medical or other benefits shall cease.




(iii) The Options shall be exercisable for up to the earlier to occur of (i) two (2)
years following the date of the termination of DMI’s engagement or Mr. Marshall’s services,
or (ii) January 31, 2012.



There shall be no set off against such benefits and payments due or any other amounts of money
payable to DMI or Mr. Marshall of any amounts they earn or could have earned from other sources.




E. Good Reason. As used herein, “Good Reason” shall mean only:




(i) assignment by the Company to Mr. Marshall of substantial additional duties or
responsibilities which are inconsistent with the duties or responsibilities required
hereunder;




(ii) material reduction in the level of Mr. Marshall’s or DMI’s reporting
responsibility, compensation, or benefits;




(iii) the Company’s material breach of this Agreement (or any other agreement between
DMI and/or Mr. Marshall, on the one hand, and the Company, on the other hand), and the
failure of the Company to cure such breach within thirty (30) days of notice thereof;




(iv) material fraud on the part of the Company;




(v) discontinuance of the active operation of the business of the Company, or
insolvency of the Company, or the filing by or against the Company of a petition in
bankruptcy or for reorganization or restructuring pursuant to applicable insolvency or
bankruptcy law; or




F. Termination Without Good Reason. If DMI terminates this Agreement without
Good Reason (other than due to death or Disability), all compensation shall cease as of such
termination date, provided that DMI shall be entitled to receive any unpaid Base Fee and
expense reimbursement pursuant to Section 4B, prorated to the termination date.




G. Payments under Section 3B.  In addition to any other payments, benefits or
reimbursements that DMI or Mr. Marshall are entitled to receive pursuant to this Section 10,
in the event this Agreement expires or is terminated for any reason (whether pursuant to
this Section 10 or otherwise), DMI shall be entitled to continue to receive any and all
amounts due to it pursuant to Section 3B (Other Payments) hereof, even if such amounts
relate to Net Revenues (as defined in Schedule 3B attached hereto) received by the Company
after the expiration or termination of this Agreement, provided, however, that the Company’s
continuing obligation to make such payments are subject to (a) DMI’s and Mr. Marshall’s
continuing compliance with Section 8 hereof, and (b) except in the event of Mr. Marshall’s
death, DMI’s and Mr. Marshall’s execution of a Release (in the form attached hereto as
Exhibit 10(G) and the expiration of the revocation period set forth therein.




H. Cooperation after Term of Agreement. Following the expiration or
termination of this Agreement, regardless of the reason for such termination, DMI and Mr.
Marshall shall reasonably cooperate with the Company, at the Company’s expense, in the
prosecution of any claims, controversies, suits, arbitrations or proceedings involving
events occurring prior to the expiration or termination of this Agreement. DMI and Mr.
Marshall acknowledge that Mr. Marshall may be required to give testimony at trial or
deposition or give declarations. The Company shall use its best efforts to provide Mr.
Marshall with reasonable prior notice of any actions required of him and to reasonably
accommodate his schedule. The Company shall provide Mr. Marshall with a copy of any press
release regarding the termination of this Agreement, solicit his comments thereon, and use
reasonable efforts to incorporate said comments, prior to issuing said release.




11. Assignability. Subject to Section 22 hereof, this Agreement and the rights and
obligations of the parties hereunder may not be assigned by either party without the prior
written consent of the other party.




12. Arbitration. Except as otherwise provided in Section 9 of this Agreement with
regard to the Restrictive Covenants, any dispute, controversy or claim arising out of or relating
to this Agreement shall be settled by binding and final arbitration in the County of Los Angeles,
State of California, under the commercial arbitration rules of the American Arbitration
Association then existing. In no event shall a demand for arbitration be made after the date
when the applicable statute of limitations would bar the institution of a legal or equitable
proceeding based on such claim, dispute or other matter in question. The decision of the
arbitrators shall be final and judgment on the arbitration award may be entered in any court
having jurisdiction of the subject matter over the controversy.




13. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of California applicable to contracts executed in and to be
performed solely within the State of California.




14. Ability To Fulfill Obligations. Neither the Company, DMI nor Mr. Marshall, to
its or his knowledge, is a party to or bound by any agreement that would be violated by the
terms of this Agreement.




15. Notice. Any notice required or permitted to be given hereunder shall be given
in writing and may be given by telex, telegram, facsimile transmission or similar method if
confirmed by mail as herein provided and addressed as follows:



	 	 	 	 	 
	To the Company:
	 	Youbet.com, Inc.

	 
	 	5901 De Soto Avenue
	 
	 	Woodland Hills, California  91367

	 
	 	Attention: Chairman of the Board

	 
	 	Fax: (818) 668-2101

	With a copy to:
	 	Youbet.com, Inc.

	 
	 	5901 De Soto Avenue
	 
	 	Woodland Hills, California  91367

	 
	 	Attention: General Counsel

	 
	 	Fax: (818) 668-2101

	If to DMI:
	 	David Marshall, Inc.

	 
	 	9229 Sunset Boulevard Suite 505
	 
	 	Los Angeles, California  90069

	 
	 	Attention: Mr. David Marshall

	 
	 	Fax: (310) 573-9761

	With a copy to:
	 	Sheppard, Mullin, Richter & Hampton

	 
	 	333 South Hope Street, 48th Floor
	 
	 	Los Angeles, California 90071.

	 
	 	Attention: Lawrence M. Braun

	 
	 	Fax: (213) 443-2814

	 
	 	 







by mail if sent postage prepaid by registered mail, return receipt requested; or by hand
delivery to any party at the address of the party first above set forth. If notice, direction or
instruction is given by telex, telegram or facsimile transmission or similar method or by hand
delivery, it shall be deemed to have been given or made on the day on which it was given, and if
mailed, shall be deemed to have been given or made on the third (3) business day following the day
after which it was mailed. Any party may, from time to time, by like notice give notice of any
change of address and in such event, the address of such party shall be deemed to be changed
accordingly.




16. Entire Agreement. Except for the Grant, this Agreement (inclusive of the plans
and agreements referenced to herein) constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral and
prior written agreements and understandings (including the 2002 Services Agreement and any prior
drafts or term sheets exchanged or discussed in contemplation of the execution of this
Agreement). There are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the execution hereof or in
effect among the parties. No custom or trade usage, nor course of conduct among the parties,
shall be relied upon to vary the terms hereof. This Agreement may not be amended, and no
provision hereof shall be waived, except by a writing signed by all of the parties to this
Agreement which states that it is intended to amend or waive a provision of this Agreement. Any
waiver of any rights or failure to act in a specific instance shall relate only to such instance
and shall not be construed as an agreement to waiver any rights or fail to act in any other
instance, whether or not similar.




17. Severability. Should any provision of this Agreement be unenforceable or
prohibited by any applicable law, this Agreement shall be considered divisible as to such
provision which shall be inoperative, and the remainder of this Agreement shall be valid and
binding as though such provision were not included herein and shall be construed in such a manner
to maximize its validity and enforceability.




18. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original.




19. Headings. All headings in this Agreement are for convenience only and will not
affect the meaning of any provision hereof. Whenever the term “include,” “including,” or
“included” is used in this Agreement, it shall mean including without limiting the generality of
the foregoing.




20. Survival Of Certain Provisions. The provisions of Sections 5, 8, 9, 10, 12, 21
and 23 shall, to the extent applicable, continue in full force and effect notwithstanding the
expiration or earlier termination of this Agreement or of Mr. Marshall’s services hereunder in
accordance with the terms of this Agreement.




21. Attorneys’ Fees. Except as otherwise provided herein, in the event of
arbitration with respect to the subject matter of this Agreement, the prevailing party shall be
entitled to all of its costs and expenses, including the reasonable attorneys’ fees and costs,
incurred in resolving or settling the dispute. These costs and expenses shall be in addition to
any other damages to which the prevailing party may be entitled. Without limiting any other
right or remedy of DMI or Mr. Marshall, in the event that the Company fails to make any payment
due to DMI or Mr. Marshall under this Agreement and such failure continues for five (5) days
after written notice thereof to the Company from DMI or Mr. Marshall, then the Company shall also
pay DMI or Mr. Marshall, as the case may be, interest on the unpaid amounts at the rate of two
percent (2%) per month, compounded, until all unpaid amounts, and all reasonable attorneys’ fees
and costs associated with collecting such unpaid amounts, are paid in full.




22. Successors And Assigns. Except as otherwise provided herein, this Agreement
shall inure to the benefit of, and be binding upon, the Company and any corporation with which
the Company merges or consolidates, and upon DMI and Mr. Marshall and his executors,
administrators, heirs and legal representatives.




23. Indemnification. Subject to the terms of the Company’s By-Laws, the Company
will indemnify, defend (with counsel reasonably acceptable to Mr. Marshall), and hold Mr.
Marshall and DMI, and each of them, harmless from and against any and all demands, actions,
claims, suits, liabilities, losses, damages, fees (including reasonable attorneys’ fees) and
expenses relating to any acts or omissions to act in the course or scope of its or his duties or
services it or he performs on behalf of the Company; provided that the Company shall not be
liable under this indemnity agreement for any loss, claim, damage or liability which is
determined to have resulted from DMI’s or Mr. Marshall’s willful misconduct or gross negligence.



IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by duly their
authorized officers as of the day and year first above written.




Youbet.com, Inc.,




a Delaware corporation




By: /s/ Charles F. Champion




	 	 	 	Charles F. Champion

Chief Executive Officer






David Marshall, Inc.,


a California Corporation




By: /s/ David Marshall




	 	 	 	David Marshall

Chief Executive Officer





The undersigned hereby agrees to (i) provide DMI with the services required of DMI hereunder
and (ii) comply with the provisions in the foregoing Services Agreement which are applicable to me
personally.



/s/ David Marshall


David Marshall



1



SCHEDULE 3B




OTHER PAYMENTS




A. David Marshall, Inc. (DMI) shall be entitled to additional payments based on the Net
Revenues (as specified below) collected by the Company and directly related to and generated by a
particular contract or project (collectively, a “Project”) (including payments on account of Net
Revenues collected during any extensions or renewals, or attributable to any amendments, of said
Projects), as calculated in the manner (and subject to the limitations) specified below:




	 	1.	 	5% of Net Revenues collected in cash by the Company in connection with any Project
(whether related to the Company’s current advance deposit wagering business or any new
distribution platforms or business segments) initiated during the Term of this Agreement by
Mr. Marshall (either directly or by means of an introduction made to the Company by Mr.
Marshall);






	 	2.	 	5% of Net Revenues collected in cash by the Company in connection with any Project
closed with the material assistance of Mr. Marshall during the Term of this Agreement;






	 	3.	 	2.5% of Net Revenues collected in cash by the Company in connection with any Project
for which Mr. Marshall provided services or advice of a material nature during the Term of
this Agreement (and which are not duplicative with the services described in category 2
above); and/or






	 	4.	 	1% of the aggregate amount of any bank debt, subordinated debt or equity placed or
committed by any financier, lender, or investor introduced directly by Mr. Marshall (and
not indirectly by any investment banker or other third party known by Mr. Marshall).





B. In the event one or more other Company employees, consultants or other persons are, in
addition to Mr. Marshall, directly involved in category 1 above, the percentage payment related to
such item may be decreased accordingly (but in no event by more than 50%) based on the good faith
determination of the Company’s Compensation Committee.



C. With respect to the Net Revenues collected by the Company in connection with any
particular Project, in no event will the total payments enumerated above (i) exceed 10% of said Net
Revenues, and (ii) continue for more than thirteen (13) years after the first payments made to DMI
under this Schedule 3B on account of said Project. In order to determine “Net Revenues”, variable
expenses will include, without limitation, (1) third party fees payable by law or contract as a
percentage of, or directly related to, gross revenues (such as totalizator fees, NTRA fees, host
fees, royalties, licensing fees and IVR system fees and other fees paid to third parties, vendors
or service providers), and (2) any other finder’s fees or commissions paid as a percentage of gross
revenues.



D. The following out-of-pocket expenses shall be recouped by the Company from any Project
revenues prior to calculating, and making payments on account of, the applicable percentage(s) of
Net Revenues: (i) any direct out-of-pocket costs and expenses incurred to generate or otherwise
attributable to said revenues (but excluding corporate overhead and salaries of Company employees),
(ii) legal fees and related expenses incurred in connection with said Project, (iii) capital
expenditures incurred in connection with said Project (provided, however, that to the extent any
such expenditures are amortized or depreciated per the Company’s financial statements, the
recoupment shall be calculated, and offset against the Net Revenues collected by the Company, in
accordance with the quarterly amortized or depreciated amount), and (iv) any other finder’s or
consulting fees incurred in connection with said Project.



E. Any additional payments will be calculated and paid on a quarterly basis, in arrears, no
later than 45 days after the conclusion of each of the Company’s fiscal quarters.



F. The Company will maintain complete and accurate books and records regarding Net Revenues
and all deductions and calculations related thereto. DMI will have the right to inspect and audit
such books and records (but not more than once a year) for the purpose of confirming the Company’s
compliance with the terms of this Schedule 3B. Any such inspection and audit will be conducted
during regular business hours and in a manner that minimizes interference with the Company’s normal
business activities. If such an inspection and audit reveals an underpayment of any amounts
payable to DMI, then the Company will promptly remit the full amount of such underpayment to DMI.
If the underpaid amount exceeds five percent (5%) of the amounts payable to DMI for the period
audited, then the Company will also pay DMI’s reasonable out-of-pocket costs of conducting the
inspection and audit.



G. The parties to this Agreement shall discuss in good faith, and memorialize in writing
from time to time during the Term (i) the Projects (or prospective Projects), (ii) the applicable
percentages set forth in categories 1,2 and 3 of paragraph A above, and (iii) the costs associated
with said Projects and the related deductions from Net Revenues. In addition, and with respect to
the NYOTB Project only, (a) the parties will discuss in good faith ,and memorialize in writing, a
base-line of annual revenues in order to determine the prospective incremental Net Revenues, and
(b) payments based on “Net Revenues” shall be based only on such agreed-upon incremental revenues
(as opposed to revenues replaced by the NYOTB Project).



H. Any disputes between the Company, on the one hand, and DMI or Mr. Marshall, on the other
hand, regarding any determination under subparagraph B of, any payments due under, or deductions
from Net Revenues pursuant to, this Schedule 3B shall be resolved in accordance with Section 12 of
the Agreement.



EXHIBIT 10G




RELEASE AGREEMENT




This Release Agreement (“Release”) is entered into as of      (the “Effective
Date”) by David Marshall, Inc. and David Marshall (collectively, “Marshall”) for the benefit of
Youbet.com, Inc., a Delaware corporation (the “Company”) (collectively, the “Parties”), and the
other Released Parties (as defined herein below).



For good and valuable consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, Marshall agrees as follows:




1. Release and Waiver.



a) In full consideration of the amounts to be paid by the Company under Sections 3B and 10G
(the “Payments”) of that certain First Amended and Restated Services Agreement (the “Agreement”)
dated as of January 28, 2005, by and among the Parties, and subject to the provisions thereof,
Marshall hereby knowingly and voluntarily, fully and finally releases, acquits, and forever
discharges the Company, its parent, subsidiary and affiliated corporations and their respective
present and former officers, directors, shareholders, agents, consultants and employees, and the
successors or assigns of said persons and entities (the “Released Parties”), from any and all
claims, complaints, causes of action, obligations, damages and liabilities, known or unknown,
suspected or unsuspected, that Marshall had, now has, or may hereafter claim to have against
the Released Parties from the beginning of time through the Effective Date of this Release, arising
out of or relating in any way to the Company’s engagement of Marshall (whether pursuant to the
Agreement, the Services Agreement among the Parties dated as of February 1, 2002 (the “2002
Contract”) or otherwise), the Company’s performance of its obligations under the 2002 Contract and
the Agreement and/or the expiration or termination of the 2002 Contract and the Agreement;
provided, however, that this Release shall not constitute a release or discharge of
any Released Party for any obligation or liability to Marshall relating in any way to (i)
Marshall’s ownership of common stock, options or any other Company securities, or (ii) Mr.
Marshall’s service on the Board of Directors of the Company.




	 	b)	 	This general release specifically extends to, without
limitation,





claims or causes of action for wrongful termination, discrimination, impairment of ability to
compete in the open labor market, breach of an express or implied contract, breach of the covenant
of good faith and fair dealing, breach of fiduciary duty, fraud, misrepresentation, defamation,
slander, infliction of emotional distress, loss of future earnings, and any claims under the
California constitution, the United States Constitution, or applicable state and federal fair
employment laws, federal equal employment opportunity laws, and federal and state labor statutes
and regulations, including, without limitation, the Civil Rights Act of 1964, as amended, the Fair
Labor Standards Act, as amended, the Americans With Disabilities Act of 1990, as amended, the
Rehabilitation Act of 1973, as amended, the Age Discrimination in Employment Act of 1967, as
amended, the Employee Retirement Income Security Act of 1974, as amended, the California Fair
Employment and Housing Act, as amended, and the California Labor Code.




c) Marshall expressly waives all rights afforded by Section 1542



of the Civil Code of the State of California (“Section 1542”) with respect to the Released Parties.
Section 1542 states as follows:




A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS


WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT


TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING


THE RELEASE, WHICH IF KNOWN BY HIM MUST


HAVE MATERIALLY AFFECTED HIS SETTLEMENT


WITH THE DEBTOR.



Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and
complete release, Marshall understands and agrees that this Release is intended to include and
does include all claims, if any, which the Marshall may have and which Marshall does not now know
or suspect to exist in his favor against the Released Parties, and this Release extinguishes those
claims.



d). Except for the Payments and the benefits due to Marshall pursuant to Section 10D (ii) of
the Agreement, Marshall shall not be entitled to receive any other compensation or benefits of any
sort from the Released Parties, including, without limitation, wages, vacation, bonuses, stock
options (or cash in lieu of stock options), short-term or long-term disability benefits, health
care continuation coverage, or any other form of compensation or benefit from any of the Released
Parties.



e). Marshall represents and agrees that he has not and shall not in any way commence or
join in any claim, charge, action, demand, grievance, arbitration or other legal proceedings
against the Released Parties arising out of or relating in any way to the matters released herein,
except as necessary to enforce this Release.



2. Review and Revocation Period. Marshall acknowledges that the Company has advised
him that he may consult with an attorney of his choosing prior to signing this Release and that he
has twenty-one (21) days during which to consider the provisions of this Release, although Marshall
may sign and return the Release sooner. Marshall further acknowledges that he has been advised by
the Company that he has the right to revoke this Release for a period of seven (7) days after
signing it and that this Release shall not become effective or enforceable until such seven (7)-day
revocation period has expired. Marshall acknowledges and agrees that if he wishes to revoke this
Release, he must do so in writing, and that such revocation must be signed by Marshall and received
by the Company (attn.: General Counsel) no later than 5:00 p.m. Pacific Time on the seventh
(7th) day after he has signed this Release. Marshall acknowledges and agrees that, in
the event he revokes this Release, he shall have no right to receive the Payments.



3. Confidentiality. Marshall agrees that neither Marshall nor Marshall’s attorneys
or representatives shall reveal to anyone, except accountants for income tax and audit purposes or
other attorneys for purposes of the enforcement of this Release, any of the terms of this Release,
including, without limitation, the existence or amount of the Payments.



4. Non-Admission of Liability. Nothing in this Release shall be construed as an
admission of liability by any Party; rather, the Company and Marshall are resolving all outstanding
matters between them.




5. Governing Law. This Release shall be governed by and construed and



enforced pursuant to the laws of the state of California without regard to its conflict of
laws rules. The Parties acknowledge that the Company’s principal place of business is in Woodland
Hills, California, and that the business decisions concerning the Agreement (including the
negotiation of this Release) were determined upon and carried out to a significant degree in
California.



6. Successors. This Agreement shall be binding upon Marshall and upon his and its
heirs, administrators, representatives, executors, successors and assigns, and shall inure to the
benefit of the Company and the other Released Parties and their respective successors and assigns.



7. Number and Gender. Where the context so indicates, the masculine includes the
feminine and the neuter, as neuter holds the masculine and feminine, and the singular includes the
plural.



8. Voluntary Agreement; No Inducements. Marshall represents that Marshall (a) has
fully and carefully read this Release prior to signing it, (b) has been, or has had the opportunity
to be, advised by independent legal counsel of his own choice as to the legal effect and meaning of
each of the terms and conditions of this Release, and (c) is signing and entering into this Release
as a free and voluntary act without duress or undue pressure or influence of any kind or nature
whatsoever and has not relied on any promises, representations or warranties regarding this subject
matter hereof other than as set forth in this Release.



IN WITNESS WHEREOF, Marshall has signed this Release for the benefit of the Company and the
other Released Parties as of the date first written above.




David Marshall, Inc.




     By:     


David Marshall




Name:     




Title:     




2