This Employment Agreement
(“Agreement”) effective as of March 1, 2008, is by
and between Youbet.com, Inc., a Delaware corporation (the
“Company”), and Dan Perini
(“Officer”).
1.
EMPLOYMENT; DUTIES AND ACCEPTANCE:
The Company hereby employs Officer, and Officer
hereby agrees to serve as Vice President of Business and Legal
Affairs subject to the terms and conditions of this Agreement.
Officer shall report to the Chief Financial Officer
(“CFO”) or any officer appointed by the CFO to
supervise Officer.
During his employment, Officer shall devote such
time, attention, energies, interests, and abilities to the business
of the Company as is necessary to fulfill his responsibilities,
shall well and faithfully serve the Company, and shall use his best
efforts to promote the interests of the Company. Officer shall not
engage in any business activity that would be adverse to the
Company or its business prospects, financial or otherwise. Without
limiting the generality of the foregoing, without the prior written
consent of the Company, Officer shall not be employed by or provide
services to any competitor of the Company in the Internet gaming
industry during his employment with the Company.
Officer will be based at the Company
headquarters, currently in Woodland Hills. Notwithstanding the
foregoing, Officer acknowledges that he will be responsible to
travel away from headquarters when required by the CFO or the Chief
Executive Officer (“CEO”).
Officer shall report to the Chief Financial
Officer and in furtherance of the following duties:
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(a)
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Legal department
: Responsible for
overseeing and, at the direction of and in consultation with the
CEO or the CFO, coordinate all legal affairs for the Company
including engaging outside counsel as necessary as well as approve
and maintain all licensing agreements, contracts, trademarks,
patents and intellectual property, in accordance with applicable
law.
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(b)
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Regulatory
responsibilities : Monitor and report on
legislation, regulations and laws in the gaming industry that
impact Company enterprises.
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(c)
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Corporate
responsibilities : Facilitate, support and
coordinate, where appropriate, communications, review and planning
efforts as directed by the Chairman of the Board, the CEO or the
CFO.
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The term of this Agreement shall commence as of
March 1, 2008 (the “Effective Time”) and end on
February 28, 2009 (the “Term”) unless sooner
terminated pursuant to Section 7 hereof. Upon the expiration
of the Term, all provisions and obligations under this Agreement
shall cease (with the sole exception of Officer’s obligation
under Paragraph 5 and the arbitration requirement under
Section 10 which shall survive fully and remain in effect
during Officer’s employment and thereafter, as specified
therein) and any continued employment of Officer shall be at will,
and as such the Company may terminate Officer’s employment
for any reason, or no reason, with or without cause, upon
60 days prior written notice to Officer.
3.
COMPENSATION AND BENEFITS:
(a) Salary . Officer shall receive
a salary (the “Annual Salary”) at the rate of $195,000
per annum. All salary shall be less such deductions as shall be
required to be withheld by applicable law and regulations, shall be
paid twice monthly in accordance with the Company’s normal
payroll practice and shall be pro-rated for any period that does
not constitute a full twelve (12) month period.
(b) Bonuses . Officer shall be
entitled to participate in the Company Bonus Plan at the Senior
Management level as set forth in the Company Bonus Plan Policy;
said Bonus if any, will be based on the Annual Base
Salary.
(c) Stock Options . Officer will be
entitled to participate in the Company’s Equity Incentive
Plan. Any proposed grants under the plan are subject to approval by
the Compensation Committee. Any and all approved grants shall be
subject to the terms and conditions of Equity Incentive
Plan.
(d) Service Requirement .
Compensation payable under this Agreement is directly linked to
Officer’s service. If Officer is unable to perform his duties
hereunder for ten (10) or more consecutive days due to any
medical condition or other reason, Officer shall not earn
compensation and benefits during such period of non-performance
unless required by applicable law or in accordance with Company
policy.
4.
PARTICIPATION IN EXECUTIVE BENEFIT PLANS:
(a) Fringe Benefits . Officer shall
be permitted during the Term to participate in any group life,
medical, hospitalization, dental, health and accident and
disability plans, supplemental health care plans and plans
providing for life insurance coverage, and any other plans and
benefits, generally maintained by Company for Officers of the
stature and rank of Officer during the Term hereof, each in
accordance with the terms and conditions of such plans
(collectively referred to herein as “Fringe Benefits”);
provided, however, that Company shall not be required to establish
or maintain any such Fringe Benefits.
(b) Vacation . Officer shall accrue
paid vacation days at the rate of 6.16 hours per pay period up to a
maximum of four (4) weeks per year in accordance with the
terms and conditions of the Company Vacation Policy.
(c) Expenses . The Company will
reimburse Officer for actual and necessary travel and accommodation
costs, entertainment and other business expenses incurred as a
necessary part of discharging the Officer’s duties hereunder,
subject to receipt of reasonable and appropriate documentation by
the Company and such expenses being in accordance with Company
policy.
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5. CERTAIN
COVENANTS OF EXECUTIVE:
Without in any way limiting or waiving any other
right or remedy accorded to Company or any limitation placed upon
Officer by law, Officer agrees as follows:
(a) Confidential Information :
Officer agrees that, neither during his employment nor at any time
thereafter shall Officer (i) disclose to any person, firm or
corporation not employed by the Company or any affiliate of either
(the “Protected Company”) or not engaged to render
services to any Protected Company or (ii) use for the benefit
of himself, or others, any confidential information of any
Protected Company obtained by the Officer at any time, including,
without limitation, “know-how,” trade secrets, details
of suppliers, 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 any Protected Company; provided,
however, that this provision shall not preclude the Officer from
(x) upon advice of counsel and notice to the Company, making
any disclosure required by any applicable law or (y) using or
disclosing information known to the public (other than information
known generally to the public as a result of any violation of this
Section 5(a)).
(b) Property of Company . Any
interest in trademarks, service-marks, copyrights, copyright
applications, patents, patent applications, slogans, developments
and processes which the Officer 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 the Officer or made
available to the Officer concerning the business of any Protected
Company shall belong and remain in the possession of any Protected
Company, and shall be delivered to the Company promptly upon the
termination of the Officer’s employment with Company or at
any other time on request by the Company.
(c) Non-Solicitation of Employees .
While employed by the Company, and for one (1) year immediately
following the termination of employment, Officer shall not
interfere with the business of the Company by soliciting,
attempting to solicit, inducing, or otherwise causing any employee
of the Company to terminate his or her employment in order to
become an owner, partner, employee, consultant or independent
contractor to or for any other company or business venture. During
his employment by the Company and after its termination, Officer
shall not use, reproduce, or disclose to any other person or
company, proprietary information belonging to the Company that
would enable or assist such person or company to solicit, attempt
to solicit, induce, or otherwise cause any employee to terminate
his or her employment with the Company.
(a) Rights and Remedies Upon Breach
. If the Officer breaches, or threatens to commit a breach of, any
of the provisions of Section 5 hereof (the “Restrictive
Covenants”) and, if susceptible to cure, fails to cure such
breach or threatened breach within fifteen (15) days of
written notice from the Company, then the Company shall have the
following rights and remedies, 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) Accounting . The right and
remedy to require the Officer to account for and pay over to the
Company all compensation, profits, monies, accruals, increments or
other benefits (collectively “Benefits”) derived or
received by the Officer as a result of any transactions
constituting a breach of any of the Restrictive Covenants, and the
Officer shall account for and pay over such Benefits to the
Company.
(c) Severability of Covenants . If
any arbitrator or 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.
(d) Blue-Penciling . If any
arbitrator or 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 arbitrator or 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.
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(e) Injunctive Relief . Officer
agrees and understands that the remedy at law for any breach by
Officer of the provisions of Section 5 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 Officer’s breach (or threatened or
imminent breach) of any provision of Section 5 hereof, the
Company sha
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