SEVERANCE AND GENERAL RELEASE
AGREEMENT
This Severance and General Release Agreement
(“Agreement”) is made and entered into by and between
James A. Burk (“Employee”), an individual, and
Youbet.com, Inc. (“Youbet”), upon the following terms
and conditions:
WHEREAS, Employee’s employment with Youbet
will terminate on March 31, 2009 (the “Separation
Date”);
WHEREAS, Employee will be paid all current
salary, all accrued vacation pay, and any benefits Employee
qualifies for under the terms of any group insurance benefit plan
or tax-qualified retirement plan through and concluding on the
Separation Date;
WHEREAS, Employee’s rights and obligations
under the July 9, 2007 Employment Agreement (“Employment
Agreement”) will end as of the Effective Date (as defined in
Section 2 below) and Employee as of the Effective Date waives
and otherwise forfeits any and all rights under the Employment
Agreement;
WHEREAS, Youbet is willing to provide Employee
with severance pay and certain other consideration upon the terms
and conditions set forth in this Agreement; and
WHEREAS, Employee has had the opportunity to
consult with legal counsel before signing this Agreement, has read
this Agreement and understood its contents, and has signed this
Agreement voluntarily.
NOW, THEREFORE, in consideration of the mutual
promises, consideration, covenants, and conditions provided for in
this Agreement, the adequacy and sufficiency of which are hereby
acknowledged, and intending to be legally bound, Youbet and
Employee agree as follows:
1. Recitals . The parties hereto
acknowledge the truth and accuracy of the foregoing
recitals.
2. Effective Date . Once signed by
both parties, this Agreement shall become binding upon Youbet and
Employee on the later to occur of (a) the date upon which this
Agreement has been signed by Youbet, or (b) eight
(8) days after this Agreement has been signed by Employee
(such applicable date being referred to herein as the
“Effective Date”).
3. Confidential Information .
Employee shall return to Youbet, and shall not take, copy, utilize
or disclose, in any form or manner, confidential customer lists,
operations manuals, budgets and business plans, strategic plans,
financial statements and other confidential financial information
concerning Youbet or its customers, and other confidential or
proprietary materials or information.
4. Payments and Consideration . In
consideration for Employee entering into this Agreement and the
release contained herein, Youbet agrees to the
following:
A. To assist Employee in his transition to
new employment and in consideration for the promises contained in
this Agreement, Youbet shall pay to Employee within ten
(10) days after the later of (i) the Effective Date and
(ii) the Separation Date, a lump sum severance payment of One
Hundred and Eighty Thousand Dollars ($180,000.00), less appropriate
deductions for federal and state withholding and other applicable
taxes and legally required deductions. Youbet further will pay
Employee’s monthly COBRA health, dental and vision insurance
premiums for up to twelve (12) months following the Separation
Date, provided Employee timely and fully completes all COBRA
elections forms. Youbet’s obligation to make such COBRA
payments shall cease immediately if Employee becomes eligible for
other health insurance benefits at the expense of a new employer or
otherwise becomes ineligible for COBRA coverage. Finally, as
further consideration for the promises contained in this Agreement,
Youbet shall pay to Employee on the earlier of (i) the date
when Youbet executives are paid incentive bonuses and (ii) ten
(10) days after the Separation Date, but in no event prior to
the Effective Date, a lump sum bonus payment of One Hundred and
Twenty Thousand Dollars ($120,000.00), less appropriate deductions
for federal and state withholding and other applicable taxes and
legally required deductions.
B. Nothing in this Agreement shall be
deemed to terminate Youbet’s obligation to reimburse Employee
for all reasonable and documented business expenses incurred by
him/her prior to the Separation Date within 30 days after
submission of a written expense report, provided that (a) Youbet
receives the same within 90 days after the Separation Date,
and (b) such expenses were incurred, and the request for
reimbursement was submitted, in accordance with Youbet’s
policies and procedures, including attaching all receipts and
customary documentation.
C. Subject only to Section 4.A.
above, all other wages, compensation, bonuses, 401k plan
eligibility, insurances, club dues, expenses, automobile allowance,
financial consulting, severance and benefits will cease permanently
on or before the Separation Date. The parties acknowledge that no
contract other than the Employment Agreement governed any terms and
conditions of Employee’s employment, and Employee hereby
waives and otherwise forfeits any rights under the Employment
Agreement.
D. Employee acknowledges that the
commitments provided to Employee under this Section 4 exceed
any compensation or benefits which he is otherwise entitled to
receive on termination of Employee’s employment.
E. Employee acknowledges that he shall be
required to perform his job duties through and including the
Separation Date.
F. Employee shall retain any and all
rights which Employee has acquired under Youbet’s Stock
Option Plan, including the 150,000 options granted Employee therein
and the right to exercise the 37,500 vested options prior to 5:00
PM Pacific Time, June 29, 2009.
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5. Release . Except for the
specific obligations set forth in Section 4A of this
Agreement, Employee, on behalf of himself/herself, his/her
descendants, ancestors, dependents, heirs, executors,
administrators, assigns and successors, and each of them, hereby
irrevocably and unconditionally fully releases and discharges,
Youbet, its subsidiaries and affiliates, past and present, and each
of them, as well as its and their respective partners, directors,
officers, members, agents, attorneys, insurers, employees,
stockholders, representatives, ERISA plans, current and former
trustees and administrators of ERISA plans, assigns and successors,
past and present, and each of them (hereinafter collectively
referred to as the “Releasees”), with respect to and
from any and all charges, complaints, claims, wages, demands,
rights, liens, agreements, contracts, covenants, actions, suits,
causes of action, obligations, debts, costs, expenses,
attorneys’ fees, damages, judgments, orders and liabilities
of whatever kind or nature in law, equity or otherwise, whether now
known or unknown, suspected or unsuspected, which he/she now owns
or holds or he/she has at any time heretofore owned or held as
against said Releasees, arising out of or in any way connected with
his/her employment relationship and the ending of that employment
relationship with Youbet, the Employment Agreement, or any other
transactions, occurrences, acts or
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