Exhibit 10.1
YOUBET.COM, INC. EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Participant
Date of Grant
Number of Shares
Purchasable
Exercise Price
Expiration Date
This
Stock Option Agreement (“Agreement”) is made and
entered into as of the Date of Grant indicated above by and between
Youbet.com, Inc., a Delaware corporation (the
“Company”), and the Participant named above.
WHEREAS,
the Participant is a director, officer, employee, consultant or
advisor of, or other individual providing personal services to, the
Company and/or an Affiliate of the Company;
WHEREAS,
pursuant to the Youbet.com, Inc. Equity Incentive Plan (the
“Plan”), the Compensation Committee (the
“Committee”) of the Board of Directors of the Company
(the “Board of Directors”) has approved the grant to
the Participant of an option to purchase shares of the common stock
of the Company (the “Common Stock”), on the terms and
conditions set forth herein; and
WHEREAS,
capitalized terms used, but not otherwise defined, herein shall
have the same meaning assigned to such term in the Plan.
NOW,
THEREFORE, based on the foregoing recitals and in consideration of
the covenants set forth herein, the parties hereto hereby agree as
follows:
1.
Grant of Option; Certain Terms and Conditions . The Company
hereby grants to the Participant, and the Participant hereby
accepts, as of the Date of Grant, an option to purchase the number
of shares of Common Stock indicated above (the “Option
Shares”) at the Exercise Price per share indicated above,
which option shall expire at 5:00 o’clock p.m., California
time, on the Expiration Date indicated above and shall be subject
to all of the terms and conditions set forth in this Agreement and
the Plan (the “Option”). This Option is not intended to
qualify as an “incentive stock option” under the
Section 422 of the Internal Revenue Code.
2.
Vesting . The Option granted hereunder shall vest in three
parts. The Option for one-third of the Option Shares shall vest
upon [date], if the Participant remains an employee or director of
the Company on [date]. The Participant shall earn a vested interest
in an additional one-third of the Option Shares if and only if the
Company’s [description of performance measure] for the year
ended [date] [description of performance target], and the
Participant shall earn a vested interest in another additional
one-third of the Option Shares if and only if [description of
performance target]. [Whether the financial target has been
attained] shall be determined by the Committee, in consultation
with the Company’s accountants and consistent with the
Company’s audited financial statements for [year].
Any portion of the Option which does
not vest in accordance with the preceding paragraph based upon [the
financial performance] immediately shall be forfeited effective
[date]. If and to the extent that the Option vests but the
Participant ceases to be an employee or director of the Company and
such relationship was terminated for Cause, then one hundred
percent (100%) of the Option shall be deemed forfeited. If the
Participant’s relationship with the Company as an employee
and, if applicable, director ceases for any other reason (e.g.,
death, disability, resignation or termination without Cause) prior
to [date], then all of the Option Shares immediately shall be
forfeited as of the date of termination.
Notwithstanding anything to the
contrary in the Plan, “Cause” means (i) the
repeated and willful failure of the Participant to substantially
perform his or her duties after a demand for substantial
performance is made to the Participant that specifically identifies
the manner in which the Company or any Affiliate believes the
Participant has not substantially performed such duties;
(ii) any willful or grossly negligent misconduct by the
Participant which is materially injurious to the Company or any
Affiliate, monetarily or otherwise; (iii) the
Participant’s conviction of, or plea of guilty or no contest
to, a felony; or (iv) an illegal act (or omission), or
intentional act (or omission) of dishonesty or misrepresentation,
taken by the Participant which is intended to result in the
personal enrichment of the Participant at the expense of the
Company or any Affiliate.
3.
Exercise . The vested Option shall be exercisable through
the earliest of (i) the Expiration Date, (ii) the first
anniversary of the Participant’s date of death, or
(iii) ninety (90) days following the date the Participant
ceases to be an employee and, if applicable, a director, for any
reason other than death. If and to the extent that the
Participant’s relationship with the Company as an employee or
director is terminated for Cause, then any vested Option
immediately shall cease to be exercisable as of the date of
termination and shall be of no further force or effect whatsoever.
The vested Option shall be exercisable during the
Participant’s lifetime only by the Participant or by his or
her guardian or legal representative, and after the
Participant’s death only by the person or entity entitled to
do so under the Participant’s last will and testament or
applicable intestate law. The Option may be exercised only by the
delivery to the Company of a written notice of such exercise, which
notice shall specify the number of Option Shares
-2-
to be
purchased and shall be accompanied by payment in full (in
accordance with Section 5.1(c) of the Plan) of the aggregate
Exercise Price for such Option Shares.
4.
Restricted Common Stock . In the event the Option is
exercised, in whole or in part, prior to [dat
