Exhibit 10.10
CONSULTING
AGREEMENT
This Consulting Agreement (the
“Agreement”) is dated October 15, 2008, and is
between Edson R. Arneault (“Consultant”), Taxpayer
Identification Number 277-46-8942, whose address is 423 S. Atlantic
Ave., Dune Point, New Smyrna, Florida 32169, and MTR Gaming
Group, Inc. (“MTR”).
NOW THEREFORE, in consideration for
the promises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1.
Consulting
Relationship . MTR hereby retains
Consultant to perform services, and Consultant hereby agrees to
perform services upon the terms and conditions contained in this
Agreement and as specified in Schedule A, which is attached hereto
and is a part of this Agreement.
2.
Term . This Agreement shall
be effective upon the later of (i) November 1, 2008, or
(ii) the date upon which Consultant resigns from MTR’s
Board of Directors, and shall continue for thirty (30) months
(“Term”). However, MTR may terminate this
Agreement earlier, effective upon notice to Consultant, if
Consultant breaches any material term of this Agreement as
determined by MTR’s Board of Directors. Upon such
notice consultant shall have 30 days written notice to cure any
material breach. In the event of such termination of this
Agreement, as of the effective date, MTR shall have no further
obligation to pay Consultant any compensation under this
Agreement. Alternatively, in the event MTR chooses to
terminate this Agreement earlier for any other reason, MTR, at its
sole discretion, may accelerate the termination date and, in
such
event, shall provide payment
to Consultant as set forth herein for the remainder of the
Term.
3.
Renewal
. This
Agreement may be renewed for a period of time that is mutually
agreeable to each party.
4.
Compensation
.
a.
In consideration
for the services to be provided to MTR by Consultant under this
Agreement, MTR agrees to pay Consultant a consulting fee as
specified in Schedule A.
b.
Consultant has
furnished MTR with his Taxpayer Identification Number for purposes
of filing Form 1099. Consultant is responsible for
payment of any self-employment, income or other federal, state or
local taxes or charges arising from this Agreement.
c.
Consultant will
be reimbursed for reasonable expenses incurred in connection with
rendering services under this Agreement as provided for in Schedule
A.
d.
Consultant shall
not be entitled to any other compensation, payment or benefit of
any type from MTR other than as specifically provided in this
Agreement or other than those benefits which have vested pursuant
to any prior employment agreement between MTR and
Consultant.
5.
Consultant
Services .
a.
Consultant shall
provide the services specified in Schedule A.
b.
Consultant agrees
to devote his best efforts, energies and skills to the discharge of
the duties and responsibilities under this Agreement and to perform
such services within the time periods required. During the
term of this Agreement, Consultant
2
shall devote as much of his
productive time, energy and abilities to the performance of his
duties hereunder as is necessary to perform the required duties in
a timely and productive manner but not to exceed four hundred (400)
hours in any one calendar year.
c.
Unless directed
in writing by the other party, neither party has the authority to
act for or on behalf of the other party in any manner or to any
extent whatsoever and has no authority to bind the other party by
or to any obligation, agreement, promise or
representation.
d.
To the extent
that Consultant performs services under this Agreement at
MTR’s facilities, MTR shall provide Consultant with meeting
facilities as reasonably required by Consultant. In addition during
the initial twelve (12) months of the term, MTR agrees to employ,
compensate (at an annual gross rate of Fifty Thousand Dollars
($50,000.00) in the normal course of payroll), and provide employee
benefits to a mutually agreeable assistant/secretary to provide
secretarial assistance to Consultant.
6.
Independent
Contractor Relationship . This Agreement does
not constitute an offer of employment, nor does it constitute a
contract of employment with MTR. The parties’ intention
is that Consultant is an independent contractor and not an employee
of MTR, and that Consultant retain sole and absolute discretion and
judgment in the manner and means of carrying out consulting
activities. This Agreement shall not be construed as a
partnership or joint venture, and neither party hereto shall be
liable for any obligations incurred by the other party except as
expressly provided in this Agreement. The parties agree that
since Consultant is not an employee of MTR, he is not entitled to
receive the benefits of the personnel policies, procedures or
practices of MTR, or any other
3
compensation or benefits
from MTR or any of its affiliates or subsidiaries (other than
benefits earned prior to this Agreement and as set forth
herein).
7.
Non-Disclosure
of Information .
a.
Consultant agrees
that, during the term of this Agreement or at any time thereafter,
he will not divulge to any other person or entity any confidential
or proprietary information of MTR which is not generally known in
the marketplace, including, without limitation, processes,
procedures, software and technology, financial information,
strategic planning, sales, advertising and marketing plans and
strategies, employee compensation plans, customer lists and
information, vendor contracts and other arrangements and contracts
of MTR, or any and all other trade secrets of MTR.
b.
Upon termination
of this Agreement, Consultant will deliver to MTR any and all
documents, manuals, letters, memoranda, lists, papers, notes,
reports, computer software, computer printouts and similar
materials, and all copies thereof (including electronic),
containing confidential, proprietary or trade secret information of
MTR.
c.
This paragraph 7
(and all provisions regarding enforcement of such) shall survive
termination of this Agreement.
8.
Non-Competition
. The
parties recognize and agree that MTR would be substantially injured
by Consultant competing with MTR. Accordingly, Consultant
agrees that he will not, unless acting with MTR’s express
prior written consent, during the Term of this Agreement, directly
or indirectly, own, operate, join, control, participate in or be
connected as an officer, director, employee, partner, stockholder,
consultant or otherwise, with any business or entity that is
directly in the gaming business of MTR (or
4
its
|
