Exhibit 10.1


 


EMPLOYMENT
AGREEMENT


 


THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”),
is dated and is to be effective as of March 30, 2010 (the “Effective
Date”), by and between MTR Gaming Group, Inc., a Delaware corporation
(hereinafter referred to as “Company” or “Employer”), and Robert F.
Griffin, an individual (hereinafter referred to as “Executive”) residing
at the address set forth on the signature page hereof.


 


W I T N E S S E T H:


 


WHEREAS, Executive has entered into an employment agreement
with Employer, dated and effective as of September 23, 2008 (“Original
Agreement”);


 


WHEREAS, Employer and Executive wish to extend the term of,
and to amend and restate the Original Agreement; and


 


WHEREAS, Employer desires to continue to employ Executive
to perform services for Employer (or any present or future parent, subsidiary,
or affiliate of Employer and any successor or assign of Employer) upon the
terms and conditions set forth below, and Executive desires to accept
employment upon such terms and conditions.


 


NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:


 


1.             EMPLOYMENT.  Employer hereby employs Executive to serve in
the position of President and Chief Executive Officer, and Executive hereby
accepts employment by Employer in such position, upon all of the terms and
conditions set forth in this Agreement.


 


2.             TERM.  This Agreement and the term of Executive’s
employment hereunder (the “Employment Term”) shall begin on the
Effective Date and, unless earlier terminated as set forth in Section 8
hereof, shall continue for three years following the Effective Date.  Further, “termination of employment” as used
hereinafter is deemed not to have occurred unless there has been a “separation
from service” within the meaning of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”).  If, by the ninetieth (90th) day prior to the end
of the Employment Term, the Company does not offer to extend this Agreement on
substantially comparable terms for an additional three years, then, upon
expiration of the Agreement, Executive will be entitled to receive:


 


(a)           an amount equal to two times Executive’s
then-applicable annual Base Compensation payable in equal monthly installments,
which shall end on the first anniversary of such termination of employment,
provided, however, that in the event Executive accepts employment with or
provides services to, in any capacity, any other business or entity in exchange
for compensation prior to the first anniversary of the last date of employment,
then the monthly severance installments under this Section 2(a) shall
only continue to be paid to Executive to the extent that the monthly severance
installments under this Section 2(a) exceed the monthly compensation
paid or payable to Executive by such other business or entity.


 

















 


(b)           a monthly amount so that Executive shall
be able to continue to receive the health benefits coverage in effect on the
effective date of termination, which shall end on the earlier of (i) the
second anniversary of such termination of employment, or (ii) the date on
which Executive accepts employment with or provides service to, in any
capacity, any other business or entity in exchange for compensation, where such
business or entity offers health benefits coverage (regardless of the levels of
health benefits coverage so offered and whether or not Executive enrolls for
such coverage).


 


3.             EXECUTIVE’S REPRESENTATIONS AND WARRANTIES.  Executive represents, warrants and covenants
to Employer that he is free to continue employment with Employer as
contemplated herein and has no other written or oral obligations or commitments
of any kind or nature that would in any way interfere with his employment
pursuant to the terms hereof or the full performance of his obligations
hereunder or that would otherwise pose any conflict of interest.


 


4.             DUTIES AND EXTENT OF SERVICES.


 


(a)           Duties.  During the
Employment Term, Executive shall serve in the position of President and Chief
Executive Officer and shall have such authority and perform such duties as are
commensurate with such position and as reasonably assigned by Employer and
consistent with such position.  In
addition, Executive shall hold such other office(s) with Employer (or any
affiliates of Employer) to which he may be elected, appointed or assigned from
time to time, and to which he has consented, and shall discharge the duties
related to such offices.  In performance
of his duties, Executive shall be subject to the direction of the Board of
Directors.


 


(b)           Extent of Service. 
During the Employment Term, excluding periods of vacation and sick leave
to which Executive is entitled, Executive shall devote his full business time,
skill, attention and energy exclusively, diligently, and competently to perform
the duties and responsibilities assigned to him hereunder or pursuant hereto, provided
that he may manage personal investments, and, with the consent of Employer
which shall not be unreasonably withheld, delayed or conditioned, serve on
civic or charitable boards.  Executive
shall be available to travel as the reasonable needs of the business of
Employer require.


 


5.             COMPENSATION.


 


(a)           Base Salary. 
For all services rendered under this Agreement during the Employment
Term, Employer shall pay to Executive a base salary of Five Hundred Seventy
Seven Thousand Five Hundred Dollars ($577,500) per annum in 2010, as
adjusted from time to time with the approval of the Compensation Committee (“Base
Compensation”).  The Base
Compensation shall be payable in installments in accordance with Employer’s
normal payroll practices for compensating its Executives and shall be subject
to payroll deductions and tax withholdings in accordance with Employer’s usual
practices and as required by law.  At a
minimum, Executive’s Base Compensation shall be reviewed annually and may be
increased, but not be decreased, subject to the approval of the Compensation
Committee.


 


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(b)           Incentive Compensation. 
Each year Executive shall be entitled to participate in the Company’s
annual performance-based incentive compensation plan (“Incentive
Compensation”).  Executive’s target
annual bonus percentage shall be no lower than fifty percent (50%) of then
Base Compensation (“Target Incentive Compensation”) and the maximum
annual bonus percentage shall be no lower than one-hundred-and-twenty percent
(120%) of the Base Compensation. 
The Incentive Compensation payable for each applicable period shall be
determined by the Compensation Committee of the Board of Directors.  Performance goals will be mutually agreed
upon and shall be contingent on and based on corporate and individual
performance criteria recommended by the Compensation Committee and approved by
the Board of Directors from time to time. 
To the extent practicable, the performance criteria will include
objective factors.  In the event the
Executive and the Employer are unable to agree on the criteria for the
Incentive Compensation by March 15 of any year during the Employment Term,
then the criteria for that calendar year shall be established by the Compensation
Committee and approved by the Board of Directors.


 


Incentive Compensation shall be payable on or before
June 1 of the calendar year following the calendar year then
completed.  The budgets and performance
criteria used for the above analysis will be the budget approved by the Board
of Directors for the fiscal period in question and shall be provided to
Executive not later than April 1 of each year.


 


(c)           Deferral of Non-Deductible Amounts. 
Notwithstanding any provision to the contrary contained herein, to the
extent Executive’s total compensation for any calendar year would otherwise
exceed the amount the Company is permitted to deduct as compensation expense
for federal income tax purposes (the “Section 162 Maximum”) pursuant to Section 162
of the Code, Executive hereby elects to defer the time for payment of any
amounts above the Section 162 Maximum in a manner that will not result in
compensation exceeding the Section 162 Maximum.  In no event, however, shall such an election
result in or be construed as a waiver of the right to such compensation.  Compensation deferred pursuant to this Section 5(c) shall
be paid to the Executive six (6) months following the Executive’s
separation from service (within the meaning of Section 409A of the Code).


 


(d)           Long Term Incentive Compensation. 
During the first year of the Employment Term, the Company will grant to
Executive (i) an award of 200,000 restricted stock units (“RSUs”)
with respect to shares of the Company’s common stock, and (ii) a cash
retention award payable in the aggregate amount of $150,000 (“Cash Award”),
which awards shall be set forth in, and subject to the terms and conditions of,
separate award agreements, including, without limitation, the vesting
requirements in the next sentence.  To the
extent Executive remains employed by the Company as of the applicable vesting
date, one-third of the RSUs and one-third of the Cash Award shall vest and be
paid on each of the first, second and third anniversaries of the date of grant
of each award.  In subsequent years of
the Employment Term, Executive shall also be eligible for future awards under
the Company’s long-term incentive plans, as determined on an annual basis by
the Compensation Committee.


 


6.             FRINGE BENEFITS AND EXPENSES.


 


(a)           Fringe Benefits. 
Executive shall be entitled to such fringe benefits as are generally
made available by Employer to executive personnel, including, but not limited
to, 


 


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health insurance, subject to and on a basis consistent
with the terms, conditions and overall administration of such benefit plans.


 


(b)           Job Related Expenses. 
Employer shall also reimburse Executive for his reasonable out-of-pocket
costs and expenses in connection with the performance of his duties and
responsibilities hereunder, subject to the submission of appropriate vouchers,
bills and receipts in accordance with Employer’s policies from time to time in
effect, including sufficient detail to entitle Employer to income tax
deductions for such paid items, if such items are so deductible.  All travel and other expenses incident to the
rendering of services by Executive hereunder, including the expenses associated
with gaming licensing in any state in which the Company or one of its
affiliates requests Executive to become licensed, shall be paid by the
Company.  The Company shall also provide
Executive a Company cellular telephone, or, at the Company’s election,
reimburse Executive for the cost of a cellular phone and monthly service
charges maintained by Executive.


 


(c)           Vacation.  Executive
shall be entitled to four (4) weeks paid vacation annually each calendar
year, to be taken at time or times mutually satisfactory to Executive and the
Company.  Accrued vacation time not
utilized by Executive due to business commitments may be carried over the
following year (provided, however, that Executive shall not in any event
utilize more than eight weeks of vacation in any twelve month period) or paid
to Executive at the end of the year as additional compensation at Executive’s
election.  Upon termination of employment
by Executive, compensation for any unused accrued vacation days shall be paid
to him as soon as practicable (but in no event later than the fifteenth day of
the third month of the calendar year following the year of termination).


 


(d)           Working Facilities. 
The Company shall provide Executive with an office, secretarial,
administrative and other assistance, and such other facilities and services as
shall be suitable to his position and appropriate for the performance of his
duties.  All such working facilities
shall be provided at the Company’s corporate headquarters and, on an as needed
basis, in any other jurisdiction in which the Company is conducting or pursuing
substantial business.


 


(e)           Automobile Allowance. 
During the Period of Employment, Executive shall be entitled to
$700 per month toward the lease or purchase, insurance and maintenance of
an automobile.  In the alternative, at
Executive’s election, Executive may have the use, for business purposes, of an
automobile currently owned by the Company. 
Executive shall likewise be entitled to reimbursement for the cost of
gasoline purchased for business travel.


 


(f)            Life Insurance. 
During the Employment Term, the Company will maintain, at its sole cost
and expense, a term life insurance policy for Executive with a face value equal
to at least three (3) times Executive’s Base Compensation.  Executive shall have the right to name the
beneficiary of such term life insurance policy. 
Notwithstanding the foregoing, the Company’s obligation to pay premiums
for such term life insurance policy shall be limited to the rate charged for
preferred non-smokers.


 


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7.             NON-COMPETITION AND
NON-SOLICITATION, ETC.


 


(a)           The Company and Executive acknowledge
that the services to be performed by Executive under this Agreement are unique
and extraordinary and, as a result of such employment, Executive will be in
possession of confidential information and trade secrets (collectively, “Confidential
Material”) relating to the business practices of the Company and its
affiliates.  Executive agrees that he
will not, directly or indirectly, (i) disclose to any other person or
entity either during or after his employment by the Company or (ii) use,
except during his employment by the Company in the business and for the benefit
of the Company or any of its affiliates, any Confidential Material acquired by
Executive during his employment by the Company, without the prior written consent
of the Company or otherwise than as required by law or any rule or
regulation of any federal or state authority. 
Upon termination of his employment with the Company for any reason,
Executive agrees to return to the Company all tangible manifestations of
Confidential Materials and all copies thereof. 
All programs, ideas, strategies, approaches, practices or inventions
created, developed, obtained or conceived of by Executive during the term
hereof by reason of his engagement by the Company, shall be owned by and belong
exclusively to the Company, provided that they are related in any manner to the
Company’s business or that of any of its affiliates.  Executive shall (i) promptly disclose
all such programs, ideas, strategies, approaches, practices, inventions or
business opportunities to the Company, and (ii) execute and deliver to the
Company, without additional compensation, such instruments as the Company may
require from time to time to evidence its ownership of any such items.


 


(b)           During the Employment Term, and any
period during which Executive is eligible to receive severance payments or
benefits pursuant to the terms of this Agreement, Executive shall not make any
disparaging or defamatory comments regarding the Company or any of its
affiliate or any of their current or former directors, officers, or employees
in any respect or make any comments concerning any aspect of Executive’s
relationship with the Company or any conduct or events that precipitated any
termination of employment from the Company. 
Executive’s obligations under this Section 7(b) shall not
apply to disclosures required by applicable law, regulation, or order of a
court or governmental agency.


 


(c)           Executive agrees that, during the
Employment Term and any period during which Executive is eligible to receive
severance payments or benefits pursuant to the terms of this Agreement, he will
not (i) other than on behalf of the Company, hire or seek to hire (whether
on his own behalf or on behalf of some other person or entity) any person who,
at the time of such hiring or sought hiring, is an employee of the Company or
any of its affiliates or (ii) directly or indirectly encourage or induce
any employee of the Company or its affiliates to leave any of such entity’s
employ.


 


(d)           Executive agrees that during the
Employment Term he will not become a stockholder, director, officer, employee
or agent of or consultant to any corporation, or member of or consultant to any
partnership or other entity, or engage in any business as a sole proprietor or
act as a consultant to any such entity, or otherwise engage, directly or
indirectly, in any enterprise, in each case which competes with any business or
activity engaged in, or known by Executive to be contemplated to be engaged in,
by the Company or any of its affiliates or in which Executive has knowledge
that the Company or any of its affiliates contemplates doing business;
provided, however, that competition shall not include the ownership (solely as
an investor and without any other participation in or contact with the
management of the business) 


 


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of less than five percent (5%) of the outstanding
shares of stock of any corporation engaged in any such business, which shares
are regularly traded on a national securities exchange or in an
over-the-counter market.


 


(e)           Executive agrees that during the
Employment Term and for a period of one (1) year from the date of his
termination from employment for any reason, other than in connection with a
Change in Control of the Company and following the consummation thereof, he
will not directly or indirectly provide services, whether as an employee,
consultant, contractor or otherwise, to any racetrack, casino or other gaming
facility within one hundred (100) miles of any racetrack, casino or gaming
facility then owned or operated by the Company or its affiliates.


 


(f)            Executive has carefully read and
considered the provisions of this Section 7, and, having done so, agrees
that (i) the restrictions set forth herein are reasonable, in terms of
scope, duration, geographic scope and otherwise, (ii) the protection
afforded to Employer hereunder is necessary to protect its legitimate business
interests and is no greater than necessary to protect Employer’s legitimate business
interests, (iii) the agreement to observe such restrictions forms a
material part of the consideration for this Agreement, and (iv) upon the
termination of Executive’s employment with Employer for any reason, he will be
able to earn a livelihood without violating the foregoing restrictions.  In the event that, notwithstanding the
foregoing, any of the provisions of this Section 7 shall be held to be
invalid or unenforceable, the remaining provisions thereof shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein.  In
the event that any provision of this Section 7 relating to the time period
and/or the areas of restriction and/or related aspects shall be declared by a
court of competent jurisdiction to exceed the maximum restrictiveness such
court deems reasonable and enforceable, the time period and/or areas of
restriction and/or related aspects deemed reasonable and enforceable by the
court shall become and thereafter be the maximum restriction in such regard,
and the restriction shall remain enforceable to the fullest extent deemed
reasonable by such court.


 


(g)           Executive agrees that Employer’s remedies
at law for any breach or threat of breach by his of any of the provisions of
this Section 7 will be inadequate and that Employer shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this Section 7
and to enforce specifically the terms and provisions thereof, in addition to
any other remedies to which Employer may be entitled at law or equity.


 


8.             TERMINATION OF EMPLOYMENT.


 


(a)           Upon sixty (60) days’ prior written
notice, Employer may terminate Executive’s employment, with or without “Cause,”
as defined in Section 8(f) below. 
Upon sixty (60) days’ prior written notice, Executive may terminate
his employment, with or without “Good Reason,” as defined in Section 8(e) below.  Upon any termination of Executive’s
employment (the “Date of Termination”) for any reason, Employer
shall:  (i) pay to Executive any
unpaid Base Compensation through the Date of Termination, (ii) pay to
Executive any unpaid Incentive Compensation earned with respect to completed
fiscal periods but not paid through the date of termination under the terms of
applicable incentive compensation arrangements; (iii) pay to Executive all
deferred payment amounts referenced in Section 5(c), if any; and (iv) provide
to or 


 


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for the benefit of Executive the benefits, if any,
otherwise expressly provided under this Section 8, Section 9 or Section 10,
as applicable.


 


All other compensation and employment benefit
arrangements provided for in this Agreement shall cease upon such termination
of employment except to the extent required by law or otherwise expressly
provided by such arrangements.


 


(b)           In the event Employer terminates
Executive’s employment without Cause or Executive terminates his employment for
Good Reason (except under the circumstances described under Section 9(b) hereof),
then, with respect to the twenty four (24) month period immediately
following such termination (the “Severance Period”) in addition to the benefits
provided for under Sections 8(a)(i), 8(a)(ii) and 8(a)(iii) and
subject to the provisions of Sections 10 and 18, Employer shall pay
to Executive:


 


(i)            a severance benefit equal to Executive’s
then applicable monthly Base Compensation each month for a period of twenty
four (24) months following the termination of employment;


 


(ii)           a severance benefit equal to Executive’s
monthly bonus amount each month for a period of twenty four (24) months
(determined by dividing the highest amount any Incentive Compensation paid to
in respect of either the first or second full calendar year immediately
preceding the effective date of termination divided by twelve);


 


(iii)          a monthly amount so that Executive shall
be able to continue to receive the health benefits coverage in effect on the
effective date of termination for Executive and if any, Executive’s spouse and
dependants until the earlier of (A) the second anniversary of such
termination of employment, or (B) the date on which Executive accepts
employment with or provides service to, in any capacity, any other business or
entity where such business or entity offers health benefits coverage
(regardless of the levels of health benefits coverage so offered and whether or
not Executive enrolls for such coverage), such amount to be based upon
Executive’s level of enrollment in the Company’s group medical plan as of the
date of termination, and contingent upon Executive’s timely election to
continue his coverage under the Company’s group medical plan in accordance with
Code Section 4980B; and


 


(iv)          in addition, all then-outstanding and
unvested portions of RSUs, stock options and the Cash Award shall vest and
otherwise be governed by the terms of the applicable award agreement.


 


In addition, in the event Executive’s
employment is terminated under the circumstances described in this Section 8(b),
Employer shall calculate Executive’s Incentive Compensation amount, determined
based on the achievement of the performance goals in effect for the calendar
year of Executive’s termination, but prorated for the amount of time Executive
was employed by the Company during such calendar year.  Such pro-rated amount shall be paid to
Executive on or before June 1 of the calendar year following the calendar
year of Executive’s termination.


 


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(c)           In the event Employer terminates
Executive’s employment for Cause, Executive shall be entitled to the benefits
provided for under Sections 8(a)(i), 8(a)(ii) and 8(a)(iii), and
all unvested portions of RSUs, stock options and the Cash Award shall be
forfeited.


 


(d)           In the event Executive terminates his
employment without Good Reason, Executive shall be entitled to the benefits
provided for under Sections 8(a)(i), 8(a)(ii) and 8(a)(iii), and
all unvested portions of RSUs, stock options and the Cash Award shall be
forfeited.


 


(e)           For purposes of this Agreement, Executive
shall be considered to have “Good Reason” to terminate his employment if,
without his express written consent (except as contemplated by this Agreement
or in connection with the termination of his employment voluntarily by
Executive, by Employer for Cause, or under the circumstances described in Section 10
hereof), (i) the responsibilities of Executive are substantially reduced
or altered, (ii) Executive’s Base Compensation is reduced without his
consent, or (iii) Executive’s offices are relocated anywhere other than
within a twenty-five (25) mile radius of the Company’s satellite office in
Wexford, Pennsylvania; provided, however, that the assignment of tasks or
responsibilities previously performed by Executive to Executive’s subordinates
shall not constitute Good Reason; and provided, further, that the Executive
shall give notice of such event within ninety (90) days and the Employer
shall have a period of thirty (30) business days after receipt of
Executive’s assertion of Good Reason to cure the basis for such assertion, and,
in the event of cure (or the commencement of steps reasonably designed to
result in prompt cure), the assertion of such Good Reason shall be null and
void.


 


(f)            For purposes of this Agreement, Employer
shall have “Cause” to terminate Executive’s employment hereunder upon (i) the
continued, willful and deliberate failure of Executive to perform his duties in
a manner substantially consistent with the manner prescribed by the Board of
Directors (other than any such failure resulting from his incapacity due to
physical or mental illness), (ii) the engaging by Executive in misconduct
materially and demonstrably injurious to Employer, (iii) the conviction of
Executive of commission of a felony, whether or not such felony was committed
in connection with Employer’s business, (iv) Executive’s engaging in
activity that the Board of Directors determines in its reasonable judgment
would result in the suspension or revocation of any video lottery, pari-mutuel,
or other gaming license or permit held by the Company or any of its affiliates,
(v) a determination by any state gaming or racing regulatory agency that
Executive is not suitable to hold his position or otherwise to participate in a
gaming enterprise in the state in question, or (vi) the circumstances
described in Section 10 hereof, in which case the provisions of Section 10
shall govern the rights and obligations of the parties.  Prior to any termination for “Cause”, Company
shall provide Executive with written notice of such cause, specify steps
required to cure and a reasonable time to cure, which cure period shall be no
less than forty-five (45) days; provided, however, that Employer shall
have no duty to provide written notice, and Executive shall have no right to
cure, if the grounds for termination for Cause are those set forth in Section 8(f)(iii),
8(f)(iv) or 8(f)(v).


 


(g)           Notwithstanding any other provision
hereof, Executive shall be entitled to receive any payment under Section 8
or 9 of this Agreement that is treated as “deferred compensation” within the
meaning of Section 409A of the Code and the regulations thereunder


 


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at the earliest time when such payment is
permitted to be made under Section 409A(a)(2)(B) of the Code, as provided
in Section 18 below.


 


9.             CHANGE IN CONTROL.


 


(a)           All unvested portions of RSUs, stock
options and the Cash Award outstanding as of the date of a Change in Control
(as defined in Section 9(c) below) shall vest in full on the date of
a “Change in Control” and shall otherwise be governed by the terms of the
applicable award agreement.


 


(b)           In the event that Employer terminates
Executive’s employment with Employer without Cause within one (1) year
after a “Change in Control” (as defined in Section 9(c) below), or if
Executive terminates his employment with Employer for Good Reason (in
accordance with Sections 8(e) and 8(f) above) within one (1) year
after a Change in Control, then, in addition to the benefits provided for under
Sections 8(a)(i), 8(a)(ii) and 8(a)(iii), Employer shall pay to
Executive a lump sum cash payment including:


 


(i)            a lump sum severance benefit equal to
Executive’s then applicable monthly Base Compensation for twenty four
(24) months, payable within ten (10) business days following
termination of employment;


 


(ii)           a lump sum severance benefit equal to
Executive’s monthly bonus amount for twenty four (24) months (determined
by dividing the highest amount any Incentive Compensation paid to in respect of
either the first or second full calendar year immediately preceding the
effective date of termination (or, in the event that such termination occurs
prior to the payment of any annual bonus, based upon the Target Incentive
Compensation as defined in Section 5(b) above) divided by twelve,
payable within ten (10) business days following termination of employment;
and


 


(iii)          a monthly amount so that Executive shall
be able to continue to receive the health benefits coverage in effect on the
effective date of termination for Executive and if any, Executive’s spouse and
dependants until the earlier of (A) the second anniversary of such
termination of employment, or (B) the date on which Executive accepts
employment with or provides service to, in any capacity, any other business or
entity where such business or entity offers health benefits coverage
(regardless of the levels of health benefits coverage so offered and whether or
not Executive enrolls for such coverage), such amount to be based upon
Executive’s level of enrollment in the Company’s group medical plan as of the
date of termination, and contingent upon Executive’s timely election to
continue his coverage under the Company’s group medical plan in accordance with
Code Section 4980B.


 


(c)           For purposes of this Agreement, “Change
in Control” shall mean an occurrence of any of the following events:


 


(i)            an acquisition (other than directly from
Employer) of any voting securities of Employer (the “Voting Securities”)
by any “person or group” (within 


 


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the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”)
immediately after which such person or group has “Beneficial Ownership” (within
the meaning of Rule 13d-3 under the Exchange Act) of more than fifty
percent (50%) of the combined voting power of Employer’s then outstanding
Voting Securities;


 


(ii)           the consummation of (A) a merger,
consolidation or reorganization involving Employer, unless the company
resulting from such merger, consolidation or reorganization (the “Surviving
Corporation”) shall adopt or assume this Agreement and the stockholders of
Employer immediately before such merger, consolidation or reorganization own,
directly or indirectly immediately following such merger, consolidation or
reorganization, at least fifty percent (50%) of the combined voting power
of the Surviving Corporation in substantially the same proportion as their
ownership immediately before such merger, consolidation or reorganization, (B) a
complete liquidation or dissolution of Employer, or (C) a sale or transfer
of all or substantially all of the assets of Employer; or


 


(iii)          during any twenty-four (24) month
period, individuals who, as of the beginning of such period, constitute the
Board (the “Incumbent Directors”) cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to the beginning of such period whose election or nomination for election was
approved by a vote of at least a majority of the Incumbent Directors then on
the Board (either by a specific vote or by approval of the proxy statement of
the Company in which such person is named as a nominee for director, without
written objection to such nomination) shall be an Incumbent Director; provided,
however, that no individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest with respect to
directors or as a result of any other actual or threatened solicitation of
proxies by or on behalf of any person other than the Board shall be deemed to
be an Incumbent Director.


 


(d)           In the event that, as a result of
payments to or for the benefit of Executive under this Agreement or otherwise
in connection with a Change in Control or Termination without Cause or
Termination for Good Reason, any state, local or federal taxing authority
imposes any taxes on Executive (other than income taxes) that would not be
imposed but for the occurrence of a Change in Control, including any excise tax
under Section 4999 of the Code and any successor or comparable provision,
then, in addition to any benefits provided for under Sections 8(a)(i), 8(a)(ii),
8(a)(iii), 8(b) and under Sections 9(a) and 9(b), Employer
(including any successor to Employer) shall pay to Executive at the time any
such tax becomes payable an amount equal to the amount of any such tax imposed
on Executive.  For the avoidance of
doubt, in the event that the Executive receives a payment pursuant to this Section 9(d),
the Employer shall not pay and/or reimburse the Executive for the taxes imposed
with respect to such payment.


 


(e)           Notwithstanding anything herein to the
contrary, Executive’s right to any severance benefit shall be conditioned upon
Executive executing and not revoking within the revocation period a General
Release in the form attached hereto as Exhibit A within 60 days 


 


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following termination of employment, and all severance
amounts otherwise payable within such 60-day period shall be paid on the 60th
day following Executive’s date of termination (subject to the provisions of
Treasury Regulation Section 1.409A-3 regarding when a payment is
considered made on the designated payment date).


 


(f)            For the avoidance of doubt, if the
Executive is compensated under Section 9(b), the Executive shall not also
be entitled to compensation under Section 8(b).


 


10.          DISABILITY; DEATH.


 


(a)           If, prior to the expiration or
termination of the Employment Term, Executive shall be unable to perform his
duties by reason of disability or impairment of health for at least six
consecutive calendar months, Company shall have the right to terminate
Executive’s employment on account of disability by giving written notice to
Executive to that effect, but only if at the time such notice is given such
disability or impairment is still continuing. 
In the event of a dispute as to whether Executive is disabled within the
meaning of this Section 10(a), either party may from time to time request
a medical examination of Executive by a doctor selected by Company, and the
written medical opinion of such doctor shall be conclusive and binding upon the
parties as to whether Executive has become disabled and the date when such
disability arose.  The cost of any such
medical examination shall be borne by Employer. 
If Company terminates Executive’s employment on account of disability,
then, in addition to the benefits provided for under Sections 8(a)(i),
8(a)(ii) and 8(a)(iii), Executive shall receive the other amounts set
forth in Sections 8(b)(iii) (health benefit coverage), 8(b)(ii) (bonus
severance) (capped at the amount the Company paid for the prior year), 8(b)(i) (base
salary severance) and 8(b)(iv) (vesting of awards) above, less any amounts
paid or to be paid pursuant to policies of disability insurance for which the
Company has paid the premiums.


 


(b)           If, prior to the expiration or
termination of the Employment Term, Executive shall die, then, in addition to
the benefits provided for under Sections 8(a)(i), 8(a)(ii) and
8(a)(iii), Executive shall be entitled to Section 8(b)(iv) (vesting
of awards) and the Employment Term shall terminate without further notice.  Nothing contained in this Section 10
shall impair or otherwise affect any rights and interests of Executive under
any insurance arrangements, death benefit plan or other compensation plan or
arrangement of Employer which may be adopted by the Board.


 


11.          LAW APPLICABLE.  This Agreement shall be governed by and
construed pursuant to the laws of the State of Delaware, without giving effect
to conflicts of laws principles.


 


12.          NOTICES.  Any notices required or permitted to be given
pursuant to this Agreement shall be sufficient, if in writing and sent by
certified or registered mail, return receipt requested, to the residence,
listed on the signature page of this Agreement, in the case of Executive,
and to State Route 2, South, Chester, WV 26034, Attention:  Chairman of the Board, in the case of
Employer.


 


13.          ASSIGNMENT, ETC.  This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective legal
representatives, heirs, assignees and/or 


 


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successors in interest of
any kind whatsoever; provided, however, that Executive
acknowledges and agrees that he cannot assign or delegate any of his rights,
duties, responsibilities or obligations hereunder to any other person or
entity.  Employer may assign its rights
under this Agreement to any affiliate of Employer or to any entity upon any
sale of all or substantially all of the assets of Employer, or upon any merger
or consolidation of Employer with or into any other entity, provided
that such assignment shall not relieve Employer of its obligations hereunder
without the written consent of Executive.


 


14.          ENTIRE AGREEMENT; MODIFICATIONS.  This Agreement, together with the exhibits
hereto, constitutes the entire final agreement between the parties with respect
to, and supersedes the Original Agreement and any and all other prior
agreements between the parties hereto, both oral and written concerning, the
subject matter hereof and may not be amended, modified or terminated except by
a writing duly signed by the parties hereto.


 


15.          SEVERABILITY.  If any provision of this Agreement shall be
held to be invalid or unenforceable, and is not reformed by a court of
competent jurisdiction, such invalidity or unenforceability shall attach only
to such provision and shall not in any way affect or render invalid or
unenforceable any other provision of this Agreement, and this Agreement shall
be carried out as if such invalid or unenforceable provision were not contained
herein.


 


16.          NO WAIVER.  A waiver of any breach or violation of any
term, provision or covenant contained herein shall not be deemed a continuing
waiver or a waiver of any future or past breach or violation.  No oral waiver shall be binding.  The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.


 


17.          ARBITRATION.


 


(a)           Agreement to Arbitrate. 
In the event of differences between Employer and Executive arising out
of or relating to his employment with Employer or the termination of that
employment, Executive and Employer mutually agree to arbitration.  Executive understands that his assent to
mandatory arbitration is a condition of employment and continued
employment.  Any claim or controversy
that arises out of or relates to this Agreement or the breach of it, as well as
all other claims made arbitrable by this Agreement, will be settled by
arbitration in the State of West Virginia in accordance with the rules of
the American Arbitration Association. 
Judgment upon the award rendered may be entered in any court possessing
jurisdiction of arbitration awards.  A
request by a party to a court for interim measures or specific performance
necessary to preserve a party’s rights and remedies for resolution pursuant to
this Section 17 shall not be deemed a waiver of the agreement to
arbitrate.


 


(b)           Covered Claims. 
Except as otherwise provided in this Agreement, Executive and Employer
hereby consent to the resolution by arbitration of all claims or controversies
for which a court otherwise would be authorized by law to grant relief, in any
way arising out of, relating to, or associated with Executive’s employment with
Employer or its termination (“Claims”) that Employer may have against Executive
or that Executive may have against Employer or against its officers, directors,
employees, or agents, in their capacity as such 


 


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or otherwise. 
The Claims covered by this Agreement include, but are not limited
to:  claims for discrimination based on
race, sex, religion, national origin, age, marital status, handicap,
disability, or medical condition; claims for benefits, except as excluded in
the following paragraph, and claims for violation of any federal, state, or
other governmental constitution, statute, ordinance, or
regulation (including but not limited to claims arising under Title VII
of the Civil Rights Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Family Medical Leave Act, the Fair Labor
Standards Act, and Employee Retirement Income Security Act).  Additionally, any and all issues of arbitrability
(whether a claim is covered by this Agreement) will be decided by the
arbitrator(s) and not a court.


 


(c)           Claims Not Covered. 
This agreement to arbitrate does not apply to or cover claims for
workers’ compensation benefits; claims for unemployment compensation benefits;
claims by Employer for injunctive and/or other equitable relief for breach of Section 7
or for unfair competition and/or the use and/or unauthorized disclosure of
trade secrets or confidential information; and claims based upon an employee
pension or benefit plan, the terms of which contain an arbitration or other
non-judicial dispute resolution procedure, in which case the provisions of such
plan shall apply.


 


18.          COMPLIANCE WITH SECTION 409A.  Because the parties hereto intend that any
payment under this Agreement shall be paid in compliance with Section 409A
of the Code (“Section 409A”) and all regulations, guidance and
other interpretative authority thereunder, such that there will be no adverse
tax consequences, interest or penalties as a result of such payments, the
parties hereby agree to modify the timing (but not the amount) of any payment
hereunder to the extent necessary to comply with Section 409A and avoid
application of any taxes, penalties or interest thereunder.  Consequently, notwithstanding any provision
of this Agreement to the contrary, if Executive is a “specified employee” as
defined in Section 409A, Executive shall not be entitled to any
non-qualified deferred compensation payments (within the meaning of Section 409A)
upon the Date of Termination until the earlier of (i) the date which is
six (6) months after Date of Termination for any reason other than death,
or (ii) the date of Executive’s death. 
Any amounts otherwise payable to Executive following Date of Termination
that are not so paid by reason of this Section 18 shall be paid
immediately after the date that is six (6) months after Date of
Termination (or, if earlier, the date of Executive’s death).  The provisions of this Section 18 shall
only apply if, and to the extent, required to comply with Section 409A in
a manner such that Executive is not subject to additional taxes and/or
penalties under Section 409A.


 


19.          COUNTERPARTS.  This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument, and it shall not be necessary in
making proof of this agreement to account for all such counterparts.


 


20.          INDEMNIFICATION.  The Company shall indemnify, defend and hold
the Executive harmless, to the extent permitted by law, including the
reimbursement of reasonable attorneys’ fees, if the Company does not directly
provide Executive’s defense, from and against any and all civil claims made by
anyone, including, but not limited to, a corporate entity, company, other
employee, agent, patron or member of the general public with respect to any
claims that assert as a basis, any acts, omissions or other circumstances
involving the 


 


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performance of Executive’s
employment duties hereunder unless such claim is finally determined by a court
of competent jurisdiction to arise from Executive’s gross negligence or
willful, intentional and/or wanton act.


 


21.          CODE OF ETHICS.  Executive acknowledges receipt of and
agreement to comply with MTR Gaming Group, Inc.’s Code of Ethics and
Business Conduct and Conflicts of Interest Policy, copies of which have been
provided to Executive.  Executive also
acknowledges that Company’s securities are publicly traded and agrees that he
will not, while in possession of material non-public information about MTR,
trade in Company’s securities or “tip” others with respect to such trading.


 


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IN WITNESS WHEREOF, the undersigned have
hereunto set their hands to this Agreement on the day and year first above
written.


 


	
   

  	
  MTR
  GAMING GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /S/
  STEVEN M. BILLICK

  
	
   

  	
   

  	
  Name:
  Steven M. Billick

  
	
   

  	
   

  	
  Title:
  Chairman of the Compensation

  
	
   

  	
   

  	
  Committee

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/
  ROBERT F. GRIFFIN

  
	
   

  	
   

  	
  Name:
  Robert F. Griffin

  
	
   

  	
   

  	
  Address: 132 Preserve Valley Road Cranberry

  
	
   

  	
   

  	
  Township, PA 16066

  



 


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Exhibit A


 


Form of General Release