Exhibit 10.2


 


AGREEMENT


 


This Agreement
(the “Agreement”) made as of the 14th day of April, 2004 (“Effective Date”), by
and between, Wheeling Island Gaming, Inc., a Delaware corporation (the
“Company”) and Jim Rafferty (the “Executive”).


 


W I T N E S S E T
H


 


WHEREAS,
the Company believes that the establishment and maintenance of sound and vital
management of the Company is essential to the protection and enhancement of the
interests of the Company and its stockholders; and


 


WHEREAS,
the Company also recognizes that the possibility of a Change of Control (as
defined herein), with the attendant uncertainties and risks, might result in
the departure or distraction of key employees of the Company to the detriment
of the Company.


 


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


 


1.                                       Title/Duties.


 


(a)                                  On
the Effective Date, the Executive shall continue
to be employed by the Company as its Vice-President Marketing  or such other equivalent or senior
position.  Notwithstanding anything else
herein, the Executive’s employment with the Company shall be “at-will,” meaning
that the Executive and the Company retain the right to terminate the
Executive’s employment at any time for any reason, subject to the Company’s
obligation to pay the Executive the amounts provided in Section 5.


 


(b)                                 While
employed by the Company, the Executive shall devote substantially all of his
business time and best efforts to the performance of his duties to the Company.


 


2.                                       Term. 
This Agreement shall commence on the Effective Date and end on the
earlier of (a) the termination of the Executive’s employment with the Company
or (b) the first anniversary of
the Effective Date (the “Protected Period”). 
However, if a Change of Control (as defined below) occurs prior to the
end of the Protected Period, the term of this Agreement shall end (and if
necessary, extended until) the earlier of the first anniversary of the date of
such Change of Control or the date upon which the Executive accepts any offer
of employment with the Company subsequent to a Change in Control.  Notwithstanding anything in this Agreement
to the contrary, if the Company becomes obligated to make any payment to the
Executive pursuant to the terms hereof, then this Agreement shall remain in
effect for such purposes until all of the Company’s obligations hereunder are
fulfilled.  For the purposes of the
remainder of this Agreement, any reference to “the Term” shall refer to all of
the provision of this Subparagraph, both before and after a Change in Control.


 


3.                                       Change of Control:  For purposes of this Agreement, a “Change of
Control” shall have the meaning set forth in the Indenture, dated as of
December 19, 2001, by and among


 


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the Company,
the Guarantors (as defined therein) and U.S. Bank N.A., as trustee, which
generally provides that a “Change of Control” will occur upon the direct or
indirect sale or transfer of all or substantially all of the property or assets
of the Company; or the adoption of plan of liquidation or dissolution of the
Company; or the transfer of at least 51% of the then outstanding shares of
voting stock of the Company; or at least 51% of the corporation’s assets are
purchased by any person, firm, or entity whether or not affiliated to the
Company; or the Company is merged or consolidated with another company,
regardless of whether the Company is the survivor; or if a majority of members
of the Board of Directors of the Company are not Continuing Directors.  Notwithstanding the explanation above, the
parties agree to be bound by the definition of “Change of Control” contained in
the Indenture, dated as of December 19, 2001, by and among the Company,
the Guarantors (as defined therein) and U.S. Bank N.A., as trustee.


 


4.                                       Termination in Connection with Change of Control.


 


(a)                                  If
a Change of Control (as defined above) occurs during the Protected Period and
if during Term the Executive’s employment by the Company is terminated by the
Company without cause (as defined below), the Company shall pay the Executive
the payment provided under Section 5 (b) below.


 


(b)                                 For
purposes of this Agreement, “Cause” shall mean any of the following
circumstances that remain uncured (if curable) for ten days after the
Executive’s receipt of notice thereof: (i) the Executive’s consistent refusal to
substantially perform, or willful misconduct in the substantial performance of,
the Executive’s duties that remains uncured for ten days after the Executive’s
receipt of notice thereof; (ii) the Executive’s willful failure to
discharge any of his duties or obligations for the Company; (iii) the
Executive’s indictment for, or plea of guilty or nolo contendere to, any
felony or any crime involving moral turpitude; (iv) the Executive’s breach of
this Agreement any other agreement with the Company or any of the Executive’s
fiduciary duties to the Company; or (v) a material act of dishonesty or breach
of trust on the Executive’s part resulting or intending to result, directly or
indirectly, in material personal or family gain or enrichment at the expense of
the Company.


 


For purposes of this Paragraph, no act, or
failure to act, on the Executive’s part shall be considered “willful” unless
done or omitted to be done, by the Executive not in good faith and without
reasonable belief that the Executive’s action or omission was in the best
interests of the Company.


 


©                                      If
a Change of Control (as defined above) occurs during the Protected Period and
if, during the Term and subsequent to the Company’s having received written
notice to cure 10 days in advance, the Company has failed to pay Executive an
annual base salary at a rate that is no less than the rate in effect
immediately prior to the Change of Control, payable in a manner no less
favorable than the usual payroll practices of the Company in effect immediately
prior to the Change of Control, and if the Executive’s employment was not
terminated for Cause as provided in Subparagraph 4(a) above, the Company shall
pay the executive the payment provided under Section 5 (b) below.


 


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(d)                                 After
a Change of Control, any purported termination of the Executive’s employment
pursuant to Subparagraphs 4(a) or 4(c) shall be communicated by written notice
of termination from one party hereto to the other party hereto in accordance
with Section 13, provided that the Company shall provide the Executive
with a notice of termination For Cause, which shall indicate the specific
termination provision in Section 4(b) relied upon and shall set forth in
reasonable detail the facts and circumstances which provide for a basis for
termination for Cause.


 


(e)                                  Notwithstanding
any other provisions of this Paragraph 4, the Executive shall not be entitled
to any payment under Paragraph 5 (b): (i) Upon a termination of the Executive’s
employment as a result of the Executive’s death or disability; or (ii) If the
Executive receives an “Offer of Comparable Employment.”   For purposes of this Subparagraph, “Offer
of Comparable Employment” shall mean an offer of employment to transfer to a
new employer, which was an affiliate of the Company prior to the occurrence of
a Change of Control, with a title that is substantially similar to the title
held by the Executive immediately prior to such offer and an equivalent annual
rate of base salary to that paid to the Executive immediately prior to such
offer.  An Offer of Comparable
Employment shall exist even if the Executive is required to relocate, provided
that the Executive is offered a relocation package consistent with the
Company’s relocation package in effect immediately prior to the Change of
Control (as defined above).


 


5.                                       Compensation Upon Termination.  In the event that the Executive becomes
entitled to payment pursuant to Section 4, then the Company shall pay the
Executive (or the Executive’s estate, in the event of death following the
Executive’s entitlement to payment under Section 4) the following
payments:


 


(a)                                  Within
ten business days after the date of termination: (i) any earned and unpaid
base salary through the date of termination; (ii) any declared but unpaid bonus
accrued with respect to the fiscal year ending on or preceding the date of
termination; (iii) reimbursement for any unreimbursed business expenses
incurred through the date of termination; and (iv) any accrued but unpaid
vacation pay, payable pursuant to Company policy.


 


(b)                                 Within
ten business days after the date of termination, a lump sum cash payment equal
to the sum of one times the Executive’s annual rate of base salary then in
effect, plus an amount equal to the Executive’s bonus target percentage of 25%
multiplied by the Executive’s annual base salary then in effect and prorated
based upon the number of full months in the current calendar year during which
the Executive was employed.


 


(c)                                  The
amounts hereunder shall be in lieu of any other payments (other than vested
accrued amounts under any tax-qualified plan sponsored by the Company) that the
Executive would otherwise be entitled to upon a termination of employment.


 


6.                                       No Duty to Mitigate/Set-off.  In the event of any termination of the
Executive’s employment, the Executive shall not be required to seek other
employment and the amount of


 


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any payment
provided for in this Agreement shall not be reduced by any compensation earned
by the Executive as the result of employment by another employer or
otherwise.  The amounts payable
hereunder shall not be subject to set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive.


 


7.                                       Confidentiality. 
Except as the Executive deems necessary to be disclosed in connection
with the performance of the Executive’s duties, the Executive shall not, at any
time, use or disclose any confidential or proprietary information or trade
secrets of, or relating to, the Company. 
Notwithstanding the foregoing, nothing herein shall prohibit the
Executive from disclosing any information that: (i) is generally known by the
public; or (ii) the Executive is compelled to disclose pursuant to legal
process or by a governmental agency, but shall give the Company prompt
notice thereof (except to the extent legally prohibited).  In addition, the Executive agrees to keep
the terms and the existence of this Agreement completely confidential and shall
not disclose any information concerning the existence or terms of this
Agreement or provide a copy of this Agreement to anyone, except the United
State Internal Revenue Service or any analogous state agency, his attorney, his
accountant or as required by law.  The
Executive agrees that if he violates any of the terms of this Paragraph, in addition
to any remedy that the Company may have in law or equity, the Executive, if the
Company so elects, shall be liable to the Company for any and all sums of money
paid to the Executive.  The obligations
of this Paragraph shall survive the termination of this Agreement.


 


8.                                       Release Required.  Any amount payable pursuant to
Section 5(b) of this Agreement shall only be payable if the Executive
delivers to the Company (and does not revoke) a release of all claims of any
kind whatsoever that the Executive has or may have against the Company (and its
affiliates) in such form as reasonably required by the Company.


 


9.                                       No Assignment.  This Agreement shall not be assignable by
the Executive.  This Agreement shall be
assignable by the Company to an acquirer of all or substantially all of the
assets of the Company, or to any entity that is owned, directly or indirectly,
in whole or in part, by the Company or its parent or by any successor to the
Company.  Upon such assignment, all
references to the Company herein shall be to the assignee entity or acquirer,
as the case may be.  This Agreement
shall inure to the benefit and be binding upon the personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, legatees and permitted assignees of the parties hereto.


 


10.                                 Miscellaneous.  No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and an authorized officer of the
Company.  No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.  This Agreement constitutes the
entire Agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all existing agreements between them concerning such
subject matter.  This Agreement is not
intended to be duplicative of other benefits the Executive is entitled to
receive under any other plan, program or arrangement in which the Executive
participates and to the extent that receipt of payments or benefits under this
Agreement would result in duplicative payments or benefits of the same nature (e.g., severance based on a termination of
employment), the Executive shall receive payments or benefits under


 


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this Agreement
or such other plan, program or arrangement, whichever provides the Executive
with the greatest payments or benefits. 
If any payments made to the Executive by the Company are related to an
actual or potential liability under the Worker Adjustment and Retraining
Notification Act (WARN) or similar law, such amounts shall reduce the
Executive’s payments under this Agreement. 
For the avoidance of doubt, the Executive is not entitled to any
payments under this Agreement as a result of any termination of employment that
occurs at any time prior to a Change of Control.


 


11.                                 Counterparts. This Agreement may be
executed in several counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same instrument.


 


12.                                 Notices. Any notice or other
communication required or permitted hereunder shall be in writing and shall be
delivered personally, or sent by registered mail, postage prepaid as follows:


 


If to the
Company, to:


 


40 Fountain
Plaza, Buffalo, New York  14202  ATTN: 
Eileen Morgan


 


If to the
Executive, to the Executive’s last shown address on the books of the Company.


 


Any such notice
shall be deemed given when so delivered personally, or, if mailed, five days
after the date of deposit in the United States mail.  Any party may by notice given in accordance with this
Section to the other parties, designate another address or person for
receipt of notices hereunder.


 


13.                                 Separability.  If any provisions of this Agreement shall be declared to be
invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.


 


14.                                 Withholding Taxes.  The Company may withhold from all payments
due hereunder such federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.


 


15.                                 Governing Law.  This Agreement shall be construed,
interpreted, and governed in accordance with the laws of the State of Delaware,
without reference to rules relating to conflicts of law.


 


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IN
WITNESS WHEREOF, the Company has caused this Agreement to be
duly executed and the Executive has hereunto set the Executive’s hand as of the
date first set forth above.


 


 


	
   

  	
  WHEELING ISLAND GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald A. Sultemeier

  	
   

  
	
   

  	
   

  	
  Name:
  Ronald A. Sultemeier

  	
   

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Jim Rafferty

  
	
   

  	
   

  
	
   

  	
  /s/ Jim Rafferty

  	
   

  
					



 


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