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 ###-##-####, 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 


 


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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 


 


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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 


 


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its successors
or assigns) as such business is now constituted.  This restriction shall only apply to those
gaming businesses or entities which have offices, sites and/or facilities
within one hundred fifty (150) miles of any current office, site and/or
facility owned or leased by MTR (or its successors or assigns).  For purposes of this provision, gaming
business shall mean slot machines and/or table games.  Should MTR (or its successors or assigns)
cease to conduct gaming business at a particular site or facility, then the one
hundred fifty (150) mile geographic limitation shall not apply to such site or
facility.  This paragraph 8 (and all
provisions regarding enforcement of such) shall remain in full effect for the
full thirty (30) month Term even in the event the Agreement is terminated
earlier by MTR for any reason as provided for in paragraph 2, provided that MTR
makes full and timely payment of its obligations, if any, hereunder.  Consultant and MTR are of the belief that the
period of time and the area herein specified are reasonable in view of the
nature of the business in which MTR is engaged and proposes to engage, the
state of its business development, and Consultant’s knowledge of this business.


 


9.             Non-Solicitation
Provision.  During the Term of this
Agreement, Consultant shall not, directly or indirectly, hire, solicit, or
encourage any employee to leave MTR’s employment. Further, Consultant shall not
interfere with MTR’s relationship or proposed relationship with, any employee,
consultant or contractor of MTR.  This
paragraph 9 (and all provisions regarding enforcement of such) shall remain in
full effect for the full thirty (30) month Term even in the event the Agreement
is terminated earlier by MTR for any reason as provided for in paragraph 2, and
full and timely payment made if required in paragraph 2 of this Agreement.


 


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10.           Conflicts
of Interest.  Consultant represents
that he is free to enter into this Agreement, and that this engagement does not
violate the terms of any agreement between Consultant and any third party.  Further, in rendering his duties, Consultant
shall not utilize any invention, discovery, development, improvement,
innovation or trade secret in which he does not have a proprietary interest.


 


11.           Right
to Injunction.  The parties hereto
acknowledge and agree that the services to be rendered by Consultant under this
Agreement and the rights and privileges granted to Consultant under the
Agreement are of a special, unique, unusual and extraordinary character which
gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated by damages in any action at law, and the breach by
Consultant of any of the provisions of this Agreement will cause MTR
irreparable injury and damage.  The
parties expressly agree that MTR shall be entitled to injunctive and other
equitable relief in the event of, or to prevent, a breach of paragraphs 7, 8 or
9 of this Agreement by Consultant. 
Resort to such equitable relief, however, shall not be construed to be a
waiver of any other rights or remedies that MTR may have for damages or
otherwise.  The various rights and
remedies of MTR under this Agreement or otherwise shall be construed to be
cumulative, and no one of them shall be exclusive of any other right or remedy
allowed by law.


 


12.           Litigation.  The parties irrevocably and unconditionally (i) agree
that any suit, action or other legal proceeding arising out of this Agreement,
including, without limitation, any action commenced by MTR for preliminary and
permanent injunctive relief or other equitable relief, shall be brought in the
State of West Virginia; (ii) consent to the jurisdiction of any such court
in any such suit, action or proceeding; (iii) waive any 


 


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objection that
Consultant may have to the laying of venue of any such suit, action or proceeding
in any such court; (iv) agree that either party shall be entitled to an
award of its reasonable expenses, including attorneys’ fees and costs, on any
successful claim or defense brought pursuant to this Agreement; and (v) agree
that if a court finds that Consultant has violated the provisions of paragraphs
8 and/or 9, Consultant hereby consents to the entry of an order enjoining such
violation for an additional period of time equal to the period of such
violation by Consultant from the date of such order.  Consultant also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers upon him at the address specified in Schedule A by registered mail
and to the entry of an injunctive decree without the need on the part of MTR to
post a bond or provide other security or prove damages or irreparable injury.


 


13.           Miscellaneous.


 


a.             This
Agreement supersedes all prior agreements and sets forth the entire
understanding among the parties hereto with respect to the subject matter
hereof (Consulting Agreement) and cannot be changed, modified, extended or
terminated except upon written amendment executed by both parties.  No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver, unless otherwise expressly therein provided.


 


b.             This
Agreement is personal in its nature, and Consultant shall not, without the
written consent of MTR, sign or transfer this Agreement, or any of the rights
or obligations hereunder, to any other person or entity.  MTR may assign all rights and liabilities
under this Agreement, without the consent of Consultant, to a subsidiary, an 


 


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affiliate or a
successor of all or a substantial part of its business and assets.  Subject to the foregoing, this Agreement will
inure to the benefit of and be binding upon each of the assigns and successors
of the respective parties.


 


c.             If
any term or provision of this Agreement or the application thereof to any
circumstances shall, to any extent and for any reason, be held invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to circumstances other than those to which it is held to be
invalid or unenforceable, shall not be affected thereby and shall be construed
as if such invalid or unenforceable term or provision had never been contained
herein, and each remaining term and provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.  However, the parties specifically consent to
and direct any court finding any clause or any provision of this Agreement to
be unenforceable, in whole or in part, to narrow the scope of such clause or
other provision in order to enforce it to the broadest extent permissible.


 


d.             This
Agreement shall be governed by and construed under and pursuant to the laws of
the State of West Virginia.


 


e.             All
notice and other communications hereunder shall be in writing and shall be
given by delivery to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed to the parties as specified in
Schedule A.


 


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The parties
have signed this Agreement on the dates indicated below.


 


	
   

  	
   

  	
   

  	
  MTR
  GAMING GROUP, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
        /s/
  

  	
   

  	
        /s/
  Donald J. Duffy

  
	
   

  	
  Witness

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
  Date:

  	
  10/15/08

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CONSULTANT

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
        \s\
  Mary L. Pietranton

  	
   

  	
        \s\
  Edson R. Arneault

  
	
   

  	
  Witness

  	
   

  	
  Edson
  R. Arneault

  
	
   

  	
   

  	
   

  	
  Date:

  	
          10/15/08

  



 


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CONSULTING AGREEMENT


 


SCHEDULE A


 


Nature
and Type of Services:


 


Consultant
shall provide MTR with the following services: 
(a) Marketing: consult with CEO, as requested, on marketing issues;
implement, develop and support new marketing program (joint marketing approach
in MTR’s core area) and develop marketing materials, such as television and
radio commercials, which may include the use of Consultant’s image, subject to
his approval, which will not be unreasonably withheld, as a continuation of MTR’s
brand development; (b) Government Relations advisor; (c) Banking
Relationship: assist in coordinating and negotiating new financing to be
obtained by 2008 (unless otherwise directed by MTR), including, but not limited
to, road shows and investor presentations; and (d) Transition/Succession:
assist, at the request of the Board and/or CEO, with any matters to ensure a
smooth transition/succession of Consultant’s former duties and
responsibilities.  Additionally,
Consultant agrees to provide periodic status reports throughout the Term of
this Agreement, and agrees to produce a final report and provide all relevant
documentation at the end of the Term of this Agreement.


 


Compensation
and Fees:


 


MTR
agrees to pay a consulting fee of $512,000.00 per year (commencing upon the
commencement date of the Term as set forth in Section 2 of the Consulting
Agreement) to Consultant for the term of this Agreement, to be paid pro rata on
a monthly basis for services rendered, specified in “Nature and Type of
Services” noted above.  MTR shall send
Consultant payment to the address listed below each month.


 


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Expenses:


 


MTR
agrees to reimburse Consultant for reasonable expenses incurred while rendering
services specified in “Nature and Type of Services” noted above as follows:


 


1.     Pre-approved
or budgeted travel expenses incurred.


2.     Other
business expenses as appropriate. 
Consultant shall seek advance written approval from the CEO of any
individual expense greater than $2,000.00.


 


Notice
to Parties:


 


All notices
and other communications shall be in writing and delivered as indicated below:


 


	
  If
  to Consultant:

  	
  If
  to MTR Gaming Group, Inc.

  
	
   

  	
   

  
	
  Edson
  R. Arneault

  	
  Route
  2 South

  
	
  423
  S. Atlantic Avenue

  	
  Chester,
  WV 26034

  
	
  Dune
  Point

  	
  Attn:
  President and CEO

  
	
  New
  Smyrna Beach, FL 32169

  	
   

  
	
   

  	
   

  
	
  With
  a copy to:

  	
   

  
	
   

  	
   

  
	
  Robert
  Fitzsimmons, Esquire

  	
   

  
	
  Fitzsimmons
  Law offices

  	
   

  
	
  1609
  Warwood Avenue

  	
   

  
	
  Wheeling,
  WV 26003-7110

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CONSULTANT

  	
  MTR
  GAMING GROUP, INC.

  
	
   

  
	
   

  
	
  By:

  	
    \s\
  Edson R. Arneault

  	
   

  	
  By:

  	
    /s/
  Donald J. Duffy

  
	
  Date:

  	
    10/15/08

  	
   

  	
  Title:

  	
    Director

  
	
   

  	
   

  	
   

  	
  Date:

  	
    10/15/08

  



 


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