EXHIBIT 4.6
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 1st day of October, 1994, by and between
Mountaineer Park, Inc. (the "Company"), Winners Entertainment, Inc., and Xxxx
Xxxxxxx (the "Employee").
WHEREAS, The Company employs the Employee as its Director of Racing at
Mountaineer Park, Inc.
WHEREAS, The parties wish to formalize their understandings and
agreements concerning the Employee's employment;
NOW THEREFORE, The parties hereto, in consideration of the mutual
promises and covenants herein contained and meaning to be bound, do hereby
agree as follows:
1. EMPLOYMENT. The Company agrees to employ the Employee as its
Director of Racing subject to the terms and conditions of this Agreement.
2. TERM. The term of the Agreement shall begin on October 1, 1994 and
shall end on September 30, 1997 subject to extension or termination as
provided in this Agreement.
3. EXTENT OF SERVICES. The Employee shall devote his best efforts to
promote and protect the business of Racing on behalf of the Company. The
Employee shall be present at the Company's Racetrack and Resort at all times
during which live racing is scheduled to take place, and as deemed necessary
by Employee and the Management Committee, consisting of Xxxxxxx X. Xxxx and
Xxx Xxxxxxxx, to meet the description and obligations of his employment
position and, agrees to devote a minimum of forty (40) hours per week on
behalf of the Company's business affairs unless Employee is on vacation or is
absent with Company's consent. Nothing in the Agreement, however, shall
prohibit the Employee from investing in the securities of other business
organizations provided that the investment does not require the employee to
perform services, other than any business that is disclosed to Management
before effective Employment date.
4. DUTIES. As Director of Racing, the Employee shall assist in
managing and maintaining the entire racing program, including the following
specific duties;
(a) Assist in Negotiation of Contracts -- The Employee, in
consultation with other management as directed by the Management Committee,
shall assist in negotiating contracts with the Horsemen's Benevolent and
Protective Association, contracts with simulcasting tracks, the Union
Contract with mutual manager, contracts for liability, health and jockey
insurance, and contracts with third-party vendors of goods and services
(e.g., Autotote, ADP, ambulance, laundry). The Employee shall not, however,
purport to bind the Company in any contract unless the Management Committee
has approved the terms thereof.
(b) Racing - In consultation with the Management Committee, the
Employee shall assist in setting racing and simulcast schedules, purses and
percentages, arrange for dedicated
lines and closed circuit television operation for simulcasting, and work with
the marketing, advertising, and promotional staffs to enhance the racing
program.
(c) Security - In consultation with local authorities, the
Employee shall set and maintain rules and regulations concerning security at
the racetrack, including the policies concerning the handling of cash and the
movement of cash within and out of the facility.
(d) Purchasing - The Employee shall assist in establishing budgets
for racing operations, subject to the approval of the Management Committee to
the terms thereof.
(e) Financial - The Employee shall be responsible for the
racetrack's income and expenses, recommend changes to correct problems or
improve profits, recommend to the Management Committee payroll increases or
decreases, and coordinate the maintenance of accounting records with the
Controller.
(f) Policy - The Employee shall help set policy with regard to
insurance, vacation, and sick leave for employees, check cashing or credit
for customers, and contributions to community organizations, subject to the
Management Committee's approval.
(g) Media - As appropriate, and only after consultation with the
Management Committee, the Employee will provide information to the news media.
(h) Verification and approval of payroll items in all areas of
complex.
(i) Operation of Off-Track Betting Programs.
(j) Any and all other duties determined to be within the purview
of the position of Director of Racing by the Management Committee.
5. BASIC COMPENSATION. As basic compensation for his services under
this Agreement, the Company shall pay to the Employee the annual salary of
$62,000 starting October 1, 1994, payable in equal monthly installments plus
Health and Life Insurance (Company Plan).
6. INCENTIVE COMPENSATION. In addition to his basic compensation, the
Employee shall also receive options to purchase 10,000 shares of the common
stock of the Mountaineer Park parent, Winners Entertainment, Inc., for the
price of $4.875 per share, per year of each of the three years, 1995, 1996,
and 1997. Said options for one year shall accumulate on a monthly basis and
shall be considered earned out at the end of year one. After year one, and
thereafter said options shall accumulate and be earned out on a monthly basis.
7. WORKING FACILITIES. The Company shall provide the Employee 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.
8. EXPENSES. The Employee may incur reasonable expenses for the
promotion of
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the Company's business, including travel, entertainment, and similar items.
The Company will reimburse the Employee for such expenses upon presentation
of an itemized account of such expenses supported by receipts or other
evidence of payment. The Employee shall receive a car allowance in the
amount of three hundred dollars ($300.00) per month.
9. DISCLOSURE OF INFORMATION. The Employee acknowledges that
information concerning the Company's business is a confidential business
asset of the Company and agrees that he will not disclose any of such
information to any person who is not authorized by the Company to receive the
information and then only for a proper business purpose. Notwithstanding the
foregoing, the Employee shall not be prohibited from disclosing any
information that shall be required by law or any rule or regulation of any
federal or state authority. Further, in the event of termination of
Employee's employment under this Agreement, whether pursuant to Section 12,
13, or 14, Employee agrees not to divulge to the news media, directly or
indirectly, either the fact of his termination or the circumstances attending
such termination.
10. EMPLOYEE BENEFITS. The Employee shall be entitled to participate
in any and all plans maintained by the Company for the benefit of its
employees, including but not limited to pension and profit sharing plans,
health insurance plans, group life insurance and medical reimbursement plans.
The Company shall pay the premium for the Employee's health insurance.
11. TERMINATION WITHOUT CAUSE.
(a) By the Company. The employment of the Employee may be
terminated without cause by the Company upon thirty (30) days written notice
to the Employee. In that event, the Company shall pay the Employee his
compensation to the date of termination and, in addition, shall pay to the
Employee for the remainder of his contract an amount equal to his annual
compensation whichever is greater, which amount shall be paid not later than
thirty (30) days following the date of termination, and in addition, Employee
shall be entitled to vest all of the options described in Section 6 of this
Agreement in accordance with the terms of the Incentive tock Option Plan
described therein.
(b) By the Employee. The Employee may terminate his employment
under this Agreement by giving thirty (30) days written notice to the
Company. In that event, the Company shall pay the Employee his compensation
to the date of termination, and in addition, the Employee shall be entitled
to vest all options earned by him through the date of termination, and not
thereafter.
12. TERMINATION WITH CAUSE. The employment of the Employee may be
terminated with cause by the Company immediately upon the Employee's material
failure to comply with the terms of Section 3, 4, or 14 of this Agreement.
In that event, the Company shall pay the employee his compensation to the
date of termination.
13. TERMINATION UPON SALE OF BUSINESS. There shall be no termination
of this contract as a result of the Company's sale or merger. The Company's
new owners or successor shall be responsible for the terms of this Agreement.
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14. LICENSING. The parties to this Agreement recognize that the
business of the Company is highly regulated and requires licensing of the
Company and the Employee by various State governmental authorities.
Accordingly, the Employee agrees that he shall not engage in any conduct that
could jeopardize his license from the West Virginia Racing Commission or the
Company's status as licensee of any State governmental authority.
15. RESTRICTIVE COVENANT. For a period of two years following the
termination of this Agreement for any reason other than termination under the
provisions of Section 13, the Employee shall not, within fifty (50) miles
from Mountaineer Racetrack and Resort, own, operate, manage, control,
participate in, or otherwise engage in any business activity which competes
with any business operated by the Company at such facility, or accept
employment with any person or entity that regularly conducts business with
the Company. Notwithstanding the provisions of the foregoing sentence, the
Employee shall not be prohibited from owning securities in any business
enterprise that conducts such a competing business if the securities of such
business enterprise are listed on a national securities exchange or quoted on
NASDAQ or another registered interdealer stock quotation system.
16. ARBITRATION. Any disputes arising under the terms of this
Agreement shall first be taken to arbitration between the parties in Xxxxxxx
County, West Virginia in a proceeding held under the rules of the American
Arbitration Association. In such proceeding, each party shall chose one
arbitrator and the two so chosen shall chose a third arbitrator. The vote of
two of the arbitrators shall be sufficient to determine an award.
17. NOTICES. Any notices required or permitted by this Agreement
shall be deemed to have been given when delivered personally, mailed, first
class postage paid, or deposited with a recognized commercial delivery
service, all charges paid, with proper instructions to deliver to the party
to which the notice is addressed, at the address such party shall provide for
the giving of notice in accordance with the provisions of this Section 19.
18. ASSIGNMENT. The Employee acknowledges that the services to be
performed by him are unique and personal to him and that he may not assign
his duties under this Agreement. The Company's rights under this Agreement
shall inure to the benefit of its successors and assigns.
19. ENTIRE AGREEMENT AMENDMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
all prior understandings, representations promises, or statements are merged
into this Agreement. This Agreement may be amended only by another writing
executed by both parties.
20. GOVERNING LAW. This Agreement has been executed in, is to be
performed in, and shall be governed by the laws of the State of West Virginia.
21. HEADINGS AND PREAMBLES. The heading and preambles of this
Agreement are for convenience only and shall not be used to interpret or
construe the provisions of this Agreement.
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22. SEVERABILITY. In the event that one or more provisions of this
Agreement are found to be unenforceable, illegal or contrary to public
policy, the remainder of this Agreement shall continue in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
WINNERS ENTERTAINMENT, INC. MOUNTAINEER PARK, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxxx
Xx. Xxxxxxx X. Xxxx, President Xx. Xxxxx X. Xxxxxxxx, President
Date: 9/29/94 Date: 9/27/94
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By: /s/ Xxxx Xxxxxxx
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Date: September 23, 1994
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