<PAGE>
As filed with the Securities and Exchange Commission On August 25, 1998
File No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MTR GAMING GROUP, INC.
----------------------
(exact name of registrant as specified in its charter)
DELAWARE 84-1103135
-------- ----------
(State or other jurisdiction (IRS Employer Identification Number)
of incorporation)
STATE ROUTE 2 SOUTH, P.O. BOX 358, CHESTER, WEST VIRGINIA 26034
----------------------------------------------------------------
(Address of principal executive offices)
Agreements dated as of May 31, 1994, as amended,
October 1, 1994, May 30, 1995, October 11, 1995, October 8, 1996,
January 27, 1998, February 18, 1998 and July 29, 1998
1992 Employee Stock Option Plan
1996 Stock Option Plan
1996 Amended Stock Option Plan
1998 Stock Incentive Plan
(Full title of plans)
EDSON R. ARNEAULT
STATE ROUTE 2 SOUTH, P.O. BOX 358, CHESTER, WEST VIRGINIA 26036
(Name and address of agent of service)
(304) 387-5712
(Telephone number, including area code, or agent for service)
Copies of Communication to:
ROBERT L. RUBEN, ESQ.
EDWARD A. FRIEDMAN, ESQ.
RUBEN & ARONSON, LLP
3299 K STREET, N.W., SUITE 403
WASHINGTON, D.C. 20007
(202) 965-3600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock
$.00001 par value 950,000 $ 2.41 (1) $ 2,289,500.00 $ 675.40
- -----------------------------------------------------------------------------------------------------------
444,632 $ 1.2188 (1) $ 541,917.48 $ 159.87
-------------------------------------------------------------------------------
860,000 $ 2.15625(1) $ 1,854,375.00 $ 547.04
-------------------------------------------------------------------------------
750,000 $ 1.3438 (1) $ 1,007,850.00 $ 297.32
-------------------------------------------------------------------------------
640,000 $ 0.5625 (1) $ 360,000.00 $ 106.20
-------------------------------------------------------------------------------
397,334 $ 1.06 (1) $ 421,174.04 $ 124.25
-------------------------------------------------------------------------------
183,333 $ 0.50 (1) $ 91,666.50 $ 27.04
-------------------------------------------------------------------------------
250,000 $ 2.39 (2) $ 597,500.00 $ 176.26
-------------------------------------------------------------------------------
50,000 $ 2.375 (1) $ 118,750.00 $ 35.03
-------------------------------------------------------------------------------
45,000 $ 2.00 (1) $ 90,000.00 $ 26.55
-------------------------------------------------------------------------------
30,000 $ 1.4375 (1) $ 43,125.00 $ 12.72
- -----------------------------------------------------------------------------------------------------------
Total 4,600,299 $ 7,415,858.02 $ 2,187.68
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Based, pursuant to Rule 457(h), on the exercise price of the related
option. Represents shares issuable upon the exercise of options granted
by the Company prior to the date hereof.
(2) Based, pursuant to Rule 457(c), on $2.39 per share, which was the average
of the high and low prices of the Registrant's Common Stock on the
National Association of Securities Dealers Automated Quotation System on
August 21, 1998. Includes 250,000 shares that may be issued by the
Company upon the exercise of Options that may be granted by the Company
in the future under the 1992 Employee Stock Option Plan.
<PAGE>
MTR GAMING GROUP, INC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with the
Securities and Exchange Commission (the "Commission") by MTR Gaming Group,
Inc. (the "Company" or the "Registrant"):
(a) The Registrant's Annual Report on Form 10-K (File No. 0-20508) for
the fiscal year ended December 31, 1997, as amended on Form 10-K/A filed on
May 22, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998
(d) The Company's Current Report on Form 8-K (filed on February 20,
1998);
(e) The Company's Current Report on Form 8-K (filed on May 20, 1998) as
amended on the Company's Current report on Form 8-K/A (filed on July 15,
1998); and
(f) The description of the Common Stock of the Company, par value
$.00001 per share ("Common Stock") contained in the Company's Registration
Statement on Form 8-A dated August 6, 1992.
All documents filed with the Commission by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
A member of the law firm of Ruben & Aronson, LLP, which is counsel to
the Company, owns 38,228 shares of Common Stock and options to acquire
beneficial ownership of 500,000 shares of Common Stock (all of which shares
may be acquired within 60 days).
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers an employees of corporations
under certain conditions and subject to certain limitations. In addition,
Section 102(b)(7) of the General Corporation Law of the State of Delaware
permits a corporation to provide, in its articles of incorporation, that
directors shall not have liability to the corporation or its stockholders for
monetary damages for breach of fiduciary duty, subject to certain prescribed
exceptions.
In addition, the indemnification provided by Section 145 shall not be
deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any By-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. The
Certificate and By-laws of the Company are consistent with Section 145. The
Certificate provides that no director shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except: (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts and omissions
not in good faith or which involve intentional misconduct or knowing
violation of the law; (iii) for acts specified in Title 8, Section 174 of the
DGCL, or (iv) for which the director derived an improper personal benefit.
In addition to the Certificate, the Company's By-laws provide
indemnification (the "Indemnity Provisions") for any person who is or was a
party to any threatened, pending or completed action, suit, or proceeding
whether civil, criminal, administrative, arbitrative, investigative procedure
by reason of the fact that he or she was a director, officer, employee,
fiduciary or agent of the Company or served in such capacity with another
entity at the Company's request (such persons are defined as an "Indemnified
Party" or "Indemnified Parties"). With respect to third party actions, the
Indemnity Provisions represent the Company's commitment to indemnify based on
such persons incurring expenses (including legal fees) judgments, fines,
excise taxes, and amounts paid in settlement based on civil or criminal
matters. In the case of a civil matter, the Indemnified Parties must have
acted in good faith and in a manner reasonably believed by that person to be
in or not opposed to the best interests of the Company. With respect to a
criminal matter, the person must have had no reasonable cause to believe that
the conduct was unlawful.
With respect to derivative actions, Indemnified Parties are entitled to
indemnification for any and all expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection with the settlement or
defense of such actions. The Indemnified Party must show that he or she
acted in good faith and a manner reasonably believed by that person to be in
or not opposed to the best interests of the Company, except that no
indemnification shall be available if such person has been adjudged liable
for negligence or misconduct in performing his or her duties to the Company,
unless the court in which such action or suit was brought has determined upon
application that, despite the adjudication of liability but in view of all of
the circumstances of the case, the Indemnified Party is fairly and reasonably
entitled to indemnification for the expenses the court deems proper.
Nonetheless, if the Indemnified Party is successful on the merits or
otherwise,
2
<PAGE>
he or she need not show that the applicable standard of conduct was met. If
not successful on the merits, any indemnification may only be made if the
Indemnified Party applies to the Company for indemnification and (i) a
majority vote of a quorum of the Board, or (ii) if a quorum is not available
or even if obtainable, or if a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (iii) by vote of the
stockholders of the Company.
With respect to both derivative actions and third party actions, the
Indemnity Provisions also provide for the advancement of expenses, including
actual and reasonable attorneys' fees, incurred in defending or investigating
any action, suit, proceeding or claim, subject to a written affirmation by
the Indemnified Party or person requesting an advance for such Indemnified
Party that he or she has met the applicable standard of conduct and that he
or she will repay such advance if it is ultimately determined that he or she
did not meet the applicable standard of conduct.
Notwithstanding the foregoing, the Company has discretion to impose as
conditions to any of the Indemnification Provisions, such requirements as may
appear appropriate in the specific case including but not limited to: (a)
that any counsel representing the person be mutually acceptable to the
Company and the Indemnified Party, (b) that the Company has the right to
assume control of the defense of such Indemnified Party, and (c) that the
Company shall be subrogated to the extent of any payments made by way of
indemnification to all of such Indemnified Party's right of recovery, and do
everything necessary to assure such rights of subrogation to the Company.
The rights of Indemnified Parties under the Indemnity Provisions are not
exclusive of any other rights Indemnified Parties may have under the
Certificate, any agreement, vote of stockholders, vote of disinterested
directors, any liability insurance policies or otherwise. The Company
currently maintains a Directors and Officers liability insurance policy with
coverage of $10,000,000. Although the Company believes the policy and its
coverage limits to be adequate, the policy may not provide coverage in all
circumstances in which the Company's directors and officers are entitled to
indemnification and may not cover the Company's total liability to its
directors and officers even in cases where coverage is provided.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to Indemnified Parties pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such persons in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel, the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
3
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
4.1 Non-Qualified Stock Option Agreement by and between the Company
and Edson R. Arneault dated as of July 29, 1998.(1)
4.2 Non-Qualified Stock Option Agreement by and between the Company
and Thomas K. Russell dated as of July 29, 1998.(1)
4.3 Non-Qualified Stock Option Agreement by and between the Company
and Mark Russell dated as of July 29, 1998.(1)
4.4 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1992 Employee Stock Option Plan.(1)
4.5 Agreement by and between the Company, William Blair and Bonnie
Blair dated as of May 31, 1994 and First Amendment thereto dated
January 12, 1995.(1)
4.6 Employment Agreement by and between the Company and Paul Anthony
dated as of October 1, 1994.(1)
4.7 Agreement by and between the Company and Robin Reynolds dated as
of May 30, 1995.(1)
4.8 Non-Qualified Stock Option Agreement by and between the Company
and Thomas K. Russell dated as of July 29, 1998.(1)
4.9 Non-Qualified Stock Option Agreement by and between the Company
and Donald E. Saunders dated as of July 29, 1998.(1)
4.10 Separation Agreement by and between the Company and Barbara A.
Sigler dated as of October 11, 1995.(1)
4.11 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1996 Stock Option Plan.(1)
4
<PAGE>
4.12 Severance Agreement by and between the Company and Julie B.
Waring dated as of October 8, 1996.(1)
4.13 Non-Qualified Stock Option Agreement by and between the Company
and Robert A. Blatt dated as of July 29, 1998.(1)
4.14 Non-Qualified Stock Option Agreement by and between the Company
and Robert L. Ruben dated as of July 29, 1998.(1)
4.15 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1996 Amended Stock Option Plan.(1)
4.16 Non-Qualified Stock Option Agreement by and between the Company
and Robert A. Blatt dated as of July 29, 1998.(1)
4.17 Non-Qualified Stock Option Agreement by and between the Company
and Robert L. Ruben dated as of July 29, 1998.(1)
4.18 Non-Qualified Stock Option Agreement by and between the Company
and Nelson Robinson dated as of July 29, 1998.(1)
4.19 Agreement by and between the Company and James V. Stanton dated
as of February 18, 1998.(2)
4.20 Agreement by and between the Company and William D. Fugazy, Jr.
dated as of February 18, 1998.(2)
4.21 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1998 Stock Incentive Plan.(1)
4.22 Non-Qualified Stock Option Agreement by and between the Company
and Sherrilyn D. Farkas dated as of July 29, 1998.(1)
4.23 Non-Qualified Stock Option Agreement by and between the Company
and Mary Jo Needham dated as of July 29, 1998.(1)
4.24 Non-Qualified Stock Option Agreement by and between the Company
and Dale Maurer dated as of July 29, 1998.(1)
4.25 Non-Qualified Stock Option Agreement by and between the Company
and Tamara Pettit dated as of July 29, 1998.(1)
5.1 Opinion of Ruben & Aronson, LLP.(1)
- ------------------------
(1) Filed herewith.
(2) Incorporated by reference to the Company's current report on Form 8-K as
filed with the Commission on February 20, 1998.
5
<PAGE>
10.1 1992 Employee Stock Option Plan of the Company.(3)
10.2 1996 Stock Option Plan of the Company.(4)
10.3 1996 Amended Stock Option Plan of the Company.(5)
10.4 1998 Stock Incentive Plan of the Company.(6)
23.1 Consent of Corbin & Wertz, Independent Public Accountants.(1)
23.2 Consent of Ruben & Aronson, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included at page 6)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any Prospectus required by Section 10(a)(3) of the Securities Act of
1933, as amended (the "Securities Act"); (ii) to reflect in the Prospectus
any facts or events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof) which,
individually, or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; and (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in the Registration Statement; provided however, that
clauses (i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those clauses is contained in
periodic reports filed by the Registrant pursuant to Sections 13 or 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating
- -----------------------
(3) Incorporated by reference to the Company's Proxy Statement dated July 16,
1993, as filed with the Commission with respect to its 1993 Annual Meeting.
(4) Incorporated by reference to the Company's Proxy Statement dated
September 17, 1996, as filed with the Commission with respect to its 1996
Annual Meeting.
(5) Incorporated by reference to the Company's Proxy Statement dated
September 1, 1997, as filed with the Commission with respect to its 1997
Annual Meeting.
(6) Incorporated by reference to the Company's Proxy Statement dated July
17, 1998, as filed with the Commission with respect to its 1998 Annual
Meeting.
6
<PAGE>
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be in the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered herein,
and the offering of such securities at the time shall be deemed to be in the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court or appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Chester, State of West Virginia on August 25,
1998.
MTR GAMING GROUP, INC.
By: /s/ EDSON R. ARNEAULT
-------------------------------------
Edson R. Arneault,
CHAIRMAN OF THE BOARD AND PRESIDENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Edson R. Arneault and Robert L. Ruben, or either
or them, jointly and severally, his true and lawful attorneys-in-fact and
agents, with full powers and substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this registration statement, and to file same with all exhibits
thereto, and other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully as to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or their substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/s/ Edson R. Arneault
- -------------------------- Chairman of the Board and August 25, 1998
Edson R. Arneault President, (Principal Executive
Officer Principal Financial and
Accounting Officer)
/s/ Robert A. Blatt
- -------------------------- Director August 25, 1998
Robert A. Blatt
/s/ Robert L. Ruben
- -------------------------- Director August 25, 1998
Robert L. Ruben
/s/ James V. Stanton
- -------------------------- Director August 25, 1998
James V. Stanton
/s/ William D. Fugazy, Jr.
- -------------------------- Director August 25, 1998
William D. Fugazy, Jr.
8
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DOCUMENT
------- --------
4.1 Non-Qualified Stock Option Agreement by and between the Company
and Edson R. Arneault dated as of July 29, 1998.(1)
4.2 Non-Qualified Stock Option Agreement by and between the Company
and Thomas K. Russell dated as of July 29, 1998.(1)
4.3 Non-Qualified Stock Option Agreement by and between the Company
and Mark Russell dated as of July 29, 1998.(1)
4.4 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1992 Employee Stock Option Plan.(1)
4.5 Agreement by and between the Company, William Blair and Bonnie
Blair dated as of May 31, 1994 and First Amendment thereto dated
January 12, 1995.(1)
4.6 Employment Agreement by and between the Company and Paul Anthony
dated as of October 1, 1994.(1)
4.7 Agreement by and between the Company and Robin Reynolds dated as
of May 30, 1995.(1)
4.8 Non-Qualified Stock Option Agreement by and between the Company
and Thomas K. Russell dated as of July 29, 1998.(1)
4.9 Non-Qualified Stock Option Agreement by and between the Company
and Donald E. Saunders dated as of July 29, 1998.(1)
4.10 Separation Agreement by and between the Company and Barbara A.
Sigler dated as of October 11, 1995.(1)
4.11 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1996 Stock Option Plan.(1)
4.12 Severance Agreement by and between the Company and Julie B.
Waring dated as of October 8, 1996.(1)
<PAGE>
4.13 Non-Qualified Stock Option Agreement by and between the Company
and Robert A. Blatt dated as of July 29, 1998.(1)
4.14 Non-Qualified Stock Option Agreement by and between the Company
and Robert L. Ruben dated as of July 29, 1998.(1)
4.15 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1996 Amended Stock Option Plan.(1)
4.16 Non-Qualified Stock Option Agreement by and between the Company
and Robert A. Blatt dated as of July 29, 1998.(1)
4.17 Non-Qualified Stock Option Agreement by and between the Company
and Robert L. Ruben dated as of July 29, 1998.(1)
4.18 Non-Qualified Stock Option Agreement by and between the Company
and Nelson Robinson dated as of July 29, 1998.(1)
4.19 Agreement by and between the Company and James V. Stanton dated
as of February 18, 1998.(2)
4.20 Agreement by and between the Company and William D. Fugazy, Jr.
dated as of February 18, 1998.(2)
4.21 Form of Non-Qualified Stock Option Agreement pursuant to the
Company's 1998 Stock Incentive Plan.(1)
4.22 Non-Qualified Stock Option Agreement by and between the Company
and Sherrilyn D. Farkas dated as of July 29, 1998.(1)
4.23 Non-Qualified Stock Option Agreement by and between the Company
and Mary Jo Needham dated as of July 29, 1998.(1)
4.24 Non-Qualified Stock Option Agreement by and between the Company
and Dale Maurer dated as of July 29, 1998.(1)
4.25 Non-Qualified Stock Option Agreement by and between the Company
and Tamara Pettit dated as of July 29, 1998.(1)
5.1 Opinion of Ruben & Aronson, LLP.(1)
- ------------------------
(1) Filed herewith.
(2) Incorporated by reference to the Company's current report on Form 8-K as
filed with the Commission on February 20, 1998.
2
<PAGE>
10.1 1992 Employee Stock Option Plan of the Company.(3)
10.2 1996 Stock Option Plan of the Company.(4)
10.3 1996 Amended Stock Option Plan of the Company.(5)
10.4 1998 Stock Incentive Plan of the Company.(6)
23.1 Consent of Corbin & Wertz, Independent Public Accountants.(1)
23.2 Consent of Ruben & Aronson, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included at page 6)
- ----------------------------------------------------------------------------
(3) Incorporated by reference to the Company's Proxy Statement dated July
16, 1993, as filed with the Commission with respect to its 1993 Annual
Meeting.
(4) Incorporated by reference to the Company's Proxy Statement dated
September 17, 1996, as filed with the Commission with respect to its
1996 Annual Meeting.
(5) Incorporated by reference to the Company's Proxy Statement dated
September 1, 1997, as filed with the Commission with respect to its 1997
Annual Meeting.
(6) Incorporated by reference to the Company's Proxy Statement dated July 17,
1998, as filed with the Commission with respect to its 1998 Annual Meeting.
3
<PAGE>
EXHIBIT 4.1
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Edson R. Arneault (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in furtherance of the Company's intention to
provide an incentive to motivate the performance of certain of its employees,
the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on May 28, 1992 of an option to purchase an
aggregate of 141,334 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $1.06 per share,
being equal to 85% of the fair market value of such shares of Common Stock
on the date of such grant (the "Option"). This Option is not intended to
constitute an "incentive stock option" (within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on August 25, 1999,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option. Notwithstanding
anything to the contrary in this Agreement, this Option may only be exercised
if the Optionee is employed by the Company at the time of such exercise.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding
the foregoing, this Option shall not be exercisable by the Optionee unless:
(a) a Registration Statement under the Securities Act of 1933, as amended
(the "Securities Act") with respect to the shares of Common Stock to be
received upon the exercise of the Option shall be effective and current at
the time of exercise; or (b) there is an exemption from the registration
requirements under the Securities Act for the issuance of the shares of
Common Stock upon exercise. The Optionee hereby represents and warrants to
the Company, that: (i) the shares of Common Stock to be
<PAGE>
issued upon the exercise of this Option are being acquired by the Optionee
for the Optionee's own account, for investment only and not with a view to
the resale or distribution thereof; and (ii) any subsequent resale or
distribution of shares of Common Stock by the Optionee will be made only
pursuant to (x) a Registration Statement under the Securities Act which is
effective and current with respect to the shares of Common Stock being sold,
or (y) a specific exemption from the registration requirements of the
Securities Act, but in claiming such exemption, the Optionee shall, prior to
any offer of sale or sale of such shares of Common Stock, provide the Company
with a favorable written opinion of counsel satisfactory to the Company, in
form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this Option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this Option under the
Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of any agreement between the Company and the Optionee with respect to such
shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
2
<PAGE>
9. TRANSFERABILITY. The Option is not transferable otherwise than
by will or the laws of descent and distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, any successor or assign of the
Company and to any Legal Representative of the Optionee.
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------------
Name: Edson R. Arneault
-----------------------------------
Its: President
-----------------------------------
OPTIONEE
By: /s/ Edson R. Arneault
-----------------------------------
Edson R. Arneault
(Name of Optionee)
-----------------------------------
-----------------------------------
(Address)
-----------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.2
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Thomas K. Russell (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in furtherance of the Company's intention to
provide an incentive to motivate the performance of certain of its employees,
the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on May 28, 1992 of an option to purchase an
aggregate of 79,500 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $1.06 per share,
being equal to 85% of the fair market value of such shares of Common Stock
on the date of such grant (the "Option"). This Option is not intended to
constitute an "incentive stock option" (within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on August 25, 1999,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option. Notwithstanding
anything to the contrary in this Agreement, this Option may only be exercised
if the Optionee is employed by the Company at the time of such exercise.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a) a
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements under
the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be
<PAGE>
issued upon the exercise of this Option are being acquired by the Optionee
for the Optionee's own account, for investment only and not with a view to
the resale or distribution thereof; and (ii) any subsequent resale or
distribution of shares of Common Stock by the Optionee will be made only
pursuant to (x) a Registration Statement under the Securities Act which is
effective and current with respect to the shares of Common Stock being sold,
or (y) a specific exemption from the registration requirements of the
Securities Act, but in claiming such exemption, the Optionee shall, prior to
any offer of sale or sale of such shares of Common Stock, provide the Company
with a favorable written opinion of counsel satisfactory to the Company, in
form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this Option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this Option under the
Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer upon
the Optionee any right to continue in the employ of the Company, any of its
Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of any agreement between the Company and the Optionee with respect to such
shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
2
<PAGE>
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, any successor or assign of the
Company and to any Legal Representative of the Optionee.
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------------
Name: Edson R. Arneault
-----------------------------------
Its: President
-----------------------------------
OPTIONEE
By: /s/ Thomas K. Russell
-----------------------------------
Thomas K. Russell
(Name of Optionee)
30 Sembrado
---------------------------------------
Rancho Santa Margarita, CA 92688
---------------------------------------
(Address)
--------------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.3
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of
July 29, 1998 by and between MTR Gaming Group, Inc. a Delaware
corporation (the "Company"), and Mark Russell (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in furtherance of the Company's intention to
provide an incentive to motivate the performance of certain of its employees,
the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on May 28, 1992 of an option to purchase an
aggregate of 26,500 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $1.06 per share,
being equal to 85% of the fair market value of such shares of Common Stock
on the date of such grant (the "Option"). This Option is not intended to
constitute an "incentive stock option" (within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on August 25, 1999,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option. Notwithstanding
anything to the contrary in this Agreement, this Option may only be exercised
if the Optionee is employed by the Company at the time of such exercise.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be
<PAGE>
issued upon the exercise of this Option are being acquired by the Optionee
for the Optionee's own account, for investment only and not with a view to
the resale or distribution thereof; and (ii) any subsequent resale or
distribution of shares of Common Stock by the Optionee will be made only
pursuant to (x) a Registration Statement under the Securities Act which is
effective and current with respect to the shares of Common Stock being sold,
or (y) a specific exemption from the registration requirements of the
Securities Act, but in claiming such exemption, the Optionee shall, prior to
any offer of sale or sale of such shares of Common Stock, provide the Company
with a favorable written opinion of counsel satisfactory to the Company, in
form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this Option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this Option under the
Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of any agreement between the Company and the Optionee with respect to such
shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common Stock
to be issued to the Optionee in the amount which the Company determines is
necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
2
<PAGE>
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, any successor or assign of the
Company and to any Legal Representative of the Optionee.
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------------
Name: Edson R. Arneault
-----------------------------------
Its: President
-----------------------------------
OPTIONEE
By: /s/ Mark Russell
-----------------------------------
Mark Russell
(Name of Optionee)
--------------------------------------
--------------------------------------
(Address)
--------------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.4
1992 EMPLOYEE STOCK OPTION PLAN
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of ________
______, 199__ by and between MTR Gaming Group, Inc. a Delaware corporation
(the "Company"), and ___________________ (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company, in accordance with the allotment and
grant made by the Company's Board of Directors (the "Board") on _________
___, ______(the "Grant") and subject to the terms and conditions of the 1992
Employee Stock Option Plan of the Company adopted by the Company's Board of
Directors, and approved by the Company's stockholders (the "Plan"), hereby
agree to be bound by the terms of this Contract with respect to the Grant to
the Optionee of the option to purchase an aggregate of _________ shares of
common stock, $_______ par value per share, of the Company ("Common Stock")
at $______ per share, being the fair market value of such shares of Common
Stock on the date of Grant. This option is not intended to constitute an
"incentive stock option" (within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended).
2. TERM; EXERCISE. The term of this option shall be five (5) years
commencing ___________ ____, ______, subject to earlier termination as
provided in the Plan (the "Term"). This option is exercisable at anytime
during the Term, subject to the terms of this option and the Plan. In no
event may a fraction of a share of Common Stock be purchased under this
option.
3. NOTICE OF EXERCISE; PAYMENT. This option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (i) in cash or by certified check or bank cashier's
check at the time the option is exercised, or (ii) at the discretion of the
Board, either at the time of the grant or exercise of the option, (A) by
delivery to the Company of other Common Stock of the Company, (B) according
to a deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of
the Company) with the person to whom the option is granted or to whom the
option is transferred pursuant to Section 10 of the Plan, or (C) in any other
form of legal consideration that may be acceptable to the Board.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the option shall be effective and current at the
<PAGE>
time of exercise; or (b) there is an exemption from the registration
requirements under the Securities Act for the issuance of the shares of
Common Stock upon exercise. The Optionee hereby represents and warrants to
the Company, that: (i) the shares of Common Stock to be issued upon the
exercise of this option are being acquired by the Optionee for the Optionee's
own account, for investment only and not with a view to the resale or
distribution thereof; and (ii) any subsequent resale or distribution of
shares of Common Stock by the Optionee will be made only pursuant to (x) a
Registration Statement under the Securities Act which is effective and
current with respect to the shares of Common Stock being sold, or (y) a
specific exemption from the registration requirements of the Securities Act,
but in claiming such exemption, the Optionee shall, prior to any offer of
sale or sale of such shares of Common Stock, provide the Company with a
favorable written opinion of counsel satisfactory to the Company, in form,
substance and scope satisfactory to the Company, as to the applicability of
such exemption to the proposed sale or distribution. Such representation and
warranties shall also be deemed to be made by the Optionee upon each exercise
of this option. Nothing herein shall be construed as requiring the Company
to register the shares subject to this option under the Securities Act.
5. LISTING OF SHARES. Notwithstanding anything herein to the
contrary, if at any time the Board shall determine in its sole discretion
that the listing or qualification of the shares of Common Stock subject to
this option on any securities exchange, Nasdaq or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the granting of an
option, or the issue of shares of Common Stock thereunder, this option may
not be exercised in whole or in part unless such listing, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Board.
6. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or herein
shall confer upon the Optionee any right to continue in the employ of the
Company, any of its Subsidiaries or a Parent, or interfere in any way with
any right of the Company, any Subsidiary or a Parent to terminate such
employment at any time for any reason whatsoever without liability to the
Company, the Subsidiary or Parent.
7. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of the Plan or any agreement between the Company and the Optionee with
respect to such shares of Common Stock.
8. TAXES. The Company may withhold cash and/or shares of Common Stock
to be issued to the Optionee in the amount which the Company determines is
necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this option, its disposition
or the disposition of the underlying shares of Common Stock.
2
<PAGE>
Alternatively, the Company may require the Optionee to pay the Company such
amount in cash promptly upon demand.
9. APPLICABILITY OF THE PLAN. The Company and the Optionee agree
that they will both be subject to and bound by all of the terms and
conditions of the Plan, a copy of which is attached hereto and made a part
hereof. Any capitalized term not defined herein shall have the meaning
ascribed to it in the Plan. In the event of a conflict between the terms of
this Contract and the terms of the Plan, the terms of the Plan shall govern.
10. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the Plan and the grant and exercise of
the option and the disposition of the shares of Common Stock acquired upon
exercise of the option, including without limitation, federal and state
securities and "blue sky" laws.
11. TRANSFERABILITY. The option is not transferable otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided by the Plan,
this Contract shall be binding upon and inure to the benefit of the parties
hereto and any successor or assign of the Company.
13. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
14. GOVERNING LAW. This Contract shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
15. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
16. AMENDMENTS. The Optionee agrees that the Company may amend the
Plan and the options granted to the Optionee under the Plan, subject to the
limitations contained in the Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By:
-----------------------------------
Name:
-----------------------------------
Its:
-----------------------------------
OPTIONEE
By:
-----------------------------------
--------------------------------------
(Name of Optionee)
--------------------------------------
(Address)
--------------------------------------
(Social Security Number)
4
<PAGE>
EXHIBIT 4.5
AGREEMENT
Agreement made this 31st day of May, 1994 by and between Winners
Entertainment, Inc., a Delaware corporation having its principal place of
business at 30448 Rancho Viejo Road, Suite 110, San Juan Capistrano,
California 92675 (the "Company") and William E. Blair, Jr. and Bonnie Blair,
individuals who are husband and wife, having their principal residence at
13000 Woodworth Road, New Springfield, Ohio 44443, (individually "Blair" and,
collectively, the "Blairs").
WHEREAS, the Blairs are presently employed by Mountaineer Park, Inc., a
West Virginia corporation ("MPI"), which is a wholly owned subsidiary of the
Company, pursuant to two separate Employment Agreements, each of which is
dated October 16, 1992 (the "Employment Agreements"); and
WHEREAS, each of the Blairs has been granted an option to purchase
200,000 shares of the Company's Common Stock at a price of $.50 per share
pursuant to certain stock option agreements dated October 16, 1992 (the
"Options"); and
WHEREAS, the Company and the Blairs wish to terminate the employment
relationship on an amicable and mutually agreed basis, in order that the
Blairs may pursue other ventures;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties to this Agreement, meaning to be bound, do
hereby agree as follows:
1. CONCLUSION OF EMPLOYMENT. (a) Upon the effective date of this
Agreement, which shall be May 31, 1994, the employment of each of the Blairs
by MPI pursuant to the Employment Agreements shall terminate as of the close
of business on the effective date. In consideration of the Blairs agreeing
to the early termination of their employment by MPI, the Company agrees to
pay to the Blairs the consideration specified in the following subsections
(b), (c) and (d) of this Section 1.
(b) The Company will cause MPI to pay to each of the Blairs each
month such amount as shall be equal to result of (a) the quotient of $40,000
divided by twelve (12) less (b) the amount of federal withholding taxes due
upon such amount and the employees's share of Federal Insurance Contribution
Act ("FICA"), taxes due upon such amount commencing on the first day of the
first month beginning after the effective date and ending on December 1,
1995. MPI will continue to pay the employer's share of the FICA taxes.
Except as otherwise provided in this Agreement, all Federal, state and local
income and other taxes with respect to any consideration paid by the Company
to the Blairs in accordance with the provisions of this Agreement shall be
the sole responsibility of the Blairs and the Company shall have no
responsibility with respect thereto, other than to file such informational
returns and to provide such information to the Blairs as may be required by
Federal, state and local law. Neither the Company nor MPI will be
responsible for payment of unemployment or worker's compensation insurance
with respect to the consideration described herein, except if required by law.
<PAGE>
(c) The Company will allow the exercise by each of the Blairs of
their Options to purchase 200,000 shares of the Company's Common Stock, which
shares are collectively referred to as the "Shares", for a consideration
consisting of (i) cash in an amount equal to the product of the par value per
share of the Common Stock multiplied by the number of shares of Common Stock
to be purchased upon exercise of the Option and (ii) a promissory note in the
form attached to this Agreement as Exhibit A in an amount equal to the number
of Shares with respect to which the Option is being exercised multiplied by
the difference between (x) the par value of a share of Common Stock and (y)
$.50 per share; provided, however, that this consideration shall be
acceptable by the Company only in the event that the Blairs exercise the
Options following the acceptance by the Blairs of a transaction to sell their
Shares in the circumstances outlined in Sections 2 and 3 of this Agreement or
a business combination described in Section 4 of this Agreement and in any
other case the Options may be exercised only in accordance with their terms
as in existence on the day preceding the date of this Agreement.
(d) The Company shall allow the Blairs to continue to participate
in the Company's qualified retirement plan with the same rights and
privileges as they enjoy on the date of this Agreement, and all tax
consequences of such continued participation shall be sole responsibility of
the Blairs.
2. INITIAL REGISTRATION OF SHARES. As soon as practical after the
effective date of this Agreement, the Company will arrange for the public
sale by the Blairs of 200,000 of the Shares through an underwriter to be
selected by the Company upon the most favorable terms that the Company can
obtain and will present such transaction to the Blairs for their acceptance
or rejection. In the event that the Blairs accept the transaction presented
by the Company, the Company will register the 200,000 Shares with the
Securities and Exchange Commission (the "SEC") for sale to the public on Form
S-8 as soon as possible after the date of such acceptance. In the event that
the Blairs do not accept the terms of the transaction presented by the
Company, then this Agreement shall be of no further force or effect and the
original terms of the Employment Agreements and the Options shall be
reinstated as if the parties had never entered into this Agreement. The
Blairs agree that they will supply to the Company such information as shall
be in their possession and that is necessary for inclusion in the S-8
registration statement under the rules of the SEC in order for the
registration statement to become effective.
3. SUBSEQUENT REGISTRATION OF SHARES. As soon as reasonably possible
after May 10, 1995, the Company will arrange for the public sale by the
Blairs of the remaining 200,000 Shares through an underwriter to be selected
by the Company upon the most favorable terms that the Company can obtain and
will present such transaction to the Blairs for their acceptance or
rejection. If the Blairs accept the transaction presented by the Company, the
Company agrees that it will register the remaining 200,000 Shares with the
SEC for sale to the public on Form S-8 or any replacement form as soon as
possible after the date of such acceptance. If the Blairs do not accept the
transaction presented by the Company, the Company shall have no further
obligation to register the remaining 200,000 Shares and the Blairs shall have
until December 4, 1995 to exercise the Options with respect to the remaining
Shares for cash. The Blairs agree that they will supply to Company such
information as shall be in their possession and that is necessary for
inclusion in the
2
<PAGE>
S-8 registration statement under the rules of the SEC in order for the
registration statement to become effective.
4. BUSINESS COMBINATIONS. In the event the Company enters into an
agreement for the merger or consolidation with, or the purchase or any other
acquisition of the Company by any other entity, pursuant to the terms of
which transaction the shares of the Company's Common Stock are to be
converted into or exchanged for the shares or other securities of any other
entity, and whether or not the Company shall be the surviving entity, the
Blairs shall have the right to exercise the Option on the terms stated in
Section 1 of this Agreement and to have all of their existing Shares
converted into the same consideration as all the other shares of the
Company's Common Stock are converted in connection with the acquisition.
5. RESTRICTIVE COVENANT. For a period of two years following the date
of this Agreement, neither of the Blairs shall, within the State of West
Virginia or within a radius of ninety miles of the race track owned by MPI
known as Mountaineer Race Track and Resort, own, operate, manage, control,
participate in, or otherwise engage in any business activity which competes
with the business of MPI. Notwithstanding the provisions of the foregoing
sentence, either of the Blairs may own 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. The Blairs
acknowledge that both the skills they have learned and the knowledge they
have obtained about the Company and its business, including trade secrets,
would make it unfair for them to compete with the Company while accepting the
consideration provided in this Agreement. The Blairs further acknowledge
that the provisions of this Section 5 are not unreasonable or overbroad under
the circumstances.
6. RIGHT OF FIRST OFFER. For a period of two years following the
effective date of this Agreement, the Blairs shall be obligated to present to
the Company the right to purchase or participate in any business opportunity
in the gaming field that may be presented to the Blairs, whether or not such
opportunity would conflict with the restrictive covenant contained in Section
5 of this Agreement, prior to either participating in the business
opportunity themselves or offering the business opportunity to any other
person. Such presentation shall consist of such information concerning such
business opportunity as shall be in the possession of the Blairs at the time
of presentation. If the Company does not agree to purchase or participate in
any such business opportunity within thirty days (or such shorter period as
may be set forth by the business opportunity as presented to the Blairs)
after it is presented to them by the Blairs, the Blairs shall be free to
participate in the business opportunity if such participation would not
violate the provisions of the restrictive covenant contained in Section 5 of
this Agreement or to refer the business opportunity to any other person. If
the Company accepts the business opportunity, the Company shall pay to the
Blairs an amount equal to 5% of the first $1,000,000 of the value of the
business opportunity, 4% of the next $1,000,000, 3% of the next $1,000,000,
2% of the next $1,000,000 and 1% of the value of the business opportunity in
excess of $4,000,000. The value of the business opportunity shall be the
total amount invested or to be invested by the Company in the business
opportunity.
3
<PAGE>
7. ARBITRATION. Any disputes arising under the terms of this
Agreement shall be settled by arbitration between the parties in the City of
Irvine, California in a proceeding held under the rules of the American
Arbitration Association. However, if at the time such dispute arises Michael
Dunn is not a director of the Company, then such arbitration shall be held in
Hancock County, West Virginia. In any such proceeding, each party shall
choose 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.
8. 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 stated above or such other address as the
party shall give notice in accordance with the provisions of this Section 8.
9. ASSIGNMENT. This Agreement shall inure to the benefit of the
successors and assigns of the parties hereto; provided, however, that this
provision does not mean that the Options are transferable and the Options may
be transferred only in accordance with their provisions.
10. 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.
11. 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.
12. HEADINGS AND PREAMBLES. The headings and preambles of this
Agreement are for convenience only and shall not be used to interpret or
construe the provisions of this Agreement.
13. 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.
4
<PAGE>
IN WITNESS WHEREOF, The parties have executed this Agreement as of the
day and year first above written.
WINNER'S ENTERTAINMENT, INC.
By: /s/ Michael R. Dunn
-----------------------------------
Michael R. Dunn
President
/s/ Thomas K. Russell
-----------------------------------
Thomas K. Russell
Secretary
/s/ William E. Blair
-----------------------------------
William E. Blair, Jr.
/s/ Bonnie Blair
-----------------------------------
Bonnie Blair
5
<PAGE>
FIRST AMENDMENT TO AGREEMENT
First Amendment made this 12th day of January, 1995 by and between
Winners Entertainment, Inc., a Delaware corporation having its principal
place of business at 30448 Rancho Viejo Road, Suite 110, San Juan Capistrano,
California 92675 (the "Company") and William E. Blair, Jr. and Bonnie Blair,
individuals who are husband and wife, having their principal residence at
13000 Woodworth Road, New Springfield, Ohio 44443, (individually "Blair" and,
collectively, the "Blairs").
WHEREAS, the Blairs were formerly employed by Mountaineer Park, Inc., a
West Virginia corporation ("MPI"), which is a wholly owned subsidiary of the
Company, pursuant to two separate Employment Agreements, each of which was
dated October 16, 1992 (the "Employment Agreements"); and
WHEREAS, each of the Blairs has been granted an option to purchase
200,000 shares of the Company's Common Stock at a price of $.50 per share
pursuant to certain stock option agreements dated October 16, 1992 (the
"Options"); and
WHEREAS, the Company and the Blairs entered into an Agreement dated May
31, 1994 (the "Agreement") pursuant to which the employment of the Blairs by
MPI was terminated on an amicable and mutually agreed basis, in order that
the Blairs may pursue other ventures; and
WHEREAS, The Company and the Blairs wish to amend the Agreement in
certain respects;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties to this First Amendment, meaning to be bound,
do hereby agree as follows:
1. Section 1(c) of the Agreement shall be amended to read as follows:
"(c) The Company will allow the immediate exercise by each of the
Blairs of their Options to purchase an aggregate of 216,667 shares of the
Company's Common Stock, which shares are collectively referred to as the
"Shares", for a consideration consisting of (i) cash in an amount equal to
the product of the par value per share of the Common Stock multiplied by the
number of shares of Common Stock to be purchased upon exercise of the Option
and (ii) a promissory note in the form attached to this Agreement as Exhibit
A in an amount equal to the number of Shares with respect to which the Option
is being exercised multiplied by the difference between (x) the par value of
a share of Common Stock and (y) $.50 per share."
2. Sections 2 and 3 of the Agreement shall be amended to read as
follows:
"2. INITIAL REGISTRATION OF SHARES. As soon as practical after the
date of this First Amendment, the Company will register the Shares with
the Securities and Exchange Commission (the "SEC") on Form S-8 for sale to
the public. The Blairs agree that they will supply to the Company such
information as shall be in their possession and that is necessary for
inclusion in the S-8 registration statement under the rules of the SEC in
order for the
<PAGE>
registration statement to become effective. The Blairs further agree
that they will not sell more than 50,000 of the Shares per week.
"3. SUBSEQUENT REGISTRATION OF SHARES. The Company will register
the remainder of the shares of the Company's Common Stock that are subject
to the Options held by the Blairs with the SEC on Form S-8 or any
replacement form for sale to the public at such time or times as the
parties shall mutually agree. The Blairs agree that they will supply to
Company such information as shall be in their possession and that is
necessary for inclusion in the S-8 registration statement under the rules
of the SEC in order for the registration statement to become effective."
3. The following Section 3A shall be added to the Agreement:
"3A. ACCELERATION OF OPTION EXERCISE AND REGISTRATION. In the event
that Michael R. Dunn shall no longer be the Chief Executive Officer of the
Company, the Blairs shall have the right to exercise immediately all the
remaining Options that are unexercised at that time and the Company shall
be obligated to register as soon as practicable all the shares of the
Company's Common Stock purchased upon exercise of the remaining Options on
Form S-8 or any replacement form for sale to the public. The Blairs agree
that they will supply to the Company such information as shall be in their
possession and that is necessary for inclusion in the S-8 registration
statement under the rules of the SEC in order for the registration
statement to become effective."
4. Section 6 of the Agreement shall be amended to read as follows:
"6. RIGHT OF FIRST OFFER. For a period of two years following the
effective date of this Agreement, the Blairs shall be obligated to present
to the Company the right to purchase or participate in any business
opportunity in the gaming field that may be presented to the Blairs,
whether or not such opportunity would conflict with the restrictive
covenant contained in Section 5 of this Agreement, prior to either
participating in the business opportunity themselves or offering the
business opportunity to any other person. Such presentation shall consist
of such information concerning such business opportunity as shall be in
the possession of the Blairs at the time of presentation. If the Company
does not agree to purchase or participate in any such business opportunity
within thirty days (or such shorter period as may be set forth by the
business opportunity as presented to the Blairs) after it is presented to
them by the Blairs, the Blairs shall be free either to participate in the
business opportunity if such participation would not violate the
provisions of the restrictive covenant contained in Section 5 of this
Agreement or to refer the business opportunity to any other person. If
the Company accepts the business opportunity, the Company shall pay to the
Blairs an amount equal to 5% of the first $1,000,000 of the value of the
business opportunity, 4% of the next $1,000,000, 3% of the next
$1,000,000, 2% of the next $1,000,000 and 1% of the value of the business
opportunity in excess of $4,000,000. The value of the business
opportunity shall be the total amount invested or to be invested by the
Company in the business opportunity."
2
<PAGE>
5. Except as provided in this First Amendment, all terms and
provisions of the Agreement shall remain in full force and effect and the
Agreement and this First Amendment shall be construed as one and the same
document.
IN WITNESS WHEREOF, the parties have executed this First Amendment
as of the day and year first above written.
WINNER'S ENTERTAINMENT, INC.
By /s/ Michael R. Dunn
-----------------------------------
Michael R. Dunn
President
/s/ William E. Blair
--------------------------------------
William E. Blair, Jr.
/s/ Bonnie Blair
--------------------------------------
Bonnie Blair
3
<PAGE>
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 Paul
Anthony (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 Michael R. Dunn and
Ted Arneault, 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
<PAGE>
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
2
<PAGE>
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.
3
<PAGE>
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 Hancock
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.
4
<PAGE>
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/ Michael R. Dunn By: /s/ Edson R. Arneault
Mr. Michael R. Dunn, President Mr. Edson R. Arneault, President
Date: 9/29/94 Date: 9/27/94
---------------------------------
By: /s/ Paul Anthony
---------------------------------
Date: September 23, 1994
---------------------------------
5
<PAGE>
EXHIBIT 4.7
[WINS LETTERHEAD]
May 30, 1995
Robin L. Reynolds
25102-G Camino Del Mar
Laguna Niguel, California 92677
Re: Termination of Employment
Dear Robin:
This shall confirm our understanding regarding the various compensation
rights which shall be due you from Winners Entertainment, Inc. upon the
termination of your employment with the Company today.
(1) You shall continue to receive your regular salary for a period of
sixty (60) days, commencing May 31, 1995 (the "Term");
(2) Your current medical insurance through Blue Cross shall be
maintained by the Company during the Term;
(3) Your loan balance to the Company is $354.19 at May 30, 1995 and
will continue to be paid during the Term by deductions from your
regular payroll checks in the amount of $70.83 until the final
payroll check of the Term from which the balance then remaining
shall be deducted in full;
(4) You shall be entitled to exercise options to purchase 15,000 shares
of the Company's common stock pursuant to the terms of the
Company's October 1992 Employee Stock Option Plan, subject to any
amendments which may be made thereto, including but not limited to,
any reduction in exercise price of such options as may be approved
by the shareholders at the next Annual Meeting of Shareholders;
(5) You shall receive, at the earliest practicable date, 10,000 shares
of the Company's common stock which shares shall be included for
purposes of registration in the Company's Registration Statement on
Form S-3, if and when such registration is approved by the SEC; and
You shall be entitled to reimbursement today for all expense
advances made by you on behalf of the Company in connection with
the preparation of the "corporate accomplishments" binders for the
directors of the Company.The above consideration represents the
total consideration to be paid in
<PAGE>
connection with the end of your employment with the Company, and
there is no other consideration of any kind to be paid other than
that which has been set forth herein.
Please acknowledge your approval of the above terms by your signature
below.
Very truly yours,
/s/ Thomas K. Russell
Thomas K. Russell
Secretary and General Counsel
Acknowledged and accepted this 30th day of May 1995 at San Juan
Capistrano, California.
/s/ Robin L. Reynolds
---------------------------------
Robin L. Reynolds
**A signed original of this letter agreement is to be forwarded
to Robin Reynolds at: 28241 Crown Valley Parkway
F461
Laguna Niguel, CA 92677
<PAGE>
EXHIBIT 4.8
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Thomas K. Russell (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on May 4, 1995 of an option to purchase an
aggregate of 222,316 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $1.2188 per share,
being equal to the fair market value of such shares of Common Stock on the
date of such grant (the "Option"). This Option is not intended to constitute
an "incentive stock option" (within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on September 11, 1998,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and (ii) any subsequent resale or distribution of shares of Common Stock by
the Optionee will be
<PAGE>
made only pursuant to (x) a Registration Statement under the Securities Act
which is effective and current with respect to the shares of Common Stock
being sold, or (y) a specific exemption from the registration requirements of
the Securities Act, but in claiming such exemption, the Optionee shall, prior
to any offer of sale or sale of such shares of Common Stock, provide the
Company with a favorable written opinion of counsel satisfactory to the
Company, in form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this Option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this Option under the
Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
2
<PAGE>
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
----------------------
Name: Edson R. Arneault
--------------------
Its: President
---------------------
OPTIONEE
By: /s/ Thomas K. Russell
----------------------
Thomas K. Russell
(Name of Optionee)
30 Sembrado
---------------------------------
Rancho Santa Margarita, CA 92688
---------------------------------
(Address)
---------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.9
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Donald G. Saunders (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on May 4, 1995 of an option to purchase an
aggregate of 222,316 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $1.2188 per share,
being equal to the fair market value of such shares of Common Stock on the
date of such grant (the "Option"). This Option is not intended to constitute
an "incentive stock option" (within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on September 11, 1998,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and (ii) any subsequent resale or distribution of shares of Common Stock by
the Optionee will be
<PAGE>
made only pursuant to (x) a Registration Statement under the Securities Act
which is effective and current with respect to the shares of Common Stock
being sold, or (y) a specific exemption from the registration requirements of
the Securities Act, but in claiming such exemption, the Optionee shall, prior
to any offer of sale or sale of such shares of Common Stock, provide the
Company with a favorable written opinion of counsel satisfactory to the
Company, in form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this Option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this Option under the
Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer upon
the Optionee any right to continue in the employ of the Company, any of its
Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common Stock
to be issued to the Optionee in the amount which the Company determines is
necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
2
<PAGE>
12. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------------
Name: Edson R. Arneault
-----------------------------------
Its: President
-----------------------------------
OPTIONEE
By: /s/ Donald G. Saunders
-----------------------------------
Donald G. Saunders
(Name of Optionee)
--------------------------------------
--------------------------------------
(Address)
--------------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.10
[WINS LETTERHEAD]
October 11, 1995
Barbara A. Sigler
26976 Mill Pond West
Capistrano Beach, California 92624 Re: Separation Agreement
Dear Bobbe:
This shall confirm the terms of your separation from Winners Entertainment,
Inc. which we have agreed shall become effective at the close of business
October 31, 1995. Winners has agreed that you shall receive the following
consideration at that time:
1. Your regular salary and medical insurance benefits for a period of 90
days following the date of separation;
2. Your accrued vacation pay from your first date of employment through
October 31, 1995, which shall be paid in equal installments with your salary
during said 90 day period;
3. Stock options to purchase 30,000 shares of Winners Entertainment, Inc.
common stock pursuant to and on the terms contained in the Winners' October
1992 Stock Incentive Plan, as amended at the Annual Shareholders Meeting,
September 11, 1995, and as described in Winners' proxy statements for the
fiscal years ended December 31, 1992 and December 31, 1994.
4. Fifteen Thousand (15,000) shares of restricted Rule 144 Winners
Entertainment, Inc. common stock which shall be included at the earliest
possible date in any registration statement which Winners may file with the
Securities and Exchange Commission on Forms S-1 or S-3. Any such
registration shall be attempted on a best efforts basis and Winners cannot
guarantee that such a registration will be filed or that if filed, approval
by the SEC will be obtained.
To assist Winners in its transitional needs after your separation, you have
agreed to be available for consultation reasonably requested by Winners
during said 90 day period. If the above correctly states the terms of our
agreement, please indicate so by signature below.
Very truly yours,
/s/ Thomas K. Russell
Thomas K. Russell
Secretary
Acknowledge and accepted this 11th of October, 1995 at San Juan Capistrano,
California.
/s/ Barbara A. Sigler
--------------------------------------
Barbara A. Sigler
<PAGE>
EXHIBIT 4.11
1996 STOCK OPTION PLAN
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of ________
______, 199__ by and between MTR Gaming Group, Inc. a Delaware corporation
(the "Company"), and _______________________________ (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company, in accordance with the allotment and
grant made by the Company's Board of Directors (the "Board") on _________
____, ____ (the "Grant") and subject to the terms and conditions of the 1996
Stock Option Plan of the Company adopted by the Company's Board of Directors,
and approved by the Company's stockholders (the "Plan"), hereby agree to be
bound by the terms of this Contract with respect to the Grant to the Optionee
of the option to purchase an aggregate of _________ shares of common stock,
$.0001 par value per share, of the Company ("Common Stock") at $_______ per
share, being the fair market value of such shares of Common Stock on the date
of Grant. This option is not intended to constitute an "incentive stock
option" (within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended).
2. TERM; EXERCISE. The term of this option is five (5) years
commencing ______________ ______, ________, subject to earlier termination as
provided in the Plan (the "Term"). This option is exercisable at anytime
during the Term, subject to the terms of this option and the Plan. In no
event may a fraction of a share of Common Stock be purchased under this
option.
3. NOTICE OF EXERCISE; PAYMENT. This option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (i) in cash or by certified check or bank cashier's
check at the time the option is exercised, or (ii) at the discretion of the
Board, either at the time of the grant or exercise of the option, (A) by
delivery to the Company of other Common Stock of the Company, (B) according
to a deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of
the Company) with the person to whom the option is granted or to whom the
option is transferred pursuant to Section 10 of the Plan, or (C) in any other
form of legal consideration that may be acceptable to the Board.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the option shall be effective and current at the
<PAGE>
time of exercise; or (b) there is an exemption from the registration
requirements under the Securities Act for the issuance of the shares of
Common Stock upon exercise. The Optionee hereby represents and warrants to
the Company, that: (i) the shares of Common Stock to be issued upon the
exercise of this option are being acquired by the Optionee for the Optionee's
own account, for investment only and not with a view to the resale or
distribution thereof; and (ii) any subsequent resale or distribution of
shares of Common Stock by the Optionee will be made only pursuant to (x) a
Registration Statement under the Securities Act which is effective and
current with respect to the shares of Common Stock being sold, or (y) a
specific exemption from the registration requirements of the Securities Act,
but in claiming such exemption, the Optionee shall, prior to any offer of
sale or sale of such shares of Common Stock, provide the Company with a
favorable written opinion of counsel satisfactory to the Company, in form,
substance and scope satisfactory to the Company, as to the applicability of
such exemption to the proposed sale or distribution. Such representation and
warranties shall also be deemed to be made by the Optionee upon each exercise
of this option. Nothing herein shall be construed as requiring the Company
to register the shares subject to this option under the Securities Act.
5. LISTING OF SHARES. Notwithstanding anything herein to the
contrary, if at any time the Board shall determine in its sole discretion
that the listing or qualification of the shares of Common Stock subject to
this option on any securities exchange, Nasdaq or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the granting of an
option, or the issue of shares of Common Stock thereunder, this option may
not be exercised in whole or in part unless such listing, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Board.
6. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or herein
shall confer upon the Optionee any right to continue in the employ of the
Company, any of its Subsidiaries or a Parent, or interfere in any way with
any right of the Company, any Subsidiary or a Parent to terminate such
employment at any time for any reason whatsoever without liability to the
Company, the Subsidiary or Parent.
7. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of the Plan or any agreement between the Company and the Optionee with
respect to such shares of Common Stock.
8. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
2
<PAGE>
promptly upon demand.
9. APPLICABILITY OF THE PLAN. The Company and the Optionee agree
that they will both be subject to and bound by all of the terms and
conditions of the Plan, a copy of which is attached hereto and made a part
hereof. Any capitalized term not defined herein shall have the meaning
ascribed to it in the Plan. In the event of a conflict between the terms of
this Contract and the terms of the Plan, the terms of the Plan shall govern.
10. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the Plan and the grant and exercise of
the option and the disposition of the shares of Common Stock acquired upon
exercise of the option, including without limitation, federal and state
securities and "blue sky" laws.
11. TRANSFERABILITY. The option is not transferable otherwise than
by will or the laws of descent and distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided by the
Plan, this Contract shall be binding upon and inure to the benefit of the
parties hereto and any successor or assign of the Company.
13. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
14. GOVERNING LAW. This Contract shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
15. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
16. AMENDMENTS. The Optionee agrees that the Company may amend the
Plan and the options granted to the Optionee under the Plan, subject to the
limitations contained in the Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MTR GAMING GROUP, INC.
By:
-----------------------------
Name:
---------------------------
Its:
----------------------------
OPTIONEE
By:
-----------------------------
(Name of Optionee)
---------------------------------
---------------------------------
(Address)
---------------------------------
(Social Security Number)
4
<PAGE>
EXHIBIT 4.12
[WINS LETTERHEAD]
October 8, 1996
Ms. Julie B. Waring
164 Cinnamon Teal
Aliso Viejo, CA 92656
Re: Severance Agreement
Dear Julie:
This shall confirm the terms of severance of your employment with Winners
Entertainment, Inc. (the "Company") which commenced on August 3, 1992.
1. Your date of separation from the company will be November 30, 1996
("Separation Date"), until which time your employment with the Company will
continue at your current salary.
2. You will receive severance pay at your current salary for a period of
ninety (90) days ("Severance Period") following the Separation Date.
3. Your family's medical insurance will continue, at the Company's
expense, during the Separation Period.
4. On or before the Separation Date, you will a receive the sum of
$5,992.51 in compensation for 35.33 days (282.64 hours) of accrued vacation
time since the inception of your employment with the Company.
5. On or before the Separation Date, you will receive a certificate for
15,000 shares of the common stock. The shares shall be subject to
registration by the Company on either Form S-3 or Form S-8 with the
Securities Exchange Commission at the earliest practicable date.
6. On or before the Separation date, you will receive a certificate for
options to purchase 30,000 shares of the Company's common stock at a price of
$.5625 per share for a term of five years from the date of grant on January
23, 1996. The shares will be subject to registration by the Company on Form
S-8 with the Securities Exchange Commission at the earliest practicable date.
If the above terms are satisfactory, please indicate your acceptance of
this agreement by signature below.
Very truly yours,
/s/ Thomas K. Russell
Thomas K. Russell
Secretary
Accepted this 7th of October, 1996 at Laguna Beach, California.
/s/ Julie B. Waring
-------------------------
Julie B. Waring
<PAGE>
EXHIBIT 4.13
AMENDED 1996 EMPLOYEE STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION CONTRACT
-----------------------------------
THIS NON-QUALIFIED STOCK OPTION CONTRACT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Robert A. Blatt (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company, in accordance with the allotment and
grant made by the Company's Board of Directors (the "Board") on September 19,
1997 (the "Grant") and subject to the terms and conditions of the Amended
1996 Employee Stock Option Plan of the Company adopted by the Company's Board
of Directors, and approved by the Company's stockholders (the "Plan"), hereby
agree to be bound by the terms of this Contract with respect to the Grant to
the Optionee of the option to purchase an aggregate of 150,000 shares of
common stock, $.0001 par value per share, of the Company ("Common Stock") at
$1.3438 per share, being the fair market value of such shares of Common Stock
on the date of Grant. This option is not intended to constitute an
"incentive stock option" (within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended).
2. TERM; EXERCISE. The term of this option is five (5) years
commencing September 19, 1997, subject to earlier termination as provided in
the Plan (the "Term"). This option is exercisable at anytime during the
Term, subject to the terms of this option and the Plan. In no event may a
fraction of a share of Common Stock be purchased under this option.
3. NOTICE OF EXERCISE; PAYMENT. This option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (i) in cash or by certified check or bank cashier's
check at the time the option is exercised, or (ii) at the discretion of the
Board, either at the time of the grant or exercise of the option, (A) by
delivery to the Company of other Common Stock of the Company, (B) according
to a deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of
the Company) with the person to whom the option is granted or to whom the
option is transferred pursuant to Section 10 of the Plan, or (C) in any other
form of legal consideration that may be acceptable to the Board.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the
<PAGE>
Securities Act for the issuance of the shares of Common Stock upon exercise.
The Optionee hereby represents and warrants to the Company, that: (i) the
shares of Common Stock to be issued upon the exercise of this option are
being acquired by the Optionee for the Optionee's own account, for investment
only and not with a view to the resale or distribution thereof; and (ii) any
subsequent resale or distribution of shares of Common Stock by the Optionee
will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
option under the Securities Act.
5. LISTING OF SHARES. Notwithstanding anything herein to the
contrary, if at any time the Board shall determine in its sole discretion
that the listing or qualification of the shares of Common Stock subject to
this option on any securities exchange, Nasdaq or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the granting of an
option, or the issue of shares of Common Stock thereunder, this option may
not be exercised in whole or in part unless such listing, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Board.
6. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or herein
shall confer upon the Optionee any right to continue in the employ of the
Company, any of its Subsidiaries or a Parent, or interfere in any way with
any right of the Company, any Subsidiary or a Parent to terminate such
employment at any time for any reason whatsoever without liability to the
Company, the Subsidiary or Parent.
7. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of the Plan or any agreement between the Company and the Optionee with
respect to such shares of Common Stock.
8. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
2
<PAGE>
9. APPLICABILITY OF THE PLAN. The Company and the Optionee agree
that they will both be subject to and bound by all of the terms and
conditions of the Plan, a copy of which is attached hereto and made a part
hereof. Any capitalized term not defined herein shall have the meaning
ascribed to it in the Plan. In the event of a conflict between the terms of
this Contract and the terms of the Plan, the terms of the Plan shall govern.
10. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the Plan and the grant and exercise of
the option and the disposition of the shares of Common Stock acquired upon
exercise of the option, including without limitation, federal and state
securities and "blue sky" laws.
11. TRANSFERABILITY. The option is not transferable otherwise than
by will or the laws of descent and distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided by the
Plan, this Contract shall be binding upon and inure to the benefit of the
parties hereto and any successor or assign of the Company.
13. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
14. GOVERNING LAW. This Contract shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
15. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
16. AMENDMENTS. The Optionee agrees that the Company may amend the
Plan and the options granted to the Optionee under the Plan, subject to the
limitations contained in the Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
----------------------------------
Name: Edson R. Arneault
--------------------------------
Its: President
---------------------------------
OPTIONEE
By: /s/ Robert A. Blatt
---------------------------------
Robert A. Blatt
(Name of Optionee)
------------------------------------
------------------------------------
(Address)
------------------------------------
(Social Security Number)
4
<PAGE>
EXHIBIT 4.14
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Robert L. Ruben (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on January 23, 1996 of an option to purchase an
aggregate of 75,000 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $.5625 per share,
being equal the fair market value of such shares of Common Stock on November
7, 1995 (the "Option"). This Option is not intended to constitute an
"incentive stock option" (within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended). The parties hereto acknowledge that the
Option was granted as additional compensation for services rendered by the
Optionee as director of the Company.
2. TERM; EXERCISE. This Option will expire on January 22, 2001,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a) a
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be
<PAGE>
issued upon the exercise of this Option are being acquired by the Optionee
for the Optionee's own account, for investment only and not with a view to
the resale or distribution thereof; and (ii) any subsequent resale or
distribution of shares of Common Stock by the Optionee will be made only
pursuant to (x) a Registration Statement under the Securities Act which is
effective and current with respect to the shares of Common Stock being sold,
or (y) a specific exemption from the registration requirements of the
Securities Act, but in claiming such exemption, the Optionee shall, prior to
any offer of sale or sale of such shares of Common Stock, provide the Company
with a favorable written opinion of counsel satisfactory to the Company, in
form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this Option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this Option under the
Securities Act.
5. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of any agreement between the Company and the Optionee with respect to such
shares of Common Stock.
6. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
7. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
8. TRANSFERABILITY. The Option is not transferable otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, any successor or assign of the
Company and to any Legal Representative of the Optionee.
10. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
2
<PAGE>
11. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
12. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
--------------------------------------
Name: Edson R. Arneault
--------------------------------------
Its: President
--------------------------------------
OPTIONEE
By: /s/ Robert L. Ruben
--------------------------------------
Robert L. Ruben
(Name of Optionee)
-----------------------------------------
-----------------------------------------
(Address)
-----------------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.15
AMENDED 1996 EMPLOYEE STOCK OPTION PLAN
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of ________
______, 199__ by and between MTR Gaming Group, Inc. a Delaware corporation
(the "Company"), and ____________________ (the "Optionee").
In consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties consideration of the mutual promises hereinafter
set forth, and for other good and valuable hereby agree as follows:
1. OPTION GRANT. The Company, in accordance with the allotment and
grant made by the Company's Board of Directors (the "Board") on ____________
____, ______(the "Grant") and subject to the terms and conditions of the
Amended 1996 Employee Stock Option Plan of the Company adopted by the
Company's Board of Directors, and approved by the Company's stockholders (the
"Plan"), hereby agree to be bound by the terms of this Contract with respect
to the Grant to the Optionee of the option to purchase an aggregate of
_______ shares of common stock, $.0001 par value per share, of the Company
("Common Stock") at $_______ per share, being the fair market value of such
shares of Common Stock on the date of Grant. This option is not intended to
constitute an "incentive stock option" (within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. The term of this option is five (5) years
commencing _____________ ____ ________, subject to earlier termination as
provided in the Plan (the "Term"). This option is exercisable at anytime
during the Term, subject to the terms of this option and the Plan. In no
event may a fraction of a share of Common Stock be purchased under this
option.
3. NOTICE OF EXERCISE; PAYMENT. This option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (i) in cash or by certified check or bank cashier's
check at the time the option is exercised, or (ii) at the discretion of the
Board, either at the time of the grant or exercise of the option, (A) by
delivery to the Company of other Common Stock of the Company, (B) according
to a deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of
the Company) with the person to whom the option is granted or to whom the
option is transferred pursuant to Section 10 of the Plan, or (C) in any other
form of legal consideration that may be acceptable to the Board.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of
<PAGE>
Common Stock to be received upon the exercise of the option shall be
effective and current at the time of exercise; or (b) there is an exemption
from the registration requirements under the Securities Act for the issuance
of the shares of Common Stock upon exercise. The Optionee hereby represents
and warrants to the Company, that: (i) the shares of Common Stock to be
issued upon the exercise of this option are being acquired by the Optionee
for the Optionee's own account, for investment only and not with a view to
the resale or distribution thereof; and (ii) any subsequent resale or
distribution of shares of Common Stock by the Optionee will be made only
pursuant to (x) a Registration Statement under the Securities Act which is
effective and current with respect to the shares of Common Stock being sold,
or (y) a specific exemption from the registration requirements of the
Securities Act, but in claiming such exemption, the Optionee shall, prior to
any offer of sale or sale of such shares of Common Stock, provide the Company
with a favorable written opinion of counsel satisfactory to the Company, in
form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this option under the
Securities Act.
5. LISTING OF SHARES. Notwithstanding anything herein to the
contrary, if at any time the Board shall determine in its sole discretion
that the listing or qualification of the shares of Common Stock subject to
this option on any securities exchange, Nasdaq or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the granting of an
option, or the issue of shares of Common Stock thereunder, this option may
not be exercised in whole or in part unless such listing, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Board.
6. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or herein
shall confer upon the Optionee any right to continue in the employ of the
Company, any of its Subsidiaries or a Parent, or interfere in any way with
any right of the Company, any Subsidiary or a Parent to terminate such
employment at any time for any reason whatsoever without liability to the
Company, the Subsidiary or Parent.
7. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of the Plan or any agreement between the Company and the Optionee with
respect to such shares of Common Stock.
8. TAXES. The Company may withhold cash and/or shares of Common Stock
to be issued to the Optionee in the amount which the Company determines is
necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this option, its disposition
or the disposition of the underlying shares of Common Stock.
2
<PAGE>
Alternatively, the Company may require the Optionee to pay the Company such
amount in cash promptly upon demand.
9. APPLICABILITY OF THE PLAN. The Company and the Optionee agree that
they will both be subject to and bound by all of the terms and conditions of
the Plan, a copy of which is attached hereto and made a part hereof. Any
capitalized term not defined herein shall have the meaning ascribed to it in
the Plan. In the event of a conflict between the terms of this Contract and
the terms of the Plan, the terms of the Plan shall govern.
10. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the Plan and the grant and exercise of
the option and the disposition of the shares of Common Stock acquired upon
exercise of the option, including without limitation, federal and state
securities and "blue sky" laws.
11. TRANSFERABILITY. The option is not transferable otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided by the Plan,
this Contract shall be binding upon and inure to the benefit of the parties
hereto and any successor or assign of the Company.
13. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
14. GOVERNING LAW. This Contract shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
15. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
16. AMENDMENTS. The Optionee agrees that the Company may amend the
Plan and the options granted to the Optionee under the Plan, subject to the
limitations contained in the Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By:
--------------------------------------
Name:
--------------------------------------
Its:
--------------------------------------
OPTIONEE
By:
--------------------------------------
(Name of Optionee)
-----------------------------------------
-----------------------------------------
(Address)
-----------------------------------------
(Social Security Number)
4
<PAGE>
EXHIBIT 4.16
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Robert A. Blatt (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on October 2, 1996 of an option to purchase an
aggregate of 75,000 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $1.06 per share,
being equal to the fair market value of such shares of Common Stock on
October 2, 1996 the date of such grant (the "Option"). This Option is not
intended to constitute an "incentive stock option" (within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on October 1, 2001,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and
<PAGE>
(ii) any subsequent resale or distribution of shares of Common Stock by the
Optionee will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
2
<PAGE>
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------
Name: Edson R. Arneault
---------------------------
Its: President
----------------------------
OPTIONEE
By: /s/ Robert A. Blatt
-----------------------------
Robert A. Blatt
(Name of Optionee)
--------------------------------
--------------------------------
(Address)
--------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.17
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Robert L. Ruben (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on October 2, 1996 of an option to purchase an
aggregate of 75,000 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $1.06 per share,
being equal to the fair market value of such shares of Common Stock on
October 2, 1996 the date of such grant (the "Option"). This Option is not
intended to constitute an "incentive stock option" (within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on October 1, 2001,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and
<PAGE>
(ii) any subsequent resale or distribution of shares of Common Stock by the
Optionee will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
2
<PAGE>
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------
Name: Edson R. Arneault
---------------------------
Its: President
----------------------------
OPTIONEE
By: /s/ Robert L. Ruben
-----------------------------
Robert L. Ruben
(Name of Optionee)
--------------------------------
--------------------------------
(Address)
--------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.18
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Nelson Robinson (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, including services rendered by the
Optionee, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on October 1, 1997 of an option (the "Option")
to purchase an aggregate of 30,000 shares of the common stock, $.0001 par
value per share, of the Company ("Common Stock"). The exercise price of the
Option per share shall equal the per share fair market value of the Common
Stock on the date of vesting with respect to each 10,000 share tranche. The
exercise price for the first 10,000 shares is $1.4375 per share of which
options to purchase 10,000 shares vested on October 1, 1997, and of which
options to purchase an additional 10,000 shares shall vest on October 1, 1998
and October 1, 1999, respectively (conditioned upon the Optionee's continued
service to the Company or its subsidiaries). This Option is not intended to
constitute an "incentive stock option" (within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on September 30, 2001,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the
<PAGE>
Securities Act for the issuance of the shares of Common Stock upon exercise.
The Optionee hereby represents and warrants to the Company, that: (i) the
shares of Common Stock to be issued upon the exercise of this Option are
being acquired by the Optionee for the Optionee's own account, for investment
only and not with a view to the resale or distribution thereof; and (ii) any
subsequent resale or distribution of shares of Common Stock by the Optionee
will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED ENGAGEMENT. Nothing herein shall confer
upon the Optionee any right to continue to be engaged by of the Company, any
of its Subsidiaries or a Parent, or interfere in any way with any right of
the Company, any Subsidiary or a Parent to terminate such engagement at any
time for any reason whatsoever without liability to the Company, the
Subsidiary or Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
2
<PAGE>
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
11. REGISTRATION. The parties confirm and acknowledge that Optionee
shall have piggy back registration rights pursuant to the terms of the
October 1, 1997 legislative services agreement entered into by Optionee and
the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------
Name: Edson R. Arneault
---------------------------
Its: President
----------------------------
OPTIONEE
By: /s/ Nelson Robinson
-----------------------------
Nelson Robinson
(Name of Optionee)
209 52nd Street
--------------------------------
Charleston, WV 25304
--------------------------------
(Address)
--------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.21
1998 STOCK INCENTIVE PLAN
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of
___________ __, ____ by and between MTR Gaming Group, Inc. a Delaware
corporation (the "Company"), and ___________________ (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company, in accordance with the allotment made
by the Company's Board of Directors and subject to the terms and conditions
of the 1998 Stock Incentive Plan of the Company adopted by the Company's
Board of Directors on _____________ __, ______, and subject to approval by
the Company's stockholders (the "Plan"), grants as of the date hereof to the
Optionee an option to purchase an aggregate of _________________ shares of
the common stock, $.0001 par value per share, of the Company ("Common Stock")
at $__________ per share, being at least equal to the fair market value of
such shares of Common Stock on the date hereof. This option is not intended
to constitute an "incentive stock option" (within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. The term of this option shall be five (5) years
from ___________________ ___, ______, subject to earlier termination as
provided in the Plan (the "Term"). This option is exercisable at anytime
during the Term, subject to the terms of this option and the Plan, including,
but not limited to, approval by the Company's stockholders. In no event may a
fraction of a share of Common Stock be purchased under this option.
3. NOTICE OF EXERCISE; PAYMENT. This option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
options being exercised; or (c) with any combination of cash, certified check
or shares of Common Stock having such value.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding
the foregoing, this option shall not be exercisable by the Optionee unless:
(a) a Registration Statement under the Securities Act of 1933, as amended
(the "Securities Act") with respect to the shares of Common Stock to be
received upon the exercise of the option shall be effective and current at
the time of exercise; or (b) there is an exemption from the registration
requirements under the Securities Act for the issuance of the shares of
Common Stock upon exercise. The Optionee hereby represents
<PAGE>
and warrants to the Company, that: (i) the shares of Common Stock to be
issued upon the exercise of this option are being acquired by the Optionee
for the Optionee's own account, for investment only and not with a view to
the resale or distribution thereof; and (ii) any subsequent resale or
distribution of shares of Common Stock by the Optionee will be made only
pursuant to (x) a Registration Statement under the Securities Act which is
effective and current with respect to the shares of Common Stock being sold,
or (y) a specific exemption from the registration requirements of the
Securities Act, but in claiming such exemption, the Optionee shall, prior to
any offer of sale or sale of such shares of Common Stock, provide the Company
with a favorable written opinion of counsel satisfactory to the Company, in
form, substance and scope satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representation and warranties shall also be deemed to be made by the Optionee
upon each exercise of this option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this option under the
Securities Act.
5. LISTING OF SHARES. Notwithstanding anything herein to the
contrary, if at any time the Committee shall determine in its sole discretion
that the listing or qualification of the shares of Common Stock subject to
this option on any securities exchange, Nasdaq or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the granting of an
option, or the issue of shares of Common Stock thereunder, this option may
not be exercised in whole or in part unless such listing, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee.
6. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or herein
shall confer upon the Optionee any right to continue in the employ of the
Company, any of its Subsidiaries or a Parent, or interfere in any way with
any right of the Company, any Subsidiary or a Parent to terminate such
employment at any time for any reason whatsoever without liability to the
Company, the Subsidiary or Parent.
7. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of, or
to perfect an exemption from, the registration requirements of the Securities
Act and any applicable state securities laws; or (b) implement the provisions
of the Plan or any agreement between the Company and the Optionee with
respect to such shares of Common Stock.
8. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
3
<PAGE>
9. APPLICABILITY OF THE PLAN. The Company and the Optionee agree
that they will both be subject to and bound by all of the terms and
conditions of the Plan, a copy of which is attached hereto and made a part
hereof. Any capitalized term not defined herein shall have the meaning
ascribed to it in the Plan. In the event of a conflict between the terms of
this Contract and the terms of the Plan, the terms of the Plan shall govern.
10. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the Plan and the grant and exercise of
the option and the disposition of the shares of Common Stock acquired upon
exercise of the option, including without limitation, federal and state
securities and "blue sky" laws.
11. TRANSFERABILITY. The option is not transferable otherwise than
by will or the laws of descent and distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided by the Plan,
this Contract shall be binding upon and inure to the benefit of the parties
hereto, any successor or assign of the Company and to any Legal
Representative of the Optionee.
13. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
14. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to the conflicts of law rules thereof.
15. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
16. AMENDMENTS. The Optionee agrees that the Company may amend the
Plan and the options granted to the Optionee under the Plan, subject to the
limitations contained in the Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MTR GAMING GROUP, INC.
By:
-------------------------------
Name:
-----------------------------
Its:
------------------------------
OPTIONEE
By:
-------------------------------
----------------------------------
(Name of Optionee)
----------------------------------
----------------------------------
(Address)
----------------------------------
(Social Security Number)
4
<PAGE>
EXHIBIT 4.22
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Sherrilyn D. Farkas (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on January 27, 1998 of an option to purchase an
aggregate of 10,000 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $2.15625 per share,
being equal to the fair market value of such shares of Common Stock on the
date of such grant (the "Option"). This Option is not intended to constitute
an "incentive stock option" (within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on January 26, 2003,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable to the Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and
<PAGE>
(ii) any subsequent resale or distribution of shares of Common Stock by the
Optionee will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of
2
<PAGE>
Common Stock issuable pursuant to this agreement in any calendar week without
the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------
Name: Edson R. Arneault
---------------------------
Its: President
----------------------------
OPTIONEE
By: /s/ Sherrilyn D. Farkas
-----------------------------
Sherrilyn D. Farkas
(Name of Optionee)
--------------------------------
--------------------------------
(Address)
--------------------------------
(Social Security Number)
<PAGE>
EXHIBIT 4.23
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Mary Jo Needham (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on January 27, 1998 of an option to purchase an
aggregate of 20,000 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $2.15625 per share,
being equal to the fair market value of such shares of Common Stock on the
date of such grant (the "Option"). This Option is not intended to constitute
an "incentive stock option" (within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on January 26, 2003,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable tot he Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and
<PAGE>
(ii) any subsequent resale or distribution of shares of Common Stock by the
Optionee will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
2
<PAGE>
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to the
fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------
Name: Edson R. Arneault
---------------------------
Its: President
----------------------------
OPTIONEE
By: /s/ Mary Jo Needham
-----------------------------
Mary Jo Needham
(Name of Optionee)
--------------------------------
--------------------------------
(Address)
--------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.24
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Dale Maurer (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on January 27, 1998 of an option to purchase an
aggregate of 20,000 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $2.15625 per share,
being equal to the fair market value of such shares of Common Stock on the
date of such grant (the "Option"). This Option is not intended to constitute
an "incentive stock option" (within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on January 26, 2003,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable tot he Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and
<PAGE>
(ii) any subsequent resale or distribution of shares of Common Stock by
the Optionee will be made only pursuant to (x) a Registration Statement under
the Securities Act which is effective and current with respect to the shares
of Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
2
<PAGE>
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------
Name: Edson R. Arneault
---------------------------
Its: President
----------------------------
OPTIONEE
By: /s/ Dale Maurer
-----------------------------
Dale Maurer
(Name of Optionee)
--------------------------------
--------------------------------
(Address)
--------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 4.25
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
THIS NON-QUALIFIED STOCK OPTION AGREEMENT is entered into as of July 29,
1998 by and between MTR Gaming Group, Inc. a Delaware corporation (the
"Company"), and Tamara Pettit (the "Optionee").
In consideration of the mutual promises hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. OPTION GRANT. The Company and the Optionee hereby agree to be
bound by the terms of this Agreement with respect to the grant made by the
Company's Board of Directors on January 27, 1998 of an option to purchase an
aggregate of 10,000 shares of the common stock, $.0001 par value per share,
of the Company ("Common Stock") at an exercise price of $2.15625 per share,
being equal to the fair market value of such shares of Common Stock on the
date of such grant (the "Option"). This Option is not intended to constitute
an "incentive stock option" (within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended).
2. TERM; EXERCISE. This Option will expire on January 26, 2003,
subject to earlier termination as provided herein (the "Termination Date").
This Option is exercisable at anytime prior to the Termination Date except as
otherwise provided by the terms of this Option. In no event may a fraction
of a share of Common Stock be purchased under this Option.
3. NOTICE OF EXERCISE; PAYMENT. This Option shall be exercisable by
giving written notice to the Company at its principal office, presently State
Route 2 South, Chester, West Virginia, Attn.: Chief Financial Officer,
stating that the Optionee is exercising this Option, specifying the number of
shares being purchased and accompanied by payment in full of the aggregate
purchase price therefor: (a) in cash or by certified check; (b) with
previously acquired shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate exercise price of all
Options being exercised; (c) with any combination of cash, certified check or
shares of Common Stock having such value; or (d) any other form of legal
consideration that may be acceptable tot he Board in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Notwithstanding the
foregoing, this Option shall not be exercisable by the Optionee unless: (a)
a Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock to be received
upon the exercise of the Option shall be effective and current at the time of
exercise; or (b) there is an exemption from the registration requirements
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Company, that:
(i) the shares of Common Stock to be issued upon the exercise of this Option
are being acquired by the Optionee for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof;
and
<PAGE>
(ii) any subsequent resale or distribution of shares of Common Stock by the
Optionee will be made only pursuant to (x) a Registration Statement under the
Securities Act which is effective and current with respect to the shares of
Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the
Optionee shall, prior to any offer of sale or sale of such shares of Common
Stock, provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representation and warranties shall also be deemed to be
made by the Optionee upon each exercise of this Option. Nothing herein shall
be construed as requiring the Company to register the shares subject to this
Option under the Securities Act.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall confer
upon the Optionee any right to continue in the employ of the Company, any of
its Subsidiaries or a Parent, or interfere in any way with any right of the
Company, any Subsidiary or a Parent to terminate such employment at any time
for any reason whatsoever without liability to the Company, the Subsidiary or
Parent.
6. LEGENDS; STOP TRANSFER INSTRUCTIONS. The Company may affix
appropriate legends upon the certificates for shares of Common Stock issued
upon exercise of this Option and may issue such "stop transfer" instructions
to its transfer agent in respect of such shares as it determines, in its
discretion, to be necessary or appropriate to: (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the
Securities Act and any applicable state securities laws; or (b) implement the
provisions of any agreement between the Company and the Optionee with respect
to such shares of Common Stock.
7. TAXES. The Company may withhold cash and/or shares of Common
Stock to be issued to the Optionee in the amount which the Company determines
is necessary to satisfy its obligation to withhold taxes or other amounts
incurred by reason of the grant or exercise of this Option, its disposition
or the disposition of the underlying shares of Common Stock. Alternatively,
the Company may require the Optionee to pay the Company such amount in cash
promptly upon demand.
8. COMPLIANCE WITH APPLICABLE LAWS. The Optionee agrees to comply
with all applicable laws relating to the grant and exercise of the Option and
the disposition of the shares of Common Stock acquired upon exercise of the
Option, including without limitation, federal and state securities and "blue
sky" laws, and applicable prospectus delivery requirements.
9. TRANSFERABILITY. The Option is not transferable and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and any successor or assign of the
Company.
2
<PAGE>
11. RESTRICTION ON SALES. The Optionee agrees not to sell more than
25,000 shares of Common Stock issuable pursuant to this agreement in any
calendar week without the written consent of the Company.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
13. VALIDITY. The invalidity, illegality or unenforceability of any
provision herein shall not affect the validity, legality or enforceability of
any other provision, all or which shall be valid, legal and enforceable to
the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MTR GAMING GROUP, INC.
By: /s/ Edson R. Arneault
-----------------------------
Name: Edson R. Arneault
---------------------------
Its: President
----------------------------
OPTIONEE
By: /s/ Tamara Pettit
-----------------------------
Tamara Pettit
(Name of Optionee)
--------------------------------
--------------------------------
(Address)
--------------------------------
(Social Security Number)
3
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF RUBEN & ARONSON, LLP]
August 25, 1998
MTR Gaming Group, Inc.
State Route 2 South
P.O. Box 358
Chester, West Virginia 26034
Gentlemen:
We have acted as counsel to MTR Gaming Group, Inc., a Delaware
corporation (the "Company"), in connection with a Registration Statement on
Form S-8 (the "Registration Statement") being filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, relating to the offering of 4,600,299 shares (the "Shares") of
Common Stock, $.00001 par value per share, to certain current and former
directors (including non-employee directors), employees, and consultants of
the Company issuable upon exercise of options (i) which either have been, or
may from time to time be, granted by the Company under its 1992 Employee
Stock Option Plan (the "1992 Plan"), (ii) which have been granted by the
Company under its 1996 Stock Option Plan, 1996 Amended Stock Option Plan or
1998 Stock Incentive Plan (collectively with the 1992 Plan, the "Plans"), and
(iii) which have been granted by the Company as described in and subject to
the terms of certain agreements dated as of May 31, 1994, October 1, 1994,
May 30, 1995, October 11, 1995, October 8, 1996, February 18, 1998 and July
29, 1998 (collectively, the "Agreements").
In connection with the foregoing, except as set forth in this paragraph,
we have examined originals or copies, satisfactory to us, of all such
corporate records and of all such agreements, certificates and other
documents as we have deemed relevant and necessary as a basis for the opinion
hereinafter expressed. We have examined each option contract in respect of
options granted under the Plans and examined each Agreement. In all our
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies or
facsimiles. As to any facts material to such opinion, we have, to the extent
that relevant facts were not independently established by us, relied on
certificates of public officials and certificates of officers or other
representatives of the Company.
<PAGE>
MTR Gaming Group, Inc.
August 25, 1998
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the applicable Plans and
Agreements, and in accordance with the options issuable pursuant to the Plans,
will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ RUBEN & ARONSON, LLP
-------------------------
RUBEN & ARONSON, LLP
<PAGE>
EXHIBIT 23.1
CORBIN & WERTZ
CERTIFIED PUBLIC ACCOUNTANTS BUSINESS CONSULTANTS
CONSENT OF INEPENDENT AUDITORS
MTR GAMING GROUP, INC.
We hereby consent to the incorporation by reference in a Registration Statement
on Form S-8 of our report dated February 27, 1998 appearing in your Annual
Report on Form 10-K for the years ended December 31, 1997, 1996 and 1995.
/s/ Corbin & Wertz
-----------------------
Corbin & Wertz
Irvine, California
August 20, 1998
