EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the 20th day of May, 2003, by and between STATION CASINOS, INC., a Nevada corporation, with its principal offices located at 2411 West Sahara Avenue, Las Vegas, Nevada 89102 (the “Company”), and WILLIAM W. WARNER (the “Executive”).
WHEREAS, the Company and the Executive are parties to an Employment Agreement dated as of April 1, 2002, as amended by that First Amendment dated September 26, 2002 (collectively, the “Former Agreement”); and
WHEREAS, the Executive has agreed to continue his employment with the Company on the terms and conditions set forth herein; and
WHEREAS, the parties to this Agreement desire to replace the Former Agreement in its entirety with this Agreement, and the Former Agreement shall no longer be of any force or effect;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the Company and the Executive (each individually a “Party” and together the “Parties”) agree as follows.
1. DEFINITIONS. In addition to certain terms defined elsewhere in this Agreement, the following terms shall have the following respective meanings:
1.1 “Affiliate” shall mean any Person controlling, controlled by or under common control with, the Company.
1.2 “Base Salary” shall mean the salary provided for in Subsection 3.1 of this Agreement, as the same may be increased from time to time thereunder.
1.3 “Board” shall mean the Board of Directors of the Company.
1.4 “Cause” shall mean that the Executive:
(a) has been convicted of any felony;
(b) has been found unsuitable to hold a gaming license by a final non-appealable decision of the Nevada Gaming Commission; or
(c) in carrying out his duties under this Agreement, has engaged in acts or omissions constituting gross negligence or willful misconduct resulting, in either case, in material economic harm to the Company.
1.5 “Change in Control” shall be deemed to have occurred if:
(a) (1) any Person, corporation, entity or group (other than the Existing Equity Holders) is or becomes the beneficial owner, directly or indirectly, of securities representing 50% or more of the combined voting power of the Company’s Voting Stock (an “Acquisition Event”), or
(2) the Company consolidates with or merges into another corporation or entity, or any corporation or entity consolidates with or merges into the Company, with the effect that the beneficial owners of the Company’s Voting Stock held immediately prior to the consummation of such consolidation or merger cease to beneficially own, directly or indirectly, securities representing 50% or more of the combined voting power of the Company’s Voting Stock (or if the Company is not the surviving entity, the surviving company’s voting securities) upon the consummation of such consolidation or merger (a “Merger Event”), or
(3) the Company sells, conveys, transfers or leases to any person, corporation, entity or group, directly or indirectly, in one transaction or series of related transactions, properties and/or assets that accounted for 75% or more of the earnings (before interest, taxes, depreciation and amortization) of the Company, on a consolidated basis for the four-fiscal quarter period immediately preceding the date of consummation of such transaction (a “Sale Event”); and
(b) within thirty-six (36) months following an Acquisition Event, Merger Event or Sale Event, individuals who immediately prior to such Acquisition Event, Merger Event or Sale Event constituted the Company’s Board, together with any new or replacement directors whose election by the Company’s Board, or whose nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then in office who were either directors on the Company’s Board immediately prior to such Acquisition Event, Merger Event or Sale Event (or whose election or nomination for election was previously so approved), cease for any reason to constitute a majority of the directors of the Company’s Board then in office.
Notwithstanding the foregoing, a reincorporation, spin-off, split-off or other reorganization transaction (a “Reorganization Event”), or series of related transactions, in which either the “beneficial owners” of the Company’s Voting Stock or the Existing Equity Holders beneficially own securities representing 50% or more of the combined voting power of the Company’s Voting Stock upon the consummation of such transaction shall not constitute an Acquisition Event, Merger Event or Sale Event for purposes of this definition. For purposes of this definition, “beneficial ownership” shall have the same meaning as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, except that a Person shall be deemed to have “beneficial ownership” of all shares that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time.
For the purposes of this definition, upon consummation of an Acquisition Event, Merger Event, Sale Event or Reorganization Event, the “Company’s Board” and the “Company’s Shareholders” shall refer to (i) in the case of an Acquisition Event, the Company, (ii) in the case of a Merger Event, the company surviving the merger or consolidation, (iii) in the case of a Sale Event, the transferee of the properties, and/or assets, and (iv) in the case of a Reorganization Event, the entity or entities surviving such Reorganization Event on a consolidated basis.
1.6 “Code” shall mean the Internal Revenue Code of 1986, as amended.
1.7 “Company Property” shall mean all items and materials provided by the Company to the Executive, or to which the Executive has access, in the course of his employment, including, without limitation, all files, records, documents, drawings, specifications, memoranda, notes, reports, manuals, equipment, computer disks, videotapes, drawings, blueprints and other documents and similar items relating to the Company, its Affiliates or their respective customers, whether prepared by the Executive or others, and any and all copies, abstracts and summaries thereof.
1.8 “CompetingBusiness” shall mean any Person engaged in the gaming industry that directly or through an affiliate or subsidiary conducts its business within the Restricted Area.
1.9 “Confidential Information” shall mean all nonpublic and/or proprietary information respecting the business of the Company or any Affiliate, including, without limitation, its products, programs, projects, promotions, marketing plans and strategies, business plans or practices, business operations, employees, research and development, intellectual property, software, databases, trademarks, pricing information and accounting and financing data. Confidential Information also includes information concerning the Company’s or any Affiliate’s customers, such as their identity, address, preferences, playing patterns and ratings or any other information kept by the Company or any Affiliate concerning its customers whether or not such information has been reduced to documentary form. Confidential Information does not include information that is, or becomes, available to the public unless such availability occurs through an unauthorized act on the part of the Executive.
1.10 “Deferred Compensation Plan for Executives” shall mean the Company’s Deferred Compensation Plan for Executives, effective as of November 30, 1994, as the same may be amended from time to time.
1.11 “Disability” shall mean a physical or mental incapacity that prevents the Executive from performing the essential functions of his position with the Company for a period of ninety (90) days as determined (a) in accordance with any long-term disability plan provided by the Company of which the Executive is a participant, or (b) by the following procedure: The Executive agrees to submit to medical examinations by a licensed healthcare professional selected by the Company, in its sole discretion, to determine whether a Disability exists. In addition, the Executive may submit to the Company documentation of a Disability, or lack thereof, from a licensed healthcare professional of his choice. Following a determination of a Disability or lack of Disability by the Company’s or the Executive’s licensed healthcare
professional, the other Party may submit subsequent documentation relating to the existence of a Disability from a licensed healthcare professional selected by such other Party. In the event that the medical opinions of such licensed healthcare professionals conflict, such licensed healthcare professionals shall appoint a third licensed healthcare professional to examine the Executive, and the opinion of such third licensed healthcare professional shall be dispositive.
1.12 “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
1.13 “Existing Equity Holders” shall mean Frank J. Fertitta III, Blake L. Sartini, Delise F. Sartini, Lorenzo J. Fertitta, Glenn C. Christenson and Scott M Nielson and their executors, administrators or the legal representatives of their estates, their heirs, distributees and beneficiaries, and any trust as to which any of the foregoing is a settlor or co-settlor and any corporation, partnership or other entity which is an affiliate of any of the foregoing, and any lineal descendants of such persons (but only to the extent that the beneficial ownership of the Voting Stock held by such lineal descendants was directly received by gift, trust or sale from any such person).
1.14 “Good Reason,” as used in Subsection 7.2, shall mean and exist if there has been a Change in Control and, thereafter, without the Executive’s prior written consent, one or more of the following events occurs:
(a) the Executive is assigned duties or responsibilities that are inconsistent, in any significant respect, with the position of a senior manager;