Exhibit 10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “ Agreement ”) is
made and entered into as of the 14th day of December, 2007, by and
between STATION CASINOS, INC. , a Nevada corporation, with
its principal offices located at 1505 South Pavilion Center Drive,
Las Vegas, Nevada 89135 (the “ Company ”), and
KEVIN L. KELLEY (the “ Executive ”).
WHEREAS , the
Company desires to employ the Executive on the terms and conditions
set forth herein; and
WHEREAS , the
Executive desires to accept employment with the Company on the
terms and conditions set forth herein; and
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 Section 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 mean the
following: (A) prior to the occurrence of an Initial
Public Offering (as defined in the LLC Agreement), the consummation
of any transaction (including, without limitation, any merger or
consolidation) as a result of which any “person” or
“group” (in each case, as such term is used in
Section 13(d)(3) of the Exchange Act), other than any
Member of HoldCo LLC who is an Existing Equity Holder or Permitted
Transferee (as defined in the LLC Agreement) of such a Member of
HoldCo LLC, or an Affiliate thereof, becomes the “beneficial
owner” (as such term is defined in rule 13d-3
promulgated under the
Exchange Act) of more than fifty percent (50%) of the total issued
and outstanding Class A Units and Class B Units of HoldCo
LLC; (B) after the occurrence of an Initial Public Offering,
the consummation of any transaction (including, without limitation,
any merger or consolidation) as a result of which any person or
group, other than a Member of HoldCo LLC who is an Existing Equity
Holder or Permitted Transferee of such a Member of HoldCo LLC, or
any Affiliate thereof, becomes the beneficial owner of more than
thirty-five percent (35%) of the total issued and outstanding
shares of Voting Stock of the IPO Corporation; or (C) the
sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation) in one or a series of related
transactions, of more than fifty percent (50%) (as measured by fair
market value at the time of transfer) of the assets of the Company
to any person (other than the Company or a Company subsidiary),
other than (x) any Member of HoldCo LLC on the date hereof or
Permitted Transferee of such a Member of HoldCo LLC or Affiliate
thereof or (y) as part of any financing transaction engaged in
by the Company or a Company subsidiary. In addition, no
Change of Control shall be deemed to have occurred as a result of
any reorganization of or similar transaction engaged in by the
Company or any subsidiary of the Company (including in respect of
an Initial Public Offering).
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
“ Competing Business ” 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.
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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, Scott M Nielson, William W. Warner and Richard J.
Haskins, 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 Class A and/or Class B Units
of HoldCo LLC held by such lineal descendants was directly received
by gift, trust or sale from any such person).
1.14
“ Good Reason, ” as used in
Section 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;
(b)
the Executive is required to relocate from, or maintain his
principal office outside of, Clark County, Nevada;
(c)
the Executive’s Base Salary is decreased by the Company;
(d)
the Executive is excluded from participation in any employee
benefit or short-term incentive plan or program offered to other
similarly situated executives of the Company or his benefits under
such plans or programs or opportunities under any employee benefit
or incentive plan or program of the Company is or are materially
reduced;
(e)
the Company fails to pay the Executive any deferred payments that
have become payable under the Deferred Compensation Plan for
Executives or other bonus or incentive plans;
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(f)
the Company fails to reimburse the Executive for business expenses
in accordance with the Company’s policies, procedures or
practices;
(g)
the Company fails to agree to or to actually indemnify the
Executive for his actions and/or inactions, as either a director or
an officer of the Company, in accordance with
Section 10 , and/or the Company fails to maintain
reasonably sufficient levels of directors’ and
officers’ liability insurance coverage for the Executive when
such insurance is available; or
(h)
the Company fails to obtain a written agreement from any successor
or assign of the Company to assume the obligations under this
Agreement upon a Change in Control.
For purposes of
this Agreement, a determination by the Executive that the Executive
has “Good Reason” shall be final and binding on the
Company and the Executive absent a showing of bad faith on the part
of the Executive.
1.15
“HoldCo LLC” shall mean Fertitta Colony Partners
LLC.
1.16
“IPO Corporation” shall mean the Company (or
Affiliate thereof) which is the issuer of the equity interests
offered and sold in the Initial Public Offering.
1.17
“LLC Agreement” shall mean that Second Amended
and Restated Operating Agreement of Fertitta Colony Partners LLC,
dated as of November 7, 2007, as the same may be amended from
time to time in accordance with the terms thereof.
1.18
“ Person ” shall mean any individual, firm,
partnership, association, trust, company, corporation or other
entity.
1.19
“ Pro Rata Annual Bonus ” shall mean the amount
of Annual Bonus, multiplied by a fraction, the numerator of which
is the number of days in such year during which the Executive was
actually employed by the Company and the denominator of which is
365.
1.20
“Restricted Area” shall mean (a) the City
of Las Vegas, Nevada, and the area within a forty-five (45) mile
radius of that city, and (b) any area in or within a one
hundred fifty (150) mile radius of any other location in which the
Company or any of its Affiliates are directly or indirectly engaged
in the development, ownership, operation or management of any
gaming activities or is actively pursuing any such activities;
provided , however , that in the event the Executive
voluntarily terminates this Agreement pursuant to Sections 6.3,
7.2 or 7.3 , the Restricted Area shall (a) after the first
twelve (12) months of the Restriction Period, exclude the Las Vegas
Strip (which is defined as that area bounded by Koval Lane and
straight extensions thereof on the East, Charleston Boulevard on
the North, I-15 on the West, and Sunset Road on the South) and
(b) after a Change in Control, exclude Downtown Las Vegas
(which is defined as that area bounded by Eastern Avenue and
straight extensions thereof on the East, I-515 (U.S. Highway 93/95)
on the North, I-15 on the West, and Charleston Boulevard on the
South).
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1.21
“ Restriction Period ” shall mean the period
ending twenty-four (24) months after the termination or expiration
of the Term of Employment, regardless of the reason for such
termination or expiration.
1.22
“ Special Long-Term Disability Plan ” shall mean
the Company’s Special Long-Term Disability Plan, effective as
of November 30, 1994, as the same may be amended from time to
time.
1.23
“Sponsor Equity Holder” shall mean the
affiliates of Colony Capital, LLC, including FC Investor, LLC and
its affiliated funds and controlled accounts.
1.24
“ Supplemental Management Retirement Plan ”
shall mean the Company’s Supplemental Management Retirement
Plan, effective as of November 30, 1994, as the same may be
amended from time to time.
1.25
“Target Annual Bonus” shall mean an amount that
is no less than one hundred percent (100%) of the Executive’s
then current Base Salary.
1.26
“ Term of Employment ” shall mean the period
specified in Section 2.2 .
1.27
“ Voting Stock ” shall mean capital stock or
other equity interests of any class or classes whose holders are
entitled under ordinary circumstances (irrespective of whether at
the time stock or other equity interests of any other class or
classes shall have or might have voting power by reason of the
happening of any contingency) to vote for the election of a
majority of the directors, managers, trustees or other governing
body of such Person.
2.
TERM OF EMPLOYMENT, POSITION AND
RESPONSIBILITIES .
2.1
Employment Accepted
. This Agreement shall be effective as of the date of
this Agreement. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, for the
Term of Employment, in the position and with the responsibilities
set forth in Section 2.3 and upon such other
terms and conditions as are stated in this Agreement.
2.2
Term of Employment .
The initial Term of Employment shall commence on
January 7, 2008 (the “Commencement Date” )
and, unless earlier terminated pursuant to the provisions of this
Agreement, shall terminate upon the close of business on the day
immediately preceding the fifth anniversary of the Commencement
Date; provided , however , that the initial Term of
Employment shall automatically be extended for successive five-year
periods if neither Party has advised the other in writing in
accordance with Section 14 at least six (6) months
prior to the end of the then current Term of Employment that such
Term of Employment will not be extended for an additional five year
period. In the event that such notice is given, (i) the
Executive’s employment shall terminate upon the close of
business on the day immediately preceding the expiration of the
then current Term of Employment, and (ii) the Executive shall
not be entitled to any additional compensation hereunder after the
expiration thereof, but such termination of employment shall not
otherwise affect accrued but unpaid compensation or benefits
provided under this Agreement or pursuant to any Company plan or
program.
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2.3
Responsibilities .
During the Term of Employment, the Executive shall be employed as
Executive Vice President and Chief Operating Officer, or in such
other capacity as the Company may direct, and shall have such
responsibilities as the Company may direct from time to time.
During the Term of Employment, the Executive shall devote his full
time and attention to the business and affairs of the Company and
shall use his best efforts, skills and abilities to promote the
Company’s interests. Anything herein to the contrary
notwithstanding, the Executive shall not be precluded from engaging
in charitable and community affairs and managing his personal
investments. It is expressly understood and agreed that, to
the extent any such activities have been conducted by the Executive
prior to the date of this Agreement and disclosed to the Board, the
continued conduct of such activities (or activities similar in
nature and scope thereto) after the date of this Agreement shall be
deemed not to interfere with the Executive’s duties and
obligations to the Company under this Agreement. The
Executive also may serve as a member of the board of directors of
other corporations, subject to the approval of a majority of the
Board, which approval shall not be unreasonably withheld or
delayed.
3.
COMPENSATION .
3.1
Base Salary . During
the Term of Employment, the Executive shall be entitled to receive
a base salary (the “ Base Salary ”) payable no
less frequently than in equal bi-weekly installments at an
annualized rate of no less than $1,000,000. The Base Salary
shall be reviewed annually for increase (but not decrease) in the
discretion of the Board. In conducting any such annual
review, the Board shall take into account any change in the
Executive’s responsibilities, increases in the compensation
of other executives of the Company or any Affiliate (or any
competitor(s) of either or both), the performance of the
Executive and/or other pertinent factors. Such increased Base
Salary shall then constitute the Executive’s “Base
Salary” for purposes of this Agreement.
3.2
Annual Bonus . The
Company may pay the Executive an annual bonus (the “
Annual Bonus ”) for each calendar year ending during
the Term of Employment in an amount that will be determined by the
Board based on the Executive’s performance. Any Annual
Bonus that may be awarded to the Executive shall be paid at the
same time as annual bonuses are paid to other senior officers of
the Company, and in any event no later than March 1 of the
year following the calendar year in which such bonus is earned,
unless the Executive has elected to defer receipt of all or part of
the bonus amounts to which he is entitled in respect of any such
calendar year in accordance with the terms and provisions of any
deferred compensation program maintained by the Company.
3.3
Equity Awards . Not
later than ten (10) days following the Commencement Date, the
Company shall award, or shall cause to be awarded, to the Executive
(a) 1.667 Class B units of FCP Class B Holdco LLC,
which owns Class B units in each of HoldCo LLC and Fertitta
Partners LLC, (b) 92,893 Class C units of Holdco LLC, and
(c) 29,431 Class C units of Fertitta Partners, LLC
(collectively, the “Equity Awards” );
provided , however , that the Equity Awards shall be
subject to the approval (administrative or otherwise) of the Nevada
Gaming Commission. The Equity Awards shall vest 20% per year
for five (5) years, commencing on the first anniversary of the
Commencement Date.
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3.4
Deferred Compensation .
During the Term of Employment, the Executive shall be
eligible to participate in the Company’s Deferred
Compensation Plan for Executives, and any other deferred
compensation plans that the Company may adopt for executives,
pursuant to the terms of the plans.
4.
EMPLOYEE BENEFIT PROGRAMS
.
4.1
Pension and Welfare Benefit
Plans . During the Term of Employment, the
Executive shall be entitled to participate in all employee benefit
programs made available to the Company’s executives or
salaried employees generally, as such programs may be in effect
from time to time, including, without limitation, pension and other
retirement plans, profit sharing plans, group life insurance, group
health insurance, accidental death and dismemberment insurance,
long-term disability, sick leave (including salary continuation
arrangements), vacations, holidays and other employee benefit
programs sponsored by the Company.
4.2
Additional Pension and Welfare
Benefits . In addition to the foregoing, the Company
shall provide the Executive with the following benefits during the
Term of Employment:
(a)
Executive Group Health Insurance Coverage pursuant to such other
plan or plans as the Company may select, which shall be fully paid
for by the Company, and for which the Company shall waive the
standard ninety (90) day period for benefits thereunder;
(b)
full salary continuation during the first ninety (90) days of any
physical or mental incapacity that prevents the Executive from
performing his duties and, for any Disability that continues
thereafter, benefits pursuant to the Company’s Special
Long-Term Disability Plan and any other long-term disability
benefits pursuant to any other disability plan of which the
Executive is a participant;
(c)
an annual supplemental retirement benefit as set forth in the
Supplemental Management Retirement Plan, in addition to any other
benefit pursuant to any other retirement plan under which the
Executive is covered; provided , however , that the
Supplemental Management Retirement Plan may not be amended or
modified in any respect without the prior written consent of the
Executive; and
(d)
term life insurance coverage, through individual and/or group
policies, in an aggregate amount of not less than $4.0 million.
5.
BUSINESS EXPENSE REIMBURSEMENT AND
PERQUISITES .
5.1
Expense Reimbursement
. During the Term of Employment, the Executive shall be
entitled to receive reimbursement by the Company for all reasonable
out-of-pocket expenses incurred by him in (a) relocating from
Macao Special Administrative Region to
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Las Vegas, Nevada, and
(b) performing services under this Agreement, subject to
providing the proper documentation of said expenses.
5.2
Perquisites . During
the Term of Employment, the Executive shall also be entitled to any
of the Company’s executive perquisites in accordance with the
terms and provisions of the applicable policies, including, without
limitation:
(a)
vacation of four weeks per year;
(b)
payment or reimbursement of the cost of an annual physical
examination;
(c)
payment or reimbursement of initiation fees and annual membership
fees and assessments for a country club, a luncheon club and a
physical fitness program of the Executive’s choice; and
(d)
payment or reimbursement of fees and expenses, up to a maximum
amount of $2500.00, incurred in connection with having this
Agreement reviewed by legal counsel prior to execution.
6.
TERMINATION OF EMPLOYMENT
.
6.1
Termination Due to Death or
Disability . The Executive’s employment shall
be terminated immediately in the event of his death or
Disability. In the event of a termination due to the
Executive’s death or Disability, the Executive or his estate,
as the case may be, shall be entitled, in lieu of any other
compensation whatsoever, to:
(a)
Base Salary at the rate in effect at the time of his termination
until the date of death or Disability;
(b)
any Annual Bonus awarded but not yet paid;
(c)
a Pro Rata Annual Bonus for the fiscal year in which death or
Disability occurs;
(d)
immediate vesting of any deferred compensation or bonuses,
including interest or other credits on the deferred amounts to the
extent provided in the plans or programs providing for
deferral;
(e)
reimbursement of expenses incurred but not paid prior to such
termination of employment; and
(f)
such rights to other benefits as may be provided in applicable
plans and programs of the Company, including, without limitation,
applicable employee benefit plans and programs, according to the
terms and provisions of such plans and programs.
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6.2
Termination by the Company for
Cause . The Company may terminate the
Executive’s employment for Cause at any time during the Term
of Employment by giving written notice to the Executive. In
the event of a termination for Cause, the Executive shall be
entitled, in lieu of any other compensation and benefits
whatsoever, to:
(a)
Base Salary at the rate in effect at the time of his termination
through the date of termination of employment;
(b)
any Annual Bonus awarded but not yet paid;
(c)
immediate vesting of any deferred compensation or bonuses,
including interest or other credits on the deferred amounts to the
extent provided in the plans or programs providing for
deferral;
(d)
reimbursement for expenses incurred but not paid prior to such
termination of employment; and
(e)
such rights to other benefits as may be provided in applicable
plans and programs of the Company, including, without limitation,
applicable employee benefit plans and programs, according to the
terms and conditions of such plans and programs.
Notwithstanding
anything to the contrary in this Section 6.2 , if the
Executive’s employment is terminated for Cause (i) due
to his having been formally charged pursuant to
Section 1.4(a) but thereafter said charges are
dismissed or the Executive is acquitted, or (ii) due to his
having been convicted pursuant to Section 1.4(a)
but said conviction is subsequently overturned on appeal and he is
not required to submit to re-trial within six (6) months
thereafter, the Company shall have the option of reinstating the
Executive with payment of all base salary payments that would have
been paid to him had his employment not been terminated and
restoration of all benefits provided for pursuant to
Section 4 , or making a payment to him of an amount
equal to three times one hundred sixty percent (160%) of the
Executive’s Base Salary at the rate in effect at the time of
his termination.
6.3
Termination by the Executive
. The Executive may terminate his employment on his own
initiative for any reason prior to a Change in Control upon thirty
(30) days prior written notice to the Company. Such
termination shall have the same consequences as a termination for
Cause under Section 6.2 .
6.4
Termination by the Company
Without Cause . Notwithstanding any other
provision of this Agreement, the Company may terminate the
Executive’s employment without Cause, other than due to death
or Disability, at any time during the Term of Employment by giving
written notice to the Executive. In the event that the
Company terminates the Executive’s employment without Cause
prior to a Change in Control, the Executive shall be entitled, in
lieu of any other compensation and benefits whatsoever, to:
(a)
an amount equal to three times one hundred sixty percent (160%) of
the Executive’s Base Salary at the rate in effect at the time
of his termination, one-third of which shall be paid in a lump sum
upon satisfaction of the
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conditions set forth in
Section 8.3 , and the other two-thirds of which shall
be paid out in equal bi-weekly installments for the duration of the
Restriction Period;
(b)
any Annual Bonus awarded but not yet paid and a Pro Rata Annual
Bonus for the fiscal year in which such termination of employment
occurs;
(c)
immediate vesting of any deferred compensation or bonuses,
including interest or other credits on the deferred amounts, to the
extent provided in the plans or programs providing for
deferral;
(d)
exercise, within one hundred eighty (180) day
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