CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT"), is made and entered into
as of the 1st day of February, 1999, by and between STATION CASINOS, INC., a
Nevada corporation, with its principal offices located at 0000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 (the "COMPANY"), and XX. XXXXXXX X. XXXXXXXX
(the "CONSULTANT").
WHEREAS, the Consultant currently serves as a member of the Board of
Directors of the Company and, in addition to his duties as a director, has
provided financial advisory services to the Company;
WHEREAS, the Company wishes to continue to avail itself of those
financial advisory services; and
WHEREAS, the Consultant is willing to provide those financial advisory
services, subject to the terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the Company and
the Consultant (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. "ANNUAL FEE" shall mean the fee provided for in SECTION 4.
1.3. "BOARD" shall mean the Board of Directors of the Company.
1.4. "CONFIDENTIAL INFORMATION" shall mean all nonpublic information
respecting the Company's business including, but not limited to, its products,
research and development, processes, customer lists, intellectual property,
software, trademarks, marketing plans, and strategies. 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
Consultant.
1.5. "PERSON" shall mean any individual, firm, partnership,
association, trust, company, corporation or other entity.
1.6. "TERM OF ENGAGEMENT" shall mean the period specified in SECTION
2.
2. TERM OF ENGAGEMENT. The initial Term of Engagement shall commence
upon the date of this Agreement and, unless terminated earlier pursuant to
SECTION 5 hereof, shall terminate five years from such date; PROVIDED, HOWEVER,
that the initial Term of Engagement shall automatically be extended annually for
successive five year periods if neither Party has advised the other in writing
in accordance with SECTION 9 at least 30 days prior to the first anniversary of
the then current Term of Engagement that such Term of Engagement will not be
extended. In the event that such notice is given, the Term of Engagement shall
terminate upon the close of business on the day immediately preceding the fifth
anniversary of the date notice of termination is given.
3. RESPONSIBILITIES: STATUS.
3.1 During the Term of Engagement, the Consultant shall provide
financial advisory services to the Company and shall perform such other
related responsibilities as the Board may reasonably request. Subject to the
requirements of the Company in the course of any particular project, the
Consultant shall not be precluded from being employed by, or providing
services to any other Person in any capacity or from managing investments for
himself or any other Person.
3.2. All services provided by the Consultant shall be performed by the
Consultant or any Person(s) employed by the Consultant directly and
independently and not as an agent, employee or representative of the Company.
This Agreement is not intended to and does not constitute, create, or otherwise
give rise to a joint venture, partnership or other type of business association
or organization of any kind by or between the Company and the Consultant. The
rights and obligations of the Company and the Consultant under this Agreement
shall be limited to the express provisions hereof.
3.3 All Persons employed or utilized by the Consultant in the
performance of the Consultant's obligations under this Agreement shall be and
remain the employees of the Consultant and shall not be the employees,
general, special or otherwise, of the Company, and the Consultant alone shall
be obligated to pay for and to provide any and all employee compensation and
benefits owed to said employees, including without limitation, salaries,
wages, bonuses, retirement contributions, Federal, state and local
withholdings, and workers' compensation, disability and unemployment benefits.
4. REMUNERATION.
4.1. ANNUAL FEE. During the Term of Engagement, the Consultant shall
be entitled to receive an Annual Fee of $240,000, payable in equal monthly
installments. All amounts paid to the Consultant pursuant hereto shall be
reported to the Internal Revenue Service on a Form 1099, and the Consultant
shall be obligated to pay any taxes due thereon.
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4.2. BUSINESS EXPENSE REIMBURSEMENT. During the Term of Engagement,
the Consultant shall be entitled to receive reimbursement from the Company for
all reasonable out-of-pocket expenses incurred by him in performing services
under this Agreement.
4.3. STOCK OPTIONS. As an inducement for the Consultant's entering
into this Agreement, the Company has granted to the Consultant a non-qualified
option (the "OPTION") to purchase 100,000 shares of the common stock of the
Company pursuant to the Company's Stock Compensation Program. The Option shall
be evidenced by, and the terms of the Option shall be set forth in, a stock
option agreement to be entered into by the Parties concurrent with the execution
of this Agreement.
4.4. LIFE INSURANCE. During the Term of Engagement, the Company shall
pay on the Consultant's behalf, the monthly premiums necessary to maintain $15
million in life insurance coverage.
5. TERMINATION.
This Agreement may be terminated by either Party for any reason upon
thirty (30) days written notice. In the event of termination by the Consultant,
the Consultant shall be paid his Annual Fee on a pro-rata basis through the end
of the month of termination and shall be reimbursed for all expenses incurred up
to and including the termination date. However, no further payments shall be due
and owing to the Consultant thereafter. In the event of termination by the
Company, the Consultant shall be paid his Annual Fee and shall be reimbursed for
all expenses incurred up to and including the end of the Term of Engagement.
6. INDEMNIFICATION.
6.1. GENERAL. The Company agrees that if the Consultant is made a
party or is threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "PROCEEDING"),
related to or arising out of his services as a consultant pursuant to this
Agreement, he shall be indemnified and held harmless by the Company to the
fullest extent authorized by Nevada law, as the same exists or may hereafter be
amended, against all expense, liability and loss (including reasonable
attorneys' fees, judgments, fines, taxes or penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by the Consultant in
connection therewith.
6.2. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this SECTION 6 shall not be exclusive of any other
right which the Consultant may have or hereafter may acquire under any statute,
provision of the certificate of incorporation or by-laws of the Company,
agreement, vote of stockholders or disinterested directors or otherwise.
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7. COVENANTS TO PROTECT CONFIDENTIAL INFORMATION.
7.1. GENERAL. The Consultant shall not, during the Term of Engagement
or anytime thereafter, without the prior written consent of the Company,
divulge, disclose or make accessible any Confidential Information to any other
Person except while rendering services to the Company or for the benefit of the
Company or when required to do so by a court of competent jurisdiction.
7.2. NOTES, MEMORANDA AND OTHER ITEMS. Upon the written request of the
Company, the Consultant shall proffer to an appropriate officer of the Company,
upon the termination of this Agreement, all memoranda, diaries, notes, records,
cost information, customer lists, marketing plans and strategies and any other
documents relating or referring to any Confidential Information made available
to the Consultant by the Company in his possession at such time.
8. DISPUTE RESOLUTION.
8.1. ARBITRABLE CLAIMS. All disputes between the Consultant (and
his attorneys, successors, and assigns) and the Company (and its trustees,
beneficiaries, officers, directors, managers, affiliates, employees, agents
successors, attorneys, and assigns) relating in any manner whatsoever to this
Agreement ("ARBITRABLE CLAIMS") shall be resolved by binding arbitration.
Arbitration shall be final and binding upon the Parties and shall be the
exclusive remedy for all Arbitrable Claims. THE PARTIES HEREBY WAIVE ANY
RIGHTS THEY MAY HAVE TO TRIAL BY JUDGE OR JURY IN REGARD TO ARBITRABLE CLAIMS.
8.2. PROCEDURE. Arbitration of Arbitrable Claims shall be in
accordance with the Commercial Rules of the American Arbitration Association, as
amended, and as augmented in this Agreement. Either Party may bring an action in
court to compel arbitration under this Agreement and to enforce an arbitration
award. Otherwise, neither Party shall initiate or prosecute any lawsuit, appeal
or administrative action in any way related to an Arbitrable Claim. If the Party
initiating arbitration alleges a statutory violation, said Party must file and
serve an arbitration claim within the time limit established by the applicable
statue of limitations for the statute that has allegedly been violated. If the
Party initiating arbitration does not allege a statutory violation, then the
initiating Party must file and serve an arbitration claim within sixty (60) days
of learning the facts giving rise to the alleged claim. All arbitration
proceedings under this Agreement shall be conducted in Las Vegas, Nevada. The
Federal Arbitration Act shall govern the Interpretation and enforcement of this
Agreement. The fees of the arbitrator shall be split between both Parties
equally.
8.3. FEES AND DISBURSEMENTS. The Parties agree that in the event that
either Party finds it necessary to initiate arbitration or other legal action to
obtain performance under this Agreement, the prevailing Party shall be
reimbursed by other Party for reasonable attorneys' fees and other related
expenses incurred by such Party.
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8.4. CONFIDENTIALITY. All proceedings and all documents prepared in
connection with any Arbitrable Claim shall be confidential and, unless otherwise
required by law, the subject matter thereof shall not be disclosed to any Person
other than the Parties to the proceedings, their counsel, witnesses and experts,
the arbitrator, and, if involved, the court and court staff.
9. NOTICES.
Any notice given to either Party shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address as
such Party may subsequently give notice of:
If to the Company: Station Casinos, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
With a copy to: Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
If to the Consultant: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
10. MISCELLANEOUS.
10.1. SURVIVORSHIP. The respective rights and obligations of the
Parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this SECTION 10.1 are in addition to the survivorship provisions
of any other section of this Agreement.
10.2. REPRESENTATION. The Company represents and warrants that it
is fully authorized and empowered to enter into this Agreement and that the
performance of its obligations under this Agreement will not violate any
agreement between the Company and any other Person.
10.3. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Parties concerning the subject matter hereof and
supersedes all prior agreements,
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understandings, discussions, negotiations and undertakings, whether written or
oral, between the Parties with respect hereto.
10.4. ASSIGNABILITY; BINDING NATURE. This Agreement shall be
binding upon and inure to the benefit of the Parties and their respective
successors, heirs and assigns. No rights or obligations of one Party under
this Agreement may be assigned or transferred by the other Party, except that
such rights or obligations may be assigned or transferred by the Company
pursuant to a merger or consolidation in which the Company is not the
continuing entity, or the sale or liquidation of all or substantially all of
the assets of the Company, provided that the assignee or transferee is the
successor to all or substantially all of the assets of the Company and such
assignee or transferee assumes the liabilities, obligations and duties of the
Company (including the liabilities, obligations and duties of the Company
under this Agreement), either contractually or as a matter of law.
10.5. AMENDMENT OR WAIVER. No provision in this Agreement may be
amended or waived unless such amendment or waiver is agreed to in writing,
signed by the consultant. No waiver by one Party of any breach by the other
Party of any condition or provision of this Agreement to be performed by such
other Party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time.
10.6. SEVERABILITY. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
10.7. GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of Nevada without
reference to the principles of conflict of laws thereof.
10.8. HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
10.9. COUNTERPARTS. This Agreement may be executed in counterparts
each of which shall be deemed an original and all of which shall constitute one
and the same agreement with the same effect as if each Party had signed the same
signature page. Any signature page of this Agreement may be detached from any
counterpart of this Agreement and reattached to any other counterpart of this
Agreement identical in form hereto but having attached to it one or more
additional signature pages.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
STATION CASINOS, INC.
/s/ XXXXX X. XXXXXXXXXXX
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Name:
Title:
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
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