Exhibit 10.1





Exhibit 10.1




AGENT AGREEMENT




THIS AGENT AGREEMENT (this “Agreement”) dated as of July 29, 2011 is entered into by and
between Wunderlich Securities, Inc., a Tennessee corporation (the “Agent”), and Pinnacle
Entertainment, Inc., a Delaware corporation (the “Company”).



WHEREAS, the Company is initiating the Owner’s Club Stock Program (the “Program”) under which
the Company will issue up to 200,000 shares of its common stock, par value $.10 per share (the
“Stock”), to its customers as an award for their patronage of the Company’s casinos and as an
incentive to continue such patronage; and



WHEREAS, the Agent has agreed to act as the agent of the Company in connection with its
implementation of the Program on the terms set forth herein.



NOW, THEREFORE, in consideration of the premises and mutual covenants contained in this
Agreement and of other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:



ARTICLE I

REPRESENTATIONS AND WARRANTIES OF THE COMPANY





1.1 The Company represents and warrants to, and agrees with, the Agent that:



(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the “Securities Act”), and the rules and regulations thereunder (the “Rules and
Regulations”). The Company has prepared a registration statement on Form S-3 (Commission File No.
333-172884) with respect to the Stock in conformity with the requirements of the Securities Act and
the Rules and Regulations and filed it with the Securities and Exchange Commission (the
“Commission”). Such registration statement, as it may have heretofore been amended, is referred to
herein as the “Registration Statement,” and the final form of prospectus included in the
Registration Statement, as amended or supplemented from time to time, is referred to herein as the
“Prospectus.” Any reference herein to the Registration Statement, the Prospectus, or any amendment
or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed
to be incorporated) by reference therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be
deemed to refer to and include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein. The Company may issue up to 200,000
shares of Stock under the Program pursuant to the Registration Statement. The Registration
Statement has been declared effective by the Commission.



(b) The Registration Statement, when it became effective, and the Prospectus and any amendment
or supplement thereto, on the date of filing thereof with the Commission, conformed or will conform
in all material respects with the requirements of the Securities Act and the Rules and Regulations;
the Registration Statement, when it became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and the Prospectus and any amendment or supplement thereto,
on the date of filing thereof with the Commission, did not or will not include an untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; except that the foregoing shall not apply to statements in or
omissions from any such document in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Agent, specifically for use in the Registration
Statement, the Prospectus or any amendment or supplement thereto.


 


 









 






(c) The documents incorporated by reference in the Registration Statement or the Prospectus,
or any amendment or supplement thereto, when they were or are filed with the Commission under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the case may be, conformed or
will conform in all material respects with the requirements of the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and, with respect to those filed prior to
the date hereof did not, and any further documents filed and incorporated by reference in the
Registration Statement or the Prospectus will not, when filed with the Commission, contain an
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading.



(d) The Company has an authorized capitalization as set forth in the Prospectus. All of the
outstanding shares of capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, and none of them was issued in violation of any preemptive or
other similar right. The Stock, when issued and sold pursuant to this Agreement, will be duly
authorized and validly issued, fully paid and nonassessable and will not be issued in violation of
any preemptive or other similar right. Except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and
there is no commitment, plan or arrangement to issue, any capital stock of the Company or any
security convertible into or exercisable or exchangeable for, such capital stock. The common stock
of the Company and the Stock conform in all material respects to all statements relating thereto
contained in the Registration Statement and the Prospectus.



(e) All necessary corporate action has been duly and validly taken by the Company to authorize
the execution, delivery and performance of this Agreement and the issuance of the Stock by the
Company. This Agreement has been duly and validly authorized, executed and delivered by the Company
and constitutes and will constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting creditors’ rights generally, except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as enforceability may be limited by state or federal
laws or policies relating to the non-enforceability of the indemnification provisions contained
herein. Each approval, consent, order, authorization, designation, declaration or filing by or with
any regulatory, administrative or other governmental body necessary in connection with the
execution and delivery by the Company of this Agreement and the consummation of the transactions
contemplated hereby and the issuance and sale of the Stock by the Company (except such additional
steps as may be required by the New York Stock Exchange (the “NYSE”)), if any, has been obtained or
made and is in full force and effect.



(f) Neither the Company nor any of its subsidiaries (as defined in Rule 405 under the
Securities Act) (collectively, the “Subsidiaries”) is an “investment company” or an entity
“controlled” by an “investment company” within the meaning of such term under the Investment
Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of
the Commission thereunder.


 


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(g) Each of the Company and the Subsidiaries, has been duly organized, is validly existing and
in good standing as a corporation or other business entity under the laws of its jurisdiction of
organization and is duly qualified to do business and in good standing as a foreign corporation or
other business entity in each jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, except where the failure to be so qualified
or in good standing would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, condition (financial or otherwise), results of operations,
stockholders’ equity, properties or prospects of the Company and the Subsidiaries, taken as a whole
(a “Material Adverse Effect”). Except as disclosed in the Prospectus, each of the Company and the
Subsidiaries has all power and authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged.



(h) All of the issued shares of capital stock or membership interests of each Subsidiary of
the Company have been duly authorized and validly issued (and, with respect to capital stock, are
fully paid and non-assessable) and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or
claims (i) created or arising in connection with the Company’s Third Amended and Restated Credit
Agreement dated as of February 5, 2010, as it may be amended from time to time (the “Bank Credit
Facility”) or (ii) as would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.



(i) The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not (i) result in a breach or violation of any of the terms
or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company
and the Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which the Company or any of the Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Subsidiaries is subject; (ii) result in any
violation of the provisions of the charter or by-laws (or similar organizational documents) of the
Company or any of the Subsidiaries; or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries or any of their properties or assets, except (in the case of clauses (i)
and (iii) above) as would not reasonably be expected to have a Material Adverse Effect.



(j) Neither the Company nor any of the Subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that would give rise to a valid claim
against any of them or the Agent for a brokerage commission, finder’s fee or like payment in
connection with the transactions contemplated by this Agreement.



(k) There are no contracts, agreements or understandings between the Company or any of the
Subsidiaries and any person granting such person the right to require the Company or any Subsidiary
to file a registration statement under the Securities Act with respect to any capital stock of the
Company or any of the Subsidiaries owned or to be owned by such person or to require the Company or
any of the Subsidiaries to include such capital stock in the securities registered pursuant to any
registration statement filed by the Company or any Guarantor under the Securities Act.



 


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(l) Except as described in the Prospectus, neither the Company nor any of the Subsidiaries has
sustained, since the date of the latest audited financial statements incorporated by reference in
the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which would reasonably be expected to
result in a Material Adverse Effect, and since such date, there has not been any change in the
capital stock or long-term debt of the Company or any of the Subsidiaries, taken as a whole, or any
adverse change or development, in or affecting the condition (financial or otherwise), results of
operations, stockholders’ equity, properties, management, business or prospects of the Company and
the Subsidiaries taken as a whole, in each case except as would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.



(m) Since the date as of which information is given in the Prospectus and except as may
otherwise be described in the Prospectus, the Company and the Subsidiaries have not (i) incurred
any material liability or obligation, direct or contingent, other than liabilities and obligations
that were incurred in the ordinary course of business. (ii) entered into any material transaction
or agreement not in the ordinary course of business or (iii) declared or paid any dividend on its
capital stock.



(n) The historical financial statements (including the related notes and supporting schedules)
incorporated by reference in the Prospectus comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act (other than Rule 3-10(g) thereof) and
present fairly in all material respects the financial condition, results of operations and cash
flows of the entities purported to be shown thereby at the dates and for the periods indicated and,
except as disclosed therein, have been prepared in conformity with accounting principles generally
accepted in the United States applied on a consistent basis throughout the periods involved; the
other financial information included or incorporated by reference in the Prospectus has been
derived from the accounting records of the Company and the Subsidiaries and presents fairly the
information shown thereby.



(o) Deloitte & Touche LLP, who have certified certain financial statements of the Company and
its consolidated subsidiaries and whose report is incorporated by reference in the Prospectus, and
Ernst & Young LLP are each independent public accountants as required by the Securities Act and the
Rules and Regulations.



(p) The statistical and market-related data included in the Prospectus and the consolidated
financial statements of the Company and the Subsidiaries incorporated by reference in the
Prospectus are based on or derived from sources that the Company reasonably believes to be reliable
and accurate in all material respects.



(q) Except as described in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of the Subsidiaries is a party or of which any property or
assets of the Company or any of the Subsidiaries is the subject that would, in the aggregate,
reasonably be expected to have a Material Adverse Effect or would, in the aggregate, reasonably be
expected to have a material adverse effect on the performance of this Agreement or the consummation
of the transactions contemplated hereby; and, to the knowledge of the Company, no such proceedings
are threatened or contemplated by governmental authorities or others.



(r) Except as described in the Prospectus, no relationship, direct or indirect, exists between
or among the Company or any Subsidiary, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any Subsidiary, on the other hand, that is required by
Item 402 or Item 404 of Regulation S-K to be described in the documents incorporated by reference
into the Prospectus which is not so described.


 


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(s) Except as described in the Prospectus, no labor disturbance by or dispute with the
employees of the Company or the Subsidiaries exists or, to the knowledge of the Company, is
imminent or threatened that would reasonably be expected to have a Material Adverse Effect.



(t) Except as described in the Prospectus, (i) each “employee benefit plan” (within the
meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”)) that
is subject to Title IV of ERISA or Section 412 of the Code (as defined below) (but not including a
“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA) for which the Company or
any member of its “Controlled Group” (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as
amended (the “Code”)) may have any liability (each a “Plan”), has been maintained in compliance in
all material respects with its terms and with the requirements of all applicable statutes, rules
and regulations, including ERISA and the Code; (ii) with respect to each such Plan (a) no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur, (b) no “accumulated funding deficiency” (within the meaning of Section 302 of
ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to
occur, (c) the fair market value of the assets under each Plan exceeds the present value of all
benefits accrued under such Plan (determined based on those assumptions used to fund such Plan),
and (d) neither the Company nor any member of its Controlled Group has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or
premiums to the PBGC in the ordinary course and without default) in respect of such Plan; and (iii)
each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified, and
nothing has occurred, whether by action or by failure to act, which would reasonably be expected to
cause the loss of such qualification, except where failure to be so qualified would not be
reasonably likely to result in a Material Adverse Effect. Except as described in the Prospectus,
neither the Company nor any member of its Controlled Group has any withdrawal or other liability to
any “multiemployer plan,” within the meaning of Section 4001(c)(3) of ERISA, except for a liability
which either is not reasonably likely to result in a Material Adverse Effect or which is
indemnified against by a third party.



(u) The Company and each of the Subsidiaries have filed all federal, state, local and foreign
income and franchise tax returns required to be filed through the date hereof, subject to permitted
extensions, and have paid or made provision for the payment of all taxes due thereon, except (i)
those taxes that are not reasonably likely to result in a Material Adverse Effect, (ii) those
taxes, assessments or other charges that are being contested in good faith, if such taxes,
assessments, or other charges are adequately reserved for, or (iii) as described in the Prospectus;
and no tax deficiency has been determined adversely to the Company or any of the Subsidiaries, nor
does the Company have any knowledge of any tax deficiencies, in either case, that would, in the
aggregate, reasonably be expected to have a Material Adverse Effect.



(v) Neither the Company nor any of the Subsidiaries is in violation of its charter or by-laws
(or similar organizational documents); neither the Company nor any of the Subsidiaries (i) is in
default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument
to which it is a party or by which it is bound or to which any of its properties or assets is
subject or (ii) is in violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or its property or assets or has failed to
obtain any license, permit, certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (i) and (ii), to the extent any such violation or
default would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect and except (in the case of clause (i) alone) for any lien, charge or encumbrance
disclosed in the Prospectus.


 


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(w) There is and has been no failure on the part of the Company, the Subsidiaries or any of
their respective directors or officers, in their capacities as such, to comply with the provisions
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith, except where failure to be in compliance would not reasonably be expected to result in a
Material Adverse Effect.



(x) No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.



(y) The Company and the Subsidiaries maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that they
provide a reasonable level of assurance that information required to be disclosed by the Company in
reports that it files or submits under the Exchange Act is recorded, processed summarized and
reported within the time periods specified in the Commission’s rules and forms, including controls
and procedures designed to ensure that they provide a reasonable level of assurance that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure. The Company and the Subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act.



(z) The Company and the Subsidiaries maintain systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the supervision of, their respective principal
executive and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles. The Company and the Subsidiaries maintain internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals, and appropriate action is taken with
respect to any differences. Except as disclosed in Prospectus, the Company has not been advised of
any material weaknesses in the Company’s internal controls as of the date hereof.



(aa) Except as disclosed in the Prospectus, (i) the Company and each of the Subsidiaries have
such permits, licenses, patents, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities (“Permits”) as are necessary under
applicable law to own their properties and conduct their businesses in the manner described in the
Prospectus, except for any of the foregoing that would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, (ii) each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to such Permits, and no event has
occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the
holder or any such Permits, except for any of the foregoing that would not be reasonably expected
to have a Material Adverse Effect, and (iii) neither the Company nor any of the Subsidiaries has
received notice of any revocation or modification of any such Permit or has any reason to believe
that any such Permit will not be renewed in the ordinary course, except where the revocation,
modification or failure to renew any such Permit would not be reasonably expected to have a
Material Adverse Effect.


 


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(bb) The Company and each of the Subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses, know-how, software, systems and
technology (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of their respective
businesses, except for any of the foregoing that would not reasonably be expected to result in a
Material Adverse Effect.



(cc) Except as described in the Prospectus, (A) there are no proceedings that are pending, or
known to be contemplated, against the Company or any of the Subsidiaries under any laws,
regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of
any governmental authority, including, without limitation, any international, national, state,
provincial, regional, or local authority, relating to the protection of human health or safety, the
environment, or natural resources, or to hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”) in which a governmental authority is also a party, other than
such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or
more will be imposed, (B) the Company and the Subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or
concerning hazardous or toxic substances or wastes, pollutants or contaminants, that would
reasonably be expected to have a Material Adverse Effect, and (C) none of the Company and the
Subsidiaries anticipates material (with respect to the Company and the Subsidiaries, taken as a
whole) capital expenditures relating to Environmental Laws (except, with respect to development
projects, such capital expenditures which do not materially exceed amounts contemplated for such
capital expenditures in budgets or cost estimates for such projects or potential expenditures in
connection with proposed projects for which budgets have not been developed).



(dd) Neither the Company nor any of the Subsidiaries, nor, to the knowledge of the Company,
any director, officer, agent, employee or other person associated with or acting on behalf of the
Company or any of the Subsidiaries has, at any time during the last five years, (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.



(ee) The operations of the Company and the Subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened, except in each case, as would not
reasonably be expected to have a Material Adverse Effect.


 


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(ff) Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”).



(gg) The Company and the Subsidiaries have good and marketable title to all real property and
to all personal property described in the Prospectus (including the documents incorporated by
reference therein) as being owned by them, in each case free and clear of all liens, encumbrances
and defects except (i) such as are described in the Prospectus, (ii) such as arise in connection
with the Bank Credit Facility, (iii) such as do not (individually or in the aggregate) interfere
with the use made or proposed to be made of such property by the Company and the Subsidiaries, (iv)
with respect to land held for development, restrictions ordinarily expected to be resolved in the
development process, or (v) such as are not (individually or in the aggregate) reasonably likely
to result in a Material Adverse Effect; and any real property and buildings held under lease or
sublease by the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as (i) do not interfere with, the use made and proposed to
be made of such property and buildings by the Company and the Subsidiaries or (ii) are not
(individually or in the aggregate) reasonably likely to result in a Material Adverse Effect.
Neither the Company nor any of the Subsidiaries has received any written notice of any claim
adverse to its ownership of any real or personal property or of any claim against the continued
possession of any real property, whether owned or held under lease or sublease by the Company or
any of the Subsidiaries, except as would not reasonably be likely to result in a Material Adverse
Effect.



(hh) The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as the Company reasonably considers adequate for the conduct of their business
and the value of their properties and as is reasonably customary for companies engaged in similar
businesses in similar industries.



ARTICLE II

SERVICES OF AGENT




2.1 (a) Subject to the terms and conditions stated herein, the Company hereby appoints the
Agent as the exclusive agent of the Company for a period of three years from the date of this
Agreement (the “Effective Date”) for the purpose of receiving Stock issued by the Company under the
terms of the Program and holding such Stock on behalf of each of the recipients under the Program
pursuant to the terms of the Program as set forth in the Prospectus filed with the Commission as of
the date of this Agreement, as such Prospectus may be amended or supplemented with the consent of
the Agent. The Agent hereby accepts such appointment and acknowledges the Company’s reliance on the
Agent’s acceptance of such appointment. Nothing contained in this Agreement shall be construed to
prevent the Company from offering or selling at any time to any person any security, including the
Stock, directly on its own behalf.



(b) On the basis of the representations and warranties contained herein, but subject to the
terms and conditions set forth herein, the Agent agrees, as agent of the Company, to accept the
transfer of shares of the Stock from the Company to participants in
the Program upon the terms and conditions set forth in the Prospectus filed with the Commission as of the
date of this Agreement, as such Prospectus may be amended or supplemented with the consent of the
Agent.


 


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(c) The Agent shall allow each individual eligible for participation in the Program to apply
for a brokerage account with the Agent to be used to receive the shares of Stock to be awarded
under the Program, subject to the Agent’s standard terms applicable to such accounts. The Company
shall not be deemed a party to the relationship between the Agent and any of the Agent’s customers
or to any agreement between the Agent and any of the Agent’s customers, including members of the
Program.



(d) For performing the services under this Agreement, the Company shall pay the Agent a fee
equal to $500.00 per customer account established under the Program, provided that the Agent’s
aggregate fees shall not exceed $275,000.00 for the three-year term of this Agreement, assuming
that the Program has no more than 550 customer accounts. In the event that the Program has more
than 550 customer accounts, the Company shall pay the Agent an amount not to exceed $450.00 per
account for each customer account in excess of 550. The first payment of the fees payable to the
Agent shall be made on August 15, 2011 in the amount of $137,500.00, and subsequent payments each
in the amount of $68,750.00 shall be made on September 15, 2011 and December 15, 2011. The fees set
forth in this Section 2(d) are inclusive of any expenses incurred by the Agent in connection with
the performance of services under this Agreement, except that the Company shall reimburse the Agent
for the Agent’s reasonable out-of-pocket costs and expenses of legal counsel in an amount not to
exceed $35,000. The Agent will not charge any fees to a participant in the Program for the
establishment and maintenance of a customer account in connection with the Program, to the extent
the activity in such account relates to the Stock.



ARTICLE III

COVENANTS OF THE COMPANY





3.1 The Company covenants and agrees with the Agent that:



(a) During the period in which a prospectus relating to the Stock is required to be delivered
under the Securities Act, the Company will notify the Agent promptly of the time when any
subsequent amendment to the Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or the Prospectus or for additional information; it
will prepare and file with the Commission, promptly upon the Agent’s request, any amendments or
supplements to the Registration Statement or the Prospectus that, in the Agent’s reasonable
opinion, may be necessary or advisable in connection with the distribution of the Stock; the
Company will not file any amendment or supplement to the Registration Statement or the Prospectus
unless a copy thereof has been submitted to the Agent a reasonable period of time before the
filing, and the Agent has not reasonably objected thereto; the Company will furnish to the Agent at
the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by
reference in the Registration Statement or the Prospectus; and the Company will cause each
amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to
the applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the case of any
document to be incorporated therein by reference, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed.


 


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(b) The Company will advise the Agent, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, of the suspension of the qualification of the Stock for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such
purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such a stop order should be issued.



(c) Within the time during which a prospectus relating to the Stock is required to be
delivered under the Securities Act, the Company will comply as far as it is able with all
requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time
to time in force, so far as necessary to permit the continuance of issuances, sales of or dealings
in the Stock as contemplated by the provisions hereof and the Prospectus. If during such period any
event occurs as a result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration Statement or the Prospectus to
comply with the Securities Act, the Company will promptly notify the Agent to suspend use of the
Registration Statement or the Prospectus, and the Company will amend or supplement the Registration
Statement or the Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance and will use its commercially reasonable efforts to have any
amendment or supplement to the Registration Statement or the Prospectus declared effective as soon
as possible, unless the Company has reasonable business reasons to defer public disclosure of the
relevant information.



(d) The Company will furnish to the Agent and its counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by
reference therein) and all amendments and supplements to the Registration Statement or the
Prospectus that are filed with the Commission during the period in which a prospectus relating to
the Stock is required to be delivered under the Securities Act (including all documents filed with
the Commission during such period that are deemed to be incorporated by reference therein), in each
case as soon as available and in such quantities as the Agent may from time to time reasonably
request.



(e) The Company will furnish to its securityholders as soon as practicable after the end of
each fiscal year an annual report on Form 10-K (including a balance sheet and statements of income,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year, will make available to its securityholders consolidated summary
financial information of the Company and its subsidiaries for such quarter in reasonable detail on
Form 10-Q.



(f) The Company, whether or not the transactions contemplated hereunder are consummated or
this Agreement is terminated, will pay all of its expenses incident to the performance of its
obligations hereunder (including, but not limited to, any transaction fees imposed by any
governmental or self-regulatory organization with respect to the transactions contemplated by this
Agreement and any blue sky fees) and will pay the expenses of printing all documents relating to
the Program.



(g) The Company will, at any time during the term of this Agreement, as supplemented from time
to time, advise the Agent immediately after it shall have received
notice or obtain knowledge thereof, of any information or fact that would alter or affect any
opinion, certificate, letter and other document provided to the Agent pursuant to Article V herein.


 


10









 







(h) The Company shall use its commercially reasonable efforts to cause the Stock to be
included for listing on the NYSE and to continue to be so included.



(i) The Company shall deliver to the Agent copies of the Registration Statement and the
Prospectus, amendments or supplements thereto, and all documents incorporated by reference therein
that are filed with the Commission.



(j) To the extent that the Company desires to issue more than 200,000 shares of Stock under
the Program, the Company shall file a new registration statement with respect to such shares and
shall cause such registration statement to become effective. After the effectiveness of said
registration statement, all references to “Registration Statement” included in this Agreement shall
be deemed to include such new registration statement.



ARTICLE IV

COVENANTS OF THE AGENT




4.1 The Agent covenants and agrees with the Company that it will maintain registration as a
broker-dealer in all 50 states of the United States during the term of this Agreement.



ARTICLE V

CONDITIONS OF THE AGENT’S OBLIGATIONS




5.1 The obligations of the Agent provided herein shall be subject to the accuracy of the
representations and warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the following additional conditions:



(a) The Registration Statement shall have been declared effective. No stop order suspending
the effectiveness of the Registration Statement shall have been issued, and no proceeding for that
purpose shall have been instituted or, to the actual knowledge of the Company or the Agent,
threatened by the Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall have been complied
with to the Agent’s reasonable satisfaction.



(b) The Agent shall not have advised the Company that the Registration Statement or the
Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that, in
the Agent’s reasonable opinion, is material, or omits to state a fact that, in the Agent’s
reasonable opinion, is material and is required to be stated therein or is necessary to make the
statements therein not misleading.



(c) At the time of execution of this Agreement, Brownstein Hyatt Farber Schreck, LLP, special
counsel to the Company, shall have furnished to the Agent its written opinion, as counsel to the
Company, addressed to the Agent and dated the date hereof, in form and substance reasonably
satisfactory to the Agent, substantially in the form attached hereto as Exhibit A.



 


11









 





(d) The Agent shall have received from Ernst & Young LLP a letter, in form and substance
satisfactory to the Agent, addressed to the Agent (i) confirming
that they are independent public accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, and (ii) stating the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings.




(e) The Stock shall be included for listing on the NYSE.



(f) There shall not have occurred any event that would permit the Agent to terminate this
Agreement pursuant to Section 8.1.



ARTICLE VI

INDEMNIFICATION AND CONTRIBUTION




6.1 (a) The Company agrees to indemnify and hold harmless the Agent and each of its directors,
officers, employees, stockholders and representatives and each person, if any, who controls the
Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or
is controlled by or under common control with the Agent, as follows:



(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;



(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of the administration or maintenance of the Program as described in the Registration
Statement, the Prospectus and this Agreement and any other actions or omissions related to the
foregoing which are taken or committed by the Company and which are beyond the scope of the
services and responsibilities of the Agent contemplated hereby;



(iii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any of the matters for which Agent is to be indemnified under subparagraphs (i) or (ii)
above, if such settlement is effected with the written consent of the Company; and



 


12









 




(iv) against any and all expense whatsoever, as incurred (including, subject to Section 6.1(c)
hereof, the reasonable fees and disbursements of counsel chosen by the Agent), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraphs (i),
(ii) or (iii) above; provided, however, that the indemnity agreement set forth in this Section 6.1(a)
shall not apply to any loss, liability, claim, damage or expense to the extent arising out of (A)
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with written information furnished to the Company by the Agent expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto), and (B) the Agent’s acts or omissions in its capacity as a broker-dealer or
investment adviser related to conduct or duties arising out of or mandated, prescribed or regulated
by statute, regulation, rule or regulatory framework, including case law, applicable to
broker-dealers and investment advisers under federal, state or local law that would be applicable
to the Agent even in the absence of this Agreement.



(b) The Agent agrees to indemnify and hold harmless the Company and its directors and each
officer of the Company who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 6.1(a), as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendments
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Agent expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).



(c) Any indemnified party that proposes to assert the right to be indemnified under this
Article VI will, promptly after receipt of notice of commencement of any action against such party
in respect of which a claim is to be made against an indemnifying party under this Article VI,
notify the indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to the indemnified party otherwise than under this
Article VI and (ii) any liability that it may have to the indemnified party under the foregoing
provision of this Article VI unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any such action is
brought against the indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other indemnifying party,
to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for any legal or other
expenses except as provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party unless (1) the employment of counsel
by the indemnified party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or in addition to
those available to the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after receiving notice of


 


13









 






the
commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties; provided, however ̧ that the indemnifying party shall
not be liable for any fees, disbursements and other charges of the indemnified party’s counsel
unless such counsel shall be reasonably acceptable to the indemnifying party. It is understood that
the indemnifying party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. The indemnifying party will not be liable for
any settlement of any action or claim effected without its written consent (which consent will not
be unreasonably withheld, conditioned or delayed).



(d) In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of this Article VI is applicable in
accordance with its terms, but for any reason is held to be unavailable from the Company or the
Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim
asserted, but after deducting any contribution received by the Company from persons other than the
Agent, such as persons who control the Company within the meaning of the Securities Act, officers
of the Company who signed the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and the Agent may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Company and the Agent. The
allocation of contribution shall be made in such proportion as is appropriate to reflect the
relative benefits received by the Company and the relative fault of the Company, on the one hand,
and the Agent, on the other, with respect to the statements or omission which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof. Such relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Agent, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and the Agent agree
that it would not be just and equitable if contributions pursuant to this Section 6.1(d) were to be
determined by pro rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6.1(d) shall be deemed to include, for the
purpose of this Section 6.1(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the
foregoing provisions of this Section 6.1(d), no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
6.1(d), any person who controls a party to this Agreement within the meaning of the Securities Act
will have the same rights to contribution as that party, and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the Company, subject in
each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 6.1(d), will notify any party from whom contribution
may be sought, but the omission so to notify will not relieve that party from whom contribution may
be sought from any other obligation it may have under this Section 6.1(d) unless and only to the
extent that such omission results in the forfeiture of substantive rights by the party from whom
contribution is sought. No party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably withheld, conditioned
or delayed).


 


14









 







(e) The indemnity and contribution provided by this Article VI shall not relieve the Company
and the Agent from any liability the Company and the Agent may otherwise have (including, without
limitation, any liability the Agent may have for a breach of its obligations under Article II
hereof).



ARTICLE VII

REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY




7.1 All representations, warranties and agreements of the Company herein, and the agreements
of the Agent contained in Article VI hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Agent or any controlling persons, or
the Company (or any of its officers, directors or controlling persons).



ARTICLE VIII

TERMINATION




8.1 The Agent shall have the right, by giving prior written notice as hereinafter specified,
to terminate this Agreement if (i) the Company shall have failed, refused or been unable to perform
any agreement on its part to be performed hereunder, (ii) there is any suspension or limitation of
trading in the securities generally, or of the Stock specifically, on the NYSE, or any setting of
minimum prices for trading of the Stock on the NYSE, shall have occurred, (iii) a banking
moratorium shall have been declared by federal or state authorities, (iv) there is an outbreak or
material escalation of major hostilities in which the United States is involved, a declaration of
war by the U.S. Congress, any other substantial national or international calamity or any other
event or occurrence of a similar character shall have occurred since the execution of this
Agreement that, in the reasonable judgment of the Agent, makes it impractical or inadvisable to
provide the services set forth in Article II hereof, (v) the Company or any of the Subsidiaries has
sustained, since the date of the latest audited financial statements included or incorporated by
reference in the Prospectus filed with the Commission on or before the date of this Agreement, any
change resulting in a Material Adverse Effect or (vi) since the date of this Agreement, there shall
not have been any change in the capital stock or long-term debt of the Company or any of the
Subsidiaries or any change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, stockholders’ equity, properties,
management, business or prospects of the Company and its Subsidiaries taken as a whole, the effect
of which is, in the reasonable judgment of the Company, so material and adverse as to make it
impracticable or inadvisable to provide the services set forth in Article II hereof. Further, the
Agent shall have the right, by giving at least 90 days’ prior written notice as hereinafter
specified, to terminate this Agreement in its sole discretion. Any such termination shall be
without liability of any party to this Agreement to any other party, except that the provisions of
Article VI, Article VII and Article VIII hereof shall remain in full force and effect
notwithstanding such termination. If the Agent elects to terminate this Agreement as provided in
this Section 8.1, (a) the Agent shall provide the required notice as specified herein, and (ii) the
Agent agrees to comply with the last sentence of Section 2.1(d) with respect to participants in the
Program as of the date notice of such termination is provided for the remainder of the original
term of this Agreement, ending on the third anniversary of the Effective Date. Furthermore,
termination of this Agreement by the Agent will have no effect upon any brokerage account
established by the Agent and any participant in the Program prior to the date of the Agent’s giving notice of such termination, which
brokerage account will remain in effect, including with respect to the arrangement for the Agent’s
compensation set forth in Section 2.1(d).


 


15









 







8.2 The Company shall have the right, by giving notice as hereinafter specified, at any time
to terminate this Agreement if (i) the Agent shall have failed, refused or been unable to perform
any agreement on its part to be performed hereunder or (ii) an outbreak or material escalation of
major hostilities in which the United States is involved, a declaration of war by the U.S.
Congress, any other substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this Agreement that, in the
reasonable judgment of the Company, makes it impractical or inadvisable to proceed with the
completion of the distribution of the Stock. Further, the Company shall have the right, by giving
at least 90 days’ prior written notice as hereinafter specified, to terminate this Agreement in its
sole discretion. Any termination under this Section 8.2 shall be without liability of any party to
any other party, except that the provisions of Article VI, Article VII and Article VIII hereof
shall remain in full force and effect notwithstanding such termination. In the event that the
Company terminates this Agreement under this Section 8.2, the Company may elect, in its sole
discretion, to require that (i) the Agent continue to comply with the last sentence of Section
2.1(d) with respect to participants in the Program as of the date notice of such termination is
provided for the remainder of the original term of this Agreement, ending on the third anniversary
of the Effective Date, or (ii) the Agent refund to the Company, not later than 30 days after such
termination, an amount that reflects an appropriate good faith pro rata portion of the fee (based
on the number of months lapsed and remaining in the three-year term of this Agreement) paid by the
Company to the Agent under Section 2.1(d).



8.3 This Agreement shall remain in full force and effect unless terminated pursuant to Section
8.1 or 8.2 above or otherwise by mutual agreement of the parties, provided that any such
termination by mutual agreement shall in all cases be deemed to provide that Article VI, Article
VII and Article VIII shall remain in full force and effect.



ARTICLE IX

NOTICES




9.1 All notices or communications hereunder shall be in writing and if sent to the Agent shall
be mailed, delivered or faxed and confirmed to the Agent at Wunderlich Securities, Inc., 6000
Poplar Avenue, Suite 150, Memphis, Tennessee 38119, Attention: Stephen J. Bonnema, Chief Operating
Officer (facsimile: (901) 251-1352) (with a copy sent in the same manner to Andrews Kurth LLP, 450
Lexington Avenue, New York, New York 10017, Attention: Richard Kronthal (facsimile: (212)
813-8133), or if sent to the Company, shall be mailed, delivered or faxed and confirmed to the
Company at Pinnacle Entertainment, Inc., 8918 Spanish Ridge Avenue, Las Vegas, Nevada 89148,
Attention: John A. Godfrey (facsimile: (702) 541-7773) (with a copy sent in the same manner to
Brownstein Hyatt Farber Schreck, LLP, 410 17th Street, Suite 2200, Denver, CO 80202,
Attention: Kevin A. Cudney (facsimile: (303) 223-0966). Each party to this Agreement may change
such address for notices by sending to the parties to this Agreement written notice of a new
address for such purpose. Any notice that is mailed shall be effective on the third business day
after delivery to the U.S. mail, postage prepaid. Any notice that is personally delivered shall be
effective on the date of delivery as evidenced by a signed receipt of delivery. Any notice that is
faxed or transmitted by email shall be effective on the date of the confirmation of a fax or email
confirmation of receipt, as appropriate.


 


16









 





ARTICLE X

MISCELLANEOUS




10.1 This Agreement may not be assigned by any party without the express written consent of
the other party. This Agreement shall inure to the benefit of and be binding upon the Company and
the Agent and their respective successors, permitted assigns and the controlling persons, officers
and directors referred to in Article VI hereof, and no other person will have any right or
obligation hereunder.



10.2 This Agreement constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the parties hereto with
regard to the subject matter hereof.



10.3 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF TENNESSEE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR
RULE (WHETHER OF THE STATE OF TENNESSEE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TENNESSEE.



10.4 This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.



10.5 In the event that any action is filed in relation to this Agreement, the unsuccessful
party in the action shall pay to the successful party, in addition to all the sums that either
party may be called on to pay, a reasonable sum for the successful party’s reasonable attorneys’
fees and other legal expenses incurred in connection with such action.



10.6 Manual signatures exchanged by facsimile or electronically shall be deemed original
signatures for all purposes.



10.7 The Company acknowledges and agrees that in connection with the services provided by the
Agent under this Agreement, notwithstanding any preexisting relationship, advisory or otherwise,
between the parties or any oral representations or assurances previously or subsequently made by
the Agent: (i) no fiduciary relationship between the Company and any other person, on the one hand,
and the Agent, on the other, exists; (ii) the Agent is not acting as an advisor or expert to the
Company, and such relationship between the Company, on the one hand, and the Agent, on the other,
is entirely and solely commercial, based on arms-length negotiations; (iii) any duties and
obligations that the Agent may have to the Company shall be limited to those duties and obligations
specifically stated herein; and (iv) the Agent and its affiliates may have interests that differ
from those of the Company. The Company hereby waives any claims that it may have against the Agent
with respect to any breach of fiduciary duty in connection with the services provided by the Agent
under this Agreement.



[SIGNATURE PAGE FOLLOWS]



 


17









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the date hereof.



	 	 	 	 	 	 	 
	 	 	PINNACLE ENTERTAINMENT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 
	/s/ John A. Godfrey	 	 
	 

	 	 	 	 	 
	 

	 	
	Name: 	John A. Godfrey	 	 
	 

	 	
	Title: 	Executive Vice President, General Counsel and
Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WUNDERLICH SECURITIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	/s/ Jeffrey Fowlds	 	 
	 

	 	 	 	 	 
	 

	 	
	Name:	Jeffrey Fowlds	 	 
	 

	 	
	Title:	Managing Director Equity Capital Markets	 	 






 


 









 







EXHIBIT A




OPINIONS OF COUNSEL TO THE COMPANY




1. The Company is validly existing as a corporation and in good standing under the laws of the
State of Delaware.



2. The Company has the corporate power and corporate authority under the laws of the State of
Delaware to (i) execute and deliver, and incur and perform all of its obligations under, the Agent
Agreement and (ii) carry on its business and own its properties as described in the Registration
Statement and the Prospectus.




3. The Agent Agreement has been duly authorized, executed and delivered by the Company.



4. The issuance and sale of the Stock have been duly authorized by all necessary corporate
action of the Company.



5. The holders of outstanding shares of capital stock of the Company are not entitled to any
preemptive rights under the Company certificate of incorporation, the Company by-laws or any
Applicable Agreement to subscribe for the Stock.



6. Except as disclosed in the Registration Statement or the Prospectus, no person has the
right, which has not been waived, under any Applicable Agreement to require the registration under
the Securities Act of any sale of securities issued by the Company by reason of the filing or
effectiveness of the Registration Statement.



7. When delivered to a member of the Program in accordance with the terms of the Program as
described in the Prospectus, the Stock will be validly issued, fully paid and nonassessable.



8. None of the execution and delivery by the Company of the Agent Agreement (A) constituted,
constitutes or will constitute a violation of the Company certificate of incorporation or the
Company bylaws, (B) constituted, constitutes or will constitute a breach or violation of, or a
default (or an event which, with notice or lapse of time or both, would constitute such a default)
under, any Applicable Agreement, (C) resulted, results or will result in the creation of any
security interest in, or lien upon, any of the property or assets of the Company pursuant to any
Applicable Agreement, (D) resulted, results or will result in any violation of (i) applicable laws
of the United States of America or (ii) the General Corporation Law of the State of Delaware, or
(E) resulted, results or will result in the contravention of any Applicable Order.



9. Other than filings to be made with the Commission, no Governmental Approval or Filing,
which has not been obtained or made and is not in full force and effect, is required to authorize,
or is required for, the execution and delivery by the Company of the Agent Agreement. As used in
this paragraph, “Governmental Approval or Filing” means any consent, approval, license,
authorization or validation of, or filing, recording or registration with, any executive,
legislative, judicial, administrative or regulatory body of the State
of Delaware or the United States of America, pursuant to (x) applicable laws of the United States of America or (y)
the General Corporation Law of the State of Delaware.


 


A-1









 







10. The Company is not an “investment company” within the meaning of said term as used in the
Investment Company Act of 1940, as amended.



In addition, we have participated in conferences with officers and other representatives of
the Company and your counsel at which the contents of the Registration Statement and the Prospectus
(including the Incorporated Documents) and related matters were discussed and, although we have not
independently verified and are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained or incorporated by reference in the
Registration Statement and the Prospectus, on the basis of the foregoing (relying with respect to
factual matters to the extent we deem appropriate upon statements by officers and other
representatives of the Company), (a) we confirm to you that, in our opinion, each of the
Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared on
its face to be appropriately responsive in all material respects to the requirements of the
Securities Act and the Rules and Regulations (except that we express no statement or belief as to
Regulation S-T), (b) we have not become aware of any documents that are required to be filed as
exhibits to the Registration Statement or any of the Incorporated Documents and are not so filed or
of any documents that are required to be summarized in the Prospectus or any of the Incorporated
Documents, and are not so summarized and (c) furthermore, no facts have come to our attention that
have led us to believe that (i) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, or (ii) the
Prospectus (including the Incorporated Documents), as of its date and as of the date of this
opinion letter, contained or contains an untrue statement of a material fact or omitted or omits to
state any material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, it being understood that we express no opinion,
statement or belief in this opinion letter with respect to (x) the financial statements and related
schedules, including the notes and schedules thereto and the auditors’ reports thereon, (y) any
other financial, statistical or accounting data included or incorporated or deemed incorporated by
reference in, or excluded from, the Registration Statement or the Prospectus (included the
Incorporated Documents), and (z) representations and warranties and other statements of fact
included in the exhibits to the Registration Statement or Incorporated Documents.



Furthermore, we advise you that we have been orally advised by the Commission that the
Registration Statement was declared effective under the Securities Act on July 22, 2011. In
addition, we have been orally advised by the Commission that no stop order suspending the
effectiveness of the Registration Statement has been issued. To our knowledge based solely upon
such oral communication with the Commission, no proceedings for that purpose have been instituted
or are pending or threatened by the Commission.



 


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 As used herein, (a) “Applicable Agreements” means those agreements and other instruments
listed as exhibits to the Registration Statement pursuant to Item
601(b) of Regulation S-K, (b) “Applicable Orders” means those orders or decrees of governmental
authorities that have been certified by officers of the Company as being every order or decree of
any governmental authority by which the Company or any of its subsidiaries or any of their
respective properties is bound, that is material in relation to the business, operations, affairs,
financial condition, assets, or properties of the Company and its subsidiaries, considered as a
single enterprise and (c) “Incorporated Documents” means each of the Company’s reports that have
been filed with the Commission and are incorporated by reference in the Registration Statement.




 


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