Exhibit 10.2







Exhibit 10.2




PINNACLE ENTERTAINMENT, INC.

EXECUTIVE DEFERRED COMPENSATION PLAN

As Amended and Restated Effective January 1, 2011





 


 









 









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE 1 DEFINITIONS
	 	 	2	 
	 
	 	 	 	 
	1.1 Actuarial Equivalent
	 	 	2	 
	1.2 Affiliate
	 	 	2	 
	1.3 Base Annual Salary
	 	 	2	 
	1.4 Beneficiary
	 	 	2	 
	1.5 Beneficiary Designation Form
	 	 	2	 
	1.6 Benefit Distribution Date
	 	 	2	 
	1.7 Benefit Distribution Form
	 	 	2	 
	1.8 Board
	 	 	2	 
	1.9 Bonus
	 	 	2	 
	1.10 Change in Control
	 	 	3	 
	1.11 Claimant
	 	 	4	 
	1.12 Code
	 	 	4	 
	1.13 Combined Account
	 	 	4	 
	1.14 Committee
	 	 	4	 
	1.15 Crediting Rate
	 	 	4	 
	1.16 Deferral Contribution
	 	 	4	 
	1.17 Deferral Contribution Account
	 	 	4	 
	1.18 Disability
	 	 	4	 
	1.19 Election Form
	 	 	5	 
	1.20 Elective Deductions
	 	 	5	 
	1.21 “Employer” or “Employers
	 	 	5	 
	1.22 Enrollment Forms
	 	 	5	 
	1.23 ERISA
	 	 	5	 
	1.24 Final Average Compensation
	 	 	5	 
	1.25 Financial Emergency
	 	 	6	 
	1.26 First Amendment and Restatement
	 	 	6	 
	1.27 Incentive Plan
	 	 	6	 
	1.28 Interim Distribution Date
	 	 	6	 
	1.29 Other Stock Unit Awards
	 	 	6	 
	1.30 Participant
	 	 	6	 
	1.31 Participation Agreement
	 	 	6	 
	1.32 Plan
	 	 	6	 
	1.33 Plan Year
	 	 	6	 
	1.34 Prior Plan Document
	 	 	7	 
	1.35 “Retirement,” “Retires” or “Retired
	 	 	7	 
	1.36 Second Amendment and Restatement
	 	 	7	 
	1.37 Share Price
	 	 	7	 
	1.38 Specified Employee
	 	 	7	 
	1.39 Stock Unit Account
	 	 	7	 
	1.40 Subsidiary
	 	 	7	 
	1.41 Termination of Employment
	 	 	7	 
	1.42 Trust
	 	 	7	 





 


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TABLE
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	 	 	Page	 
	 
	1.43 Years of Service
	 	 	7	 
	 
	 	 	 	 
	ARTICLE 2 ELIGIBILITY, SELECTION, ENROLLMENT
	 	 	7	 
	 
	 	 	 	 
	2.1 Eligibility, Selection by Committee
	 	 	7	 
	2.2 Enrollment Requirements
	 	 	7	 
	2.3 Commencement of Participation
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 3 DEFERRAL CONTRIBUTIONS, INVESTMENT ADJUSTMENTS, TAXES AND VESTING
	 	 	8	 
	 
	 	 	 	 
	3.1 Deferral Contributions
	 	 	8	 
	3.2 Maintenance of Participant Accounts
	 	 	10	 
	3.3 Adjustment of Participant Accounts for Earnings
	 	 	11	 
	3.4 Withholding of Taxes
	 	 	11	 
	3.5 Vesting
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 4 SUSPENSION OF DEFERRALS
	 	 	11	 
	 
	 	 	 	 
	4.1 Disability
	 	 	11	 
	4.2 Financial Emergency
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 5 INTERIM AND HARDSHIP DISTRIBUTIONS
	 	 	12	 
	 
	 	 	 	 
	5.1 Interim Distributions
	 	 	12	 
	5.2 Withdrawal in the Event of a Financial Emergency
	 	 	12	 
	5.3 No Withdrawal from Stock Unit Account
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 6 PAYMENT OF BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT
	 	 	13	 
	 
	 	 	 	 
	6.1 Payment as a Result of Termination of Employment
	 	 	13	 
	6.2 Death Prior to Payment of Deferral Contribution Account Balance
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 7 PAYMENT UPON RETIREMENT, DEATH OR DISABILITY
	 	 	14	 
	 
	 	 	 	 
	7.1 Retirement, Death or Disability Benefit
	 	 	14	 
	7.2 Death Prior to Payment of Deferral Contribution Account Balance
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 8 PAYMENTS ON CHANGE IN CONTROL
	 	 	15	 
	 
	 	 	 	 
	8.1 Deferral Contribution Account
	 	 	15	 
	8.2 Special Tax Payment
	 	 	15	 
	8.3 Calculation of Amounts
	 	 	15	 
	8.4 Excise Tax Gross Up
	 	 	15	 
	8.5 Delay for Specified Employees
	 	 	16	 
	8.6 No Duplication of Payments
	 	 	16	 





 


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TABLE
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	 	 	Page	 
	 
	ARTICLE 9 FORM OF DISTRIBUTIONS
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 10 CONTINUING EFFECT OF PRIOR PLAN DOCUMENT FOR PRE-2005 DEFERRALS
	 	 	16	 
	 
	 	 	 	 
	10.1 Continuing Effect of Prior Plan Document on Pre-2005 Deferrals
	 	 	16	 
	10.2 Effect of First Amendment and Restatement, the Second Amendment and
Restatement and This Plan Restatement
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 11 BENEFICIARY DESIGNATION
	 	 	17	 
	 
	 	 	 	 
	11.1 Beneficiary
	 	 	17	 
	11.2 Beneficiary Designation, Change, Spousal Consent
	 	 	17	 
	11.3 Acknowledgment
	 	 	17	 
	11.4 No Beneficiary Designation
	 	 	17	 
	11.5 Doubt as to Beneficiary
	 	 	17	 
	11.6 Death of Spouse or Dissolution of Marriage
	 	 	17	 
	11.7 Discharge of Obligations
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 12 TERMINATION, AMENDMENT OR MODIFICATION
	 	 	18	 
	 
	 	 	 	 
	12.1 Termination
	 	 	18	 
	12.2 Amendment
	 	 	18	 
	12.3 Effect of Payment
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 13 ADMINISTRATION
	 	 	18	 
	 
	 	 	 	 
	13.1 Committee Duties
	 	 	18	 
	13.2 Agents
	 	 	19	 
	13.3 Binding Effect of Decisions
	 	 	19	 
	13.4 Indemnity of Committee
	 	 	19	 
	13.5 Employer Information
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 14 OTHER BENEFITS AND AGREEMENTS
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 15 CLAIMS PROCEDURES
	 	 	19	 
	 
	 	 	 	 
	15.1 Presentation of Claim
	 	 	19	 
	15.2 Notification of Decision
	 	 	20	 
	15.3 Review of a Denied Claim
	 	 	20	 
	15.4 Decision on Review
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 16 TRUST
	 	 	21	 
	 
	 	 	 	 
	16.1 Establishment of the Trust
	 	 	21	 
	16.2 Interrelationship of the Plan and the Trust
	 	 	21	 
	16.3 Distributions from the Trust
	 	 	21	 





 


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TABLE
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	 	 	Page	 
	 
	ARTICLE 17 ARBITRATION
	 	 	21	 
	 
	 	 	 	 
	17.1 In General
	 	 	21	 
	17.2 Selection of Arbitrator
	 	 	21	 
	17.3 Scope
	 	 	21	 
	17.4 Arbitration Fees
	 	 	22	 
	17.5 Arbitrator’s Award
	 	 	22	 
	17.6 Location of Arbitration
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 18 MISCELLANEOUS
	 	 	22	 
	 
	 	 	 	 
	18.1 Status of Plan
	 	 	22	 
	18.2 Unsecured General Creditor
	 	 	23	 
	18.3 Employer’s Liability
	 	 	23	 
	18.4 Nonassignability
	 	 	23	 
	18.5 Not a Contract of Employment
	 	 	23	 
	18.6 Furnishing Information
	 	 	23	 
	18.7 Terms
	 	 	24	 
	18.8 Captions
	 	 	24	 
	18.9 Governing Law
	 	 	24	 
	18.10 Notice
	 	 	24	 
	18.11 Successors
	 	 	24	 
	18.12 Validity
	 	 	24	 
	18.13 Incompetent
	 	 	24	 
	18.14 Insurance or Annuity Contract
	 	 	25	 
	18.15 Employer
	 	 	25	 
	 
	 	 	 	 
	EXHIBIT A TAX GROSS-UP PAYMENTS
	 	 	26	 







 


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PINNACLE ENTERTAINMENT, INC.

EXECUTIVE DEFERRED COMPENSATION PLAN

As Amended and Restated Effective January 1, 2011




THIS PINNACLE ENTERTAINMENT, INC. EXECUTIVE DEFERRED COMPENSATION PLAN, as amended and
restated effective January 1, 2011, is adopted as of the 1st day of March, 2011, by
Pinnacle Entertainment, Inc., a Delaware corporation (“Pinnacle”), as follows:



RECITALS




WHEREAS, Pinnacle and its subsidiaries have established the Pinnacle Entertainment, Inc.
Executive Deferred Compensation Plan (the “Plan”), as of January 1, 2000, to provide additional
retirement benefits and income deferral opportunities for a select group of management and highly
compensated employees; and



WHEREAS, Pinnacle intends that the Plan shall at all times be administered and interpreted in
such a manner as to constitute an unfunded nonqualified deferred compensation plan for a select
group of management or highly compensated employees and to qualify for all available exemptions
from the provisions of ERISA; and



WHEREAS, to comply with the provisions of the American Jobs Creation Act of 2004, Pinnacle
adopted the First Amendment and Restatement of the Pinnacle Entertainment, Inc. Executive Deferred
Compensation Plan, effective for deferral of compensation that is earned (i.e., the services that
earned such compensation are performed) or vested after December 31, 2004, while retaining the
original provisions of the Plan for deferral of compensation that is earned (i.e., the services
that earned such compensation are performed) and vested before January 1, 2005; and



WHEREAS,
to make additional changes to the Plan, Pinnacle adopted the Second Amendment and
Restatement of the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan, effective
December 30, 2007;



WHEREAS,
to make additional changes to the Plan, Pinnacle adopted an Amendment and
Restatement of the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan, effective
January 1, 2011;



WHEREAS,
Pinnacle wishes to amend the Plan to permit the deferral of compensation in the form
of Other Stock Unit Awards under the Incentive Plan, to be credited to a Participant’s Stock Unit
Account under this Plan and to make certain other changes and to restate the Plan effective January
1, 2011; and



WHEREAS,
no deferral predating the adoption of this amendment and restatement shall be
affected in any manner that would alter the compliance of such deferral with Section 409A of the
Code.


 


 









 





NOW, THEREFORE, Pinnacle hereby amends and restated the Plan in its entirety effective as of
January 1, 2011, as follows:



ARTICLE 1

DEFINITIONS




For purposes of this Plan, the following phrases or terms shall have the meanings indicated:



1.1 “Actuarial Equivalent” shall mean an actuarial equivalent value of an amount
payable in a different form or at a different date computed on the basis of a discount rate equal
to the Crediting Rate and mortality assumptions under the RP-2000 Male Healthy Annuitant or RP-2000
Female Healthy Annuitant, as the case may be, table. As the Plan Administrator deems necessary, in
its sole discretion, such actuarial assumptions may be adjusted from time-to-time, provided that
such actuarial assumptions as adjusted are reasonable and have substantially the same effect on
benefits under this Plan as the actuarial assumptions in effect on December 30, 2007, and no
Participant shall be deemed to have any right, vested or non-vested, regarding the continued use of
any previously adopted actuarial assumptions.



1.2 “Affiliate” shall mean any member of a group of corporations or businesses which
are aggregated with Pinnacle as a single employer under Sections 414(b), 414(c), 414(m) or 414(o)
of the Code.



1.3 “Base Annual Salary” shall mean the base annual compensation payable to a
Participant by an Employer for services rendered during a Plan Year, (i) excluding Bonus, director
fees or other additional incentives or awards payable to the Participant, but (ii) before reduction
for any Elective Deductions.



1.4 “Beneficiary” shall mean one or more persons, trusts, estates or other entities,
designated by the Participant in accordance with the Plan or otherwise determined pursuant to the
terms of the Plan to receive the Participant’s undistributed benefits in the event of the
Participant’s death.



1.5 “Beneficiary Designation Form” shall mean the documents required by the Committee
to be used by the Participant to designate a Beneficiary.



1.6 “Benefit Distribution Date” shall mean the date on which the Participant’s
employment terminates for any reason other than Retirement, including but not limited to death or
Disability, and if the Participant’s employment terminates due to his Retirement, the first January
1 following such Participant’s Retirement, as such date may be extended pursuant to Section 2.2(b).



1.7 “Benefit Distribution Form” shall mean the documents required by the Committee to
be used by the Participant to specify the manner in which his benefits from his Deferral
Contribution Account shall be distributed on or after his Benefit Distribution Date.



1.8 “Board” shall mean the board of directors of the Employer.


 




			
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1.9 “Bonus” shall mean the amounts earned by a Participant for services rendered
during a Plan Year under any bonus or incentive plan or arrangement sponsored by an Employer,
before reduction for any Elective Deductions, but excluding commissions, stock-related awards and
other non-monetary incentives.



1.10 “Change in Control” shall mean the occurrence of any of the following events:



(i) The direct or indirect acquisition by an unrelated “Person” or “Group” of “Beneficial
Ownership” (as such terms are defined below) of more than 50% of the voting power of the Employer’s
issued and outstanding voting securities in a single transaction or a series of related
transactions;



(ii) The direct or indirect sale or transfer by the Employer of substantially all of its
assets to one or more unrelated Persons or Groups in a single transaction or a series of related
transactions;



(iii) The merger, consolidation or reorganization of the Employer with or into another
corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of
the Employer’s issued and outstanding voting securities immediately before such merger or
consolidation do not own more than 50% of the voting power of the issued and outstanding voting
securities of the surviving corporation or other entity immediately after such merger,
consolidation or reorganization; or



(iv) During any consecutive 12-month period, individuals who at the beginning of such period
constituted the Board of the Employer (together with any new Directors whose election to such Board
or whose nomination for election by the stockholders of the Employer was approved by a vote of a
majority of the Directors of the Employer then still in office who were either Directors at the
beginning of such period or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the Employer then in office.



None of the foregoing events, however, shall constitute a Change of Control if such event is not a
“Change in Control Event” under Treasury Regulations Section 1.409A-3(i)(5) or successor IRS
guidance. For purposes of determining whether a Change of Control has occurred, the following
Persons and Groups shall not be deemed to be “unrelated”: (A) such Person or Group directly or
indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of
the Employer’s voting securities immediately before the transaction in question, (B) the Employer
has Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting
securities of such Person or Group, or (C) more than 50% of the voting power of the issued and
outstanding voting securities of such Person or Group are owned, directly or indirectly, by
Beneficial Owners of more than 50% of the issued and outstanding voting power of the Employer’s
voting securities immediately before the transaction in question. The terms “Person,” “Group,”
“Beneficial Owner,” and “Beneficial Ownership” shall have the meanings used in the Securities
Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons
will not be considered to be acting as a “Group” solely because they purchase or own stock of this
Employer at the same time, or as a result of the same public offering, (II) however, Persons will
be considered to be acting as a “Group” if they are owners of



 




			
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a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction, with the Employer, and (III) if a Person, including an entity, owns
stock both in the Employer and in a corporation that enters into a merger, consolidation, purchase
or acquisition of stock, or similar transaction, with the Employer, such shareholders shall be
considered to be acting as a Group with other shareholders only with respect to the ownership in
the corporation before the transaction.




1.11 “Claimant” shall mean the person or persons described in Section 15.1 who apply
for benefits or amounts that may be payable under the Plan.



1.12 “Code” shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and other authority issued there under by the appropriate governmental authority.
References to the Code shall include references to any successor section or provision of the Code.



1.13 “Combined Account” means the combined balance of a Participant’s Deferral
Contribution Account and Stock Unit Account.



1.14 “Committee” shall mean the committee described in Article 13 which shall
administer the Plan.



1.15 “Crediting Rate” shall mean, for the quarter ending December 31, 2007 and earlier
periods, the Crediting Rate under the First Amendment and Restatement, and, for later periods,



(a) The average, over the business days of the calendar month preceding the first business day
of each quarter of the Plan Year, of the yields on 30-year U.S. Treasury Bonds, plus 500 basis
points, computed and compounded quarterly; and



(b) Before the beginning of a quarter of a Plan Year, the Committee may designate another
floating rate based on an index and a spread of basis points under or over such index to determine
the Crediting Rate (to be computed and compounded quarterly) for the Deferral Contribution
Accounts, effective for such quarter of such Plan Year and later periods until the Committee makes
a further change.



1.16 “Deferral Contribution” shall mean the total amount of Base Annual Salary or
Bonus deferred by a Participant that would otherwise have been earned during a particular Plan Year
(i.e., the Participant performs the services during the Plan Year that earn the Base Annual Salary
or Bonus).



1.17 “Deferral Contribution Account” shall mean a Participant’s aggregate Deferral
Contributions for all Plan Years, plus the balance of the Participant’s “Contingent Earnings
Account” as of December 31, 2007 computed under the First Amendment and Restatement and Section
3.3(a)(ii), plus any amounts credited to the Participant’s Deferral Contribution Account under
Section 3.3(a), reduced to reflect all distributions and withdrawals.



 




			
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4









 





1.18 “Disability” shall mean (i) inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected
to result in death or can be expected to last for a continuous period of not less than 12
months, or (ii) the receipt of income replacement benefits for a period of not less than three
months under an accident and health plan of the Employer by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months. A Participant shall be deemed to have suffered
a Disability if determined to be totally disabled by the Social Security Administration.



1.19 “Election Form” shall mean the documents required by the Committee to be used by
a Participant to elect with respect to a particular Plan Year (i) the amount of Base Annual Salary
and/or Bonus the Participant has elected to defer with respect to that Plan Year, (ii) the portion
(if any) of Deferral Contributions with respect to that Plan Year which shall be distributed on an
Interim Distribution Date and (iii) the portion of the Other Stock Unit Awards to be deferred into
the Stock Unit Account.



1.20 “Elective Deductions” shall mean amounts of a Participant’s Base Annual Salary or
Bonus that are voluntarily deferred or contributed by the Participant pursuant to any qualified or
non-qualified deferred compensation plan and that would have been payable to the Participant in
cash had there been no such deferral or contribution, including, without limitation, amounts
deferred pursuant to Sections 125, 402(e)(3) and 402(h) of the Code.



1.21 “Employer” or “Employers” shall mean Pinnacle Entertainment, Inc., a
Delaware corporation, and any of its adopting subsidiaries (now in existence or hereafter formed or
acquired) and any successor entity.



1.22 “Enrollment Forms” shall mean the Participation Agreement, the initial Election
Form, the initial Benefit Distribution Form, the Beneficiary Designation Form, and any other forms
or documents which may be required of a Participant by the Committee, in its sole discretion, as a
condition to participating in the Plan.



1.23 “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and other authority issued there under by the appropriate governmental
authority. References herein to any section of ERISA shall include references to any successor
section or provision of ERISA.



1.24 “Final Average Compensation” shall mean the average of a Participant’s
Compensation for his five consecutive full calendar years of employment completed in the 10
calendar years before the date of determination that would yield the highest average. If the
Participant has not completed five consecutive full calendar years of employment within the 10
years when Final Average Compensation is to be determined, all of such Participant’s full calendar
years completed within the 10 calendar years before the date of determination shall be counted.
For purposes of the preceding definition, “Compensation” shall mean the annual base salary and cash
bonuses, before reduction for compensation deferred pursuant to all qualified, non-qualified and
Code Section 125 or 401(k) plans of any Employer, but excluding commissions, overtime, relocation
expenses, incentive payments, non-monetary awards, equity compensation, long-term incentive
compensation, directors fees and other fees, and automobile allowances and other expense
reimbursements paid to a Participant for employment services rendered to any Employer, and other
fringe benefits. For purposes of determining Final Average


 




			
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Compensation, (a) each bonus shall be attributed to the period in which the Participant
performs the services that earn the bonus, even if the bonus is not payable until a later period
and even if the Participant’s right to the receive the bonus does not vest until a later period,
and (b) the Aztar bonus received in 2006 and any severance or similar payment made on account of
termination of employment under any agreement between an Employer and the Participant (including,
with out limitation, an employment agreement) shall not be counted as a bonus; provided, however,
that any bonus amount that the Participant earned without regard to his termination of employment
(or would have earned if his employment had not terminated) during the period that includes his
termination of employment, and that is actually paid in connection with his termination of
employment, shall be counted as a bonus.




1.25 “Financial Emergency” shall mean a severe financial hardship to the Participant
resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent
(as defined in Section 152 of the Code, without regard to Sections 152(b)(1), 152(b)(2) and
152(d)(1)(B)) of the Participant, loss of the Participant’s property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of events beyond the
control of the Participant.



1.26 “First Amendment and Restatement” shall mean the First Amendment and Restatement
of the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan.



1.27 “Incentive Plan” shall mean the Pinnacle Entertainment, Inc. Equity and
Performance Incentive Plan.



1.28 “Interim Distribution Date” shall mean the 15th day of any calendar year
designated by a Participant in an effective Election Form as the date on which all or a part of the
Participant’s Deferred Contribution Account shall be distributed in a lump sum payment, which
calendar year (except as provided in Section 5.1 with respect to elections made in calendar 2007 or
2008) shall be no earlier than the second calendar year following the end of the Plan Year to which
the Election Form applies.



1.29 “Other Stock Unit Awards” shall mean have the same meaning as the same term as
defined under the Incentive Plan.



1.30 “Participant” shall mean any employee participating in the Plan as provided in
Article 2.



1.31 “Participation Agreement” shall mean the document required by the Committee to be
used by a Participant to effect an agreement between the Employer and the Participant to defer
compensation pursuant to the terms of the Plan.



1.32 “Plan” shall mean the Pinnacle Entertainment, Inc. Executive Deferred
Compensation Plan, which shall be evidenced by this instrument, but which shall continue to be
evidenced by the Prior Plan Document, for deferrals of Base Annual Salary and Bonuses that are
earned (i.e., the services that earned such Base Annual Salary and Bonuses are performed) and
vested before January 1, 2005.


 




			
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1.33 “Plan Year” shall mean the period beginning on January 1 of each year and ending
December 31.



1.34 “Prior Plan Document” shall mean the Pinnacle Entertainment, Inc. Executive
Deferred Compensation Plan, Effective January 1, 2000, as amended.



1.35 “Retirement,” “Retires” or “Retired” shall mean severance from
employment (i) for any reason other than an authorized leave of absence, Disability, or death, and
(ii) on or after the earlier of the attainment of age 55 with five Years of Service, or on or after
reaching age 65.



1.36 “Second Amendment and Restatement” shall mean the Second Amendment and
Restatement of the Pinnacle Entertainment, Inc. Executive Deferred Compensation Plan, adopted on
December 30, 2007 and as amended by the First Amendment thereto, as adopted on December 24, 2008.



1.37 “Share Price” shall mean the price per share of Common Stock of the Employer
determined as of the close of each date of trading of such stock on a national stock exchange.



1.38 “Specified Employee” shall mean a “specified employee” of Pinnacle or any
Affiliate, as defined in Treasury Regulations Section 1.409A-1(i).



1.39 “Stock Unit Account” means the bookkeeping account established and maintained
under the Plan for each Participant who elects to defer any portion of his Other Stock Unit Awards.



1.40 “Subsidiary” means any corporation more than 50% of the voting stock of which is
directly or indirectly owned by the Employer.



1.41 “Termination of Employment” shall mean the voluntary or involuntary severance
from employment, with any and all Employers, for any reason other than Retirement, Disability, or
death.



1.42 “Trust” shall mean a grantor trust of the type commonly referred to as “rabbi
trust” created to “informally fund” contingent benefits payable under the Plan.



1.43 “Years of Service” shall mean the total number of 12-month periods during which a
Participant has been continuously employed by one or more Employers.



ARTICLE 2

ELIGIBILITY, SELECTION, ENROLLMENT




2.1 Eligibility, Selection by Committee. Those employees of an Employer who are both
(i) determined by the Employer to be includable in a select group of management or highly
compensated employees of the Employer and (ii) specifically chosen by the Employer to participate
in the Plan shall be eligible to participate in the Plan.


 



			
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2.2 Enrollment Requirements. Each employee deemed eligible to defer compensation into
the Plan pursuant to Section 2.1 shall, as a condition to participating in the Plan, complete
and return to the Committee all of the required Enrollment Forms within the time specified by
the Committee. In addition, the Committee shall in its sole discretion, establish such other
enrollment requirements necessary for continued participation in the Plan.



(a) The Benefit Distribution Form must be provided to the Committee as part of the Enrollment
Forms. In the Benefit Distribution Form, the Participant shall elect to receive the benefits from
his Deferral Contribution Account paid following Retirement in a lump sum or in annual installments
over a period of five, 10 or 15 years, and shall elect to receive the benefits from his Deferral
Contribution Account paid upon Termination of Employment, Disability, or death in a lump sum or in
annual installments over a period of five years, except that if the present value (using the
Crediting Rate as the discount rate) of annual installments remaining to be made is less than
$50,000, the entire remaining balance of his Deferral Contribution Account shall be paid in the
form of a lump sum payment.



(b) The Participant may submit a subsequent Benefit Distribution Form in order to change the
form of distribution, or to delay commencement of the payment of Retirement benefits from his
Deferral Contribution Account until the Participant’s 75th birthday; provided however,
such form shall be effective only if it (i) does not accelerate distribution of any benefits, (ii)
is submitted at least 13 months before the Participant’s original Benefit Distribution Date, (iii)
delays the first payment of benefits from the Deferral Contribution Account for at least five years
past the original Benefit Distribution Date, and (iv) is approved by the Committee, in its sole
discretion.



2.3 Commencement of Participation. Provided a Participant has met all enrollment
requirements set forth in this Plan or otherwise required by the Committee, the Participant’s
participation shall commence as provided in Section 3.1(b). If a Participant fails to meet all
such requirements within the specified time period with respect to any Plan Year, the Participant
shall not be eligible to defer compensation during that Plan Year.



ARTICLE 3

DEFERRAL CONTRIBUTIONS, INVESTMENT ADJUSTMENTS, 

TAXES AND VESTING




3.1 Deferral Contributions.



(a) Election to Defer. A Participant may make an election to defer the receipt of
Base Annual Salary or Bonus earned by the Participant during any Plan Year (i.e., the Plan Year in
which the Participant performs the services that earn the Base Annual Salary or Bonus). With
respect to that portion of the Participant’s Bonus that is paid in Other Stock Unit Awards, the
Participant may elect to defer all or a portion of any such award, subject to the terms and
conditions of such Bonus award and the Incentive Plan. The Participant’s election shall be made by
an annual Election Form, completed and submitted to the Committee in accordance with the procedures
established by the Committee in its sole discretion, but in every case in compliance with the
requirement of Section 3.1(b).


 




			
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(b) Election Requirements. The Election Form must be submitted before the beginning
of the Plan Year to which it applies, and shall be effective only for the Base Annual
Salary and/or Bonus that the Participant earns (i.e., the Participant performs the services
that earn such Base Annual Salary and/or Bonus) in that Plan Year, subject to the following rules:



(i) The Committee may require that Election Forms be filed a stated number of days before the
beginning of the Plan Year to which the Election Forms apply.



(ii) Any employee who is selected to participate in this Plan under Section 2.1 during a Plan
Year may elect to participate and commence deferrals by filing an Election Form within 30 days
following his designation as a Participant, in which case the Election Form shall be effective for
Base Annual Salary and/or Bonus earned (i.e., the Participant performs the services that earn such
Base Annual Salary and/or Bonus) after the date of the filing of such Election Form.



(iii) In the case of any bonus which is “performance-based compensation,” within the meaning
of Treasury Regulations Section 1.409A-1(e), based on services performed over a period of at least
12 months, the Committee may permit a Participant to file an Election Form applying to such Bonus
not later than six months before the end of such period, provided that (a) the Participant performs
services continuously for an Employer from the later of the beginning of the performance period or
the date the performance criteria are established through the date on which the Election Form is
filed, and (b) the Election Form is filed before the amount of the “performance-based compensation”
is readily ascertainable.



(iv) Each Election Form shall be irrevocable during the Plan Year to which it relates, or, if
it relates to a Bonus which is “performance-based compensation,” within the meaning of Treasury
Regulations Section 1.409A-1(e), based on services performed over a period of at least 12 months,
during such 12-month period.



(v) For deferrals of Bonuses earned in 2008, the Committee, in its discretion, may permit
Participants to file Election Forms at times permitted under the transition rules of IRS Notice
2007-86 and other IRS guidance.



(c) Components of Deferral Contributions.



(i) Base Annual Salary. A Participant may designate a fixed dollar amount to be
deducted from his Base Annual Salary. Such amount shall be withheld, in substantially equal
installments, from each regularly scheduled payment of Base Annual Salary.



(ii) Bonus. A Participant may designate a fixed dollar amount or a percentage to be
deducted from his Bonus. If a fixed dollar amount is designated by the Participant to be deducted
from any Bonus payment and such fixed dollar amount exceeds the Bonus actually payable to the
Participant, the entire amount of such Bonus shall be withheld. A Participant also may elect to
defer a percentage of all or a portion of his Bonus that is payable in Other Stock Unit Awards,
subject to the terms and conditions of such Bonus award and the Incentive Plan.


 




			
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(d) Minimum Deferral.



(i) Minimum. A Participant may not elect to defer a total amount of Base Annual
Salary and Bonus during a Plan Year of less than $3,000. If an Election Form is submitted which
would yield less than the stated minimum amount, the amount deferred shall be zero.



(ii) Short Plan Year. If an Employee first becomes a Participant after the first day
of any Plan Year, the minimum deferral amount shall be an amount equal to $3,000 multiplied by a
fraction, the numerator of which is the number of complete months remaining in the Plan Year after
the Employee becomes a Participant and the denominator of which is 12.



(e) Maximum Deferral. A Participant may not elect to defer more than the following
percentages:



	 	 	 
	 	 	Maximum
	Deferral	 	Percentage
	 	 	 
	Base Annual Salary
	 	75%
	Bonus
	 	90%






3.2 Maintenance of Participant Accounts. The Committee shall account separately for
each Participant’s Deferral Contribution Account, Stock Unit Account and Combined Account.



(a) Within the Deferral Contribution Account of each person who was a Participant in this Plan
before January 1, 2005, the Committee shall keep sub-accounts to reflect the portion of such
Participant’s account balance attributable to deferrals of Base Annual Salary and Bonuses that were
earned (i.e., the services that earned such Base Annual Salary and Bonuses are performed) and
vested before January 1, 2005 (which shall continue to be governed by the provisions of the Prior
Plan Document, including, without limitation, the provisions thereof dealing with “Hypothetical
Investments” as defined therein) and the portion of such Participant’s account balance attributable
to deferrals of Base Annual Salary and Bonuses that is earned (i.e., the services that earned such
compensation are performed) or vested after December 31, 2004 (which shall be governed by the terms
and provisions of the First Amendment and Restatement or of this Second Amendment and Restatement,
as applicable).



(b) Deferral Contributions shall be deemed to be made to the Plan by the Participant and
credited to the Deferral Contribution Account on the date the Participant would have received such
compensation had it not been deferred pursuant to the Plan.



3.3 Adjustment of Participant Accounts for Earnings.



(a) With respect to deferrals made in cash:



(i) From and after January 1, 2008, amounts in each Participant’s Deferral Contribution
Account attributable to deferrals of Base Annual Salary and Bonuses that is earned (i.e., the
services that earned such compensation are performed) or vested after December 31, 2004, shall be
credited on the final day of each quarter of the Plan Year with
earnings at the Crediting Rate on the opening balance of such Deferral Contribution Account
for such quarter.


 




			
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(ii) On December 31, 2007, the Employer shall credit to the “Contingent Earnings Account” of
each Participant under the First Amendment and Restatement an amount equal to (i) earnings
calculated at 10% per annum, compounded quarterly, on the total of the opening balance for such
quarter of the Participant’s Combined Account (as then defined and computed under the First
Amendment and Restatement), less (ii) the amount of earnings credited for such quarter to the
Participant’s Deferred Contribution Account pursuant to Section 3.3(a) of the First Amendment and
Restatement.



(b) With respect to deferrals of Other Stock Unit Awards, the Employer shall credit the Stock
Unit Account on the final day of each quarter of the Plan Year for earnings (or losses) related to
the Share Price.



3.4 Withholding of Taxes.



(a) Annual Withholding from Compensation. For any Plan Year in which Deferral
Contributions are made to the Plan, the Employer shall withhold the Participant’s share of FICA,
FUTA and other employment taxes from the portion of the Participant’s Base Annual Salary and/or
Bonus or other compensation not deferred. If deemed appropriate by the Employer, the amount of
deferrals elected on a Participant’s Election Form may be reduced where necessary to facilitate
compliance with applicable withholding requirements. If any taxes, including but not limited to,
FICA, FUTA and other employment taxes with respect to the Combined Account, are required to be
withheld before the time of payment, the Employer may withhold such amounts from other compensation
paid to the Participant.



(b) Withholding from Benefit Distributions. The Participant’s Employer (or the
trustee of the Trust, as applicable) shall withhold from any payments made to a Participant or
Beneficiary under this Plan all federal, state and local income, FICA, FUTA and other employment
and other taxes required to be withheld by the Employer (or the trustee of the Trust, as
applicable), in connection with such payments, in amounts and in a manner to be determined in the
sole discretion of the Employer (or the trustee of the Trust, as applicable).



3.5 Vesting. The Participant shall at all times be 100% vested in his Deferral
Contribution Account. As of December 31, 2007, each Participant shall be 100% vested in the
balance of his “Contingent Earnings Account” under the First Amendment and Restatement, which such
Contingent Earnings Account shall then be combined with his Deferral Contribution Account.



ARTICLE 4

SUSPENSION OF DEFERRALS




4.1 Disability. If a Participant suffers a Disability, any current Election Form may
be cancelled, provided that such cancellation shall occur by the later of the end of the taxable
year of the Participant or the 15th day of the third month, following the date on which the
Participant suffers the Disability.



 




			
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4.2 Financial Emergency. If a Participant is authorized by the Committee to take
a withdrawal on account of Financial Emergency under Section 5.2, any current Election Form shall
be cancelled.



ARTICLE 5

INTERIM AND HARDSHIP DISTRIBUTIONS




5.1 Interim Distributions. A Participant may make an election, at the time he files
an Election Form for a Plan Year, to have a specified amount or percentage paid from his Deferral
Contribution Account on one or more Interim Distribution Dates. The Participant’s selection of an
Interim Distribution Date must be made on a timely, effective Election Form. The amounts which
would otherwise be paid on such Interim Distribution Date or Dates shall be distributed upon the
earlier occurrence of Participant’s Benefit Distribution Date. Notwithstanding the foregoing, (A)
during calendar 2007, a Participant may elect, by written notice to the Committee, that all or a
portion of his Combined Account as of December 31, 2007 (as defined and computed under the
provisions of the First Amendment and Restatement) be distributed on an Interim Distribution Date,
provided that no such election shall have the effect of deferring until calendar 2008 or later any
benefit payments under this Plan that would otherwise have been paid in calendar 2007, or of
accelerating into calendar 2007 any benefit payments under this Plan that would otherwise have been
paid in calendar 2008 or later, and (B) during calendar 2008, a Participant may elect, by written
notice to the Committee, that all or a portion of his Combined Account as of December 31, 2008 be
distributed on an Interim Distribution Date of January 15, 2009 or January 15 of any later year,
provided that (i) no such election shall have the effect of deferring until calendar 2009 or later
any benefit payments under this Plan that would otherwise have been paid in calendar 2008, or of
accelerating into calendar 2008 any benefit payments under this Plan that would otherwise have been
paid in calendar 2009 or later, and (ii) no Participant who makes such election shall be entitled
to elect to defer Base Annual Salary or Bonus earned by the Participant during 2009 (i.e., Base
Annual Salary or Bonus for which the Participant performs services in 2009) into the Plan.



5.2 Withdrawal in the Event of a Financial Emergency. A Participant who believes he
has experienced a Financial Emergency may request in writing a withdrawal of a portion of his
Deferral Contribution Account to satisfy the emergency. The Committee shall determine, in its sole
discretion, (i) whether a Financial Emergency has occurred, and (ii) the amount reasonably required
to satisfy the Financial Emergency; provided, however, that the withdrawal shall not exceed the
balance in the Participant’s Deferral Contribution Account, or the amount the Committee reasonably
determines, under Treasury Regulations Section 1.401A-3(j)(3)(ii), to be necessary to meet such
emergency needs (including taxes reasonably anticipated to be incurred by reason of a taxable
distribution), after taking into account the extent to which such hardship is or may be relieved
through reimbursement or compensation by insurance or otherwise or by liquidation of the
Participant’s assets (unless the liquidation of such assets would itself cause severe financial
hardship). The Committee shall also take into account the current compensation available to the
Participant by reason of the cancellation of any current Election Form under Section 4.2. If,
subject to the sole discretion of the Committee, the petition for a withdrawal is approved, the
distribution shall be made within 30 days of the date of approval by the Committee.


 




			
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5.3 No Withdrawal from Stock Unit Account. The Stock Unit Account shall not be
available for distribution in the event of a Participant’s Financial Emergency.



ARTICLE 6

PAYMENT OF BENEFITS FOLLOWING TERMINATION OF EMPLOYMENT




6.1 Payment as a Result of Termination of Employment. If a Participant’s Benefit
Distribution Date occurs as a result of such Participant’s Termination of Employment, the balance
of a Participant’s Deferral Contribution Account as of the Benefit Distribution Date shall be paid
in the manner elected in the Participant’s most recent effective Benefit Distribution Form;
provided, however, that:



(a) If the present value (using the Crediting Rate as the discount rate) of annual
installments remaining to be made is less than $50,000, the entire remaining balance of his
Deferral Contribution Account (excluding his Stock Unit Account) shall be paid in the form of a
lump sum payment not later than 30 days after the determination of the present value of the annual
installments remaining to be paid; and



(b) Notwithstanding any other provision of this Plan, if any stock of an Employer or any
Affiliate is publicly traded on an established securities market or otherwise, no payment shall be
made to a Specified Employee on account of the Specified Employee’s separation from service within
six months after such Specified Employee’s separation from service (or, if earlier, the date of his
death). Any amounts subject to delayed payment under the preceding sentence shall be paid on the
first business day after the expiration of such six-month period, together with any earnings
accrued in the Deferral Contribution Account on such amounts during such six-month period. This
Section 6.1(b) is intended to comply with the requirements of Section 409A of the Code and shall be
interpreted accordingly.



If the balance of a Participant’s Deferral Contribution Account is to be distributed in annual
installments, the first installment shall be paid not later than 30 days after the Participant’s
Benefit Distribution Date. The initial installment shall be the product of the balance of the
Participant’s Deferral Contribution Account, measured on his Benefit Distribution Date, multiplied
by 1/n (where “n” is equal to the total number of annual benefit payments not yet distributed).
Subsequent installment payments shall be computed in a consistent fashion, and shall equal the
product of the balance of the Participant’s Deferral Contribution Account, measured on the
applicable anniversary of his Benefit Distribution Date, multiplied by 1/n.




(c) The Stock Unit Account shall be paid in full Shares



6.2 Death Prior to Payment of Deferral Contribution Account Balance. If a Participant
dies after his Termination of Employment but before the full payment of amounts due to him under
this Article 6 from his Deferral Contribution Account, the Participant’s unpaid amounts from his
Deferral Contribution Account shall be paid to the Participant’s Beneficiary in the manner
determined under Section 6.1.


 




			
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ARTICLE 7

PAYMENT UPON RETIREMENT, DEATH OR DISABILITY




7.1 Retirement, Death or Disability Benefit. In the event of the Participant’s
Retirement, or death or Disability during employment, the balance in his Deferral Contribution
Account shall be paid to the Participant or the Participant’s Beneficiary, as applicable, in the
manner in which the Participant elected in Participant’s most recent effective Benefit Distribution
Form; provided, however, that:



(a) If a Participant who dies or becomes Disabled would otherwise have been eligible to
Retire, his benefits shall be payable in accordance with the provisions of his most recent
effective Benefit Distribution Form applicable to Retirement, rather than with the provisions of
such Benefit Distribution Form applicable to death or Disability;



(b) Notwithstanding any other provision of this Plan, if any stock of an Employer or any
Affiliate is publicly traded on an established securities market or otherwise, and payment of
benefits under this Section 7.1 to a Participant who is a Specified Employee would be deemed to be
on account of his separation from service under Section 409A of the Code, no payments shall be made
to such Specified Employee within six months after such Specified Employee’s separation from
service (or, if earlier, the date of his death). Any amounts subject to delayed payment under the
preceding sentence shall be paid on the first business day after the expiration of such six-month
period, together with any earnings accrued in the Deferral Contribution Account on such amounts
during such six-month period. This Section 7.1(b) is intended to comply with the requirements of
Section 409A of the Code and shall be interpreted accordingly; and



(c) If the present value (using the Crediting Rate as the discount rate) of annual
installments remaining to be made is less than $50,000, the entire remaining balance of his
Deferral Contribution Account shall be paid in the form of a lump sum payment not later than 30
days after the determination of the present value of the annual installments remaining to be paid.



If the balance of the Deferral Contribution Account is to be distributed in annual installments,
the first installment shall be paid not later than 30 days after the Participant’s Benefit
Distribution Date. The initial installment shall be the product of the balance of the
Participant’s Deferral Contribution Account, measured on his Benefit Distribution Date, multiplied
by 1/n (where “n” is equal to the total number of annual benefit payments not yet distributed).
Subsequent installment payments shall be computed in a consistent fashion, and shall equal the
product of the balance of the Participant’s Deferral Contribution Account, measured on the
applicable anniversary of his Benefit Distribution Date, multiplied by 1/n.




7.2 Death Prior to Payment of Deferral Contribution Account Balance. If a Participant
dies after he has Retired or suffered a Disability but before the full payment of amounts from his
Deferral Contribution Account due to him under this Article 7, the Participant’s unpaid amounts
from his Deferral Contribution Account shall be paid to the Participant’s Beneficiary in the manner
determined under Section 7.1.


 




			
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ARTICLE 8

PAYMENTS ON CHANGE IN CONTROL




Notwithstanding any other provision of this Plan, to the extent permitted in regulations or
other guidance promulgated by the IRS under Section 409A of the Code:



8.1 Deferral Contribution Account. The balance of each Participant’s Deferral
Contribution Account shall be distributed to him (or to his Beneficiary if he has died) in one lump
sum within 30 days after the happening of a Change in Control.



8.2 Special Tax Payment. The Employer shall pay (or cause the Trust to pay) to the
Participant a cash payment (the “Special Tax Payment”) in an amount such that, after payment by the
Participant of all federal, state, and local income and employment taxes (excluding any interest,
additions, increases or penalties imposed with respect to such taxes) on the purchase and
distribution of the Annuity Contract and on the Special Tax Payment itself, the Participant is
placed in the same tax position with respect to the purchase and distribution of the Annuity
Contract as the Participant would have been in if the distribution of the Annuity Contract were not
taxable income to the Participant (that is, the Special Tax Payment shall be equal to the amount of
taxes due on the Special Tax Payment and on the Participant’s receipt of the Annuity Contract).
The calculation of such payment shall be made by assuming that the Participant is in the highest
marginal federal, state and local income and employment tax brackets in effect on the date of the
Change in Control.



8.3 Calculation of Amounts. All determinations required to be made of the monthly
amounts payable under the Special Tax Amount under Section 8.2 (each, a “Determination”) shall be
made, at the Employer’s expense, by a nationally recognized accounting firm designated by the
Employer and reasonably acceptable to the Participant (the “Accounting Firm”). The Accounting Firm
shall provide its calculations, together with detailed supporting documentation, both to the
Employer and to the Participant. Within 30 calendar days of the delivery of the Determination to
the Participant, the Participant shall have the right to dispute the Determination (the “Dispute”).
The existence of any Dispute shall not in any way affect the Participant’s right to receive the
benefits under this Plan in accordance with the Determination. If there is no Dispute, the
Determination by the Accounting Firm shall be final, binding and conclusive upon the Employer and
the Participant. If there is a Dispute that the parties cannot resolve under the claims procedure
set forth in Article 15, it shall be resolved by arbitration under Article 17.



8.4 Excise Tax Gross Up. In the event that any payments that a Participant may
receive under this Plan or otherwise shall constitute change in control payments under Section 280G
of the Code which would subject the Participant to an excise tax under Section 4999 of the Code,
the Participant shall be entitled to receive additional tax gross-up payments from the Employer as
set forth in Exhibit “A” hereto. Notwithstanding the foregoing provisions of this Section 8.4, if
it shall be determined that the Participant is entitled to the Gross Up Payment, but that the
Payments do not exceed 105% of the greatest amount that could be paid to the Participant such that
the receipt of the Payments would not give rise to any Excise Tax (the “Reduced Amount”), then no
Gross Up Payment shall be made to the Participant and the Payments, in the aggregate, shall be
reduced to the Reduced Amount. The Employer shall pay to the Participant a payment (the “Gross Up
Payment”) in an amount such that, after


 




			
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payment by the Participant of all income and employment taxes and the excise tax imposed by Section 4999
of the Code, or any similar provision of state or local tax law (the “Excise Tax”) imposed on
benefits under this agreement, on all other payments from the Employer to the Participant in the
nature of compensation, and on the Gross Up Payment itself, and any interest or penalties (other
than interest and penalties imposed by reason of the Participant’s failure to file timely tax
returns or to pay taxes shown due on such returns and any tax liability, including interest and
penalties, unrelated to the Excise Tax or the Gross Up Amount), the Participant shall be placed in
the same tax position with respect to benefits under this Plan and all other payments from the
Employer to the Participant in the nature of compensation as the Participant would have been if the
Excise Tax had never been enacted.




8.5 Delay for Specified Employees. Notwithstanding anything contained in this Plan to
the contrary, no distribution of the Annuity Contract, or payment of other amounts under this
Article 8, shall be made to a Participant who is a Specified Employee within six months after such
Specified Employee’s separation from service (or, if earlier, the date of his death) if (a) any
stock of the Employer or any direct or indirect parent of the Employer is publicly traded on an
established securities market or otherwise, and (b) such distribution or payment would be deemed to
be made upon such Specified Employee’s separation from service under Section 409A of the Code.
This Section 8.5 is intended to comply with the requirements of Section 409A of the Code and shall
be interpreted accordingly.



8.6 No Duplication of Payments. If payments are made under this Article 8, neither
the Participant nor his Beneficiary shall be entitled to any other benefits under this Plan.



ARTICLE 9

FORM OF DISTRIBUTIONS




Distributions hereunder shall be made in cash, except that distributions of units credited to
a Participant’s Stock Unit Account shall be made by issuing to such Participant an equivalent
number of Shares. Notwithstanding the foregoing, no fractional Shares will be issued and any
fractional unit will be distributed by payment of cash in the amount represented by the fractional
unit based on the fair market value on the date immediately preceding the payment date.



ARTICLE 10

CONTINUING EFFECT OF PRIOR PLAN DOCUMENT FOR PRE-2005 DEFERRALS




10.1 Continuing Effect of Prior Plan Document on Pre-2005 Deferrals. The provisions
of the Prior Plan Document, including but not limited to the provisions thereof regarding
“Hypothetical Investments” and “Investment Adjustments,” (as such terms are defined in the Prior
Plan Document) shall continue in effect for deferrals of Base Annual Salary and Bonuses earned that
were earned (i.e., the services that earned such Base Annual Salary and Bonuses are performed) and
vested before January 1, 2005, and earnings credited thereon.



10.2 Effect of First Amendment and Restatement, the Second Amendment and Restatement and
This Plan Restatement. The provisions of the First Amendment and Restatement, the Second
Amendment and Restatement and the Plan as amended and restated herein shall govern only deferrals
of Base Annual Salary and Bonuses that are earned (i.e., the services that earned such Base Annual Salary and Bonuses
are performed) or vested after
December 31, 2004, and earnings (including, but not limited to, Contingent Earnings) thereon.


 




			
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ARTICLE 11

BENEFICIARY DESIGNATION




11.1 Beneficiary. Each Participant shall have the right, at any time, to designate a
Beneficiary or Beneficiaries to receive, in the event of the Participant’s death, those benefits
payable under the Plan. The Beneficiary(ies) designated under this Plan may be the same as, or
different from, the Beneficiary designation made under any other plan of the Employer.



11.2 Beneficiary Designation, Change, Spousal Consent. A Participant shall designate
his Beneficiary by completing and signing a Beneficiary Designation Form, and returning it to the
Committee or its designated agent. A Participant shall have the right to change his Beneficiary by
completing, signing and submitting to the Committee a revised Beneficiary Designation Form in
accordance with the Committee’s rules and procedures, as in effect from time to time. If the
Participant names someone other than his spouse as a Beneficiary, a spousal consent, in the form
designated by the Committee, must be signed by that Participant’s spouse and returned to the
Committee. Upon acknowledgement by the Committee of a revised Beneficiary Designation Form, all
Beneficiary designations previously filed shall be deemed canceled. The Committee shall be
entitled to rely on the last Beneficiary Designation Form both (i) filed by the Participant and
(ii) acknowledged by the Committee, prior to his death.



11.3 Acknowledgment. No designation or change in designation of a Beneficiary shall
be effective until received, accepted and acknowledged in writing by the Committee or its
designated agent.



11.4 No Beneficiary Designation. If a Participant fails to designate a Beneficiary as
provided above or, if all designated Beneficiaries predecease the Participant, or die prior to
complete distribution of the Participant’s benefits, then the Participant’s designated Beneficiary
shall be deemed to be his surviving spouse. If the Participant has no surviving spouse, the
benefits remaining under the Plan shall be payable to the executor or personal representative of
the Participant’s estate.



11.5 Doubt as to Beneficiary. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall have the right,
exercisable in its discretion, to cause the Participant’s Employer to withhold such payments until
this matter is resolved to the Committee’s satisfaction.



11.6 Death of Spouse or Dissolution of Marriage. A Participant’s Beneficiary
designation shall be deemed automatically revoked if the Participant has named a spouse as
Beneficiary and the marriage is later dissolved. Without limiting the generality of the preceding
sentence, the interest in benefits of a spouse of a Participant who has predeceased the Participant
or whose marriage has been dissolved shall automatically pass to the Participant, and shall not be
transferable by such spouse in any manner, including but not limited to, passage under such
spouse’s will or under the laws of intestate succession.


 




			
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11.7 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge the Employers and the Committee from all further
obligations under this Plan with respect to the Participant, and the Participant’s Participation
Agreement shall terminate upon such full payment of benefits.



ARTICLE 12

TERMINATION, AMENDMENT OR MODIFICATION




12.1 Termination. Although the Employer anticipates that the Plan will continue for
an indefinite period of time, there is no guarantee that any Employer will continue the Plan or
will not terminate the Plan at any time in the future. Accordingly, each Employer reserves the
right to discontinue its sponsorship of the Plan and to terminate the Plan, at any time, with
respect to its participating Employees by action of its board of directors. Upon the termination
of the Plan with respect to any Employer, all amounts credited to the Combined Account of each
affected Participant shall be paid to the Participant or, in the case of the Participant’s death,
to the Participant’s Beneficiary, at the times and in the manner in which they would have been paid
if no termination of the Plan had occurred.



12.2 Amendment. The Employer may, at any time, amend or modify the Plan in whole or
in part with respect to any or all Employers by the actions of the Board; provided, however, that
(i) no amendment (including a Plan termination) or modification (including a Plan termination)
shall be effective to decrease or restrict the balance of a Participant’s Combined Account or any
component thereof in existence at the time the amendment or modification is made, calculated as if
the Participant had experienced a Termination of Employment as of the effective date of the
amendment or modification, or, if the amendment or modification occurs after the date upon which
the Participant was eligible to Retire, calculated as if the Participant had Retired as of the
effective date of the amendment or modification, and (ii) except as specifically provided in
Section 12.1, no amendment or modification shall be made after a Change in Control which adversely
affects the vesting, calculation or payment of benefits hereunder or diminishes any other rights
(including the right to take a distribution option provided in the Plan prior to the Change in
Control) or protections any Participant or Beneficiary would have had, but for such amendment or
modification, unless each affected Participant or Beneficiary consents in writing to such
amendment.



12.3 Effect of Payment. The full payment of the applicable benefit under the
provisions of the Plan shall completely discharge all obligations to a Participant and his
designated Beneficiaries under this Plan and each of the Participant’s Participation Agreement
shall terminate.



ARTICLE 13

ADMINISTRATION




13.1 Committee Duties. This Plan shall be administered by a Committee which shall
consist of the Board, or such committee as the Board shall appoint. Members of the Committee may
be Participants under this Plan. The Committee shall also have the discretion and authority to (i)
make, amend, interpret, and enforce all appropriate rules and regulations for the administration of
this Plan and (ii) decide or resolve any and all questions including


 




			
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interpretations of this Plan, as may arise in connection with the Plan. Any individual
serving on the Committee who is a Participant shall not vote or act on any matter relating solely
to himself or herself. When making a determination or calculation, the Committee shall be entitled
to rely on information furnished by Participant or the Employer.




13.2 Agents. In the administration of this Plan, the Committee may, from
time-to-time, employ agents and delegate to them such administrative duties as it sees fit
(including acting through a duly appointed representative) and may from time-to-time consult with
counsel who may be counsel to any Employer.



13.3 Binding Effect of Decisions. The decision or action of the Committee with
respect to any question arising out of or in connection with the administration, interpretation and
application of the Plan and rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the Plan.



13.4 Indemnity of Committee. All Employers shall indemnify and hold harmless the
members of the Committee, and any Employee to whom duties of the Committee may be delegated,
against any and all claims, losses, damages, expenses or liabilities arising from any action or
failure to act with respect to this Plan, except in case of willful misconduct by the Committee or
any of its members or any such employee.



13.5 Employer Information. To enable the Committee to perform its functions, each
Employer shall supply full and timely information to the Committee on all matters relating to the
compensation of its Participants, the date and circumstances of the Retirement, Disability, death
or Termination of Employment of its Participants, and such other pertinent information as the
Committee may reasonably require.



ARTICLE 14

OTHER BENEFITS AND AGREEMENTS




The benefits provided for a Participant and Participant’s Beneficiary under the Plan are in
addition to any other benefits available to such Participant under any other plan or program for
employees of the Participant’s Employer. The Plan shall supplement and shall not supersede, modify
or amend any other such plan or programs except as may otherwise be expressly provided.



ARTICLE 15

CLAIMS PROCEDURES




15.1 Presentation of Claim. Any Participant or Beneficiary of a deceased Participant
(such Participant or Beneficiary being referred to below as a “Claimant”) may deliver to the
Committee a written claim for a determination with respect to the amounts distributable to such
Claimant from the Plan. If such a claim relates to the contents of a notice received by the
Claimant, the claim must be made within 60 days after such notice was received by the Claimant.
The claim must state with particularity the determination desired by the Claimant. All other
claims must be made within 180 days of the date on which the event that caused the claim to arise
occurred. The claim must state with particularity the determination desired by the Claimant.


 




			
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15.2 Notification of Decision. The Committee shall consider a Claimant’s claim within
a reasonable time, and shall notify the Claimant in writing:



(a) that the Claimant’s requested determination has been made, and that the claim has been
allowed in full; or



(b) that the Committee has reached a conclusion contrary, in whole or in part, to the
Claimant’s requested determination, and such notice must set forth in a manner calculated to be
understood by the Claimant:



(i) the specific reason(s) for the denial of the claim, or any part of it;



(ii) specific reference(s) to pertinent provisions of the Plan upon which such denial was
based;



(iii) a description of any additional material or information necessary for the Claimant to
perfect the claim, and an explanation of why such material or information is necessary; and



(iv) an explanation of the claim review procedure set forth in Section 14.3 below.



15.3 Review of a Denied Claim. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant (or the Claimant’s duly
authorized representative) may file with the Committee a written request for a review of the denial
of the claim. Thereafter, but not later than 30 days after the review procedure began, the
Claimant (or the Claimant’s duly authorized representative):



(a) may review pertinent documents;



(b) may submit written comments or other documents; and/or



(c) may request a hearing, which the Committee, in its sole discretion, may grant.



15.4 Decision on Review. The Committee shall render its decision on review promptly,
and not later than 60 days after the filing of a written request for review of the denial, unless a
hearing is held or other special circumstances require additional time, in which case the
Committee’s decision must be rendered within 120 days after such date. Such decision must be
written in a manner calculated to be understood by the Claimant, and it must contain:



(a) specific reasons for the decision;



(b) specific reference(s) to the pertinent Plan provisions upon which the decision was based;
and



(c) such other matters as the Committee deems relevant.


 




			
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ARTICLE 16

TRUST




16.1 Establishment of the Trust. The Employer may establish one or more Trusts to
which the Employers may transfer such assets as the Employers determine in their sole discretion to
assist in meeting their obligations under the Plan.



16.2 Interrelationship of the Plan and the Trust. The provisions of the Plan and the
Participation Agreement shall govern the rights of a Participant to receive distributions pursuant
to the Plan. The provisions of the Trust shall govern the rights of the Employers, Participants
and the creditors of the Employers to the assets transferred to the Trust.



16.3 Distributions from the Trust. Each Employer’s obligations under the Plan may be
satisfied with Trust assets distributed pursuant to the terms of the Trust, and any such
distribution shall reduce the Employer’s obligations under this Agreement.



ARTICLE 17

ARBITRATION




17.1 In General. Any controversy, dispute, or claim not resolved under the claims
procedure set forth in Article 15, including any claim arising out of, in connection with, or in
relation to the formation, interpretation, performance or breach of this Plan or any action of the
Committee, shall be settled exclusively by arbitration, before a single arbitrator, in accordance
with this Article 17 and the then-most applicable rules of the American Arbitration Association.
Judgment upon any award rendered by the arbitrator may be entered by any state or federal court
having jurisdiction thereof. Such arbitration shall be administered by the American Arbitration
Association only if one (or both) of the parties requests such administration. Arbitration shall
be the exclusive remedy for determining any such dispute, regardless of its nature.
Notwithstanding the foregoing, either party may in an appropriate matter apply to a court for
provisional relief, including a temporary restraining order or a preliminary injunction, on the
ground that the award to which the applicant may be entitled in arbitration may be rendered
ineffectual without provisional relief.



17.2 Selection of Arbitrator. In the event the parties are unable to agree upon an
arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by
the parties at random from the “Independent” (or “Gold Card”) list of retired judges. If the
parties are unable to agree upon an arbitrator from the list so drawn, then the parties shall each
strike names alternately from the list, with the first to strike being determined by lot. After
each party has used four strikes, the remaining name on the list shall be the arbitrator. If such
person is unable to serve for any reason, the parties shall repeat this process until an arbitrator
is selected.



17.3 Scope. This agreement to resolve any disputes by binding arbitration shall
extend to claims against any parent, subsidiary or affiliate of each party, and, when acting within
such capacity, any officer, director, shareholder, employee or agent of each party, or of any of
the above, and shall apply as well to claims arising out of state and federal statutes and local
ordinances as well as to claims arising under the common law. In the event of a dispute subject to
this Article 17, the parties shall be entitled to reasonable discovery subject to the discretion of


 




			
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the arbitrator. The remedial authority of the arbitrator shall be the same as, but no greater
than, would be the remedial power of a court having jurisdiction over the parties and their
dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim without an
evidentiary hearing if the party bringing the motion establishes that he or it would be entitled to
summary judgment if the matter had been pursued in court litigation. In the event of a conflict
between the applicable rules of the American Arbitration Association and these procedures, the
provisions of these procedures shall govern.




17.4 Arbitration Fees. In any arbitration hereunder, the Employer shall pay all
administrative fees of the arbitration and all fees of the arbitrator, except that the Participant
or Beneficiary may, if he wishes, pay up to one-half of those amounts. Each party shall pay its
own attorneys’ fees, costs, and expenses, unless the arbitrator orders otherwise. The prevailing
party in such arbitration, as determined by the arbitrator, and in any enforcement or other court
proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other
party for all of the prevailing party’s costs (including but not limited to the arbitrator’s
compensation), expenses, and attorneys’ fees.



17.5 Arbitrator’s Award. The arbitrator shall render an award and written opinion,
and the award shall be final and binding upon the parties. If any of the provisions of this
Article 17, or of this Plan, are determined to be unlawful or otherwise unenforceable, in whole or
in part, such determination shall not affect the validity of the remainder of this Plan, and this
Plan shall be reformed to the extent necessary to carry out its provisions to the greatest extent
possible and to insure that the resolution of all conflicts between the parties, including those
arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court
should find that this Section’s arbitration provisions are not absolutely binding, then the parties
intend any arbitration decision and award to be fully admissible in evidence in any subsequent
action, given great weight by any finder of fact, and treated as determinative to the maximum
extent permitted by law.



17.6 Location of Arbitration. Unless mutually agreed by the parties otherwise, any
arbitration shall take place in the City of Las Vegas, Nevada.



ARTICLE 18

MISCELLANEOUS




18.1 Status of Plan. The Plan is intended to be a plan that is not qualified within
the meaning of Code Section 401(a) and that “is unfunded and is maintained by an employer primarily
for the purpose of providing deferred compensation for a select group of management or highly
compensated employee” within the meaning of ERISA. The Plan shall be administered and interpreted
to the extent possible in a manner consistent with that intent. All Participant accounts and all
credits and other adjustments to such Participant accounts shall be bookkeeping entries only and
shall be utilized solely as a device for the measurement and determination of amounts to be paid
under the Plan. No Participant accounts, credits or other adjustments under the Plan shall be
interpreted as an indication that any benefits under the Plan are in any way funded.



 




			
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18.2 Unsecured General Creditor. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests or claims in any property
or assets of an Employer. Any Employer’s obligation under the Plan shall be merely that of an
unfunded and unsecured promise to pay money in the future. The Combined Account shall be utilized
solely as a device for the measurement of amounts to be paid to the Participant under the Plan.
The Combined Account shall not constitute or be treated as an escrow, trust fund, or any other type
of funded account for Code or ERISA purposes and, moreover, contingent amounts credited thereto
shall not be considered “plan assets” for ERISA purposes. The Combined Account merely provides a
record of the bookkeeping entries relating to the contingent benefits that the Employer intends to
provide Participant and shall thus reflect a mere unsecured promise to pay such amounts in the
future.



18.3 Employer’s Liability. An Employer’s liability for the payment of benefits shall
be defined only by the Plan and the Participation Agreement, as entered into between the Employer
and a Participant. An Employer shall have no obligation to a Participant under the Plan except as
expressly provided in the Plan and his Participation Agreement.



18.4 Nonassignability. Neither a Participant nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate, alienate or convey in actual receipt, the amount, if any, payable hereunder,
or any part thereof, which are, and all rights to which are expressly declared to be, unassignable
and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to
seizure, attachment, garnishment or sequestration for the payment of any debts, judgments, alimony
or separate maintenance owned by a Participant or any other person, be transferable by operation of
law in the event of a Participant’s or any other person’s bankruptcy or insolvency or be
transferable to a spouse as a result of a property settlement or otherwise. Notwithstanding the
foregoing, if, as a result of divorce or dissolution of marriage, a Participant is responsible for
child support, alimony, or marital property rights payments, his benefits under this Plan may be
assigned to meet those payments if a domestic relations order (as such term is used in ERISA) has
been issued for the Plan, and the Plan Administrator has determined that such domestic relations
order is a qualified domestic relations order (as such term is used in ERISA).



18.5 Not a Contract of Employment. The terms and conditions of this Plan and the
Enrollment Forms shall not be deemed to constitute a contract of employment between any Employer
and the Participant. Such employment is hereby acknowledged to be an “at will” employment
relationship that can be terminated at any time for any reason, or no reason, with or without
cause, and with or without notice, except as otherwise provided in a written employment agreement.
Nothing in this Plan or any Participation Agreement shall be deemed to give a Participant the right
to be retained in the service of any Employer as an Employee or to interfere with the right of any
Employer to discipline or discharge the Participant at any time.



18.6 Furnishing Information. A Participant or his Beneficiary will cooperate with the
Committee by furnishing any and all information requested by the Committee and take such other
actions as may be requested in order to facilitate the administration of the Plan and the payments
of benefits hereunder, including but not limited to taking such physical examinations as the
Committee may deem necessary.


 




			
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18.7 Terms. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they would so apply; and whenever
any words are used herein in the singular or in the plural, they shall be construed as though they
were used in the plural or the singular, as the case may be, in all cases where they would so
apply.



18.8 Captions. The captions of the articles, sections or paragraphs of this Plan are
for convenience only and shall not control or affect the meaning or construction of any of its
provisions.



18.9 Governing Law. Subject to ERISA, the provisions of this Plan shall be construed
and interpreted according to the internal laws of the State of Nevada without regard to its
conflicts of law principles.



18.10 Notice. Any notice or filing required or permitted to be given to the Committee
under this Plan shall be sufficient if in writing and hand-delivered, or sent by registered or
certified mail, to the address below:



Pinnacle Entertainment, Inc.

8918 Spanish Ridge Drive

Las Vegas, NV 89148

Attn: General Counsel




Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail,
as of the date shown on the postmark or the receipt for registration or certification.



Any notice or filing required or permitted to be given to a Participant under this Plan shall
be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the
Participant.



18.11 Successors. The provisions of this Plan shall bind and inure to the benefit of
the Participant’s Employer and its successors and assigns and the Participant and the Participant’s
designated Beneficiaries.



18.12 Validity. In case any provision of this Plan shall be illegal or invalid for
any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this
Plan shall be construed and enforced as if such illegal or invalid provision had never been
inserted herein.



18.13 Incompetent. If the Committee determines in its discretion that a benefit under
this Plan is to be paid to a minor, a person declared incompetent or to a person incapable of
handling the disposition of that person’s property, the Committee may direct payment of such
benefit to the guardian, legal representative or person having the care and custody of such minor,
incompetent or incapable person. The Committee may require proof of minority, incompetence,
incapacity or guardianship, as it may deem appropriate prior to distribution of the benefit. Any
payment of a benefit shall be a payment for the account of the Participant and the Participant’s
Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Plan
for such payment amount.


 



			
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18.14 Insurance or Annuity Contract. The Employers, on their own behalf or on behalf
of the trustee of the Trust, and, in their sole discretion, may apply for and procure insurance on
the life of the Participant, or an annuity contract, in such amounts and in such forms as the
Employers or the Trust may choose. The Employers or the trustee of the Trust, as the case may be,
shall be the sole owner and beneficiary of any such insurance or annuity contract. The Participant
shall have no interest whatsoever in any such policy or policies or annuity contract, and at the
request of the Employers, the Participant shall submit to medical examinations and supply such
information and execute such documents as may be required by the insurance company or companies to
whom the Employers have applied for insurance or an annuity contract.



18.15 Employer. Each Subsidiary of Pinnacle can become an adopting Employer with the
consent of Pinnacle by filing with the Committee a certified copy of a resolution of the Board of
Directors of the Subsidiary providing for its adoption of the Plan and a certified copy of a
resolution of the Board of Directors of Pinnacle consenting to such adoption.



IN
WITNESS WHEREOF, the Employer has signed this Plan as of
March 1, 2011, effective January 1, 2011.



	 	 	 	 	 
	 	Pinnacle Entertainment, Inc.

A Delaware Corporation

 	 
	 	By:  	/s/ John A. Godfrey
 	 
	 	 	 	 	 
	 	Name:  	John A. Godfrey 	
 	 

	 	 	(printed name)	 
	 	 	 	 	 
	 	Title:  	
Executive Vice President, Secretary and
General Counsel 	 	 


 




			
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EXHIBIT A




TAX GROSS-UP PAYMENTS




(a) Anything in this Plan to the contrary notwithstanding and except as set forth below, in
the event it shall be determined that any Payment would be subject to the Excise Tax, then the
Participant shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that after payment by the Participant of all taxes (excluding any interest, additions,
increases or penalties imposed with respect to such taxes except for interest, additions, increases
or penalties with respect to the Excise Tax), including, without limitation, any income taxes
(except for any interest, additions, increases and penalties imposed with respect thereto) and the
Excise Tax imposed upon the Payment and the Gross-Up Payment, the Participant is placed in the same
tax position with respect to the Payment as the Participant would have been in if the Excise Tax
had never been enacted.



(b) Subject to the provisions of Section (c), all determinations required to be made under
this Exhibit “A”, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by the Accounting Firm, which shall provide detailed supporting calculations both to the
Company and the Participant within 15 business days of the receipt of notice from the Participant
that there has been a Payment, or such earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Subject to Section (e)
below, any Gross-Up Payment, as determined pursuant to this Exhibit “A” shall be paid by the
Company to the Participant within five days of the receipt of the Accounting Firm’s determination.
Any determination by the Accounting Firm shall be binding upon the Company and the Participant. As
a result of the uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. In the event that the Company exhausts its remedies
pursuant to Section (c) and the Participant thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any
such Underpayment shall be promptly paid by the Company to or for the benefit of the Participant.



(c) The Participant shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than 10 business days after
the Participant is informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The Participant shall not pay
such claim prior to the expiration of the 30-day period following the date on which it gives such
notice to the Company (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Participant in writing prior to the
expiration of such period that it desires to contest such claim, the Participant shall:



(i) give the Company any information reasonably requested by the Company relating to such
claim,


 




			
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(ii) take such action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the Company,



(iii) cooperate with the Company in good faith in order effectively to contest such claim, and



(iv) permit the Company to participate in any proceedings relating to such claim;



provided, however, that the Company shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and shall indemnify and
hold the Participant harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such representation and payment
of costs and expenses. Without limitation on the foregoing provisions of this Section (c), the
Company shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim; provided, that any extension of the
statute of limitations relating to payment of taxes for the taxable year of the Participant with
respect to which such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and the Participant shall be entitled to
settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.




(d) If the Participant becomes entitled to receive any refund with respect to the Gross-Up
Payment or the Excise Tax, the Participant shall promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes applicable thereto). If
the Participant would have received a refund of all or any portion of the Gross-Up Payment or the
Excise Tax, except that a taxing authority offset the amount of such refund against other tax
liabilities, interest, or penalties, the Participant shall pay the amount of such offset over to
the Company, together with the amount of interest the Participant would have received from the
taxing authority if such offset had been an actual refund, promptly after receipt of notice from
the taxing authority of such offset.



(e) Notwithstanding any other provision of this appendix, the Company may withhold and pay
over to the Internal Revenue Service for the benefit of the Participant all or any portion of the
Gross-Up Payment that it determines in good faith that it is or may be in the future required to
withhold, and the Participant hereby consents to such withholding.



(f) Subject to the foregoing provisions of this Exhibit “A” that may require earlier payment,
any Gross-Up Payment shall be paid to or for the benefit of the Participant by December 31 of the
calendar year following the calendar year in which the Excise Tax is remitted, or, if no Excise Tax
is remitted, by December 31 of the calendar year following the calendar year in which there is a
final and nonappealable settlement or other resolution of an audit or litigation relating to the
Excise Tax.


 




			
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(g) Definitions. The following terms shall have the following meanings for purposes
of this appendix and the Plan.



(i) “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code, or any
similar provision of state or local tax law.



(ii) A “Payment” shall mean any payment or distribution in the nature of compensation
(within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Participant,
whether paid or payable pursuant to this Plan or otherwise.



 




			
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