Filed by Bowne Pure Compliance




Exhibit
4.12

AMENDMENT TO THE

PINNACLE ENTERTAINMENT, INC. 2005 EQUITY AND PERFORMANCE

INCENTIVE PLAN, AS AMENDED




This Amendment is made by Pinnacle Entertainment, Inc., a Delaware corporation (the
“Company”), to amend the Pinnacle Entertainment, Inc. 2005 Equity and Performance Incentive Plan,
as Amended (the “Plan”), with reference to the following facts:



A. The Company maintains the Plan for the benefit of its employees, directors, and
consultants.



B. Under Section 12.1 of the Plan, the Company’s Board of Directors has the power to amend the
Plan as it shall deem advisable, provided that certain amendments shall require stockholder
approval, and provided that no amendment shall in any way impair the rights of a Participant under
any Award previously granted without such Participant’s consent.



C. The Company’s Board of Directors deems it advisable to amend the Plan as set forth below,
and has determined that such amendments do not require stockholder approval and do not in any way
impair the rights of a Participant under any Award previously granted. Capitalized terms not
otherwise defined herein have the meanings ascribed to them in the Plan.



NOW, THEREFORE, the Plan is hereby amended, effective as of December 9, 2008, as follows:



1. Section 2.7 of the Plan is hereby amended to provide in its entirety as follows:




2.7
‘Change of 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 Company’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 Company 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 Company with or into
another corporation or other entity in which the Beneficial Owners (as such term
is defined below) of more than 50% of the voting power of the Company’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 Company (together with any new Directors
whose election to such Board or whose nomination for election by the stockholders
of the Company was approved by a vote of a majority of the Directors of the
Company 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 Company 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 Company’s voting securities immediately before the transaction in question,
(B) the Company 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 Company’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 Exchange Act, and the rules promulgated thereunder. Notwithstanding
the foregoing, (I) Persons will not be considered to be acting as a ‘Group’ solely
because they purchase or own stock of this Company 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 a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction,
with the Company, and (III) if a Person, including an entity, owns stock both in
the Company and in a corporation that enters into a merger, consolidation,
purchase or acquisition of stock, or similar transaction, with the Company, such
stockholders shall be considered to be acting as a Group with other stockholders
only with respect to the ownership in the corporation before the transaction.”



2. Section 5.9 of the Plan is hereby amended to provide in its entirety as follows:




“5.9 Disability of Participant. If a Participant holds exercisable
Options on the date his or her Continuous Status as an Employee, Director or
Consultant terminates because of Disability, the Participant may exercise the
Options that were vested and exercisable as of the date of termination until the
end of the original term or for a period of 36 months following such termination,
whichever is earlier (or such other period as is set forth in the Award Agreement
or determined by the Committee). If the Participant is not entitled to exercise
his or her entire Option at the date of such termination, the Shares covered by
the unexercisable portion of the Option will revert to the Plan, unless otherwise
set forth in the Award Agreement or determined by the Committee. The Committee
may determine in its sole discretion that such unexercisable portion of the Option
will become exercisable at such times and on such terms as the Committee may
determine in its sole discretion. If the Participant does not exercise an Option
within the time specified above after termination, that Option will expire, and
the Shares covered by it will revert to the Plan, except as otherwise determined
by the Committee.”


 


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3. Section 5.10 of the Plan is hereby amended to provide in its entirety as follows:




“5.10 Death of Participant. If a Participant holds exercisable Options on
the date his or her death, the Participant’s estate or a person who acquired the
right to exercise the Option by bequest or inheritance or under Section 12.3 may
exercise the Options that were vested and exercisable as of the date of death
until the end of the original term or for a period of 36 months following the date
of death, whichever is earlier (or such other period as is set forth in the Award
Agreement or determined by the Committee). If the Participant is not entitled to
exercise his or her entire Option at the date of death, the Shares covered by the
unexercisable portion of the Option will revert to the Plan, unless otherwise set
forth in the Award Agreement or determined by the Committee. The Committee may
determine in its sole discretion that such unexercisable portion of the Option
will become exercisable at such times and on such terms as the Committee may
determine in its sole discretion. If the Participant’s estate or a person who
acquired the right to exercise the Option by bequest or inheritance or under
Section 12.3 does not exercise the Option within the time specified above after
the date of death, the Option will expire, and the Shares covered by it will
revert to the Plan, except as otherwise determined by the Committee.”



4. Section 6.4 of the Plan is hereby amended to provide in its entirety as follows:




“6.4 Disability of Participant. If a Participant holds exercisable Stock
Appreciation Rights on the date his or her Continuous Status as an Employee,
Director or Consultant terminates because of Disability, the Participant may
exercise the Stock Appreciation Rights that were vested and exercisable as of the
date of termination until the end of the original term or for a period of 36
months following such termination, whichever is earlier (or such other period as
is set forth in the Award Agreement or determined by the Committee). If the
Participant is not entitled to exercise his or her entire Stock Appreciation Right
at the date of such termination, the Shares covered by the unexercisable portion
of the Stock Appreciation Right will revert to the Plan, unless otherwise set
forth in the Award Agreement or determined by the Committee. The Committee may
determine in its sole discretion that such unexercisable portion of the Stock
Appreciation Right will become exercisable at such
times and on such terms as the Committee may determine in its sole discretion. If
the Participant does not exercise a Stock Appreciation Right within the time
specified above after termination, that Stock Appreciation Right will expire, and
the Shares covered by it will revert to the Plan, except as otherwise determined
by the Committee.”


 


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5. Section 6.5 of the Plan is hereby amended to provide in its entirety as follows:




“6.5 Death of Participant. If a Participant holds exercisable Stock
Appreciation Rights on the date his or her death, the Participant’s estate or a
person who acquired the right to exercise the Stock Appreciation Rights by bequest
or inheritance or under Section 12.3 may exercise the Stock Appreciation Rights
that were vested and exercisable as of the date of death until the end of the
original term or for a period of 36 months following the date of death, whichever
is earlier (or such other period as is set forth in the Award Agreement or
determined by the Committee). If the Participant is not entitled to exercise his
or her entire Stock Appreciation Right at the date of death, the Shares covered by
the unexercisable portion of the Stock Appreciation Right will revert to the Plan,
unless otherwise set forth in the Award Agreement or determined by the Committee.
The Committee may determine in its sole discretion that such unexercisable portion
of the Stock Appreciation Right will become exercisable at such times and on such
terms as the Committee may determine in its sole discretion. If the Participant’s
estate or a person who acquired the right to exercise the Stock Appreciation Right
by bequest or inheritance or under Section 12.3 does not exercise the Stock
Appreciation Right within the time specified above after the date of death, the
Stock Appreciation Right will expire, and the Shares covered by it will revert to
the Plan, except as otherwise determined by the Committee.”



6. Section 10.2 of the Plan is hereby amended to provide in its entirety as follows:




“10.2 Performance Criteria. If Restricted Stock, a Performance Award or
an Other Stock Unit Award is subject to this Article 10, then the lapsing of
restrictions thereon and the distribution of cash, Shares or other property
pursuant thereto, as applicable, shall be subject to the achievement of one or
more objective performance goals established by the Committee, which shall be
based on the attainment of specified levels of or growth of one or any combination
of the following factors, or an objective formula determined at the time of the
Award that is based on modified or unmodified calculations of one or any
combination of the following factors: net sales; pretax income before or after
allocation of corporate overhead and bonus; earnings per share; net income;
division, group or corporate financial goals; return on stockholders’ equity;
return on assets; attainment of strategic and operational initiatives;
appreciation in and/or maintenance of the price of the Shares or any other
publicly-traded securities of the Company; market share; gross profits; earnings
before taxes; earnings before interest and taxes; earnings before interest, taxes,
depreciation and amortization (“EBITDA”); an adjusted formula of EBITDA determined
by the Committee; economic value-added models; comparisons with various stock market indices;


 


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reductions in costs,
and/or return on invested capital of the Company or any Affiliate, division or
business unit of the Company for or within which the Participant is primarily
employed. Such performance goals also may be based solely by reference to the
Company’s performance or the performance of an Affiliate, division or business
unit of the Company, or based upon the relative performance of other companies or
upon comparisons of any of the indicators of performance relative to other
companies. Unless the Committee specifies otherwise when it sets performance
goals for an Award, objective adjustments shall be made to any of the foregoing
measures for items that will not properly reflect the Company’s financial
performance for these purposes, such as the write-off of debt issuance costs,
pre-opening and development costs, gain or loss from asset dispositions, asset or
other impairment charges, litigation settlement costs, and other non-routine items
that may occur during the Performance Period. Also, unless the Committee
determines otherwise in setting the performance goals for an Award, such
performance goals shall be applied by excluding the impact of (a) restructurings,
discontinued operations and charges for extraordinary items, (b) an event either
not directly related to the operations of the Company or not within the reasonable
control of the Company’s management, or (c) a change in accounting standards
required by generally accepted accounting principles. Such performance goals
shall be set by the Committee within the time period prescribed by, and shall
otherwise comply with the requirements of, Section 162(m) of the Code, or any
successor provision thereto, and the regulations thereunder.”



7. In all other respects, the terms and provisions of the Plan are hereby ratified and
declared to be in full force and effect.



IN WITNESS WHEREOF, the Company has executed this Amendment this 9th day of
December, 2008.



	 	 	 	 	 
	 	PINNACLE ENTERTAINMENT, INC.

 	 
	 	By:  	/s/ John A. Godfrey
 	 
	 	 	John A. Godfrey, Executive Vice President, 	 
	 	 	General Counsel and Secretary 	 
	 




 


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