Exhibit 10.1


 


EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is entered into on February 26,
2010 and effective as of January 1, 2010 (the “Effective Date”), between
Herbst Gaming, Inc., a Nevada corporation (together with their successors
or assigns as permitted under this Agreement, collectively, the “Company”),
and David D. Ross, an individual (the “Executive”).


 


The Company desires to continue to employ the
Executive and to enter into this Agreement embodying the terms of such
employment, and the Executive desires to enter into this Agreement and accept
such employment.


 


In consideration of the mutual covenants and for
other good and valuable consideration, the Company and the Executive
(individual a “Party”  and
together the “Parties”)
agree as follows:


 


1.                                       Definitions


 


(a)                                  “Salary”  shall mean the salary
provided for in Section 4 subject to such increases as may be made
from time to time.


 


(b)                                 “Board”  shall mean the Board of
Directors of the Company.


 


(c)                                  “Business Day”  shall mean any day other
than a weekend, a federal or Nevada state holiday or a vacation day for the
Executive.


 


(d)                                 “Cause”  shall mean:


 


(i)                                     the conviction
of, or judgment against, the Executive by a civil or criminal court of
competent jurisdiction for a felony or any other offense involving embezzlement
or misappropriation of Rinds, or any act of moral turpitude, dishonesty or lack
of fidelity;


 


(ii)                                  the indictment
of the Executive by a state or federal grand jury of competent jurisdiction or
the filing of a criminal complaint or information, for a felony or any other
offense involving embezzlement or misappropriation of funds, or any act of
moral turpitude, dishonesty or lack of fidelity;


 


(iii)                               the confession
by the Executive of embezzlement or misappropriation of funds, or any act of
moral turpitude, dishonesty or lack of fidelity;


 


(iv)                              the payment
(or, by the operation solely of the effect of a deductible, the failure of
payment) by a surety or insurer of a claim under a fidelity bond issued for the
benefit of the Company reimbursing the Company for a loss due to the wrongful
act, or wrongful omission to act, of the Executive;


 


(v)                                 the denial,
revocation or suspension of a license, qualification or certificate of
suitability to the Executive by any of the Gaming Authorities; and


 

















 


(vi)                              any action or
failure to act by the Executive that the Company reasonably believes, as a
result of a communication or action by the Gaming Authorities or on the basis
of consultations with its gaming counsel and/or other professional advisors,
will likely cause any of the Gaming Authorities to:  (A) fail to license, qualify and/or
approve the Company to own and operate a gaming business; (B) grant any
such licensing, qualification and/or approval only upon terms and conditions
that are unacceptable to the Company; (C) significantly delay any such
licensing, qualification and/or approval process; or (D) revoke or suspend
any existing license.


 


(e)                                  “Confidential Information”  shall mean information in
whatever form, including, without limitation, information that is written,
electronically stored, orally transmitted, or memorized, that is, in the
Company’s opinion, of commercial value to the Company and that is created,
discovered, developed, or otherwise becomes known to the Company, or in which
property rights are hold, assigned to, or otherwise acquired by or conveyed to
the Company, including, without limitation, any idea, knowledge, know-how,
process, system, method, technique, research and development, technology, software,
technical information, trade secret, trademark, copyrighted material, reports,
records, documentation, data, customer or supplier lists, tax or financial
information, business or marketing plan, strategy, or forecast.  Confidential Information does not include
information that is or becomes generally known within the Company’s industry
through no act or omission by the Executive; provided,
however, that the compilation, manipulation or other exploitation of
generally known information may constitute Confidential Information.


 


(f)                                    “Disability”  shall mean the Executive’s
inability, for a period of six (6) consecutive months, to render
substantially the services provided for in Section 3 by reason of
mental or physical disability, whether resulting from illness, accident or
otherwise, where the existence of Disability shall be determined in the sole
and absolute discretion of the Company.


 


(g)                                 “Term of Employment”  shall mean the period
specified in Section 2.


 


2.                                       Term of Employment


 


(a)                                  The Company
hereby employs the Executive and the Executive hereby accepts employment with
the Company, in the position and with the duties and responsibilities as set
forth in Section 3 for the Term of Employment, subject to the terms
and conditions of this Agreement.


 


(b)                                 The Term of
Employment shall commence as of the Effective Date and shall, unless sooner
terminated as provided in Section 7, terminate at 11:59 p.m.
(Pacific Standard Time) on the earlier of (i) December 31, 2010 and (ii) the
Substantial Consummation Date (as defined in the Company’s First Amended Joint
Plan of Reorganization filed July 22, 2009, as confirmed by the Amended
Order Confirming Debtors’ First Amended Plan of Reorganization issued January 22,
2010 (the “Plan”)).


 


3.                                       Position, Duties and Authorities


 


(a)                                  During the Term
of Employment, the Executive shall be employed as Chief Operating
Officer/Gaming and shall serve as a member of the Office of the CEO with the
duties, responsibilities and authorities customarily associated with such
position for other businesses of 


 


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the same size and in the same industry,
together with any other duties of a senior executive nature as may be
reasonably requested by the Board from time to time, which may include duties
for one or more subsidiaries or affiliates of the Company.  In performing the Executive’s duties under
this Agreement, the Executive shall perform such duties subject to supervision
and in accordance with the policies and directives established by the Board.


 


(b)                                 The Executive
is permitted to engage in charitable, community and business affairs, managing
personal investments and serving as a member of boards of directors of industry
associations or non-profit or for profit organizations and companies so long as
such activities do not materially interfere, in the opinion and reasonable
discretion of the Board, with the Executive carrying out his duties and
responsibilities under this Agreement.


 


4.                                       Salary


 


During the Term of Employment, the Executive shall
be paid by the Company a Salary payable in accordance with the Company’s
payroll practices in effect from time to time at an annualized rate of Six
Hundred Thousand Dollars ($600,000).


 


5.                                       Employee Benefit Programs


 


During the Term of Employment, the Executive and his
dependents shall be entitled to participate in, at the Company’s expense,
whatever employee benefit plans the Company endorses to obtain, if the Company
in its sole discretion elects to obtain, such as, but not in limitation,
medical, surgical, hospitalization, dental and visual insurance coverage.  If the Company obtains an employee benefit
plan, the Company will pay all expenses for these insurance program(s) or
plan(s).  Without limitation, the
Executive shall be entitled to participate in the Company’s 2010 Incentive Plan
on the terms approved by the Board in its sole discretion.


 


6.                                       Business Expense
Reimbursement and Perquisites


 


(a)                                  During the Term
of Employment, the Executive shall be entitled to receive reimbursement by the
Company, upon submission of adequate documentation, for all reasonable
out-of-pocket expenses incurred by the Executive in performing services under
this Agreement.


 


(b)                                 During the Term
of Employment, the Executive shall be entitled to all other perquisites and benefits
provided to other senior level executives of the Company (as referenced in Exhibit A
attached hereto).


 


7.                                       Termination of Employment


 


(a)                                  Termination
Due to Death or Disability.  In the event of
the cessation of the Executive’s employment under this Agreement due to death
or Disability, the Executive or the Executive’s legal representatives, as the
case may be, shall be entitled to:


 


(i)                                     (A) in the
case of death, continued Salary through the expiration of the Term of
Employment, or (B) in the case of Disability, Salary through the date of
such determination of Disability;


 


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(ii)                                  reimbursement
for expenses incurred but not yet reimbursed by the Company; and


 


(iii)                               any other
compensation and benefits to which the Executive or legal representatives may
be entitled to under the applicable plans, programs and agreements of the
Company.


 


(b)                                 Termination
by the Company for Cause.  At any time
after learning of an event constituting Cause, the Company may elect to give
the Executive written notice of its intention to terminate for Cause,
specifying in such notice the event forming the basis for Cause.  Subject only to the following sentence,
termination shall be effective immediately upon delivery of notice hereunder.  If the written notice is of an event constituting Cause under Section 1(d)(i) or
1(d),(v)., and if the event is
capable of being cured, the Company may allow the Executive to have ten (10) Business
Days following actual receipt of the notice of termination in which to cure, so
long as the Executive advises the Company in writing within forty-eight (48)
hours of receiving the notice of termination of the Executive’s intention to
attempt cure.  In the event the Executive’s
employment is terminated by the Company for Cause, the Executive shall be
entitled to:


 


(i)                                     Salary through
the date of termination of employment;


 


(ii)                                  reimbursement
for expenses incurred but not yet reimbursed by the Company; and


 


(iii)                               any other
compensation and benefits to which the Executive may be entitled under
applicable plans, programs and agreements of the Company.


 


The Executive’s entitlement to the foregoing
shall be without prejudice to the right of the Company to claim or sue for any
damages or other legal or equitable remedy to which the Company may be entitled
as a result of such Cause; provided,
however, that offset shall not be available to the Company in any
event.


 


(c)                                  Termination
without Cause.  In the event
the Executive’s employment is terminated by the Company without Cause (which
shall not include a termination pursuant to Section 7(a)) (“Termination Without Cause”), the Executive shall be entitled
to those items described in the subparagraphs (i) through (iii) of
this Section 7(c) below. 
Termination Without Cause shall be effective immediately, unless a later
date is stated, upon delivery of a written notice of such termination from the
Company to the Executive.


 


(i)                                     Salary through
the expiration of the Term of Employment, provided that such continued payment of
salary shall be contingent upon and subject to the Executive’s execution
(within 45 days following the date of termination of employment) and
non-revocation of a release of claims in favor of the Company in a form
satisfactory to the Company;


 


(ii)                                  reimbursement
for expenses incurred but not yet reimbursed by the Company; and


 


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(iii)                               any other
compensation and benefits to which the Executive may be entitled under
applicable plans, programs and agreements of the Company.


 


(d)                                 Voluntary
Termination.  A “Voluntary
Termination”  shall
mean a termination of employment by the Executive on his own initiative.  In the event of a Voluntary Termination, the
Executive shall be entitled to:


 


(i)                                     Salary through
the date of termination of employment;


 


(ii)                                  reimbursement
for expenses incurred but not yet reimbursed by the Company; and


 


(iii)                               any other
compensation and benefits to which the Executive may be entitled under
applicable plans, programs and agreements of the Company.


 


A Voluntary Termination shall not, solely due
to a Voluntary Termination, be deemed a breach of this Agreement and shall be
effective upon the expiration of sixty (60) days after written notice is
delivered to the Company, unless another period of time is agreed to in writing
by the Parties.


 


(e)                                  No
Mitigation; No Offset.  In the event of any termination of the Executive’s employment under this
Agreement, the Executive shall be under no obligation to seek other employment,
and there shall be no offset against amounts due the Executive under this
Agreement on account of any remuneration attributable to any subsequent
employment that the Executive may obtain.


 


(f)                                    Nature
of Payments.  Any amounts due
the Executive under this Agreement in the event of any termination of
employment with the Company are (i) in the nature of severance payments,
or (ii) liquidated damages that contemplate both direct damages and
consequential damages that the Executive may suffer as a result of the
termination of employment, or both, and are not in the nature of a penalty.


 


8.                                       Covenants to Protect
Confidential Information


 


The Executive shall not, during the Term of
Employment or anytime thereafter, without prior written consent of the Company,
divulge, publish or otherwise disclose to any other person any Confidential
Information regarding the Company except in the course of carrying out the
Executive’s responsibilities on behalf of the Company (e.g.,
providing information to the company’s attorneys, accounts, bankers, etc.) or
if required to do so pursuant to the order of a court having jurisdiction over
the subject matter or a summons, subpoena or order in the nature thereof of any
legislative body (including any committee thereof and any litigation or dispute
resolution method against the Company related to or arising out of this
Agreement) or any governmental or administrative agency.


 


9.                                       Non-Solicitation


 


Except with the prior written consent of the Board,
the Executive shall not solicit customers, clients or employees of the Company
or any of its affiliates for a period of twelve


 


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(12) months after the date
of the expiration or termination of this Agreement.  Without limiting the generality of the
foregoing, the Executive will not, for a period of twelve (12) months after the
date of the expiration or termination of this Agreement, willfully canvas or
solicit any such business in competition with the business of the Company from
any customers of the Company with whom the Executive had contact during, or of
which the Executive had knowledge solely as a result of, his performance of
services for the Company pursuant to this Agreement.  The Executive will not, for a period of
twelve (12) months after the date of the expiration or termination of this
Agreement, directly or indirectly request, induce or advise any customers of
the Company with whom the Executive had contact during the terms of this
Agreement to withdraw, curtail or cancel their business with the Company.  The Executive will not, for a period of
twelve (12) months after the date of the expiration or termination of this
Agreement, induce or attempt to induce any employee of the Company to terminate
his or her employment with the Company.


 


10.                                 Remedies.


 


(a)                                  The Executive
acknowledges and agrees that immediate and irreparable harm, for which damages
would be an inadequate remedy, would occur in the event any of the provisions
of Section 8 or 9 were not performed in accordance with their
specific terms or were otherwise breached. 
Accordingly, the Executive agrees that the Company shall be entitled to
an injunction or injunctions to prevent breaches of such provisions of this
Agreement and to enforce specifically the terms and provisions thereof without
the necessity of proving actual damages or securing or posting any bond or
providing prior notice, in addition to any other remedy to which it may be
entitled at law or equity.


 


(b)                                 Nothing herein
contained is intended to waive or diminish any rights the Company may have at
law or in equity at any time to protect and defend its legitimate property
interests (including its business relationship with third parties), the
foregoing provisions being intended to be in addition to and not in derogation
or limitation of any other rights the Company may have at law or equity.


 


(c)                                  The Executive
shall have not rights, remedies or claims for damages, at law, in equity or
otherwise with respect to any termination of the Executive’s employment by the
Company other than as set forth in Section 7.


 


11.                                 Indemnification


 


(a)                                  The Company
shall indemnify the Executive to the fullest extent permitted by Nevada law in
effect as of the date hereof against all costs, expenses, liabilities and
losses (including, without limitation, attorneys’ fees, judgments, fines,
penalties, ERISA excise taxes and amounts paid in settlement) reasonably
incurred by the Executive in connection with a Proceeding.  For the purposes of this Section 11,
a “Proceeding”  shall mean any action, suit or
proceeding by reason of the fact that the Executive is or was an officer,
director or employee, trustee or agent of any other entity at the request of
the Company.  The indemnification allowed
by this Section does not include suits initiated by the Executive against
the Company.


 


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(b)                                 The Company
shall advance to the Executive all reasonable costs and expenses incurred by
the Executive in connection with a Proceeding within twenty (20) days after
receipt by the Company of a written request for such advance.  Such request shall include an itemized list
of the costs and expenses and an agreement by the Executive to repay the amount
of such advance if it is determined by a court of competent jurisdiction that
he is not entitled to be indemnified by the Company against such costs and
expenses.


 


(c)                                  The Executive
shall not be entitled to indemnification under this Section 11
unless the Executive meets the standard of conduct specified in the Nevada
Revised Statutes.  Actions that fail to
meet the aforementioned standard of conduct shall include, but arc not limited
to, the failure to act in good faith, failure to act in the best interests of
the Company, breach of the duty of loyalty, misappropriation of business
opportunities, violation of the provisions of the articles of incorporation or
the bylaws of the Company, violation of state or federal securities laws and
violation of criminal law. 
Notwithstanding the foregoing, to the extent permitted by law, neither
Nevada Revised Statute, as amended, Section 78.7502 nor any similar
provision shall apply to indemnification under this Section, so that if the
Executive in fact meets the applicable standard of conduct, the Executive shall
be entitled to such indemnification whether or not the Company (whether by the
Board, the stockholders, independent legal counsel or other party) determines
that indemnification is proper because the Executive has met such applicable
standard of conduct.  Neither the failure
of the Company to have made such a determination prior to the commencement by
the Executive of any suit or arbitration proceeding seeking indemnification,
nor a determination by the Company that the Executive has not met such
applicable standard of conduct, shall create a presumption that the Executive
has not met the applicable standard of conduct.


 


(d)                                 The Company
shall not settle any Proceeding or claim in any manner that would impose on the
Executive any penalty or limitation without the Executive’s prior written
consent.  Neither the Company nor the
Executive will unreasonably withhold its or the Executive’s consent to any
proposed settlement.


 


12.                                 Assignability; Binding
Nature


 


This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors, heirs and
assigns.  No rights or obligations of the
Company under this Agreement may be assigned or transferred by the Executive or
the Company except that (i) such rights or obligations of the Company may
be assigned or transferred pursuant to a merger or consolidation in which the
Company is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company, provided that the assignee or
transferee is the successor to all or substantially all of the assets of the Company
and such assignee or transferee assumes the liabilities, obligations and duties
of the Company, as contained in this Agreement, either contractually or as a
matter of law, and (ii) such obligations of the Company may be transferred
by the Executive by will or pursuant to the laws of descent or
distribution.  The Company shall take all
reasonable legal action necessary to effect such assignment and assumption of
the Company’s liabilities, obligations and duties under this Agreement in
circumstances described in clause (i) of the preceding sentence.


 


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13.                                 Representation


 


The Company and the Executive respectively represent
and warrant to each other that each respectively is fully authorized and
empowered to enter into this Agreement and that their entering into this
Agreement and the performance of their respective obligations under this
Agreement will not violate any agreement between the Company or the Executive
respectively and any other person, firm or organization or any law or
governmental regulation.


 


14.                                 Entire Agreement


 


This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the Parties
relating to the subject matter set forth herein.  The Parties acknowledge and agree that the
letter agreement dated as of May 29, 2009 between the Parties has
been terminated as of the date immediately prior to the Effective Date, and has
been superseded by this Agreement.


 


15.                                 Amendment or Waiver


 


This Agreement cannot be changed, modified or
amended without the consent in writing of both the Executive and the
Company.  No waiver by either Party at
any time of any breach by the other Party of any condition or provisions of
this Agreement shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or at any prior or subsequent time.  Any waiver must be in writing and signed by
the Executive or an authorized officer of the Company, as the case may be.


 


16.                                 Severability


 


The provisions of this Agreement shall be severable
and the invalidity, illegality or unenforceability of any provision of this
Agreement shall not affect, impair or render unenforceable this Agreement or
any other provision hereof, ail of which shall remain in full force and
effect.  If any provision of this
Agreement is adjudicated by a court of competent jurisdiction as invalid,
illegal or otherwise unenforceable, but such provision may be made enforceable
by a limitation or reduction of its scope, the Parties agree to abide by such
limitation or reduction as may be necessary so that said provision shall be
enforceable to the fullest extent permitted by law.  The Parties further intend to and hereby
confer jurisdiction to enforce the covenants contained in Sections 8 and 9
(the “Restrictive
Covenants”) upon
the courts of any jurisdiction within the geographical scope of such
Restrictive Covenants.  If the courts of
any one or more of such jurisdictions hold any Restrictive Covenant
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the Company and the Executive that such determination not bar or
in any affect the right of the Company to the relief provided for in this Section in
the Courts of any other jurisdiction within the geographical scope of such
Restrictive Covenant as to breaches of such Restrictive Covenant in such other
respective jurisdictions (such Restrictive Covenant as it relates to each jurisdiction
being, for this purpose, severable into diverse and independent covenants),


 


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17.                                 Survival


 


The respective rights and obligations of the Parties
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.


 


18.                                 Governing Law


 


This Agreement shall be governed by and construed
under the law of the State of Nevada, disregarding any principles of conflicts
of law that would otherwise provide for the application of the substantive law”
of another jurisdiction.  Each Party
hereby irrevocably consents to the jurisdiction and venue of the state courts
of Clark County, Nevada and the United States district courts with jurisdiction
in Nevada with respect to any matter arising out of or relating to this
Agreement other than matters that are subject to the arbitrations provisions of
Section 19.


 


19.                                 Settlement of Disputes


 


Except for equitable actions seeking to enforce the
provisions of Sections 8 and 9 which may be brought by a court in any
competent jurisdiction, in the event a dispute, claim or controversy arises
between the Parties relating to the validity, interpretation, performance,
termination or breach of this Agreement (collectively, a “Dispute”), the Parties agree to hold a
meeting regarding the Dispute, attended by individuals with decision-making
authority, to attempt in good faith to negotiate a resolution of the Dispute
prior to pursuing other available remedies. 
If, within thirty (30) days after such meeting or after good faith
attempts to schedule such a meeting have failed, the Parties have not succeeded
in negotiating a resolution of the Dispute, the Dispute shall be resolved
through final and binding arbitration to be held in Nevada in accordance with
the rules and procedures for employment disputes of the American
Arbitration Association.  The prevailing
party in such proceeding shall be entitled to recover the costs of the
arbitration from the other party, including, without limitation, reasonable
attorneys’ fees.


 


20.                                 Notices


 


Any notice given to either Party shall be in writing
and shall be deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested, duly
addressed to the Party concerned at the address indicated below or to such
changed address as such Party may subsequently give notice of:


 


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If to the Company or the Board


 


Herbst Gaming, Inc.

3440 West Russell Road

Las Vegas, Nevada  89118

Attention:  General Counsel


 


If to the Executive:


 


David D. Ross

c/o Herbst Gaming, Inc.

3440 West Russell Road

Las Vegas, Nevada  89118


 


21.                                 Headings


 


The headings of the Sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.


 


22.                                 Counterparts


 


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


 


23.                                 Taxes


 


The Salary payable is stated in gross amounts and
shall be subject to such withholding taxes and other taxes as may be required
by law.


 


24.                                 Acknowledgment


 


The Executive acknowledges that he has been given a
reasonable period of tune to study this Agreement before signing it and has had
an opportunity to secure counsel of his own. 
By the execution of this Agreement, the Executive certifies that he has
fully read and completely understands the terms, nature and effect of this
Agreement.  The Executive further
acknowledges that he is executing this Agreement freely, knowingly and
voluntarily and that the Executive’s execution of this Agreement is not the
result of any fraud, duress, mistake, or undue influence whatsoever.  In executing this Agreement, the Executive
does not rely on any inducements, promises, or representations by the Company
other than that which is stated in this Agreement.


 


25.                                 Waiver of Jury Trial


 


Each Party waives, to the fullest extent permitted
by law, any right it may have to a trial by jury in respect of any litigation
arising out of or relating to this Agreement and Executive’s employment by the
Company.  Each party (a) certifies
that no representative, agent or attorney of the other Party has represented,
expressly or otherwise, that such other Party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that
it has been 


 


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induced to enter into this
Agreement by, among other things, the mutual waivers and certifications set
forth in this Section.


 


26.                                 Section 409A Compliance


 


(a)                                  The parties
agree that this Agreement is intended to comply with the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended, and the regulations and
guidance promulgated thereunder (“Section 409A”)
or an exemption from Section 409A. 
The Company shall undertake to administer, interpret, and construe this
Agreement in a manner that does not result in the imposition on the Executive
of any additional tax, penalty, or interest under Section 409A.  Each payment under this Agreement shall be
treated as a separate payment for purposes of Section 409A.


 


(b)                                 A termination
of employment shall not be deemed to have occurred for purposes of any
provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “separation from service” within the meaning of Section 409A
and, for purposes of any such provision of this Agreement, references to a “termination,”
“termination of employment” or like terms shall mean “separation from service.”  If the Executive is deemed on the date of
termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of
the Code, then with regard to any payment or the provision of any benefit that
is otherwise considered deferred compensation under Section 409A payable
on account of a “separation from service,” and that is not exempt from Section 409A
as involuntary separation pay or a short-term deferral (or otherwise), such
payment or benefit shall be made or provided at the date which is the earlier
of (i) the expiration of the six (6)-month period measured from the date
of such “separation from service” of the Executive or (ii) the date of the
Executive’s death (the “Delay Period”). 
Upon the expiration of the Delay Period, all payments and benefits
delayed pursuant to this Subsection 26(b) (whether they would have
otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid or reimbursed to the Executive in a lump sum without
interest, and any remaining payments and benefits due under this Agreement
shall be paid or provided in accordance with the normal payment dates specified
for them herein


 


(c)                                  With regard to
any provision herein that provides for reimbursement of costs and expenses or
in-kind benefits, except as permitted by Section 409A, all such payments
shall be made on or before the last day of calendar year following the calendar
year in which the expense occurred.


 


27.                                 Miscellaneous


 


The Company acknowledges that the Executive is in
discussions with the holders of the Senior Credit Facility Claims (as defined
in the Plan) regarding the Executive’s employment by Reorganized Herbst Gaming
(as defined in the Plan) subsequent to the Substantial Consummation Date, and
consents to the entry into an employment agreement with Reorganized Herbst
Gaming by the Executive during the Term, provided such employment agreement is
not effective until after the Substantial Consummation Date.


 


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[Signature Page Follows]


 


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  IN WITNESS
  WHEREOF, the undersigned have executed this Agreement to be effective as of
  the Effective Date.

  



 


 


	
   

  	
  THE “COMPANY”

  	
   

  	
  THE “EXECUTIVE”

  
	
   

  	
  Herbst Gaming, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Troy D. Herbst

  	
   

  	
  /s/ David D. Ross

  
	
   

  	
  Troy D. Herbst

  	
   

  	
  David D. Ross

  
	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
  Chief Executive Officer

  	
   

  	
   

  



 


[Signature Page to David D. Ross Employment
Agreement]


 

















 


Exhibit A


 


David D. Ross


 


	
  Benefit Items

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  401(k) Match

  	
   

  	
  Yes

  	
   

  	
  Per
  plan design

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Health/Dental/Vision

  	
   

  	
  Yes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Short-term
  disability

  	
   

  	
  Yes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Long-term
  disability

  	
   

  	
  Yes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Life
  insurance

  	
   

  	
  Yes

  	
   

  	
  2x
  annual salary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Travel
  related expenses

  	
   

  	
  Yes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company
  credit card

  	
   

  	
  Yes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Automobile
  allowance

  	
   

  	
  Yes

  	
   

  	
  $26,000
  (annual)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2010
  HGI Management Incentive Plan

  	
   

  	
  Yes

  	
   

  	
  As
  approved by Board of Directors