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**UNITEDSTATES**

**SECURITIESAND EXCHANGE COMMISSION**

**Washington, D.C. 20549**

 

**FORM 10-K/A**

**(Amendment No. 2)**

 

**ANNUALREPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACTOF 1934**

 

**For the Fiscal Year Ended December 31,2007**

 

**TRANSITIONREPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACTOF 1934**

 

**Commission File No. 1-14316**

 

**HERBSTGAMING, INC.**

(Exact name of Registrant as specified in itscharter)

 

| **Nevada**                                | ** ** | **88-0446145**                          |
|-------------------------------------------|------------|-----------------------------------------|
| (State of incorporation)                  |       | (I.R.S. Employer Identification Number) |
|                                      |       |                                    |
| **3440 West Russell Road, Las Vegas, NV** | ** ** | **89118**                               |
| (Address of principal executive offices)  |       | (Zip Code)                              |

 

Registrant’s telephone number:**(702) 889-7695**

 

Securities registered pursuant to Section 12(b) ofthe Act:

 

| **Not Applicable**    | ** ** | **Not Applicable**                          |
|-----------------------|------------|---------------------------------------------|
| (Title of each class) |       | (Name of each exchange on which registered) |

 

Securities registered pursuant to Section 12(g) ofthe Act: **Not Applicable**

 

Indicate by check mark if the registrant is a well-known seasonedissuer, as defined in Rule 405 of the Securities Act.  Yes   o  No   x

 

Indicate by check mark if the registrant is not required to filereports pursuant to Section 13 or Section 15(d) of the Act. Yes   o  No   x

 

Indicate by check mark whether the Registrant (1) has filed allreports required to be filed by Section 13 or 15(d) of the SecuritiesExchange Act of 1934 during the preceding 12 months (or for such shorter periodthat the registrant was required to file such reports), and (2) has beensubject to such filing requirements for the past 90 days.  Yes   x  No   o

 

Indicate by check mark if disclosure of delinquent filers pursuant toItem 405 of Regulation S-K is not contained herein, and will not be contained,to the best of Registrant’s knowledge, in definitive proxy or informationstatements incorporated by reference in Part III of this Form 10-K orany amendment to this Form 10-K.   Applicable     o  Not Applicable     x

 

Indicate by check mark whether the registrant is a large acceleratedfiler, an accelerated filer, a non-accelerated filer or a smaller reportingcompany (as defined in Rule 12b-2 of the Act):

 

| Large accelerated filer o | Accelerated filer o | Non-accelerated filer x | Smaller reporting company o |
|--------------------------------|--------------------------|------------------------------|----------------------------------|

 

Indicate by check mark whether the Registrant is a shell company (asdefined in Rule 12b-2 of the Exchange Act).  Yes   o  No   x

 

The aggregate market value of the shares of voting and non-votingcommon equity held by non-affiliates of the Registrant as of December 31,2007, based on the price at which the common equity was sold, was approximately$0.

 

Indicate the number of shares outstanding of each of the Registrant’sclasses of common stock, as of December 31, 2007.

 

Common Stock, no par value, 300 outstanding shares.

 

**Documents Incorporated by Reference**

 

None.

 

 

 

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EXPLANATORY NOTE

 

ThisAmendment No. 2 to the Annual Report on Form 10-K/A of Herbst Gaming, Inc.(the “Company”) amends the Company’s Form 10-K for the fiscal year ended December 31, 2007(the “Initial Form 10-K”), which was filed on March 31, 2008, asamended and restated on From 10-K/A (the “Amended Form 10-K”), which wasfiled on April 1, 2008, and is being filed to:

 

·      Amend andrestate in its entirety the disclosure under Item 9A (Controls and Procedures)of Part II of the Amended  Form 10-Kto include in Item 9A (i) a statement as to management’sresponsibility for establishing and maintaining adequate internal control overfinancial reporting, (ii) clarifying language with respect to management’sassessment of disclosure controls and procedures and management’s assessment ofinternal control over financial reporting and (iii) the language requiredby Item 308T(a)(4) of Regulation S-K.

 

·      Fileamended certifications required under Section 302 of the Sarbanes OxleyAct of 2002 contained in Exhibit 31.1 and Exhibit 31.2, whichinadvertently omitted the introductory language of paragraph 4 and thelanguage of paragraph 4(b) of Item 601(b)(31) of Regulation S-K.

 

Exceptas described above, no other changes have been made to the Amended Form 10-K,and this Amendment No. 2 on Form 10-K/A does not amend, update or change thefinancial statements or any other items or disclosures in the Amended Form 10-K.This Amendment No. 2 on Form 10-K/A does not reflect events occurring after thefiling of the Amended Form 10-K or modify or update those disclosures,including any exhibits to the Amended Form 10-K affected by subsequentevents.  Accordingly, this Amendment No. 2on Form 10-K/A should be read in conjunction with our filings made with theSecurities and Exchange Commission subsequent to the filing of the Amended Form 10-K/A.

 

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**TABLE OF CONTENTS**

 
| PART II |   |                                       |   |   |
|--------------|--------|--------------------------------------------|--------|--------|
| Item 9A.     |   | Controls and Procedures                    |   |   |
|         |   |                                       |   |   |
| PART IV |   |                                       |   |   |
| Item 15.     |   | Exhibits and Financial Statement Schedules |   |   |

 

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**PART II**

 

**Item 9A.** **Controls and Procedures.**

 

*DisclosureControls and Procedures. *We maintain “disclosure controls andprocedures” (as defined in Rule 13a-15(e) under the Exchange Act)that are designed to ensure that information required to be disclosed in ourExchange Act reports is recorded, processed, summarized and reported within thetime periods specified in the SEC’s rules and forms, and that suchinformation is accumulated and communicated to our management, including ourChief Executive Officer and Chief Financial Officer, as appropriate, to allowfor timely decisions regarding required disclosure.  In designing and evaluating the disclosurecontrols and procedures, management recognizes that any controls andprocedures, no matter how well designed and operated, can provide onlyreasonable assurance of achieving the desired control objectives, andmanagement is required to apply its judgment in evaluating the cost-benefitrelationship of possible controls and procedures.  Nevertheless, there can be no assurance thateither this evaluation process or our existing disclosure controls andprocedures will prevent or detect all errors and all fraud, if any, or resultin accurate and reliable disclosure.  Acontrol system can provide only reasonable and not absolute assurance that theobjectives of the control system are met. Because of the inherent limitations in all control systems, noevaluation of controls can provide absolute assurance that all control issues andinstances of fraud, if any, have been detected. Additionally, judgments in decision-making can be faulty and breakdownsin internal control can occur because of simple errors or mistakes that are notdetected on a timely basis.

 

Asof the end of the period covered by this report (the “Evaluation Date”), anevaluation was carried out by management, with the participation of our ChiefExecutive Officer and Chief Financial Officer, of the effectiveness of thedesign and operation of our disclosure controls and procedures.  Based on this evaluation, Company’smanagement concluded that our disclosure controls and procedures are effectiveas of December 31, 2007.

 

*InternalControl over Financial Reporting.*  Management is responsible forestablishing and maintaining adequate internal control over financial reporting(as defined in Rule 15d-15(f) under the Exchange Act) for theCompany.  Our internal control overfinancial reporting is a process designed to provide reasonable assuranceregarding the reliability of financial reporting and the preparation offinancial statements for external purposes in accordance with generallyaccepted accounting principles in the United States.  Because of its inherent limitations, internalcontrol over financial reporting may not prevent or detect misstatements.  Also, projections of any evaluation oreffectiveness to future periods are subject to risk that controls may becomeinadequate because of changes in conditions or because the degree of compliancewith policies or procedures may deteriorate.

 

Asof the Evaluation Date, we carried out an evaluation, under the supervision andwith the participation of our management, including our Chief Executive Officerand our Chief Financial Officer, of the effectiveness of the design andoperation of our internal control over financial reporting utilizing criteriaestablished in *Internal Control-Integrated Framework*issuedby the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

 

Aspreviously disclosed in our prior public filings, our Chief Executive Officerand Chief Financial Officer identified a material weakness in our internalcontrol for the quarter ended March 31, 2007, which consisted of a failureto have in place sufficient documentation as required by generally acceptedaccounting principles in order to permit interest rate swaps in the notionalamount of $350.0 million to properly qualify as a hedge of a correspondingprinciple amount under our credit agreement. During the fourth quarter of 2007,the Company terminated this interest rate swap. Prior to the institution of any new interest rate swap arrangements, theCompany will develop an internal policy regarding hedging transactions thatsets forth the required procedures and documentation in order to permit suchtransactions undertaken by us to qualify for hedge accounting.

 

Managementbelieves that the financial statements included in this report fairly present,in all material respects, our financial condition, results of operations andcash flows.

 

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Basedon the evaluation and findings, discussed above the Company’s managementconcluded that internal control over financial reporting was effective as of December 31,2007.

 

Therehas been no change in our internal control over financial reporting during thefourth quarter ended December 31, 2007 that has materially affected, or isreasonably likely to materially affect, our internal control over financialreports.

 

This annual report does not include an attestation report of theCompany’s registered public accounting firm regarding internal control overfinancial reporting.  Management’s reportwas not subject to the attestation by the Company’s registered publicaccounting firm pursuant to temporary rules of the SEC that permit theCompany to provide only management’s report in this annual report.

 

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**SIGNATURES**

 

Pursuant to the requirements of Section 13 or 15(d) of theSecurities Exchange Act of 1934, the registrant has duly caused this Amendment No. 2to the annual report on Form 10-K/A to be signed on its behalf by theundersigned, thereunto duly authorized.

 
| ** ** | **HERBST GAMING, INC.** |
|------------|-------------------------|
| ** ** | ** **              |
| ** ** | ** **              |
|       | By:                     | /s/ Troy D. Herbst |
|       | Name:                   | Troy D. Herbst |
|       | Title:                  | Chief Executive Officer |
|       |                    | and Executive Vice President |
|            |                         |  |  |

 

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