Exhibit 10.2


 


Amendment One


to the


                     Employment
Agreement


 


The
Employment Agreement (“Agreement”), effective                       ,
by and between Herbst Gaming, Inc., a Nevada corporation (the “Company”) and
                    
(the “Executive”), is hereby amended, effective January 1, 2009, as
follows:


 


1.               A new paragraph as flush
language shall be inserted at the end of Section 7(a), as follows:


 


Payments
made under this Section 7(a) shall commence on the first of the month
after the Executive’s termination of employment, due to either death or
Disability, occurs, and shall be paid in semi-monthly payments.


 


2.               Subparagraph (i) of Section 7(c) shall
be deleted and replaced with the following subparagraph:


 


(i)                                            an amount equal
to twelve (12) months of Salary (the “Salary Termination Payment”).  The Executive will receive the Salary
Termination Payment in equal monthly installments over a one (1) year  period commencing on the next regularly
scheduled payday that follows the Executive’s termination of employment;


 


3.               A new paragraph (g) shall
be inserted after the end of Section 7, as follows:


 


(g)                                                         For purposes of
this Section 7, the phrase “termination of employment,” and correlative
phrases, shall mean “separation from service” as defined in Treasury Regulation
section 1.409A-1(h), other than a termination upon the Executive’s death.


 


4.               A new Section 26 shall
be inserted after the end of Section 25, as follows:


 


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)                     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 


 


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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.


 


All other terms and conditions of the Agreement shall remain in full
force and effect unless otherwise amended herein.


 


 


	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
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