UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 3)
o |
| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
|
|
|
| For the Fiscal Year Ended December 31, 2007 |
|
|
|
o |
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File No. 1-14316
HERBST GAMING, INC.
(Exact name of Registrant as specified in its charter)
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) of the Act:
Not Applicable |
| Not Applicable |
(Title of each class) |
| (Name of each exchange on which registered) |
Securities registered pursuant to Section 12(g) of the Act: Not Applicable
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is not required to file reports 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 all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 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 information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. Applicable o Not Applicable x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company (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 (as defined in Rule 12b-2 of the Exchange Act). Yes o No x
The aggregate market value of the shares of voting and non-voting common 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’s classes of common stock, as of December 31, 2007.
Common Stock, no par value, 300 outstanding shares.
Documents Incorporated by Reference
None.
EXPLANATORY NOTE
This Amendment No. 3 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, as amended and restated on From 10-K/A (the “Amended Form 10-K”), which was filed on April 1, 2008, and was further amended by Amendment No. 2 to the Annual Report on From 10-K/A, which was filed on August 28, 2008 (“Amendment No. 2”, and together with the Amended Form 10-K, the “Form 10-K”).
This Amendment No. 3 on Form 10-K/A is being filed to amend the disclosure under Item 9A (Controls and Procedures) of Part II of the Form 10-K in order to reflect management’s conclusion that due to the failure to include all of the disclosures required in management’s report on internal control over financial reporting, the Company’s disclosure controls and procedures were not effective as of December 31, 2007.
Except as described above, no other changes have been made to the Form 10-K, and this Amendment No. 3 on Form 10-K/A does not amend, update or change the financial statements or any other items or disclosures in the Form 10-K. While this Amendment No. 3 on Form 10-K/A reflects Amendment No. 2, it does not reflect any other events occurring after the filing of the Amended Form 10-K, or modify or update those disclosures, including any exhibits to the Amended Form 10-K affected by subsequent events. Accordingly, this Amendment No. 3 on Form 10-K/A should be read in conjunction with our filings made with the Securities and Exchange Commission subsequent to the filing of the Amended Form 10-K/A.
2
| |
|
|
PART IV |
|
Item 15. | Exhibits and Financial Statement Schedules |
3
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 3 to the annual report on Form 10-K/A to be signed on its behalf by the undersigned, thereunto duly authorized.
| HERBST GAMING, INC. | ||
|
| ||
|
| ||
September 30, 2008 | By: |
| /s/ Troy D. Herbst |
| Name: | Troy D. Herbst | |
| Title: | Chief Executive Officer | |
|
| and Executive Vice President | |
4
Item 9A. Controls and Procedures.
Disclosure Controls and Procedures. We maintain “disclosure controls and procedures” (as defined in Rule 13a-15(e) under the Exchange Act) that are designed to ensure that information required to be disclosed in our Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Nevertheless, there can be no assurance that either this evaluation process or our existing disclosure controls and procedures will prevent or detect all errors and all fraud, if any, or result in accurate and reliable disclosure. A control system can provide only reasonable and not absolute assurance that the objectives of the control system are met. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. Additionally, judgments in decision-making can be faulty and breakdowns in internal control can occur because of simple errors or mistakes that are not detected on a timely basis.
A re-evaluation of the effectiveness of our disclosure controls and procedures, as of December 31, 2007, was carried out under the supervision and with the participation of the Company’s management, including our Chief Executive Officer and Chief Financial Officer. Based upon this re-evaluation of our disclosure controls and procedures, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were ineffective as of December 31, 2007. Management’s report on internal control over financial reporting, which is included below and was included in Amendment No. 2 to this report, omitted certain required disclosures in this annual report as originally filed on March 31, 2008. Because of this inadvertent omission, our Chief Executive Officer and Chief Financial Officer conducted the re-evaluation and reached the conclusion that our disclosure controls and procedures were ineffective as of December 31, 2007. Management has taken steps to ensure that future filings contain management’s report on internal control over financial reporting in its entirety.
Internal Control over Financial Reporting. Management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 15d-15(f) under the Exchange Act) for the Company. Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation or effectiveness to future periods are subject to risk that controls may become inadequate because of changes in conditions or because the degree of compliance with policies or procedures may deteriorate.
As of the Evaluation Date, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, of the effectiveness of the design and operation of our internal control over financial reporting utilizing criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
As previously disclosed in our prior public filings, our Chief Executive Officer and Chief Financial Officer identified a material weakness in our internal control for the quarter ended March 31, 2007, which consisted of a failure to have in place sufficient documentation as required by generally accepted accounting principles in order to permit interest rate swaps in the notional amount of $350.0 million to properly qualify as a hedge of a corresponding principle 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, the Company will develop an internal policy regarding hedging transactions that sets forth the required procedures and documentation in order to permit such transactions undertaken by us to qualify for hedge accounting.
5
Management believes that the financial statements included in this report fairly present, in all material respects, our financial condition, results of operations and cash flows.
Based on the evaluation and findings, discussed above the Company’s management concluded that internal control over financial reporting was effective as of December 31, 2007.
There has been no change in our internal control over financial reporting during the fourth quarter ended December 31, 2007 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reports.
This annual report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to the attestation by the Company’s registered public accounting firm pursuant to temporary rules of the SEC that permit the Company to provide only management’s report in this annual report.
6
