-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, J9COUezWCeWxZV6HkbgShh+q+wgXNcW31vRfzeyKCgWf0UVsNIiXEErPjbz7Bs7a R3gQzFIBggOB9ttnT+HXUQ== 0000906780-02-000020.txt : 20020508 0000906780-02-000020.hdr.sgml : 20020508 ACCESSION NUMBER: 0000906780-02-000020 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20020508 GROUP MEMBERS: BKB, LLC GROUP MEMBERS: NEW YORK GAMING, LLC GROUP MEMBERS: PHILIP BERMAN GROUP MEMBERS: ROBERT ALAN BERMAN GROUP MEMBERS: SCOTT A. KANIEWSKI GROUP MEMBERS: WATERTONE HOLDINGS, LP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ALPHA HOSPITALITY CORP CENTRAL INDEX KEY: 0000906780 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 133714474 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-45334 FILM NUMBER: 02638071 BUSINESS ADDRESS: STREET 1: 29-76 NORTHERN BOULEVARD STREET 2: 2ND FLOOR CITY: LONG ISLAND CITY STATE: NY ZIP: 11101 BUSINESS PHONE: 718-685-3014 MAIL ADDRESS: STREET 1: 29-76 NORTHERN BOULEVARD STREET 2: 2ND FLOOR CITY: LONG ISLAND CITY STATE: NY ZIP: 11101 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NEW YORK GAMING LLC CENTRAL INDEX KEY: 0001169308 IRS NUMBER: 300030943 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ALPHA HOSPITALITY CORP STREET 2: 29-76 NORTHERN BLVD CITY: LONG ISLAND CITY STATE: NY ZIP: 11101 BUSINESS PHONE: 7186853014 MAIL ADDRESS: STREET 1: ALPHA HOSPITALITY CORP STREET 2: 29-76 NORTHERN BLVD CITY: LONG ISLAND CITY STATE: NY ZIP: 11101 SC 13D/A 1 ed13da.txt 13D/A FILING FOR NEW YORK GAMING, R BERMAN, ETC SEC 1746 (2-98) Potential persons who are to respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number. OMB APPROVAL OMB Number: 3235-0145 Expires: October 31, 2002 Estimated average burden hours per response. . . 14.9 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. ____1____)* Alpha Hospitality Corporation (Name of Issuer) Common Stock, par value $.01 per share (Title of Class of Securities) 020732-20-2 (CUSIP Number) Scott Kaniewski c/o Alpha Hospitality Corporation 29-76 Northern Blvd 2nd Floor Long Island City, NY 11101 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 30, 2002 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of 240.13d-1(e), 240.13d-1(f) or 240.13d-1 (g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 020732-20-2 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Robert A. Berman 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) X (b) 3. SEC Use Only........................................................ 4. Source of Funds (See Instructions) OO 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)........................................................... 6. Citizenship or Place of Organization United States of America Number of 7. Sole Voting Power 600 Shares ------------------------------------------------------------ Beneficially 8. Shared Voting Power 2,902,730 Owned by ------------------------------------------------------------ Each 9. Sole Dispositive Power 600 Reporting ------------------------------------------------------------ Person With 10. Shared Dispositive Power 575,874 11. Aggregate Amount Beneficially Owned by Each Reporting Person 2,903,330 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 60.44% 14. Type of Reporting Person (See Instructions) IN CUSIP No. 020732-20-2 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Philip Berman 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) X (b) 3. SEC Use Only........................................................ 4. Source of Funds (See Instructions) OO 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)........................................................... 6. Citizenship or Place of Organization United States of America Number of 7. Sole Voting Power 0 Shares ------------------------------------------------------------ Beneficially 8. Shared Voting Power 2,902,730 Owned by ------------------------------------------------------------ Each 9. Sole Dispositive Power 0 Reporting ------------------------------------------------------------ Person With 10. Shared Dispositive Power 575,874 11. Aggregate Amount Beneficially Owned by Each Reporting Person 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 60.42% * 14. Type of Reporting Person (See Instructions) IN * If certain shares for which this Reporting Person may direct the vote one time on a single matter are excluded, this Reporting Person beneficially owns 575,874 shares (11.99% of the class). See Item 5 for further discussion. CUSIP No. 020732-20-2 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Scott A. Kaniewski 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) X (b) 3. SEC Use Only........................................................ 4. Source of Funds (See Instructions) OO 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)........................................................... 6. Citizenship or Place of Organization United States of America Number of 7. Sole Voting Power 0 Shares ------------------------------------------------------------ Beneficially 8. Shared Voting Power 2,902,730 Owned by ------------------------------------------------------------ Each 9. Sole Dispositive Power 0 Reporting ------------------------------------------------------------ Person With 10. Shared Dispositive Power 575,874 11. Aggregate Amount Beneficially Owned by Each Reporting Person 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 60.42% * 14. Type of Reporting Person (See Instructions) IN *If certain shares for which this Reporting Person may direct the vote one time on a single matter are excluded, this Reporting Person beneficially owns 575,874 shares (11.99% of the class). See Item 5 for further discussion. CUSIP No. 020732-20-2 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Watertone Holdings, LP 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) X (b) 3. SEC Use Only........................................................ 4. Source of Funds (See Instructions) OO 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)........................................................... 6. Citizenship or Place of Organization Delaware Number of 7. Sole Voting Power 0 Shares ------------------------------------------------------------ Beneficially 8. Shared Voting Power 2,902,730 Owned by ------------------------------------------------------------ Each 9. Sole Dispositive Power 0 Reporting ------------------------------------------------------------ Person With 10. Shared Dispositive Power 575,874 11. Aggregate Amount Beneficially Owned by Each Reporting Person 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 60.42% * 14. Type of Reporting Person (See Instructions) PN *If certain shares for which this Reporting Person may direct the vote one time on a single matter are excluded, this Reporting Person beneficially owns 575,874 shares (11.99% of the class). See Item 5 for further discussion. CUSIP No. 020732-20-2 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) BKB, LLC 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) X (b) 3. SEC Use Only........................................................ 4. Source of Funds (See Instructions) OO 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)........................................................... 6. Citizenship or Place of Organization New York Number of 7. Sole Voting Power 0 Shares ------------------------------------------------------------ Beneficially 8. Shared Voting Power 2,902,730 Owned by ------------------------------------------------------------ Each 9. Sole Dispositive Power 0 Reporting ------------------------------------------------------------ Person With 10. Shared Dispositive Power 575,874 11. Aggregate Amount Beneficially Owned by Each Reporting Person 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 60.42% * 14. Type of Reporting Person (See Instructions) OO *If certain shares for which this Reporting Person may direct the vote one time on a single matter are excluded, this Reporting Person beneficially owns 575,874 shares (11.99% of the class). See Item 5 for further discussion. CUSIP No. 020732-20-2 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) New York Gaming, LLC 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) X (b) 3. SEC Use Only........................................................ 4. Source of Funds (See Instructions) OO 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)........................................................... 6. Citizenship or Place of Organization Georgia Number of 7. Sole Voting Power 0 Shares ------------------------------------------------------------ Beneficially 8. Shared Voting Power 575,874 Owned by ------------------------------------------------------------ Each 9. Sole Dispositive Power 0 Reporting ------------------------------------------------------------ Person With 10. Shared Dispositive Power 575,874 11. Aggregate Amount Beneficially Owned by Each Reporting Person 575,874 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 11.99% 14. Type of Reporting Person (See Instructions) OO This Amendment No. 1 amends the Schedule 13D originally filed on March 22, 2002 (the "Original Schedule 13D"), by Robert A. Berman, Scott A. Kaniewski, Philip Berman, Watertone Holdings, LP, BKB, LLC and New York Gaming, LLC (the "Reporting Persons"), which related to the Common Stock, $.01 par value per share (the "Common Stock"), of Alpha Hospitality Corporation (the "Company"), a Delaware corporation. The purpose of this Amendment No. 1 is to amend Items 3, 5 and 6 with respect to the issuance to Reporting Person Robert A. Berman of a proxy containing additional voting rights. The information contained in the Original Schedule 13D with respect to each of the other Reporting Persons is not affected by this amendment. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3 of the Original Schedule 13D is hereby amended by adding the following paragraph at the end thereof: On April 30, 2002, Robert A. Berman entered into an irrevocable proxy and voting agreement (the "Proxy Agreement") with the Company's principal shareholder, Bryanston Group, Inc. ("Bryanston"). The agreement, which has a three year term, confirms upon Robert A. Berman the right to vote all of the 2,326,857 shares of the Common Stock Bryanston currently owns for the election of a majority of the members of the Board of Directors of the Company. The parties entered into the Proxy Agreement to ensure that control of the Company would be insulated from any appearance of direct or indirect involvement by certain former directors and officers who are the subject of indictments on personal matters unrelated to the Company. (See the Company's Form 8-K, filed with the SEC on April 18, 2002). ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 of the Original Schedule 13D is hereby amended in its entirety, as follows: (a) The foregoing is based upon 4,804,315 shares of the Common Stock outstanding on the date hereof, as reported to the Reporting Persons by the Company. As discussed more fully in Item 5(b) below, Robert A. Berman beneficially owns 2,903,330 shares of the Common Stock, representing 60.44% of the class. As discussed more fully in Item 5(b) below, Scott A. Kaniewski, Philip Berman, Watertone Holdings, LP and BKB, LLC each beneficially owns 2,902,730 shares of the Common Stock, representing 60.42% of the class. Without the limited proxy referred to in Item 5(b) below, each of such Reporting Persons beneficially owns 575,874 shares of the Common Stock, representing 11.99% of the class. New York Gaming, LLC beneficially owns 575,874 shares of the Common Stock, representing 11.99% of the class. (b) New York Gaming, LLC holds 575,874 shares of the Common Stock. Watertone Holdings, LP is the manager of New York Gaming, LLC. BKB, LLC is the General Partner of Watertone Holdings, LP. Robert A. Berman, Scott A. Kaniewski and Philip Berman share control of BKB, LLC. As a result, each of the Reporting Persons has shared power to vote or to direct the vote and shared power to dispose or to direct the disposition of all 575,874 shares of the Common Stock held by New York Gaming, LLC. Watertone Holdings, LP also holds a limited proxy (the "Limited Proxy") granted by Bryanston Group, Inc. ("Bryanston"). The Limited Proxy only gives Watertone Holdings, LP the right to vote Bryanston's 2,326,856 shares at the next annual meeting of stockholders in favor of a proposal to approve the grant of the additional 205,538 options to each of Robert A. Berman and Scott A. Kaniewski discussed in Item 4(a) above. Watertone Holdings, LP, Robert A. Berman, Scott A. Kaniewski, Philip Berman and BKB, LLC have shared power to exercise the vote attendant to the Limited Proxy. None of such persons has any power to dispose or to direct the disposition of the shares covered by the Limited Proxy. Each of the Reporting Persons other than Robert A. Berman disclaims beneficial ownership of such shares for any purpose other than voting on such proposal. As a result of the foregoing, each of Watertone Holdings, LP, Robert A. Berman, Scott A. Kaniewski, Philip Berman and BKB, LLC has shared power to vote or to direct the vote of 2,902,730 shares of the Common Stock, representing 60.42% of the class. Each of such Reporting Persons has shared power to dispose or to direct the disposition of 575,874 shares. Without the Limited Proxy, each of such Reporting Persons other than Robert A. Berman has shared power to vote or to direct the vote and shared power to dispose or to directo disposition of 575,874 shares of the Common Stock, representing 11.99% of the class. In addition to the shared power to vote or direct the vote with respect to Bryanston's 2,326,856 shares discussed above, in the Proxy Agreement Bryanston conferred upon Robert A. Berman the sole power to vote or to direct the vote of its shares for the election of a majority of the members of the Board of Directors of the Company for three years. As Bryanston retained the right to vote on all other proposals, Robert A. Berman shares the power to vote or direct the vote of Bryanston's shares. This power continues even after the expiration of the Limited Proxy. Robert A. Berman has shared power to vote or to direct the vote of 2,902,730 shares of the Common Stock, representing 60.42% of the class. Robert A. Berman does not have any power to dispose or to direct the disposition of any of Bryanston's shares. In addition to the foregoing, Robert A. Berman has sole power to vote or to direct the vote and sole power to dispose or to direct the disposition of 600 shares (less than 1% of the class). (c) Except as disclosed in Item 3 above, none of the Reporting Persons has made any transactions in the Common Stock during the past sixty days. (d) None. (e) Not Applicable ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 of the Original Schedule 13D is hereby amended in its entirety, as follows: Pursuant to a Tag-Along Agreement, dated as of March 12, 2002, by and between Bryanston and Watertone Holdings, LP, Bryanston granted Watertone Holdings, LP the right, for up to 3 years, to participate in any sales by Bryanston of the Company's Common Stock, subject to certain minor exceptions. On April 30, 2002, Robert A. Berman entered into the Proxy Agreement with Bryanston, as discussed more fully in Item 3 above. Except as otherwise described herein, there exists no other contract, arrangement, understanding or relationship (legal or otherwise) between any Reporting Person and any other person or entity with respect to any securities of the Company, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 5. Irrevocable Proxy and Voting Agreement, dated April 30, 2002, among Bryanston, Watertone, Robert A. Berman and Scott A. Kaniewski . (incorporated by reference - filed as an exhibit to Form 8-K filed by Alpha Hospitality Corporation on May 1, 2002) SIGNATURES After reasonable inquiry and to the best of his or its knowledge and belief, each of the undersigned does hereby certify that the information set forth in this Statement is true, complete and correct. Dated: May 8, 2002 /s/ Robert A. Berman Robert A. Berman /s/ Scott A. Kaniewski Scott A. Kaniewski /s/ Philip Berman Philip Berman BKB, LLC By: /s/ Robert A. Berman Robert A. Berman Its Managing Member WATERTONE HOLDINGS, LP By: BKB, LLC, Its General Partner By: /s/ Robert A. Berman Robert A. Berman Its Managing Member NEW YORK GAMING, LLC By: Watertone Holdings, LP, Its manager By: BKB, LLC, Its General Partner By: /s/ Robert A. Berman Robert A. Berman Its Managing Member -----END PRIVACY-ENHANCED MESSAGE-----