-----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, VjCCftqG281MCIfSfexrO4BGyC8A5T9iGYedi64iy5vrR47nGTRdV1/HTGxQTlFt +W1RzyyaxT5oickOOmE/IA== 0000906780-02-000057.txt : 20021212 0000906780-02-000057.hdr.sgml : 20021212 20021212161614 ACCESSION NUMBER: 0000906780-02-000057 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20021212 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: 02855919 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 e13d121.txt NEW YORK GAMING 13D/A FILING OMB APPROVAL OMB Number: 3235-0145 Expires: December 31, 2005 Estimated average burden hours per response. . . 11 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. ________)* 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, CFO Alpha Hospitality Corporation 707 Skokie Blvd Ste 600 Northbrook, IL 60062 (847) 418-3804 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 10, 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 Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 2,326,857 8. Shared Voting Power 575,874 9. Sole Dispositive Power 600 10 Shared Dispositive Power 575,874 11. Aggregate Amount Beneficially Owned by Each Reporting Person 2,969,330 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 60.56% 14. Type of Reporting Person (See Instructions) IN The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) 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 Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 0 8. Shared Voting Power 575,874 9. Sole Dispositive Power 0 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) 11.75% 14. Type of Reporting Person (See Instructions) IN The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) 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 Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 0 8. Shared Voting Power 575,874 9. Sole Dispositive Power 0 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) 11.75% 14. Type of Reporting Person (See Instructions) IN The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) 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 United States of America Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 0 8. Shared Voting Power 575,874 9. Sole Dispositive Power 0 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) 11.75% 14. Type of Reporting Person (See Instructions) PN The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) 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 United States of America Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 0 8. Shared Voting Power 575,874 9. Sole Dispositive Power 0 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) 11.75% 14. Type of Reporting Person (See Instructions) OO The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) CUSIP No. 020732-20-0 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 United States of America Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 0 8. Shared Voting Power 575,874 9. Sole Dispositive Power 0 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) 11.75% 14. Type of Reporting Person (See Instructions) OO The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) This Amendment No. 2 amends the Schedule 13D originally filed on March 22, 2002 (the "Original Schedule 13D") and Amendment No. 1 filed on May 8, 2002, 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. 2 is to amend Items 3, 5 and 6 with the issuance to Reporting Person Robert A. Berman of a proxy containing additional voting rights and to Reporting Person's Philip Berman, Scott A. Kaniewski, Watertone Holdings, LP, BKB, LLC and New York Gaming, LLC in regards to the termination of the right to vote one time on a single matter. 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 Original Schedule 13D is hereby amended by adding the following paragraph at the end thereof. On December 10, 2002, the Company, Alpha Monticello, Inc, Bryanston Group, Inc. ("Bryanston"), Stanley Tollman, Beatrice Tollman and Monty Hundley entered into a Recapitalization Agreement. As part of this agreement, Bryanston and Beatrice Tollman granted Robert A. Berman a three year, irrevocable proxy to vote all of the common shares subject to the agreement, with full powers of substitution and revocation. The agreement gives Mr. Berman full power in his sole discretion to vote Bryanston's 2,326,857 and 66,000 shares owned by Beatrice Tollman. Further, Bryanston revoked any proxy in effect as of the dated of the agreement therefore the April 30, 2002 agreement, and any other, between it and Robert A. Berman has been terminated. As a result of the agreement and the termination of all other proxies, Philip Berman, Scott A. Kaniewski, Watertone Holdings, LP, BKB, LLC and New York Gaming, LLC rights to vote one time on a single matter has also been terminated. The parties entered into the Recapitalization Agreement to address the potential regulatory issues that the Company will face as it moves forward. (See the Company's Form 8-K, filed with the Securities and Exchange Commission on April 18, 2002 and Form 8-K filed with the Securities and Exchange Commission on December 12, 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 4,903,117 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 2,969,330 shares of the Common Stock, representing 60.56% of the class. As discussed more fully in Item 5(b) below, Scott A. Kaniewski, Philip Berman, Watertone Holdings, LP, BKB, LLC and New York Gaming, LLC each beneficially owns 575,874 shares of the Common Stock, representing 11.75% 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 shares 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. Robert A. Berman has sole power to vote 2,969,330 shares of the Common Stock, representing 60.56% of the class. Robert A. Berman does not have any power to dispose or to direct the disposition of any of Bryanston's and Beatrice Tollman's shares. Robert A. Berman disclaims beneficial ownership of such shares for any purpose other than voting. 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 THE 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 December 10, 2002, the Company, Alpha Monticello, Inc, Bryanston Group, Inc., Stanley Tollman, Beatrice Tollman and Monty Hundley entered into a Recapitalization Agreement, 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 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 agreements, 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. Recapitalization Agreement dated December 10, 2002 between Alpha Hospitality Corporation, Alpha Monticello, Inc., Bryanston Group, Inc., Stanley Tollman, Beatrice Tollman and Monty Hundley. (incorporated by reference - filed as an exhibit to Form 8-K with the Securities and Exchange Commission by the Company on December 11, 2002). Signature After reasonable inquiry and to the best of his, her 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: December 12, 2002 /s/ Robert A. Berman Robert A. Berman /s/ Philip Berman Philip Berman /s/ Scott A. Kaniewski Scott A. Kaniewski Watertone Holdings, LP By: BKB, LLC, Its General Partner By: /s/ Robert A. Berman Robert A. Berman Its Managing Member BKB, LLC By: /s/ Robert A. Berman Robert A. Berman Its Managing Member New York Gaming, LLC By: Watertone Holdings LP, Its General Partner By: /s/ Robert A. Berman Robert A. Berman Its Managing Member -----END PRIVACY-ENHANCED MESSAGE-----