SEC 1746 (2-98)
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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
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)
March 12, 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
* 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 576,474 shares (12.00% 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) 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
ITEM 1. SECURITY AND ISSUER.
The title of the class of securities to which this filing relates
is Common Stock, $.01 par value per share (the "Common Stock"),
of Alpha Hospitality Corporation, a Delaware corporation (the
"Company"). The Company's principal executive office is located
at 29-76 Northern Boulevard, 2nd Floor, Long Island City, New
York 11101. The Company's telephone number is (718) 685-3014.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This statement is being filed by the following (each a
"Reporting Person"):
Robert A. Berman
Scott A. Kaniewski
Philip Berman
Watertone Holdings, LP
BKB, LLC
New York Gaming, LLC
(b) The business address of Philip Berman is 51 Ryan Court, New
Windsor, New York 12553. The business address of each of the
other Reporting Persons is c/o Alpha Hospitality Corporation, 29-
76 Northern Boulevard, 2nd Floor, Long Island City, New York
11101.
(c) Robert Berman is the Chairman of the Board and
a Director of the Company.
Scott A. Kaniewski is a Senior Officer and a
Director of the Company.
Philip Berman is a private investor.
Watertone Holdings, LP is an investment partnership
BKB, LLC is the manager of Watertone Holdings, LP
New York Gaming, LLC is an investment company
(d) During the last five years, none of the Reporting Persons
has been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons
has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction resulting in its
being subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Robert A. Berman is a United States citizen.
Scott A. Kaniewski is a United States citizen.
Philip Berman is a United States citizen.
Watertone Holdings, LP is a Delaware limited partnership.
BKB, LLC is a New York limited liability company.
New York Gaming, LLC is a Georgia limited liability company.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On March 12, 2002, the Company consummated the acquisition of
47.5% of the economic interests previously held by Watertone
Holdings, LP in the casino and racetrack business components of
the business of Catskill Development, L.L.C. In partial
consideration for such economic interests, the Company issued
575,874 shares of its Common Stock. Additionally, as part of the
transactions, the Company entered into employment agreements with
Robert A. Berman and Scott Kaniewski. The Amended and Restated
Contribution Agreement (the "Contribution Agreement") pursuant to
which such transaction was consummated is filed as an exhibit to
Form 8-K filed by the Company on February 26, 2002.
Subsequent to the consummation of the foregoing transaction, the
575,874 shares of the Common Stock are held by New York Gaming,
LLC, of which Watertone Holdings, LP is the manager.
ITEM 4. PURPOSE OF TRANSACTION.
Each of the Reporting Persons owns securities of the Company for
investment purposes and may from time to time increase or
decrease his or its position in the Company's securities.
As officers and directors of the Company, Robert A. Berman and
Scott A. Kaniewski may at various times be aware of one or more
plans or proposals being considered by the Company, which if
implemented may or would have similar results to one or more of
the actions listed in (a) to (j) of this Item 4. Except as
reported herein, Robert A. Berman and Scott A. Kaniewski expect
that any benefit from any such actions would inure to the benefit
of the Reporting Persons in proportion to all other holders of
the Common Stock.
(a) Each of Robert A. Berman and Scott A. Kaniewski has been
granted options to purchase 90,151 shares of the
Company's common stock at an exercise price of $17.49 per
share. These options vest beginning in 2003 and are not
included in this report as beneficially owned. The
Company has agreed to grant options to each of such
persons for an additional 205,538 shares at the same
exercise price, subject to stockholder approval (which
has not yet been obtained). If such approval is
obtained, a total of 295,689 options will held by each of
such persons.
(b) Except as set forth herein, the Reporting Persons do not
have any plans or proposals which may result or would
result in an extraordinary corporate transaction, such as
a merger, reorganization or liquidation, involving the
Company or any of its subsidiaries.
(c) Except as set forth herein, the Reporting Persons do not
have any plans or proposals which may result or would
result in a sale or transfer of a material amount of
assets of the Company or any of its subsidiaries.
(d) Robert A. Berman and Scott A. Kaniewski, as directors of
the Company, intend to submit two nominees to fill
existing vacancies
on the Board of Directors. A majority
of the current Board of Directors will decide who fills
such vacancies in the ordinary course of performing the
Board's duties.
(e) The Company is currently in discussions about
repurchasing certain of its existing debt securities and
preferred stock and raising capital in the equity
markets.
(f) Except as set forth herein, the Reporting Persons do not
have any plans or proposals which may result or would
result in any other material change in the Company's
business or corporate structure.
(g) Pursuant to the Contribution Agreement, the Board of
Directors of the Company amended the Company's By-laws to
provide for minimum qualification for directors.
(h) Except as set forth herein, the Reporting Persons do not
have any plans or proposals which may result or would
result in causing a class of securities of the Company to
be de-listed from a national securities exchange or to
cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities
association.
(i) Except as set forth herein, the Reporting Persons do not
have any plans or proposals which may result or would
result in a class of equity securities of the Company
becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Act.
(j) Except as set forth herein, the Reporting Persons do not
have any plans or proposals which may result or would
result in any action similar to any of those enumerated
above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(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. Without the
limited proxy referred to in Item 5(b) below, Robert A.
Berman beneficially owns 576,474 shares of the Common
Stock, representing 12.00% 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 granted
by Bryanston Group, Inc. ("Bryanston"). Such 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 such proxy. None
of such persons has any power to dispose or to direct the
disposition of the shares covered by such proxy. The
Reporting Persons disclaim 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
referred to above, each of such Reporting Persons has
shared power to vote or to direct the vote and shared
power to dispose or to direct the disposition of 575,874
shares of the Common Stock, representing 11.99% of the
class.
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.
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.
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.
1. Amended and Restated Contribution Agreement, dated as of
February 8, 2002, by and between Alpha Hospitality Corporation
and Watertone Holdings, LP. (incorporated by reference - filed as
an exhibit to Form 8-K filed by Alpha Hospitality Corporation on
February 26, 2002).
2. Irrevocable Proxy for Meeting of Shareholders of Alpha
Hospitality Corporation, dated March 12, 2002, given by Bryanston
to Watertone Holdings, LP.
3. Amendments to By-Laws
4. Tag-Along Agreement, dated as of March 12, 2002, by and
between Bryanston and Watertone Holdings, LP.
SIGNATURE
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: March 21, 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
INDEX TO EXHIBITS
1. Amended and Restated Contribution Agreement, dated as of
February 8, 2002, by and between Alpha Hospitality Corporation
and Watertone Holdings, LP. (incorporated by reference - filed as
an exhibit to Form 8-K filed by Alpha Hospitality Corporation on
February 26, 2002)
2. Irrevocable Proxy for Meeting of Shareholders of Alpha
Hospitality Corporation, dated March 12, 2002, given by Bryanston
to Watertone Holdings, LP.
3. Amendments to By-Laws
4. Tag-Along Agreement, dated as of March 12, 2002, by and
between Bryanston and Watertone Holdings, LP.
EXHIBIT 2
IRREVOCABLE PROXY FOR MEETING OF SHAREHOLDERS OF ALPHA
HOSPITALITY CORPORATION, DATED MARCH 12, 2002, GIVEN BY
BRYANSTON TO WATERTONE HOLDINGS, LP.
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
shareholder of Alpha Hospitality Corporation ("Alpha"), hereby
revoking all prior proxies, constitutes and appoints Watertone
Holdings, LP ("Watertone") the true and lawful attorney-in-fact
and irrevocable proxy of the undersigned, to attend and represent
the undersigned at the Shareholders Meeting (as hereinafter
defined) to vote all such shares of Alpha held by the undersigned
with respect to the Proposal (as hereinafter defined). Watertone
shall, for and on behalf of the undersigned, vote in accordance
with its judgment with respect to the Proposal. As used herein,
the "Shareholders Meeting" means the next meeting (whether an
annual or special meeting) of shareholders of Alpha (and any
adjournment or adjournments thereof) at which the shareholders of
Alpha are to consider and vote upon the Proposal, and the
"Proposal" means any proposal to approve the increase of the
number of shares with respect to which each of Robert Berman and
Scott Kaniewski is to be granted an option under his respective
Employment Agreement (as defined under that certain Amended And
Restated Contribution Agreement, dated as of February 8, 2002,
between Alpha and Watertone) from 95,016 to 295,689.
The undersigned hereby irrevocably gives and grants unto
said attorney-in-fact an irrevocable proxy with full power of
substitution. This proxy is irrevocable and is coupled with an
interest in Alpha.
IN WITNESS WHEREOF, the undersigned has executed this proxy
this 12th day of March, 2002.
Bryanston Group, Inc.
___________________________________
By:
Its:
EXHIBIT 3
AMENDMENTS TO BY-LAWS
Section 2.1 Number; Term of Office; Qualifications. The
number of directors that shall constitute the whole Board of
Directors shall be seven, which number may be changed from
time to time as determined by action of the Board of Directors
taken by the affirmative vote of a majority of the whole Board
of Directors. Directors shall be elected at the annual
meeting of stockholders to hold office, subject to Sections
2.2 and 2.3 below, until the next annual meeting of
stockholders and until their respective successors are
qualified and elected. Vacancies and newly created
directorships resulting from any resignation or (pursuant to
Section 2.3 below) removal of any director or directors or any
increase in the authorized number of directors may be filled
by a majority vote of the directors then in office, although
less than a quorum, or by the sole remaining director. The
directors so chosen shall hold office, subject to Sections 2.2
and 2.3 below, until the next annual meeting of stockholders
and until their respective successors are qualified and
elected. Any individual appointed or elected to serve on, or
nominated as a candidate for election to, the Board of
Directors shall have (a) at least ten (10) years' prior
business or legal experience or (b) served as a senior
executive or board member of a corporation for at least five
(5) years or (c) comparable experience in management,
operations, finance, legal and/or accounting. Any individual
appointed to serve on, or nominated as a candidate for
election to the Board of Directors shall attest in writing
that he or she is not or (if he or she were then serving as a
member of the Board of Directors) would not be, at the time of
appointment or nomination, subject to removal pursuant to
Section 2.3 below. Notwithstanding anything contained in
these By-Laws to the contrary, this Section 2.1 may not be
amended except by vote of the stockholders of the Corporation
or by unanimous vote of the entire Board of Directors.
Section 2.3 Removal. Any one or more directors may be
removed, with or without cause, by the vote or written consent
of the holders of shares of capital stock entitled to cast a
majority of the votes that could be cast at an election of
directors; provided, however, that, upon a majority vote of
all other directors then serving, any director may be removed
from the Board of Directors upon the occurrence of any of the
following events or conditions: (a) such director is under
indictment with respect to, or has been convicted of, any
criminal offense that constitutes a felony or otherwise
constitutes a crime of moral turpitude; (b) a non-appealable
finding or determination is issued or rendered in any judicial
action or arbitration proceeding that states that such
director is or has been engaged in legally prohibited
discrimination or harassment with respect to an employee,
agent or representative of the Corporation or any of its
affiliates; (c) a non-appealable finding or determination is
issued or rendered in any judicial action or arbitration
proceeding that states that such director is guilty of willful
misconduct, gross negligence or substance abuse that has or
has had a materially adverse effect on the Corporation or any
of its affiliates (including, without limitation, upon the
reputation thereof) or on the performance of his duties as a
director; or (d) any finding or determination has been made by
any governmental agency or regulatory authority that states
that such director is not qualified or suitable to serve as a
director of the Corporation or any of its affiliates or such
director is subject to any other legal prohibition
against serving as a director of the Corporation or any of its
affiliates. Notwithstanding anything contained in these By-
Laws to the contrary, this Section 2.3 may not be amended
except by vote of the stockholders of the Corporation or by
unanimous vote of the entire Board of Directors.
EXHIBIT 4
TAG-ALONG AGREEMENT, DATED AS OF MARCH 12, 2002, BY AND
BETWEEN BRYANSTON GROUP, INC. AND WATERTONE HOLDINGS, LP.
TAG-ALONG AGREEMENT
TAG-ALONG AGREEMENT (this "Agreement"), dated as of
March __, 2002, by and between BRYANSTON GROUP, INC.
("Bryanston"), a Delaware corporation, and WATERTONE HOLDINGS, LP
("Watertone"), a Delaware limited partnership.
W I T N E S S E T H:
WHEREAS, Alpha Hospitality Corporation (the
"Corporation") has entered into a certain Amended And Restated
Contribution Agreement (the "Contribution Agreement"), dated as
of February 8, 2002, with Watertone, providing, inter alia, for
issuance and contribution of certain shares of the Corporation's
common stock (such shares, the "Acquired Shares") to New York
Gaming LLC (the "LLC"), a Georgia limited liability company; and
WHEREAS, in conjunction with the Contribution Agreement
and the transactions contemplated thereby, Watertone has
requested that Bryanston grant it and the LLC certain tag-along
rights, and Bryanston is willing to grant certain tag-along
rights as set forth herein;
NOW THEREFORE, in consideration of the foregoing
premises and the mutual representations, warranties, covenants
and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used herein
and defined in the Contribution Agreement are used herein with
the respective meanings ascribed thereto in the Contribution
Agreement unless otherwise defined herein or the context
otherwise requires.
ARTICLE II
TAG-ALONG RIGHTS
SECTION 2.01. Grant of Tag-Along Rights. Subject to the
terms and conditions provided herein, Bryanston hereby agrees
that, until the Outside Date (as hereinafter defined), it shall
not sell or otherwise dispose of any of its shares of the common
stock of the Corporation (the "Common Stock") unless it shall
have given written notice (a "Proposed Sale Notice") to Watertone
setting forth (a) the terms and conditions of the proposed sale
or other disposition of shares of Common Stock by Bryanston, (b)
the number of shares of Common Stock that Bryanston intends to
sell or otherwise dispose of in connection with such proposed
sale or other disposition and (c) the date, time and location of
the proposed closing of such sale or other disposition. Each
Proposed Sale Notice shall be given to Watertone at least ten
(10) business days prior to the date scheduled for the closing of
the proposed sale or other disposition referred to therein. In
addition, Bryanston shall
not consummate any sale or other
disposition of shares of Common Stock referred to in any Proposed
Sale Notice unless at the closing thereof (on the date, and at
the time and location, of such closing as set forth in such
Proposed Sale Notice) Bryanston shall have arranged for Watertone
and/or the LLC to be provided with, or Watertone and/or the LLC
shall otherwise have, an opportunity to sell or otherwise dispose
of (whether such is accomplished by Bryanston reducing the number
of shares of Common Stock it proposes to sell or otherwise
dispose of at such closing or the purchaser or other assignee of
such shares of Common Stock agrees to increase the number of
shares of Common Stock it is willing to purchase or otherwise
acquire at such closing) a number of Transfer Shares equal to the
lesser of (i) the product of the Applicable Fraction (as
hereinafter defined) times the aggregate number of the Transfer
Shares that are then owned of record by Watertone and/or the LLC
and that have not been (or the offer and sale of which have not
been) registered under the Securities Act, or (ii) the number of
Transfer Shares that Watertone, in a written notice received by
Bryanston at least two (2) business days prior to the scheduled
closing as set forth in such Proposed Sale Notice, has indicated
that it or the LLC desires to sell or otherwise dispose of on the
terms and conditions set forth in such Proposed Sale Notice;
provided, however, that, if for any reason whatsoever, Watertone
or the LLC declines, refuses or otherwise fails to sell or
otherwise dispose of any of the shares of Common Stock at such
closing that it would have been entitled to sell or otherwise
dispose of at such closing, Bryanston shall be entitled to sell
or otherwise dispose of at such closing such number of shares of
Common Stock, in addition to the number of shares of Common Stock
that it could have sold or otherwise disposed of at such closing
had Watertone and/or the LLC not declined, refused or otherwise
failed to sell or otherwise dispose of any shares of Common Stock
at such closing. As used herein, the "Outside Date" means the
earlier to occur of (a) the third (3rd) anniversary of the date
of this Agreement or (b) the date as of which the offer and sale
of the Transfer Shares have been registered under the Securities
Act, and the "Applicable Fraction" means, as of any time, a
fraction, the numerator of which is the number of shares of
Common Stock that Bryanston has indicated that it proposes to
sell or otherwise dispose of as set forth in the relevant
Proposed Sale Notice and the denominator of which is the total
number of shares of Common Stock then owned beneficially or of
record by Bryanston or any of its Affiliates (which, for these
purposes, shall be deemed to include all shares of Common Stock
issuable upon the conversion of any then outstanding securities
convertible into or exchangeable for shares of Common Stock).
SECTION 2.02. Exclusions from Tag-Along Rights.
Notwithstanding anything contained herein to the contrary, the
requirements set forth in Section 2.01 above shall not extend or
apply to any of the following: (a) any sale or other disposition
of any shares of Common Stock to any officer, director, employee,
consultant, agent or other representative of Bryanston or any
Affiliate thereof (which, for purposes of this Agreement, shall
include Alpha and its Affiliates); (b) any sale or other
disposition of any shares of Common Stock pursuant to, or as a
consequence of, any pledge of such shares (or any similar
arrangement) to secure any loan or other obligation, provided
such loan or other obligation was obtained from or owed to an un-
affiliated third party; (c) any transfer or assignment of any
shares of Common Stock in consideration for services rendered to
Bryanston or any of its Affiliates; or (d) any sale or other
disposition of any shares of Common Stock unless the number of
shares of Common Stock being sold or otherwise disposed of, when
aggregated with the number of shares of Common Stock that have
been sold or otherwise disposed of by Bryanston during the
immediately preceding ninety
(90) days (exclusive of any sale or
other disposition referred to in any of the preceding clauses (i)
through (iii)) would exceed 86,800, which number shall be subject
to appropriate adjustment on account of any stock split or
similar event.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Expenses. Each party to this Agreement will
bear all of its own expenses in connection with the preparation
and negotiation of this Agreement and the consummation and
performance of its obligations hereunder.
SECTION 3.02. Notices. All notices, demands, requests,
consents, approvals or other communications (collectively,
"Notices") required to be given hereunder shall be in writing and
shall be personally served or deposited in the mail, registered
or certified, return receipt requested, postage prepaid, or
delivered by reputable overnight air courier service with charges
prepaid, or transmitted by facsimile, addressed as set forth
below, or to such other address as such party shall have
specified most recently by written notice given in accordance
with this Section 3.02:
(A)if to Bryanston, to: Bryanston Group, Inc.
1886 Route 52
Hopewell Junction, N.Y 12533
Attention: Craig Kendziera
Facsimile No.: (845) 223-7340
with a copy thereof (which shall not constitute notice)
simultaneously and similarly sent to:
Reed Smith LLP
529 Fifth Avenue
New York, New York 10017
Attention: Herbert F. Kozlov, Esq.
Facsimile No.: (212) 972-9487
(B) if to Watertone, to:
Watertone Holdings, LP
Scott Kaniewski
2412 Central Park Avenue
Evanston, IL 60201
Facsimile No.: (847) 328-4032
with a copy thereof (which shall not constitute notice)
simultaneously and similarly sent to:
Stites & Harbison
Attn: William W. Hopson
3350 Riverwood Pkwy, Suite 1700
Atlanta, GA 30339
Facsimile No.: (770) 850-7070
Any Notice shall be deemed given on the date of service or
transmission if personally served or transmitted by facsimile
with receipt confirmed. Any Notice otherwise sent as provided
herein shall be deemed given on the third (3rd) Business Day
following the date mailed or on the next Business Day
following delivery of such notice to a reputable overnight air courier
service.
SECTION 3.03. Entire Agreement. This Agreement constitutes
the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous
agreements, representations, understandings, negotiations and
discussions between the parties, whether oral or written, with
respect to the subject matter hereof.
SECTION 3.04. Amendment and Waiver. This Agreement may not
be amended, modified or waived except by a writing executed by
the party against which such amendment, modification or waiver is
sought to been enforced. Waivers may be made in advance or after
the right waived has arisen or the breach or default waived has
occurred. Any waiver may be conditional. No waiver of any
breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor
of any other agreement or provision herein contained. No waiver
or extension of time for performance of any obligation or act
shall be deemed a waiver or extension of the time for performance
of any other obligation or act.
SECTION 3.05. Assignment; No Third Party Beneficiaries.
This Agreement and the rights, duties and obligations hereunder
may not be assigned or delegated by either Bryanston, on the one
hand, or Watertone, on the other hand, without the prior written
consent of the other party hereto. Except as provided in the
preceding sentence, any purported assignment or delegation of
rights, duties or obligations hereunder made without the prior
written consent of the other party hereto shall be void and of no
effect. This Agreement and the provisions hereof shall be
binding upon and enforceable against the parties and their
respective successors and assigns and shall inure to the benefit
of and be enforceable by each of the parties and their respective
successors and permitted assigns. This Agreement is not intended
to confer any rights or benefits on any Persons other than as set
forth above.
SECTION 3.06.Severability. The terms and provisions of
this Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other
term or provision hereof. Furthermore, in lieu of any such
invalid or unenforceable term or provision, the parties hereto
intend that there shall be added as a part of this Agreement a
provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
SECTION 3.07.Further Assurances. Each party hereto, upon
the request of the other party hereto, shall do all such further
acts and execute, acknowledge and deliver all such further
instruments and documents as may be necessary or desirable to
carry out, effectuate and/or evidence or memorialize the
transactions contemplated by this Agreement.
SECTION 3.08. Titles and Headings; Interpretation. Titles,
captions and headings of the Articles and Sections of this
Agreement are for convenience of reference only and shall not
affect the construction of any provision of this Agreement.
Whenever the singular number is used in this Agreement and when
required by the context, the same shall include the plural and
vice versa, and the neuter, masculine and feminine gender of any
pronoun or possessive shall include all other genders. Unless
otherwise provided herein, references herein to any Section or
Article are references to the
corresponding Section or Article of
this Agreement. Use of the terms "herein," "hereof" or
"hereunder" or similar terms shall refer to this Agreement as a
whole and not to any particular Article, Section or other
provision of this Agreement.
SECTION 3.09. GOVERNING LAW and JURY WAIVER. THIS
AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER, AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN
SUCH STATE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAWS THEREOF. EACH OF THE PARTIES HERETO EXPRESSLY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY SUIT, LITIGATION OR
OTHER JUDICIAL PROCEEDING REGARDING THIS AGREEMENT OR ANY DISPUTE
HEREUNDER OR RELATING HERETO. Each of the parties hereto agrees
that any dispute under or with respect to this Agreement shall be
determined before the state or federal courts situated in the
City, County and State of New York, which courts shall have
exclusive jurisdiction over and with respect to any such dispute,
and each of the parties hereto hereby irrevocably submits to the
jurisdiction of such courts. Each party hereby agrees not to
raise any defense or objection, under the theory of forum non
conviens or otherwise, with respect to the jurisdiction of any
such court.
SECTION 3.10. Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an original, and
all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by the undersigned, thereunto duly
authorized, as of the date first set forth above.
BRYANSTON GROUP, INC. WATERTONE HOLDINGS, LP
By: BKB, LLC,
Its General Partner
By: ______________________
Name:
Title: By:______________________
Name: Robert A. Berman
Title: Managing Member