UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Riviera Holdings Corporation
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(Name of Issuer)
Common Stock, $.001 per share
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(Title of Class of Securities)
7696271003
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(CUSIP Number)
Robert C. Kim
Kummer Kaempfer Bonner Renshaw & Ferrario
3800 Howard Hughes Parkway, Seventh Floor
Las Vegas, Nevada 89109
702-792-7000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 22, 2005
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(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 which is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box |_|
CUSIP NO.: 7696271000
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
William L. Westerman
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
Not applicable
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
Not applicable
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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7 SOLE VOTING POWER
NUMBER OF 1,095,593 shares
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 4,122 shares
REPORTING -------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
1,095,593 shares
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10 SHARED DISPOSITIVE POWER
4,122 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,099,715 shares
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.86%
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14 TYPE OF REPORTING PERSON
IN
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This Amendment No. 3 to Schedule 13D (this "Amendment") amends the
Schedule 13D of William L. Westerman, as last amended by Amendment No. 2, as
filed on November 5, 2004, with respect to the beneficial ownership of Mr.
Westerman in the common stock, par value $0.001 per share (the "Common Stock"),
of Riviera Holdings Corporation, a Nevada corporation (the "Issuer"). Except as
specifically provided herein, this Amendment does not modify any of the
information previously reported on the Schedule 13D, as amended.
ITEM 4. PURPOSE OF TRANSACTION
On December 22, 2005, Mr. Westerman and The William L. Westerman 2004
Revocable Family Trust, a trust formed under the laws of Nevada which is
controlled by Mr. Westerman (the "Trust"), entered into a Stock Purchase
Agreement (the "Purchase Agreement") with Flag Luxury Riv, LLC, a Delaware
limited liability company, Rivacq LLC, a Delaware limited liability company, and
High Desert Gaming LLC, a Delaware limited liability company (collectively,
"Buyers"). The Purchase Agreement provides that Mr. Westerman is acting solely
in his capacity as stockholder and not as an officer, director or representative
of the Issuer.
Pursuant to the Purchase Agreement, Mr. Westerman and the Trust
(collectively, "Sellers") agreed to sell a total of 1,000,000 shares of Common
Stock (the "First Purchase") held by the Trust to Buyers as allocated below for
a total of $15,000,000 ($15.00 per share) on a closing date between January 3,
2006 and January 10, 2006. In addition to the First Purchase, the Purchase
Agreement provides for the following transaction subject to various conditions:
(1) the sale of a total of 650,000 shares of Common Stock (the "Second
Purchase") held by the Trust to Buyers as allocated below for a total of
$9,750,000 ($15.00 per share); and (2) the grant of an option (the "Option") to
purchase up to 441,471 shares of Common Stock (the "Option Shares") held by the
Trust to Buyers as allocated among the Buyers below at a price of $15.00 per
share. The First Purchase, Second Purchase, and Option Shares are allocated
among Buyers as follows:
---------------------- ----------- ----------- --------- ----------- ----------
Number of Number of
First First Second Second Number of
Purchase Purchase Purchase Purchase Option
Buyer Shares Price Shares Price Shares
---------------------- ----------- ----------- --------- ----------- ----------
Flag Luxury Riv, LLC 400,000 $6,000,000 260,000 $3,900,000 176,588
---------------------- ----------- ----------- --------- ----------- ----------
Rivacq LLC 300,000 $4,500,000 195,000 $2,925,000 132,442
---------------------- ----------- ----------- --------- ----------- ----------
High Desert Gaming LLC 300,000 $4,500,000 195,000 $2,925,000 132,441
---------------------- ----------- ----------- --------- ----------- ----------
Total 1,000,000 $15,000,000 650,000 $9,750,000 441,471
---------------------- ----------- ----------- --------- ----------- ----------
The obligations of Sellers and Buyers to consummate the Second Purchase
are subject to various conditions. The material conditions for Sellers include
the approval by the Nevada gaming regulators of the acquisition by Buyers of the
Second Purchase shares (the "Nevada Gaming Approval"). The material conditions
for Buyers include the receipt of the Nevada Gaming Approval and the adoption by
the Issuer's board of directors (the "Board") of certain waivers and approvals
(the "Board Approvals"). The Board Approvals include: (1) the waiver, in
accordance with subsection 7(g) of the Issuer's Articles of Incorporation, of
the voting limitation on stockholders with more than 10% of Issuer's stock set
forth in subsection 7(b) of the Articles of Incorporation;(ii) the approval of
the purchase of the Second Purchase shares and the Option Shares pursuant to
Section 78.438(1) of the Nevada Revised Statutes; and (3) the approval of the
acquisition by Buyers, whether by merger or otherwise, of control of the Issuer
(an "Acquisition Transaction").
The Option is effective upon the issuance of the Board Approvals and
may be exercised in increments of 20,000 shares or more. The obligations of
Sellers and Buyers to consummate the exercise of the Option, whether in whole or
in part, are the same as those that apply to the Second Purchase.
Notwithstanding the Option, the Trust may make charitable donations of up to
100,000 shares of Common Stock.
Under the Purchase Agreement, in addition to the First Purchase, the
Second Purchase and the Option, Mr. Westerman has agreed, subject to this
fiduciary duties as an officer and director of the Issuer, to: (1) assist and
cooperate with the Buyers in obtaining the Nevada Gaming Approval as well as
such approvals of the Nevada, Colorado and other gaming authorities as may be
necessary to consummate an Acquisition Transaction; and (2) propose to the Board
that a vacancy be created on the Board or that the Board be expanded and that a
candidate nominated by Buyers be appointed to the Board. Further, Sellers have
agreed to: (1) subject to the issuance of the Board Approvals, to grant an
irrevocable proxy to Flag Luxury Riv, LLC or its designee to vote (or in the
case of any shares beneficially owned by Mr. Westerman through the Issuer's
Employee Stock Ownership Plan (the "ESOP"), to direct the ESOP trustee to vote),
at any meeting of the Issuer's stockholders or in any action by written consent
of the Issuer's stockholders, all of the shares of Common Stock held by Mr.
Westerman or the Trust in favor of the approval of any Acquisition Transaction
and against any action, agreement or transaction that would result in the
Issuer's obligations under an Acquisition Agreement with the Buyers with respect
to an Acquisition Transaction (an "Acquisition Agreement") not being fulfilled
and (2) to cause any of the shares of Common Stock held by Mr. Westerman or the
Trust to be voted in accordance with the foregoing.
The Purchase Agreement will automatically terminate upon the earliest
of: (1) the consummation of an Acquisition Transaction; (2) 6 months following
the date of the Stock Purchase Agreement in the event an Acquisition Agreement
has not been executed by such date; and (3) (a) in the event that an Acquisition
Agreement is entered into and is terminated in circumstances where the Issuer is
potentially required to pay to Buyers a termination fee or similar fee, 12
months following the date of such Acquisition Agreement or (b) in the event such
Acquisition Agreement is terminated for any other reason, upon such termination.
The Purchase Agreement provides that the Buyers' current intent is to
enter into negotiations with the Board with the objective of entering into an
agreement with respect to an Acquisition Transaction as soon as practicable on
terms reasonably acceptable to the Buyers providing for an Acquisition
Transaction at a price of not less than $15.00 per share of Common Stock in
cash; provided, however, that Buyers and Sellers acknowledge that, since the
Company's press release of November 8, 2005 announcing the Company's conclusion
of its strategic process, the Board has not considered any Acquisition
Transaction and there is no assurance that any such Acquisition Transaction can
be negotiated.
The foregoing references to, and descriptions of, the Purchase
Agreement are qualified in their entirety by reference to the Purchase
Agreement, the terms of which are incorporated herein by reference to Exhibit
10.1 hereto.
Since the Purchase Agreement provides for certain arrangements among
Sellers and Buyers with respect to, among other things, the voting of Common
Stock, Sellers and Buyers may be deemed to be a "group" as referred to in Rule
13d-5 under the Securities Exchange Act of 1934 (the "Exchange Act"). Neither
the filing of this Amendment nor any of its contents shall be deemed to
constitute an admission that the Sellers are members of a "group" for purposes
of Rule 13d-5 with any of the Buyers, or that such "group" exists, and the
Sellers expressly disclaim the existence, or membership in, any such "group" and
beneficial ownership of Common Stock held by any of such persons. Sellers
understand that Buyers will be filing a Schedule 13D with respect to, among
other things, the Purchase Agreement containing information about Buyers.
Sellers are not responsible for any information or statements contained in such
Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) As of December 22, 2005, after giving effect to the First Purchase
by Buyers, Mr. Westerman beneficially owned 1,099,715 shares of Common Stock,
representing 8.86% of the outstanding shares of Common Stock on that date.
(b) As the sole trustee and beneficiary of the Trust, Mr. Westerman has
sole voting power and sole dispositive power as to all of his shares of Common
Stock reported in Item 5(a) above, except for 4,122 shares that he holds through
the ESOP. All of the shares of Common Stock held by the ESOP are voted on each
proposal in proportion to the voting instructions received by the Trustee of the
ESOP (the "ESOP Trustee") from all ESOP participants who submit voting
instructions. For example, if: (1) the ESOP holds 1,000 shares of Common Stock;
(2) the ESOP Trustee receives voting instructions from participants on whose
behalf the ESOP holds only 500 shares; and (3) those participants, in the
aggregate, instruct the ESOP Trustee to vote 300 shares in favor of a proposal
and 200 shares against it, then 600 shares held by the ESOP will be voted for
the proposal and 400 shares will be voted against it. The ESOP Trustee has the
power to sell or otherwise dispose of Common Stock that the ESOP holds. In
exercising this power, the ESOP Trustee normally considers the views of the
ESOP's Administrative Committee, which consists of officers (including Mr.
Westerman) of the Issuer or its subsidiaries.
(c) Other than as reported in this Amendment, Mr. Westerman has not
effected any transactions involving Common Stock during the past 60 days.
(d) No person other than Mr. Westerman has the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
the Common Stock that he beneficially owns.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Except as described in Item 4 of this Amendment, Mr. Westerman has not
entered into any contracts, arrangements, understandings or relationships (legal
or otherwise) with any person with respect to any securities of the Issuer,
including but not limited to the transfer or voting of the securities, finder's
fees, joint ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or losses, or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following document is hereby filed as an exhibit:
Exhibit 10.1 Stock Purchase Agreement, dated as of December
22, 2005, among Flag Luxury Riv, LLC, Rivacq LLC,
High Desert Gaming, LLC, William L. Westerman and The
William L. Westerman 2004 Revocable Family Trust.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
William L. Westerman
By: ___________________________
William L. Westerman, an individual
Dated: December 27, 2005