File No. 333-33204
As filed with the Securities and Exchange Commission on May 11,
2000.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALPHA HOSPITALITY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3714474
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
12 East 49th Street
New York, New York 10017
(212) 750-3500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
ROBERT STEENHUISEN
Chief Accounting Officer
12 East 49th Street
New York, New York 10017
(212) 750-3500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
HERBERT F. KOZLOV, ESQ.
PARKER DURYEE ROSOFF & HAFT, P.C.
529 Fifth Avenue
New York, New York 10017
(212) 599-0500
Approximate date of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
<PAGE>
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box.
[X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.[ ]
The Registrant hereby amends this Registration Statement
on such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until
the Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, MAY 11, 2000
3,300,000 Shares
ALPHA HOSPITALITY CORPORATION
Common Stock, par value $.01 per share
This prospectus relates to 3,300,000 shares of the common
stock, par value $.01 per share, of Alpha Hospitality Corporation
("Alpha" or "we"). The shares of common stock being offered by the
selling stockholder may be acquired by the selling stockholder upon
conversion of up to 4,000 shares of Alpha's 7% Convertible Series D
Preferred Stock held by it. Alpha will not receive any proceeds from the
conversion of shares of the Series D preferred stock into shares of
common stock or from the sale of shares of common stock by the
selling stockholder.
----------------------
These securities involve a high degree of risk. See "Risk
Factors."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS APPROVED
OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON
THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The shares of common stock being offered by the selling
stockholder have not been registered for sale under the securities laws
of any state or jurisdiction as of the date of this prospectus.
Alpha's common stock is listed for trading on The NASDAQ
SmallCap Market under the symbol "ALHY" and on the Boston Stock
Exchange under the symbol "ALH." On May 10, 2000, the closing bid
price of Alpha's common stock, as reported by The NASDAQ
SmallCap Market, was $4.75 per share.
Alpha's executive offices are located at 12 East 49th Street, New York,
New York 10017.
Its telephone number is 212-750-3500.
The date of this prospectus is May 11, 2000.
[The following language is located on the left margin of the first
page of preliminary prospectus.]
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and Alpha is not
soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
<PAGE>
<PAGE>
THIS PROSPECTUS CONTAINS FORWARD LOOKING
STATEMENTS
Some of the statements in this prospectus constitute forward-
looking statements. These statements involve known and unknown
risks, uncertainties and other factors that may cause our or our
industry's results, levels of activity, performance or achievements to be
significantly different from any future results, levels of activity,
performance or achievements expressed or implied by the forward-
looking statements. These factors include, among others, those listed
under "Risk Factors" and elsewhere in this prospectus. In some cases,
you can identify forward-looking statements by the use of the words
"may," "will," "should," "expects," "plans," "intends," "anticipates,"
"believes," "estimates," "predicts," "potential," or "continue" or the
negative of those terms or other comparable terminology.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future
results, events, levels of activity, performance or achievements. We do
not assume responsibility for the accuracy and completeness of the
forward-looking statements. We do not intend to update any of the
forward-looking statements after the date of this prospectus to conform
them to actual results.
TABLE OF CONTENTS
RISK FACTORS . . . 3
Alpha may not be successful in acquiring or developing the business
opportunities it is considering. . 3
Unless Alpha successfully develops business operations, it may not be
able to meet its obligations.. . . 3
Alpha has a history of losses, and may never be profitable. 4
If Alpha develops new ventures, it may not have the management
expertise to be successful in them.. . 4
Alpha has significant outstanding indebtedness and other obligations,
which may impair its ability to raise additional capital in the
future. . . . . . . . . . 4
OTHER CONSIDERATIONS . . 5
RECENT DEVELOPMENTS. . . 7
USE OF PROCEEDS. . 7
SELLING STOCKHOLDER. . . 7
PLAN OF DISTRIBUTION . . 9
LEGAL MATTERS. . . 10
EXPERTS. . . . . 10
ADDITIONAL INFORMATION ABOUT ALPHA 11
DOCUMENTS INCORPORATED BY REFERENCE 11
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained in this
prospectus or incorporated by reference to this prospectus, and, if given
or made, such information or representations must not be relied upon as
having been authorized by Alpha. This prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, the securities offered
by this prospectus in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. The
delivery of this prospectus at any time does not imply that the
information contained in this prospectus is correct as of any time
subsequent to its date.
<PAGE>
RISK FACTORS
Before you decide to invest in Alpha's common stock being offered by
this prospectus, you should be aware that there are various risks,
including those described below. You should carefully consider these
risks as well as the more detailed information contained in this
prospectus and in the documents incorporated in this prospectus by
reference, before making your decision.
Alpha may not be successful in acquiring or developing the
business opportunities it is considering.
Alpha must overcome significant obstacles before it can participate in
the prospective gaming opportunities it has been considering in New
York, Mississippi, Louisiana and Florida. For example:
In New York, an arbitration proceeding is ongoing to
determine the rights of Alpha's subsidiary, Alpha
Monticello, to share in management fee and service fee
income from the management of a proposed casino
project contemplated to be located in Monticello, New
York. Although a proposed settlement has been reached
in principle and is in the process of being finalized, it is
possible that no final settlement will be reached and the
arbitration may continue. If a final settlement is not
reached and the arbitrator does not rule in Alpha's favor,
Alpha may be excluded from participating in the project.
Also, recent legislation proposed by New York Governor
George E. Pataki could, if enacted, affect the approval
process for the construction and operation of casinos on
Indian lands within New York State. Management of
Alpha believes that this legislation, as currently
proposed, would not affect the proposed Monticello
project to be built on Indian lands. However, it is
possible that when the legislature considers the proposal,
it could amend the proposed legislation or otherwise
adopt legislation that could adversely affect the proposed
development of that project. Recent news reports have
announced a purported agreement between the St. Regis
Mohawk Tribe and Park Place Entertainment concerning
management of casino projects in New York State. It is
possible that the purported agreement could adversely affect
the proposed development of the Monticello project.
In Florida, Alpha may lose its proposed "cruise-to-
nowhere" gaming opportunity if legislation introduced in
the Florida legislature is enacted. The legislation, as
proposed, being would have dramatically altered the
current state law and would have imposed significant
new restrictions or limitations on the "cruise-to-
nowhere" industry. Alpha has been notified that the bill
has been withdrawn from consideration by its sponsor
and will not be brought to a vote. There can be no
assurance that this legislation will not be resubmitted in
the future and, if enacted, would not be detrimental to the
industry.
In Louisiana, Alpha is pursuing the acquisition of truck
stops and video poker operations but has not yet reached
an agreement with their owner. Although discussions
are continuing, Alpha cannot assure you that it will
succeed in acquiring these operations on acceptable
terms, if at all.
Unless Alpha successfully develops business operations, it may not
be able to meet its obligations.
Alpha currently has no operating business to generate
income. Although Alpha's management believes it has sufficient cash
resources to meet its general and administrative obligations for the
next twelve months, Alpha's long-term ability to meet its general and
administrative obligations will depend on its ability to do one or more
of the following things:
Achieve profits from the prospective gaming operations in
New York, Mississippi, Louisiana or Florida;
Achieve profits from operations of any other future
business opportunities;
Combine with an entity having sufficient cash flow to
meet Alpha's obligations; or
Obtain additional funds through financing activities.
<PAGE>
As of the date of this prospectus, Alpha has not entered into
any arrangement to participate in any business ventures or purchase
any assets, property or business, other than as previously disclosed or
discussed elsewhere in this prospectus. Alpha cannot give any
assurance that it will be able to generate enough funds through any of
these activities to meet its general and administrative obligations.
Alpha has a history of losses, and may never be profitable.
Since its inception, Alpha has suffered significant losses from
operations. Alpha had losses from operations of approximately
$5,763,000, $7,024,000, and $1,774,000 in the fiscal years ended
December 31, 1999, 1998 and 1997, respectively. As of December
31, 1999, Alpha had an accumulated deficit of approximately
$75,993,000. Although Alpha received $3,900,000 in net proceeds
from the sale of its Series D preferred stock in February 2000, these
proceeds were designated for specific projects, including the "cruise to
nowhere" in Florida and other gaming-related businesses or
operations. To provide investors a positive return in the long-term,
Alpha must develop or acquire profitable operations. There can be no
assurance that Alpha will be able to develop or acquire profitable
operations.
If Alpha develops new ventures, it may not have the management
expertise to be successful in them.
Alpha's affiliates and members of management have
significant experience operating hotel and related hospitality ventures.
Management has been concentrating its investigation of potential
business acquisitions in these areas, including prospective gaming
opportunities in New York, Mississippi, Louisiana and Florida. If
Alpha enters into another line of business, Alpha's management may
find that it lacks necessary expertise in that business. Therefore, we
cannot assure you that, if Alpha develops or acquires new lines of
business, it will be profitable in those businesses.
Alpha has significant outstanding indebtedness and other
obligations, which may impair its ability to raise additional capital
in the future.
Alpha's outstanding long-term indebtedness, excluding debt
of Alpha's subsidiaries, consists of a note payable to an affiliate,
Bryanston Group, Inc. The balance of this note on December 31,
1999 was approximately $1,407,000. No default or acceleration has
occurred on this loan. Alpha cannot give any assurance that a default
will not be declared in the future. Declaration of a default could have
an adverse affect on Alpha's financial condition, business and/or
operations.
Alpha's chairman and chief executive, Stanley S. Tollman,
has agreed to defer receiving his salary until January 1, 2001.
Although the salary accumulates without interest, the total amount
owed to Mr. Tollman at May 9, 2000 was approximately $1,618,750.
Mr. Tollman has been granted the right, subject to specific conditions,
to convert up to $2,000,000 of this accumulated salary into shares of
Alpha's common stock, at a price of $2.00 per share, no earlier than
January 14, 2001, except in the case of his death or disability. There
can be no assurance that Mr. Tollman will continue to defer receiving
his salary after January 1, 2001. In the event that, after January 1,
2001, Mr. Tollman should insist upon payment of his deferred salary,
the large payment of cash that would be required could have an
adverse affect on Alpha's financial condition, business and/or
operations.
If either of these events were to occur, a large cash payment
would be required and Alpha's resources would be reduced. With
reduced resources, Alpha may find it more difficult to fund its
operations or develop its proposed operations. Alpha may also find it
more difficult to raise additional capital.
<PAGE>
OTHER CONSIDERATIONS
Future sales of shares could potentially dilute your interest in
Alpha's common stock.
As of May 10, 2000, Alpha had 17,093,399 shares of
common stock outstanding. Up to an additional 848,000 shares will
be issued if holders of Alpha's publicly traded warrants choose to
exercise them. Up to 3,300,000 shares may be issued upon conversion
of the Series D preferred stock. One result of having a conversion
price based upon the market price of Alpha's common stock is that if
the market price of a share of Alpha's common stock is less than
$6.00, the number of shares of common stock issuable upon
conversion of the Series D preferred stock increases as the market
price of the common stock decreases. If the market price of Alpha's
common stock exceeds $6.00, the conversion price of the Series D
preferred stock could be substantially below the market price of the
common stock on the date of conversion.
Similarly, holders of other series of preferred stock, other
warrants and various stock options may from time to time exercise or
convert their securities into common stock. Stanley S. Tollman,
Alpha's chairman and chief executive officer, has been granted the
right, subject to specific conditions, to convert up to $2,000,000 of
deferred salary into Alpha's common stock at $2.00 per share, no
earlier than January 14, 2001, except in the case of his death or
disability. The number of shares of common stock referred to in this
paragraph may be subject to increase to protect against dilution. If
holders of these other securities exercise or convert them into shares of
common stock or Mr. Tollman converts his deferred salary into shares
of common stock, the increased number of shares available in the
market would likely result in a lower price per-share for Alpha's
common stock.
The market price of Alpha's common stock can be highly volatile.
The average daily trading volume of Alpha's common stock
has generally been light. The market price has been highly volatile
and may not be indicative of the market price in a more liquid market.
Therefore, the low volume may have had a significant effect on the
historical market price of the stock. The market price of the stock
could also be subject to significant fluctuations in response to a
number of factors, not all of which may relate directly to Alpha's
performance. Some of these factors are: the depth and liquidity of the
market for the stock; public announcements by Alpha, its clients and
competitors; investors' perception of Alpha; rumors; and general
economic and other conditions.
Alpha cannot assure that there will be a public market in the
future for its securities.
Alpha cannot assure that its common stock will continue to
be quoted on the NASDAQ SmallCap Market or listed on the Boston
Stock Exchange. Even if these quotations or listings continue, Alpha
cannot assure there will be a significant public market. Among other
requirements for continued listing on the NASDAQ SmallCap Market,
a company must have at least $2,000,000 in net tangible assets, and
the listed security must have a minimum bid price of $1.00 per share.
Our common stock traded below $1.00 per share as recently as
December 1998. The Boston Stock Exchange's maintenance criteria
require a company to have total assets of at least $1,000,000 and total
stockholders' equity of at least $500,000. At December 31 ,1999,
Alpha had total assets of $8,128,000 and stockholders' equity of
approximately $2,761,000. In the event Alpha's common stock were
delisted from the NASDAQ SmallCap Market, trading, if any, would
be conducted on the Boston Stock Exchange and in the over-the-
counter market on the NASD's electronic bulletin board. Should this
occur, an investor could find it more difficult to dispose of or obtain
accurate quotations for the price of Alpha's securities
If Alpha's common stock is de-listed from Nasdaq, it may be
considered a "penny stock".
SEC regulations impose additional requirements on broker-
dealers when selling penny stocks to persons other than established
customers and accredited investors. In general, an accredited investor
is a person with assets in excess of $1,000,000 or annual income
exceeding $200,000 individually or $300,000 together with his or her
spouse. The relevant SEC regulations generally define "penny stocks"
to include any non-Nasdaq equity security with a market price (as
defined in the regulations) of less than $5 per share. Under the penny
stock regulations, a broker-dealer must make a special suitability
determination as to the purchaser and must have the purchaser's prior
written consent to the transaction. Prior to any transaction in a penny
stock covered by these rules, a broker-dealer must deliver a disclosure
schedule about the penny stock market prepared by the SEC. Broker-
dealers must also make disclosure concerning commissions payable to
both the broker-dealer and any registered representative and provide
current quotations for the securities. Finally, broker-dealers are
required to send monthly statements
<PAGE>
disclosing recent price
information for the penny stock held in an account and information on
the limited market in penny stocks.
If Alpha's common stock were to be classified as a "penny
stock," these rules may discourage broker-dealers from effecting
transactions in Alpha's common stock or affect their ability to sell
Alpha's securities. As a result, purchasers and current holders of
Alpha's securities could find it more difficult to sell their securities.
Compliance with government regulations may be costly or
disruptive our proposed operations.
The prospective gaming operations that Alpha is pursuing are
regulated by federal, state and local governmental authorities. We
cannot assure you that we will be able to comply with current or future
governmental regulations everywhere we may conduct business
operations. Alpha may be required to incur substantial costs or
interrupt its activities to comply with regulations. Present or future
federal, state or local regulations may restrict Alpha's present and
possible future activities. If Alpha is unable to comply with these or
similar requirements, it could be subject to sanctions. Any sanctions
could have a materially adverse effect upon Alpha's business.
Denial or loss of a gaming license would adversely affect Alpha's
operations
Generally, the applicable governing body in each state in
which a casino operator conducts its business must find suitable or
approve the casino operator and many of the key people employed by
or associated with the operator. If any person associated with Alpha
who is subject to approval or a determination of suitability fails, now
or in the future, to be approved for a license or to remain qualified to
hold a license, Alpha would have to disassociate itself from that
person or Alpha could lose its license. The governing body almost
always has broad discretion in granting, renewing and revoking
licenses. Any denial, loss or suspension of any license would have a
materially adverse effect on Alpha's gaming operations that require a
license.
Alpha may compete in a highly competitive industry.
Alpha's current operations include: the development of
potential new gaming operations in New York, Mississippi and
Florida; the potential acquisitions of truck stop and gaming operations
in Louisiana; and the acquisition or development of other business
operations. The industries in which these operations would be
conducted are highly competitive. Many of the potential competitors
in these industries have significantly greater financial and other
resources than Alpha and more experience in the relevant industry. It
is likely that this intense competition may limit the profitability of
Alpha's operations or even render them unprofitable.
Alpha's previous gaming operations have been subject to seasonal
fluctuations.
The results of Alpha's former casino operations were
seasonal. The seasonal nature of casino operations increased the risk
that natural disasters or the loss of the casinos for any other reason
during the season of greatest activity would have a material and
adverse effect on Alpha's financial condition and results of operations.
In the event that Alpha should again have operations in the gaming
industry, Alpha's business could again be subject to similar
fluctuations and risks.
Alpha's success is dependent upon the services of key officers
Alpha's success is largely dependent upon the efforts of
Stanley S. Tollman, its president and chief executive officer. Alpha
does not maintain and does not intend to obtain a key employee life
insurance policy on the life of Mr. Tollman. Although Mr. Tollman is
only required to devote approximately 20% of his business time to the
operations of Alpha, the loss of his services would have a material and
adverse effect on Alpha's business and prospects.
<PAGE>
Alpha's liability insurance may be insufficient.
Alpha maintains and intends to maintain general liability
insurance in amounts which management believes will be sufficient to
cover casualty risks associated with the operation of its business.
These risks include fire, property damage, personal injury, liquor
liability, etc. At present, Alpha is a defendant in one proceeding based
upon the theory of "liquor liability" for the alleged service of alcohol
to a customer. Alpha believes that its exposure in this proceeding is
adequately covered by the levels of insurance currently maintained.
However, Alpha cannot assure that its existing insurance will be
adequate to cover any liabilities.
RECENT DEVELOPMENTS
On April 24, 2000, Alpha announced that it had been made
aware of a purported agreement between the St. Regis Mohawk Tribe
and Park Place Entertainment, concerning management of casino
projects in New York State.
Alpha participates in a proposed casino project in Monticello,
New York through its previously disclosed interest in Mohawk
Management, L.L.C. Mohawk Management L.L.C. and Catskill
Development, LLC are reviewing the situation and have requested
copies of all agreements between the Tribe and Park Place
Entertainment in order to determine the impact, if any, of these
agreement(s) upon the Monticello project and the actions that should
be taken to protect the interest of Mohawk Management, Catskill
Development and the Tribe.
USE OF PROCEEDS
The shares of common stock being offered for the account of
the selling stockholder. Accordingly, Alpha will not receive any of the
proceeds from the sale of shares of common stock by the selling
stockholder. Alpha will not receive any proceeds upon the conversion
of the Series D preferred stock. See "Selling Stockholder."
SELLING STOCKHOLDER
All of the shares of common stock being offered subject to
this prospectus are being offered by the selling stockholder named in
the table below. The number of shares in the table represents the
maximum number of shares that may be acquired by the selling
stockholder upon conversion of the Series D preferred stock. As
described below, the number of shares of common stock that the
selling stockholder may actually acquire upon conversion may be less
than the maximum. The selling stockholder will determine the actual
number of shares of common stock that it will offer to sell, which may
depend upon a number of factors, including the market price of the
common stock at the time of sale.
Prior to the offering, the selling stockholder held 4,000 shares of
Alpha's Series D preferred stock . The maximum aggregate number of
shares of common stock issuable upon conversion of the Series D
preferred stock is 3,300,000, all of which are being offered under this
prospectus. As of the date of this prospectus, none of the Series D
preferred stock has been converted into common stock. The Series D
preferred stock may be converted at a price equal to the lesser of (i)
$6.00 and (ii) the average of the two lowest last reported bid prices
for the common stock on Nasdaq SmallCap Market during the 30
trading days preceding, but excluding, the date of conversion. The
maximum number of 3,300,000 shares of common stock issuable
upon conversion of the Series D preferred stock includes any shares of
common stock issued, at Alpha's option, in payment of dividends on
the Series D preferred stock.
The table below contains information furnished by the selling
stockholder concerning the beneficial ownership of common stock of
the selling stockholder as of the date of this prospectus, which
information relates exclusively to the selling stockholder's holding of
Series D preferred stock. We have assumed that the selling
stockholder will sell the maximum number of shares of common stock
into which the Series D preferred stock could potentially be converted
based upon the conversation terms and limitations applicable to the
Series D preferred stock and the table
<PAGE>
does not reflect the limitations
on conversion of the Series D Preferred Stock described in the two
paragraphs immediately following the table.
<TABLE>
<CAPTION>
SHARES OF SHARES OF
COMMON STOCK SHARES OF COMMON STOCK OWNED
OWNED COMMON STOCK AFTER OFFERING
------------------ ---------------- ----------------
BEFORE OFFERING OFFERED NUMBER PERCENT
------------------ ---------------- ----- -------
<S> <C> <C> <C> <C>
Societe Generale 3,300,000 3,300,000 0 0%
</TABLE>
The number of shares of common stock issuable upon
conversion of the Series D preferred stock is also limited by the
certificate of designation for the Series D preferred stock. The
certificate provides that the Series D preferred stock is convertible only
to the extent that, upon conversion, the selling stockholder and its
affiliates would beneficially own not more than 4.9% of the
outstanding shares of common stock of Alpha and further limits the
aggregate number of shares of common stock into which the Series D
preferred stock may be converted during various periods while any
shares of the Series D preferred stock are outstanding. Alpha may not
waive this 4.9% ceiling on the number of shares that may be
beneficially owned by the selling stockholder and its affiliates nor may
Alpha waive the limitations on the aggregate number of shares of
common stock into which the Series D preferred stock may be
converted during certain periods while any shares of the Series D
preferred stock are outstanding.
Under the certificate of designation, the selling stockholder
may convert shares of Series D preferred stock into common stock in
accordance with the following timetable:
25% of the selling stockholder's original 4,000 shares of
Series D preferred stock during the first 75 days following the
issuance of the Series D preferred stock, which took place on
February 8, 2000;
an aggregate of 50% of the selling stockholder's original 4,000
shares of Series D preferred stock through the 150th day
following the issuance of the Series D preferred stock;
an aggregate of 75% of the selling stockholder's original
4,000 shares of Series D preferred stock through the 225th day
following the issuance of the Series D preferred stock; and
after that time, any remaining shares of Series D preferred
stock.
One result of having a conversion price based upon the market
price of Alpha's common stock is that if the market price of a share of
Alpha's common stock is less than $6.00, the number of shares of
common stock issuable upon conversion of the Series D preferred stock
increases as the market price of the common stock decreases. If the
market price of Alpha's common stock exceeds $6.00, the conversion
price of the Series D preferred stock could be substantially below the
market price of the common stock on the date of conversion.
To the extent that any of the Series D preferred stock is
converted and the resulting common stock is sold, the market price of
the common stock could decrease due to the increased number of shares
then being sold in the public market. This, in turn, may lead to there
being a proportionately greater number of shares of common stock
issuable upon subsequent conversion of any remaining Series D
preferred stock. As a result, other holders of common stock could
experience substantial dilution, whether or not the shares of common
stock issued upon conversion are sold following conversion. If the
maximum number of 3,300,000 shares issuable upon conversion of the
Series D preferred stock , including any shares of common stock issued,
at Alpha's option, in payment of dividends on the Series D preferred
stock, were to be issued and any shares of Series D preferred stock
remained outstanding, the dividend rate on these remaining shares of
Series D preferred stock would be increased to 15% per annum and
would become payable in cash.
Under an agreement between Alpha and the selling
stockholder, Alpha has agreed (i) to file the registration statement of
which this prospectus is a part for the purpose of registering the
potential resale of the shares issuable upon conversion of the Series D
preferred stock, (ii) to bear all expenses of the registration and sale of
the shares (other than any underwriting discounts and conversions) and
(iii) to indemnify the selling stockholder against some liabilities.
<PAGE>
The selling stockholder does not have, and within the past
three years has not had, any other material relationship with Alpha or
any of its predecessors or affiliates.
PLAN OF DISTRIBUTION
The selling stockholder may offer and sell from time to time
under this prospectus the shares received by the selling stockholder
upon conversion of the Series D preferred stock. The selling
stockholder will act independently of us, in making decisions with
respect to the timing, manner and size of each sale. To the extent
required, we may amend and supplement this prospectus to describe a
specific plan of distribution.
The selling stockholder may sell the shares covered by this
prospectus by several possible means. These include, but are not
limited to, one or any combination of the types of transactions
described in the following list and the paragraphs that follow:
on the Nasdaq National Market or any other market where our
common stock may trade, at the then-prevailing prices and
terms or at prices related to the then-current market price or at
negotiated prices;
a block trade in which a broker-dealer will attempt to sell
shares as agent, but may position and resell a portion of the
block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and resale by that
broker-dealer for its own account under this prospectus;
an over-the-counter distribution under the rules of the Nasdaq
SmallCap Market;
ordinary brokerage transactions and transactions in which a
broker solicits purchasers; or
in privately negotiated transactions.
In addition to the list above, the selling stockholder may also
enter into hedging transactions with broker-dealers or other financial
institutions. In connection with these transactions, broker-dealers or
other financial institutions may engage in short sales of our common
stock in the course of hedging the positions they assume with that
selling stockholder. The selling stockholder may also sell our common
stock short and redeliver the shares to close out short positions.
The selling stockholder may enter into option or other transactions
with broker-dealers or other financial institutions that require that
selling stockholder to deliver the shares offered in this prospectus, and,
in turn, the broker-dealer or other financial institution may resell those
shares under this prospectus, as supplemented or amended to reflect the
applicable transaction.
The selling stockholder may pledge shares of common stock to a
broker-dealer or other financial institution, and, upon a default, that
broker-dealer or other financial institution may sell the pledged shares
of common stock under this prospectus, as supplemented or amended to
reflect the applicable transaction. In addition, any shares of common
stock that qualify for sale under Rule 144 under the Securities Act may
be sold under Rule 144 rather than under this prospectus.
The selling stockholder may sell shares of common stock
directly to market makers acting as principals and/or broker-dealers
acting as agents for themselves or their customers. These broker-
dealers may receive compensation in the form of discounts, concessions
or commissions from the selling stockholder or the purchasers of shares
of common stock for whom those broker-dealers may act as agent or to
whom they sell as principal or both. This compensation might be in
excess of customary commissions. Market makers and block
purchasers that purchase the shares of common stock will do so for
their own account and at their own risk. It is possible that the selling
stockholder will attempt to sell shares of common stock in block
transactions to market makers or other purchasers at a price per share
that may be below the then-current market price. We cannot make
assurances that all or any of the shares of common stock will be issued
to, or sold by, the selling stockholder. The selling stockholder and any
brokers, dealers or agents, upon effecting the sale of any of the shares
of common stock offered by this
<PAGE>
prospectus, may be deemed
"underwriters" as that term is defined under the Securities Act or the
Securities Exchange Act, or the rules and regulations these acts.
The selling stockholder may sell all or any part of the shares of
common stock through an underwriter. Alpha is not aware of any
agreement the selling stockholder may have entered into with a
prospective underwriter and there is no assurance that the selling
stockholder will enter into any agreement with a prospective
underwriter. If the selling stockholder enters into an agreement or
agreements with a prospective underwriter, the relevant details will be
set forth in a supplement or revisions to this prospectus.
To comply with the securities laws of some states, the shares
of common stock must be sold in some jurisdictions only through
registered or licensed brokers or dealers. Also, in some states the
shares of common stock may not be sold unless they have been
registered or qualified for sale in the applicable state or an exemption
from the registration or qualification requirement is available and there
has been compliance with that requirement.
We have advised the selling stockholder that the anti-
manipulation rules of Regulation M under the Securities Exchange Act
may apply to sales of shares of common stock in the market and to the
activities of the selling stockholder and their affiliates. In addition, we
will make copies of this prospectus available to the selling stockholder
and we informed them of the need for delivery of copies of this
prospectus to purchasers at or prior to the time of any sale of the shares
of common stock offered under this prospectus.
At the time a particular offer of shares of common stock is
made, if required, a prospectus supplement will be distributed that will
set forth the number of shares of common stock being offered and the
terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount,
commission or concession allowed or reallowed or paid to any dealer,
and the proposed selling price to the public.
Alpha anticipates that the selling stockholder will offer for sale
all of the shares being registered, to the extent that those shares are
issued to the selling stockholder upon its conversion of the Series D
preferred stock. See "Selling Stockholder." Further, because it is
possible that a significant number of shares could be sold at the same
time under this prospectus, any sales, or the possibility of sales, may
depress the market price of the common stock.
Alpha will bear all costs and expenses of the registration of the
selling shareholder's shares under the Securities Act and state securities
laws. However, the selling shareholder will bear all underwriting and
brokerage commissions and underwriting expenses, if any, attributable
to the sale of its shares.
We have indemnified the selling stockholder against certain
liabilities, including liabilities under the Securities Act of 1933. We
will bear all expenses in connection with the registration and sales of
the shares of common stock being offered by the selling stockholder,
other than any underwriting discounts and selling commissions.
LEGAL MATTERS
Certain legal matters in connection with the shares of common
stock being offered by this prospectus will be passed upon for Alpha by
Parker Duryee Rosoff & Haft, a Professional Corporation, New York,
New York. Herbert F. Kozlov, a director of Alpha, is a member of this
firm.
EXPERTS
The consolidated financial statements included in Alpha's
annual report on Form 10-K for the year ended December 31, 1999,
which are incorporated in this prospectus by reference, have been
audited by Rothstein, Kass & Company, P.C., independent certified
public accountants, as indicated in their report. The consolidated
financial statements are incorporated in this prospectus by reference in
reliance on the report of Rothstein, Kass & Company, P.C., given on
the authority of that firm as experts in accounting and auditing.
<PAGE>
ADDITIONAL INFORMATION ABOUT ALPHA
Alpha files annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange
Commission ("SEC"). You may read and copy any of the information
on file with the SEC at the SEC's public reference rooms in
Washington, D.C., New York, New York, and Chicago, Illinois.
Copies of the filed documents can be obtained by mail from the Public
Reference Section of the SEC at Room 1024, 450 Fifth Street, N.W.
Washington, D.C. 20549, at prescribed rates. You may call the SEC at
1-800-SEC-0330 for further information on the public reference rooms.
Filed documents are also available to the public at the SEC's website at
http://www.sec.gov.
Alpha has filed with the SEC a registration statement on Form
S-3 with respect to the common stock that may be sold under this
prospectus. This prospectus does not contain all of the information set
forth in that registration statement, certain parts of which are not
included in accordance with the rules and regulations of the SEC.
Copies of that registration statement can be obtained from the Public
Reference Section of the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows a company to "incorporate by reference"
information it files with the SEC, which means that Alpha can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this
prospectus, and information that Alpha files later with the SEC will
automatically update and supersede this information. Alpha
incorporates by reference the documents listed below and any future
filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, until all of the shares offered under
this prospectus are sold.
(a) Alpha's annual report on Form 10-K for the fiscal
year ended December 31, 1999;
(b) Alpha's quarterly report on Form 10-Q for the fiscal
quarter ended March 31,2000;
(c) Alpha's current report on Form 8-K, as filed with the
SEC on February 15, 2000;
(d) Alpha's current report on Form 8-K, as filed with the
SEC on April 27, 2000; and
(e) Alpha's registration statement on Form S-1, as filed
with the SEC on August 8, 1996 (with respect to the
description of the common stock).
Any statement contained in a document incorporated or
deemed to be incorporated by reference in this prospectus shall be
deemed to be modified or superseded for purposes of this prospectus to
the extent that a statement contained in this prospectus or in any other
subsequently filed document that also is or is deemed to be
incorporated by reference in this prospectus modifies or supersedes that
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
You can request, and Alpha will send to you, without charge,
copies of documents that are incorporated by reference in this
prospectus but that are not delivered to you (other than exhibits to such
documents that are not specifically incorporated by reference). You
may request these copies by writing or telephoning Alpha at: Alpha
Hospitality Corporation, 12 East 49th Street, New York, New York
10017, attention: Thomas W. Aro, telephone number (212) 750-3500.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth Alpha's estimates of the
expenses to be incurred by it in connection with the registration and
sale of the common stock being offered hereby:
SEC Registration Fee ...................................... .$ 4,382
Printing registration statement and other documents....... --
Legal fees and expenses...........................................5,000*
Accounting fees and expenses.................................... 2,500*
Miscellaneous expenses......................................... 4,000*
Total: $25,882
*Estimated
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law permits Delaware
corporations to eliminate or limit the personal liability of a director to
the corporation for monetary damages arising from certain breaches of
fiduciary duties as a director. Alpha's Certificate of Incorporation
includes such a provision eliminating the personal liability of directors
to Alpha and its stockholders for monetary damages for breach of
fiduciary duty as a director except (i) any breach of a director's duty of
loyalty to Alpha or its stockholders, (ii) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation
of law, (iii) for any transaction from which the director derived an
improper personal benefit or (iv) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174
of the Delaware General Corporation Law. Directors are also not
insulated from liability for claims arising under the federal securities
laws. The foregoing provisions of Alpha's Certificate of Incorporation
may reduce the likelihood of derivative litigation against directors for
breaches of their fiduciary duties, even though such an action, if
successful, might otherwise have benefitted Alpha and its stockholders.
Alpha's Certificate of Incorporation also provides that Alpha
shall indemnify its directors, officers and agents to the fullest extent
permitted by the Delaware General Corporation Law. Alpha has
directors' and officers' liability insurance, and it may also enter into
indemnity agreements with its directors and officers for the
indemnification of and advancing of expenses to these persons to the
fullest extent permitted by law.
Item 16. Exhibits and Financial Statement Schedules.
Exhibit
Number Description of Exhibits
4(a) Form of Common Stock Certificate of Alpha*
4(b) Certificate of Designation of Series D Preferred Stock**
5 Opinion of Parker Duryee Rosoff & Haft, P.C.
23(a) Consent of Rothstein, Kass & Company, P.C.
23(b) Consent of Parker Duryee Rosoff & Haft, P.C.
(included in Exhibit 5 hereof)
24 Power of Attorney (included in the signature page of
Part II of this Registration Statement)
_______________________
* Incorporated by reference; filed with Alpha's Registration
Statement filed on Form SB-2 (File No. 33-64236) with the
SEC on June 10, 1993 and as amended on September 30,
1993, October 25, 1993, November 2, 1993 and November 5,
1993. Such Registration Statement was further amended by
Post Effective Amendment on August 20, 1999.
** Incorporated by reference; filed with Alpha's Current Report
on Form 8-K filed on February 15, 2000.
<PAGE>
Item 17. Undertakings.
The undersigned company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "Securities
Act"), each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of Alpha's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, that is incorporated by reference in
the Registration Statement, shall be deemed to be a new
registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of Alpha pursuant to Item 15 of Part II of
the Registration Statement, or otherwise, Alpha has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Alpha of
expenses incurred or paid by a director, officer or controlling
person of Alpha in the successful defense of any action suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered,
Alpha will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements of filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State
of New York, on May 11, 2000.
ALPHA HOSPITALITY CORPORATION
By: /s/ Stanley S. Tollman
Stanley S. Tollman, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Robert
Steenhuisen and Thomas W. Aro, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with
all exhibits thereto, and the documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or either of them, or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of
1933, this Registration Statement was signed by the following persons
in the capacities and on the dates stated.
Signature Title Date
/s/ Stanley S. Tollman Chairman of the Board May 11, 2000
Stanley S. Tollman and Chief Executive Officer
(Principal Executive Officer)
/s/ Thomas W. Aro Vice President, Secretary May 11, 2000
Thomas W. Aro and Director
/s/ Robert Steenhuisen Principal Account Officer May 11, 2000
Robert Steenhuisen
/s/ Brett Tollman Vice President and Director May 11, 2000
Brett Tollman
/s/ Matthew B. Walker Director May 11, 2000
Matthew B. Walker
/s/ Herbert F. Kozlov Director May 11, 2000
Herbert F. Kozlov
<PAGE>
EXHIBIT 5
[LETTERHEAD OF PARKER DURYEE ROSOFF &
HAFT,
A PROFESSIONAL CORPORATION]
May 11, 2000
Alpha Hospitality Corporation
12 East 49th Street
New York, New York 10017
Re: Registration Statement on Form S-3 under the
Securities Act of 1933
Ladies and Gentlemen:
In our capacity as counsel to Alpha Hospitality
Corporation (the "Company"), a Delaware corporation, we
have been asked to render this opinion in connection with a
Registration Statement on Form S-3, being filed
contemporaneously herewith by the Company with the
Securities and Exchange Commission under the Securities
Act of 1933, as amended, covering an aggregate of
3,300,000 shares (the "Shares") of Common Stock, $0.01
par value. The Shares are issuable upon conversion of up
to 4,000 shares of Alpha's 7% Convertible Series D
Preferred Stock (the "Series D Preferred Stock").
In connection with, and as the basis for, the opinion
we render herein, we have examined the Certificate of
Incorporation and the By-Laws of the Company, both as
amended to date, the Certificate of Designations governing
the Series D Preferred Stock (the "Certificate of
Designations"), the Registration Statement, corporate
proceedings of the Company relating to the issuance of the
Series D Preferred Stock, and such other instruments and
documents as we have deemed relevant under the
circumstances.
In making the aforesaid examinations, we have
assumed the genuineness of all signatures and the
conformity to original documents of all copies furnished us
as original or photostatic copies. We have also assumed
that the corporate records furnished to us by the Company
include all corporate proceedings taken by the Company to
date in connection with the Series D Preferred Stock and
the proposed issuance of the Shares.
Based upon and subject to the foregoing, we are of
the opinion that the Shares, when duly issued upon the due,
timely and proper conversion of the Series D Preferred
Stock in accordance
<PAGE>
with the Certificate of Incorporation,
as amended by the Certificate of Designations, will be duly
and validly authorized and fully paid and non-assessable.
We hereby consent to the use of our opinion as
herein set forth as an exhibit to the Registration Statement
and to the use of our name under the caption "Legal
Matters" in the prospectus forming a part of the
Registration Statement.
Very truly yours,
/s/ PARKER DURYEE ROSOFF & HAFT
<PAGE>
Exhibit 23(a)
Rothstein, Kass & Company, P.C.
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement of Alpha Hospitality Corporation on
Form S-3 of our report dated February 10, 2000, which
appears in the annual report on Form 10-K of Alpha
Hospitality Corporation for the year ended December 31,
1999 and to the reference to our firm under the caption
"Experts" in the Prospectus.
/s/Rothstein, Kass & Company, P.C.
ROSELAND, NEW JERSEY
May 5, 2000.
