File No. 333-______
As filed with the Securities and Exchange Commission on March 24, 2000.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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.[ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of Amount to Be Proposed Proposed Amount of
Each Class Registered Maximum Maximum Registration
of Securities Offering Aggregate Fee
to be Registered Price Offering
Per Share Price
Common Stock, par
value $.01 per share 3,300,000 $5.03 $16,599,000 $4,382.14
</TABLE>
________________
<F1>
(1) Pursuant to Rule 416(a), the Registration Statement also
relates to an indeterminate number of additional shares of the
Registrant's Common Stock, issuable upon the conversion of
the Registrant's 7% Convertible Series D Preferred Stock,
pursuant to anti-dilution provisions contained in the Certificate
of Designations governing such Preferred Stock, which shares
of Common Stock are registered hereunder.
<F2>
(2) Estimated solely for the purpose of calculating the registration
fee, as determined in accordance with Rules 457(c), using the
average of the high and low sales prices per share of Alpha's
common stock as reported on the NASDAQ SmallCap Market
on March 17, 2000.
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, MARCH 24, 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 March 23, 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 March 24, 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>
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
USE OF PROCEEDS 7
SELLING STOCKHOLDER 7
PLAN OF DISTRIBUTION 8
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.
In Florida, Alpha may lose its proposed "cruise-to-nowhere"
gaming opportunity if legislation introduced in the Florida
legislature is enacted. The legislation being considered could
dramatically alter the current state law and impose significant new
restrictions or limitations on the "cruise-to-nowhere" industry.
Alpha's subsidiary, Alpha Florida, is awaiting final disposition of
the legislation before proceeding with the final financial
commitment on this project. The state legislature will not adjourn
until early May 2000; therefore, there can be no assurance that a
vote will not be taken and, if taken, would not be detrimental to the
industry. Consequently, whether Alpha or Alpha Florida will
proceed with the development of this business opportunity remains
uncertain.
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.
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.
<PAGE>
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 March 15, 2000 was approximately $1,585,000. 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.
OTHER CONSIDERATIONS
Future sales of shares could potentially dilute your interest in Alpha's
common stock.
As of March 15, 2000, Alpha had 17,033,399 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.
<PAGE>
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 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.
<PAGE>
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.
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.
<PAGE>
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 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.
<PAGE>
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.
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;
<PAGE>
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 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
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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.
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.
<PAGE>
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 current report on Form 8-K, as filed with the SEC
on February 15, 2000; and
(c) 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............................................15,000*
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 benefited 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.
<PAGE>
** Incorporated by reference; filed with Alpha's Current Report on
Form 8-K filed on February 15, 2000.
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
March 24, 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 Chariman of the Board March 24, 2000
Stanley S. Tollman and Chief Executive Officer
(Principal Executive Officer)
/s/ Thomas W. Aro Vice President, Secretary and March 24, 2000
Thomas W. Aro Director
/s/ Robert Steenhuisen Principal Accounting Officer March 24, 2000
Robert Steenhuisen
/s/ Brett Tollman Vice President and Director March 24, 2000
Brett Tollman
/s/ Matthew B. Walker Director March 24, 2000
Matthew B. Walker
/s/ Herbert F. Kozlov Director March 24, 2000
Herbert F. Kozlov
/s/ James A. Cutler Director March 24, 2000
James A. Cutler
<PAGE>
EXHIBIT 5
[LETTERHEAD OF PARKER DURYEE ROSOFF &
HAFT,
A PROFESSIONAL CORPORATION]
March 24, 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.
<PAGE>
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 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 and
Subsidiaries 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 and Subsidiaries 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.
Rothstein, Kass & Company, P.C.
ROSELAND, NEW JERSEY
March 23, 2000.
<PAGE>
