As filed with the Securities and Exchange Commission on July____, 2002
File No.333-
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 of (I.R.S. Employer
incorporation or organization) Identification Number)
707 Skokie Boulevard, Suite 600, Northbrook, IL 60062
(847) 418-3804
(Address, including zip code, and telephone number,
Including area code, of registrant's principal executive offices)
Scott A. Kaniewski
Chief Financial Officer
Alpha Hospitality Corporation
707 Skokie Boulevard
Suite 600
Northbrook, IL 60062
(847) 418-3804
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Herbert F. Kozlov, Esq.
Reed Smith LLP
529 Fifth Avenue
New York, New York 10017
(212) 878-1730
After July 26, 2002:
Reed Smith LLP
599 Lexington Avenue
29th Floor
New York, New York 10022
(212) 549-0241
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. [ ]
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
Proposed Proposed
Title of Each Class of Maximum Maximum
Securities to be Amount to be Aggregate Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
Common Stock,
par value
$0.01 per share 3,866,687 $6.19 $23,934,793 $5,720
________________
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) based upon the average of the high
and low sales prices of the common stock on The Nasdaq
SmallCap Market on July11, 2002.
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.
PROSPECTUS
SUBJECT TO COMPLETION, JULY____, 2002
3,866,687 Shares
ALPHA HOSPITALITY CORPORATION
Common Stock, par value $.01 per share
This prospectus relates to the registration of
3,866,687 shares of common stock, par value $.01 per
share, of Alpha Hospitality Corporation ("Alpha"). Alpha
will not receive any proceeds from the sale of shares of
common stock by the selling stockholders.
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.
Alpha's common stock is listed for trading on The
NASDAQ SmallCap Market and on the Boston Stock
Exchange under the symbol "ALHY". On July 11, 2002,
the closing bid price of Alpha's common stock, as reported
by The NASDAQ SmallCap Market, was $6.19 per share.
Alpha's executive offices are located at 707 Skokie
Boulevard, Suite 600, Northbrook, IL 60062. Our
telephone number is (847) 418-3804.
The date of this prospectus is July____, 2002.
The information in this prospectus is not complete and may
be changed. The selling shareholders 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 it is
not soliciting an offer to buy these securities in any state
where the offer or sale is not permitted.
TABLE OF CONTENTS
RISK FACTORS 5
USE OF PROCEEDS 11
RECENT DEVELOPMENTS 11
SELLING STOCKHOLDERS 13
PLAN OF DISTRIBUTION 16
LEGAL MATTERS 18
EXPERTS 18
ADDITIONAL INFORMATION ABOUT ALPHA 18
DOCUMENTS INCORPORATED BY REFERENCE 19
PART II: INFORMATION NOT REQUIRED IN
PROSPECTUS 20
EXHIBITS 23
No dealer, salesperson or other person has been
authorized to give any information or to make any
representation that is 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.
RISK FACTORS
An investment in Alpha's common stock involves
various risks, including those described below. Before
making a decision to invest in Alpha's common stock, you
should carefully consider the following risk factors in
addition to the other information in this prospectus and the
documents incorporated by reference.
ALPHA
Alpha has no operating business. Unless Alpha
successfully acquires or develops a business operation,
it may not be able to meet its obligations.
In order to be successful, Alpha must acquire or
develop an operating business. Alpha's 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;
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 you any assurance that it
will be able to generate enough funds through any of these
activities to meet its general and administrative obligations.
Alpha may not be successful in acquiring or developing
the business opportunities it is considering.
We intend to consider the acquisition of operating
businesses or other investments, but cannot be sure that
appropriate investments will present themselves for our
consideration. We may become aware of prospects for
acquisition and/or investment, but cannot assure you that
any opportunity that we pursue will actually be completed
or will be profitable. Also, we may not be able secure the
financing and other arrangements necessary to complete
any such acquisition or investment.
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 $9,477,000, $412,000 and $5,763,000 in
the fiscal years
ended December 31, 2001, 2000 and 1999, respectively.
To provide you a positive return in the long-term, we must
develop or acquire profitable operations. However, we
cannot assure you 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 management has significant experience
operating casinos, hotels and related hospitality ventures.
Currently management is concentrating its efforts on
potential gaming opportunities in New York. If Alpha
enters into another line of business, we may find that we
lack necessary expertise in that business. Therefore, we
cannot assure you that, if Alpha develops or acquires new
lines of business, we will be profitable in those businesses.
Alpha may be at risk of losing benefits associated with
its tax loss carry forwards.
As of December 31, 2001, Alpha had an aggregate
tax loss carryforward of approximately $64 million. One
of the benefits of the foregoing is that, subject to certain
minimum taxes and other limitations, the amount of that
tax loss carryforward can be applied on a dollar-for-dollar
basis against, and as a reduction of, future income on which
Alpha would otherwise be obligated to pay tax. As a
consequence of that benefit, Alpha might be viewed as a
potential acquisition target by another entity or the
acquisition of a new business by Alpha might be
considered to be more appealing in light of the fact that
income from that acquired business might be able to be
offset by the carryforward, subject to certain limitations.
One of those limitations is that, under currently
effective tax law and regulations, tax loss carryfowards
expire (to the extent not used or applied) 20 years after the
year with respect to which they occurred. Additionally, if a
"change of ownership" of a company is deemed to have
occurred, the amount of existing tax loss carryforwards that
can be utilized in any succeeding year by that company is
limited to a small percentage of those carryforwards.
Generally, a change in ownership will be deemed to have
occurred if the changes in percentage ownership of all
holders of 5% or more of that company's equity during the
prior three-year period aggregate in excess of 50%. Based
principally on the substantial change in ownership
percentages resulting from the transaction with Watertone,
which is described below, Alpha is fairly close to
exceeding the 50% limitation referred to above. This
situation could be further impaired if all of the shares
issuable upon the exercise or conversion of Alpha's
outstanding securities were to be issued or if Alpha were to
issue common stock (or securities exercisable for or
convertible into shares of its common stock) as part of any
acquisition of another company or business.
MARKET RISK
Future sales of shares could depress the value of your
shares of Alpha's common stock or result in a change of
control of Alpha.
As of June 30, 2002, Alpha had 4,862,003 shares
of common stock outstanding, including the 2,326,857
shares held by Bryanston Group, Inc. and 575,874 shares
owned by New York Gaming, LLC and an additional
372,578 held by other selling shareholders, all of which
shares are being registered with this prospectus. Once those
shares have been registered for sale pursuant to this
prospectus, the holders of those shares are free to sell them
without any volume limitations. Consequently, the public
float of Alpha's common stock is subject to substantial
increase if all or a substantial portion of those shares is sold
into the public market.
Additionally, through its shareholdings in Alpha,
Bryanston has historically effectively controlled Alpha. If
Bryanston were to sell a significant portion of its shares
that are registered for sale pursuant to this prospectus, some
other shareholders or group of shareholders could gain
effective control over Alpha. No prediction can be given
as to what effect any change of control might have on
Alpha or your investment in its stock. However, it is to
noted that, under certain circumstances, changes in control
can trigger various rights for the holders of Alpha's Series
D Preferred Stock and 4% Convertible Notes which rights
might have an adverse effect upon Alpha or your
investment in Alpha..
Further issuances of shares could dilute your interests
in Alpha.
Alpha currently has outstanding $1,299,060
amount (inclusive of capital in excess of par value and
accrued but unpaid dividends) of its Series D Preferred
Stock and $1,076,562 (inclusive of accrued but unpaid
interest) of its 4% Convertible Notes Due July 31, 2003.
Subject to certain limitations, shares of that Convertible
Preferred Stock are convertible into shares of Alpha's
common stock at a price equal to approximately 73% of the
average of the two lowest closing prices of a share of
Alpha's common stock during the 30 consecutive trading
days preceding the date of conversion, and subject to
certain limitations, those Convertible Notes are convertible
into shares of Alpha's common stock at a price equal to
approximately 83% of the average of the two lowest
closing prices of a share of Alpha's common stock during
the 30 consecutive trading days preceding the date of
conversion. Under the terms of the financing pursuant to
which that Preferred Stock and Convertible Notes were
issued, the number of shares that Alpha would be obligated
to issue upon the conversion of those securities was set at
certain maximum amounts. The maximum amount to be
issued upon the conversion of that Preferred Stock was
reached in November 2001, and as of June 30, 2002, only
an additional approximate 40,000 shares were subject to
issuance upon the conversion of those Convertible Notes
without exceeding the limitation applicable to those
Convertible Notes. However, under certain "change of
control" circumstances, those limitations would lapse,
which would result in a significant increase in the number
of shares of Alpha's common stock that would be issuable
upon the conversion of those securities. Those
circumstances could arise as a result of a number of
different circumstances, including sales of, or transfers of,
shares by Bryanston, or may be deemed to occur or to have
occurred, as a result of changes in voting rights assocated
with Bryanston shares. See the discussion below under
"Recent Developments".
If a "Change Of Control Transaction" is deemed to
have occurred, a substantial number of additional shares of
Alpha's common stock would be subject to issuance at the
election of the holders of shares of Alpha's Series D
Preferred stock and 4% Convertible Notes, with the
number of shares being issued being dependent upon the
market value of a share of Alpha's common stock during
the applicable period prior to the exercise of related
conversion rights (for example, if all of those securities
were converted at a time when the applicable market price
of a share of Alpha's common stock were $6.00, Alpha
would be obligated to issue an additional 439,930 shares of
its common stock). Additionally, Stanley Tollman (who
was Chairman of Alpha from 1993 until his resignation in
February 2002) previously agreed to accept payment of his
deferred
compensation in an aggregate amount of $1,529,167 in the
form of shares of Alpha's common stock valued at $7 per
share, which shares are subject to issuance at the election
of Mr. Tollman, and there are currently issued options and
warrants exercisable for an aggregate of an additional
50,000 shares of Alpha's common stock at an exercise price
of $4.40 per share. Alpha also has issued options or
warrants exercisable for an additional 834,028 shares or
Alpha's common stock at exercise prices ranging from
$4.40 to $24.00 per share. Upon the exercise of the various
rights referred to above, Alpha may become obligated to
issue additional shares of its common stock, which would
have a dilutive effect on most current shareholders in
Alpha.
Alpha stock price can be 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 a good indicator of
the market price in a more liquid market. Therefore, the
low volume may have had a significant effect on the
market price of the stock. The market price of the stock
could also fluctuate significantly due to a number of factors
that do not relate directly to Alpha's performance. Some of
these factors are:
1) the depth and liquidity of the
market for the stock;
2) public announcements by
Alpha, its clients and competitors;
3) investors' perceptions of
Alpha;
4) rumors; and
5) general economic, market
and other conditions.
We cannot assure you that there will be a public market
in the future for Alpha's securities.
Alpha cannot assure you 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
you that there will be a significant public market. Among
other requirements for continued listing on the NASDAQ
SmallCap Market, a company must maintain at least
$2,500,000 in stockholder's equity. 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 March 31, 2002 Alpha had
total assets of approximately $20,819,000 and stockholders'
equity of approximately $8,560,000. In the event Alpha's
common stock were to be delisted from the NASDAQ
SmallCap Market, trading, if any, would be conducted on
the Boston Stock Exchange and on the OTC 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 common stock.
GAMING
The gaming industry is highly regulated and Alpha
would be required to adhere to various regulations to
obtain and maintain a license.
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 all the current or future
governmental regulations that may apply. 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 our present and possible
future activities. If we are unable to comply with these or
similar requirements, it could subject us to sanctions. Any
sanctions could have a materially adverse effect upon
Alpha's business.
A denial or loss of any gaming license we may secure
would adversely affect Alpha's future operations.
Generally, the applicable regulatory body in each
state in which a casino operator conducts its business
requires that the ownership entity and its key officers,
managers and/or directors be found suitable as a condition
that that entity be granted a gaming license. These laws,
rules and regulations generally concern the responsibility,
financial suitability and character of the owners, managers
and directors. Alpha could be required to disassociate itself
from any person, who is subject to approval or a
determination of suitability and fails to be approved. If we
should fail to comply with the requirement to disassociate
ourselves from such an individual, we could lose our
gaming 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 our gaming
operations that require a license.
Alpha may compete in a highly competitive industry.
Alpha's current operational plan includes the
development of potential gaming operations in New York
and the acquisition or development of other business
operations. The industries in which any of these operations
could be conducted could be highly competitive. It is
possible that many of the potential competitors in these
industries may 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 planned operations or
may even render them unprofitable.
MONTICELLO CASINO
Alpha faces significant obstacles before we can develop
the proposed St. Regis Mohawk gaming opportunity in
New York.
Certain of Alpha's affiliated entities that are
involved in the proposed St. Regis Mohawk casino at
Monticello, are in litigation with Park Place Entertainment.
Those entities are claiming that Park Place Entertainment
tortiously interfered with a contract and a prospective
business relationship. Several approvals necessary to
complete the casino project have been delayed. We cannot
assure you that we will receive all of these approvals or
will proceed with the casino project, even if the litigation is
satisfactorily resolved.
The recovery of Alpha's investment in Catskill
Development is at risk.
Currently, Alpha's principal asset is its investment
in Catskill Development, LLC (the lead entity in the
proposed development of a gaming casino in Monticello,
New York), including potential recovery from the pending
Park Place litigation. Whether Alpha achieves any
significant return on its investment in Catskill will depend
on whether the litigation is successfully resolved and/or
Catskill is otherwise able to proceed with the development
and management of a gaming facility in Monticello, New
York.
Alpha makes no assurance that these items will
reach satisfactory conclusion. No estimate can be made as
to the amount of revenues that Catskill might receive or
Alpha's share of it, even in the event the litigation is
resolved in Catskill's favor.
Moreover, in addition to expenditures by Alpha,
Alpha's partners in Catskill have contributed considerable
amounts of money for the purchase of the Monticello
Raceway property and the pursuit of the approval and
development of a Native American casino on a portion of
that property. These contributions, together with interest
compounded at 10% per annum, must be repaid before any
net earnings would be available for distribution to Alpha.
As of June 30, 2002, the aggregate amount needed to
satisfy the payment of these contributions and mortgage as
discussed below, with interest was $43,697,128. Under the
Catskill operating agreement, members' capital
contributions are entitled to a cumulative annual preferred
return of ten percent per annum from the date of the
relevant contribution, compounded at the end of each fiscal
year. As of June 30, 2002, Alpha's preferred capital
balance was $4,606,237 out of a total preferred capital
balance for all the members of $37,194,621. Currently,
Alpha has capitalized $2,492,274 of these capital
contributions on its balance sheet (on a cost basis). These
preferred capital balances are subordinate to a mortgage
that, at June 30, 2002, was approximately $6,502,507.
Alpha is entitled to receive $4,606,237 out of the first
$37,194,621 of future distributions, if any, received by the
Catskill members, after discharge of that mortgage. After
the repayment of the mortgage and preferred capital, Alpha
will be entitled to receive additional distributions from any
net revenues derived from either its 49% interest in
Catskill's business component related to the casino and
wagering operations, its 37% interest in the Raceway's
parimutuel operations or its 5% interest in Catskill's real
estate component. Currently, any cash flow from the
operations of the Monticello Raceway are being retained by
Catskill for working capital purposes and to fund litigation
and development expenses in conjunction with other
potential gaming operations at the track. As a result, Alpha
is not expected to receive any distributions from Catskill
with respect to its interests in Catskill (other than with
respect to its preferred capital contributions and interest
thereon) until Catskill has achieved additional net revenues
sufficient to discharge the payment of these priority
returns.
THIS PROSPECTUS CONTAINS FORWARD
LOOKING STATEMENTS
Some of the statements in this prospectus are forward-
looking statements. These statements involve known and
unknown risks, uncertainties and other factors. These may
cause our results, levels of activity, performance or
achievements to be significantly different from those
expressed or implied by these 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 similar terms. Although we believe that the current
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.
USE OF PROCEEDS
The shares of common stock being offered are for
the account of the selling stockholders. We will not
receive any of the proceeds from the sale of shares of
common stock by the selling stockholders other than in
connection with the exercise of the options granted to
Messrs. Beman and Kaniewski covering the registered
shares set forth in the table of selling stockholders after
their respective names. It is anticipated that any payment
received by Alpha upon the exercise of those options will
be used for its general corporate purposes.
RECENT DEVELOPMENTS
On February 12, 2002, Alpha entered into an
agreement with Watertone Holding LP providing for the
acquisition of 47.5% of Watertone's economic interests in
the casino and racetrack business components of the
business of Catskill. This agreement replaced and
superseded an agreement previously entered into with
Watertone in August 2001 pursuant to which Alpha had
agreed to acquire all of Watertone's economic interest in
the casino and racetrack business components of Catskill's
business. The transaction contemplated by this agreement
closed on March 12, 2002. In consideration for those
economic interests, Alpha issued 575,874 shares of its
common stock for the benefit of Watertone. Additionally,
as part of the proposed transactions, Alpha entered into
employment agreements with two principals of Watertone,
Messrs. Robert Berman and Scott Kaniewski, providing for
annual aggregate salaries of $500,000, subject to possible
deferral, and options to purchase, at an exercise price of
$17.49 per share, up to an aggregate of 180,302 shares of
Alpha's common stock. The number of shares subject to
these options will be increased to an aggregate of up to
591,378 upon shareholder approval. As part of that
transaction, Bryanston granted a limited proxy to
Watertone to vote all of Bryanston's shares at the next
meeting of stockholders in favor of a proposal to increase
by 205,538 shares the number of shares that would be
covered by the stock option granted to each of Messrs.
Berman and Kaniewski under the terms of their respective
employment agreement with Alpha.
Subsequently, on April 30, 2002, Bryanston entered
into an agreement with Robert Berman and Scott
Kaniewski under which the parties to that agreement
sought to establish a mechanism designed to control the
election of all members to Alpha's Board of Directors. The
term of that agreement was to extend (subject to earlier
termination under certain circumstances provided for
therein) until April 30, 2005, and during the term of that
agreement, Mr. Berman was granted a proxy to vote all of
Bryanston's shares of stock in Alpha (which currently
consist of 2,326,857 common shares or approximately
48.9% of the outstanding shares of Alpha's common stock)
for the election to Alpha's Board four members designated
by Mr. Berman and three members designated by
Bryanston, and Messrs. Berman and Kaniewski agreed to
vote their shares (and shares held by their affiliates) in
favor of the election to the Alpha's Board of three
candidates designated by Bryanston. That agreement was
superseded on July 11, 2002, by another voting agreement
among the same parties. Pursuant to that new agreement,
the parties confirmed their intention to pool their shares for
voting purposes related to the election of members to
Alpha's Board and pursuant to that new agreement the
proxy previously granted to Mr. Berman was terminated
and the parties agreed that, until April 30, 2005 (subject to
earlier termination under certain circumstances provided
for therein), they would all vote the shares of capital stock
of Alpha owned by them or their affiliates so that Alpha's
Board would be comprised of four members designated by
Mr. Berman and three members designated by Bryanston
(with that ratio of 4 to 3 to be preserved as closely as
possible in the event there were to be a change in the
number of members constituting the entire Board of
Directors of Alpha).
In February 2000, Alpha obtained certain financing
in consideration for the issuance of $4 million of its Series
D Preferred Stock (of which an aggregate of $1,299,060,
inclusive of accrued but unpaid dividends, remains
outstanding). Under the terms of that financing, a
limitation of an aggregate of 330,000 shares was placed on
the number of shares of Alpha's common stock that was
issuable upon the conversion of shares of that Preferred
Stock or in payment of dividends on that Preferred Stock.
That limitation was reached in November 2001.
However, under certain circumstances, the
limitation referred to above would be removed, in which
event the remaining outstanding shares of that Preferred
Stock would be convertible into shares of Alpha's common
stock without limitation on the number of shares that Alpha
would be obligated to issue. More particularly, the
limitation referred to above would no longer be applicable
in the event a "Change Of Control Transaction" (as defined
in the financing documents) were to occur. Under the
terms of the financing documents for the Series D Preferred
Stock, a "Change Of Control Transaction" is defined to
include "any Person or any 'group' (as such term is used in
Section 13(d) of the Exchange Act), becomes the beneficial
owner or is deemed to beneficially own (as described in
Rule 13d-3 under the Exchange Act without regard to the
60-day exercise period) in excess of 50% of Alpha's voting
power of the capital stock of Alpha normally entitled to
vote in the election of directors of Alpha (other than (A)
any Person or any such group that held such voting power
as of the initial issuance date of the Series D Preferred
Stock or (B) any group that holds such voting power
subsequent to that initial issuance date, provided that the
Persons that constitute such group include the Person or a
majority of the members of, and at least 50% of the voting
power held by, a group referenced in the foregoing clause
(A))." Accordingly, if any of the voting agreements or
arrangements described above is deemed to have
constituted a "Change Of Control Transaction" under the
terms of the financing documents for the Series D Preferred
Stock, or if Bryanston were to otherwise transfer rights or
sell sufficient of its shares in Alpha so as to cause a
"Change Of Control Transaction", the limitation on the
number of shares that Alpha could be obligated to issue
upon the conversion of that Preferred Stock would no
longer apply.
In July 2000, Alpha obtained certain additional
financing in consideration for the issuance of $1.25 million
of its 4% Convertible Notes due July 31, 2003 (of which an
aggregate of $1,075,562, inclusive of accrued but unpaid
interest, remains outstanding). Under the terms of that
financing, a limitation of an aggregate of 332,300 shares
was placed on the number of shares of Alpha's common
stock that was issuable (a) upon the conversion of those
Notes, (b) in payment of interest on those Notes or (c) upon
conversion of the Series D Preferred Stock after July 31,
2000. Based upon that limitation and after taking into
consideration the number of
shares of Alpha's common stock that has been issued upon
conversion of those Notes or upon the conversion of the
Series D Preferred Stock after July 31, 2000, Alpha would
currently be obligated to issue a maximum of an additional
approximate 40,000 shares of its common stock either (a)
upon the conversion of those Notes or (b) in payment of
interest on those Notes.
However, under certain circumstances, the
limitation referred to above would be removed, in which
event the remaining outstanding 4% Convertible Notes
would be convertible into shares of Alpha's common stock
without limitation on the number of shares that Alpha
would be obligated to issue. More particularly, the
limitation referred to above would no longer be applicable
in the event a "Change of Control Transaction" (as defined
in the financing documents) were to occur. Under the
terms of the financing documents for those Notes, a
"Change of Control Transaction" is defined to include "any
Person or any 'group' (as such term is used in Section
13(d) of the Exchange Act) becomes the beneficial owner
or is deemed to beneficially own (as described in Rule 13d-
3 under the Exchange Act without regard to the 60-day
exercise period) in excess of 50% of Alpha's voting power
of the capital stock of Alpha normally entitled to vote in
the election of directors of Alpha (other than (A) any
Person or any such group that held such voting power as of
the initial issuance date of the 4% Convertible Notes or (B)
any group that holds such voting power subsequent to that
initial issuance date, provided that the Persons that
constitute such group include the Person or a majority of
the members of, and at least 50% of the voting power held
by, a group referenced in the foregoing clause (A))."
Accordingly, if any of the voting agreements or
arrangement described above is deemed to have constituted
a "Change of Control Transaction" under the terms of the
financing documents for the 4% Convertible Notes or if
Bryanston were to otherwise transfer rights or sell
sufficient of its shares in Alpha so as to cause such a
"Change of Control Transaction", the limitation on the
number of shares that Alpha could be obligated to issue
upon the conversion of those Notes would no longer apply.
SELLING STOCKHOLDERS
All of the shares of common stock offered in this
prospectus are being registered for re-offers and re-sales by
selling shareholders of Alpha. The selling shareholders
may resell all or some of the shares. They will be eligible
to sell those shares whether or not they presently have the
intention to do so. The table below assumes that all of the
shares being offered will be sold. However, we cannot
assure you that the selling shareholders will sell all or any
of their shares.
The following table sets forth, as of June 30, 2002,
information with respect to the beneficial ownership of our
common stock by the selling shareholders named in the
table. The column under the heading "Number of Shares
Beneficially Owned Prior to Offering" in most cases
includes all shares owned by the named person and shares
issuable upon the exercise of options under Alpha's 1993
and 1998 stock option plans. However, not included in that
column are:
For Mr. Berman, Mr. Kaniewski and
Watertone:
1. 575,874 shares
owned by New
York Gaming,
LLC.
2. 2,326,857 owned
by Bryanston that
are subject to the
limited proxy
granted to
Watertone to vote
Bryanston's
2,326,857 shares
at the next
meeting of
stockholders in
favor of a
proposal to
increase by
205,538
shares the
number of
shares that
would be
covered by the
stock option
granted to
each of
Messrs.
Berman and
Kaniewski
under the
terms of their
respective
employment
agreements
with Alpha.
For further explanation of the non-inclusion of these
shares, see the text following the table.
Number of Shares Number of Shares Number of Shares % of
Beneficially Owned Covered by this to be Owned After Class After
Selling
Shareholder Prior to Offering Prospectus the Offering the Offering
Bryanston
Group, Inc. 2,326,857 2,326,857 0 *
New York
Gaming, L.L.C. 575,874 575,874 0 *
Robert A. Berman 296,289 295,689 600 *
Scott A. Kaniewski 295,689 295,689 0 *
Global Trading
Group, Inc. 5,000 5,000 0 *
Andrew Wahl 5,000 5,000 0 *
Joan Hundley 25,000 25,000 0 *
Beatrice Tollman 181,590 181,590 0 *
Brett G. Tollman 55,988 55,988 0 *
Brett G. Tollman,
as sole trustee
for the
Tollman Family
Trust 100,000 100,000 0 *
* Less than one percent
Regarding the table above:
The 2,326,857 shares set forth in the above table as
being owned and subject to resale by Bryanston Group, Inc.
are comprised of the following: (a) 225,758 shares issued in
September 2000 in lieu of cash dividends on shares of
Alpha's Series B Preferred Stock for 1998 and 1999; (b)
299,610 shares issued in April 2000 in lieu of cash
dividends on shares of Alpha's Series B Preferred Stock for
2000; (c) 228,208 shares issued in February 2002 in lieu of
cash dividends on shares of Alpha's Series B Preferred
Stock for 2001; (d) 621,790 shares issued in February 2002
upon conversion of shares of Alpha's Series B Preferred
Stock; (e) 174,123 shares issued in February 2002 in lieu of
cash dividends on shares of Alpha's Series C Preferred
Stock for 1998, 1999, 2000 and 2001; (f) 324,389 shares
issued in February 2002 upon conversion of shares of
Alpha's Series C Preferred Stock; (g) 237,991 shares issued
in January 2002 in extinguishment of the remaining balance
of $1,448,773 of principal and interest on a $3,000,000
promissory note on Alpha's idle gaming vessel and an
additional $455,151 liability pertaining to a transferred a
portion of Bryanston's interest in Catskill; and (h) 214,988
shares during 1998 and 1999 in lieu of cash dividends on
shares of Alpha's Series B Preferred Stock for 1996 and
1997.
The 575,874 shares set forth in the above table as
being owned and subject to resale by New York Gaming,
L.L.C consist of those shares as issued on March 12, 2002
as part of the transaction pursuant to which Alpha acquired
47.5% of Watertone's economic interests in the casino and
racetrack business components of the business of Catskill.
The 295,689 shares set forth in the above table as
being owned and subject to resale by each of Messrs.
Berman and Kaniewski represent shares issuable upon the
exercise of options granted to those two individuals under
their respective employment agreements. Those options
currently provide for each of Messrs. Berman and
Kaniewski to purchase up to 90,151 shares, with that
number being subject to increase to 295,689 upon
shareholder approval.
The 5,000 shares set forth in the above table as
being owned and subject to resale by Global Trading Group,
Inc. were issued in April 2002, in partial consideration for
the settlement of certain litigation commenced by Global
Trading Group, Inc. against Alpha.
The 5,000 shares set forth in the above table as
being owned and subject to resale by Andrew Wahl were
issued in June 2002 in consideration for assistance provided
by Mr. Wahl in arranging certain financing provided to
Alpha.
The 25,000 shares set forth in the above table as
being owned and subject to resale by Joan Hundley were
issued in May 2002 in replacement of shares loaned by Ms.
Hundley to Apha which were used to settle a certain
liability.
The 181,590 shares set forth in the above table as
being owned and subject to resale by Beatrice Tollman are
comprised of 41,590 of founders shares issued in 1993 and
140,000 shares received from Bryanston, relative to private
sales in March 1995 and November 1995.
The 55,988 shares set forth in the above table as
being owned and subject to resale by Brett Tollman are
comprised of 10,397 of founders shares isued in 1993, 3,680
shares transferred from Stanley S. Tollman in 1995 and
41,911 shares received from Bryanston, relative to private
sales in March 1995 and November 1995.
The 100,000 shares set forth in the above table as
being owned and subject to resale by Brett Tollman as sole
trustee for the Tollman Family Trust were granted in 1995
by Stanley S. Tollman.
PLAN OF DISTRIBUTION
From time to time the selling stockholders may
offer and sell the common shares they hold by using this
prospectus. The selling stockholders 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 stockholders 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, the Boston Stock
Exchange 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 a 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 stockholders
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 stockholders may also sell
our common stock short and redeliver the shares to close out
short positions.
The selling stockholders may enter into an option or
other transactions with broker-dealers or other financial
institutions that require the selling stockholders 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 stockholders 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 stockholders 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 stockholders 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 stockholders 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 stockholders. The selling
stockholders 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 and the related rules and
regulations.
The selling stockholders may sell all or any part of
the shares of common stock through an underwriter. Alpha
is not aware of any agreement the selling stockholders may
have entered into with a prospective underwriter, and there
is no assurance that the selling stockholders will enter into
any agreement with a prospective underwriter. If any
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 those states
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 stockholders 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 stockholders and their affiliates. In
addition, we will make copies of this prospectus available to
the selling stockholders, and we have 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 paid to any
dealer, and the proposed selling price to the public.
It is possible that a significant number of shares
could be sold at the same time under this prospectus. Any
sales, or even the possibility of sales, may depress the
market price of Alpha's common stock. Alpha will bear all
costs and expenses of the registration of the selling
stockholders' shares under the Securities Act and state
securities laws. However, each selling stockholder will bear
all underwriting and brokerage commissions and
underwriting expenses, if any, attributable to the sale of her
or his shares.
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 Reed Smith LLP, New York, New
York. Herbert F. Kozlov, a director of Alpha, is a member
of that firm.
EXPERTS
The consolidated financial statements included in
Alpha's annual report on Form 10-K for the year ended
December 31, 2001, as filed with the Securities and
Exchange Commission on April 1, 2002 and as amended on
May 22, 2002, which are incorporated in this Registration
Statement by reference, have been audited by Friedman
Alpren & Green LLP (year ended December 31, 2001) and
Rothstein, Kass & Company., P.C. (years ended December
31, 2000 and 1999), independent certified public
accountants, as indicated in their reports. The consolidated
financial statements are incorporated in this registration
statement by reference in reliance on the reports of
Friedman Alpren & Green LLP and Rothstein, Kass &
Company P.C., given on the authority of those firms as
experts in accounting and auditing.
ADDITIONAL INFORMATION ABOUT ALPHA
Alpha files annual, quarterly and special reports,
proxy statements and other information with the 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, as certain parts of that registration statement are
not required to be included under 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 us to "incorporate by reference" the
information we file with the SEC, which means that we can
disclose important information to you by referring you to
those documents. The information incorporated by
reference is an important part of this prospectus.
Information that we file later with the SEC will
automatically update the information incorporated by
reference and the information in this prospectus.
Alpha incorporates by reference the following documents
we have filed with the SEC:
(a) Our annual report on Form 10-K for
the year ended December 31, 2001 as
filed with the Securities and Exchange
Commission April 1, 2002, and
amended May 22, 2002;
(b) Our quarterly report on Form 10-QSB
for the quarter ended March 31, 2002;
(c) Our current reports filed on Form 8-K
dated February 12, 2002, February 26,
2002, April 18, 2002, May 1, 2002 and June
25, 2002;
(d) 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); and
(e) All documents filed by us with the
SEC pursuant to Section 13(a), 13(c), 14
or 15 (d) of the Securities Exchange Act after
the date of this prospectus.
Any statement contained in the documents filed with
the SEC prior to the date of this prospectus is modified or
superseded to the extent that a statement contained in this
prospectus modifies or supersedes that statement.
You may request a free copy of any of the
documents incorporated by reference, other than exhibits
unless they are specifically incorporated by reference, in this
prospectus but that are not delivered to you. You may
request copies by writing or telephoning us at the following
address: Alpha Hospitality Corporation, 707 Skokie
Boulevard, Northbrook, Illinois, 60062, Attention: Scott
Kaniewski, telephone number (847) 418-3804.
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 us in connection with the
registration and sale of the common stock being offered
hereby:
SEC Registration Fee $ 5,720
Printing registration statement and other
documents $ 0
Legal fees and expenses $ 5,000*
Accounting fees and expenses $ 2,500*
Miscellaneous expenses $ 4,000*
Total: $ 17,220*
*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*
5 Opinion of Reed Smith
23(a1) Consent of Friedman Alpren & Green LLP
23 (a2) Consent of Rothstein, Kass & Company P.C.
23(b) Consent of Reed Smith (included in Exhibit 5 hereof)
24 Power of Attorney (attached in the signature page
thereof)
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. That Registration Statement was
further amended by Post Effective Amendment on August
20, 1999.
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) That, insofar as
indemnification for liabilities arising
under the Securities Act may be
permitted to directors, officers and
controlling persons of Alpha pursuant
to the provisions referred to in Item 15
of Part II of this 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.
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 July____, 2002.
ALPHA HOSPITALITY CORPORATION
By: /s/Robert A. Berman
Robert A. Berman
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below constitutes and
appoints Scott A. Kaniewski 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/ Robert A. Berman Chairman of the Board July__, 2002
Robert A. Berman and Chief Executive Officer
(Principal Executive Officer)
/s/ Thomas W. Aro Vice President, Secretary July__, 2002
Thomas W. Aro and Director
/s/ Scott A. Kaniewski Chief Financial Officer
Scott A. Kaniewski and Director July__, 2002
/s/ Paul A. de Bary Director July __, 2002
Paul A. de Bary
/s/ William W. Hopson Director July __, 2002
William W. Hopson
/s/ Herbert F. Kozlov Director July__, 2002
Herbert F. Kozlov
EXHIBIT 5
[LETTERHEAD OF REED SMITH, LLP]
July __, 2002
Alpha Hospitality Corporation
707 Skokie Boulevard
Suite 600
Northbrook, IL 60062
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
3,866,687 shares (the "Shares") of Common Stock, $0.01
par value.
In connection with, and as the basis for, the opinion
we render herein, we have examined, among other
documents the Certificate of Incorporation and the By-Laws
of the Company, both as amended to date, the Certificate of
Designations governing the Series B and Series C Preferred
Stock, the Registration Statement, corporate proceedings of
the Company relating to the issuance of the Series B and C
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 B and C Preferred Stock and the
proposed issuance of the Shares and have relied upon
certain statements and representations made to us by the
Company or officers or other members of its management.
Based upon and subject to the foregoing, we are of the
opinion that the Shares, have been duly and validly
authorized and are fully paid and non-assessable; provided,
however, that those Shares that are subject to options
granted to Messrs. Robert Berman and Scott Kaniewski and
that have not been issued will only be fully paid and non-
assessable upon the issuance of such Shares pursuant to a
valid exercise of such optins.. 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/REED SMITH
Exhibit 23(a1)
Friedman Alpren & Green LLP
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement on Form S-3 of our audit report
dated March 20, 2002, as amended on April 5, 2002,
relating to the 2001 consolidated financial statements of
Alpha Hospitality Corporation, which appears in the
Company's annual report on Form 10-K for the year ended
December 31, 2001, as filed with the Securities and
Exchange Commission on April 1, 2002, and as amended on
May 22, 2002, and to the reference to our firm under the
caption "Experts" in this registration statement.
/s/ Friedman Alpren & Green LLP
NEW YORK, NEW YORK
July 17, 2002
Exhibit 23(a2)
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 23, 2001, on our
audits of the consolidated financial statemetns and financial
statement schedule of Alpha Hospitality Corporation as of
December 31, 2000 and for the years ended December 31,
2000 and 1999, which report is included in the Annual
Report on Form 10-K of Alpha Hospitality Corporation for
the year ended December 31, 2001, and to the reference to
our firm under the caption "Experts" in the Registration
Statement.
/s/ Rothstein, Kass & Company, P.C.
ROSELAND, NEW JERSEY
July 18, 2002