SCHEDULE 14C
(Rule 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION STATEMENT
Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934
Check the appropriate box:
X Preliminary information statement
Confidential, for Use of the Commission Only (as permitted
by Rule 14a-6(e)(2))
Definitive information statement
ALPHA HOSPITALITY CORPORATION
(Name of Registrant as Specified in Its Charter)
Payment of filing fee (Check the appropriate box):
X No fee required.
Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the amount
on which the filing fee is calculated and state how it was
determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
Fee paid previously with preliminary materials.
Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify
the filing for which the offsetting fee was paid previously.
Identify the previous filing by
registration statement number, or the form or schedule and
the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
Alpha Hospitality Corporation
707 Skokie Boulevard, Suite 600
Northbrook, IL 60062
INFORMATION STATEMENT NOTICE
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
Dear Stockholders:
Notice is hereby given that on or about April 11, 2003, we
received written consents, in lieu of a meeting of stockholders,
from the holders of a majority of our outstanding voting stock,
approving an amendment to our certificate of incorporation that
will change our name from "Alpha Hospitality Corporation" to
"Empire Resorts, Inc."
You are encouraged to read the attached Information
Statement, including the exhibit, for further information
regarding this action.
This is not a notice of a meeting of stockholders and no
stockholders' meeting will be held to consider the matters
described herein. This Information Statement is being furnished
to you solely for the purpose of informing stockholders of the
matters described herein in compliance with Regulation 14C of the
Securities Exchange Act of 1934, as amended, and Section 228(e)
of the Delaware General Corporation Law.
By Order of the Board of Directors
/s/ Thomas W. Aro
Thomas W. Aro
Secretary
New York, New York
April 14, 2003
Alpha Hospitality Corporation
707 Skokie Boulevard, Suite 600
Northbrook, IL 60062
INFORMATION STATEMENT
The purpose of this Information Statement is to notify the
holders of our common stock and Series B preferred stock as of
the close of business on April 11, 2003 (the "Record Date"), that
on April 11, 2003 we received written consents, in lieu of a
meeting of stockholders, from the holders of 2,782,984 shares of
our common stock, representing approximately 54% of our
outstanding voting stock, approving an amendment to our
certificate of incorporation that will change our name from
"Alpha Hospitality Corporation" to "Empire Resorts, Inc."
This Information Statement is first being mailed or
furnished to stockholders on or about April 30, 2003, and the
name change amendment described herein will not become effective
until at least 20 days thereafter. We will pay all costs
associated with the preparation and distribution of this
Information Statement, including all mailing and printing
expenses. We will also, upon request, reimburse brokers, banks
and similar organizations for reasonable out-of-pocket expenses
incurred in forwarding this Information Statement to their
clients.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT
TO SEND US A PROXY.
SECURITY OWNERSHIP
As of the Record Date, there were 5,142,317 shares of common
stock and 44,258 shares of Series B Preferred Stock issued and
outstanding and entitled to vote. Each share of common stock
entitles its holder to one vote, and each share of Series B
preferred stock entitles its holder to eight-tenths (.8) of one
vote.
The following table sets forth certain information
concerning the ownership of our common stock and Series B
preferred stock, as of April 14, 2003, by (i) each person known
to be the beneficial owner of more than five percent of our
outstanding common stock and Series B preferred stock, (ii) each
director and executive officer required to be named hereunder and
(iii) all of our directors and executive officers as a group.
Unless otherwise indicated, (i) we believe that each stockholder
has sole voting and dispositive power with respect to the stock
beneficially owned by him and (ii) the address of each
stockholder is c/o Alpha Hospitality Corporation, 707 Skokie
Boulevard, Suite 600, Northbrook, IL 60062.
Common Stock Series B Preferred Stock
Beneficially Owned(1) Beneficially Owned(1)
Shares Percentage Shares Percentage
Robert A. 3,081,173(2) 56.63% -- --
Berman
Scott A. 329,635(3) 6.06% -- --
Kaniewski
Thomas W. 50,000(4) * -- --
Aro
Paul deBary 66,103(5) 1.29% -- --
Thomas P. 19,000(6) * -- --
Puccio
William H. 20,500(7) * -- --
Hopson
Morad Tahbaz 17,500(8) * -- --
Jay A. Holt 19,000(9) * -- --
All 3,602,911(2)(3) 62.56% -- --
Directors (4)(5)(6)(7)(8)(9)
and
Executive
Officers as
a Group
(8 persons)
Bryanston
Group, Inc.
1886 Route -- (10) -- -- --
52
Hopewell
Junction, NY
BP Group, -- -- 44,258 100%
Ltd. (11)
8306 Tibet
Butler Drive
Windemere,
FL
_________________
* less than 1%
(1) A person is deemed to be the beneficial owner of voting
securities that can be acquired by such person within 60 days
after the Record Date upon the exercise of options and warrants
and the conversion of convertible securities. Each beneficial
owner's percentage of ownership is determined by assuming that
all options, warrants or convertible securities held by such
person (but not those held by any other person) that are
currently exercisable or convertible (i.e., that are exercisable
or convertible within 60 days after the Record Date) have been
exercised or converted.
(2) Consists of 390,127 shares owned by Robert A. Berman,
298,189 shares issuable upon the exercise of options, 2,326,857
shares owned by Bryanston Group, Inc. ("Bryanston") and 66,000
shares owned by Beatrice Tollman (with respect to such shares
owned by Bryanston and Beatrice Tollman, Robert A. Berman has
exclusive voting rights for a three year period under the
Bryanston Recapitalization Agreement (defined below)). Robert A.
Berman disclaims beneficial ownership of any shares owned by
Bryanston and Beatrice Tollman for any purpose other than voting.
Debbie N. Berman, the wife of Robert A. Berman, has sole power to
vote or to direct the vote and sole power to dispose or to direct
the disposition of 4,090 shares. Robert A. Berman disclaims
beneficial ownership of such shares. Debbie N. Berman and Philip
Berman, the brother of Robert A. Berman, are co-trustees for the
Berman Family Trust, which owns 12,272 shares and have joint
power to vote or to direct the vote and joint power to dispose or
to direct the disposition of these shares. Robert A. Berman
disclaims beneficial ownership of such shares.
(3) Consists of 1,440 shares owned by Scott A. Kaniewski, 28,506
shares owned by the Kaniewski Family Limited Partnership, which
he is the general partner and a 1% limited partner (with respect
to which Mr. Kaniewski has sole voting and disposition rights)
and 299,689 shares issuable upon the exercise of options. Scott
A. Kaniewski disclaims beneficial ownership of the 28,221 shares
owned by the Kaniewski Family Limited Partnership for any other
purposes other than voting and dispositive powers. Does not
include 34,552 shares owned by the KFP Trust whose sole trustee
is Stacey B. Kaniewski, the wife of Scott A. Kaniewski. Stacey B.
Kaniewski has sole power to vote or direct the vote and sole
power to dispose or direct the disposition of these shares. Scott
A. Kaniewski disclaims beneficial ownership of the shares owned
by the KFP Trust.
(4) Includes 50,000 shares of common stock issuable upon the
exercise of options granted to Thomas W. Aro, all of which are
currently exercisable.
(5) Includes 42,103 shares owned by Paul deBary and 19,000
shares of common stock issuable upon the exercise of options
granted to Mr. deBary, all of which are currently exercisable.
(6) Consists of 19,000 shares of common stock issuable upon the
exercise of options granted to Thomas P. Puccio, all of which are
currently exercisable.
(7) Consists of 20,500 shares of common stock issuable upon the
exercise of options granted to William W. Hopson, all of which
are currently exercisable.
(8) Consists of 17,500 shares of common stock issuable upon the
exercise of options granted to Morad Tahbaz, all of which are
currently exercisable.
(9) Consists of 19,000 shares of common stock issuable upon the
exercise of options granted to Jay A. Holt, all of which options
are currently exercisable.
(10) Robert A. Berman has exclusive voting rights for Bryanston
shares for a three year period under the Bryanston
Recapitalization Agreement. Robert A. Berman disclaims beneficial
ownership of Bryanston's shares for any purpose other than
voting.
(11) Patricia Cohen is the sole stockholder of BP Group, Ltd.
("BP"). This table does not include 35,406 shares of common stock
issuable upon conversion of the 44,258 shares of Series B
preferred stock owned by BP. All of such shares of preferred
stock are currently convertible into shares of common stock.
Change in Control
On December 10, 2002, pursuant to a recapitalization
agreement (the "Bryanston Recapitalization Agreement"), we (i)
issued an aggregate 336,496 shares of our Series E preferred
stock to each of Bryanston, our largest stockholder, Stanley
Tollman ("Tollman") and Monty Hundley ("Hundley") in full
satisfaction of an outstanding note and as deferred compensation,
(ii) received a three year option to redeem all or any portion of
(a) the Series E preferred stock issued to Bryanston, Tollman and
Hundley, as described above, at its liquidation value plus all
accrued and unpaid dividends and (b) subject to stockholder
approval, which was obtained on January 31, 2003, Bryanston's
2,326,857 and Beatrice Tollman's 66,000 shares of common stock at
a price of $2.12 per share. During this three year redemption
period, each of Bryanston and Beatrice Tollman have granted
Robert A. Berman, our Chief Executive Officer, an irrevocable
proxy to vote their shares of common stock, with full powers of
substitution and revocation. As these shares represent
approximately 54% of our voting stock, the granting of this proxy
to Robert A. Berman might be viewed as a change in our control.
STOCKHOLDER ACTION
Introduction
On April 4, 2003, our Board of Directors unanimously
approved an amendment to our certificate of incorporation that
would change our name from "Alpha Hospitality Corporation" to
"Empire Resorts, Inc" (the "Name Change Amendment") and submitted
such matter for stockholder approval. On April 11, 2003
stockholders holding approximately 54% of our outstanding voting
stock, acting by majority written consent, approved and ratified
the Name Change Amendment, a copy of which is attached to this
Information Statement as Exhibit A.
Purpose of the Name Change
While initially formed as a holding company for a diverse
portfolio of gaming related investments, over the past eighteen
months our business has focused primarily on the ownership and
development of various gaming operations in the Catskills region
of upstate New York. To that end, we have liquidated nearly all
of our holdings unrelated to this endeavor and increased our
minority interest in Catskill Development, L.L.C., the owner and
operator of Monticello Raceway, a harness horse racing facility
located in Monticello, New York. In addition, on February 4,
2003, we entered into a non-binding letter of intent with
Catskill Development, L.L.C. and certain of its affiliates
pursuant to which we agreed, subject to the negotiation and
execution of definitive agreements, to enter into a 48 year
ground lease for 229 acres of land encompassing Monticello
Raceway and its surrounding area and to acquire all of the
outstanding capital stock of both Catskill Development, L.L.C.
and Monticello Raceway Development Company, L.L.C. in exchange
for 80.25% of our common stock, on a post-transaction, fully
diluted basis. Following this transaction, we intend to (i)
consolidate our operations with Catskill Development, L.L.C.,
(ii) operate Monticello Raceway, (iii) develop a video lottery
terminal program at Monticello Raceway and (iv), in conjunction
with the Cayuga Nation of New York, develop a resort-style tribal
gaming facility. Furthermore, on April 3, 2003, we, the Cayuga
Nation of New York, the Cayuga Catskill Gaming Authority,
Catskill Development, L.L.C., Monticello Raceway Development
Company, L.L.C. and Monticello Casino Management, L.L.C., the
latter two of which are jointly owned by us and Catskill
Development, L.L.C., entered into a series of agreements that
provide for the joint development of a resort-style tribal gaming
facility on land adjacent to Monticello Raceway. In light of this
new strategic focus, our Board of Directors has determined that
it is in our best interest to adopt a name more readily
identifiable with our current business plan. Consequently, the
Board of Directors has recommended changing our name from "Alpha
Hospitality Corporation" to "Empire Resorts, Inc."
Effects of the Name Change
Changing our name will not have any effect on our corporate
status, the rights of stockholders or the transferability of
outstanding stock certificates. Outstanding stock certificates
bearing the name "Alpha Hospitality Corporation" will continue to
be valid and represent shares of Empire Resorts, Inc. following
the name change. In the future, new stock certificates will be
issued bearing our new name, but this will in no way affect the
validity of your current stock certificates.
In connection with our name change, on April 16, 2003 our
trading symbol on the Nasdaq SmallCap Market will change from
"ALHY" to "NYNY" and on the Boston Stock Exchange from "ALH" to
"NYN".
Vote Required
The affirmative vote of the holders of a majority of our
outstanding common stock is required to change our name from
"Alpha Hospitality Corporation" to "Empire Resorts, Inc.," which
vote was obtained by a majority written consent dated April 11,
2003.
Dissenters' Rights of Appraisal
The Delaware General Corporation Law does not provide for
dissenter's rights in connection with our name change.
OTHER MATTERS
The Board of Directors does not know of any other matters
that were recently approved or considered by the holders of a
majority of our outstanding voting stock, acting by majority
written consent.
ADDITIONAL INFORMATION
We are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, and in accordance
therewith file reports, proxy statements and other information
including annual and quarterly reports on Form 10-KSB and 10-QSB
with the Securities and Exchange Commission. Reports and other
information filed by us can be inspected and copied at the public
reference facilities maintained at the Securities and Exchange
Commission at Room 1024, 450 Fifth Street, N.W., Washington, DC
20549. Copies of such material can be obtained upon written
request addressed to the Securities and Exchange Commission,
Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Securities and Exchange
Commission also maintains a web site on the Internet
(http://www.sec.gov)where reports, proxy and information
statements and other information regarding issuers that file
electronically with the Securities and Exchange Commission
through the Electronic Data Gathering, Analysis and Retrieval
System may be obtained free of charge.
EXHIBIT A
MAJORITY WRITTEN CONSENT
OF
THE STOCKHOLDERS
OF
ALPHA HOSPITALITY CORPORATION
The undersigned, being the holders of a majority of the
outstanding voting stock of Alpha Hospitality Corporation, a
Delaware corporation (the "Corporation"), in accordance with
Section 228(a) of the General Corporation Law of the State of
Delaware, do hereby consent to and adopt the following
resolutions with the same force and effect as if presented to and
adopted at a meeting of the stockholders:
WHEREAS, the Board of Directors has
determined that it is advisable and in the
best interest of the Corporation to amend the
Certificate of Incorporation of the
Corporation in order to change the
Corporation's name from "Alpha Hospitality
Corporation" to "Empire Resorts, Inc."
NOW, THEREFORE, BE IT:
RESOLVED, that paragraph 1 of the
Certificate of Incorporation of the
Corporation be amended and restated as
follows:
"1. The name of the Corporation is
Empire Resorts, Inc.";
and it is further
RESOLVED, that the Certificate of
Amendment to the Certificate of Incorporation
of the Corporation, in the form annexed
hereto as Exhibit A, be, and it hereby is,
approved and adopted in all respects; and it
is further
RESOLVED, that the officers of the
Corporation be, and they hereby are,
authorized and directed to take any and all
such further action and to execute and
deliver any and all such further instruments
and documents and take any other steps that
they deem are reasonable and appropriate to
give effect to the foregoing resolutions and
to pay all resulting or related expenses,
including, without limitation, legal and
other professional fees and expenses and
filing fees, in such case as in their
judgment shall be necessary and desirable, in
order to fully carry out the intent and
accomplish the purposes of such resolutions.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned, being the holders of a
majority of the outstanding voting stock of the Corporation, have
executed this Consent as of this 11th day of April, 2003.
Bryanston Group, Inc.
By: ___________________________
Name: Robert A. Berman
Title: Attorney, in fact
______________________________
Robert A. Berman