As filed with the Securities and Exchange Commission on February 11, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BIG CITY RADIO, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3790661
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
11 Skyline Drive
Hawthorne, NY 10532
(914) 592-1071
(Address of Principal Executive Offices)(Zip Code)
BIG CITY RADIO, INC. 1997 INCENTIVE STOCK PLAN
And
MICHAEL KAKOYIANNIS EMPLOYMENT AGREEMENT
(Full title of the plan)
Arnold L. Wadler
Executive Vice President, General Counsel and Secretary
Big City Radio, Inc.
c/o Metromedia Company
One Meadowlands Plaza
East Rutherford, NJ 07073-2137
(Name and address of agent for service)
(201) 531-8000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Securities to be Registered Registered Price Per Unit Aggregate Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 981,265(1) $7.55(2) $7,408,646(2) $2,185.55
par value $.01 per share
====================================================================================================================================
</TABLE>
(1) This Registration Statement covers (i) 700,000 shares of Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), of Big
City Radio, Inc. (the "Company") which may be purchased pursuant to the
exercise of options granted or available for grant under the Big City
Radio, Inc. 1997 Incentive Stock Plan (the "Plan") and (ii) 281,265
shares of Class A Common Stock that may be issued to Michael
Kakoyiannis, the President and Chief Executive Officer of the Company,
pursuant to his employment agreement with the Company (the "Employment
Agreement").
(2) Estimated solely for the purpose of computing the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act of
1933, as amended (the "Securities Act"). Under the Plan, the Company
granted options to purchase 150,000 shares of Class A Common Stock at
an exercise price of $6.00 per share and options to purchase 422,500
shares of Class A Common Stock at an exercise price of $7.00 per share.
The Proposed Maximum Offering Price for the remaining options to
purchase 127,500 shares of Class A Common Stock available for grant
under the Plan and for the 281,265 shares of Class A Common Stock that
may be issued under the Employment Agreement was calculated upon the
basis of the average of the high and low prices of the Class A Common
Stock as reported on the American Stock Exchange on February 4, 1998.
<PAGE>
EXPLANATORY NOTE
The Section 10(a) prospectuses being delivered by Big City
Radio, Inc. (the "Company") to participants in the Big City Radio, Inc. 1997
Stock Incentive Plan (the "Plan") and to Michael Kakoyiannis pursuant to his
employment agreement with the Company (the "Employment Agreement"), as required
by Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
have been prepared in accordance with the requirements of Form S-8 and relate to
shares of Class A Common Stock, par value $.01 per share, of the Company (the
"Class A Common Stock") which have been reserved for issuance pursuant to the
Plan and the Employment Agreement. The Company shall provide to participants in
the Plan and the Mr. Kakoyiannis a written statement advising them of the
availability without charge, upon written or oral request, of documents
incorporated by reference herein, as is required by Item 2 of Part I of Form
S-8. The information regarding the Plan and the Employment Agreement required in
the Section 10(a) prospectuses is included in documents being maintained and
delivered by the Company as required by Rule 428 under the Securities Act and
are available without charge, upon written or oral request. Requests for such
documents should be directed to: Metromedia Company, One Meadowlands Plaza, East
Rutherford, NJ 07073-2137, Attention: Arnold L. Wadler, Executive Vice
President, General Counsel and Secretary.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
1. The Company's Prospectus, dated December 18, 1997, included
in the Company's Registration Statement on Form S-1, filed with the Commission
on September 26, 1997, as amended (File No. 333- 36449).
2. The description of the Company's Class A Common Stock
contained in the Company's Registration Statement on Form 8-A, dated December
16, 1997, including any amendment or report filed for the purpose of updating
such description (File No. 001-13715).
All other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this registration statement and prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be part hereof from the date of filing of such documents.
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2
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of
Delaware (the "DGCL") provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in any of the capacities set forth above, against
expenses actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted under similar standards, except
that no indemnification may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the court in which such action or suit was
brought shall determine that, despite the adjudication of liability, such person
is fairly and reasonably entitled to be indemnified for such expenses which the
court shall deem proper.
Section 145 of the DGCL further provides that to the extent a
director or officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue, or matter therein, he shall be indemnified against
expenses actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 of the DGCL shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him or incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145 of the DGCL.
Section 102(b)(7) of the DGCL provides that a corporation in
its original certificate of incorporation or an amendment thereto validly
approved by
<PAGE>
3
stockholders may eliminate or limit personal liability of the members of its
board of directors or governing body for breach of a director's fiduciary duty.
However, no such provision may eliminate or limit the liability of a director
for breaching his duty of loyalty, failing to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which was illegal, or obtaining an improper
personal benefit. A provision of this type has no effect on the availability of
equitable remedies, such as injunction or rescission, for breach of fiduciary
duty. The Company's Amended and Restated Certificate of Incorporation contains
such a provision.
The Company's Amended and restated Certificate of
Incorporation further provides that the Company shall indemnify its officers and
directors and, to the extent authorized by the Board of Directors, employees and
agents of the Company, to the fullest extent permitted by and in the manner
permissible under the laws of the State of Delaware.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit
Number: Description:
4.1 -- Amended and Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference from the
Company's Registration Statement on Form S-1 (Registration No.
333- 36449)).
4.2 -- Amended and Restated Bylaws of the Company (incorporated by
reference from the Company's Registration Statement on Form
S-1 (Registration No. 333- 36449)).
4.3 -- Big City Radio, Inc. 1997 Incentive Stock Plan (incorporated
by reference from the Company's Registration Statement on Form
S-1 (Registration No. 333- 36449)).
4.4 -- Employment Agreement, dated December 24, 1997, between the
Company and Michael Kakoyiannis (incorporated by reference
from the Company's Registration Statement on Form S-1
(Registration No. 333- 36449)).
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel
to the Company, regarding the legality of the Class A Common
Stock being registered.
23.1 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in Exhibit 5.1).
23.2 -- Consent of KPMG Peat Marwick LLP.
<PAGE>
4
23.3 -- Consent of Holtz Rubenstein & Co., LLP.
24.1 -- Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes: (i) 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 this
registration statement or any material change to such information in this
registration statement; (ii) that, for the purpose of determining any liability
under the Securities Act of 1933, as amended, 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; and (iii) to remove from
regis tration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934, as amended, that is
incorporated by reference in this registration statement 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended, may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions,
the registrant's Amended and Restated Certificate of Incorporation or Amended
and Restated Bylaws, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant 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, the registrant 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 Act and
will be governed by the final adjudication of such issue.
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5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 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 February 11,
1998.
BIG CITY RADIO, INC.
By: /s/ Michael Kakoyiannis
--------------------------------------------
Name: Michael Kakoyiannis
Title: President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below hereby constitutes and appoints Michael Kakoyiannis,
Silvia Kessel, Paul R. Thomson and Arnold L. Wadler and each of them, his or her
true and lawful agent, proxy and attorney-in-fact, each acting alone with full
power of substitution and resubstitution, for him or her and in his or her name,
place and sterad, in any and all capacities, to (i) act on, sign and file with
the Securities and Exchange Commission any and all amendments (including
post-effective amendments) to this registration statement together with all
schedules and exhibits thereto, (ii) act on, sign and file such certificates,
instruments, agreements and other documents as may be necessary or appropriate
in connection therewith, and (iii) take any and all actions which may be
necessary or appropriate in connection therewith, granting unto such agents,
proxies and attorneys-in-fact, and each of them, full power and authority to do
and perform each and every act and thing necessary or appropriate to be done, as
fully for all intents and purposes as he or she might or could do in person,
hereby approving, ratifying and confirming all that such agents,, proxies and
attorneys-in-fact, any of them or any of his or her or their substitutes may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated:
SIGNATURES TITLE OR CAPACITIES DATE
/s/Stuart Subotnick Chairman of the Board of February 11, 1998
- --------------------------- Directors
Stuart Subotnick
/s/Michael Kakoyiannis President, Chief Executive February 11, 1998
- --------------------------- Officer and Director
Michael Kakoyiannis
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6
SIGNATURES TITLE OR CAPACITIES DATE
/s/Paul R. Thomson Vice President, Chief Financial February 11, 1998
- --------------------------- Officer and Treasurer
Paul R. Thomson (Principal Financial and
Accounting Officer)
/s/Anita Subotnick Director February 11, 1998
- ---------------------------
Anita Subotnick
/s/Silvia Kessel Executive Vice President and February 11, 1998
- --------------------------- Director
Silvia Kessel
/s/Arnold L. Wadler Executive Vice President, February 11, 1998
- --------------------------- General Counsel, Secretary and
Arnold L. Wadler Director
/s/Leonard White Director February 11, 1998
- ---------------------------
Leonard White
<PAGE>
7
INDEX TO EXHIBITS
Exhibits
- --------
4.1 -- Amended and Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference from the
Company's Registration Statement on Form S-1 (Registration No.
333-36449)).
4.2 -- Amended and Restated Bylaws of the Company (incorporated by
reference from the Company's Registration Statement on Form
S-1 (Registration No. 333-36449)).
4.3 -- Big City Radio, Inc. 1997 Incentive Stock Plan (incorporated
by reference from the Company's Registration Statement on Form
S-1 (Registration No. 333-36449)).
4.4 -- Employment Agreement, dated December 24, 1997, between the
Company and Michael Kakoyiannis (incorporated by reference
from the Company's Registration Statement on Form S-1
(Registration No. 333-36449)).
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel
to the Company, regarding the legality of the Class A Common
Stock being registered.
23.1 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in Exhibit 5.1).
23.2 -- Consent of KPMG Peat Marwick LLP.
23.3 -- Consent of Holtz Rubenstein & Co., LLP.
24.1 -- Power of Attorney (included on signature page).
Exhibit 5.1
February 11, 1998
Big City Radio, Inc.
c/o Metromedia Company
One Meadowlands Plaza
East Rutherford, N.J. 07073-2137
Big City Radio, Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by Big City Radio, Inc., a Delaware corporation
(the "Company"), with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
promulgated thereunder (the "Rules"), which relates to the 700,000 shares (the
"Option Shares") of Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), of the Company which have been reserved for issuance pursuant to
the Company's 1997
<PAGE>
2
Incentive Stock Plan (the "Plan") and the 281,265 shares (the "Executive
Shares") of Class A Common Stock to be issued to Michael Kakoyiannis pursuant to
his Employment Agreement, dated as of December 24, 1997, with the Company (the
"Executive Employment Agreement"), we have been requested by the Company to
render our opinion as to the legality of the Option Shares and the Executive
Shares being registered under the Registration Statement.
In connection with the furnishing of this opinion, we have
examined (i) the Registration Statement, (ii) the Executive Employment
Agreement, (iii) the Plan, (iv) the Amended and Restated Certificate of
Incorporation of the Company, and the Amended and Restated Bylaws of the
Company, each as amended to date, and (v) records of certain of the Company's
corporate proceedings. In addition, we have made such other examinations of law
and fact as we have considered necessary in order to form a basis for the
opinion hereinafter expressed. In our examination of the documents, we have
assumed, without independent investigation, the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as
photostatic, reproduced or conformed copies, the authenticity of all such latter
documents, the enforceability of all documents against each party thereto and
the legal capacity of all individuals who have executed any of the documents. As
to certain matters of fact, we have relied on representations, statements or
certificates of officers of the Company.
<PAGE>
3
Based on the foregoing, we are of the opinion that (i) the
Option Shares have been duly authorized for issuance and that such Option
Shares, when issued and delivered by the Company and paid for in accordance with
the terms and provisions of the Plan, will be validly issued, fully paid and
nonassessable and (ii) the Executive Shares have been duly authorized for
issuance and that such Executive Shares, when issued and delivered by the
Company and paid for in accordance with the terms and provisions of the
Executive Employment Agreement, will be validly issued, fully paid and
nonassessable.
Our opinion expressed above is limited to the General
Corporation Law of the State of Delaware. Our opinion is also rendered only with
respect to the laws and the rules, regulations and orders thereunder, which are
currently in effect. Please be advised that no member of this firm is admitted
to practice in the State of Delaware. We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement. In giving this consent, we
do not hereby agree that we come within the category of persons whose consent is
required by the Act or the Rules.
Very truly yours,
/s/ Paul, Weiss, Rifkind, Wharton & Garrison
--------------------------------------------
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Big City Radio, Inc.:
We consent to the use of our reports incorporated herein by reference in the
Registration Statement filed on Form S-8 and to the reference to our firm under
the headings "Selected Financial and Operating Data" and "Experts" in the
Company's Prospectus dated December 18, 1997, included in the Company's
Registration Statement on Form S-1 (File No. 333-36449), which has been
incorporated herein by reference.
New York, New York KPMG Peat Marwick LLP
February 10, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Big City Radio, Inc. on Form S-8 of our report dated September 19, 1997,
appearing in the Registration Statement on Form S-1, as amended of Big City
Radio, Inc. and to the references to our firm under the captions "Selected
Financial and Operating Data" and "Experts".
/s/ Holtz Rubenstein & Co., LLP
------------------------------------
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
February 9, 1998
