As filed with the Securities and Exchange Commission on June 15, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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. 1998 INCENTIVE STOCK PLAN
(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, par
value $.01 per share 300,000(1) $8.31 (2) $2,493,750(2) $735.66
============================== =================== =============================== ========================== ===================
</TABLE>
(1) This Registration Statement covers 300,000 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 available for grant under the Big City Radio, Inc.
1998 Incentive Stock Plan (the "Plan").
(2) The Proposed Maximum Offering Price for the options to purchase 300,000
shares of Class A Common Stock available for grant under the Plan 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
June 8, 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. 1998 Incentive Stock
Plan (the "Plan"), 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. The Company shall provide to
participants in the Plan 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 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.
3. The Company's annual report on Form 10-K, as amended by the
Company's Amendment No. 1 to the Annual Report on Form 10-K/A, filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year
ended December 31, 1997.
4. The Company's quarterly report on Form 10-Q filed pursuant to Rule
13a-13 or Rule 15d-13 of the Securities Exchange Act of 1934 for the quarter
ended March 31, 1998.
5. The Company's Registration Statement on Form S-4, as amended, dated
June 3, 1998 (File No. 333-52549).
<PAGE>
2
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.
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
<PAGE>
3
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 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.
The Company's Directors and Officers Liability Insurance Policy is
designed to reimburse the Company for payments made by it pursuant to the
foregoing indemnification. Such policy has aggregate coverage of $10.0 million.
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-4 (Registration No. 333-52549)).
4.2 -- Amended and Restated Bylaws of the Company (incorporated by
reference from the Company's Registration Statement on Form S-4
(Registration No. 333-52549)).
4.3 -- Big City Radio, Inc. 1998 Incentive Stock Plan (incorporated by
reference from the Company's Proxy Statement, dated April 9, 1998).
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Company, regarding the legality of the Class A Common Stock being
registered.
<PAGE>
4
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).
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 registration 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.
<PAGE>
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 June 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 June 11, 1998
- -------------------- Directors
Stuart Subotnick
/s/ Michael Kakoyiannis President, Chief Executive June 11, 1998
- ----------------------- Officer and Director
Michael Kakoyiannis
<PAGE>
6
Signatures Title or Capacities Date
---------- ------------------- ----
/s/ Paul R. Thomson Vice President, Chief Financial June 11, 1998
- ------------------- Officer and Treasurer
Paul R. Thomson (Principal Financial and
Accounting Officer)
/s/ Anita Subotnick Director June 11, 1998
- -------------------
Anita Subotnick
/s/ Silvia Kessel Executive Vice President and June 11, 1998
- ---------------- Director
Silvia Kessel
/s/ Arnold L. Wadler Executive Vice President, June 11, 1998
- ------------------- General Counsel, Secretary and
Arnold L. Wadler Director
/s/ Leonard White Director June 11, 1998
- -----------------
Leonard White
/s/ Michael H. Boyer Director June 11, 1998
- --------------------
Michael H. Boyer
<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-4 (Registration No. 333-52549)).
4.2 -- Amended and Restated Bylaws of the Company (incorporated by
reference from the Company's Registration Statement on Form S-4
(Registration No. 333-52549)).
4.3 -- Big City Radio, Inc. 1998 Incentive Stock Plan (incorporated by
reference from the Company's Proxy Statement, dated April 9, 1998).
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
June 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 under the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
promulgated under the Act (the "Rules"), which relates to the 300,000 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
under the Company's 1998 Incentive
<PAGE>
2
Stock Plan (the "Plan"), we have been requested by the Company to render our
opinion as to the legality of the Option Shares being registered under the
Registration Statement.
In connection with the furnishing of this opinion, we have examined (i)
the Registration Statement, (ii) the Plan, (iii) 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 (iv) records of certain of the
Company's corporate proceedings. In addition, we have made those other
examinations of law and fact as we have considered necessary in order to form a
basis for our opinion. 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, the conformity to
original documents of all documents submitted to us as photostatic, reproduced
or conformed copies, the authenticity of all the latter documents, the
enforceability of all documents against each party to them 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.
Based on the above, we are of the opinion that the Option Shares have
been duly authorized for issuance and that the Option Shares, when issued and
<PAGE>
3
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.
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 under it, which are currently in
effect. Please be advised that no member of this firm is admitted to practice in
the State of Delaware. We consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving this consent, we do not 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
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Registration Statement of Big City
Radio, Inc. on Form S-8 of our report dated September 19, 1997, on our audits of
the financial statements of Big City Radio, Inc.
/s/ Holtz Rubenstein & Co., LLP
-------------------------------
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
June 10, 1998
Independent Auditor's Consent
The Board of Directors
Big City Radio, Inc.:
We consent to the use of our reports incorporated herein by reference.
KPMG Peat Marwick LLP
Los Angeles, California
June 12, 1998
