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As filed with the Securities and Exchange Commission on June 14, 1999
Registration No. 333-______
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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
(Addresss of Principal Executive Offices Including Zip Code)
BIG CITY RADIO, INC. 1999 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)
-------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================== ============= ============================= ======================= ==============
title of Amount to Proposed Maximum Offering Proposed Maximum Amount of
Securities to be be Price Per Unit Aggregate Offering Registration
Registered Registered Price Fee
- -------------------------- ------------- ----------------------------- ----------------------- --------------
<S> <C> <C> <C> <C>
Class A Common Stock ,
Par value $.01 per share 400,000(1) $3.88 (2) $1,552,000 (2) $457.84
========================== ============= ============================= ======================= ==============
</TABLE>
(1) This Registration Statement covers 400,000 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.
1999 Incentive Stock Plan (the "Plan").
(2) The Proposed Maximum Offering Price for the options to purchase 400,000
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 7, 1999.
================================================================================
<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. 1999 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 will 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 1 of Form S-8. The
information regarding the Plan required in the Section 10(a) prospectus is
included in documents being maintained and delivered by the Company as required
by Rule 428 under the Securities Act. Such documents are available without
charge, upon written or oral request. Requests for such documents should be
directed to: Big City Radio, Inc., c/o 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 Registration Statement on Form S-4, as amended, dated
June 3, 1998 (File No. 333-52549)
4. The Company's annual report on Form 10-K, filed pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year ended
December 31, 1998.
5. The Company's quarterly report on Form 10-Q, filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 for the quarter ended
March 31, 1999.
6. The Company's Proxy Statement filed pursuant to Section 14(a) of the
Securities Exchange Act of 1934 for the Annual Meeting of Stockholders held on
May 20, 1999.
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.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Arnold L. Wadler, the Company's General Counsel, is also an Executive
Vice President and the Secretary of the Company and is also a director of the
Company. Mr. Wadler beneficially owns 17,000 shares of the Company's Class A
Common Stock.
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, employer 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 be 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 Section 145 of the DGCL.
Section 102(b)(7) of the DGCL provides that a corporation in its
original certificate of
<PAGE>
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 recission, 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.
Under Section 11.10 of the Indenture, the holders of the Notes have
agreed to waive all liability for any obligations incurred by the Company under
the Notes or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation, against any incorporator, director,
officer, employee, stockholder or controlling person, as such, of the Company,
and have agreed to the release of such persons from any such liability.
Under Section 6 of the Registration Rights Agreement, the holders of
the Notes have agreed to indemnify and hold harmless the officers, directors,
employees, representatives, agents and controlling persons of the Company and
the Subsidiary Guarantors from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof to which the Company or any
of the Subsidiary Guarantors may become subject under applicable laws based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any shelf registration for the Notes or any prospectus forming part
thereof or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with information provided by such holders for inclusion in such
self registration statement.
Under Section 9 of the Purchase Agreement for the Notes, the Initial
Purchasers for the Notes have agreed, severally and not jointly, to indemnify
and hold harmless the directors, officers and controlling persons of the Company
and the Subsidiary Guarantors against losses, claims, damages, liabilities and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the offering memorandum for the Notes in the Offering
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case only with reference to information relating to such
Initial Purchasers furnished in writing to the Company and the Subsidiary
Guarantors by such Initial Purchasers expressly for use in such offering
memorandum.
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
The undersigned registrant hereby undertakes to submit the Plan and any
amendments
<PAGE>
thereto to the Internal Revenue Service ("IRS") in a timely manner and will make
all changes required by the IRS in order to qualify the Plan.
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. 1999 Incentive Stock Plan (incorporated
by reference from the Company's Proxy Statement, dated April
14, 1999).
5.1 -- Opinion of Arnold L. Wadler, counsel to the Company, regarding
the legality of the Class A Common Stock being registered.
23.1 -- Consent of Arnold L. Wadler (included in Exhibit 5.1).
23.2 -- Consent of Holtz Rubenstein & Co., LLP.
23.3 -- Consent of KPMG 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 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
<PAGE>
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>
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, 1999.
BIG CITY RADIO, INC.
By: /s/ Michael Kakoyiannis
--------------------------------
Name: Michael Kakoyiannis
Title: President and Chief Executive Officer
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, 1999
- ------------------------- Directors
Stuart Subotnick
/s/ Michael Kakoyiannis President, Chief Executive June 11, 1999
- ------------------------- Officer and Director
Michael Kakoyiannis
/s/ Paul R. Thomson Vice President, Chief Financial June 11, 1999
- ------------------------- Officer and Treasurer (Principal
Paul R. Thomson Financial and Accounting Officer)
/s/ Anita Subotnick Director June 11, 1999
- -------------------------
Anita Subotnick
/s/ Silvia Kessel Executive Vice President and June 11, 1999
- ------------------------- Director
Silvia Kessel
/s/ Arnold L. Wadler Executive Vice President, June 11, 1999
- ------------------------- General Counsel, Secretary and
Arnold L. Wadler Director
/s/ Leonard White Director June 11, 1999
- -------------------------
Leonard White
/s/ Michael H. Boyer Director June 11, 1999
- -------------------------
Michael H. Boyer
<PAGE>
INDEX
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. 1999 Incentive Stock Plan (incorporated
by reference from the Company's Proxy Statement, dated April
14, 1999).
5.1 -- Opinion of Arnold L. Wadler, counsel to the Company, regarding
the legality of the Class A Common Stock being registered.
23.1 -- Consent of Arnold L. Wadler (included in Exhibit 5.1).
23.2 -- Consent of Holtz Rubenstein & Co., LLP.
23.3 -- Consent of KPMG LLP.
24.1 -- Power of Attorney (included on signature page).
<PAGE>
Exhibit 5.1
ARNOLD L. WADLER
Executive Vice President,
General Counsel & Secretary
Direct Dial (201) 531-8050
[LOGO] Fax (201) 531-2803
June 10, 1999
Big City Radio, Inc.
c/o Metromedia Company
One Meadowlands Plaza
East Rutherford, N.J. 07073-2137
Re: Big City Radio Inc. Registration Statement on Form S-8
------------------------------------------------------
Dear Sir/Madam:
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 400,000 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 1999 Incentive Stock Plan (the "Plan"), I am rendering this
opinion as to the legality of the Option Shares being registered under the
Registration Statement.
In connection with the furnishing of this opinion, I 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, I have made those other
examinations of law and fact as I have considered necessary in order to form a
basis for my opinion. In my examination of the documents, I have assumed,
without independent investigation, the genuineness of all signatures, the
authenticity of all documents submitted to me as photostatic, reproduced or
conformed copies, the authenticity of all the latter documents, and the capacity
of all individuals who have executed any of the documents. As to certain matters
of fact, I have relied on representations, statements or certificates of other
officers of the Company.
Based on the foregoing, I am of the opinion that the Option Shares have
been duly authorized for issuance and that the Option Shares, when issued and
delivered by the Company and paid for in accordance with the terms and
provisions of the Plan and the individual option agreements entered into
thereunder, will be validly issued, fully paid and nonassessable.
My opinion expressed above is limited to the General Corporation Law of
the State of Delaware and the rules, regulations and orders under it, which are
currently in effect. Please be advised that I am not admitted to practice in the
State of Delaware. I consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, I do not agree that I come
within the category of persons whose consent is required by the Act or the
Rules.
Very truly yours,
/s/ Arnold L. Wadler
Arnold L. Wadler
General Counsel
<PAGE>
Exhibit 23.2
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 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 9, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Big City Radio, Inc.
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
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KPMG LLP
Los Angeles, California
June 9, 1999
