1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
The Fairchild Corporation
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(Exact name of registrant as specified in its charter)
Delaware 34-0728587
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(State of incorporation) (IRS Employer Identification No.)
Suite 400, 45025 Aviation Drive, Dulles, VA 20166-7516
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(Address of Principal Executive Offices)
2001 NON-EMPLOYEE DIRECTORS STOCK-OPTION PLAN OF THE FAIRCHILD CORPORATION
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(Full title of the Plan)
DONALD E. MILLER, ESQ.
Executive Vice President, General Counsel and Secretary
The Fairchild Corporation
Suite 400, 45025 Aviation Drive, Dulles, VA 20166-7516
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(Name and address of agent for service)
(703) 478-5800
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(Telephone number, including area code of agent for service)
The filing date of this document is February 15, 2002
CALCULATION OF REGISTRATION FEE
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per Share aggregate offering price registration fee
Class A Common Stock, 86,942 $2.675 $232,570 $55.58
par value $0.10 per (a) (b) (c) (d)
share
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<FN>
(a) The total number of shares of The Fairchild Corporation (the "Company")
Class A Common Stock issuable under the 2001 Non-Employee Directors Stock-Option
Plan (the "2001 NED Plan") is 86,942.
(b) Represents the average of high and low prices of the Class A Common Stock,
as reported on the consolidated system of the NYSE on February 13, 2002 (a date
five days within the filing date of this Registration Statement).
(c) This amount is computed by multiplying 86,942 (a) times $2.675 (b).
(d) This amount is determined at the rate of $239 per $1 million (.0239%) of the aggregate offering price of $232,570
</FN>
CONTENTS OF REGISTRATION STATEMENT
This Registration Statement consists of:
(1) PART 1: Information Required in the Section 10(a) Prospectus.
(2) PART 2: Information Required in the Registration Statement.
PART 1: INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
This Registration Statement filed by The Fairchild Corporation, a Delaware
corporation (the "Company"), relates to the 2001 Non-Employee Directors Stock
Option Plan of The Fairchild Corporation (the "2001 NED Plan"). The total number
of shares of Class A Common Stock issuable under the 2001 NED Plan is 86,942.
The Plan was approved by Company's stockholders at the Annual Meeting held on
November 13, 2001.
Documents containing the information specified in Form S-8, Part I, Item 1, will
be sent or given to participants in the 2001 NED Plan as specified by Rule
428(b)(1). In accordance with the instructions to Form S-8, such documents are
not being filed with the Securities and Exchange Commission.
Item 2. Registrant Information and Employee Plan Annual Information.
Participants in the 2001 NED Plan are entitled to obtain information about the
Plan and about the Company, consistent with the requirements of Rule 428(b). The
Company shall advise participants of the 2001 NED Plan, in writing, of the
address for such information.
PART 2: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (c) below are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 2001.
(b) All other reports filed by the Company with the Securities and
Exchange Commission since June 30, 2001 pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
(c) The description of the Company's Class A Common Stock contained in a
Registration Statement on Form 8-A dated October 5, 1987, filed with
the Securities and Exchange Commission pursuant to Section 12 of the
Exchange Act.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (prior to the filing of
a post-effective amendment which indicates that all securities offered pursuant
to this Registration Statement have been sold or which deregisters all
securities then remaining unsold) shall be deemed incorporated by reference in
this Registration Statement and to be a part of this Registration Statement from
the date of filling of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Class A Common Stock covered by this Registration
Statement has been passed upon for the Company by Donald E. Miller, Esq. Mr.
Miller is the Company's Executive President, General Counsel, and Secretary.
Item 6. Indemnification of Directors and Officers.
The Company's By-Laws provide for indemnification, to the extent permitted by
Delaware General Corporation Law Section 145, of the Company's directors,
officers, employees or agents ("Representatives") against expenses reasonably
incurred by a Representative with respect to civil, criminal, administrative or
investigative actions, suits or proceedings related to their functions as
Company Representatives. As a condition to such indemnification, the
Representative must have acted in good faith and in a manner reasonably believed
to be in the best interests of the Company or not opposed to the best interests
of the Company. As a condition to such indemnification in criminal actions, the
Representative must have had no reasonable cause to believe his conduct was
unlawful.
With respect to causes of action against a Representative by the Company or by a
third party in the name of the Company (such as stockholder derivative suits)
(collectively, "Company Suits"), the Company's By-Laws provide that no
indemnification may be made for a Company Suit in which a Representative is
adjudged to be liable for negligence or misconduct in the performance of his
duties, unless the Delaware Court of Chancery or the Court in which the Company
Suit was brought determines that despite such adjudication and in view of all
the circumstances of the case, the Representative is fairly and reasonably
entitled to such indemnity.
The Company has purchased directors and officers liability insurance covering
certain liabilities incurred by the Company's officers and directors in
connection with the performance of their duties.
Item 7. Exemption for Registration Claimed:
Not applicable
Item 8. Exhibits
Exhibit 4 Instruments defining the rights of security holders:
(1) The Company's Restated Certificate of Incorporation is
incorporated herein by reference to Exhibit C of the
Company's Proxy Statement dated October 27, 1989
(2) The Company's Amended and Restated By-Laws, as amended
on November 21, 1996, are incorporated herein by
reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended December 29, 1996.
(3) Certificate of Amendment to the Company's Certificate of
Incorporation, dated November 16, 1990, changing name
from Banner Industries, Inc. to The Fairchild
Corporation, incorporate herein by reference to the
Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 2001.
(4) An amendment to the Company's By-Laws, dated as of
February 12, 1999, is incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999.
(5) An amendment to the Company's By-Laws, dated February
17, 2000, together with Charter for the Board's Audit
Committee, adopted on February 17, 2000, are
incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended April 2, 2000.
(6) Specimen of Class A Common Stock Certificate is
incorporated herein by reference to Exhibit 4(i)
included in the Company's Registration Statement No.
33-15359 on Form S-2.
(7) The 2001 Non-Employee Directors Stock-Option Plan of The
Fairchild Corporation, is incorporated by reference to
Appendix 2 of the Company's Proxy Statement dated
October 10, 2001.
Exhibit 5 Opinion re legality
(1) Opinion of Donald E. Miller, General Counsel.*
(* Filed herewith)
Exhibit 23 Consents of Experts and Counsel
(1) Consent of Arthur Andersen LLP, independent public
accountants*
(* Filed herewith)
(2) Consent of Donald E. Miller (contained in the opinion of
counsel filed as Exhibit 5(1) hereto).
Exhibit 24 Power of Attorney
(1) Power of Attorney by members of the Company's Board of
Directors regarding amendments to this Registration
Statement, contained as part of the signatures to this
Registration Statement.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales of
the securities registered hereunder are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933 (the "Securities Act").
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this Registration Statement (or the most
post-effective amendment thereof) which,
individually or in the aggregate, represent
a fundamental change in the information set
forth in the Registration Statement.
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
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.
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefits plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
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 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions (including the indemnification provisions described in
Item 6 of this Registration Statement), 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 Securities 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 Securities Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to 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 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 Dulles, Commonwealth of Virginia, on February 15,
2002.
The Fairchild Corporation
By: /s/
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John L. Flynn
Senior Vice President and Chief Financial Officer
Required Signatures: Pursuant to the requirements of the Securities Act of 1993,
this Registration Statement has been signed by the following persons in the
capacities indicated on February 15, 2002. Signature by Directors: Directors
sign this Registration Statement both in their capacity as directors of the
Company and as administrators of the 2001 NED Plan.
Power of Attorney: Each person whose signature appears below constitutes and
appoints John L. Flynn and Donald E. Miller, or either 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 to this Registration Statement and to
file the same, with all exhibits thereof, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and 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 attorney-in-fact, agent,
or their substitutes may lawfully do or cause to be done by virtue hereof.
Signature Title
/s/ Chairman of the Board and
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Jeffrey J. Steiner Chief Executive Officer
(Principal Executive Officer)
/s/ Senior Vice President and Chief Financial Officer
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John L. Flynn (Principal Financial Officer)
/s/ Assistant Vice President and Controller
Michael L. McDonald
/s/ Director
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Melville R. Barlow
/s/ Director
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Mortimer M. Caplin
/s/ Director
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Phillip David
/s/ Director
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Robert E. Edwards
/s/ Director
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Steven L. Gerard
/s/ Director
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Harold J. Harris
/s/ Director
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Daniel Lebard
/s/ Director
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Herbert S. Richey
/s/ Director
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Eric I. Steiner