Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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THE FAIRCHILD CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 34-0728587
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Suite 400, 45025 Aviation Drive
Dulles, Virginia 20166-7516
(Address of Principal Executive Offices)
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Savings Plan for Employees of The Fairchild Corporation
(Full title of the Plan)
Donald E. Miller
Executive Vice President, General Counsel and Secretary
The Fairchild Corporation
Suite 400, 45025 Aviation Drive, Dulles, Virginia 20166-7516
(703) 478-5800
(Name and address and telephone number of agent for service)
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The filing date of this document is August 6, 2002
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate offering registration
to be registered registered per share price (2) fee (2)
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Class A 500,000 $4.61 2,305,000 $212.06
Common Stock,
$.10 par value
<FN>
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(1) The shares of common stock being registered consist of shares to be acquired
by the Trustee (as defined in the Plan) through open market purchases, private
transactions or directly from The Fairchild Corporation (the "Company") or its
affiliates, pursuant to the Plan for the account of the Plan's participants.
(2) The prices as stated above are estimated solely for the purpose of
determining the registration fee and are computed, pursuant to Rule 457 (h)
under the Securities Act of 1933 (the "Securities Act"), upon the basis of the
average of the high and low prices paid for a share of the registrant's common
stock on August 5, 2002, as reported on the New York Stock Exchange Composite
Transactions Tape.
</FN>
In addition, pursuant to Rule 416(c) under the Act, this Registration
Statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
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Item 2. Registrant Information and Employee Plan Annual Information*
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* The documents containing information specified by Part I of this
Registration Statement will be delivered to participants in the Plan as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Act. These documents are not
required to be filed with the SEC but constitute (along with the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents of the Company and the Plan filed or to be
filed with the SEC 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 or the Plan pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") since the end of the fiscal year ended
June 30, 2001, and by the Plan pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
ended June 30, 2001.
(c) The description of the Company's Common Stock contained in a
registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company or
the Plan 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
shares of securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
Item 6. Indemnification of Directors and Officers.
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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 from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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The "Exhibit Index" (attached hereto) is hereby incorporated by
reference.
This Registration Statement does not include the consent of our former
auditors, Arthur Andersen LLP. Please see Risk Factors with respect to such
matter, set forth in Exhibit 23.1, filed herewith.
The undersigned registrant hereby undertakes that the Plan and any
amendment thereto has been or will be submitted to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the plan.
Item 9. Undertakings.
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The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in this 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 (i)
and (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 undersigned registrant 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 therein, 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 that remain unsold at the
termination of the offering.
(4) 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 benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this Registration
Statement 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.
(5) That, insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling, persons of the Company pursuant to provisions set forth in Item 3
above, or otherwise, the Company has been advised that in the opinion of the SEC
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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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
FOR THE REGISTRANT
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, State of Virginia, effective as of August 6,
2002.
THE FAIRCHILD CORPORATION
By /s/ Donald E. Miller
Donald E. Miller
Executive Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Donald E. Miller and John L. Flynn, 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 amendments to this Registration Statement,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the SEC, 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 substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below, effective as of August 6, 2002.
Signature Title
/s/ Jeffrey J. Steiner Chairman of the Board and
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Jeffrey J. Steiner Chief Executive Officer
(Principal Executive Officer)
/s/ John L. Flynn Senior Vice President and Chief Financial Officer
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John L. Flynn (Principal Financial Officer)
/s/ Michael L. McDonald Vice President and Controller
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Michael L. McDonald
/s/ Melville R. Barlow Director
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Melville R. Barlow
/s/ Mortimer M. Caplin Director
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Mortimer M. Caplin
/s/ Robert E. Edwards Director
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Robert E. Edwards
/s/ Steven L. Gerard Director
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Steven L. Gerard
/s/ Harold J. Harris Director
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Harold J. Harris
/s/ Daniel Lebard Director
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Daniel Lebard
/s/ Herbert S. Richey Director
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Herbert S. Richey
/s/ Eric I. Steiner Director
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Eric I. Steiner
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Plan
has duly caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized in the City of Dulles, State of Virginia,
effective as of August 6, 2002.
SAVINGS PLAN FOR EMPLOYEES OF
THE FAIRCHILD CORPORATION
By: /s/ John L. Flynn
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John L. Flynn
Authorized Signatory
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation is incorporated herein by
reference to Exhibit C of the Company's Proxy Statement dated
October 27, 1989. [(File No. 1-6560)]
4.2 Amended and Restated Bylaws, 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. [(File No.1-6560)]
4.3 Certificate of Amendment to the Company's Certificate of Incorporation,
dated November 16, 1990, changing name from Banner Industries, Inc. to
The Fairchild Corporation, is incorporated herein by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 2001. [(File No. 1-6560)]
4.4 An amendment to the Company's By-Laws, dated as of February 12, 1999,
is incorporated herein by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended June 30, 1999 [(File No. 1-6560)]
4.5 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 herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended April 2,
2000. [(File No. 1-6560)]
4.6 Specimen of Class A Common Stock Certificate (Filed as Exhibit 4(i) to
the Company's Registration Statement on Form S-2 and incorporated
herein by reference). (File No. 33-15359)
4.7 * Savings Plan for Employees of The Fairchild Corporation, amended and
restated as of February 28, 2002 (Filed herewith)
4.8 * Savings Plan for Employees of The Fairchild Corporation Trust
Agreement, dated February 1, 2000, between The Fairchild Corporation
and Putnam Fiduciary Trust Company. (Filed herewith)
5.1* Opinion of Donald E. Miller, General Counsel (Filed herewith)
23.1 * Risk Factors Relating To Our Former Independent Auditor Notice
Regarding Consent Of Arthur Andersen LLP
23.2 Consent of Donald E. Miller (contained in the opinion of counsel filed
as Exhibit 5.1 hereto).
24.1 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.