-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LKqKZP6FiTxDcQ02pRp3Fl4HrHffg3/U7y9f1USBa84l8sv7jsjQfPPWJZoCaih5 MxZnBfTJpBURMsq4/m7mNA== 0000009779-99-000002.txt : 19990112 0000009779-99-000002.hdr.sgml : 19990112 ACCESSION NUMBER: 0000009779-99-000002 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19990111 EFFECTIVENESS DATE: 19990111 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FAIRCHILD CORP CENTRAL INDEX KEY: 0000009779 STANDARD INDUSTRIAL CLASSIFICATION: BOLTS, NUTS, SCREWS, RIVETS & WASHERS [3452] IRS NUMBER: 340728587 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-70387 FILM NUMBER: 99504090 BUSINESS ADDRESS: STREET 1: 45025 AVIATION DR STREET 2: STE 400 CITY: DULLES STATE: VA ZIP: 20166 BUSINESS PHONE: 7034785800 MAIL ADDRESS: STREET 1: 45025 AVIATION DRIVE STREET 2: SUITE 400 CITY: DULLES STATE: VA ZIP: 20166 FORMER COMPANY: FORMER CONFORMED NAME: BANNER INDUSTRIES INC /DE/ DATE OF NAME CHANGE: 19901118 S-8 1 16 SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 _______________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 The Fairchild Corporation _____________________________ (Exact name of registrant as specified in its charter) DELAWARE 34-0728587 _________________________________________________________________ (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) Suite 400, 45025 Aviation Drive, Dulles, VA 20166-7516 ____________________________________________________________ (Address of Principal Executive Offices) 1986 NON-QUALIFIED & INCENTIVE STOCK-OPTION PLAN OF THE FAIRCHILD CORPORATION ____________________________________________________________ (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 ____________________________________________________________ (Name and address of agent for service) 45025 Aviation Drive, Suite 400 Dulles, VA 20166-7516 ____________________________________________________________ (Telephone number, including area code of agent for service) The filing date of this document is January 11 1999 CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------- Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registration Registered Registered Per Share Price Fee Class A Common Stock, 600,000 par value shares $15.375 $9,225,000 $2,721.38 $0.10 (a) (b) (c) (d) - ------------------- (a) The total number of shares of The Fairchild Corporation (the "Company") Class A Common Stock issuable under the 1986 Non- Qualified & Incentive Stock-Option Plan of The Fairchild Corporation ("the 1986 Plan") is 5,141,000. Registration Statements were previously filed for 4,541,000 shares of Class A Common Stock issuable under the 1986 Plan. This Registration Statement is for 600,000 shares of Class A Common Stock, which were approved for issuance under the 1986 Plan at the Company's 1998 Annual Meeting (held on November 19, 1998). This Registration Statement also relates to such indeterminate number of shares of additional Class A Common Stock as may be issuable as a result of stock splits, stock dividends or similar transactions. (b) Represents the average of the high and low prices for The Fairchild Corporation Class A Common Stock, as reported on the consolidated system of the New York Stock Exchange on January 7, 1999 (a date five days within the filing date of this Registration Statement). (c) This amount is computed by multiplying 600,000 (a) times $15.375 (b). (d) This amount is determined at the rate of $295 per $1 million (.0295%) of the aggregate offering price of $9,600,000 (c). 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. (3) PART 3: Exhibits 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 1986 Non- Qualified & Incentive Stock-Option Plan of The Fairchild Corporation (the "1986 Plan"). The total number of shares of Class A Common Stock issuable under the 1986 Plan is 5,141,000. The 1986 Plan was originally adopted as of April 9, 1986, and amended on September 11, 1997, authorizing (in the aggregate) the issuance of up to 4,541,000 shares of Class A Common Stock. Registration Statements for such shares were previously filed by the Company. The 1986 Plan was amended by the Board on May 7, 1998 (approved by the Shareholders on November 19, 1998), to increase the number of shares issuable under the 1986 Plan by 600,000 shares of Class A Common Stock. This Registration Statement relates to such 600,000 shares of Class A Common Stock. Document(s) containing the information specified in Form S-8, Part I, Item 1, will be sent or given to participants in the 1986 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 1986 Plan are entitled to obtain information about the 1986 Plan and about the Company, consistent with the requirements of Rule 428(b). The Company shall advise participants of the 1986 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 following documents filed with the Securities and Exchange Commission are incorporated herein by reference: a. The Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1998. b-1 The Company's Quarterly Reports on Form 10-Q for the quarter ended September 27, 1998. b-2 The Company's Current Report on Form 8-K (announcing merger transaction with Kaynar Technologies, Inc.) filed on December 30, 1998. b-3. All other reports filed by the Company with the Securities and Exchange Commission since June 30, 1998 pursuant to Section 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 Foley, Hoag & Eliot. 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 shareholder 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. 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 are incorporated herein by reference to Exhibit 3(b) of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996. (3) 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. (4) 1986 Non-Qualified and Incentive Stock Option Plan (Amended and Restated as of May 23, 1996), incorporated by reference to Exhibit B of Registrant's Proxy Statement dated October 9, 19986. (5) Amendment dated as of September 11, 1997, to the 1986 Non-Qualified and Incentive Stock Option Plan, incorporated by reference to Exhibit A of Registrant's Proxy Statement dated October 10, 1997. 5 Opinion re legality (1) Opinion of Foley, Hoag & Eliot.* (* Filed Herewith) 23 Consents of Experts and Counsel (1) Consent of Arthur Andersen & Co., independent public accountants* (* Filed Herewith) (2) Consent of Foley, Hoag & Eliot(contained in the opinion of counsel filed as Exhibit 5(1) hereto). 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 January 11, 1998. The Fairchild Corporation By: ________/s/_______________ Colin M. Cohen, Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Colin M. Cohen and Donald E. Miller, or either of them, his true and lawful attorney-in- fact and agent, with full power of substitution and resubstituion, 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. 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 January 11, 1998. Signature Title _______/s/___________ Chairman of the Board and Jeffrey J. Steiner Chief Executive Officer (Principal Executive Officer) _________/s/___________ Director Colin M. Cohen Senior Vice President, Chief Financial Officer and Controller (Principal Financial Officer) ________/s/__________ Director Michael T. Alcox ____/no signature/ _____ Director Melville R. Barlow ____/no signature/ _____ Director Mortimer M. Caplin ________/s/__________ Director Phillip David ________/s/__________ Director Robert E. Edwards ________/s/__________ Director Harold J. Harris ____/no signature/ _____ Director Daniel Lebard ________/s/__________ Director Jacques S. Moskovic ________/s/__________ Director Herbert S. Richey ________/s/__________ Director Moshe Sanbar ____/no signature/ _____ Director Robert A. Sharpe, II ________/s/__________ Director Eric I. Steiner PART III: EXHIBITS EXHIBIT INDEX Exhibit No. Page 4(1) The Company's Restated Certificate of Incorporation(and amendments thereto) Footnote 1 4(2) The Company's Amended and Restated By-Laws Footnote 2 4(3) Specimen of Definitive Class A Common Stock Certificate Footnote 3 4(4) 1986 Non-Qualified and Incentive Stock Option Plan (Amended and Restated as of February 9, 1998) Footnote 4 4(5) Amendment dated as of May 7, 1998 to the 1986 Non-Qualified and Incentive Stock Option Plan Footnote 5 5(1) Opinion of Foley, Hoag & Eliot. 14 23(1) Consent of Arthur Andersen & Co. 16 23(2) Consent Foley, Hoag & Eliot Footnote 6 24(1) Power of Attorney Footnote 7 - ---------------------- Footnotes 1. Incorporated by reference to Exhibit C of the Company's Proxy Statement dated October 27, 1989. 2. Incorporated by reference to Exhibit 3(b) of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1996. 3. Incorporated by reference to Exhibit 4(i) included in the Company's Registration Statement No. 33-15359 on Form S-2. 4. Incorporated by reference to Exhibit B of Registrant's Proxy Statement dated October 9, 1998. 5. Incorporated by reference to Exhibit A of Registrant's Proxy Statement dated October 9, 1998. 6. Included in Exhibit (5)1. 7. Contained as part of the signatures to this Registration Statement. Exhibit 5(1) Opinion of Foley, Hoag & Eliot LLP January 11, 1999 The Fairchild Corporation 45025 Aviation Drive, Suite 400 Dulles, VA 20166-7516 Re: The Fairchild Corporation Ladies and Gentlemen: We are familiar with the Registration Statement on Form S-8 (the "S-8 Registration Statement") filed today with the Securities and Exchange Commission by The Fairchild Corporation, a Delaware corporation (the "Company"), relating to 600,000 shares of the Company's Class A Common Stock, $0.10 par value (the "Class A Common Stock") issuable pursuant to the 1986 Non-Qualified & Incentive Stock Option Plan, amended and restated as of February 9, 1998 (the "Plan"). Such 600,000 shares of Class A Common Stock were made available for issuance under the Plan pursuant to an Amendment to the Plan dated as of May 7, 1998 (the "1998 Amendment"), which increased the number of shares of Class A Common Stock issuable under the Plan from 4,541,000 shares to 5,141,000 shares. We are familiar with the Company's Restated Certificate of Incorporation and its Amended and Restated By-Laws. We are also familiar with the records of all meetings and consents of its Board of Directors and of its stockholders relating to the approval of the 1998 Amendment and the authorization for the filing of the S-8 Registration Statement. We have examined and relied upon a Certificate of the Secretary of the Company of even date herewith and such other records and documents as we deemed necessary or appropriate for purposes of rendering this opinion. Based upon the foregoing, we are of the opinion that (a) the Company has corporate power adequate for the issuance in the manner set forth in the S-8 Registration Statement of the 600,000 shares of its Class A Common Stock to be issued pursuant to the Plan and offered pursuant to the S-8 Registration Statement, (b) the Company has taken all necessary corporate action required to authorize the issuance under the Plan of such 600,000 shares and (c) upon the issuance of such shares pursuant to the Plan, such shares will be validly and legally issued, fully paid and non- assessable. We hereby consent to the filing of this opinion as part of the S- 8 Registration Statement. Very truly yours, FOLEY, HOAG & ELIOT LLP 1747 Pennsylvania Avenue, N.W., Suite 1200 Washington, DC 20006 Exhibit 23(1) Consent of Independent Public Accountants As independent public accountants, we hereby consent to the use of our reports included in this registration statement of our report dated September 22, 1998 included in The Fairchild Corporation's Form 10K for the year ended June 30, 1998, and to all references to our Firm included in this Form S-8 registration statement to register 600,000 Class A Shares of Common Stock Issuable Under the 1986 Non-Qualified & Incentive Stock Option Plan of The Fairchild Corporation. ARTHUR ANDERSEN LLP Washington, D.C. January 6, 1999 -----END PRIVACY-ENHANCED MESSAGE-----