14(d)(4) of the Securities Exchange Act of 1934
Person(s) Filing Statement)
A Common Stock, par value $0.10 per share
Class of Securities)
Number of Class of Securities)
and General Counsel
Tysons Boulevard, Suite 1400
Address and Telephone Number of Person Authorized to Receive Notices
on Behalf of the Person(s) Filing Statement)
J. Clark, Esq.
R. Penalver, Esq.
Gordon & Reindel llp
York, New York 10005
the box if the filing relates solely to preliminary communications
before the commencement of a tender
of the subject company is The Fairchild Corporation, a Delaware corporation
“Company”or “Fairchild”). The address of the Company’s principal
executive offices is 1750 Tysons Boulevard, Suite 1400, McLean, VA
22102. The Company’s telephone number at that location is (703)
of equity securities to which this Schedule 14D-9 relates is the Company’s Class
A Common Stock, par value $0.10 per share (the “Shares”).
November 28, 2007 there were 22,604,835 Shares outstanding.
Background of Filing Person.
business address and telephone number of the Company, which is the person filing
this Statement, are set forth in Item 1 above.
Statement relates to the tender offer by Phoenix FA Holdings, LLC, a Delaware
limited liability company (“Phoenix”), disclosed in a Tender Offer Statement on
Schedule TO filed with the Securities and Exchange Commission (the “SEC”) on
November 19, 2007 (the “Schedule TO”). According to the Schedule TO,
Phoenix is offering to purchase up to 6.7 million Shares which are not currently
owned by Phoenix at a purchase price of $2.50 per Share (the “Offer Price”), net
to the Seller in cash, without interest thereon, upon the terms and subject
the conditions set forth in the Offer to Purchase dated November 19, 2007 (the
“Offer to Purchase”), and in the related Letter of Transmittal (which, together
with any amendments or supplements thereto, are referred to herein collectively
as the “Offer”), which has been sent or given to stockholders of the
Company. The Offer to Purchase states that the principal business
address of Phoenix is 110 E. 59th Street,
1901, New York, NY 10022. Phoenix is an entity affiliated with Mr.
Philip S. Sassower (“ Mr. Sassower”).
3. Past Contacts, Transactions, Negotiations and
described herein, to the knowledge of the Company, there are no material
agreements, arrangements or understandings or any actual or potential conflicts
of interest between the Company or its affiliates and (1) the Company, its
executive officers, directors or affiliates, or (2) Phoenix and its executive
officers, directors or affiliates.
regarding any such agreements, arrangements and understandings and any actual
potential conflicts of interest between the company and its executive officers,
directors or affiliates is included in the Company’s Proxy Statement filed on
Schedule 14A with the SEC on January 27, 2006 (the “Proxy Statement”) and in the
Company’s Form 10-K for the year ended September 30, 2006 (the
“10-K”). The Proxy Statement and the 10-K are incorporated herein by
publicly reported last year, on August 7, 2006 FA Holdings I, LLC, an entity
formed by among others, Mr. Sassower and Mr. Jeffrey J. Steiner, the Chief
Executive Officer and Chairman of the Board of Directors (“Mr. Steiner”) of the
Company made a proposal to acquire all of the outstanding shares of the Company
for $2.73 a share in a “going private” transaction. On
December 5, 2006 the Company announced that the “going private” discussions with
FA Holdings I, LLC had been terminated.
Steiner through an affiliate of Mr. Steiner, has a non-voting limited
partnership interest in Phoenix Ventures Fund LLC (the “Venture
Fund”). The Venture Fund is an entity affiliated with Phoenix and Mr.
Sassower. It is currently expected that the Venture Fund will provide
Phoenix approximately $12.5 million of the funds needed to consummate the
Offer. Based on Mr. Steiner’s limited partnership interest in the
Venture Fund, Mr. Steiner’s indirect interest in the Offer is expected to be
less than 4%. Mr. Steiner has represented to us that he is a limited
partner in the Venture Fund and has no voting rights or management role with
respect to the Venture Fund or the Offer.
addition, Mr. Steiner and Mr. Sassower have been business and social
acquaintances for approximately 30 years and Mr. Steiner has in the past served
on boards of entities controlled by Mr. Sassower.
4. The Solicitation or Recommendation.
Recommendation - No Opinion/Remaining Neutral Toward the
Fairchild Board, based on the recommendation of a special committee of the
consisting of independent directors (the “Special Committee”), is expressing no
opinion to the Company’s stockholders and is remaining neutral with respect to
the Offer. Neither the Fairchild Board nor the Special Committee has
made a determination whether the Offer is fair to or in the best interests
the Company’s stockholders and is not making a recommendation regarding whether
the Company’s stockholders should accept the Offer and tender their Shares, and,
if so, how many Shares to tender, or reject the Offer and not tender their
Fairchild Board based on the recommendation of the Special Committee has
determined that a Fairchild stockholder’s decision on whether or not to tender
its Shares in the Offer and, if so, how many Shares to tender, is a personal
investment decision based upon each individual stockholder’s particular
circumstances. The Fairchild Board urges each Fairchild stockholder
to make its own decision regarding the Offer based on all of the available
information, including the adequacy of the Offer Price in light of the
stockholder’s own investment objectives, the stockholder’s views as to the
Company’s prospects and outlook, the factors considered by the Special Committee
as described below and any other factors that the stockholder deems relevant
its investment decision. The Fairchild Board also urges each
Fairchild stockholder to consult with its financial and tax advisors regarding
the Offer. The Fairchild Board notes that it observed that acceptance
of the Offer would permit a stockholder to realize a premium to the trading
price of the Shares prior to the announcement of the Offer, subject to the
of the Offer being undersubscribed, and the offer not going forward, or
oversubscribed and the Shares purchased on a pro rata basis, whereas a decision
not to tender in the Offer would permit stockholders who believe the Shares
a greater intrinsic value to realize a greater long-term value if their view
the greater intrinsic value of the Shares is substantiated in the
Background and Reasons for the Special Committee’s
evaluating the Offer and determining to express no opinion to the Company’s
shareholders and to remain neutral with respect to the Offer, the Fairchild
Board formed the Special Committee consisting of Didier Choix, Robert E.
Edwards, Daniel Lebard, Glenn Myles and Michael Vantusko to evaluate the
Offer. The Special Committee consulted with the Company’s senior
management and legal counsel and considered a number of factors. The
significant contending factors that the Special Committee believed were in
of expressing no opinion to the Company’s shareholders and remaining neutral
with respect to the Offer included the following:
Obligation to Tender. The Special Committee considered
that there is no obligation on behalf of any shareholder to tender
that each shareholder could make an independent judgment of whether
maintain its interest in the Company or to reduce or eliminate its
interest in the Company by participating in the Offer based on all
Trading Volume in the Shares. The Special Committee
considered that there is limited trading volume in the Shares and
Offer allows shareholders to realize, possibly prior to year end,
purchase price for a substantial number of Shares they may not be
obtain in the open market.
Price Represents a Premium to Pre-Announcement Trading
Price. The Special Committee considered recent and
historical market prices for the Shares and noted that the Offer
represented a premium of approximately 20% over the closing price
Shares on the New York Stock Exchange on November 12, 2007, the day
Phoenix announced its intent to commence the
Trading Volume after the Offer. The Special Committee
considered that after giving effect to the Offer there would be a
significant number of Shares outstanding and that, depending upon
of the holdings tendered by each shareholder, the trading volume
Shares should not be materially adversely affected though there can
assurance that after giving effect to the Offer there will be more
300 record holders.
Intent of Purchasers and the Steiner Family. The Special
Committee took into consideration that Mr. Steiner, the Company’s Chief
Executive Officer and Chairman of the Board of Directors represented
the Special Committee that neither he nor his family and affiliates
any intention, arrangement, agreement or understanding with Phoenix
affiliates with respect to purchasing shares, taking the Company
“going dark”, or pursuing a change of control transaction involving the
Company. The Special Committee also had a meeting with Mr.
Sassower at which he stated that he had no intention of taking the
private, making the Company “go dark”, or pursuing a change of
control transaction with respect to the
may be a source of additional future capital to the
Company. The Special Committee took into consideration
that as a potential significant shareholder in the Company, Phoenix
a provider of capital to the Company in the
of Offer may affect the Company’s “NOL’s”. The Special
Committee took into consideration that the consummation of the Offer
reduce the Company’s
operating losses in the United States and certain foreign jurisdictions,
though it is difficult to evaluate the significance of such
Ability to Change Recommendation. The Special Committee considered
the fact that the Special Committee can change its position and make
recommendation with respect to the Offer at a later time prior to
expiration of the Offer, including if there is a change of events
circumstances or additional information comes to the attention of
Special Committee. The Special Committee considered that the
Company’s stockholders would have withdrawal rights as provided in the
Offer and could withdraw Shares tendered in the Offer prior to the
expiration of the Offer if they so desire to do so based on any changes
the Special Committee’s position with respect to the Offer or
Intent to Tender.
Company’s knowledge after reasonable inquiry, neither the Company nor any of the
Company’s executive officers, directors, affiliates or subsidiaries currently
intend to tender Shares held of record or beneficially by them in the Offer
(other than Common Stock held directly or indirectly by other public companies,
as to which the Company has no knowledge or shares of Common Stock for which
such holder does not have discretionary authority). The foregoing
does not include any Shares over which, or with respect to which, any such
executive officer, director, affiliate or subsidiary acts in a fiduciary or
representative capacity or is subject to the instructions of a third party
respect to such tender. In addition, the foregoing does not include
any Shares held in the Company’s 401K plan for employees.
5. Persons/Assets, Retained, Employed, Compensated or
Company has not retained any person to make solicitations or recommendations
regarding the Offer.
6. Interest in Securities of the Subject
Company’s knowledge after reasonable inquiry, no transactions in the Common
Stock have been effected during the past 60 days by the Company or by any
executive officer, director, affiliate or subsidiary of the
7. Purposes of the Transaction and Plans or
negotiations are being undertaken or are underway by the Company in response
the Offer that relate to a tender offer or other acquisition of the Company’s
securities by the Company, any subsidiary of the Company or any other
No negotiations are being undertaken or are underway by the Company in response
to the Offer that relate to, or would result in, (i) any extraordinary
transaction, such as a merger, reorganization or liquidation, involving the
Company or any subsidiary of the Company, (ii) any purchase, sale or transfer
a material amount of assets of the Company or any subsidiary of the Company,
(iii) any material change in the present dividend rate or policy, or
indebtedness or capitalization of the Company or any subsidiary of the
are no transactions, resolutions of the Fairchild Board, agreements in principle
or signed contracts in response to the Offer that relate to or would result
one or more of the matters referred to in this Item 7.
8. Additional Information.
following exhibits are incorporated by reference herein:
Offer to Purchase, dated November 19, 2007 (incorporated by reference
Exhibit (a)(1) to the Schedule TO filed by Phoenix with the SEC on
November 19, 2007).
of Transmittal (incorporated by reference to Exhibit (a)(2) to the
Schedule TO filed by Phoenix with the SEC on November 19,
Company’s Proxy Statement filed on Schedule 14A with the SEC on January
Company’s Form 10-K for fiscal year ended September 30, 2006 filed with
the SEC on August 13, 2007.
Company’s Form 8-K filed with the SEC on August 7, 2006.
Company’s Form 8-K filed with the SEC on September 21, 2006.
Company’s Form 8-K filed with the SEC on December 5, 2006.
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this Statement is true, complete and
Donald E. Miller
Vice President, Secretary