Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TELIGENT, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
54-1866562
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(I.R.S. Employer Identification No.)
8065 Leesburg Pike, Vienna, VA 22182
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(Address of Principal Executive Offices) (Zip Code)
Teligent, Inc. 1997 Stock Incentive Plan
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(Full Title of the Plan)
Laurence E. Harris, Esq.
Senior Vice President and General Counsel
Teligent, Inc.
8065 Leesburg Pike
Vienna, Virginia 22182
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(Name and Address of Agent For Service)
(703) 762-5100
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Telephone Number, Including Area Code, of Agent For Service.
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum
Title of Offering Proposed
Securities Price Maximum
To Be Amount To Per Aggregate Amount Of
Registered Be Share Offering Registration
(1) Registered (2) Price Fee
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Class A 1,001,622 $ 3.35 $ 3,355,434 $ 990
Common 1,001,622 4.18 4,186,780 1,235
Stock, $.01 1,001,622 5.44 5,448,824 1,607
par value 1,001,622 7.11 7,121,532 2,101
1,001,622 8.36 8,373,560 2,470
1,001,622 46.00 46,074,612 13,592
5,861,757 6.52 38,218,656 11,275
121,332 8.36 1,014,336 299
487,957 13.38 6,528,865 1,926
292,350 21.50 6,285,525 1,854
1,955,997 26.75(3) 52,322,920 15,435
---------- ----------- -------
14,729,125 $178,931,042 $52,785
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(1) The Class A Common Stock, par value $.01 per share, of the
Registrant (the "Class A Common Stock") being registered
relates to (i) past option grants, with exercise prices as
indicated and (ii) option grants to be undertaken in the
future, with option prices to be determined.
(2) In accordance with Rule 457(h)(l) under the Securities Act
of 1933, as amended (the "Securities Act"), the option
exercise price.
(3) The registration fee has been calculated pursuant to Rules
457(c) and (h) under the Securities Act on the basis of the
average of the high and low prices of the Registrant's Class
A Common Stock as reported on The Nasdaq National Market on
January 23, 1998, a date within five business days prior to
the date of filing of this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this registration
statement. The information called for in Part I of Form S-8 will
be included in a Prospectus which is to be distributed to
participants in the Teligent, Inc. 1997 Stock Incentive Plan.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.
Not required to be filed with this registration
statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and
Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
(a) the final Prospectus of Teligent, Inc. ("Teligent"
or the "Company") dated November 21, 1997 included in
Teligent's Registration Statement on Form S-1 (File No.
333-37381) which was declared effective by the
Commission on November 21, 1997, which final Prospectus
contains audited financial statements for Teligent's
latest fiscal year for which such statements have been
filed with the Commission; and
(b) the description of the Class A Common Stock
contained in the Company's registration statement on
Form 8-A (File No. 000-23387) dated November 18, 1997,
as amended by Amendment No. 1 to Form 8-A dated
November 18, 1997, filed pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), which
incorporate by reference the title and description of
the Class A Common Stock set forth under the caption
"Description of Capital Stock" in the Company's
Registration Statement on Form S-1 (File No. 333-
37381), which was declared effective by the Commission
on November 21, 1997, relating to the Company's initial
public offering of Class A Common Stock (the "IPO").
All documents hereafter filed by Teligent 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 have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to
be a part thereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The Class A Common Stock has been registered pursuant
to Section 12(g) of the Exchange Act. Accordingly, a description
of the Class A Common Stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law
("DGCL"), as amended, allows a corporation to eliminate the
personal liability of directors of a corporation to the
corporation or its stockholders for monetary damages for a breach
of fiduciary duty as a director, except where the director
breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware corporate law or obtained an
improper personal benefit.
Section 145 of the DGCL, as amended, provides that a
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 its request in such capacity in another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
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 reasonable cause to believe his conduct was
unlawful.
CERTIFICATE OF INCORPORATION
Article Eighth of the Company's Certificate of
Incorporation provides that the Company will indemnify its
directors and officers to the fullest extent authorized or
permitted by law, as now or hereafter in effect, and such right
to indemnification will continue as to a person who has ceased to
be a director or officer of the Company and will inure to the
benefit of his or her heirs, executors and personal and legal
representatives; provided, that except for proceedings to enforce
rights to indemnification, the Company will not be obligated to
indemnify any director or officer (or his or her heirs, executors
or personal or legal representatives) in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by
the Board of Directors. The right to indemnification conferred
by Article Eighth includes the right to be paid by the Company
the expenses as incurred in defending or otherwise participating
in any proceeding in advance of its final disposition.
The rights to indemnification and to the advance of
expenses conferred in Article Eighth is not exclusive of any
other right which any person may have or hereafter acquire under
the Certificate of Incorporation, the By-Laws of the Company, any
statute, agreement, vote of stockholders or disinterested
directors or otherwise.
BY-LAWS
Section 1 of Article VIII of the By-laws provides that
subject to Section 3 of Article VIII, the Company will 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
Company) by reason of the fact that such person is or was a
director or officer of the Company, or is or was a director or
officer of the Company serving at the request of the Company as a
director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such
action, suit or proceeding if such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
will not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that such person's conduct was
unlawful.
Section 2 of Article VIII of the By-laws provides that
subject to Section 3 of Article VIII, the Company will 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 Company to procure a judgment in its favor
by reason of the fact that such person is or was a director or
officer of the Company, or is or was a director or officer of the
Company serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Company; except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 3 of Article VIII of the By-laws provides that
any indemnification under Article VIII (unless ordered by a
court) will be made by the Company only as authorized in the
specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because such
person has met the applicable standard of conduct set forth in
Section 1 or Section 2 of Article VIII, as the case may be. Such
determination shall be made (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal
counsel in a written opinion or (iii) by the stockholders. To
the extent, however, that a director or officer of the Company
has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person will be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith,
without the necessity of authorization in the specific case.
Section 5 of Article VIII of the By-laws provides that,
notwithstanding any contrary determination in the specific case
under Section 3 of Article VIII, and notwithstanding the absence
of any determination thereunder, any director or officer may
apply to the Court of Chancery in the State of Delaware for
indemnification to the extent otherwise permissible under
Sections 1 and 2 of Article VIII. The basis of such
indemnification by a court will be a determination by such court
that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable
standards of conduct set forth in Section 1 or 2 of Article VIII,
as the case may be. Neither a contrary determination in the
specific case under Section 3 of Article VIII nor the absence of
any determination thereunder will be a defense to such
application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant
to Section 5 shall be given to the Company promptly upon the
filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification will also be
entitled to be paid the expense of prosecuting such application.
Section 7 of Article VIII of the By-laws provides that
the indemnification and advancement of expenses provided by or
granted pursuant to Article VIII will not be deemed exclusive of
any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of
Incorporation, any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity
while holding such office, it being the policy of the Company
that indemnification of the persons specified in Sections 1 and 2
of Article VIII shall be made to the fullest extent permitted by
law. The provisions of Article VIII are not deemed to preclude
the indemnification of any person who is not specified in Section
1 or 2 of Article VIII but whom the Company has the power or
obligation to indemnify under the provisions of the DGCL, or
otherwise.
Section 8 of Article VIII of the By-laws provides that
the Company may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Company, or is
or was a director or officer of the Company serving at the
request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such,
whether or not the Company would have the power or the obligation
to indemnify such person against such liability under the
provisions of Article VIII.
Section 11 of Article VIII of the By-laws provides that
notwithstanding anything contained in Article VIII to the
contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 thereof),
the Company will not be obligated to indemnify any director or
officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors of the
Company.
INSURANCE
The directors and officers of the Company are covered
by insurance policies indemnifying against certain liabilities,
including certain liabilities arising under the Securities Act of
1933, as amended (the "Securities Act"), which might be incurred
by them in such capacities and against which they cannot be
indemnified by the Company.
UNDERWRITING AGREEMENT
The Underwriting Agreement dated November 20, 1997
entered into by the Company in connection with the IPO provides
for the indemnification of the directors and officers of the
Company and certain controlling persons against certain
liabilities under certain circumstances, including certain
liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
4.1 Form of Certificate of Incorporation of the
Company (Incorporated by reference to
Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Registration No.
333-37381) which was declared effective by
the Commission on November 21, 1997).
4.2 Form of By-Laws of the Company
(Incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on
Form S-1 (Registration No. 333-37381) which
was declared effective by the Commission on
November 21, 1997).
4.3 Specimen Stock Certificate of the Company
(Incorporated by Reference to Exhibit 4.5
to the Company's Registration Statement on
Form S-1 (Registration No. 333-37381) which
was declared effective by the Commission on
November 21, 1997).
5.1 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher &
Flom LLP (contained in the opinion filed as
Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (included on the
signature page of this Registration
Statement).
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned Company hereby undertakes:
(a)(l) 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 the 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 the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the 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
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 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 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.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the 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 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
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 Vienna, State of Virginia, on this 27th day of
January, 1998.
Teligent, Inc.
By: /s/ Alex J. Mandl
Alex J. Mandl
Chairman of the Board and Chief
Executive Officer
KNOW ALL PERSONS BY THESE PRESENT, that each person whose
signature appears below constitutes and appoints Alex J. Mandl
and Abraham L. Morris and each of them, as such person's true and
lawful attorney-in-fact and agent with full power of substitution
and revocation for such person and in such person's name, place
and stead, in any and all capacities, to execute any and all
amendments to this Registration Statement, and to file the same,
with all exhibits thereto, 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, as fully to all intents and purposes as
such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his
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 on
January 27, 1998.
/s/ Alex J. Mandl
-------------------------- Chairman of the Board, Chief Executive
Alex J. Mandl Officer and Director
/s/ Abraham L. Morris
-------------------------- Senior Vice President and Chief
Abraham L. Morris Financial Officer (Principal
Financial Officer)
/s/ Cindy L. Tallent
-------------------------- Vice President and Controller
Cindy L. Tallent (Principal Accounting Officer)
/s/ Myles P. Berkman
-------------------------- Director
Myles P. Berkman
/s/ David J. Berkman
-------------------------- Director
David J. Berkman
/s/ William H. Berkman
-------------------------- Director
William H. Berkman
/s/ Rajendra Singh
-------------------------- Director
Rajendra Singh
EXHIBIT INDEX
Exhibit
Number Description
4.1 Form of Certificate of Incorporation of the
Company (Incorporated by reference to
Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Registration No.
333-37381) which was declared effective by
the Commission on November 21, 1997).
4.2 Form of By-Laws of the Company
(Incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on
Form S-1 (Registration No. 333-37381) which
was declared effective by the Commission on
November 21, 1997).
4.3 Specimen Stock Certificate of the Company
(Incorporated by Reference to Exhibit 4.5
to the Company's Registration Statement on
Form S-1 (Registration No. 333-37381) which
was declared effective by the Commission on
November 21, 1997).
5.1 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher &
Flom LLP (contained in the opinion filed as
Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (included on the
signature page of this Registration
Statement).
Exhibit 5.1
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
TEL: (212) 735-3000
FAX: (212) 735-2000
January 27, 1998
Teligent, Inc.
8065 Leesburg Pike
Vienna, Virginia 22182
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Teligent, Inc., a
Delaware corporation (the "Company"), in connection with the
preparation of a Registration Statement on Form S-8 (the
"Registration Statement"), for the purpose of registering with
the Securities and Exchange Commission, under the Securities Act
of 1933, as amended (the "Act"), 14,729,125 shares (the "Shares")
of Class A Common Stock, par value $.01 per share, of the Company
issuable upon the exercise of options, or pursuant to other
awards, granted under the Teligent, Inc. 1997 Stock Incentive
Plan (the "Plan").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined and
are familiar with originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Registration
Statement, (ii) the Plan, (iii) the Certificate of Incorporation
and By-Laws of the Company, each as currently in effect, (iv) a
specimen certificate representing the Shares and (v) certain
resolutions adopted by the Board of Directors of the Company
relating to the approval and adoption of the Plan, the issuance
of the Shares and certain related matters. We have also examined
such other documents, certificates and records as we have deemed
necessary or appropriate as a basis for the opinion set forth
herein. In our examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as certified,
conformed or photostatic copies and the authenticity of the
originals of such copies. As to any facts material to the
opinion expressed herein which we have not independently
established or verified, we have relied upon statements and
representations of officers and other representatives of the
Company and others.
We have also assumed that each award agreement setting
forth the terms of each grant of options or other award under the
Plan (each, an "Award Agreement") will be consistent with the
Plan and will be duly authorized and validly executed and
delivered by the parties thereto, and that the consideration
received by the Company for the Shares delivered pursuant to such
option exercise or other award under the Plan will be in an
amount at least equal to the par value of such Shares.
The opinion expressed herein is limited to the Delaware
General Corporation Law, and we express no opinion as to the laws
of any other jurisdiction.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly authorized for issuance
and, when Shares have been paid for and certificates therefor
have been issued and delivered upon the exercise of options, or
otherwise pursuant to an award, duly granted under the Plan, in
each case in accordance with the terms of the Plan and the
applicable Award Agreement, such Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving such consent,
we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act or the Rules
and Regulations promulgated thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher &
Flom LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference, in the Registration
Statement (Form S-8) pertaining to the Teligent, Inc. 1997 Stock
Incentive Plan, of our report dated March 4, 1997, with respect
to the financial statements of Teligent, L.L.C. included in the
Registration Statement on Form S-1 (No. 333-37381) of Teligent,
Inc., filed with the Securities and Exchange Commission.
Ernst & Young LLP
Vienna, Virginia
January 23, 1998
