<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 21, 1999
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TELIGENT, INC.
(Exact Name of issuer as specified in its charter)
DELAWARE 54-1866562
(State or Other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8065 LEESBURG PIKE
SUITE 400
VIENNA, VIRGINIA 22182
703.762.5100
(Address of principal executive offices)
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TELIGENT, INC.
1997 STOCK INCENTIVE PLAN
--------------
TELIGENT, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
-------------
LAURENCE E. HARRIS, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
TELIGENT, INC.
8065 LEESBURG PIKE
SUITE 400
VIENNA, VIRGINIA 22182
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 703.762.5100
CALCULATION OF REGISTRATION FEE
================= ============== =============== =============== ===============
TITLE OF SHARES AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED MAXIMUM MAXIMUM REGISTRATION
OFFERING PRICE AGGREGATE FEE
PER SHARE(2) OFFERING
PRICE(2)
- ----------------- -------------- --------------- --------------- ---------------
Class A Common 4,300,000 $62.28125 $267,809,375 $70,701.68
Stock, par shares (1)
value $.01
per share
================= ============== =============== =============== ===============
(1) 4,000,000 shares of Teligent, Inc. Class A Common Stock, par value $.01
per share (the "Shares") are being registered pursuant to the Teligent,
Inc. 1997 Stock Incentive Plan and 300,000 Shares are being registered
pursuant to the Teligent, Inc. 1999 Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933, using the average
of the high and low sale prices of the Class A Common Stock reported on
The Nasdaq National Market on December 14, 1999.
There are also registered hereunder such additional indeterminate
number of Shares as may be issued as a result of the antidilution provisions of
the Teligent, Inc. 1997 Stock Incentive Plan and Teligent, Inc. 1999 Employee
Stock Purchase Plan.
This Registration Statement incorporates by reference the information
contained in the earlier registration statement relating to the Teligent, Inc.
1997 Stock Incentive Plan, filed on January 27, 1998, Registration No.
333-45005.
<PAGE>
EXPLANATORY NOTE
As permitted by General Instruction E to the Form S-8, this
Registration Statement incorporates by reference the information contained in
the earlier registration statement relating to the Teligent, Inc. 1997 Stock
Incentive Plan, filed on January 27, 1998, Registration No. 333-45005.
On February 24, 1999, the Board of Directors of Teligent, Inc. approved
an amendment to the Teligent, Inc. 1997 Stock Incentive Plan (the "Option Plan")
that increased the number of Shares reserved for issuance thereunder by
4,000,000. The shareholders of Teligent, Inc. approved the amendment to the
Option Plan at the 1999 annual shareholder meeting held on June 16, 1999.
Accordingly, as amended, the total number of Shares available under the Option
Plan is 18,729,125, of which 4,000,000 Shares are being registered hereunder.
Except for the foregoing amendment, the Option Plan remains unchanged.
This Registration Statement also registers 300,000 Shares reserved for
sale under the Teligent, Inc. 1999 Employee Stock Purchase Plan (the "Purchase
Plan").
PART I
ITEM 1. OPTION PLAN AND PURCHASE PLAN INFORMATION.
Not included pursuant to Form S-8 instructions.
ITEM 2. REGISTRANT INFORMATION AND OPTION PLAN AND PURCHASE PLAN
ANNUAL INFORMATION.
Not included pursuant to Form S-8 instructions.
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Teligent, Inc. (the "Company" or "Teligent") hereby
incorporates herein by reference the following documents:
(1) Teligent's annual report on Form 10-K for the year
ended December 31, 1998;
(2) All reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on or after December 31, 1998,
including Teligent's quarterly reports on Form 10-Q
for the periods ended March 31, 1999, June 30, 1999
and September 30, 1999 and Teligent's current report
on Form 8-K dated April 19, 1999; and
(3) The description of Teligent's Class A Common Stock
contained in Teligent's Form 8-A filed on November
18, 1997.
<PAGE>
In addition, all documents filed by Teligent pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered herein have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated herein by reference and to be a part hereof from the respective
date of filing of each such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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 Teligent's certificate of incorporation
provides that Teligent 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 Teligent 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, Teligent 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
Teligent 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 are not exclusive of
any other right which any person may have or hereafter acquire under the
certificate of incorporation, the by-laws of Teligent, any statute, agreement,
vote of stockholders or disinterested directors or otherwise.
<PAGE>
BY-LAWS
Section 1 of Article VIII of the By-laws provides that,
subject to Section 3 of Article VIII, Teligent 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 Teligent) by reason of
the fact that such person is or was a director or officer of Teligent, or is or
was a director or officer of Teligent serving at the request of Teligent 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 Teligent, 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 Teligent, 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, Teligent 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 Teligent to procure a judgment in
its favor by reason of the fact that such person is or was a director or officer
of Teligent, or is or was a director or officer of Teligent serving at the
request of Teligent 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 Teligent;
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 Teligent
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
Teligent 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 Teligent 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.
<PAGE>
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 Teligent 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 Teligent 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 Teligent 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
Teligent may purchase and maintain insurance on behalf of any person who is or
was a director or officer of Teligent, or is or was a director or officer of
Teligent serving at the request of Teligent 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 Teligent 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), Teligent 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 Teligent.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT NO. EXHIBIT
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 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 the Company's
Registration Statement on Form S-1 Registration No.
333-37381) which was declared effective by the
Commission on November 21, 1997).
4.4 Teligent, Inc. 1997 Stock Incentive Plan, as amended
and restated.
4.5 Teligent, Inc. 1999 Employee Stock Purchase Plan.
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
as to legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(contained in the opinion filed as Exhibit 5.1 to
this Registration Statement).
24.1 Power of Attorney (included on signature page of this
Form S-8).
ITEM 9. UNDERTAKINGS.
(a) The undersigned 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 of 1933 (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;
and
(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
information to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 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; and
<PAGE>
(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 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.
(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, or
otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is
against public policy as expressed in the 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 Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Vienna, Commonwealth of Virginia, on December 21,
1999.
TELIGENT, INC.
BY: /S/ ALEX J. MANDL
------------------
Name: Alex J. Mandl
Title: Chairman of the Board and CEO
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Each person in so signing, also makes, constitutes and appoints Alex J.
Mandl and Laurence E. Harris, and each of them acting alone, his true and lawful
attorney-in-fact, with full power of substitution, to execute and cause to be
filed with the Securities and Exchange Commission pursuant to the requirements
of the Securities Act of 1933, as amended, any and all amendments and
post-effective amendments to this registration statement, with exhibits thereto
and other documents in connection therewith, and hereby ratifies and confirms
all that said attorney-in-fact or his substitute or substitutes may do or cause
to be done by virtue thereof.
<PAGE>
SIGNATURE TITLE DATE
/S/ ALEX J. MANDL Chairman of the Board, December 21, 1999
- ----------------------- CEO and Director
Alex J. Mandl
/S/ ABRAHAM L. MORRIS Senior Vice President and CFO December 21, 1999
- ----------------------- (PRINCIPAL FINANCIAL OFFICER)
Abraham L. Morris
/S/ CINDY L. TALLENT Vice President and Controller December 21, 1999
- ----------------------- (PRINCIPAL ACCOUNTING OFFICER)
Cindy L. Tallent
/S/ MYLES P. BERKMAN Director December 21, 1999
- -----------------------
Myles P. Berkman
/S/ DAVID J. BERKMAN Director December 21, 1999
- -----------------------
David J. Berkman
/S/ WILLIAM H. BERKMAN Director December 21, 1999
- ------------------------
William H. Berkman
/S/ DONALD H. JONES Director December 21, 1999
- ------------------------
Donald H. Jones
/S/ TETSURO MIKAMI Director December 21, 1999
- ------------------------
Tetsuro Mikami
/S/ RAJENDRA SINGH Director December 21, 1999
- ------------------------
Rajendra Singh
Director December 21, 1999
- ------------------------
Thomas O. Hicks
Director December 21, 1999
- ------------------------
Richard I. Goldstein
<PAGE>
INDEX TO EXHIBITS
The following is a complete list of exhibits filed as part of this
registration statement:
EXHIBIT NO. EXHIBIT
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 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 the Company's
Registration Statement on Form S-1 Registration No.
333-37381) which was declared effective by the
Commission on November 21, 1997).
4.4 Teligent, Inc. 1997 Stock Incentive Plan, as amended
and restated.
4.5 Teligent, Inc. 1999 Employee Stock Purchase Plan.
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
as to legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
(contained in the opinion filed as Exhibit 5.1 to
this Registration Statement).
24.1 Power of Attorney (included on signature page of this
Form S-8).
EXHIBIT 4.4
TELIGENT, INC.
1997 STOCK INCENTIVE PLAN
AS AMENDED AND RESTATED
1. PURPOSE.
The purpose of the Teligent, Inc. 1997 Stock Incentive Plan
(the "Plan") is to align the interests of officers, other employees, directors
and consultants of Teligent, Inc., a Delaware corporation ("Teligent") and its
subsidiaries, now held or hereafter acquired (collectively, the "Company"), with
those of the stockholders of Teligent; to attract, motivate and retain the best
available executive personnel and key employees of the Company by permitting
them to acquire an, or increase their, equity interest in Teligent; to reinforce
corporate, organizational and business-development goals; and to reward the
performance of individual officers and other employees in fulfilling their
personal responsibilities for long-range achievements.
2. DEFINITIONS.
The following terms, as used herein, shall have the following
meanings:
(a) "Award" shall mean any Option (including Conversion Options),
SAR or Restricted Stock Award granted pursuant, or which is
otherwise subject, to the Plan.
(b) "Award Agreement" shall mean any written agreement, contract
or other instrument or document between Teligent and a
Participant evidencing an Award.
(c) "Beneficial Owner" shall have the meaning set forth in Rule
13d-3 promulgated under the Exchange Act.
(d) "Board" shall mean the Board of Directors of Teligent.
(e) "Change in Control" shall have the meaning set forth in
Section 8(f) hereof.
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(g) "Committee" shall mean the Compensation Committee or other
committee of the Board which, in accordance with Section 3 of
the Plan, may be authorized to grant Awards.
(h) "Company" shall have the meaning set forth in Section 1
hereof.
(i) "Conversion Options" shall mean the Options which result from
the conversion, in connection with the Initial Offering, of
the Company Appreciation Rights granted under that certain
employment agreement, dated as of September 1, 1996, by and
between Teligent, L.L.C. and Alex J. Mandl, and the
Appreciation Units previously granted by Teligent L.L.C.
pursuant to its Long Term Incentive Compensation Plan.
<PAGE>
(j) "Effective Date" shall have the meaning set forth in Section
8(k) hereof.
(k) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(l) "Fair Market Value" per share of Stock as of a particular date
shall mean (i) the average of the high and low sale price per
share of Stock (A) on the national securities exchange on
which the Stock is principally traded for the last preceding
date on which there was a sale of such Stock on such exchange
or (B) if the Stock is not then traded on a national
securities exchange, on the NNM for the last preceding date on
which a sale of the Stock was reported on the NNM, (ii) if the
Stock is not then traded on a national securities exchange and
sales of the Stock are not then reported on the NNM, but the
Stock is then quoted on an over-the-counter market other than
the NNM, the average of the closing per share bid and asked
prices for the Stock in such over-the-counter market for the
last preceding date on which such prices were quoted in such
market, (iii) if the shares of Stock are not then traded on a
national securities exchange, sales of the Stock are not then
reported on the NNM and the Stock is not then quoted on an
over-the-counter market other than the NNM, such value as the
Board, in its sole discretion, shall determine.
Notwithstanding the foregoing, with respect only to the
exercise price of Options awarded effective as of the date on
which consummation of the Initial Offering takes place, the
Fair Market Value of the Stock as of such date shall be the
initial offering price of the Stock on such date.
(m) "Incentive Stock Option" shall mean an Option that meets the
requirements of Section 422 of the Code, or any successor
provision, and is designated by the Board as an Incentive
Stock Option.
(n) "Initial Offering" shall mean the initial public offering by
Teligent of shares of Stock which is made pursuant to the
terms of the Securities Act of 1933, as amended.
(o) "NNM" shall mean the Nasdaq National Market.
(p) "Nonqualified Stock Option" shall mean an Option other than an
Incentive Stock Option.
(q) "Option" shall mean the right, granted pursuant to the Plan,
of a holder to purchase shares of Stock.
(r) "Participant" shall mean an officer, other employee, director
or consultant of the Company who is, pursuant to Section 4 of
the Plan, selected to participate in the Plan.
(s) "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (i)
Teligent or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of
Teligent or any of its affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such
securities, (iv) a corporation owned, directly or indirectly,
by the stockholders of Teligent in substantially the same
proportions as their ownership of stock of Teligent, or (v)
The Associated Group, Inc. or any of its subsidiaries or
affiliates.
(t) "Plan" shall have the meaning set forth in Section 1 hereof.
<PAGE>
(u) "Restricted Stock" shall mean any shares of Stock issued to a
Participant, without payment to Teligent, pursuant to Section
7 of the Plan.
(v) "Restricted Stock Award Program" shall mean the program set
forth in Section 7 hereof.
(w) "SAR" shall mean a stock appreciation right granted to a
Participant under Section 6 of the Plan.
(x) "Section 16 Participant" shall have the meaning set forth in
Section 3 hereof.
(y) "Stand-Alone SAR" shall mean a SAR which is not related to an
Option.
(z) "Stock" shall mean shares of the Class A Common Stock, par
value $.01 per share, of Teligent.
(aa) "Stock Option and SAR Program" shall mean the program set
forth in Section 6 hereof.
(bb) "Tandem SAR" shall mean a SAR which is granted in relation to
an Option.
(cc) "Teligent" shall have the meaning set forth in Paragraph 1
hereof.
(dd) "Ten Percent Stockholder" shall mean a Participant who, at the
time an Incentive Stock Option is to be granted to such
Participant, owns stock possessing more than ten percent (10%)
of the total combined voting power of all classes of stock of
Teligent.
<PAGE>
3. ADMINISTRATION.
The Plan will be administered by the Board; provided that the
Board may establish one or more Committees which may, to the extent set forth in
the resolutions establishing such Committee or Committees, be authorized to
grant Awards to, and administer such Awards with respect to, those Participants
who are subject to Section 16 of the Exchange Act with respect to the Company
("Section 16 Participants") or who are executive officers of the Company. Any
such Committee that is authorized to grant Awards to Section 16 Participants (a
"Section 16 Committee") shall, to the extent necessary to comply with Rule 16b-3
promulgated under the Exchange Act, be comprised of two or more "non-employee
directors" within the meaning of such Rule, and any such Committee that is
authorized to grant Awards to executive officers of the Company (which may or
may not be the same Committee as the Section 16 Committee) shall, to the extent
necessary to comply with Section 162(m) of the Code, be comprised of two or more
"outside directors" within the meaning of such Section. In the case of grants of
Awards to Participants who are neither Section 16 Participants nor executive
officers of the Company, the Board in its discretion may delegate to a Committee
or to members of the Company's management the authority, subject to such
guidelines as the Board may approve from time to time and to ratification by the
Board, to make grants of Awards to, and administer such Awards with respect to,
such Participants. The Board shall have the authority, in its sole discretion,
subject to and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the powers and authority either
specifically granted to it under the Plan or necessary or advisable in
connection with the administration of the Plan, including, without limitation,
the authority to grant Awards; to determine the persons to whom and the time or
times at which Awards shall be granted; to determine the type and number of
Awards to be granted, the number of shares of Stock to which an Award may relate
and the terms, conditions, restrictions and performance criteria relating to any
Award; to determine whether, to what extent, and under what circumstances an
Award may be settled, cancelled, forfeited, exchanged, or surrendered or
accelerated or an Option or Options, Stand-Alone SAR or Stand-Alone SARs may be
repriced to a lower exercise price; to make adjustments in performance goals in
recognition of unusual or non-recurring events affecting Teligent or the
financial statements of Teligent, or in response to changes in applicable laws,
regulations, or accounting principles; to construe and interpret the Plan and
any Award; to prescribe, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of Award Agreements, consistent with
the terms and provisions of the Plan; and to make all other determinations
deemed necessary or advisable for the administration of the Plan, consistent
with the terms and provisions of the Plan. The Board shall keep minutes of its
meetings. To the extent that the Board has delegated any of its authority to one
or more Committees under this Section 3, any reference to the Board in the Plan
shall be interpreted to mean reference to the relevant Committee.
<PAGE>
4. ELIGIBILITY.
Awards may be granted to officers, other employees, directors
and consultants of the Company in the sole discretion of the Board. In
determining the persons to whom Awards shall be granted and the type of Award,
the Board shall take into account such factors as the Board shall deem relevant
in connection with accomplishing the purposes of the Plan.
5. STOCK SUBJECT TO THE PLAN; LIMITATION ON GRANTS.
The maximum number of shares of Stock authorized and reserved
for issuance pursuant to the Plan shall be 18,729,125. All such shares of Stock
shall be subject to equitable adjustment as provided herein. Such shares may, in
whole or in part, be authorized but unissued shares or shares that shall have
been or may be reacquired by Teligent in the open market, in private
transactions or otherwise. If any shares subject to an Award are forfeited,
cancelled, exchanged or surrendered or if an Award otherwise terminates or
expires without a distribution of shares to the Participant, the shares of Stock
with respect to such Award shall, to the extent of any such forfeiture,
cancellation, exchange, surrender, termination or expiration, again be available
for Awards under the Plan. Upon the exercise of any Award granted in tandem with
any other Awards, such related Awards shall be cancelled to the extent of the
number of shares of Stock as to which the Award is exercised and,
notwithstanding the foregoing, such number of shares shall no longer be
available for Awards under the Plan.
During the term of this Plan, no Participant can receive
Awards, including Options, Restricted Stock and SARs (but excluding Conversion
Options), relating to shares of Stock which in the aggregate exceed twenty
percent (20%) of the total number of shares of Stock authorized for issuance
pursuant to the Plan, as adjusted pursuant to the terms hereof.
In the event that the Board shall determine that any dividend
or other distribution (whether in the form of cash, Stock or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Stock such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of Participants under the Plan, then the Board shall make such equitable
changes or adjustments as it deems necessary or appropriate to any or all of (i)
the number and kind of shares of Stock which may thereafter be issued in
connection with Awards, (ii) the number and kind of shares of Stock issued or
issuable in respect of outstanding Awards, and (iii) the exercise price, grant
price, or purchase price relating to any Award; provided that, with respect to
Incentive Stock Options, such adjustment shall be made in accordance with
Section 424 of the Code.
<PAGE>
6. STOCK OPTION AND SAR PROGRAM.
Each Option and SAR granted pursuant to this Section 6 shall
be evidenced by an Award Agreement, in such form and containing such terms and
conditions as the Board shall from time to time approve, which Award Agreement
shall comply with and be subject to the following terms and conditions, as
applicable. Each Conversion Option shall be governed by and subject to the terms
of the Plan, as well as the specific terms and provisions previously determined
by the Board with respect thereto, which terms and provisions shall be set forth
in the Award Agreement evidencing such Conversion Option.
(a) STOCK OPTIONS.
(1) NUMBER OF SHARES. Each Award Agreement shall state the number of
shares of Stock to which the Option relates.
(2) TYPE OF OPTION. Each Award Agreement shall state that the Option
constitutes an Incentive Stock Option or a Nonqualified Stock Option.
(3) OPTION PRICE. Each Award Agreement shall state the Option price,
which, except for the Conversion Options and as provided in Section 6(c)(2)
below, shall not be less than one hundred percent (100%) of the Fair Market
Value of the shares of Stock covered by the Option on the date of grant. The
Option price shall be subject to adjustment as provided in Section 5 hereof.
Unless otherwise expressly stated in the Board resolution expressly granting an
Option and except with respect to Options granted by members of the Company's
management pursuant to delegated authority as contemplated by Section 3 of the
Plan, the date as of which the Board adopts the resolution expressly granting an
Option shall be considered the day on which such Option is granted.
(4) METHOD AND TIME OF PAYMENT. The Option price shall be paid in full,
at the time of exercise, in cash (including cash received from the Company as
compensation or cash borrowed from the Company), in shares of Stock having a
Fair Market Value equal to such Option price, in a combination of cash and Stock
or, in the sole discretion of the Board, through a cashless exercise procedure,
which may include an exercise through a registered broker-dealer pursuant to
procedures which are, from time to time, deemed by the Board to be acceptable.
Any shares of Stock withheld upon exercise as payment of the purchase price
under an Option shall be valued at their Fair Market Value on the date of
exercise.
(5) TERM AND EXERCISABILITY OF OPTIONS. Each Award Agreement shall
provide that each Option shall become exercisable over a period determined by
the Board in its discretion, provided, that the Board shall have the authority
to accelerate the exercisability of any outstanding Option at such time and
under such circumstances as it, in its sole discretion, deems appropriate. The
exercise period shall be not more than ten (10) years from the date of the grant
of the Option, except as provided in Section 6(c)(2) below, or such shorter
period as is determined by the Board. The exercise period shall be subject to
earlier termination as provided in Section 6(a)(6) hereof. An Option may be
exercised, as to any or all full shares of Stock as to which the Option has
become exercisable, by written notice delivered in person or by mail to the
Secretary of Teligent, specifying the number of shares of Stock with respect to
which the Option is being exercised, together with payment in full of the Option
price. For purposes of the preceding sentence, the date of exercise will be
deemed to be the date upon which the Secretary of Teligent receives both the
notification and the payment.
<PAGE>
(6) TERMINATION. The Agreement evidencing the grant of each Award shall
set forth the terms and conditions applicable to such Award upon a termination
of an employee Participant's employment by the Company or the termination of a
consultant or director Participant's service with the Company, which shall be as
the Board may, in its discretion determine at the time the Award is granted or
thereafter.
(b) STOCK APPRECIATION RIGHTS. The Board shall have authority to grant
Stand-Alone SARs, and Tandem SARs with respect to all or some of the shares of
Stock covered by an Option. Stand-Alone SARs granted pursuant to this Section 6
shall be evidenced by an Award Agreement, in such form as the Board shall from
time to time approve, and the terms and conditions of such Awards shall be set
forth therein. A Tandem SAR shall, except as provided in this Section (6)(b), be
subject to the same terms and conditions as the related Option. Each Tandem SAR
granted pursuant to the Plan shall be reflected in the Award Agreement
evidencing the related Option.
(1) TIME OF GRANT OF TANDEM SARS. A Tandem SAR may be granted either at
the time of grant, or at any time thereafter during the term of the Option;
provided, however, that Tandem SARs related to Incentive Stock Options may only
be granted at the time of grant of the related Option.
(2) SAR PRICE. Each Award Agreement shall state the price for a
Stand-Alone SAR, which shall not be less than one hundred percent (100%) of the
Fair Market Value of the shares of Stock covered by the Stand-Alone SAR on the
date of grant. The price for a Tandem SAR shall be set forth in the Award
Agreement evidencing the related Option.
(3) PAYMENT. A SAR shall entitle the holder thereof, upon exercise of
the SAR or any portion thereof, to receive payment of an amount computed
pursuant to paragraph (5) below.
(4) EXERCISE. Each Award Agreement shall provide that each Stand-Alone
SAR shall become exercisable over a period determined by the Board in its
discretion, provided, that the Board shall have the authority to accelerate the
exercisability of any Stand-Alone SAR at such time and under such circumstances
as it, in its sole discretion, deems appropriate. The exercise period shall be
not more than ten (10) years from the date of the grant of the Stand-Alone SAR
or such shorter period as is determined by the Board. The exercise period shall
be subject to earlier termination as provided in Section 6(b)(8) hereof.
A Tandem SAR shall be exercisable at such time or times and only to
the extent that the related Option is exercisable, and will not be transferable
except to the extent the related Option may be -transferable. A Tandem SAR
granted in connection with an Incentive Stock Option shall be exercisable only
if the Fair Market Value of a share of Stock on the date of exercise exceeds the
purchase price specified in the related Incentive Stock Option.
(5) AMOUNT PAYABLE. Upon the exercise of a SAR, the Participant shall
be entitled to receive an amount determined by multiplying (i) the excess of the
Fair Market Value of a share of Stock on the date of exercise of such SAR over
the price of the Stand-Alone SAR or the Option to which the Tandem SAR relates,
as appropriate, by (ii) the number of shares of Stock as to which such SAR is
being exercised. Notwithstanding the foregoing, the Board may limit in any
manner the amount payable with respect to any SAR by including such a limit at
the time it is granted.
<PAGE>
(6) TREATMENT OF RELATED OPTIONS AND TANDEM SARS UPON EXERCISE. Upon
the exercise of a Tandem SAR, the related Option shall be cancelled to the
extent of the number of shares of Stock as to which the Tandem SAR is exercised
(and will be deemed to have been exercised for purposes of determining the
number of shares available for the grant of Awards under the Plan), and upon the
exercise of an Option granted in connection with a Tandem SAR, the Tandem SAR
shall be cancelled to the extent of the number of shares of Stock as to which
the Option is exercised (and will be deemed to have been exercised for purposes
of determining the number of shares available for the grant of Awards under the
Plan).
(7) METHOD OF EXERCISE. SARs shall be exercised by a Participant only
by a written notice delivered in person or by mail to the Company, Attention:
Senior Vice President for Human Resources, specifying the number of whole shares
of Stock with respect to which the SAR is being exercised. If requested by the
Board, the Participant shall deliver the Award Agreement evidencing the SAR and,
if applicable, the related Option, which Award Agreement shall be endorsed with
a notation of such exercise and returned to the Participant. For purposes of
this paragraph (7), the date of exercise will be deemed to be the date upon
which the Company receives such notification.
(8) FORM OF PAYMENT. Payment of the amount determined under paragraph
(5) above may, in the sole discretion of the Board, be made solely in whole
shares of Stock in a number determined based upon their Fair Market Value on the
date of exercise of the SAR or, alternatively, in the sole discretion of the
Board, solely in cash, or in a combination of cash and shares of Stock as the
Board deems advisable. If the Board determines that payment may be made solely
in shares of Stock, and the amount payable results in a fractional share,
payment for the fractional share will be made in cash.
(c) INCENTIVE STOCK OPTIONS. Options granted as Incentive Stock Options
shall be subject to the following special terms and conditions, in addition to
the general terms and conditions specified in this Section 6.
(1) VALUE OF SHARES. The aggregate Fair Market Value (determined as of
the date the Incentive Stock Option is granted) of the shares of Stock with
respect to which Incentive Stock Options granted under this Plan and all other
Plans of the Company become exercisable for the first time by each Participant
during any calendar year shall not exceed $100,000.
(2) TEN PERCENT STOCKHOLDER. In the case of an Incentive Stock Option
granted to a Ten Percent Stockholder, (x) the Option price shall not be less
than one hundred ten percent (110%) of the Fair Market Value of the shares of
Stock on the date of grant of such Incentive Stock Option, and (y) the exercise
period shall not exceed five (5) years from the date of grant of such Incentive
Stock Option.
7. RESTRICTED STOCK AWARD PROGRAM.
Restricted Stock Awards granted pursuant to this Section 7
shall be evidenced by an Award Agreement, in such form as the Board shall from
time to time approve, and the terms and conditions of such Awards shall be set
forth therein. At the time of the grant of a Restricted Stock Award, the Board
may impose such restrictions or conditions to the vesting of such Award as it,
in its sole discretion, deems appropriate. Such conditions to vesting may
include (without limitation), in the Board's sole discretion, the achievement of
performance goals which may be set forth in the Award Agreement. Such
performance goals may (without limitation) be based on an increase in the
trading price of Stock, achievement of certain goals relating to Teligent's
return on assets, return on equity, earnings per share, in each case, determined
in accordance with generally accepted accounting principles.
<PAGE>
(a) RESTRICTIONS. Prior to the vesting of a share of Restricted Stock,
such share of Restricted Stock may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the laws of descent and
distribution. Certificates for shares of Stock which may be issued pursuant to
Restricted Stock Awards shall bear an appropriate legend referring to such
restrictions, and any attempt to dispose of any such shares of Stock in
contravention of such restrictions shall be null and void and without effect.
(b) FORFEITURE. Subject to such exceptions as may be determined by the
Board, if an employee Participant's continuous employment with the Company shall
terminate for any reason, or if a consultant or director Participant's service
with the Company shall terminate for any reason, any shares remaining subject to
restrictions shall thereupon be forfeited by the Participant and transferred to,
and reacquired by, Teligent at no cost to Teligent.
(c) OWNERSHIP. Except to the extent otherwise set forth in the Award
Agreement, a Participant who is granted a Restricted Stock Award shall possess
all incidents of ownership of such shares, subject to Section 7(a), including
the right to receive dividends with respect to such shares and to vote such
shares.
8. GENERAL PROVISIONS.
(a) COMPLIANCE WITH LEGAL REQUIREMENTS. The Plan and the granting and
exercising of Awards, and the other obligations of Teligent under the Plan and
any Award Agreement or other agreement shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any
regulatory or governmental agency as may be required. Teligent, in its
discretion, may postpone the issuance or delivery of Stock under any Award as
Teligent may consider appropriate and may require any Participant to make such
representations and furnish such information as it may consider appropriate in
connection with the issuance or delivery of Stock in compliance with applicable
laws, rules and regulations.
(b) NONTRANSFERABILITY. Awards shall not be transferable by a Participant
other than (i) gratuitous transfers by an officer of the Company who is the
holder of an Award to his or her immediate family members or to a trust for the
benefit of any such immediate family member or members, (ii) by will or the laws
of descent and distribution or, (iii) if then permitted by Rule 16b-3 under the
Exchange Act, pursuant to a Qualified Domestic Relations Order (as defined under
the Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder). Awards shall be exercisable during the
lifetime of a Participant only by such Participant or his guardian or legal
representative.
(c) NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or in any Award
granted or any Award Agreement or other agreement entered into pursuant hereto
shall confer upon any Participant the right to continue in the employ of the
Company or to continue service as a consultant or director of the Company or to
be entitled to any remuneration or benefits not set forth in the Plan or such
Award Agreement or other agreement or to interfere with or limit in any way the
right of the Company to terminate such employee Participant's employment or the
service of a consultant or director Participant.
(d) WITHHOLDING TAXES. Where a Participant or other person is entitled to
receive shares of Stock pursuant to the exercise of an Option or is otherwise
entitled to receive shares of Stock or cash pursuant to an Award hereunder,
Teligent shall have the right to require the Participant or such other person to
pay to Teligent the amount of any taxes which Teligent may be required to
withhold before delivery to such Participant or other person of cash or a
certificate or certificates representing such shares.
<PAGE>
If a Participant makes a disposition, within the meaning of Section
424(c) of the Code and regulations promulgated thereunder, of any share or
shares of Stock issued to such Participant pursuant to the exercise of an
Incentive Stock Option within the two-year period commencing on the date after
the date of the grant or within the one-year period commencing on the day after
the date of transfer of such share or shares of Stock to the Participant
pursuant to such exercise, the Participant shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice to
Teligent at its principal executive office.
Unless otherwise prohibited by the Board or by applicable law, a
Participant may satisfy any such withholding tax obligation by any of the
following methods, or by a combination of such methods: (a) tendering a cash
payment; (b) authorizing Teligent to withhold from the shares of Stock or cash
otherwise payable to such Participant (1) one or more of such shares having an
aggregate Fair Market Value, determined as of the date the withholding tax
obligation arises, less than or equal to the amount of the total withholding tax
obligation or (2) cash in an amount less than or equal to the amount of the
total withholding tax obligation; or (c) delivering to Teligent previously
acquired shares of Stock (none of which shares may be subject to any claim,
lien, security interest, community property right or other right of spouses or
present or former family members, pledge, option, voting agreement or other
restriction or encumbrance of any nature whatsoever) having an aggregate Fair
Market Value, determined as of the date the withholding tax obligation arises,
less than or equal to the amount of the total withholding tax obligation.
(e) AMENDMENT AND TERMINATION OF THE PLAN. The Board may at any time and
from time to time alter, amend, suspend, or terminate the Plan in whole or in
part; provided that, no amendment which requires stockholder approval under
applicable law in order for the Plan to continue to comply with Section 422 or
162(m) of the Code or in order for the Plan to continue to comply with the rules
and regulations of any exchange or other trading market on which Teligent's
shares of Stock are traded shall be effective unless the same shall be approved
by the requisite vote of the stockholders of Teligent. Notwithstanding the
foregoing, no amendment shall affect adversely any of the rights of any
Participant, without such Participant's consent, under any Award theretofore
granted under the Plan. The power to grant Awards under the Plan will
automatically terminate at the end of the 2007 fiscal year. If the Plan is
terminated, any unexercised Option or SAR shall continue to be exercisable in
accordance with its terms and the terms of the Plan in effect immediately prior
to such termination.
(f) CHANGE IN CONTROL. Notwithstanding any other provision of the Plan to
the contrary, if, while any Awards remain outstanding under the Plan, a Change
in Control of Teligent (as defined in this Section 8(f)) shall occur, then
(unless otherwise provided in the applicable Award Agreement), (x) all Options
and SARs that are outstanding at the time of such Change in Control shall become
immediately exercisable in full and (y) all restrictions with respect to shares
of Restricted Stock shall lapse, and such shares shall be fully vested and
nonforfeitable.
For purposes of this paragraph 8(f), a "Change in Control" of Teligent
shall occur if :
(1) any person or entity, or group of affiliated persons or entities,
other than The Associated Group, Inc., a Delaware corporation, and Telcom-DTS
Investors, L.L.C., a Delaware limited liability company (collectively, the
"Original Shareholders") and/or their respective affiliates acquires stock of
the Company representing more than fifty percent (50%) of the voting power of
all such outstanding stock;
<PAGE>
(2) the majority of the Board consists of persons who are designees of
any person or entity or group of affiliated persons or entities which hold stock
in the Company, other than the Original Shareholders and/or their respective
affiliates;
(3) the Company adopts a plan of liquidation providing for the
distribution of all or substantially all of its assets; or
(4) all or substantially all of the business enterprise of the Company
is disposed of pursuant to a sale of assets transaction or a merger,
consolidation or similar transaction in which the Company is not the surviving
entity (unless (A) no person or entity, or group of affiliated persons or
entities, other than the Original Shareholders and/or their respective
affiliates, owns immediately after such transaction stock or other equity
interests of the entity which succeeds to the business of the Company as a
result of such transaction representing more than fifty percent (50%) of the
voting power of all such outstanding stock, (B) a majority of the board of
directors (or comparable governing body) of the entity which succeeds to the
business of the Company as a result of such transaction consists of persons (or
persons designated by such persons) who constituted a majority of the Board
immediately prior to such transaction, and (C) such successor entity assumes in
writing the Company's obligations under the Plan. For purposes of this
definition, "affiliate" (or derivations thereof) of any person or entity means
any other person or entity directly or indirectly controlling or controlled by
or under direct or indirect common control with such person or entity; and for
purposes of such definition, "control" when used with respect to any person or
entity means the power to direct the management and policies of such person or
entity, directly or indirectly, whether through the ownership of voting
securities or other equity interests, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
(g) PARTICIPANT RIGHTS. No Participant shall have any claim to be granted
any Award under the Plan, and there is no obligation for uniformity of treatment
for Participants. Except as provided specifically herein, a Participant or a
transferee of an Award shall have no rights as a stockholder with respect to any
shares of stock covered by any Award until the date of the issuance of a Stock
certificate to him for such shares.
(h) UNFUNDED STATUS OF AWARDS. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Award shall give any such Participant any rights that are
greater than those of a general creditor of Teligent.
(i) NO FRACTIONAL SHARES. No fractional shares of Stock shall be issued or
delivered pursuant to the Plan or any Award. The Board shall determine whether
cash, other Awards or other property shall be issued or paid in lieu of such
fractional shares or whether such fractional shares or any rights thereto shall
be forfeited or otherwise eliminated.
(j) GOVERNING LAW. The Plan and all determinations made and actions taken
pursuant hereto shall be governed by the laws of the State of Delaware without
giving effect to the conflict of laws principles thereof.
(k) EFFECTIVE DATE. The Plan has previously been approved by the Board and
Teligent's sole stockholder. The Plan shall become effective on the effective
date of the Initial Offering (the "Effective Date"), and shall be of no force
and effect if the Initial Offering is not consummated.
<PAGE>
(l) BENEFICIARY. A Participant may file with the Board a written
designation of a beneficiary on such form as may be prescribed by the Board and
may, from time to time, amend or revoke such designation. If no designated
beneficiary survives the Participant, the executor or administrator of the
Participant's estate shall be deemed to be the grantee's beneficiary.
(m) INTERPRETATION. The Plan is designed and intended to comply with
Section 162(m) of the Code, and all provisions hereof shall be construed in a
manner to so comply.
EXHIBIT 4.5
TELIGENT, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
9. PURPOSE.
The purpose of the Teligent, Inc. 1999 Employee Stock Purchase Plan
(the "Plan") is to provide employees of Teligent, Inc. (the "Company") and its
Designated Subsidiaries with an opportunity to acquire an interest in the
Company through the purchase of Class A Common Stock of the Company, $.01 par
value per share (the "Common Stock"), with accumulated payroll deductions. The
Company intends the Plan to qualify as an "employee stock purchase plan" within
the meaning of Section 423 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the provisions of the Plan shall be construed in a manner
consistent with the requirements of Section 423 of the Code.
10. DEFINITIONS.
"Authorization Form" shall mean a form supplied by and delivered to the Company
by a Participant in the form of Attachment A hereto authorizing payroll
deductions as set forth in Section 5 hereof and such other terms and conditions
as the Company from time to time may determine.
"Board" shall mean the Board of Directors of the Company.
"Committee" shall mean a committee of at least three members of the Board
appointed by the Board to administer the Plan and to perform the functions set
forth herein and who are "non-employee directors" within the meaning of Rule
16b-3 as promulgated under Section 16 of the Securities Exchange Act of 1934
(the "Exchange Act").
"Compensation" shall mean the base salary or wage (including commissions)
payable by the Company to an Employee, including an Employee's portion of salary
deferral contributions pursuant to Section 401(k) of the Code and any amount
excludable pursuant to Section 125 of the Code, but excluding any bonus, fee,
overtime pay, severance pay, or other special emolument or any credit or benefit
under any employee plan maintained by the Company.
"Designated Subsidiaries" shall mean all Subsidiaries designated by the Board
from time to time, in its sole discretion, as eligible to participate in the
Plan.
"Eligible Employee", shall mean any Employee excluding: (i) any Employee who is
customarily scheduled to work 20 hours per week or less and (ii) any Employee
who customarily is employed for not more than five (5) months in any calendar
year.
"Employee" shall mean any person, including an officer, who is regularly
employed by the Company or one of its Designated Subsidiaries.
"Exercise Date" shall mean, with respect to each Offering Period, the last
business day prior to the next Offering Date in which payroll deductions are
made under the Plan.
"Fair Market Value" per share as of a particular date shall mean the last
reported sale price (on that date) of the Common Stock on The Nasdaq National
Market.
"Offering Date" shall mean the first business day of January and July of each
plan year, provided that the Committee shall have the power to change the
Offering Date.
"Offering Period" shall mean a period of time during the effectiveness of the
Plan, commencing on each Offering Date and ending on the Exercise Date thereof.
"Participant" shall mean an Employee who participates in the Plan.
"Plan Year" shall mean, for the first year the period beginning on July 1, 1999
and ending on December 31, 1999, and for each year thereafter shall mean the
period beginning on January 1 and ending on December 31.
"Subsidiary" shall mean any corporation, if any, having the relationship to the
Company described in Section 424(f) of the Code.
<PAGE>
11. ELIGIBILITY AND PARTICIPATION.
Any person who is an Eligible Employee on an Offering Date shall be
eligible to become a Participant in the Plan beginning on that Offering Date and
shall become a Participant as of that Offering Date by completing an
Authorization Form and filing it with the Company by the date required by the
Company. Such authorization will remain in effect for subsequent Offering
Periods, until modified or terminated by the Participant.
Any person who first becomes an Eligible Employee during an Offering
Period shall be eligible to become a Participant in the Plan as of the first day
of the Offering Date beginning after the date on which that person became an
Eligible Employee and shall become a Participant as of such date by completing
an Authorization Form and filing it with the Company by the date required by the
Company. Such authorization will remain in effect for subsequent Offering
Periods, until modified or terminated by the Participant.
A person shall cease to be a Participant upon the earliest to occur
of: the date the Participant ceases to be an Eligible Employee, for any reason;
the first day of the Offering Period beginning after the date on which the
Participant ceases payroll deductions under the Plan; or the date of a
withdrawal from the Plan by the Participant.
12. GRANT OF OPTION.
On each Offering Date the Company shall grant each Eligible Employee
an option to purchase shares of Common Stock, subject to the limitations set
forth in Sections 3.b, 3.c and 10 hereof.
The option price per share of the Common Stock subject to an offering
shall be the lesser of: (i) eighty-five percent (85%) of the Fair Market Value
of a share of Common Stock on the Offering Date or (ii) eighty-five percent
(85%) of the Fair Market Value of a share of Common Stock on the Exercise Date.
No Participant shall be granted an option which permits his rights to purchase
Common Stock under all employee stock purchase plans of the Company to accrue at
a rate which exceeds $25,000 of the Fair Market Value of the Common Stock
(determined at the time the option is granted) for each calendar year in which
such stock option is outstanding at any time.
No Participant may be granted an option if, upon such grant, such
Participant would own immediately after the grant of an option under the Plan
and applying the rules of Section 424(d) of the Code in determining stock
ownership shares, and/or hold outstanding options to purchase shares, possessing
five percent (5%) or more of the total combined voting power or value of all
classes of shares of the Company.
13. PAYROLL DEDUCTIONS.
A Participant may, in accordance with rules adopted by the Committee,
submit an Authorization Form that authorizes a payroll deduction of any whole
percentage from one (1) percent to fifteen (15) percent of such Participant's
Compensation (not to exceed the $25,000 limit set forth in 4(c) above) on each
pay period during the Offering Period. A Participant may increase or decrease
such payroll deduction (including a cessation of payroll deductions) effective
as of the start of the next Offering Period, provided the Employee files with
the Company the Authorization Form requesting such change by the date required
by the Company.
All payroll deductions made by a Participant shall be credited to such
Participant's account under the Plan. A Participant may not make any additional
payments into such account.
<PAGE>
14. EXERCISE OF OPTION.
Unless a Participant withdraws from the Plan as provided in Section 8
hereof, such Participant's election to purchase shares will be exercised
automatically on the Exercise Date, and the maximum number of full shares
subject to such option will be purchased for such Participant at the applicable
option price with the accumulated payroll deductions and cash dividends
(credited pursuant to Section 9 hereof) in such Participant's account. During a
Participant's lifetime, his or her option to purchase shares hereunder is
exercisable only by such Participant.
Any cash balance remaining in a Participant's account after the
termination of an Offering Period will be carried forward to the Participant's
account for the purchase of Common Stock during the next Offering Period if the
Participant has elected to continue to participate in the Plan. Otherwise, the
Participant will receive a cash payment equal to the balance of his or her
account as soon as administratively feasible. The shares of Common Stock
purchased upon exercise of an option hereunder shall be credited to the
Participant's account under the Plan and shall be deemed to be transferred to
the Participant on the Exercise Date and, except as otherwise provided herein,
the Participant shall have all rights of a stockholder with respect to such
shares.
15. DELIVERY OF COMMON STOCK.
As promptly as practicable after receipt by the Committee of a written
request for withdrawal of Common Stock from any Participant, the Company shall
arrange the delivery to such Participant of a stock certificate representing the
shares of Common Stock which the Participant requests to withdraw. Withdrawals
may be made no more frequently than twice each Plan Year unless approved by the
Committee in its sole discretion. Shares of Common Stock received upon stock
dividends or stock splits shall be treated as having been purchased on the
Exercise Date of the shares to which they relate.
16. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
A Participant may withdraw all, but not less than all, the payroll
deductions and cash dividends credited to such Participant's account (that have
not been used to purchase shares of Common Stock) under the Plan at any time by
giving written notice to the Company received prior to the Exercise Date. All
such payroll deductions and cash dividends credited to such Participant's
account will be paid to such Participant promptly after receipt of such
Participant's notice of withdrawal and such Participant's option for the
Offering Period in which the withdrawal occurs will be automatically terminated.
No further payroll deductions for the purchase of shares of Common Stock will be
made for such Participant during such Offering Period, and any additional cash
dividends during the Offering Period will be distributed to the Participant.
Upon termination of a Participant's status as an Employee during an
Offering Period for any reason, including voluntary or involuntary termination,
retirement or death, the payroll deductions and cash dividends credited to such
Participant's account that have not been used to purchase shares of Common Stock
will be returned (and any future cash dividends will be distributed) to such
Participant or, in the case of such Participant's death, to the person or
persons entitled thereto under Section 12 hereof, and such Participant's option
will be automatically terminated. A Participant's status as an Employee shall
not be considered terminated in THE CASE OF A LEAVE OF ABSENCE AGREED TO IN
WRITING BY THE COMPANY (INCLUDING, BUT NOT LIMITED TO, MILITARY AND SICK LEAVE),
PROVIDED that such leave is for a period of not more than ninety (90) days or
reemployment upon expiration of such leave is guaranteed by contract or statute.
A Participant's withdrawal from an offering will make that Participant
ineligible to participate in the next succeeding Offering Period.
<PAGE>
17. DIVIDENDS.
Cash dividends paid on Common Stock held in a Participant's account
shall be credited to such Participant's account and used in addition to payroll
deductions to purchase shares of Common Stock on the Exercise Date. Dividends
paid in Common Stock or stock splits of the Common Stock shall be credited to
the accounts of Participants. Dividends paid in property other than cash or
Common Stock shall be distributed to Participants as soon as practicable.
No interest shall accrue on or be payable with respect to the payroll
deductions or credited cash dividends of a Participant in the Plan.
18. STOCK.
The maximum number of shares of Common Stock which shall be reserved
for sale under the Plan shall be 300,000, subject to adjustment upon the
occurrence of an event as provided in Section 15 hereof. If the total number of
shares which would otherwise be subject to options granted pursuant to Section
4.a. hereof on an Offering Date exceeds the number of shares then available
under the Plan (after deduction of all shares for which options have been
exercised or are then outstanding), the Committee shall make a pro rata
allocation of the shares remaining available for option grant in as uniform a
manner as shall be practicable and as it shall determine to be equitable. In
such event, the Committee shall give written notice to each Participant of such
reduction of the number of option shares affected thereby and shall similarly
reduce the rate of payroll deductions, if necessary.
Shares of Common Stock to be delivered to a Participant under the Plan
will be registered in the name of the Participant or, at the election of the
Participant, in the name of the Participant and another person as joint tenants
with rights of survivorship.
19. ADMINISTRATION.
The Plan shall be administered by the Committee, and the Committee may
select an administrator to whom its duties and responsibilities hereunder may be
delegated. The Committee shall have full power and authority, subject to the
provisions of the Plan, to promulgate such rules and regulations as it deems
necessary for the proper administration of the Plan, to interpret the provisions
and supervise the administration of the Plan, and to take all action in
connection therewith or in relation thereto as it deems necessary or advisable.
Any decision reduced to writing and signed by a majority of the members of the
Committee shall be fully effective as if it had been made at a meeting duly
held. The Company will pay all expenses incurred in the administration of the
Plan. No member of the Committee shall be personally liable for any action,
determination, or interpretation made in good faith with respect to the Plan,
and all members of the Committee shall be fully indemnified by the Company with
respect to any such action, determination or interpretation.
20. DESIGNATION OF BENEFICIARY.
A Participant may file, on forms supplied by and delivered to the
Company, a written designation of a beneficiary who is to receive any shares and
cash in the event of the Participant's death. Such designation of beneficiary
may be changed by the Participant at any time by written notice. In the event of
the death of a Participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such Participant's death,
the Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the Participant or, if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may delivery such shares and/or cash to the spouse or to any
one or more dependents or relatives of the Participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as the
Company may designate.
<PAGE>
21. TRANSFERABILITY.
Neither payroll deductions credited to a Participant's account nor any
rights with regard to the exercise of an option or to receive shares under the
Plan may be assigned, transferred, pledged or otherwise disposed of in any way
(other than by will, the laws of descent and distribution or as provided in
Section 12 hereof) by the Participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds in accordance with Section 8
hereof.
22. USE OF FUNDS.
All payroll deductions received or held by the Company under the Plan
may be used by the Company for any corporate purpose, and the Company shall not
be obligated to segregate such payroll deductions.
23. EFFECT OF CERTAIN CHANGES.
In the event of any increase, reduction, or change or exchange of
shares of Common Stock for a different number or kind of shares or other
securities of the Company by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, stock dividend, stock split or reverse
stock split, combination or exchange of shares, repurchase of shares, change in
corporate structure, distribution of an extraordinary dividend or otherwise, the
Committee shall conclusively determine the appropriate equitable adjustments, if
any, to be made under the Plan, including without limitation adjustments to the
number of shares of Common Stock which have been authorized for issuance under
the Plan but have not yet been placed under option, as well as the price per
share of Common Stock covered by each option under the Plan which has not yet
been exercised.
24. AMENDMENT OR TERMINATION.
The Board may at any time terminate or amend the Plan. Except as
provided in Section 15 hereof, no such termination can adversely affect options
previously granted and no amendment may make any change in any option
theretofore granted which adversely affects the rights of any Participant. No
amendment shall be effective unless approved by the stockholders of the Company
if stockholder approval of such amendment is required to comply with any law,
regulation or stock exchange rule.
25. NOTICES.
All notices or other communications by a Participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
26. REGULATIONS AND OTHER APPROVALS; GOVERNING LAW
This Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such State. The obligation
of the Company to sell or deliver shares of Common Stock with respect to options
granted under the Plan shall be subject to all applicable laws, rules and
regulations, including all applicable Federal and state securities laws, and the
obtaining of all such approvals by governmental agencies as may be deemed
necessary or appropriate by the Committee. The Plan is intended to comply with
Rule 16b-3 as promulgated under Section 16 of the Exchange Act and the Committee
shall interpret and administer the provisions of the Plan in a manner consistent
therewith. Any provisions inconsistent with such Rule shall be inoperative and
shall not affect the validity of the Plan.
<PAGE>
27. WITHHOLDING OF TAXES.
If the Participant makes a disposition, within the meaning of Section
424(c) of the Code and regulations promulgated thereunder, of any share or
shares issued to such Participant pursuant to such Participant's exercise of an
option, and such disposition occurs within the two-year period commencing on the
day after the Offering Date or within the one-year period commencing on the day
after the Exercise Date, such Participant shall, within five (5) days of such
disposition, notify the Company thereof and thereafter immediately deliver to
the Company any amount of Federal, state or local income taxes and other amounts
which the Company informs the Participant the Company is required to withhold.
28. EFFECTIVE DATE; APPROVAL OF STOCKHOLDERS.
The Plan is effective as of July 1, 1999. The Plan shall be submitted
to the stockholders of the Company for their approval at the next stockholder
meeting. The Plan is conditioned upon the approval of the stockholders of the
Company, and failure to receive their approval shall render the Plan void and of
no effect.
<PAGE>
ATTACHMENT A
TELIGENT, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
AUTHORIZATION FORM
I, _________________ , acknowledge receipt of a copy of the Teligent,
Inc. 1999 Employee Stock Purchase Plan (the "Plan"), and agree to the terms
thereunder.
I elect:
(A) ____ TO COMMENCE OR TO CONTINUE PARTICIPATION IN THE
PLAN, AND EFFECTIVE AS OF THE OFFERING DATE1 which
next commences after the date hereof, I elect to have
__% (write in any whole number from 1 to 15,
inclusive) of my weekly Compensation deducted by the
Company for the purchase of Common Stock on each
subsequent Exercise Date until I have submitted
another form revoking this authorization or modifying
it.
(b) ____ to cease participation in the Plan as of the
date hereof.
I further elect:
(a) ____ to have all shares of Common Stock to be
delivered to me hereunder to be registered in my
name.
(b) ____ to have all shares of Common Stock to be
delivered to me hereunder to be registered in my name
and that of _____________ as joint tenants with right
of survivorship.
Name:____________________
Date:____________________
- --------
1 All capitalized terms not otherwise defined in this Authorization Form shall
have the meaning ascribed to them in the Plan.
EXHIBIT 5.1
December 21, 1999
Teligent, Inc.
8065 Leesburg Pike, Suite 400
Vienna, Virginia 22182
Dear Sirs and Madams:
We have acted as counsel to Teligent, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing by the Company of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, for the registration of 4,300,000 shares of
Class A Common Stock, $0.01 par value per share (the "Shares"), of the Company
which may be issued upon exercise of stock options pursuant to the Teligent,
Inc. 1997 Stock Incentive Plan and the Teligent, Inc. 1999 Employee Stock
Purchase Plan (collectively, the "Plans").
We have examined and are familiar with originals or copies, certified
or otherwise identified to our satisfaction, of such documents, corporate
records, certificates of public officials and officers of the Company and such
other instruments as we have deemed necessary or appropriate as a basis for the
opinions expressed below.
Based on the foregoing, we are of the opinion that:
1. The issuance of the Shares upon exercise of stock options
granted under the Plans has been duly authorized; and
2. When the Shares have been issued and delivered in accordance
with the terms of the Plans, the Shares will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/S/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
---------------------------------------------
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-_____) pertaining to the Teligent, Inc. 1997 Stock Incentive Plan
and the Teligent, Inc. 1999 Employee Stock Purchase Plan, of our report dated
February 12, 1999, with respect to the consolidated financial statements of
Teligent, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
McLean, Virginia
December 20, 1999
