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.
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.
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.
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.
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 23,729,125. 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.
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.
(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.
(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.
(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.
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;
(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.
(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.
