AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 21, 1999
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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
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TELIGENT, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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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.
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.
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.
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.
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.
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
(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
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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.
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
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).