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.
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.
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.
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.
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.
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.
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:____________________
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1 All capitalized terms not otherwise defined in this Authorization Form shall
have the meaning ascribed to them in the Plan.