<PAGE> 1
File No. 333-________
As filed with the Securities and Exchange Commission on December 22, 1997.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PAGING NETWORK, INC.
(Exact name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
04-2740516
(I.R.S. Employer Identification No.)
4965 PRESTON PARK BOULEVARD, SUITE 600, PLANO, TEXAS 75093
(Address of Principal Executive Offices) (Zip Code)
NONSTATUTORY STOCK OPTION AGREEMENT FOR JOHN P. FRAZEE, JR.
(Full Title of the Plan)
JOHN P. FRAZEE, JR.
Chairman, President and Chief Executive Officer
G. ROBERT THOMPSON
Vice President - Finance, and Acting Chief Financial Officer
Paging Network, Inc.
4965 Preston Park Boulevard
Suite 600
Plano, Texas 75093
(Name and Address of Agents For Service)
(972) 985-4100
Telephone Number, Including Area Code, of Agents For Service.
Copy to:
ROGER D. FELDMAN, ESQ.
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
(617) 951-8000
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 100,000 $8.688 $868,800 $263.25
value per share
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Paging Network, Inc. (the "REGISTRANT")
with the Securities and Exchange Commission (the "SEC") are hereby incorporated
by reference into this Registration Statement: (1) the Registrant's Annual
Report on Forms 10-K and 10-K/A for the Registrant's fiscal year ended December
31, 1996 filed pursuant to Section 13(a) of the Exchange Act; (2) all reports
filed by the Registrant pursuant to Sections 13(a) or 15(d) of the Exchange Act
since December 31, 1996, including the Registrant's Quarterly Report on Forms
10-Q and 10-Q/A for the quarters ended March 31, 1997 and June 30, 1997, the
Registrant's Current Report on Form 8-K filed September 25, 1997 and the
Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30,
1997; and (3) the description of the Common Stock contained in the Registrant's
registration statement on Form 8-A filed with the SEC pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended, (the "EXCHANGE ACT")
including any amendment or report filed for the purpose of updating such
description.
In addition, all documents filed 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 registered hereby have been sold or which deregisters all of
such securities then remaining unsold shall be incorporated by reference into
this Registration Statement as of the filing date of each.
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 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
Article TENTH of the Registrant's Certificate of Incorporation provides
as follows:
"The Corporation shall indemnify, defend and hold harmless 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, investigative or other, including appeals, by reason of the fact
that he or she is or was a Director, officer, employee or other agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or other agent of any corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
other agent of any corporation, partnership, joint venture, trust or other
enterprise, including service with
<PAGE> 4
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or other
agent, to the fullest extent authorized by the Delaware General Corporation Law,
against all expenses, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes and penalties, and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith; provided, however, that except with respect to proceedings seeking to
enforce the rights to indemnification granted herein, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if the proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation.
Without limiting the generality or the effect of the foregoing, the Corporation
may enter into one or more agreements with any person which provide for
indemnification greater or different than that provided in this Article TENTH.
Any amendment or repeal of this Article TENTH shall not adversely affect any
right or protection existing hereunder immediately prior to such amendment or
repeal."
Article VI of the Registrant's By-Laws contains indemnification
provisions permitted by Section 145 of Delaware's General Corporation Law as
follows:
"INDEMNIFICATION OF OFFICERS AND OTHERS
Section 1. The corporation shall 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 or she is or was an officer of the corporation, or is
or was serving at the request of the corporation as director or officer of
another corporation, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if he or she acted in
good faith in a manner he or she reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her 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,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
Section 2. The corporation shall 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 by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was an officer
of the corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interest of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine upon
<PAGE> 5
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
indemnify for such expenses which the court shall deem proper.
Section 3. To the extent that an officer of the corporation or person
serving at the request of the corporation as a director or officer of another
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article VI or
in defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article VI
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the officer or
person serving at the request of the corporation as a director or officer of
another corporation is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 1 and 2 of this Article VI.
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
Section 5. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the officer or person serving at the request of the corporation
as a director or officer of another corporation to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
corporation as authorized in this Article VI.
Section 6. The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
Section 7. The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was an officer of the corporation or
is or was serving at the request of the corporation as a director or officer of
another corporation against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify him or
her against such liability under the provisions of this Article VI.
Section 8. For purposes of this Article VI, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors and officers so that any
person who is or was a director or officer of such constituent
<PAGE> 6
corporation, or is or was serving at the request of such constituent corporation
as a director or officer of another corporation shall stand in the same position
under the provisions of this Article VI with respect to the resulting or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
Section 9. The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an officer,
employee or person serving at the request of the corporation as a director or
officer of another corporation and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 10. This Article VI may be amended or repealed only by the
affirmative vote of the holders of a majority of the Voting Stock; provided that
no such amendment or repeal shall adversely affect any right to indemnification
for any act or omission of any person referred to in Section 1 and 2 of this
Article VI which occurred or allegedly occurred prior to the effective date of
such amendment or repeal.
Section 11. If in any action, suit or other proceeding or investigation,
a Director of the corporation is held not liable for monetary damages because
that director is relieved of personal liability under Article NINTH of the
Certificate of Incorporation or otherwise, the Director shall be deemed to have
met the standards of conduct set forth above and to be entitled to
indemnification as provided above."
The Registrant has entered into indemnification agreements with each of
its present Directors and executive officers. These agreements provide rights of
indemnification that are substantially similar to those provided by the
Registrant's Certificate of Incorporation and By-Laws, and in addition provide
that within thirty days of a written demand for indemnification, and within five
business days of a request for an advance of expenses, the Registrant shall
either make payment or determine that the relevant standards for indemnification
have not been met; that in any action brought by an indemnitee to enforce the
right to indemnification or advances, the burden of proving that any
indemnification or advance is not appropriate shall be on the Registrant; that
neither the timing of the Registrant's decision whether to indemnify nor any
Registrant determination that the indemnitee has not met such standards shall
create any presumption in such an action that the indemnitee has not met such
standards; and that the indemnitee's expenses incurred in bringing such an
action and/or in an action seeking recovery under any Directors' and officers'
liability insurance policies maintained by the Registrant shall also be
indemnified by the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<PAGE> 7
4.1 Restated Certificate of Incorporation of the Registrant, as
amended, incorporated by reference to Exhibit No. 3.1 to the
Registrant's Registration Statement on Form S-1 (No. 33-42253).
4.2 By-Laws of the Registrant, as amended, incorporated by reference
to Exhibit No. 3.3 to the Registrant's Registration Statement on
Form S-1 (No. 33-42253).
4.3 Nonstatutory Stock Option Agreement for John P. Frazee, Jr.
5 Opinion of Bingham Dana LLP as to the legality of the securities
being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Bingham Dana LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature pages of the
Registration Statement).
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE
offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain
unsold at the termination of the offering;
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the
<PAGE> 8
offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof;
(5) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report, to
security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not
set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information; and
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange
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.
<PAGE> 9
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 duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Plano, Texas, as of the 22 day of December,
1997.
PAGING NETWORK, INC.
By: /s/ John P. Frazee, Jr.
-----------------------------------------------
John P. Frazee, Jr.
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints John P.
Frazee, Jr., G. Robert Thompson and Roger D. Feldman and each of them severally,
acting alone and without any other, his true and lawful attorney-in-fact with
the authority to execute in the name of each such person, and to file with the
Securities and Exchange Commission, together with any exhibits thereto and other
documents therewith, any and all amendments (including without limitation
post-effective amendments) to this Registration Statement on Form S-8 necessary
or advisable to enable the Registrant to comply with the Securities Act of 1933,
as amended, and any rules, regulations, and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make such other
changes in the Registration Statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
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 indicated as of the 22 day of December, 1997.
Signature Title
--------- -----
/s/ John P. Frazee, Jr. Chairman, President and Chief Executive
- ----------------------------- Officer (Principal Executive Officer)
John P. Frazee, Jr.
/s/ G. Robert Thompson Vice President - Finance, and
- ----------------------------- Acting Chief Financial Officer
G. Robert Thompson (Principal Financial Officer and
Principal Accounting Officer)
/s/ Richard C. Alberding Director
- -----------------------------
Richard C. Alberding
<PAGE> 10
/s/ Bryan C. Cressey Director
- -----------------------------
Bryan C. Cressey
/s/ John S. Llewellyn, Jr. Director
- -----------------------------
John S. Llewellyn, Jr.
/s/ Lee M. Mitchell Director
- -----------------------------
Lee M. Mitchell
/s/ George M. Perrin Director
- -----------------------------
George M. Perrin
/s/ Carl D. Thoma Director
- -----------------------------
Carl D. Thoma
/s/ Roy A. Wilkens Director
- -----------------------------
Roy A. Wilkens
<PAGE> 11
Exhibit Index
Exhibit No. Description Of Documents
- ----------- ------------------------
4.1 Restated Certificate of Incorporation of the Registrant, as amended,
incorporated by reference to Exhibit No. 3.1 to the Registrant's
Registration Statement on Form S-1 (No. 33-42253).
4.2 By-Laws of the Registrant, as amended, incorporated by reference to
Exhibit No. 3.3 to the Registrant's Registration Statement on Form
S-1 (No. 33-42253).
4.3 Nonstatutory Stock Option Agreement for John P. Frazee, Jr.
5 Opinion of Bingham Dana LLP as to the legality of the securities
being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Bingham Dana LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature pages of the
Registration Statement).
<PAGE> 1
Exhibit 4.3
-----------
PAGING NETWORK, INC.
NONSTATUTORY STOCK OPTION AGREEMENT FOR
JOHN P. FRAZEE, JR.
THIS AGREEMENT is entered into by and between Paging Network, Inc., a
Delaware corporation (hereinafter the "Company"), and John P. Frazee, Jr.
(hereinafter the "Optionee"), whose address is set forth on the execution page
of this Agreement.
WHEREAS, the Company wishes to grant a nonqualified stock option to the
Optionee to purchase common stock of the Company so as to give him a proprietary
interest in the Company's success and to retain and motivate him; and
WHEREAS, the Optionee renders important services to the Company;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties hereby agree as follows:
PROVISIONS RELATING TO OPTIONS
1. ADMINISTRATION. This Agreement and the option granted hereunder shall be
administered either by the Board of Directors of the Company (the
"Board"), if each member of the Board is a disinterested person, or by a
committee comprised of two or more directors of the Company who are
disinterested persons and who are not employees of the Company or its
parent or a subsidiary ("nonemployee directors"). The members of such
committee shall be elected by the Board, which shall have the discretion
to remove any member of the committee for any reason. Hereinafter, the
term "Committee" shall mean the entity administering the Agreement
pursuant to this paragraph, whether the administrator is the Board or a
committee.
This option is granted pursuant to this Agreement and is in all respects
subject to the terms, conditions and definitions hereunder. Subject to
such terms, conditions and definitions, the Committee shall have full
power to construe and interpret this Agreement and to establish, amend
and rescind rules and
<PAGE> 2
-2-
regulations for its administration. The Optionee hereby accepts this
option subject to all the terms and provisions of this Agreement and
agrees that all decisions under and interpretations of the Agreement by
the Board or Committee shall be final, binding and conclusive upon the
Optionee and his heirs.
2. GRANT OF OPTION. The Company hereby grants to the Optionee the option to
purchase from the Company upon the terms and conditions hereinafter set
forth one hundred thousand (100,000) shares of the $.01 par value common
stock of the Company (the "Common Stock") at the purchase price per
share of $8.688. The date of grant of this option is the date set forth
as such on the execution page of this Agreement, and is hereinafter
referred to as the "Option Date."
3. TERM OF OPTION; EXERCISABILITY. The option shall become vested and
exercisable in accordance with the vesting schedule set forth below, so
long as the Optionee continues to perform services for the Company or
any subsidiary or parent of the Company.
NUMBER OF SHARES DATE VESTED
50,000 August 4, 1998
50,000 August 4, 1999
To the extent vested, the option shall be immediately exercisable in
full or in part and shall remain exercisable until it expires on the
tenth (10th) anniversary of the Option Date, unless the option is sooner
terminated as hereinafter provided.
4. OTHER CONDITIONS AND LIMITATIONS.
(a) The Company shall register the Common Stock subject to this
option on Form S-8 under the Securities Act of 1933, as amended.
The option is granted on the condition that the purchase of
Common Stock hereunder shall be for investment purposes and not
with a view to resale or distribution, except that such
condition shall be inoperative if the offering of Common Stock
subject to the option is registered, or if in the opinion of
counsel for the Company such Common Stock may be resold without
registration. At the time of the exercise of the option or any
installment thereof, the Optionee will execute such further
agreements
<PAGE> 3
-3-
as the Company may require to implement the foregoing condition
and to acknowledge the Optionee's familiarity with restrictions
on the resale of the shares under applicable securities laws.
(b) The Company will furnish upon request of the Optionee such
publicly available financial and other information concerning
the Company and its business and prospects as may be reasonably
requested by the Optionee in connection with the exercise of
this option.
(c) The option shall not be transferable by the Optionee otherwise
than by will or by the laws of descent and distribution, and the
option shall be exercisable during the Optionee's lifetime only
by the Optionee (or the Optionee's guardian or legal
representative).
(d) The Optionee shall have no rights as a stockholder or any claim
to dividends with respect to any shares covered by this option
until the date the option has been exercised and the full
purchase price for such shares has been received by the Company.
5. EXERCISE OF OPTION. The option grant shall be exercisable for the full
amount or for any part thereof and at such intervals or in such
installments as the Committee may determine at the time it grants such
option. Written notice of the exercise of the option or any installment
thereof shall be given to the Company's Treasurer (or any other officer
of the Company who is designated by the Company to accept such notices
on its behalf), specifying the number of shares for which it is
exercised.
Payment shall be made in full at the time the option is exercised.
Payment shall be made either by (i) cashier's or certified check, (ii)
if permitted by the Committee, by delivery and assignment to the Company
of shares of Common Stock having a value equal to the option price, or
(iii) by a combination of (i) and (ii). The value of the Common Stock
for such purpose shall be its fair market value as of the date the
option is exercised, as determined in accordance with procedures to be
established by the Committee.
<PAGE> 4
-4-
6. WITHHOLDING. The Optionee hereby agrees that the exercise of the option
or any installment thereof will not be effective, and no shares will
become transferable to the Optionee, until the Optionee makes
appropriate arrangements with the Company for such tax withholding as
may be required of the Company under federal, state or local law on
account of such exercise.
7. STOCK DIVIDENDS; STOCK SPLITS; STOCK COMBINATIONS; RECAPITALIZATION.
Appropriate adjustments shall be made in the number, kind, and option
price of shares covered by this option, to the extent it is outstanding,
to give effect to any stock dividends, stock splits, stock combinations,
recapitalizations and other similar changes in the capital structure of
the Company after the Option Date.
8. MERGER; SALE OF ASSETS; DISSOLUTION. Upon a Change in Control (as
defined in the Optionee's Employment Agreement dated as of August 4,
1997, hereinafter the "Employment Agreement"), this option shall be
immediately vested (subject to any applicable condition contained in the
Employment Agreement).
9. TERMINATION OF OPTION. In the event that the Optionee ceases for any
reason to be an employee of the Company or any parent or subsidiary of
the Company at any time prior to exercise of this option in full, this
option shall terminate in accordance with the following provisions:
(a) if the Optionee ceases to be an employee of the Company of any
parent or subsidiary of the Company by reason of resignation or
other voluntary action of the Optionee before his retirement on
or after age 55 or if the Company or any parent or subsidiary of
the Company determines that it no longer wishes to engage the
Optionee as an employee and makes such determination based on
cause (as defined in the Employment Agreement), the optionee
may, at any time within a period of thirty (30) days after he
ceased to be an employee, exercise the option to the extent that
the option was exercisable by him on the date on which he ceased
to be an employee of the Company or any parent or subsidiary of
the Company;
<PAGE> 5
-5-
(b) if the Optionee ceases to be an employee of the Company or any
parent or subsidiary of the Company for any reason other than
(i) cause (as defined in the Employment Agreement), (ii) death,
(iii) disability (as defined in (c) below), or (iv) resignation
or other voluntary action before his retirement on or after age
55, he may, at any time within a period of ninety (90) days
after he ceased to be an employee, exercise the option to the
extent that the option was exercisable by him on the date on
which he ceased to be an employee of the Company or any parent
or subsidiary of the Company;
(c) if the Optionee ceases to be an employee of the Company or any
parent or subsidiary of the Company because of a disability
within the meaning of Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended (the "Code"), he may, at any time
within a period of one (1) year after he ceases to be an
employee, exercise the option to the extent that the option was
exercisable by him on the date he ceased to be an employee of
the Company or any parent or subsidiary of the Company; and
(d) if the Optionee dies at a time when he might have exercised the
option, then his estate, personal representative or beneficiary
to whom it has been transferred by will or the laws of descent
and distribution may at any time within a period of one (1) year
after the Optionee's death exercise the option to the extent the
optionee might have exercised it at the time of his death;
provided, however, that this option may not be exercised to any extent
by anyone after the date of expiration of the option under Paragraph 3,
and provided, further, that this option may not be exercised to the
extent not vested under Paragraph 3 at any time after the Optionee
ceases to be an employee of the Company or any parent or subsidiary of
the Company.
<PAGE> 6
-6-
GENERAL PROVISIONS
10. DEFINITIONS.
(a) The term "disinterested person" shall have, for purposes of this
Agreement, the meaning ascribed to it in Rule 16b-3(c)(2)(i)
under Section 16 of the Securities Exchange Act of 1934, as
amended from time to time.
(b) The term "parent" shall have, for purposes of this Agreement,
the meaning ascribed to it under Section 424(e) of the Code and
the regulations promulgated thereunder.
(c) The term "subsidiary" shall have, for purposes of this
Agreement, the meaning ascribed to it under Section 424(f) of
the Code and the regulations promulgated thereunder. In
addition, but solely for purposes of determining when an option
will otherwise terminate due to the holder's termination of
employment and only in the case of a holder who is not subject
to Section 16 of the Securities Exchange Act of 1934, as
amended, or otherwise a director or officer of the Company or
its subsidiaries (as defined in the preceding sentence),
"subsidiary" shall include any other entity in which the Company
or any of its subsidiaries (as defined in the preceding
sentence) owns a significant equity interest, as determined by
the Committee in its discretion.
11. MISCELLANEOUS. Nothing herein contained shall impose any obligation on
the Company or any parent or subsidiary of the Company or the Optionee
with respect to the Optionee's continued performance of services for the
Company or any parent or subsidiary of the Company. Nothing herein
contained shall impose any obligation upon the Optionee to exercise the
option. The Company makes no representation as to the tax treatment to
the Optionee upon receipt or exercise of the option or sale or other
disposition of the shares covered by the option.
12. GOVERNING LAW. This agreement shall be subject to and construed in
accordance with the law of the State of Delaware.
<PAGE> 7
-7-
IN WITNESS WHEREOF, the Company and the Optionee have executed this
agreement in duplicate as of the Option Date, as specified below.
PAGING NETWORK, INC. JOHN P. FRAZEE, JR.
By: /s/ Levy Curry /s/ John P. Frazee, Jr.
---------------------------- -------------------------------
Levy Curry
Vice President 5777 Prestwick
Human Resources Dallas, TX 75252
Option Date: August 4, 1997
<PAGE> 1
[BINGHAM DANA LETTERHEAD]
Exhibit 5
---------
December 19, 1997
Paging Network, Inc.
4965 Preston Park Boulevard
Suite 600
Plano, Texas 75093
Dear Sir or Madam:
We have acted as counsel for Paging Network, Inc., a Delaware
corporation (the "COMPANY"), in connection with the Company's Registration
Statement on Form S-8 to be filed with the Securities and Exchange Commission on
December 19, 1997 (the "REGISTRATION STATEMENT").
The Registration Statement effects the registration of 100,000 shares of
the common stock, $.01 par value per share, of the Company (the "SHARES"), which
are to be issued by the Company to John P. Frazee, Jr. upon exercise of employee
stock options granted pursuant to the Paging Network, Inc. Nonstatutory Stock
Option Agreement for John P. Frazee, Jr. (the "AGREEMENT").
We have reviewed the corporate proceedings of the Company with respect
to the authorization of the Agreement and the issuance of the Shares thereunder.
We have also examined and relied upon originals or copies of such agreements,
instruments, corporate records, certificates, and other documents as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document.
We further assume that all Shares issued pursuant to the Agreement will
be issued in accordance with the terms of such Agreement.
Subject to the limitations set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this opinion.
This opinion is
<PAGE> 2
Paging Network, Inc.
December 19, 1997
Page 2
limited solely to the Delaware General Corporation Law as applied by courts
located in Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the exercise of options duly granted
pursuant to the Agreement and against the payment of the purchase price therefor
as provided in Agreement, will be validly issued, fully paid, and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bingham Dana LLP
------------------------------------
BINGHAM DANA LLP
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
-------------------------------
We consent to the incorporation by reference in the Registration Statement (Form
S-8) and relating prospectus pertaining to 100,000 shares of common stock of
Paging Network, Inc. to be offered under the Nonstatutory Stock Option Agreement
for John P. Frazee, Jr. of our reports dated February 19, 1997, except for Note
1, as to which the date is September 29, 1997, with respect to the consolidated
financial statements and schedule of Paging Network, Inc. included in its Annual
Report (Form 10-K/A) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
December 18, 1997
