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File No. 333-________
As filed with the Securities and Exchange Commission on May 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)
PAGING NETWORK, INC. 1991 STOCK OPTION PLAN
(Full Title of the Plan)
GLENN W. MARSCHEL
President and Chief Executive Officer
KENNETH W. SANDERS
Senior Vice President - Finance, Treasurer,
Chief Financial Officer and Assistant Secretary
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 & Gould LLP
150 Federal Street
Boston, MA 02110
(617) 951-8000
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CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE (1) PRICE (1) FEE
- -------------------------------------------------------------------------------
Common Stock, $.01
par value per share 7,500,000 $8.4375 $63,281,250.00 $19,177.00
- -------------------------------------------------------------------------------
(1) The proposed maximum aggregate offering price has been calculated in
accordance with the provisions of Rule 457(h) under the Securities Act of 1933,
as amended, (the "Securities Act") based on the average of the high and low
prices of the Registrant's Common Stock, $.01 par value per share, reported in
the consolidated trading system on May 19, 1997.
(2) In accordance with Rule 416 under the Securities Act, this registration
statement also registers an indeterminate amount of interests in the Paging
Network, Inc. 1991 Stock Option Plan that are separate securities from the
shares of Common Stock being registered hereunder.
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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 Form 10-K 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 Form 10-Q for
the quarter ended March 31, 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 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
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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
application that, despite the adjudication of liability but in view of all the
circumstances of
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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 corporation, or
is or was serving at the request of such constituent corporation as a director
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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:
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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).
5 Opinion of Bingham, Dana & Gould LLP as to the legality of the
securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Bingham, Dana & Gould 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 offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof;
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(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.
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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 22nd day of May, 1997.
PAGING NETWORK, INC.
By: /s/ Glenn W. Marschel
-------------------------------------
Glenn W. Marschel
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Glenn W.
Marschel, 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 22nd day of May, 1997.
Signature Title
--------- -----
/s/ Glenn W. Marschel President and Chief Executive Officer
--------------------- (Principal Executive Officer)
Glenn W. Marschel
/s/ Kenneth W. Sanders Senior Vice President - Finance, Treasurer,
---------------------- Chief Financial Officer and Assistant
Kenneth W. Sanders Secretary (Principal Financial Officer and
Principal Accounting Officer)
/s/ Richard C. Alberding Director
------------------------
Richard C. Alberding
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/s/ Bryan C. Cressey Director
------------------------------
Bryan C. Cressey
/s/ John P. Frazee, Jr. Director
------------------------------
John P. Frazee, 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
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Exhibit Index
Exhibit No. Description of Documents
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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).
5 Opinion of Bingham, Dana & Gould LLP as to the legality of the
securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Bingham, Dana & Gould LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature pages of the
Registration Statement).
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BINGHAM, DANA & GOULD LLP
Exhibit 5
May 21, 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
May 22, 1997 (the "Registration Statement").
The Registration Statement effects the registration of 7,500,000 shares of
the common stock, $.01 par value per share, of the Company (the "Shares"),
which are to be issued by the Company to employees of the Company and its
participating subsidiary corporations upon exercise of employee stock options
granted pursuant to the Paging Network, Inc. 1991 Stock Option Plan (the
"Plan").
We have reviewed the corporate proceedings of the Company with respect to
the authorization of the Plan 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 Plan will be
issued in accordance with the terms of such Plan.
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 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 as upon the exercise of options duly granted
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BINGHAM, DANA & GOULD LLP
Paging Network, Inc.
May 21, 1997
Page 2
pursuant to the Plan and against the payment of the purchase price therefor as
provided in Plan, 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 & GOULD LLP
BINGHAM, DANA & GOULD LLP
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related prospectus pertaining to 7,500,000
shares of common stock of Paging Network, Inc. to be offered under
the Paging Network, Inc. 1991 Stock Option Plan of our report dated
February 17, 1997, with respect to the consolidated financial
statements and schedule of Paging Network, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1996, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
-----------------------
ERNST & YOUNG LLP
Dallas, Texas
May 20, 1997
