-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, POVQSA/KrtDTadCcYCKjxOCVMaW/bmFpLDz9PtBX/SOiMtgubWkLa/9cJ4rriX2A ZprrTD+L+qnuNxEUUiepZg== 0000950135-97-005143.txt : 19971223 0000950135-97-005143.hdr.sgml : 19971223 ACCESSION NUMBER: 0000950135-97-005143 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971222 EFFECTIVENESS DATE: 19971222 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PAGING NETWORK INC CENTRAL INDEX KEY: 0000878324 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 042740516 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-42893 FILM NUMBER: 97742154 BUSINESS ADDRESS: STREET 1: 4965 PRESTON PARK BLVD STE 600 CITY: PLANO STATE: TX ZIP: 75093 BUSINESS PHONE: 2149854100 MAIL ADDRESS: STREET 1: 4965 PRESTON PARK BLVD STREET 2: SUITE 600 CITY: PLANO STATE: TX ZIP: 75093 S-8 1 PAGING NETWORK INC. FORM S-8 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 2 CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- Common Stock, $.01 par 100,000 $8.688 $868,800 $263.25 value per share - --------------------------------------------------------------------------------
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 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 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 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: 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 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. 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 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 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). EX-4.3 2 STOCK OPTION AGREEMENT FOR JOHN P. FRAZEE, JR. 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 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 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. 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; 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. 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. 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 EX-5 3 OPINION OF BINGHAM DANA LLP 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 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 EX-23.1 4 CONSENT OF ERNST & YOUNG LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----