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Exhibit 4.3
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PAGING NETWORK, INC.
NONSTATUTORY STOCK OPTION AGREEMENT FOR
XXXX X. XXXXXX, XX.
THIS AGREEMENT is entered into by and between Paging Network, Inc., a
Delaware corporation (hereinafter the "Company"), and Xxxx X. Xxxxxx, Xx.
(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
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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
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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.
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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;
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(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.
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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.
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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. XXXX X. XXXXXX, XX.
By: /s/ Levy Xxxxx /s/ Xxxx X. Xxxxxx, Xx.
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Levy Xxxxx
Vice President 5777 Prestwick
Human Resources Xxxxxx, XX 00000
Option Date: August 4, 1997
