-----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, CsKgUdgrMoShgR7J95M6GyC0WOml3kMe1JjUQ02M6bppIh+zsuMCdZ30d5nhZPms 4UWoW05rOuIq1D7Zn3czcg== 0000950128-97-000003.txt : 19970103 0000950128-97-000003.hdr.sgml : 19970103 ACCESSION NUMBER: 0000950128-97-000003 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19970102 EFFECTIVENESS DATE: 19970102 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: WESTINGHOUSE ELECTRIC CORP CENTRAL INDEX KEY: 0000106413 STANDARD INDUSTRIAL CLASSIFICATION: ENGINES & TURBINES [3510] IRS NUMBER: 250877540 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-13219 FILM NUMBER: 97500380 BUSINESS ADDRESS: STREET 1: WESTINGHOUSE BLDG STREET 2: 11 STANWIX STREET CITY: PITTSBURGH STATE: PA ZIP: 15222 BUSINESS PHONE: 4122442000 FORMER COMPANY: FORMER CONFORMED NAME: WESTINGHOUSE ELECTRIC & MANUFACTURING CO DATE OF NAME CHANGE: 19710510 S-8 POS 1 WESTINGHOUSE ELECTRIC CORP. 1 As Filed with the Securities and Exchange Commission on January 2, 1997 Registration No. 333-13219 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Post-Effective Amendment No. 1 on FORM S-8 to FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 * --------------- WESTINGHOUSE ELECTRIC CORPORATION (Exact name of registrant as specified in its charter) --------------- PENNSYLVANIA 25-0877540 (State or other jurisdiction) (I.R.S. Employer of incorporation or organization) Identification No.) 11 Stanwix Street Pittsburgh, Pennsylvania 15222 (Address of Registrant's principal executive offices) Amended and Restated Infinity Boadcasting Corporation Stock Option Plan WCK Acquisition Corp. Stock Option Plan Infinity Boadcasting Corporation Warrant Certificate No. 2 to Mel Karmazin (Full title of plans) Louis J. Briskman, Esq. Senior Vice President and General Counsel Westinghouse Electric Corporation 11 Stanwix Street Pittsburgh, Pennsylvania 15222 (412) 244-2300 (Name, address, and telephone number, including area code, of agent for service) -------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC PROMPTLY AFTER FILING OF THIS POST-EFFECTIVE AMENDMENT. * Filed as a Post-Effective Amendment on Form S-8 to such Form S-4 Registration Statement pursuant to the procedure described herein. See "Introductory Statement" 2 INTRODUCTORY STATEMENT Westinghouse Electric Corporation ("Westinghouse" or the "Company") hereby amends its Registration Statement on Form S-4 (No. 333-13219) (the "Form S-4") by filing this Post-Effective Amendment No. 1 on Form S-8 (the "Post-Effective Amendment") relating to the sale of up to 21,510,674 shares of Common Stock, par value $1.00 per share, of Westinghouse ("Westinghouse Common Stock") issuable upon the exercise of stock options and warrants granted under The Amended and Restated Infinity Broadcasting Corporation Stock Option Plan, The Acquisition Corp. Stock Option Plan and the Infinity Broadcasting Corporation Warrant Certificate No. 3 to Mel Karmazin (collectively, the "Plans"). On December 31, 1996, R Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Westinghouse, was merged with and into Infinity Broadcasting Corporation, a Delaware corporation ("Infinity"). As a result of such merger (the "Merger"), Infinity became a wholly owned subsidiary of Westinghouse and each outstanding share (other than shares owned by Westinghouse or Infinity or their subsidiaries) of Class A Common Stock ("Class A Common"), par value $.002 per share, and Class B Common Stock, $.002 par value per share ("Class B Common" and together with Class A Common, "Infinity Common Stock") has been converted into 1.71 shares of Westinghouse Common Stock. In addition, each outstanding option and warrant issued pursuant to the Plans will no longer be exercisable for shares of Infinity Common Stock, but instead, will constitute an option or warrant, to acquire, on substantially the same terms and conditions as were applicable under such option or warrant immediately prior to consummation of the Merger that number of shares of Westinghouse Common Stock (rounded down to the nearest whole share) equal to the product of (x) the number of shares of Infinity Common Stock for which such option or warrant was theretofore exercisable and (y) 1.71. The exercise price for each option or warrant shall be equal to the exercise price per share for such option or warrant immediately prior to the effective time of the Merger divided by 1.71. The designation of the Post-Effective Amendment as Registration No. 333-13219 denotes that the Post-Effective Amendment relates only to the shares of Westinghouse Common Stock issuable on the exercise of stock options or warrants under the Plans and that this is the first Post-Effective Amendment to the Form S-4 filed with respect to such shares. 3 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents, each as filed by Westinghouse with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1995. (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June 30, 1996 and September 30, 1996. (c) The Company's Current Reports on Form 8-K reporting events on January 9, 1996, February 8, 1996, April 19, 1996, May 2, 1996, June 5, 1996, June 10, 1996, June 20, 1996, August 6, 1996, September 19, 1996, November 4, 1996, November 13, 1996 and December 31, 1996. (d) The Company's Current Report on Form 8-K/A dated February 6, 1996. (e) Description of the Company's Common Stock contained in its Registration Statement on Form 10 filed pursuant to the Exchange Act on May 15, 1935, as amended or updated pursuant to the Exchange Act. All documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement which indicates that all shares covered hereby have been sold or which deregisters all such shares then remaining unsold shall be deemed to be incorporated in this Registration Statement by reference and to be a part hereof from the respective date of filing of each such document. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as 4 3 so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel The validity of the Westinghouse Common Stock being offered hereby has been passed upon by Louis J. Briskman, Senior Vice President and General Counsel of Westinghouse. As of the Westinghouse Record Date (as defined in the Form S-4), Mr. Briskman beneficially owned 240,385 shares of Westinghouse Common Stock (including 238,490 shares issuable upon the exercise of stock options that are exercisable within 60 days of the Westinghouse Record Date). Item 6. Indemnification of Directors and Officers Section 1741 of the Business Corporation Law of the Commonwealth of Pennsylvania (the "BCL") empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding (a "Proceeding"), whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a representative of the corporation or is or was serving at the request of the corporation as a representative of another corporation or enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such Proceeding, 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 interests of the corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. Section 1742 of the BCL empowers a corporation to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a representative of the corporation or is or was serving at the request of the corporation as a representative of another corporation or enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection with the defense or settlement of the action if he or 5 4 she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation provided that indemnification shall not be made in respect to any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless there is a judicial determination that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for the expenses that the court deems proper. Section 1743 of the BCL provides that to the extent a representative of a corporation has been successful on the merits or otherwise in defense of any Proceeding, or in defense of any claim, issue or matter herein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith. Section 1745 of the BCL provides that expenses (including attorneys' fees) incurred in defending a Proceeding may be paid by the corporation in advance of the final disposition of such Proceeding upon receipt of an undertaking by or on behalf of the representative to repay such amount if it is ultimately determined that he or she is not entitled to be indemnified by the corporation. Section 1746 of the BCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of the BCL shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise. However, Section 1746 also provides that such indemnification shall not be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct of recklessness. The Company provides for indemnification of its directors and officers pursuant to Article ELEVENTH of the Restated Articles of Incorporation of the Company and Article XVII of the By-laws of the Company. Article ELEVENTH of the Restated Articles and Article XVII of the By-laws provide in effect that, with respect to Proceedings based on acts or omissions on or after January 27, 1987, and unless prohibited by applicable law, the Company shall indemnify directors and officers against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement incurred in connection with any such Proceedings (subject to certain limitations in the case of 6 5 actions by such persons against the Company). Under Article XVII, the Company shall also advance amounts to any director or officer during the pendency of any such Proceedings against expenses incurred, provided that, if required by law, the Company receives an undertaking to repay such amounts if it is ultimately determined that such person is not to be indemnified under such Article. The indemnification provided for in such Articles is in addition to any rights to which any director or officer may otherwise be entitled. Article XVII of the By-laws provides that the right of a director or officer to such indemnification and advancement of expenses shall be a contract right and further provides procedures for the enforcement of such right. The Company has purchased directors' and officers' liability insurance policies indemnifying its officers and directors and the officers and directors of its subsidiaries against claims and liabilities (with stated exceptions) to which they may become subject by reason of their positions with the Company or its subsidiaries as directors and officers. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits
Exhibit No. Description ----------- ----------- 4.1 Restated Articles of Incorporation of the Company as amended to December 13, 1996. 4.2 By-laws of the Company, as amended to September 25, 1996 (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-4 filed October 22, 1996). 4.3 Rights Agreement (incorporated by reference to Exhibit 1 to Form 8-K filed on January 9, 1996). 4.4 Amended and Restated Infinity Broadcasting Corporation Stock Option Plan. 4.5 The WCK Acquisition Corp. Stock Option Plan
7 6 4.6 Infinity Broadcasting Corporation Warrant Certificate No. 3 to Mel Karmazin. 5 Opinion of Louis J. Briskman, Senior Vice President and General Counsel, as to the legality of the securities being registered. 23.1 Consent of Counsel -- contained in opinion filed as Exhibit 5. 23.2 Consent of Price Waterhouse LLP. *24 Powers of Attorney.
Item 9. Undertakings The undersigned Registrant hereby undertakes: (a) 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 the Registration Statement or any material change to such information in the Registration Statement. (b) 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 offer thereof. (c) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (d) 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 Section 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 Ex -------------------- * Previously filed. 8 7 change 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: (e) 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 provi- sions, 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, Westinghouse Electric Corporation, 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 City of Pittsburgh, Commonwealth of Pennsylvania, on the 2nd day of January, 1997. Westinghouse Electric Corporation By: /s/ LOUIS J. BRISKMAN ------------------------- Louis J. Briskman Senior Vice President and General Counsel 9 8 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons on January 2, 1997 in the capacities indicated:
Signature Title * Chairman and Chief Executive ------------------------- Officer (principal executive (Michael H. Jordan) officer) and Director * Vice Chairman and President and ------------------------- Director (Gary M. Clark) * Executive Vice President and ------------------------- Chief Financial Officer (Frederic G. Reynolds) (principal financial officer) /s/ CAROL V. SAVAGE Vice President and Chief ------------------------- Accounting Officer (Carol V. Savage) (principal accounting officer) * ------------------------- Director (Frank C. Carlucci) * ------------------------- Director (Robert E. Cawthorn) * ------------------------- Director (George H. Conrades) * ------------------------- Director (William H. Gray III)
10 9 * ------------------------- Director (David K. P. Li) * ------------------------- Director (David T. McLaughlin) * ------------------------- Director (Richard R. Pivirotto) * ------------------------- Director (Paula Stern) * ------------------------- Director (Robert D. Walter)
*By: /s/ LOUIS J. BRISKMAN ------------------------ Louis J. Briskman Attorney-in-Fact EX-4.1 2 WESTINGHOUSE ELECTRIC CORP. 1 Exhibit 4.1 RESTATED ARTICLES OF WESTINGHOUSE ELECTRIC CORPORATION (As amended December 13, 1996) FIRST: The name of the corporation (hereinafter called the "Company") is WESTINGHOUSE ELECTRIC CORPORATION. SECOND: The location and post office address of the current registered office of the Company in the Commonwealth of Pennsylvania is Westinghouse Building, Gateway Center, Pittsburgh, Allegheny County, Pennsylvania 15222. THIRD: The Company is subject to the Act of the General Assembly of the Commonwealth of Pennsylvania, known as the "Business Corporation Law," approved May 5, 1933, and any act amendatory thereof, supplementary thereto or substituted therefor, and the purposes for which the Company is organized are: (1) To develop, build, manufacture, process and otherwise produce, to purchase, lease, exchange and otherwise acquire, and to hold, own, use, operate, repair, sell, lease, assign, distribute and otherwise deal in and dispose of structures, machinery, equipment, apparatus, -1- 2 appliances, devices, products, materials, articles, processes and systems for any application or purpose, whether for use for industrial, utility, transportation, broadcasting, communication, home, defense, consumer or other purposes or applications, or combinations thereof, whatsoever, including but not limited to the following: for the generation, conversion, transmission, utilization, storage and control of any form of energy whatsoever (including but not limited to electrical, mechanical, chemical, atomic, nuclear, steam, thermal, mineral, gas, water and solar); for the handling, conditioning, heating, cooling, treatment, application or use of air and other gases, liquids and solids; for aerial, nautical, terrestrial, spatial or celestial operations, applications or navigation; for radio, television and all other forms of transmission, reception or communication; and for incorporation into or use in, on or about any establishment, building or structure of any kind or nature whatsoever; and any and all related engines, turbines, motors, parts, tools, accessories and improvements thereof and supplies or materials pertaining or incidental to any of the above structures, machinery, equipment, apparatus, appliances, devices, products, materials, articles, processes and systems, of any kind or nature whatsoever. (2) To develop, build, manufacture, process and otherwise produce, to purchase, lease, exchange and -2- 3 otherwise acquire, and to hold, own, use, operate, repair, sell, lease, assign, distribute and otherwise deal in and dispose of structures, machinery, equipment, apparatus, appliances, devices, products, materials, articles, processes, systems, goods, wares and merchandise of every kind, nature and description, and to engage in any industrial, manufacturing, mining, mercantile, broadcasting, trading or other lawful business of any kind or character whatsoever. (3) To conduct and carry on research work in, and to engage in any activity pertaining or incidental to, any scientific, technical or other field or fields, and to render services of a scientific, technical or other nature to any person, association, firm, corporation, country, state, municipality or other governmental division or subdivision. (4) To purchase, lease, exchange and otherwise acquire all, or any part of, or any interest in, the properties, assets, business and goodwill of any one or more persons, associations, firms or corporations; to pay for the same in cash, property or its own or other securities; to hold, own, use, operate, reorganize and otherwise manage such properties, assets, business and goodwill; to sell, lease, assign, distribute, liquidate and otherwise deal in and dispose of the whole or any part thereof; and in connection therewith, to assume or guarantee performance of any -3- 4 liabilities, obligations or contracts of such persons, associations, firms or corporations. (5) To develop, apply for, register, take licenses in respect of, purchase, lease, exchange and otherwise acquire, and to hold, own, use, operate, sell, lease, assign, grant licenses in respect of, manufacture under, exercise and otherwise deal in and dispose of any and all inventions, devices, formulae, technical or business information, including trade secrets, know-how, processes, improvements and modifications thereof, letters patent and all rights connected therewith or appertaining thereto, copyrights, trademarks, trade names, trade symbols and other indications of origin and ownership, franchises, licenses, concessions or other rights granted by or recognized under the laws of any country, state, municipality or other governmental division or subdivision. (6) To purchase, exchange and otherwise acquire, and to hold, own, sell, assign, transfer, reissue, cancel and otherwise deal in and dispose of its own shares and securities, to such extent and in such manner and upon such terms as it may determine; provided that the Company shall not use its funds or property for the purchase of its own shares when such purchase shall be prohibited by law; and provided that shares of its capital stock which belong to the Company shall not be voted directly or indirectly. (7) To enter into, make, perform and carry out -4- 5 contracts and agreements of every kind and description which may be necessary, appropriate, convenient or advisable in carrying out the purposes of the Company, with any person, association, firm, corporation, country, state, municipality or other governmental division or subdivision. (8) To carry out any of or all the foregoing purposes as principal or agent and alone or with associates; and to execute from time to time such general or special powers of attorney to such person or persons as it may determine, granting to such person or persons such powers as it may deem proper, and to revoke such powers of attorney as and when it may desire; and to conduct its business in any and all of its branches at one or more offices in the Commonwealth of Pennsylvania and elsewhere. (9) To do everything necessary, suitable, convenient or proper for, or in connection with, or incident to, the accomplishment of any of the purposes herein enumerated, or which shall at any time appear conducive to or expedient for the accomplishment of any of such purposes, not inconsistent with the laws of the Commonwealth of Pennsylvania. Except as otherwise expressly provided in this Article THIRD, none of the purposes set forth above in this Article THIRD shall be in any way limited or restricted by reference to, or inference from, any other of the purposes therein set forth, and each of said purposes shall be regarded as a separate and independent purpose. -5- 6 The purposes set forth above shall be construed as powers as well as purposes; but the enumeration herein of certain powers is not intended to be exclusive of, or a waiver of, but shall be in addition to, the powers, rights or privileges granted or conferred by said "Business Corporation Law" and any other laws of the Commonwealth of Pennsylvania applicable to the Company that may now or hereafter be in force. Without limiting the generality of the foregoing, the Company shall have and may exercise the general powers which are now or may hereafter be enumerated in Section 302 of said "Business Corporation Law," or any act amendatory thereof, supplemental thereto or substituted therefor, to the same extent as if such powers were set forth in full herein. Except as otherwise provided by law or these Restated Articles of Incorporation or the By-laws, the powers of the Company shall be exercised by its Board of Directors. Nothing herein contained shall authorize or be construed as intended to authorize the Company to carry on any business or exercise any powers in any commonwealth, state, territory, or country which a business corporation organized under the laws of such commonwealth, state, territory or country could not carry on or exercise, except to the extent permitted or authorized by the laws of such commonwealth, state, territory or country; and notwithstanding any provision herein, the Company shall not be deemed to have the power to carry on or exercise within the Commonwealth of Pennsylvania any business whatsoever -6- 7 the carrying on or exercising of which would prevent the Company from being classified as a business corporation under said "Business Corporation Law," or any act amendatory thereof, supplemental thereto or substituted therefor. FOURTH: The term of existence of Company shall be perpetual. FIFTH: A. The total number of shares of all classes of stock which the Company shall have authority to issue is 1,125,000,000 consisting of: (1) 25,000,000 shares of Preferred Stock, par value $1.00 per share ("Preferred Stock"), and (2) 1,100,000,000 shares of Common Stock, par value $1.00 per share ("Common Stock"). B. The Board of Directors is hereby expressly authorized to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock. Before any share of any such series is issued, the Board shall fix, and hereby is expressly empowered to fix, the following provisions of the shares thereof: (1) the terms of such series, the number of shares to constitute such series and the stated value thereof if different from the par value thereof; (2) whether the shares of such series shall have voting rights in addition to any voting rights provided by -7- 8 law and, if so, the terms of such voting rights, which may be general or limited; (3) the dividends, if any, payable on such series, whether any such dividends shall be cumulative and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, the preference or relation which such dividends shall bear to the dividends payable on any shares of stock of any other class or any other series of Preferred Stock; (4) whether the shares of such series shall be subject to redemption at the election of the Company or the holders of such series and, if so, the times, prices and other conditions of such redemption; (5) the amount or amounts payable upon shares of such series upon, and the rights of the holders of such series in the event of, voluntary or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets of the Company; (6) whether the shares of such series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such series for retirement or other corporate purposes and the terms and provisions relative to the operation thereof; (7) whether the shares of such series shall be -8- 9 convertible into, or exchangeable for, shares of stock of any other class or any other series of Preferred Stock or any other securities and, if so, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchange; (8) the limitations and restrictions, if any, to be effective while any shares of such series are outstanding upon the payment of dividends or the making of other distributions on, or upon the purchase, redemption or other acquisition by the Company of, the Common Stock or shares of stock of any other class or any other series of Preferred Stock; (9) the conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon the issue of any additional stock, including additional shares of any other series of Preferred Stock or of any other class of stock; and (10) any other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations and restrictions thereof. C. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and -9- 10 all other series of Preferred Stock at any time outstanding. All shares of any one series of Preferred Stock shall be identical in all respects with all other shares of such series, except that shares of any one series issued at different times may differ as to the dates from which dividends thereon shall be cumulative. D. Subject to the provisions of this Article FIFTH and actions taken by the Board of Directors pursuant to this Article FIFTH: (1) such dividends (whether in cash, stock or otherwise) as may be determined by the Board of Directors may be declared and paid on the Common Stock from time to time in accordance with the laws of the Commonwealth of Pennsylvania; and the holders of the Preferred Stock shall not be entitled to participate in any such dividends whether payable in cash, stock or otherwise; (2) voting power shall be exclusively vested in the Common Stock; (3) dividends upon shares of any class of the Company shall be payable only out of assets legally available for the payment of such dividends, and the rights of the holders of the Preferred Stock of all series and of the holders of the Common Stock in respect of dividends shall at all times be subject to the power of the Board of Directors, which is hereby expressly vested in said Board, from time to time to set aside such reserves and to make such other provisions, -10- 11 if any, as said Board shall deem to be necessary or advisable for working capital, for additions, improvements and betterments to plant and equipment, for expansion of the Company's business (including the acquisition of real and personal property for that purpose), for plans for maintaining employment at the plants of the Company and also for other plans for the benefit of employees generally, and for any other purposes of the Company whether or not similar to those herein mentioned; (4) holders of Preferred Stock and holders of Common Stock shall not have any preemptive, preferential or other right to subscribe for or purchase or acquire any shares of any class or any other securities of the Company, whether now or hereafter authorized, and whether or not convertible into, or evidencing or carrying the right to purchase, shares of any class or any other securities now or hereafter authorized, and whether the same shall be issued for cash, services or property, or by way of dividend or otherwise, other than such right, if any, as the Board of Directors in its discretion from time to time may determine. If the Board of Directors shall offer to the holders of the Preferred Stock or the holders of the Common Stock, or any of them, any such shares or other securities of the Company, such offer shall not in any way constitute a waiver or release of the right of the Board of Directors subsequently to dispose of other portions of said shares or securities -11- 12 without so offering the same to said holders. (5) the shares of Preferred Stock and the shares of Common Stock may be issued for such consideration and for such corporate purposes as the Board of Directors may from time to time determine; (6) subject to the provisions of the By-laws of the Company as from time to time amended, with respect to the closing of the transfer books or the fixing of a record date for the determination of shareholders entitled to vote, each holder of record of shares of any class of the Company shall be entitled to one vote, on each matter submitted to a vote at a meeting of shareholders and in respect of which shares of such class shall be entitled to be voted, for every share of such class standing in his name on the books of the Company; (7) in each election of directors no shareholder shall have any right to cumulate his votes and cast them for one candidate or distribute them among two or more candidates. E. 1. DESIGNATION AND AMOUNT. The shares of this series shall be designated as "Series A Participating Preferred Stock" (the "Series A Preferred Stock"). The par value of each share of Series A Preferred Stock shall be $1.00. The number of shares constituting the Series A Preferred Stock initially shall be 5,000,000; PROVIDED, HOWEVER, that, if more than a total of 5,000,000 shares of Series A Preferred Stock shall be issuable -12- 13 upon the exercise of Rights (the "Rights") issued pursuant to the Rights Agreement, dated as of December 28, 1995, between the Company and First Chicago Trust Company of New York, as Rights Agent (as such agreement may be amended from time to time, the "Rights Agreement"), the Board of Directors of the Company, pursuant to Section 1914(c) and/or Section 1522(b) of the Pennsylvania Business Corporation Law of 1988, as amended (the "Pennsylvania BCL"), and in accordance with the provisions of Article FIFTH of the Restated Articles of Incorporation, shall adopt a resolution or resolutions increasing the previously determined total number of shares of Series A Preferred Stock authorized to be issued (to the extent that the Restated Articles of Incorporation then permit) to the largest number of whole shares (rounded up to the nearest whole number) issuable upon exercise of such Rights and directing that a statement or articles of amendment with respect to such increase in authorized shares for the Series A Preferred Stock be executed and filed with the Department of State of the Commonwealth of Pennsylvania. 2. DIVIDENDS AND DISTRIBUTIONS. (a) Subject to the provisions for adjustment hereinafter set forth, the holders of outstanding shares of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, (i) a cash dividend in an amount per share (rounded to the nearest cent) equal to 100 times the aggregate per share amount of each cash dividend declared or paid -13- 14 on the Common Stock, $1.00 par value per share, of the Company (the "Common Stock") and any other security ranking junior to the Series A Preferred Stock, and (ii) a preferential cash dividend (the "Preferential Dividends"), if any, in preference to the holders of Common Stock and any other security ranking junior to the Series A Preferred Stock, on the first day of March, June, September and December of each year (each a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, payable in an amount (except in the case of the first Quarterly Dividend Payment if the date of the first issuance of Series A Preferred Stock is a date other than a Quarterly Dividend Payment date, in which case such payment shall be a prorated amount of such amount) equal to $1.00 per share of Series A Preferred Stock less the per share amount of all cash dividends declared on the Series A Preferred Stock pursuant to clause (i) of this sentence since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock. In addition, in the event the Company shall, at any time after the issuance of any share or fraction of a share of Series A Preferred Stock, pay any dividend or make any distribution on the shares of Common Stock of the Company, whether by way of a dividend or a reclassification of stock, a recapitalization, reorganization or partial liquidation of the Company or -14- 15 otherwise, which is payable in cash or any debt security, debt instrument, real or personal property or any other property (other than (x) cash dividends subject to the immediately preceding sentence, (y) a distribution of shares of Common Stock or other capital stock of the Company or (z) a distribution of rights or warrants to acquire any such shares, including as such a right any debt security convertible into or exchangeable for any such shares, at a price less than the Fair Market Value (as hereinafter defined) of such shares on the date of issuance of such rights or warrants), then, and in each such event, the Company shall simultaneously pay on each then outstanding share of Series A Preferred Stock a distribution, in like kind, of 100 times such distribution paid on a share of Common Stock (subject to the provisions for adjustment hereinafter set forth). The dividends and distributions on the Series A Preferred Stock to which holders thereof are entitled pursuant to clause (i) of the first sentence of this paragraph and pursuant to the second sentence of this paragraph are hereinafter referred to as "Dividends" and the multiple of such cash and non-cash dividends and distributions on the Common Stock applicable to the determination of the Dividends, which shall be 100 initially but shall be adjusted from time to time as hereinafter provided, is hereinafter referred to as the "Dividend Multiple." In the event the Company shall at any time after January 9, 1996 declare or pay any dividend or make any distribution on Common Stock payable in shares of Common Stock, or effect a subdivision or split or a -15- 16 combination, consolidation or reverse split of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, then in each such case the Dividend Multiple thereafter applicable to the determination of the amount of Dividends which holders of shares of Series A Preferred Stock shall be entitled to receive shall be the Dividend Multiple applicable immediately prior to such event multiplied by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (b) The Company shall declare each Dividend at the same time it declares any cash or non-cash dividend or distribution on the Common Stock in respect of which a Dividend is required to be paid. No cash or non-cash dividend or distribution on the Common Stock in respect of which a Dividend is required to be paid shall be paid or set aside for payment on the Common Stock unless a Dividend in respect of such dividend or distribution on the Common Stock shall be simultaneously paid, or set aside for payment, on the Series A Preferred Stock. (c) Preferential Dividends shall begin to accrue on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issuance of such shares of Series A Preferred Stock. Accrued but unpaid Preferential Dividends shall cumulate but shall not bear interest. -16- 17 (d) Any dividend payment made on shares of the Series A Preferred Stock shall first be credited against the earliest accrued but unpaid Preferential Dividend due with respect to shares of the Series A Preferred Stock. (e) All dividends paid with respect to shares of the Series A Preferred Stock pursuant to this paragraph 2 shall be paid pro rata on a share-by-share basis to the holders entitled thereto. (f) The holders of shares of Series A Preferred Stock shall not be entitled to receive any dividends or distributions except as provided herein. 3. VOTING RIGHTS. The holders of record of outstanding shares of Series A Preferred Stock shall have the following voting rights: (a) Subject to the provisions for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of the holders of the Common Stock. The number of votes which a holder of a share of Series A Preferred Stock is entitled to cast, as the same may be adjusted from time to time as hereinafter provided, is hereinafter referred to as the "Vote Multiple." In the event the Company shall at any time after January 9, 1996 declare or pay any dividend on Common Stock, payable in shares of Common Stock, or effect a subdivision or split or a combination, consolidation or reverse split of the -17- 18 outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, then in each such case the Vote Multiple thereafter applicable to the determination of the number of votes per share to which holders of shares of Series A Preferred Stock shall be entitled after such event shall be the Vote Multiple immediately prior to such event multiplied by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (b) Except as otherwise provided herein, in the Restated Articles of Incorporation, in the By-laws, or as otherwise provided by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of shareholders of the Company. (c) In the event that the Preferential Dividends payable to the holders of Series A Preferred Stock are in arrears and unpaid for the equivalent of six quarterly periods, the Board of Directors will be increased by two directors and the holders of Series A Preferred Stock, together with the holders of all other outstanding series of the Preferred Stock in respect of which such a default in payment of dividends as described hereinabove exists and is entitled to vote thereon, voting as a single class without -18- 19 regard to series, will be entitled to elect two directors of the expanded Board of Directors. Such entitlement shall continue until such time as all dividends in arrears on all of the Series A Preferred Stock at the time outstanding have been paid or declared and set aside for payment, whereupon such voting rights of the holders of the Series A Preferred Stock shall cease (and, unless holders of shares of other series of Preferred Stock shall still have the right to elect such directors, the respective terms of the two additional directors shall thereupon expire and the number of directors constituting the full board be decreased by two) subject to being again revived from time to time upon the reoccurrence of the conditions described in this paragraph (3)(c) as giving rise thereto. At any time when the rights of holders of Series A Preferred Stock to elect two additional directors shall have so vested, the Company shall, upon the written request of the holders of record of not less than 10% of the Series A Preferred Stock then outstanding (or 10% of all of the shares of Preferred Stock having the right to vote for such directors in case holders of shares of other series of Preferred Stock shall also have the right to elect directors in such circumstances), call a special meeting of holders of the Series A Preferred Stock (and other series of Preferred Stock, if applicable) for the election of directors. In the case of a written request, the special meeting shall be held -19- 20 within 60 days after the delivery of the request, upon the notice provided by law and in the By-laws of the Company; except that the Company shall not be required to call such a special meeting if the request is received less than 120 days before the date fixed for the next ensuing annual meeting of shareholders of the Company. Whenever the number of directors of the Company shall have been increased by two as provided in this paragraph (3)(c), the number as so increased may thereafter be further increased or decreased in such manner as may be permitted by the By-laws and without the vote of the holders of Series A Preferred Stock. No such action shall impair the right of the holders of Series A Preferred Stock to elect and to be represented by two directors as provided in this paragraph (3)(c). The two directors elected as provided in this paragraph (3)(c) shall serve until the next annual meeting of shareholders of the Company and until their respective successors shall be elected and qualified or the earlier expiration of their terms as provided in this paragraph (3)(c). No such director may be removed without the vote of holders of a majority of shares of Series A Preferred Stock (or holders of a majority of shares of Preferred Stock having the right to vote in the election of such director in case holders of shares of other series of Preferred Stock shall also have the right to elect such director). If, -20- 21 prior to the expiration of the term of any such director, a vacancy in the office of such director shall occur, such vacancy shall, until the expiration of such term, in each case be filled by the remaining director elected as provided in this paragraph (3)(c) or, if none remains in office, by vote of the holders of record of a majority of the outstanding shares of Series A Preferred Stock (or holders of a majority of shares of Preferred Stock who are then entitled to participate in the election of such directors in case holders of shares of other series of Preferred Stock shall also have the right to elect such director). (d) Except as otherwise required by the Articles of Incorporation or By-laws or set forth in this paragraph 3 or in paragraph 13 or as otherwise provided by law, holders of Series A Preferred Stock shall have no other special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for the taking of any corporate action. 4. CERTAIN RESTRICTIONS. (a) Whenever Preferential Dividends or Dividends are in arrears or the Company shall be in default of payment thereof, thereafter and until all accrued and unpaid Preferential Dividends and Dividends, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid or set irrevocably aside for payment in full, and in addition to any and -21- 22 all other rights which any holder of shares of Series A Preferred Stock may have in such circumstances, the Company shall not: (i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration, any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock; (ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity as to dividends with the Series A Preferred Stock, unless dividends are paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled if the full dividends accrued thereon were to be paid; (iii) except as permitted by subparagraph (iv) of this paragraph 4(a), redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Company ranking junior (both as to dividends and upon liquidation, dissolution or winding up) to the Series A Preferred Stock; or (iv) purchase or otherwise acquire for consideration -22- 23 any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock (either as to dividends or upon liquidation, dissolution or winding up), except as permitted by subparagraph (iii) of this paragraph 4(a) or in accordance with a purchase offer made to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (b) The Company shall not permit any Subsidiary (as hereinafter defined) of the Company to purchase or otherwise acquire for consideration any shares of stock of the Company unless the Company could, under subparagraph (a) of this paragraph 4, purchase or otherwise acquire such shares at such time and in such manner. A "Subsidiary" of the Company shall mean any corporation or other entity of which securities or other ownership interests entitled to cast at least a majority of the votes that would be entitled to be cast in an election of the board of directors of such corporation or other entity or other persons performing similar functions are beneficially owned, directly or indirectly, by the Company or by any corporation or other entity that is otherwise controlled by the Company. (c) The Company shall not issue any shares of Series A Preferred Stock except upon exercise of Rights issued pursuant to -23- 24 the Rights Agreement, a copy of which is on file with the Secretary of the Company at its principal executive office and shall be made available to shareholders of record without charge upon written request therefor addressed to said Secretary. Notwithstanding the foregoing sentence, nothing contained in the provisions of this Article FIFTH (E) shall prohibit or restrict the Company from issuing for any purpose any series of Preferred Stock with rights and privileges similar to, different from, or greater than, those of the Series A Preferred Stock or, subject to the limitations set forth in paragraph 13, from creating other securities senior to, junior to or on a parity with the Series A Preferred Stock. 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Company in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares upon their retirement and cancellation shall become authorized but unissued shares of Preferred Stock, without designation as to series, and such shares may be redesignated and reissued as part of any series of the Preferred Stock. 6. LIQUIDATION, DISSOLUTION OR WINDING UP; FAIR VALUE FOR PURPOSES OF PENNSYLVANIA ANTI-TAKEOVER STATUTE. (a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, no distribution shall be made (i) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or -24- 25 winding up) to the Series A Preferred Stock unless the holders of shares of Series A Preferred Stock outstanding shall have received out of the assets of the Company available for distribution to its shareholders after payment or provision for payment of any securities ranking senior to the Series A Preferred Stock, for each share of Series A Preferred Stock, subject to adjustment as hereinafter provided, (A) $100.00 plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment or, (B) if greater than the amount specified in clause (i)(A) of this sentence, an amount equal to 100 times the aggregate amount to be distributed per share to holders of Common Stock, as the same may be adjusted as hereinafter provided, and (ii) to the holders of stock ranking on a parity upon liquidation, dissolution or winding up with the Series A Preferred Stock, unless simultaneously therewith distributions are made ratably on the Series A Preferred Stock and all other shares of such parity stock in proportion to the total amounts to which the holders of shares of Series A Preferred Stock are entitled under clause (i)(A) of this sentence and to which the holders of such parity shares are entitled, in each case upon such liquidation, dissolution or winding up. The amount to which holders of Series A Preferred Stock may be entitled upon liquidation, dissolution or winding up of the Company pursuant to clause (i)(B) of the foregoing sentence is hereinafter referred to as the "Participating Liquidation Amount" and the multiple of the amount -25- 26 to be distributed to holders of shares of Common Stock upon the liquidation, dissolution or winding up of the Company applicable pursuant to said clause to the determination of the Participating Liquidation Amount, as said multiple may be adjusted from time to time as hereinafter provided, is hereinafter referred to as the "Liquidation Multiple." In the event the Company shall at any time after January 9, 1996 declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or split or a combination, consolidation or reverse split of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, then, in each such case, the Liquidation Multiple thereafter applicable to the determination of the Participating Liquidation Amount to which holders of Series A Preferred Stock shall be entitled after such event shall be the Liquidation Multiple applicable immediately prior to such event multiplied by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. Except as provided in this paragraph 6(a), holders of Series A Preferred Stock shall not be entitled to any distribution in the event of liquidation, dissolution or winding up of the Company. (b) For the purposes of this paragraph 6, none of the following shall be deemed to be a voluntary or involuntary liquidation, dissolution or winding up of the Company: -26- 27 (i) the voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Company; (ii) the consolidation or merger of the Company with or into one or more other corporations or other associations; (iii) the consolidation or merger of one or more corporations or other associations with or into the Company; (iv) the participation by the Company in a share exchange; (v) the division of the Company pursuant to sections 1951 through 1957 of the Pennsylvania BCL; (vi) the conversion of the Company pursuant to sections 1961 through 1966 of the Pennsylvania BCL; (c) Notwithstanding anything to the contrary in this Article FIFTH (E), in case any Controlling Person or Group (as defined from time to time in Section 2543 of the Pennsylvania BCL) shall be required to purchase any shares of Series A Preferred Stock pursuant to Sections 2541 through 2548 of the Pennsylvania BCL, as in effect from time to time, the amount that is determined to represent the "fair value" (as that term is used in such Section 2542 of the Pennsylvania BCL) of such shares shall be an amount per share equal to the Liquidation Multiple then in effect times the aggregate amount per share that such Controlling Person or Group is required to pay to purchase any share of Common Stock pursuant to such Sections 2541 through 2548 -27- 28 of the Pennsylvania BCL. 7. CERTAIN RECLASSIFICATIONS AND OTHER EVENTS. (a) In the event that holders of shares of Common Stock of the Company receive after January 9, 1996 in respect of their shares of Common Stock any share of capital stock of the Company (other than any share of Common Stock of the Company), whether by way of reclassification, recapitalization, reorganization, dividend or other distribution or otherwise (a "Transaction"), then, and in each such event, the dividend rights, voting rights and rights upon the liquidation, dissolution or winding up of the Company of the shares of Series A Preferred Stock shall be adjusted so that after such event the holders of Series A Preferred Stock shall be entitled, in respect of each share of Series A Preferred Stock held, in addition to such rights in respect thereof to which such holder was entitled immediately prior to such adjustment, to (i) such additional dividends as equal the Dividend Multiple in effect immediately prior to such Transaction multiplied by the additional dividends which the holder of a share of Common Stock shall be entitled to receive by virtue of the receipt in the Transaction of such capital stock, (ii) such additional voting rights as equal the Vote Multiple in effect immediately prior to such Transaction multiplied by the additional voting rights to which the holder of a share of Common Stock shall be entitled by virtue of the receipt in the Transaction of such capital stock and (iii) such additional distributions upon liquidation, dissolution or winding up of the -28- 29 Company as equal the Liquidation Multiple in effect immediately prior to such Transaction multiplied by the additional amount which the holder of a share of Common Stock shall be entitled to receive upon liquidation, dissolution or winding up of the Company by virtue of the receipt in the Transaction of such capital stock, as the case may be, all as provided by the terms of such capital stock. (b) In the event that holders of shares of Common Stock of the Company receive after January 9, 1996 in respect of their shares of Common Stock any right or warrant to purchase Common Stock (including as such a right, for all purposes of this paragraph 7(b), any security convertible into or exchangeable for Common Stock) at a purchase price per share less than the Fair Market Value of a share of Common Stock on the date of issuance of such right or warrant, then and in each such event the dividend rights, voting rights and rights upon the liquidation, dissolution or winding up of the Company of the shares of Series A Preferred Stock shall each be adjusted so that after such event the Dividend Multiple, the Vote Multiple and the Liquidation Multiple shall each be the product of the Dividend Multiple, the Vote Multiple and the Liquidation Multiple, as the case may be, in effect immediately prior to such event multiplied by a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately before such issuance of rights or warrants plus the maximum number of shares of Common Stock which could be acquired upon exercise in full of all such -29- 30 rights or warrants and the denominator of which shall be the number of shares of Common Stock outstanding immediately before such issuance of rights or warrants plus the number of shares of Common Stock which could be purchased, at the Fair Market Value of the Common Stock at the time of such issuance, by the maximum aggregate consideration payable upon exercise in full of all such rights or warrants. (c) In the event that holders of shares of Common Stock of the Company receive after January 9, 1996 in respect of their shares of Common Stock any right or warrant to purchase capital stock of the Company (other than shares of Common Stock), including as such a right, for all purposes of this paragraph 7(c), any security convertible into or exchangeable for capital stock of the Company (other than Common Stock), at a purchase price per share less than the Fair Market Value of a share of such capital stock on the date of issuance of such right or warrant, then and in each such event the dividend rights, voting rights and rights upon liquidation, dissolution or winding up of the Company of the shares of Series A Preferred Stock shall each be adjusted so that after such event each holder of a share of Series A Preferred Stock shall be entitled, in respect of each share of Series A Preferred Stock held, in addition to such rights in respect thereof to which such holder was entitled immediately prior to such event, to receive (i) such additional dividends as equal the Dividend Multiple in effect immediately prior to such event multiplied, first, by the additional -30- 31 dividends to which the holder of a share of Common Stock shall be entitled upon exercise of such right or warrant by virtue of the capital stock which could be acquired upon such exercise, and multiplied again by the Discount Fraction (as hereinafter defined), (ii) such additional voting rights as equal the Vote Multiple in effect immediately prior to such event multiplied, first, by the additional voting rights to which the holder of a share of Common Stock shall be entitled upon exercise of such right or warrant by virtue of the capital stock which could be acquired upon such exercise, and multiplied again by the Discount Fraction and (iii) such additional distributions upon liquidation, dissolution or winding up of the Company as equal the Liquidation Multiple in effect immediately prior to such event multiplied, first, by the additional amount which the holder of a share of Common Stock shall be entitled to receive upon liquidation, dissolution or winding up of the Company upon exercise of such right or warrant by virtue of the capital stock which could be acquired upon such exercise, and multiplied again by the Discount Fraction. For purposes of this paragraph, the "Discount Fraction" shall be a fraction the numerator of which shall be the difference between the Fair Market Value of a share of the capital stock subject to a right or warrant distributed to holders of shares of Common Stock of the Company as contemplated by this paragraph 7(c) immediately after the distribution thereof and the purchase price per share for such share of capital stock pursuant to such right or warrant and the -31- 32 denominator of which shall be the Fair Market Value of a share of such capital stock immediately after the distribution of such right or warrant. (d) For purposes of this Article FIFTH (E), the "Fair Market Value" of a share of capital stock of the Company (including a share of Common Stock) on any date shall be deemed to be the average of the daily closing price per share thereof over the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER, that in the event that such Fair Market Value of any such share of capital stock is determined during a period which includes any date that is within 30 Trading Days after (i) the ex-dividend date for a dividend or distribution on stock payable in shares of such stock or securities convertible into shares of such stock, or (ii) the effective date of any subdivision, split, combination, consolidation, reverse stock split or reclassification of such stock or division of the Company pursuant to Sections 1951 through 1957 of the Pennsylvania BCL, then, and in each such case, the Fair Market Value shall be appropriately adjusted by the Board of Directors of the Company to take into account ex-dividend or post-effective date trading. The closing price for any day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way (in either case, as reported in the applicable transaction reporting system with respect to securities listed or admitted to trading -32- 33 on the New York Stock Exchange), or, if the shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the applicable transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares are listed or admitted to trading or, if the shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by The Nasdaq Stock Market or such other system then in use, or if on any such date the shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the shares selected by the Board of Directors of the Company. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares are listed or admitted to trading is open for the transaction of business or, if the shares are not listed or admitted to trading on any national securities exchange, on which the New York Stock Exchange or such other national securities exchange as may be selected by the Board of Directors of the Company is open. If the shares are not publicly held or not so listed or traded on any day within the period of 30 Trading Days applicable to the determination of Fair Market Value thereof as aforesaid, "Fair Market Value" shall mean the fair market value thereof per share as determined in good faith by the Board of Directors of the Company. In either case referred to in the -33- 34 foregoing sentence, the determination of Fair Market Value shall be described in a statement filed with the Secretary of the Company. 8. CONSOLIDATION, MERGER, ETC. In case the Company shall enter into any consolidation, merger, division, share exchange, combination, sale of all or substantially all of the Company's assets, or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each outstanding share of Series A Preferred Stock shall at the same time be similarly exchanged for or changed into the aggregate amount of stock, securities, cash and/or other property (payable in like kind), as the case may be, for which or into which each share of Common Stock is changed or exchanged multiplied by the highest of the Vote Multiple, the Dividend Multiple or the Liquidation Multiple in effect immediately prior to such event; PROVIDED, HOWEVER, no fractional share or scrip representing fractional shares of any other stock or securities shall be issued. Instead of any fractional interest in a share of such other stock or securities which would otherwise be deliverable pursuant to this paragraph 8, the Company will pay to the holder thereof an amount in cash (computed to the nearest cent) equal to the same fraction of the Fair Market Value of a share of such other stock or security. 9. EFFECTIVE TIME OF ADJUSTMENTS. (a) Adjustments to the Series A Preferred Stock -34- 35 required by the provisions hereof shall be effective as of the time at which the event requiring such adjustments occurs. (b) The Company shall give prompt written notice to each holder of a share of outstanding Series A Preferred Stock of the effect of any adjustment to the voting rights, dividend rights or rights upon liquidation, dissolution or winding up of the Company of such shares required by the provisions hereof. Notwithstanding the foregoing sentence, the failure of the Company to give such notice shall not affect the validity of or the force or effect of or the requirement for such adjustment. 10. NO REDEMPTION. The shares of Series A Preferred Stock shall not be redeemable at the option of the Company or any holder thereof. Notwithstanding the foregoing sentence of this paragraph, the Company may acquire shares of Series A Preferred Stock in any other manner permitted by law, the provisions hereof and the Restated Articles of Incorporation. 11. RANKING. The Series A Preferred Stock shall rank senior to the Common Stock and, unless otherwise provided in a Statement with Respect to Shares or an amendment to the Restated Articles of Incorporation relating to the determination of a subsequent series of preferred stock of the Company, the Series A Preferred Stock shall rank junior to all other series of the Company's preferred stock, including the Series C Conversion Preferred Stock, as to the payment of dividends and the distribution of assets on liquidation, dissolution or winding up. 12. LIMITATIONS. Except as may otherwise be required -35- 36 by law, the shares of Series A Preferred Stock shall not have any powers, preferences or relative, participating, optional or other special rights other than those specifically set forth in this Article FIFTH (E) (as such may be amended from time to time) or otherwise in the Restated Articles of Incorporation. 13. AMENDMENT. So long as any shares of the Series A Preferred Stock are outstanding, the Company shall not amend this Article FIFTH (E) or the Restated Articles of Incorporation in any manner which would alter or change the rights, preferences or limitations of the Series A Preferred Stock so as to affect such rights, preferences or limitations in any material respect prejudicial to the holders of the Series A Preferred Stock without, in addition to any other vote of shareholders required by law, the affirmative vote of the holders of two-thirds or more of the outstanding shares of Series A Preferred Stock, voting together as a single class; PROVIDED, HOWEVER, that the creation of another series of the Preferred Stock ranking senior to or on a parity with the Series A Preferred Stock as to the payment of dividends or the distribution of assets or liquidation, dissolution or winding up shall not be deemed to be prejudicial to the holders of the Series A Preferred Stock for the purposes of this paragraph 13. -36- 37 F. 1. DESIGNATION AND AMOUNT. The shares of this series shall be designated as "Series C Conversion Preferred Stock" (the "Series C Preferred Stock") consisting of 3,795,000 shares. 2. RANK. The Series C Preferred Stock shall, with respect to dividend rights and rights upon liquidation, dissolution and winding up, rank prior to the Common Stock, par value $1.00 per share (the "Common Stock"), and the Series A Participating Preferred Stock, par value $1.00 per share (the "Series A Preferred Stock"), of the Company. All equity securities of the Company to which the Series C Preferred Stock ranks prior, whether with respect to dividends or upon liquidation, dissolution, winding up or otherwise, including the Common Stock and the Series A Preferred Stock, are collectively referred to herein as the "Junior Securities;" all equity securities of the Company with which the Series C Preferred Stock ranks on a parity are collectively referred to herein as the "Parity Securities;" and all equity securities of the Company (other than convertible debt securities) to which the Series C Preferred Stock ranks junior are collectively referred to herein as the "Senior Securities." The Series C Preferred Stock shall be subject to the creation of Junior Securities, Parity Securities and Senior Securities, subject to the limitations thereon provided for in paragraphs (6)(c) and (6)(d). 3. DIVIDENDS. -37- 38 (a) The holders of outstanding shares of the Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative preferential cash dividends accruing at the per share rate of $3.25 per quarter and no more, payable in arrears on the first day of each March, June, September and December, respectively (each such date being hereinafter referred to as a "Dividend Payment Date"), commencing on June 1, 1994. If any Dividend Payment Date is not a business day (as defined in paragraph (4)(h)(i)), then the Dividend Payment Date shall be on the next succeeding day that is a business day. Each such dividend will be payable to holders of record as they appear on the stock books of the Company on such record dates, not less than 10 nor more than 90 days preceding the payment dates thereof, as shall be fixed by the Board of Directors, except that no such record date shall be declared for the final dividend payable on June 1, 1997 and holders of shares of Series C Preferred Stock will receive such final dividend only upon surrender of their share certificates. Dividends on a share of Series C Preferred Stock shall accrue (whether or not the Company has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared) on a daily basis from the previous Dividend Payment Date, except that the first dividend shall accrue from the date of issuance of such share of Series C Preferred Stock. Accrued and unpaid dividends shall not bear -38- 39 interest. Dividends will cease to accrue in respect of the Series C Preferred Stock on the Mandatory Conversion Date (as defined in paragraph (4)(a)) or on the Settlement Date (as defined in paragraph (4)(h)(v)), in the event of their earlier conversion pursuant to paragraph (4)(n), upon the effective date of such conversion, and will cease to accrue on the date of their earlier redemption pursuant to paragraph (4)(c) unless the Company shall default in delivering the shares of Common Stock and cash, if any, payable by the Company upon such redemption. Dividends (or cash amounts equal to accrued and unpaid dividends) payable on the Series C Preferred Stock for any period shorter than a quarterly dividend period shall be computed on the basis of a 360-day year of twelve 30-day months and, for purposes of calculating the accrual of dividends, dividends will accrue to, but not including, the date fixed for payment. (b) Unless full cumulative dividends, if any, accrued on the Series C Preferred Stock have been or contemporaneously are declared and paid or declared and a sum set apart sufficient for such payment through the most recent Dividend Payment Date (or the obligations of the Company with respect to the payment of such dividends are satisfied as contemplated by paragraphs (4)(a), (b) or (c)), then, whether or not the Mandatory Conversion Date has occurred, (i) no full cash dividend shall be declared by the Board of Directors or paid or set apart for payment by the Company or other distribution declared or made on any Parity Securities, (ii) no dividend shall be declared or paid -39- 40 or set aside for payment or other distribution declared or made upon the Common Stock, the Series A Preferred Stock or upon any other Junior Securities (other than a dividend or distribution paid in shares of, or warrants, rights or options exercisable for or convertible into, Common Stock, the Series A Preferred Stock or any other Junior Securities) and (iii) no Common Stock, Series A Preferred Stock or any other Junior Securities shall be redeemed, purchased or otherwise acquired for any consideration, nor shall any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such series or class by the Company, except by conversion into or in exchange for Junior Securities. If any dividends are not paid or set apart in full, as aforesaid, with respect to the Series C Preferred Stock and any Parity Securities, all dividends declared with respect to the Series C Preferred Stock and any Parity Securities shall be declared pro rata so that the amount of dividends declared per share on the Series C Preferred Stock and such Parity Securities shall in all cases bear to each other the same ratio that accrued dividends per share on the Series C Preferred Stock and such Parity Securities bear to each other. Holders of the shares of the Series C Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends as provided in paragraph (3)(a). (c) Subject to the foregoing provisions of this paragraph (3) and paragraph (4)(d), the Board of Directors may declare and the Company may pay or set apart for payment -40- 41 dividends and other distributions on any of the Junior Securities or Parity Securities, and may redeem, purchase or otherwise retire any Junior Securities or Parity Securities, and the holders of the shares of the Series C Preferred Stock shall not be entitled to share therein. (d) Any dividend payment made on shares of the Series C Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to shares of the Series C Preferred Stock. (e) All dividends paid with respect to shares of the Series C Preferred Stock pursuant to this paragraph (3) shall be paid pro rata to the holders entitled thereto. (f) Holders of shares of the Series C Preferred Stock shall be entitled to receive the dividends provided for in this paragraph (3) in preference to and in priority over any dividends upon any of the Junior Securities. 4. REDEMPTIONS OR CONVERSIONS. (a) AUTOMATIC CONVERSION ON MANDATORY CONVERSION DATE. Unless earlier called for redemption by the Company or converted in accordance with the provisions hereof, on June 1, 1997 (the "Mandatory Conversion Date"), each outstanding share of the Series C Preferred Stock shall automatically convert into: (i) shares of Common Stock at the Common Equivalent Rate (determined as provided in paragraph (4)(d)) in effect on the Mandatory Conversion Date; and (ii) the right to receive an amount in cash equal to -41- 42 all accrued and unpaid dividends on such share of Series C Preferred Stock to the Mandatory Conversion Date, whether or not declared, out of funds legally available for the payment of dividends (and dividends shall cease to accrue on such share as of the Mandatory Conversion Date). The Company shall at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Common Stock and/or its Common Stock held in its treasury for the purpose of effecting any conversion of the Series C Preferred Stock, either pursuant to this paragraph (4)(a) ("Mandatory Conversion") or pursuant to paragraphs (4)(b), (c) or (n) the full number of shares of Common Stock then deliverable upon any conversion of all outstanding shares of Series C Preferred Stock. The right to receive an amount in cash equal to all accrued and unpaid dividends on such shares of Series C Preferred Stock (the "Accrued Dividend Amount") will occur upon Mandatory Conversion whether or not the Company has earnings and whether or not such dividends are declared; PROVIDED, HOWEVER, that to the extent that funds are not legally available for the payment of the Accrued Dividend Amount upon Mandatory Conversion, the holders of Series C Preferred Stock shall be entitled to receive, and the Company shall distribute to such holders, on the fifth business day next succeeding the Mandatory Conversion Date, in lieu of payment in cash of the Accrued Dividend Amount, a number of shares of Common Stock equal to 110% of the Accrued Dividend -42- 43 Amount divided by the Current Market Price (as defined in paragraph (4)(d)(vii)) of the Common Stock determined as of the second Trading Date (as defined in paragraph (4)(h)(vi)) prior to the Mandatory Conversion Date, except that (i) no such distribution shall be made by the Company if, prior to the date on which the Company is required to make such distribution, the Company shall have made payment in full of the Accrued Dividend Amount in cash and (ii) if the Company does not have a sufficient number of authorized but unissued shares of Common Stock and shares of Common Stock held in its treasury not reserved for other corporate purposes to make such distribution in full, the Company shall make such distribution to the fullest extent possible, pro rata to the holders of Series C Preferred Stock entitled thereto (as nearly as may be practicable without creating fractional shares), and the holders of Series C Preferred Stock shall thereafter have the right to receive, and the Company shall pay to such holders as promptly as possible, the remainder in cash or shares of Common Stock or a combination thereof, on the same terms set forth in this paragraph (4)(a) for the payment in cash of amounts equal to accrued and unpaid dividends and for the distribution of shares of Common Stock in lieu of payment of such amounts in cash. (b) AUTOMATIC CONVERSION UPON THE OCCURRENCE OF CERTAIN EVENTS. Immediately prior to the effectiveness of an amendment of the articles, merger, consolidation, share exchange, division or conversion of the Company or similar extraordinary transaction -43- 44 that results in the conversion or exchange of Common Stock into, or the right of the holders thereof to receive, in lieu of or in addition to their shares of Common Stock, other securities or other property (whether of the Company or any other entity) (any such amendment, merger, consolidation, share exchange, division or conversion or similar extraordinary transaction being referred to herein as a "Fundamental Transaction") each outstanding share of the Series C Preferred Stock shall automatically convert, on the Settlement Date, as defined in paragraph (4)(h)(v) into: (A) shares of Common Stock at the same rate as would have been the case if the Series C Preferred Stock had been called for redemption on the business day immediately preceding the Mandatory Conversion Date (with a Current Market Price determined as of the second Trading Date prior to the Settlement Date) but in no case greater than the Common Equivalent Rate; plus (B) the right to receive an amount in cash equal to all accrued and unpaid dividends on such share of the Series C Preferred Stock to and including the Settlement Date, whether or not declared, out of funds legally available for the payment of dividends (and dividends shall cease to accrue on such share after the Settlement Date); plus (C) the right to receive an amount of cash initially equal to $34.90, declining by $0.03056 on each day following the date of issuance of the Series C Preferred Stock (computed on the basis of a 360-day year of twelve 30-day -44- 45 months) to $0.00 on June 1, 1997, in each case determined with reference to the Settlement Date, out of funds legally available therefor. At the option of the Company, it may deliver on the Settlement Date in lieu of some or all of the cash consideration described in clauses (B) and (C) above, pro rata to the holders of Series C Preferred Stock entitled thereto, a number of shares of Common Stock to be determined by dividing the amount of cash consideration that the Company has elected to pay in Common Stock by the Current Market Price (as defined in paragraph (4)(d)(vii)) of the Common Stock determined, in the case of a Fundamental Transaction, as of the second Trading Date prior to the Settlement Date. (c) OPTIONAL REDEMPTION. The Company shall have the right to call, in whole or in part, the outstanding shares of the Series C Preferred Stock for redemption on the business day immediately preceding the Mandatory Conversion Date. On the redemption date, the Company shall deliver to the holders thereof in exchange for each such share called for redemption the greater of (i) a number of shares of Common Stock equal to the Call Price (as defined in paragraph (4)(h)(ii)) divided by the Current Market Price of the Common Stock determined as of the second Trading Date immediately preceding the Notice Date (as defined in paragraph 4(h)(iv)) and (ii) 8.85 shares of Common Stock (subject to adjustment in the same manner as the Common Equivalent Rate, as described in paragraph 4(d)). Accrued and unpaid dividends on -45- 46 shares of Series C Preferred Stock so redeemed will be paid in cash on the date fixed for their redemption, whether or not declared, out of funds legally available for the payment of dividends (and dividends shall cease to accrue on such share as of such date). If fewer than all the outstanding shares of Series C Preferred Stock are to be called for redemption, shares to be redeemed shall be selected by the Company from outstanding shares of Series C Preferred Stock by lot or pro rata (as nearly as may be practicable without creating fractional shares) or by any other method determined by the Board of Directors of the Company in its sole discretion to be equitable. (d) COMMON EQUIVALENT RATE ADJUSTMENTS. The Common Equivalent Rate to be used to determine the number of shares of Common Stock to be delivered on the conversion of the Series C Preferred Stock into shares of Common Stock pursuant to paragraphs (4)(a) or (b) shall be initially ten shares of Common Stock for each share of Series C Preferred Stock; PROVIDED, HOWEVER, that such Common Equivalent Rate shall be subject to adjustment from time to time as provided below in this paragraph (4)(d). All adjustments to the Common Equivalent Rate shall be calculated to the nearest 1/100th of a share of Common Stock (or, if there is not a nearest 1/100th of a share, to the next lower 1/100th of a share). No adjustment will be required unless such adjustment would require an increase or decrease of at least one percent therein; PROVIDED, HOWEVER, that any adjustments which, by reason of the foregoing, are not required to be made will be -46- 47 carried forward and taken into account in any subsequent adjustment. Such rate in effect at any time is herein called the "Common Equivalent Rate." (i) If the Company shall: (A) pay a dividend or make a distribution with respect to Common Stock in shares of Common Stock, (B) subdivide or split its outstanding shares of Common Stock into a greater number of shares, (C) combine its outstanding shares of Common Stock into a smaller number of shares, or (D) issue by reclassification of its shares of Common Stock any shares of Common Stock of the Company other than in a Fundamental Transaction described in paragraph (4)(b), then, in any such event, the Common Equivalent Rate in effect immediately prior thereto shall be adjusted so that the holder of a share of the Series C Preferred Stock shall be entitled to receive on the conversion of such share of the Series C Preferred Stock, the number of shares of Common Stock which such holder would have owned or been entitled to receive after the happening of any of the events described above had such share of the Series C Preferred Stock been converted at the Common Equivalent Rate in effect immediately prior to such event or any record date with respect thereto. Such adjustment shall become effective at the opening of business on the business date next following the record date for determination of shareholders entitled to receive -47- 48 such dividend or distribution in the case of a dividend or distribution, and shall become effective immediately after the effective date in case of a subdivision, split, combination or reclassification; and any shares of Common Stock issuable in payment of a dividend shall be deemed to have been issued immediately prior to the close of business on the record date for such dividend for purposes of calculating the number of outstanding shares of Common Stock under clauses (ii) and (iii) below. Such adjustments shall be made successively. (ii) If the Company shall, after the date hereof, issue rights or warrants to all holders of its Common Stock entitling them (for a period not exceeding 45 days from the date of such issuance) to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price of the Common Stock (determined pursuant to paragraph (4)(d)(vii)) on the record date for the determination of shareholders entitled to receive such rights or warrants, then in each case the Common Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate in effect immediately prior to the date of issuance of such rights or warrants by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants, immediately prior to such issuance, plus the number of additional shares of Common Stock offered for subscription or purchase pursuant to such rights or warrants, and of which the denominator shall be the number of shares of Common Stock outstanding on the -48- 49 date of issuance of such rights or warrants, immediately prior to such issuance, plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase pursuant to such rights or warrants would purchase at such Current Market Price (determined by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such Current Market Price). Such adjustment shall become effective at the opening of business on the business day next following the record date for the determination of shareholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Common Equivalent Rate shall be readjusted to the Common Equivalent Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made upon the basis of delivery of only the number of shares of Common Stock actually delivered. Such adjustments shall be made successively. (iii) If the Company shall pay a dividend or make a distribution to all holders of its Common Stock of evidence of its indebtedness or other assets (including shares of capital stock of the Company (other than Common Stock) but excluding any distributions and dividends referred to in clause (i) above or any cash dividends), or shall issue to all holders of its Common Stock rights or warrants to subscribe for or purchase any of its -49- 50 securities (other than those referred to in clause (ii) above), then in each such case, the Common Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate in effect on the record date mentioned below by a fraction, of which the numerator shall be the Current Market Price of the Common Stock (determined pursuant to paragraph (4)(d)(vii)) on the record date for the determination of shareholders entitled to receive such dividend or distribution, and of which the denominator shall be such Current Market Price per share of Common Stock less the fair value (as determined by the Board of Directors of the Company, whose determination shall be conclusive) as of such record date of the portion of the assets or evidences of indebtedness so distributed, or of such subscription rights or warrants, applicable to one share of Common Stock. Such adjustment shall become effective on the opening of business on the business day next following the record date for the determination of shareholders entitled to receive such dividend or distribution. (iv) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding (a) any cash dividends on the Common Stock to the extent that the aggregate cash dividends per share of Common Stock in any consecutive 12-month period do not exceed the greater of (x) the amount per share of Common Stock of the cash dividends paid on the Common Stock in the next preceding 12-month period, to the extent that such dividends for the preceding 12-month period did not require an adjustment to the Common -50- 51 Equivalent Rate pursuant to this paragraph (as adjusted to reflect subdivisions or combinations of the Common Stock) and (y) 15 percent of the average daily Closing Prices (as defined in paragraph (4)(h)(iii)) of the Common Stock for the ten consecutive Trading Days immediately prior to the date of declaration of such distribution and (b) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary), then, in each such case, unless the Company elects to reserve such an amount of cash for distribution to the holders of the Series C Preferred Stock so that any such shares will receive upon conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount of cash (to the extent not excluded as provided above) which such holder would have received if such holder had, immediately prior to the record date for such distribution of cash, converted its shares of Series C Preferred Stock into Common Stock, the Common Equivalent Rate shall be increased so that the same shall equal the rate determined by multiplying the Common Equivalent Rate in effect at the close of business on such record date by a fraction of which the numerator shall be the Closing Price of the Common Stock on such record date and the denominator shall be the Closing Price of the Common Stock less the amount of cash so distributed (to the extent not excluded as provided above) applicable to one share of Common Stock, such increase to become effective immediately prior to the opening of business on the day following -51- 52 such record date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Closing Price of the Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of shares of Series C Preferred Stock shall thereafter have the right to receive upon conversion the amount of cash (to the extent not excluded as provided above) such holder would have received had such holder converted each share of Series C Preferred Stock on such record date. If any adjustment is required to be made as set forth in this paragraph (4)(d)(iv) as a result of a distribution which is a dividend described in subclause (a) of this paragraph, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the dividend permitted to be excluded pursuant to such subclause (a) of this paragraph. If an adjustment is required to be made pursuant to this paragraph as a result of a distribution which is not such a dividend, such adjustment shall be based upon the full amount of such distribution. (v) In case of the consummation of a tender or exchange offer (other than an odd-lot tender offer) made by the Company or any subsidiary of the Company for all or any portion of the Common Stock to the extent that the cash and value of any other consideration included in such payment per share of Common Stock exceeds 110% of the first reported sales price per share of Common Stock on the Trading Day next succeeding the Expiration -52- 53 Time (as defined below), the Common Equivalent Rate shall be increased so that the same shall equal the rate determined by multiplying the Common Equivalent Rate in effect immediately prior to the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the "Expiration Time") by a fraction of which the denominator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the first reported sales price of the Common Stock on the Trading Day next succeeding the Expiration Time, and the numerator shall be the sum of (A) the fair market value (determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) of the aggregate consideration payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (B) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the first reported sales price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. (vi) Anything in this paragraph (4) notwithstanding, the Company shall be entitled to make such upward adjustments in -53- 54 the Common Equivalent Rate, in addition to those required by this paragraph (4), as the Company in its sole discretion may determine to be advisable, in order that any stock dividends, subdivisions of shares, distributions of rights to purchase stock or securities, or distributions of securities convertible into or exchangeable for stock (or any transaction which could be treated as any of the foregoing transactions pursuant to Section 305 of the Internal Revenue Code of 1986, as amended) hereafter made by the Company to its shareholders shall not be taxable. If the Company determines that an adjustment to the Common Equivalent Rate should be made, an adjustment shall be made effective as of such date as is determined by the Board of Directors of the Company. The determination of the Board of Directors of the Company as to whether an adjustment to the Common Equivalent Rate should be made pursuant to the foregoing provisions of this paragraph (4)(d)(vi), and, if so, as to what adjustment should be made and when, shall be conclusive, final and binding on the Company and all shareholders of the Company. (vii) As used in this paragraph (4), the "Current Market Price" of the Common Stock on any date shall be the average of the daily Closing Prices (as defined in paragraph (4)(h)(iii)) for the five consecutive Trading Dates ending on and including the date of determination of the Current Market Price; PROVIDED, HOWEVER, that if the Closing Price for the Trading Date next following such five-day period (the "next-day closing price") is less than 95% of such average, then the Current Market -54- 55 Price per share of Common Stock on such date of determination shall be the next-day Closing Price; and provided, further, that, if any event that results in an adjustment of the Common Equivalent Rate occurs during such five-day period or, for the purposes of calculating the Current Market Price in connection with any redemption or conversion of Series C Preferred Stock or any determination of an amount in cash payable in lieu of a fraction of a share of Common Stock, if any event that results in an adjustment of the Common Equivalent Rate occurs during the period beginning on the first day of such five-day period and ending on the applicable redemption or conversion date, the Current Market Price as determined pursuant to the foregoing will be appropriately adjusted to reflect the occurrence of such event. (viii) In any case in which paragraph (4)(d) shall require that an adjustment as a result of any event become effective at the opening of business on the business day next following a record date and the date fixed for conversion or redemption pursuant to paragraphs (4)(a), (b), (c) or (n) occurs after such record date, but before the occurrence of such event the Company may in its sole discretion elect to defer the following until after the occurrence of such event: (A) issuing to the holder of any converted or redeemed shares of the Series C Preferred Stock the additional shares of Common Stock issuable upon such conversion or redemption before giving effect to such adjustment and (B) paying to such holder any amount in cash in -55- 56 lieu of a fractional share of Common Stock pursuant to paragraph (4)(f). (e) NOTICE OF ADJUSTMENTS. Whenever the Common Equivalent Rate or Optional Conversion Rate is adjusted as herein provided, the Company shall: (i) forthwith compute the adjusted Common Equivalent Rate and the adjusted Optional Conversion Rate (as defined in paragraph 4(n)) in accordance with this paragraph (4) and prepare a certificate signed by the Chief Financial Officer, any Vice President, the Treasurer or Controller of the Company setting forth the adjusted Common Equivalent Rate, the adjusted Optional Conversion Rate, the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which such adjustment is based, which certificate shall be conclusive, final and binding evidence of the correctness of the adjustment, and file such certificate forthwith with the transfer agent or agents for the Series C Preferred Stock and the Common Stock; and (ii) mail a notice stating that the Common Equivalent Rate and the Optional Conversion Rate have been adjusted, the facts requiring such adjustment and the facts upon which such adjustment is based and setting forth the adjusted Common Equivalent Rate and the adjusted Optional Conversion Rate to the holder of record of the outstanding shares of the Series C Preferred Stock at or prior to the time the -56- 57 Company mails an interim statement to its shareholders covering the fiscal quarter during which the facts requiring such adjustment occurred, but in any event within 45 days of the end of such fiscal quarter. (f) NO FRACTIONAL SHARES. No fractional share or scrip representing fractional shares of Common Stock shall be issued upon the redemption or conversion of any shares of Series C Preferred Stock. Instead of any fractional interest in a share of Common Stock which would otherwise be deliverable upon the redemption or conversion of a share of Series C Preferred Stock, the Company shall pay to the holder of such share an amount in cash (computed to the nearest cent) equal to the same fraction of the (i) Current Market Price of the Common Stock determined as of the second Trading Date immediately preceding the Notice Date, in the case of redemption pursuant to paragraph 4(c), (ii) Closing Price (as defined in paragraph 4(h)(iii) of the Common Stock determined (A) as of the fifth Trading Date immediately preceding the Mandatory Conversion Date, in the case of a Mandatory Conversion, or (B) as of the second Trading Date immediately preceding the date of conversion in the case of any optional conversion pursuant to paragraph 4(n), or (iii) the Settlement Date, in the case of a Fundamental Transaction. If more than one share shall be surrendered for conversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series C Preferred Stock so -57- 58 surrendered. (g) CANCELLATION. Shares of Series C Preferred Stock that have been issued and reacquired in any manner, including shares purchased, exchanged, redeemed or converted, shall not be reissued as part of the Series C Preferred Stock and shall (upon compliance with any applicable provisions of the laws of the Commonwealth of Pennsylvania) have the status of authorized and unissued shares of the class of Preferred Stock undesignated as to series and may be redesignated and reissued as part of any series of the Preferred Stock. (h) DEFINITIONS. As used in this paragraph (4): (i) the term "business day" shall mean any day other than a Saturday, Sunday or a day on which banking institutions in the State of New York or the Commonwealth of Pennsylvania are authorized or obligated by law or executive order to close or are closed because of a banking moratorium or otherwise; (ii) the term "Call Price" shall mean $131.25 per share; (iii) the term "Closing Price" on any day shall mean the closing sale price regular way on such day or, in case no such sale takes place on such day, the reported closing bid price regular way, in each case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such Exchange, then on the principal national securities exchange on which the Common Stock is listed or -58- 59 admitted to trading (which shall be the national securities exchange on which the greatest number of shares of Common Stock has been traded during the five consecutive Trading Dates ending on and including the date of determination of the Current Market Price), or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the closing bid price of the Common Stock on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similarly generally accepted reporting service, or if not so available as determined in good faith by the Board of Directors, on the basis of such relevant factors as it in good faith considers, in the reasonable judgement of the Board of Directors, appropriate; (iv) the term "Notice Date" with respect to any notice given by the Company in connection with the Series C Preferred Stock shall be the earlier of the public announcement with respect to any matter or the commencement of the mailing of such notice to the holders of the Series C Preferred Stock in accordance with paragraph (4)(i); (v) the term "Settlement Date" shall mean the business day immediately prior to the effective date of a Fundamental Transaction; (vi) the term "Trading Date" shall mean a date on which the New York Stock Exchange (or any successor thereto) is open for the transaction of business. -59- 60 (i) NOTICE OF REDEMPTION OR AUTOMATIC CONVERSION. The Company will provide notice of any redemption or automatic conversion (including any potential conversion upon the effectiveness of a Fundamental Transaction but excluding any conversion pursuant to paragraphs (4)(a) or (n)) of shares of Series C Preferred Stock to holders of record of the Series C Preferred Stock to be called or converted not less than 15 nor more than 60 days prior to the date fixed for such redemption or conversion, as the case may be; PROVIDED, HOWEVER, that if the timing of a Fundamental Transaction makes it impracticable to provide at least 15 days notice, the Company shall provide such notice as soon as is practicable. Such notice shall be provided by mailing notice of such redemption or conversion first class postage prepaid, to each holder of record of the Series C Preferred Stock to be redeemed or converted, at such holder's address as it appears on the stock register of the Company; PROVIDED, HOWEVER, that no failure to give such notice nor any defect therein shall affect the validity of the proceeding for the redemption or conversion of any shares of Series C Preferred Stock to be redeemed or converted, except as to the holder to whom the Company has failed to give such notice or whose notice was defective. Each such notice shall state, as appropriate, the following: (i) the redemption or automatic conversion date; (ii) that all outstanding shares of Series C Preferred Stock are to be redeemed or converted or, in the case of a -60- 61 call for redemption pursuant to paragraph (4)(c) of fewer than all outstanding shares of Series C Preferred Stock, the number of such shares held by such holder to be redeemed; (iii) in the case of a call for redemption pursuant to paragraph (4)(c), the Call Price, the number of shares of Common Stock deliverable upon redemption of each share of Series C Preferred Stock to be redeemed and, if applicable, the Current Market Price used to calculate such number of shares of Common Stock subject to any subsequent adjustments pursuant to paragraph (4)(d); (iv) whether the Company is delivering shares of Common Stock in lieu of cash (in the case of a conversion pursuant to paragraphs (4)(a) or (4)(b)), the Current Market Price to be used to calculate the number of such shares of Common Stock and, if the Company is delivering shares in respect of less than all the cash that would otherwise be deliverable by the Company upon such conversion, the portion of such cash in lieu of which Common Stock will be delivered; (v) the place or places where certificates for such shares are to be surrendered for redemption or conversion; and (vi) that dividends on the shares of Series C Preferred Stock to be redeemed or converted will cease to accrue on such redemption or automatic conversion date or, in the case of a conversion pursuant to paragraph (4)(b), on the related Settlement Date, unless, in the case of a redemption -61- 62 pursuant to paragraph (4)(c), the Company shall default in delivering the shares of Common Stock and cash, if any, payable by the Company at the time and place specified in such notice. (j) DEPOSIT OF SHARES AND FUNDS. The Company's obligation to deliver shares of Common Stock and provide funds in accordance with this paragraph (4) shall be deemed fulfilled if, on or before a redemption or conversion date or Settlement Date, the Company shall deposit, with a bank or trust company, or an affiliate of a bank or trust company, having an office or agency in New York city and having a capital and surplus of at least $50,000,000, such number of shares of Common Stock as are required to be delivered by the Company pursuant to this paragraph (4) upon the occurrence of the related redemption or conversion (including any payment of cash in lieu of the issuance of fractional share amounts pursuant to paragraph (4)(f)), together with funds (or, in the case of a conversion pursuant to paragraphs (4)(a) or (4)(b), shares of Common Stock and/or funds) sufficient to pay all accrued and unpaid dividends on the shares to be redeemed or converted as required by this paragraph (4), in trust for the account of the holders of the shares to be redeemed or converted (and so as to be and continue to be available thereto), with irrevocable instructions and authority to such bank or trust company that such shares and funds be delivered upon redemption or conversion of the shares of Series C Preferred Stock so called for redemption or converted. Any interest -62- 63 accrued on such funds shall be paid to the Company from time to time. Any shares of Common Stock or funds so deposited and unclaimed at the end of two years from such redemption or conversion date shall be repaid and released to the Company, after which the holder or holders of such shares of Series C Preferred Stock so called for redemption or converted shall look only to the Company for delivery of such shares of Common Stock or funds. (k) SURRENDER OF CERTIFICATES; STATUS. Each holder of shares of Series C Preferred Stock to be redeemed or converted shall surrender the certificates evidencing such shares (properly endorsed or assigned for transfer, unless any notice shall state otherwise) to the Company at the place designated in the notice of such redemption or conversion and shall thereupon be entitled to receive certificates evidencing shares of Common Stock and to receive any funds payable pursuant to this paragraph (4) following such surrender and following the date of such redemption or conversion. In case fewer than all the shares represented by any such surrendered certificate are called for redemption, a new certificate shall be issued at the expense of the Company representing the unredeemed shares. If such notice of redemption or conversion shall have been given, and if on the date fixed for redemption or conversion (or on the Mandatory Conversion Date) shares of Common Stock and funds necessary for the redemption or conversion shall have been either set aside by the Company separate and apart from its other funds or assets in -63- 64 trust for the account of the holders of the shares to be redeemed or converted (and so as to be and continue to be available therefor) or deposited with a bank or trust company or affiliate thereof as provided in paragraph (4)(j), or the circumstances described in clause (ii) to the proviso appearing in the third full paragraph of paragraph (4)(a) are in effect, then, notwithstanding that the certificates evidencing any shares of Series C Preferred Stock so called for redemption or subject to conversion shall not have been surrendered, the shares represented thereby so called for redemption or subject to conversion shall be deemed no longer outstanding, dividends with respect to the shares so called for redemption or subject to conversion shall cease to accrue after the date fixed for redemption or conversion or, in the case of a conversion pursuant to paragraph (4)(b), on the related Settlement Date, and all rights with respect to the shares so called for redemption or subject to conversion shall forthwith after such date cease and terminate, except for the right of the holders to receive the shares of Common Stock and funds, if any, payable pursuant to this paragraph (4) without interest upon surrender of their certificates therefor. (l) DIVIDEND PAYMENTS. Holders of shares of Series C Preferred Stock at the close of business on a record date for any payment of declared dividends will be entitled to receive the dividend payable on such shares of Series C Preferred Stock on the corresponding Dividend Payment Date notwithstanding the -64- 65 optional conversion of such shares of Series C Preferred Stock following such record date and before such Dividend Payment Date. However, shares of Series C Preferred Stock surrendered for optional conversion pursuant to paragraph 4(n) after the close of business on a record date for any payment of declared dividends and before the opening of business on the next succeeding Dividend Payment Date must be accompanied by payment in cash of an amount equal to the dividend attributable to the current quarterly dividend period payable on such date. Notwithstanding the foregoing, holders of Series C Preferred Stock who convert pursuant to paragraph 4(n) their Series C Preferred Stock at any time after such Series C Preferred Stock have been called for redemption, will be entitled to receive, in addition to shares of Common Stock issuable upon conversion, cash payment of dividends accrued and unpaid to the date of such conversion. Except as set forth in the preceding sentence, upon any optional conversion pursuant to paragraph 4(n) of shares of Series C Preferred Stock, the Company will make no payment of or allowance for accrued and unpaid dividends, whether or not in arrears, on such shares of Series C Preferred Stock, or for previously declared dividends or distributions on the shares of Common Stock issued upon such conversion. (m) PAYMENT OF TAXES. The Company will pay any and all documentary, stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock on the redemption or conversion of shares of Series C Preferred Stock -65- 66 pursuant to this paragraph (4); PROVIDED, HOWEVER, that the Company shall not be required to pay any tax which may be payable in respect of any registration of transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the registered holder of Series C Preferred Stock redeemed or converted or to be redeemed or converted, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid. (n) CONVERSION AT THE OPTION OF THE HOLDER. After 40 days following the latest date of original issuance of the Series C Preferred Stock, the shares of the Series C Preferred Stock are convertible, in whole or in part, at the option of the holders thereof, at any time before the Mandatory Conversion Date, unless previously redeemed, into shares of Common Stock at a rate of 8.85 shares of Common Stock for each share of Series C Preferred Stock (the "Optional Conversion Rate"). The Optional Conversion Rate is subject to adjustment in the same manner as the Common Equivalent Rate, as described in paragraph (4)(d). The right to convert shares of Series C Preferred Stock called for redemption will terminate immediately before the close of business on the redemption date with respect to such shares. Conversion of shares of Series C Preferred Stock at the option of the holder may be effected by delivering certificates evidencing such shares of Series C Preferred Stock, together with -66- 67 written notice of conversion and a proper assignment of such certificates to the Company or in blank (and, if applicable, cash payment of an amount equal to the dividend attributable to the current quarterly dividend period payable on such shares), to the office of the transfer agent for Series C Preferred Stock or to any other office or agency maintained by the Company for that purpose and otherwise in accordance with conversion procedures established by the Company. Each optional conversion will be deemed to have been effected immediately before the close of business on the date on which the foregoing requirements have been satisfied. The conversion will be at the Optional Conversion Rate in effect at such time and on such date. 5. LIQUIDATION PREFERENCES. (a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, the holders of shares of Series C Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its shareholders, after payment or provision for payment of any Senior Securities, an amount per share of Series C Preferred Stock in cash equal to the sum of (i) $144.40 plus (ii) all accrued and unpaid dividends thereon to the date of liquidation, dissolution or winding up, before any payment shall be made or any assets distributed to the holders of any of the Junior Securities. If the assets of the Company are not sufficient to pay in full the liquidation payments payable to the holders of outstanding shares of the -67- 68 Series C Preferred Stock and any Parity Securities, then the holders of all such shares shall share ratably in such distribution of assets in accordance with the amount which would be payable on such distribution if the amounts to which the holders of outstanding shares of Series C Preferred Stock and the holders of outstanding shares of such Parity Securities are entitled were paid in full. Except as provided in this paragraph (5)(a), holders of Series C Preferred Stock shall not be entitled to any distribution in the event of liquidation, dissolution or winding up of the affairs of the Company. (b) For the purposes of this paragraph (5), none of the following shall be deemed to be a voluntary or involuntary liquidation, dissolution or winding up of the Company: (i) the voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Company; (ii) the consolidation or merger of the Company with or into one or more other corporations or other associations; (iii) the consolidation or merger of one or more corporations or other associations with or into the Company; (iv) the participation by the Company in a share exchange; (v) the division of the Company pursuant to 15 Pa.C.S. Subch. 19D; (vi) the conversion of the Company pursuant to 15 -68- 69 Pa.C.S. Subch. 19E. 6. VOTING RIGHTS. (a) The holders of record of shares of Series C Preferred Stock shall not be entitled to any voting rights except as hereinafter provided in this paragraph (6) or as otherwise provided by law. (b) In the event that dividends payable to the holders of Series C Preferred Stock are in arrears and unpaid for the equivalent of six quarterly periods, the Board of Directors will be increased by two directors and the holders of Series C Preferred Stock, together with the holders of all other outstanding series of the Preferred Stock in respect of which such a default in payment of dividends as described hereinabove exists and is entitled to vote thereon, voting as a single class without regard to series, will be entitled to elect two directors of the expanded Board of Directors. Such entitlement shall continue until such time as all dividends in arrears on all of the Series C Preferred Stock at the time outstanding have been paid or declared and set aside for payment, whereupon such voting rights of the holders of the Series C Preferred Stock shall cease (and the respective terms of the two additional directors shall thereupon expire and the number of directors constituting the full board be decreased by two) subject to being again revived from time to time upon the reoccurrence of the conditions described in this paragraph (6)(b) as giving rise thereto. At any time when the rights of holders of Series C -69- 70 Preferred Stock to elect two additional directors shall have so vested, the Company shall, upon the written request of the holders of record of not less than 10% of the Series C Preferred Stock then outstanding (or 10% of all of the shares of Preferred Stock having the right to vote for such directors in case holders of shares of other series of Preferred Stock shall also have the right to elect directors in such circumstances), call a special meeting of holders of the Series C Preferred Stock (and other series of Preferred Stock, if applicable) for the election of directors. In the case of a written request, the special meeting shall be held within 60 days after the delivery of the request, upon the notice provided by law and in the By-laws of the Company; except that the Company shall not be required to call such a special meeting if the request is received less than 120 days before the date fixed for the next ensuing annual meeting of shareholders of the Company. Whenever the number of directors of the Company shall have been increased by two as provided in this paragraph (6)(b), the number as so increased may thereafter be further increased or decreased in such manner as may be permitted by the By-laws and without the vote of the holders of Series C Preferred Stock. No such action shall impair the right of the holders of Series C Preferred Stock to elect and to be represented by two directors as provided in this paragraph (6)(b). The two directors elected as provided in this paragraph (6)(b) shall serve until the next annual meeting of shareholders -70- 71 of the Company and until their respective successors shall be elected and qualified or the earlier expiration of their terms as provided in this paragraph (6)(b). No such director may be removed without the vote of holders of a majority of the shares of Series C Preferred Stock (or holders of a majority of shares of Preferred Stock having the right to vote in the election of such director in case holders of shares of other series of Preferred Stock shall also have the right to elect such director). If, prior to the expiration of the term of any such director, a vacancy in the office of such director shall occur, such vacancy shall, until the expiration of such term, in each case be filled by the remaining director elected as provided in this paragraph (6)(b) or, if none remains in office, by vote of the holders of record of a majority of the outstanding shares of Series C Preferred Stock (or holders of a majority of shares of Preferred Stock who are then entitled to participate in the election of such directors in case holders of shares of other series of Preferred Stock shall also have the right to elect such director). (c) So long as any shares of the Series C Preferred Stock are outstanding (except when notice of the redemption or conversion of all outstanding shares of Series C Preferred Stock has been given pursuant to paragraph (4)(i) and shares of Common Stock and any necessary funds have been deposited in trust for such redemption or conversion pursuant to paragraph (4)(j)), the Company shall not, without the affirmative vote of the holders of -71- 72 at least 66-2/3% of the shares of Series C Preferred Stock and any other series of Preferred Stock entitled to vote thereon at the time outstanding, voting together as one class without regard to series, in person or by proxy, or by resolution adopted at an annual or special meeting called for the purpose, amend pursuant to the provisions of 15 Pa.C.S. Subchapter 19B or in the context of any other type of Fundamental Transaction any of the provisions of the Company's Restated Articles of Incorporation which would either (i) authorize any new class of Senior Securities or (ii) alter or change the rights, preferences or limitations of the Series C Preferred Stock so as to affect such rights, preferences or limitations in any material respect prejudicial to the holders of the Series C Preferred Stock. (d) So long as any shares of the Series C Preferred Stock are outstanding (except when notice of the redemption or conversion of all outstanding shares of Series C Preferred Stock has been given pursuant to paragraph (4)(i) and shares of Common Stock and any necessary funds have been deposited in trust for such redemption or conversion pursuant to paragraph (4)(j)), the Company shall not, without the affirmative vote of the holders of at least a majority of the shares of Series C Preferred Stock and any other series of Preferred Stock entitled to vote thereon at the time outstanding voting or consenting, as the case may be, voting together as one class without regard to series, given in person or by proxy, either in writing or by resolution adopted at an annual or special meeting called for the purpose, amend -72- 73 pursuant to the provisions of 15 Pa.C.S. Subchapter 19B or in the context of any other type of Fundamental Transaction any of the provisions of the Company's Restated Articles of Incorporation which would either (i) increase the total number of authorized shares of Preferred Stock or (ii) authorize or create any class of Parity Securities. 7. INCREASE IN SHARES. The number of shares of Series C Preferred Stock may, to the extent of the Company's authorized and unissued Preferred Stock, be increased by further resolution duly adopted by the Board of Directors and the filing of a statement with respect to shares with the Department of State of the Commonwealth of Pennsylvania. 8. LIMITATIONS. Except as may otherwise be required by law, the shares of Series C Preferred Stock shall not have any powers, preferences or relative, participating, optional or other special rights other than those specifically set forth in this Article FIFTH (F) (as such Article FIFTH (F) may be amended from time to time) or otherwise in the Restated Articles of Incorporation of the Company. SIXTH: A. A higher than majority shareholder vote for certain Business Combinations (as defined below) shall be required as follows: (1) In addition to any affirmative vote required by law or these Restated Articles of Incorporation or the terms of any series of Preferred Stock or any other securities of the -73- 74 Company and except as otherwise expressly provided in Section B. of this Article SIXTH: (a) any merger or consolidation of the Company or any Subsidiary with (i) any Interested Stockholder or with (ii) any other corporation (whether or not itself an Interested Stockholder) which is, or after such merger or consolidation would be, an Affiliate or Associate of an Interested Stockholder; (b) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions whether or not related) to an Interested Stockholder (or an Affiliate or Associate of an Interested Stockholder) of any assets of the Company or of a Subsidiary having an aggregate Fair Market Value of $10,000,000 or more; (c) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions whether or not related) to or with the Company or a Subsidiary of any assets of an Interested Stockholder (or an Affiliate or Associate of an Interested Stockholder) having an aggregate Fair Market Value of $10,000,000 or more; (d) the issuance or sale by the Company or any Subsidiary (in one transaction or a series of transactions whether or not related) of any securities of the Company or of any Subsidiary to any Interested -74- 75 Stockholder or any Affiliate or Associate of any Interested Stockholder in exchange for cash, securities or other consideration (or a combination thereof) having an aggregate Fair Market Value of $10,000,000 or more except an issuance of securities upon conversion of convertible securities of the Company or of a Subsidiary which were not acquired by such Interested Stockholder (or such Affiliate or Associate) from the Company or a Subsidiary; (e) the adoption of any plan or proposal for the liquidation or dissolution of the Company proposed by or on behalf of any Interested Stockholder or any Affiliate or Associate of any Interested Stockholder; or (f) any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity securities or securities convertible into equity securities of the Company or any Subsidiary which is directly or indirectly owned by any Interested Stockholder or any Affiliate or Associate of any Interested Stockholder; shall require the affirmative vote of (i) the holders of -75- 76 at least eighty percent (80%) of the combined voting power of the then outstanding shares of capital stock of the Company entitled to vote generally in an annual election of directors (the "Voting Stock") and (ii) the holders of at least a majority of the combined voting power of the then outstanding Voting Stock held by Disinterested Stockholders, in each case voting together as a single class. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law, by any other provisions of these Restated Articles of Incorporation or by the terms of any series of Preferred Stock or any other securities of the Company; (2) The term "Business Combination" as used in this Article SIXTH shall mean any transaction which is referred to in any one or more of clauses (a) through (f) of paragraph (1) of Section A. of this Article SIXTH. B. The provisions of Section A. of this Article SIXTH shall not be applicable to any Business Combination, and such Business Combination shall require only such affirmative vote (if any) as is required by law, any other provision of these Restated Articles of Incorporation or the terms of any class or series of capital stock of the Company entitled to a preference over the Common Stock as to dividends or upon liquidation, or the terms of -76- 77 any other securities of the Company, if all of the conditions specified in either of the following paragraphs (1) or (2) are met: (1) The Business Combination shall have been approved by a majority of the Disinterested Directors or (2) All the following six conditions shall have been met - (a) The transaction constituting the Business Combination shall provide for a consideration to be received by holders of Common Stock in exchange for their Common Stock, and the aggregate amount of the cash and the Fair Market Value as of the date of the consummation of the Business Combination of consideration other than cash to be received per share by holders of Common Stock in such Business Combination shall be at least equal to the highest of the following: (i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid in order to acquire any shares of Common Stock beneficially owned by the Interested Stockholder which were acquired (x) within the two-year period immediately prior to the first public announcement of the proposed Business Combination (the "Announcement Date") or (y) in the transaction in which it became an Interested Stockholder, -77- 78 whichever is higher; (ii) the Fair Market Value per share of Common Stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (the "Determination Date"), whichever is higher; and (iii) (if applicable) the price per share equal to the Fair Market Value per share of Common Stock determined pursuant to clause (ii) immediately preceding, multiplied by the ratio of (x) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid in order to acquire any shares of Common Stock beneficially owned by the Interested Stockholder which were acquired within the two-year period immediately prior to the Announcement Date to (y) the Fair Market Value per share of Common Stock on the first day in such two-year period on which the Interested Stockholder beneficially owned any shares of Common Stock, whether or not such Stockholder was an Interested Stockholder on that day. (b) If the transaction constituting the Business Combination shall provide for a consideration to be received by holders of any class of outstanding Voting Stock other than Common Stock, the aggregate amount of -78- 79 the cash and the Fair Market Value as of the date of the consummation of the Business Combination of consideration other than cash to be received per share by holders of shares of such Voting Stock shall be at least equal to the highest of the following (it being intended that the requirements of this clause (2)(b) shall be required to be met with respect to every class of outstanding Voting Stock other than Institutional Voting Stock, whether or not the Interested Stockholder beneficially owns any shares of a particular class of Voting Stock): (i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid in order to acquire any shares of such class of Voting Stock beneficially owned by the Interested Stockholder which were acquired (x) within the two-year period immediately prior to the Announcement Date or (y) in the transaction in which it became an Interested Stockholder, whichever is higher; (ii) (if applicable) the highest preferential amount per share to which the holders of shares of such class of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up -79- 80 of the Company; (iii) the Fair Market Value per share of such class of Voting Stock on the Announcement Date or on the Determination Date, whichever is higher; and (iv) (if applicable) the price per share equal to the Fair Market Value per share of such class of Voting Stock determined pursuant to clause (iii) immediately preceding, multiplied by the ratio of (x) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid in order to acquire any shares of such class of Voting Stock beneficially owned by the Interested Stockholder which were acquired within the two-year period immediately prior to the Announcement Date to (y) the Fair Market Value per share of such class of Voting Stock on the first day in such two-year period on which the Interested Stockholder beneficially owned any shares of such class of Voting Stock, whether or not such Stockholder was an Interested Stockholder on that day. (c) The consideration to be received by holders of a particular class of Voting Stock (including Common Stock) shall be in cash or in the same form as was -80- 81 previously paid in order to acquire shares of such class of Voting Stock which are beneficially owned by the Interested Stockholder and, if the Interested Stockholder beneficially owns shares of any class of Voting Stock which were acquired with varying forms of consideration, the form of consideration to be received by holders of such class of Voting Stock shall be either cash or the form used to acquire the largest number of shares of such class of Voting Stock beneficially owned by it. The prices determined in accordance with clauses (a) and (b) of paragraph (2) of this Section B. shall be subject to an appropriate adjustment in the event of any stock dividend, stock split, subdivision, combination of shares or similar event. (d) After such Interested Stockholder has become an Interested Stockholder and prior to the consummation of such Business Combination: (i) except as approved by a majority of the Disinterested Directors, there shall have been no failure to declare and pay at the regular date therefor any full quarterly dividends (whether or not cumulative) on any outstanding Preferred Stock or other capital stock entitled to a preference over the Common Stock as to dividends or upon liquidation; (ii) except as approved by a majority of the -81- 82 Disinterested Directors, there shall have been (x) no reduction in the annual amount of dividends paid on the Common Stock (except as necessary to reflect any subdivision of the Common Stock) and (y) no failure to increase the annual amount of dividends as necessary to prevent any such reduction in the event of any reclassification (including any reverse stock split), recapitalization, reorganization or similar transaction which has the effect of reducing the number of outstanding shares of the Common Stock; (iii) such Interested Stockholder shall not have become the beneficial owner of any additional shares of Voting Stock except as part of the transaction in which it became an Interested Stockholder; and (iv) there shall have always been at least three Disinterested Directors on the Board of Directors. (e) After such Interested Stockholder has become an Interested Stockholder, such Interested Stockholder shall not have received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company, whether in -82- 83 anticipation of or in connection with such Business Combination or otherwise. (f) A proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed to shareholders at least 30 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions). C. For the purposes of this Article SIXTH: (1) A "person" shall mean any individual, a partnership, a corporation, an association, a trust or other entity. (2) "Interested Stockholder" at any particular time shall mean any person (other than the Company or any Subsidiary) who or which: (a) is at such time the beneficial owner, directly or indirectly, of five percent (5%) or more of the voting power of the Voting Stock; (b) is an Affiliate of the Company and at any time within the two-year period immediately prior to the date in question was the beneficial -83- 84 owner, directly or indirectly, of five percent (5%) or more of the voting power of the Voting Stock; or (c) is at such time an assignee of or has otherwise succeeded to the beneficial ownership of any shares of Voting Stock which were at any time within the two-year period immediately prior to the date in question beneficially owned by any Interested Stockholder (as defined in C.(2)(a) and (b) above), if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) "Disinterested Stockholder" shall mean a shareholder of the Company who is not an Interested Stockholder or an Affiliate or an Associate of an Interested Stockholder. (4) A person shall be a "beneficial owner" of any shares of Voting Stock: (a) which such person or any of its Affiliates or Associates beneficially owns, directly or indirectly; (b) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether or not such right is exercisable -84- 85 immediately) pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding; or (c) which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock. (5) For the purpose of determining whether a person is an Interested Stockholder pursuant to paragraph (2) of this Section C., the number of shares of Voting Stock deemed to be outstanding shall include shares deemed owned by an Interested Stockholder through application of paragraph (4) of this Section C. but shall not include any other shares of Voting Stock which may be issuable pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise. (6) "Affiliate" or "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the -85- 86 Securities Exchange Act of 1934, as in effect on December 31, 1984 (the term "registrant" in such Rule 12b-2 meaning in this case the Company). (7) "Subsidiary" means any corporation of which a majority of any class of equity security is owned, directly or indirectly, by the Company; PROVIDED, HOWEVER, that for the purposes of the definition of Interested Stockholder set forth in paragraph (2) of this Section C. the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Company. (8) "Disinterested Director" means any member of the Board of Directors who is unaffiliated with, and not a representative or nominee of, an Interested Stockholder and (a) was a member of the Board prior to the time that the Interested Stockholder became an Interested Stockholder, or (b) recommended to succeed a Disinterested Director by a majority of the Disinterested Directors then on the Board. (9) "Fair Market Value" means: (a) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock on the Composite Tape for New York Stock Exchange Listed Stocks, or, if such stock is not quoted on the Composite Tape, on the New York Stock -86- 87 Exchange, or if such stock is not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the 30-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotation System or any other system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by a majority of the Disinterested Directors in good faith; and (b) in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by a majority of the Disinterested Directors in good faith. (10) In the event of any Business Combination in which the Company survives, the phrase "consideration other than cash to be received" as used in paragraph (2) of Section B. of this Article SIXTH shall include the shares of Common Stock and the shares of any other class of outstanding Voting Stock retained by the holders of such shares. (11) The term "class" of Voting Stock shall be deemed to refer to a series of Voting Stock where more than one series of Voting Stock is outstanding within a -87- 88 class of Voting Stock. (12) "Institutional Voting Stock" shall mean any class of Voting Stock which was issued to and continues to be held solely by one or more insurance companies, pension funds, commercial banks, savings banks or similar financial institutions or institutional investors. D. A majority of the Disinterested Directors of the Company shall have the power and duty to determine for the purposes of this Article SIXTH, on the basis of information known to them after reasonable inquiry, (1) whether a person is an Interested Stockholder, (2) the number of shares of Voting Stock beneficially owned by any person, (3) whether a person is an Affiliate or Associate of another, (4) whether the requirements of Section B. of this Article SIXTH have been met with respect to any Business Combination, (5) whether a class of Voting Stock is Institutional Voting Stock and (6) whether the assets which are subject to any Business Combination have, or the consideration to be received for the issuance or transfer of securities by this Company or any subsidiary in any Business Combination has, an aggregate Fair Market Value of $10,000,000 or more. Any such determination made in good faith shall be binding and conclusive on all parties. E. Nothing contained in this Article SIXTH shall be -88- 89 construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. F. In addition to any requirements of law and any other provisions of these Restated Articles of Incorporation or the terms of any class or series of capital stock of the Company entitled to a preference over the Common Stock as to dividends or upon liquidation, or the terms of any other securities of the Company (and notwithstanding the fact that a lesser percentage may be specified by law, these Restated Articles of Incorporation or any such terms), the affirmative vote of (1) the holders of eighty percent (80%) or more of the combined voting power of the Voting Stock, voting together as a single class, and (2) a majority of the combined voting power of the Voting Stock held by the Disinterested Stockholders, voting together as a single class, shall be required to amend, alter or repeal, or adopt any provision inconsistent with, this Article SIXTH. SEVENTH: A. Except as otherwise fixed by or pursuant to the terms of any class or series of capital stock of the Company entitled to a preference over the Common Stock as to dividends or upon liquidation, the number, qualification, terms of office, manner of election, time and place of meeting, compensation, powers and duties of the directors shall be fixed from time to -89- 90 time by or pursuant to the By-laws. B. If the By-laws so provide, the members of the Board (other than those who may be elected by the holders of any class or series of capital stock having a preference over the Common Stock as to dividends or upon liquidation pursuant to the terms of these Restated Articles of Incorporation or of such class or series of stock) shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, having such terms and being elected in such manner as shall be specified in the By-laws. EIGHTH: In furtherance and not in limitation of the powers conferred upon it by law, the Board of Directors is expressly authorized to: (1) adopt any By-laws a majority of the entire Board of Directors may deem necessary or desirable for the efficient conduct of the affairs of the Company, including, but not limited to, provisions governing the conduct of, and the matters which may properly be brought before, meetings of the shareholders and provisions specifying the manner and extent to which prior notice shall be given of the submission of proposals to be considered at any such meeting or of nominations for the election of directors to be held at any such meeting; and (2) repeal, alter or amend the By-laws by the vote of a -90- 91 majority of the entire Board of Directors. NINTH: In addition to any requirements of law and any other provisions of these Restated Articles of Incorporation or the terms of any series of Preferred Stock or any other securities of the Company (and notwithstanding the fact that a lesser percentage may be specified by law, these Restated Articles of Incorporation or any such terms), the affirmative vote of the holders of eighty percent (80%) or more of the combined voting power of the then outstanding shares of capital stock of the Company entitled to vote generally in an annual election (the "Voting Stock"), voting together as a single class, shall be required to: (1) remove a director without cause (For purposes of this Article (NINTH) "cause" shall mean the willful and continuous failure of a director to substantially perform such director's duties to the Company, other than any such failure resulting from incapacity due to physical or mental illness, or the willful engaging by a director in gross misconduct materially and demonstrably injurious to the Company); (2) adopt, amend, alter or repeal any provision of the By-laws, except that By-law XVI may be amended or altered by a majority vote of the Voting Stock if the majority of the entire Board of Directors has first recommended the amendment or alteration for approval by the shareholders; -91- 92 (3) amend, alter or repeal or adopt any provision inconsistent with, Articles SEVENTH or EIGHTH or this Article NINTH; and (4) amend, alter or repeal or adopt any provisions inconsistent with any provision, other than Articles SIXTH, SEVENTH or EIGHTH or this Article NINTH, contained in these Restated Articles of Incorporation, unless otherwise first recommended and approved by a majority of the entire Board of Directors or, if there is an Interested Stockholder (as defined in Article SIXTH), by a majority of the Disinterested Directors (as defined in Article SIXTH), in which cases a majority vote of the Voting Stock is required to amend, alter or repeal such other provisions of these Restated Articles of Incorporation. TENTH: To the fullest extent that the law of the Commonwealth of Pennsylvania, as it exists on January 27, 1987, or as it may thereafter be amended, permits the elimination of the liability of directors, no director of the corporation shall be liable for monetary damages for any action taken, or any failure to take any action. This Article TENTH shall not apply to any breach of performance of duty or any failure of performance of duty by any director occurring prior to January 27, 1987. No amendment to or repeal of this Article TENTH shall apply to or have any effect on the liability or alleged liability of any director of the Company for or with respect to any act or -92- 93 failure to act on the part of such director occurring prior to such amendment or repeal. ELEVENTH: The Company may, to the fullest extent permitted by applicable law as then in effect, indemnify any person who is or was a director, officer, employee or agent of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) and may take such steps as may be deemed appropriate by the Company, including purchasing and maintaining insurance, entering in to contracts (including, without limitation, contracts of indemnification between the Company and its directors and officers), creating a trust fund, granting security interests or using other means (including, without limitation, a letter of credit) to insure the payment of such amount as may be necessary to effect such indemnification. This Article shall apply to any action taken, or any failure to take any action, on or after January 27, 1987. -93- EX-4.4 3 WESTINGHOUSE ELECTRIC CORP. 1 Exhibit 4.4 This document constitutes part of a prospectus covering securities that have been registered under the securities Act of 1933. INFINITY BROADCASTING CORPORATION STOCK OPTION PLAN (formerly the Infinity Broadcasting Corporation Key Employee Stock Option Plan) ----------------------------------------------- 1. PURPOSE. This plan, which was formerly known as the Infinity Broadcasting Corporation Key Employee Stock Option Plan and shall be known as the Infinity Broadcasting Corporation Stock Option Plan (the "Plan"), is intended to promote the interests of Infinity Broadcasting Corporation (the "Company") and its shareholders by encouraging long-term growth of the Company's earnings by offering to those key employees and non-employee directors of the Company and its subsidiaries who have been or will be largely responsible for such growth the opportunity to acquire equity interests or increase their equity interests in the Company, thereby aligning their interests more closely with the interests of stockholders, and by encouraging key employees and non-employee directors to remain in the service of the Company and its subsidiaries and providing a basis for attracting able employees and non-employee directors in the future. 2. SHARES SUBJECT TO THE PLAN. (a) SHARES. Subject to adjustment as provided in Section 9, the aggregate number of shares of the Class A Common Stock of the Company ("Class A Shares") to be delivered upon exercise of all options granted under the Plan shall be 1,776,233, and the aggregate number of shares of the Class B Common Stock of the Company ("Class B Shares" and together with Class A Shares, "Shares") to be delivered upon exercise of all options granted under the Plan shall be 125,000. Such Shares may be authorized but unissued Shares or treasury Shares. In the event the number of Shares to be delivered upon the exercise in full of any option granted under the Plan is reduced for any reason whatsoever, or in the event any option granted under the Plan can no longer under any circumstances be exercised, the number of Shares 2 no longer subject to such option shall thereupon be released from such option and shall thereafter be available to be re-optioned under the Plan. All Shares issued pursuant to the exercise of options granted under the Plan shall be fully paid and non-assessable. (b) RIGHT OF FIRST REFUSAL. All Shares issued pursuant to the exercise of options granted under the Plan shall be subject to a right of first refusal by the Company at a value determined in good faith by the Board of Directors of the Company (the "Board") in its sole discretion, which value shall in no case be less than the par value of such Shares, unless at such time the Company shall be subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports and other information with the Securities and Exchange Commission. A holder of Shares who receives a bona fide offer shall, within 30 days thereof, notify the Company of such offer and the proposed date of sale. The Company shall exercise its right of first refusal by (i) notifying the holder of such Shares, within 30 days of its receipt of such notice, of its intention to purchase all, but not less than all, of the Shares subject to the bona fide offer and (ii) tendering full payment for such Shares. Once the Company has tendered payment with respect to any such Shares, the Optionee's sole right with respect to such Shares shall be the right to the payment so tendered. The Board's determination of the amount to be paid to the Optionee shall be binding. (c) RIGHT TO REPURCHASE SHARES. All Shares issued pursuant to this Plan shall be subject to the right of the Company to repurchase such Shares at a value determined in good faith by the Board in its sole discretion, upon the termination of employment (including the termination of all service as a director of the Company, its parents and subsidiaries, in the case of an Optionee who is a director of any such entity but is not an employee of any such entity) of the Optionee with respect to whom such Shares were issued unless, at the time of such termination of employment, the Company shall be subject to the informational requirements of the Act, and in accordance therewith files reports and other information with the Securities and Exchange Commission. The Company shall exercise such right by (i) notifying the optionee within thirty days of the date of his termination of its intention to repurchase all, but not less than all, of its Shares issued to such Optionee pursuant to the Plan and (ii) tendering full payment for the 2 3 Shares. Once the Company has tendered payment with respect to any such Shares, an Optionee's sole right with respect to such Shares shall be the right to the payment so tendered. The Board's determination of the amount to be paid to the Optionee shall be binding. The Company is not, however, obligated to purchase any Shares under the Plan. 3. EFFECTIVE DATE, AMENDMENTS. (a) The Plan was adopted on October 27, 1988 and became effective ("Effective Date") on October 27, 1988, upon approval by the holders of a majority of all the outstanding Shares of voting stock on the Company entitled to vote thereon. (b) AMENDMENT DATE. The Plan was amended on September 10, 1990, effective as of the same date (the "Amendment Date"), upon approval of the holders of a majority of all of the outstanding Shares of voting stock of the Company entitled to vote thereon. The Plan was amended and restated effective February 4, 1992, upon the approval of the holders of a majority of all outstanding shares of voting stock of the Company entitled to vote thereon, and was further amended effective as of August 18, 1992, upon the approval of the Company's stockholders in accordance with Rule 16b-3 under the Exchange Act. (c) The Plan was amended, restated and renamed, effective as of July 26, 1993, the date on which the Company's stockholders approved the amendments to Sections 1, 5 and 7 reflected herein in accordance with Rule 16b-3 under the Exchange Act, except that the amendments reflected herein to Section 4 of the Plan became effective as of February 4, 1992. (d) The Plan was further amended, effective as of August 16, 1993, to reflect the Company's three-for-two stock split in the form of a 50% stock dividend. 4. ADMINISTRATION. (a) THE ADMINISTRATOR. The term "Administrator" as used herein shall mean a committee appointed by the Board and consisting of two or more members of the Board, each of whom is a "disinterested person" within the meaning of Rule 16b-3 under the Exchange Act. 3 4 (b) AUTHORITY. Subject to the provisions of the Plan, the Administrator shall interpret the Plan and the options granted under the plan, shall make all other determinations necessary or advisable for the administration of the Plan and shall correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any option, in the manner and to the extent the Administrator deems desirable to carry the Plan or option into effect. The Administrator may, with the consent of the person or persons entitled to exercise any outstanding option, amend such option consistent with the provisions of the Plan. In granting options pursuant to Section 5 hereof to persons other than the Chief Executive Officer of the Company (the "CEO"), the Administrator may consider recommendations by the CEO in addition to the other factors set forth in Section 5. (c) PROCEDURE. All determinations of the Administrator shall be made by not less than a majority of its members at a meeting at which a quorum is present. A majority of the entire Administrator shall constitute a quorum for the transaction of business. Any action required or permitted to be taken at a meeting of the Administrator may be taken without a meeting, if a unanimous written consent which sets forth the action is signed by each member of the Administrator and filed with the minutes of proceedings of the Administrator. No member of the Administrator shall be liable, in the absence of bad faith, for any act or omission with respect to his services. Without limiting the generality of the foregoing, no member of the Administrator shall be liable for any action or determination made in good faith with respect to the Plan or to any option granted thereunder. 5. GRANTING OF OPTIONS. (a) ELIGIBILITY, GRANT OF OPTIONS AND SELECTION OF OPTIONEES. The Administrator shall have authority within ten years of the Effective Date of the Plan, to grant to such key employees (including officers and directors who are employees) and non-employee directors of the Company and its present and future subsidiaries as may be selected by it ("Optionees"), options to purchase Shares. The Administrator shall have the further authority within ten years after the Amendment Date to grant to Optionees options to purchase Shares. All options granted hereunder shall be granted on the terms and conditions hereinafter set forth. In selecting Optionees, and in determining the number of Shares to be covered by each option, the Administrator may 4 5 consider the office or position held by the Optionee, the Optionee's degree of responsibility for and contributions to the growth and success of the Company, the Optionee's potential or any other performance factors which it may consider relevant. Appropriate officers of the Company are hereby authorized to execute and deliver option agreements in the name of the Company, in the form and as directed from time to time by the Administrator. (b) TIME OF GRANTING OPTION. Noting contained in the Plan or any resolutions adopted or to be adopted by the Board or the stockholders of the Company shall constitute the granting of any option hereunder. Options shall be granted only by action of or pursuant to the authority of the Administrator; provided, however, that no participant shall have any rights with respect to such grant unless and until he or she shall have executed and delivered an option agreement in form and substance satisfactory to the Administrator. 6. OPTION PRICE. MINIMUM OPTION PRICE. The option price per share of the Common Stock underlying each option shall be fixed by the Administrator. 7. TERMS AND CONDITIONS OF OPTIONS. Options granted under the Plan shall be in such form as the Administrator may from time to time approve, subject to the following terms and conditions, and may contain such additional terms and conditions (which terms and conditions need not be the same in each case), including restrictions against competition be the Optionee, not inconsistent with the Plan, as the Administrator shall deem desirable: (a) OPTION PERIOD AND CONDITIONS AND LIMITATIONS ON EXERCISE. The options shall be exercised in full or in installments at such time or times as the Administrator, in its sole discretion, may determine. The right to purchase shall be cumulative so that if the full number of the Shares purchasable in any period shall not be purchased, the balance may be purchased at any time from time to time thereafter prior to the expiration of the option term as established by the Administrator. No stock option shall be exercisable with respect to any of the Shares subject to the option later than ten years from the date of grant. The 5 6 date on which an option ultimately becomes unexercisable is hereinafter referred to as the Option Expiration Date. To the extent not prohibited by other provisions of the Plan, each option shall be exercisable at such time or times and subject to such conditions as are set forth in the option. (b) TERMINATION OF EMPLOYMENT, DISABILITY AND DEATH. For purposes of the Plan and each option granted under the Plan, an Optionee's employment shall be deemed to have terminated at the close of business on the day preceding the first date on which he is no longer for any reason whatsoever employed by the Company or any parent or subsidiary of the Company (or, in the case of a non-employee director, at the close of business on the day preceding the first date on which he no longer serves as a director of the Company or of any of its parents or subsidiaries). Unless otherwise provided in an applicable option agreement, if an Optionee's employment is terminated for any reason whatsoever the right to exercise said option shall terminate: (1) At the expiration of thirty days after the Optionee's employment is terminated; (2) At the expiration of three months after the Optionee ceases to receive wages through the Company's or a subsidiary's payroll because of disability, within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). The determination of the Administrator on any question involving disability shall be conclusive and binding; or (3) At the expiration of three months after the Optionee's death if the Optionee's employment is terminated by reason of death or if the Optionee had a right to exercise an option on the date of death pursuant to Section 7(b)(1) or (2); and prior to such date such option may be exercised by the estate or by the person or persons who acquire the right to exercise such option by bequest or inheritance with respect to any or all of the Shares remaining subject to such option at the time of the Optionee's death. An option exercised after cessation of employment by an Optionee for any reason may, subject to adjustment as provided in Section 9, be exercised only with respect to the number of Shares which the Optionee could have acquired by an exercise of the option immediately prior to the cessation of such employment. In no event may an option be exercised 6 7 after its Option Expiration Date. The Administrator may adopt, amend or rescind from time to time such provisions as it deems appropriate with respect to the effect of leaves of absence approved by any duly authorized officer of the Company or any subsidiary with respect to any Optionee. (c) OPTIONS NOT TRANSFERABLE. An option shall not be transferable otherwise than by will or by the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended (or the rules thereunder), and during the lifetime of the Optionee shall be exercisable only by the Optionee. Any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of, or to subject to execution, attachment or similar process, any option other then as permitted in the preceding sentence, shall give no right to the purported transferee. (d) LEGAL LIMITATIONS. Notwithstanding any provision of the Plan or the terms of any option issued pursuant to the Plan, the Company shall not be required to issue any Shares hereunder if such issuance would, in the judgment of the Administrator, constitute a violation of any state or federal law, or of the rules or regulations of any governmental regulatory body, or any securities exchange. 8. EXERCISE AND PAYMENT. (a) EXERCISE. In order to exercise an option under the Plan, the person or persons entitled to exercise it shall deliver to the Company written notice of the number of full Shares with respect to which such option is to be exercised accompanied by payment in full for the Shares being purchased plus, in the case of a nonqualified option, any required withholding tax. No fractional Shares will be issued. The payment of the option exercise price shall be in cash. The withholding tax shall be paid in cash or through a payroll deduction no later than the next payroll cycle. (b) AWARD OF CASH OR SHARES IN LIEU OF EXERCISE. An Option Agreement may provide that, in lieu of accepting payment of the option price and delivering any or all Shares as to which an option has been exercised, the Administrator, in its sole discretion, may elect to pay the holder of such option an amount in cash or Shares, or a combination of cash and Shares, equal to the amount by which the fair market 7 8 value on the date of exercise of the Shares as to which such option has been exercised exceeds the purchase price that would otherwise be payable by the holder of such option to acquire such Shares. (c) RIGHTS AS A STOCKHOLDER. The person or persons entitled to exercise, or who have exercised, an option shall not be entitled to any rights as a stockholder of the Company with respect to any Shares subject to the option until such person or persons shall have become the holder of record of such Shares. 9. ADJUSTMENT OF SHARES. (a) In the event that any time after the Effective Date of the Plan the outstanding Shares are changed into or exchanged for a different number or kind of Shares of the Company or other securities of the Company by reason of merger, consolidation, recapitalization, reclassification, stock split, stock dividend or combination of Shares, the Administrator shall make an appropriate and equitable adjustment in the number and kind of Shares subject to outstanding options, or portions thereof then unexercised, and the number of Shares subject to the Plan, to the end that after such event the Shares subject to the Plan and the Optionee's right to a proportionate interest in the Company shall be maintained as before the occurrence of such event. Such adjustment in an outstanding option shall be made without change in the total price applicable to the option or the unexercised portion of the option (except for any change in the total price resulting from rounding-off Share quantities or prices) and with any necessary corresponding adjustment in option price per Share. Any such adjustment made by the Administrator shall be final and binding upon all Optionees, the Company and all other interested persons. Any adjustment of an incentive stock option under this paragraph shall be made in such manner so as not to constitute a "modification" within the meaning of Section 424(h)(3) of the Code. The Administrator, in its sole discretion, may at any time make or provide for such adjustments to the Plan or any option granted thereunder as it shall deem appropriate to prevent the reduction or enlargement or rights, including adjustments in the event of changes in the outstanding Class A Common Stock or Class B Common Stock by reason of mergers, consolidations, combinations or exchanges of shares, separations, reorganizations, liquidations and the like in which the Company is not the sole surviving successor to the assets or business of the Company immediately prior thereto. 8 9 In the event of any offer to holders of Class A Common Stock or Class B Common Stock generally relating to the acquisition of their shares, the Administrator may make such adjustments as it deems equitable in respect of outstanding options. Any such determination of the Administrator pursuant to this Section shall be conclusive. (b) In the event of a merger or consolidation of the Company or the acquisition of all or substantially all of the outstanding common stock of the Company resulting in the exchange or payment of other consideration for Shares, each option authorized or awarded under this Plan shall be deemed to represent the right to receive, upon fulfillment of the terms and conditions of this Plan and an applicable award agreement, the consideration the holder or recipient of such option would have received had the option been an outstanding Share immediately prior to the consummation of such transaction. 10. LIMITATIONS. (a) AUTHORITY LIMITED TO ADMINISTRATOR. No person shall at any time have any right to receive an option hereunder and no person shall have authority to enter into an agreement for the granting of an option or to make any representation or warranty with respect thereto, except as granted by the Administrator, as provided in the Plan. Optionees shall have no right in respect to their options except as set forth in the Plan. (b) NO RIGHT TO EMPLOYMENT. Neither the action of the Company in establishing the Plan, nor the action taken by it or by the Administrator under the Plan, nor any provision of the Plan, shall be construed as giving to any person the right to be retained in the employ of the Company or any subsidiary or as giving to any person the right to be retained as a director of the Company or any subsidiary. No provision of the Plan will supersede any terms of any employment agreements that an Optionee may have with the Company. 11. AMENDMENTS AND TERMINATION. The Board may terminate, alter, suspend, modify or amend the Plan in such respects as it shall deem advisable. Except as otherwise provided in Section 9, no action of the Board may, without the approval of security holders in the manner required by subsection (b) of Rule 16b-3, (i) increase 9 10 materially the aggregate number of Shares as to which options may be granted or which may be issued under the Plan, (ii) reduce the minimum option price, (iii) extend the period within which options may be exercised, (iv) extend the period during which options may be granted, (v) increase materially the benefits accruing to participants under the Plan, or (vi) modify materially the requirements as to eligibility for participation in the Plan. No termination, alteration, suspension, modification or amendment of the Plan may, without the consent of the Optionee to whom any option shall theretofore have been granted, adversely affect the rights of such Optionee under any such option then outstanding. 12. USE OF CERTAIN TERMS. The terms "parent" and "subsidiary" shall have the meanings ascribed to them in Section 424 of the Code and unless the context otherwise requires, the other terms used in the Plan which correspond to like terms defined in Sections 421 through 424, inclusive, of the Code and regulations and revenue rulings applicable thereto, shall have the meanings attributed to them therein. 10 11 AMENDMENTS TO THE INFINITY BROADCASTING CORPORATION STOCK OPTION PLAN --------------------------------- The Plan is amended in the manner set forth below: i. Section 2(a) of the Plan is amended to reflect the Company's three-for-two stock split in the form of a stock dividend, effective May 19, 1995, so that the first sentence thereof reads in its entirety as follows: "Subject to adjustment as provided in Section 9, the aggregate number of shares of the Class A Common Stock of the Company ("Class A Shares") to be delivered upon exercise of all options granted under the Plan shall be 6,996,525 and the aggregate number of shares of the Class B Common Stock of the Company ("Class B Shares" and together with Class A Shares, "Shares") to be delivered upon exercise of all options granted under the Plan shall be 1,181,250." Section 2(a) is further amended to delete the last sentence thereof. ii. Section 7(c) of the Plan is deleted in its entirety and a new Section 7(c) is added in lieu thereof, to read as follows: "(c) NONTRANSFERABILITY OF AWARDS. An option shall not be transferable otherwise than by will or by the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended (or the rules thereunder), or to a Permitted Transferee; provided that no otherwise permitted transfer shall be effective unless the deceased Optionee's beneficiary or the representative of his estate or the Permitted Transferee acknowledges and agrees in writing, in a form reasonably acceptable to the Company, to be bound by the provisions of the Plan and the Option Agreement covering such Options as if such beneficiary or estate were the Optionee. All rights with respect to Options granted to an Optionee under the Plan 12 shall be exercisable during his lifetime by such optionee (or, if applicable, a Permitted Transferee). Following an Optionee's death, all rights with respect to Options that were exercisable at the time of such Optionee's death and have not terminated shall be exercised by his designated beneficiary or estate (or, if applicable, a Permitted Transferee). As used in this Section 7(c), a Permitted Transferee shall be a member of the Optionee's family or a trust or similar vehicle for the benefit of such family members to whom or to which the Administrator shall permit (on such terms and conditions as it shall establish) an Option to be transferred." iii. This Amendment made by paragraph 1 hereof shall be effective as of May 19, 1995, and the amendment made by paragraph 2 hereby shall be effective as of June 15, 1995. IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this Amendment as of June 15, 1995. INFINITY BROADCASTING CORPORATION By: /s/ FARID SULEMAN ---------------------------- Name: Farid Suleman Title: VP of Finance 13 AMENDMENT TO THE INFINITY BROADCASTING CORPORATION STOCK OPTION PLAN --------------------------------- The Infinity Broadcasting Corporation Stock Option Plan (the "Plan"), as amended and restated as of August 16, 1993, and amended as of November 19, 1993, is further amended as follows, effective as of the date on which the following amendment to Section 2 of the Plan, and the material terms of the following amendment to Section 5 of the Plan, are approved by the Company's stockholders in accordance with the requirements of rule 16b-3 under the Securities Exchange Act of 1934, as amended, and Section 162(m) of the Internal Revenue Code of 1986, as amended, respectively: 1. Subsection 2(a) of the Plan ("Shares") is amended so that the first clause of the first sentence thereof reads as follows: "Subject to adjustment as provided in Section 9 and to the last sentence of this Subsection,"; and is further amended by adding a new final sentence thereto, reading as follows: "Subject to adjustment as provided in Section 9, the aggregate number of Class A shares set forth in the first sentence of this subsection is hereby increased by 2,000,000, and the aggregate number of Class B Shares set forth in such sentence is hereby increased by 600,000." 14 2. Section 3 of the Plan ("Effective Date; Amendments") is awarded to read in its entirety as follows: "The Plan was adopted in October 27, 1988 and became effective on that date upon approval by the holders of a majority of all outstanding Shares of voting stock of the Company entitled to vote thereon. The Plan was thereafter amended effective as of September 10, 1990, February 4, 1992, August 18, 1992, July 26, 1993, August 15, 1993 and November 19, 1993. The Plan is hereby amended, effective as of [June 13, 1994]." 3. Section 4 of the Plan ("Administration") is amended, for purposes of clarity, so that the final sentence of subsection "(c)" thereof reads as follows: "Without limiting the generality of the foregoing or the scope of any applicable provision of the Company's Charter or By-Laws of any indemnification agreement, no member of the Administrator shall be liable for any action or determination made in good faith with respect to the Plan or any option granted thereunder" 4. Section 5 of the Plan ("Granting of Options") is amended to read in its entirety as follows: "(a) ELIGIBILITY, GRANT OF OPTIONS AND SELECTION OF OPTIONEES. The Administrator shall have authority, within ten years after September 10, 1990, to grant to such key employees (including officers and directors who are employees) and non-employee directors of the Company and its present and future subsidiaries as may be selected by it ("Optionees"), options to purchase Shares. All options granted hereunder shall be granted on the terms and conditions hereinafter set forth. In selecting Optionees, and in determining the number of Shares to be covered by each option, the Administrator may consider the office or position held by the Optionee, the Optionee's degree of responsibility for and contributions to the growth and success of the Company, the Optionee's potential or any other performance factors which it may consider relevant. Appropriate officers of the Company are hereby authorized to execute and 2 15 deliver option agreements in the name of the Company, in the form and as directed from time to time by the Administrator. "(b) ANNUAL MAXIMUM NUMBER OF SHARES SUBJECT TO AWARD. The following provisions shall apply to option awards made in fiscal years of the Company beginning on or after January 1, 1994 (each, a "Plan Year"). In the first Plan Year in which an award is made to an Optionee, the Administrator may grant such Optionee Options for the purchase of up to 200,000 Shares. The maximum number of Shares as to which Options may be awarded to such Optionee in each succeeding Plan Year shall be (x) 200,000 plus (y) the excess, if any, of (1) the maximum award that could have been made to such Optionee in the most recent Plan Year in which such Optionee received an award hereunder over (2) the total number of Shares as to which options were awarded to such Optionee in such most recent Plan Year (including awards, if any, made under subsection 5(c)) (such excess being referred to as the "Additional Amount"). In no event shall any Optionee's Additional Amount exceed 300,000 Shares for any Plan Year. "(c) CERTAIN AWARDS. The Administrator shall have the authority, prior to the beginning of each Plan Year (or at such later time as may be permitted under Section 162(m)), to establish in writing an EBITDA target (the "EBITDA Target") for such Plan Year and to make an award of options for the purchase of up to 112,500 Shares to any Eligible optionee upon the Company's attainment of such EBITDA Target (or the attainment of a prorated portion of such target, as determined by the Administrator in the case of an award in respect of a period shorter than a Plan Year). the maximum number of Shares as to which options may be awarded pursuant to this subsection 5(c) shall be prorated in the event of an award in respect of a period shorter than a Plan Year. The per Share exercise price of any option awarded pursuant to this subsection 5(c) shall be 85% of the Fair Market Value of a Share as of the last day of the period for which the award is made. Any option granted pursuant to this Section 5(c) shall be immediately exercisable and shall expire 3 16 ten years after the date of grant. For the purposes of the Plan: the term "EBITDA" means earnings of the Company and its consolidated subsidiaries before interest, taxes, depreciation and amortization, as reported in the Company's report on Form 10-K for the Plan Year or, if for a portion of a Plan Year, as approved by the Board based on the Company's books and records; the term "Eligible Optionee" means the Company's Chief Executive Officer and any other senior executive officer of the Company designated as an Eligible Optionee by the Board prior to the commencement of the applicable Plan Year (or, if later, prior to the commencement of such individual's service as a senior executive officer or such other time as may be specified under Section 162(m) of the Code (as defined below)); and the term "Fair Market Value" means, with respect to any Share, the closing price of a Class A Share (as reported on the NASDAQ National Market System) on the date as of which the determination is made, in the event no price is so reported, the fair market value of a Class A Share on such date, as determined in good faith by the Administrator. "(d) TIME OF GRANTING OPTION. Nothing contained in the Plan or any resolutions adopted or to be adopted by the Board or the stockholders of the Company shall constitute the granting of any option hereunder. Options shall be granted only by action of or pursuant to the authority of the Administrator; provided, however, that no participant shall have any rights with respect to such grant unless and until he or she shall have executed and delivered an option agreement in form and substance satisfactory to the Administrator." 5. Subsection 10(b) of the Plan ("No Right to Employment") is amended by the addition of the following clause as the end of the final sentence thereof: "; provided that awards made pursuant to subsection 5(c) hereof shall be deemed for purposes of an applicable employment agreement to have been made pursuant thereto to the extent such agreement provides for such awards." 4 17 6. The Plan is amended, for purposes of clarity, by the addition of a new section 13 thereto, reading in its entirety as follows: "13. GOVERNING LAW. The Plan shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to principles of conflicts of law," IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this amendment instrument as of the 30th day of March, 1994. INFINITY BROADCASTING CORPORATION By /s/ FARID SULEMAN --------------------------------- Title: Vice President-Finance and Chief Financial Officer 5 18 AMENDMENT TO THE INFINITY BROADCASTING CORPORATION STOCK OPTION PLAN --------------------------------- The Infinity Broadcasting Corporation Stock option Plan (the "Plan"), as amended and restated as of August 16, 1993, is hereby further amended as follows to reflect the Company's three-for-two stock split in the form of a stock dividend, effective as of November 19, 1993: Section 2(a) of the Plan ("Shares") is amended so that the first sentence thereof reads in its entirety as follows: "Subject to adjustment as provided in Section 9, the aggregate number of shares of the Class A Common Stock of the Company ("Class A Shares") to be delivered upon exercise of all options granted under the Plan shall be 2,664,350 and the aggregate number of shares of the Class B Common Stock of the Company ("Class B Shares" and, together with Class A Shares, "Shares") to be delivered upon exercise of all options granted under the Plan shall be 187,500." IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this amendment instrument as of the 19th day of November, 1993. INFINITY BROADCASTING CORPORATION By /s/ FARID SULEMAN -------------------------------- Title: VP of Finance/CFO EX-4.5 4 WESTINGHOUSE ELECTRIC CORP. 1 Exhibit 4.5 WCK ACQUISITION CORP. STOCK OPTION AGREEMENT STOCK OPTION AGREEMENT, dated as of June 27, 1988, between WCK Acquisition Corp., a Delaware corporation (the "Corporation"), and Mel Karmazin (the "Employee"). The Board of Directors of the Corporation (the "Board") has granted to the Employee, effective immediately, an option to purchase an aggregate of 475,770 shares of the Corporation's Class B Common Stock, par value $0.01 per share (the "Class B Shares"). Pursuant to the Agreement and Plan of Merger, dated as of June 22, 1988 (the "Merger Agreement"), between the Corporation and Infinity Broadcasting Corporation, a Delaware corporation ("Infinity" or the "Surviving Corporation"), the Corporation will merge with and into Infinity (the "Merger"), and Infinity will assume all of the outstanding obligations of the Corporation, including the Corporation's obligations hereunder. To evidence the stock option so granted, and to set forth its terms and conditions, the Corporation and the Employee hereby agree as follows: 1. CONFORMATION OF GRANT SUBJECT TO PLAN: OPTION PRICE. The Corporation hereby evidences and confirms its grants to the Employee, on the effective date set forth above, of an option (the "Option") to purchase 475,770 Class B Shares at an option price of $0.10 per share. 2. TERM FOR EXERCISE. The Option shall become available for exercise beginning on the earlier of: (a) 180 days after the effective time of the Merger; (b) the date of the Employee's death; (c) the date of the Employee's disability (as defined below); (d) the business day before the effective date of any registration statement of the Surviving Corporation covering any of the Surviving Corporation's Class A Common Stock; or 2 (e) the business day before the effective time, closing or termination date of any merger or other business combination, tender offer, sale of all or substantially all of the assets of liquidation (or other similar transaction) involving the Surviving Company or its Class A Common Stock or Class B Common Stock, other than the Merger, subject to the provisions hereof, and provided that for purposes of paragraphs (a), (d) and (e) of this Section 2, the Employee shall not have ceased to be employed by the Corporation. The Option shall expire ten years from the date hereof, and the Class B Shares available under the Option may be purchased at any time and from time to time in one or more installments. 3. WHO MAY EXERCISE. During the lifetime of the Employee, the Option may be exercised only by him. If the Employee shall die during his employment by the Corporation or by a corporation that is a parent or subsidiary of the Corporation, or by a successor by merger to the Corporation or a parent or subsidiary of the Corporation, or at such other time as the Employee, if living, could have exercised his Option, and prior to the expiration date specified in Section 2 hereof, the Option may be exercised to the extent of the number of Class B Shares available for exercise by the Employee on the date of his death, by the Employee's estate, personal representative or beneficiary who acquired the Option by will or by the laws of descent and distribution, at any time prior to the earlier of (a) the first anniversary of the Employee's death or (b) the expiration date specified in Section 2 hereof. On the earlier of such dates, the Option shall terminate. 4. EXERCISE AFTER TERMINATION OF EMPLOYMENT. If the Employee shall cease other than by reason of death, to be employed by the Corporation or by a corporation that is a parent or a subsidiary of the Corporation, or by a successor by merger to the Corporation or a parent or subsidiary of the Corporation, the Option shall terminate on the earlier of the expiration date specified in Section 2 hereof or the date which is three months (or, if the Employee shall cease to be so employed by reason of disability (as defined in Section 105(d)(4) of the Internal Revenue Code of 1986, as amended) one year) after the day his employment ended. In the event of such termination of employment, the Options may be exercised to the extent of the number of Class B Shares with respect 2 3 to which the Employee could have exercised it on the day his employment ends. 5. RESTRICTIONS ON EXERCISE. The option may be exercised with respect to full Class B Shares. No fractional shares of stock shall be issued. the Option may not be exercised in whole or in part, and no certificates representing Class B Shares subject to the Option shall be delivered: (a) if any requisite approval or consent of any governmental authority of any kind having jurisdiction over the exercise of options shall not have been secured; (b) unless all applicable federal, state and local tax withholding requirements are satisfied. The Corporation may (but need not) require as a condition to the exercise of the Option in whole or in part at any time that the Employee (or any person exercising the Option after his death in accordance with the provisions of Section 3 hereof) represent to the Corporation or its successor by merger in writing that he is purchasing the Class B Shares to be acquired upon such exercise for his own account for investment only and not with a view to distribution or with any present intention of reselling any thereof. 6. MANNER OF EXERCISE. To the extent the Option shall have become and remains exercisable as provided in this Agreement, and subject to such administrative regulations as the Board may adopt, the Option may be exercised from time to time in whole or in part, by notice to the Secretary of the Corporation in writing, specifying the number of Class B Shares with respect to which the Option is being exercised and accompanied by full payment of the option price for such Class B Shares in (a) cash or cash equivalents, (b) shares of stock of the Corporation or of any parent or subsidiary of the Corporation, or of any successor by merger to the Corporation or any parent or subsidiary of the Corporation, or stock of more than one of such companies, represented by certificates duly endorsed to the Corporation or its nominees or its successor by merger, having a market value equal to the option price, or (c) any combination of the foregoing, provided that the Employee may not pay all or part of the option price in shares of stock without the approval of the Board. The Board shall, in its good faith judgment, make all determinations of market 3 4 value of consideration in connection with Section 6 of this Agreement. In the event that the Option shall be exercised by a person other than the Employee in accordance with the provisions of Section 3 hereof, such person shall furnish to the Corporation evidence satisfactory to it of his right to exercise the Option. The Corporation may require the Employee or other person exercising the Option to furnish or execute such documents as the corporation shall deem necessary to evidence such exercise, to determine whether registration is then required under the Securities Act of 1933, as amended (the "Securities Act"), or to comply with or satisfy the requirements of the Securities Act or any other law. 7. NON-ASSIGNABILITY. The Option is not assignable or transferable except by will or by the laws of descent and distribution to the extent contemplated by Section 3 hereof. At the request of the Employee, Class B Shares purchased on exercise of the Option will be issued in or transferred into the name of the Employee and another person with the right to survivorship. 8. RIGHTS AS STOCKHOLDERS. The Employee shall have no rights as a stockholder with respect to any Class B Shares covered by the Option until the issuance of a certificate to him for such Class B Shares. No adjustment shall be made for dividends or other rights for which the record date is prior to the issuance of such certificate or certificates. 9. DISPOSITION OF SHARES. If the Employee disposes of any shares received upon exercise of the Option, whether by sale, exchange, gift, or otherwise within two years from the date the Option was granted, or within one year from the date the Class B Shares were transferred to him, the Employee shall notify the Secretary of the Corporation of the number of such Class B Shares, the date they were disposed of, the manner of disposition and the amount, if any, realized upon such disposition. 10. CAPITAL AND OTHER ADJUSTMENTS. In the event of a stock dividend, stock split or share combination of the common stock, or any recapitalization or other transaction of the Corporation: (a) the number of the Class B Shares covered by the Option shall be proportionally adjusted so that the holder of the Option shall receive upon exercise of the Option, the number of Class B Shares which such holder would have owned or been entitled to receive after the happening of such event had 4 5 the Option been exercised pursuant to this Agreement immediately prior to the happening of such event and (b) the purchase price per Class B Share covered by the Option shall be correspondingly and proportionally adjusted. To the extent deemed equitable and appropriate by the board, in its sole discretion, subject to any required action by the stockholders of the Corporation, in the event of any merger, consolidation, reorganization, liquidation or dissolution, the Option shall pertain to the securities and other property, if any, which a holder of the number of Class B Shares covered by the Option would have been entitled to receive in connection with such event. In the event that the Warrants (the "Warrants") issued as contemplated by Schedule III to the Commitment Letter, dated June 8, 1988, as amended, from Shearson Lehman Hutton Holdings Inc. shall cover less than 25% of the aggregate amount of the Class B Shares and the shares of Class A Common Stock of the Company (collectively, the "Shares"), the number of Class B Shares covered by the Option and this Agreement shall be adjusted downward so that the Class B Shares received by the Employee in the Merger, plus the number of Shares covered by this Option (as so adjusted), shall equal 15% of the Shares then outstanding, assuming exercise of the Warrants, and assuming that any other options or other similar rights in respect of the Shares are not exercised. 11. NOTICE. Notice to the Secretary of the Corporation shall be deemed given in writing and mailed to the Secretary of the Corporation by first-class mail at the then principal office of the Corporation. 12. INTERPRETATION OF AGREEMENT; GOVERNING LAW. The option is not intended to be an incentive stock option within the meaning of Section 422A of the Code. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of New York. 5 6 IN WITNESS WHEREOF, the Corporation and the Employee have duly executed this Agreement. WCK ACQUISITION CORP. By: /s/ MICHAEL WIENER -------------------------- Name: Michael Wiener Title: Chairman of the Board and Secretary Attest: /s/ MEL KARMAZIN -------------------------- Mel Karmazin /s/ FARID SULEMAN - ----------------------- Name: Farid Suleman Title: Vice President- Finance 6 7 AMENDMENT AGREEMENT AMENDMENT AGREEMENT, dated as of August 2, 1988, between WCK Acquisition Corp., a Delaware corporation (the "Corporation"), and Mel Karmazin (the "Employee"). WHEREAS, the Corporation and the Employee entered into a Stock Option Agreement, dated as of June 27, 1988 (the "Stock Option Agreement"), pursuant to which the Corporation granted to the Employee an option (the "Option") to purchase an aggregate of 475,770 shares of the Corporation's Class B Common Stock, par value $0.01 per share (the "Class B Shares"); and WHEREAS, the Corporation and the Employee desire to amend the Stock Option Agreement to reduce the number of Class B shares subject to the Option; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows: 1. AMENDMENTS. The Corporation and the Employee agree to amend the Stock Option Agreement by deleting the number "475,770" from the fourth line of Section 1 of the Stock Option Agreement and substituting therefor the number "415,229". 2. EFFECTIVENESS; RATIFICATION. The provisions of this Agreement shall become effective as of the date hereof and shall be binding upon and inure to the benefit of the parties to this Agreement. Except as amended hereby, the Stock Option Agreement shall remain in full force and effect. 3. APPLICABLE LAW. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of New York. 4. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 8 IN WITNESS WHEREOF, the Corporation and the Employee have duly executed this Agreement. WCK ACQUISITION CORP. By /s/ MICHAEL A. WIENER ------------------------- Name: Michael A. Wiener Title: Secretary /s/ MEL KARMAZIN ------------------------- Mel Karmazin Attest: /s/ Farid Suleman - -------------------------------- Name: Farid Suleman Title: Vice President 2 9 AMENDMENT NO. 1 TO STOCK OPTION AGREEMENT AMENDMENT NO. 1 to Stock Option Agreement, dated as of October 14, 1988, between Infinity Broadcasting Corporation, a Delaware corporation (the "Corporation," as the successor to WCK Acquisition Corp.), and Mel Karmazin (the "Employee"). The Board of Directors of the Corporation (the "Board") has determined to increase the number of shares of the Corporation's Class B Common Stock, par value $.01 per share (the "Class B Shares"), covered by the option (the "Option") that was granted to the Employee pursuant to the Stock Option Agreement, dated as of June 27, 1988 (the "Option Agreement"). With this Amendment No. 1, the Board intends to increase the number of Class B Shares covered by the option so that upon exercise of the option the Employee would own approximately ___ of the outstanding shares of the Corporation's common stock, on a fully diluted basis. This percentage of ownership of the common stock of the Corporation by the Employee assumes (a) exercise of (i) options held by other employees of the Corporation, (ii) warrants held by Shearson Lehman Hutton Inc., and (iii) warrants issued in connection with the Corporation's 14.25% Senior Subordinated Discount Indentures Due August 1, 1999 for an aggregate number of the Corporation's shares of common stock equal to 22% of the Corporation's common stock, on a fully diluted basis and (b) completion of the purchase by the Corporation from Messrs. Wiener and Carres of a total of 183,472 Class B Shares. In accordance with the terms of a Stock Subscription Agreement, dated as of June 27, 1988, amended and restated as of August 1, 1988. To evidence this change in the Option, the Corporation and the Employee hereby agree that the option Agreement shall be amended as follows: Section 1. Section 1 of the Option Agreement shall be expanded and restated to read as follows, in its entirety: 1. CONFIRMATION OF GRANT: OPTION PRICING. The Corporation hereby evidences and confirm its grant to the Employee, on the effective date set forth 10 above, of an option (the "Option") to purchase 542,135 Class B Shares at an option price of $0.10 per share. Section 2. Except as modified, amended, or supplemented hereby, and except as modified, amended or supplemented hereby, the Option Agreement shall remain unchanged on in full force and effect. Section 3. This Amendment No. 1 shall be construed and enforced in accordance with, and governed by, the Laws of the State of New York. IN WITNESS WHEREOF, the Corporation and the Employee have duly executed this Amendment No. 1. INFINITY BROADCASTING CORPORATION By /s/ MICHAEL A. WIENER ------------------------- Michael A. Wiener Co-Chairman of the Board and Secretary /s/ MEL KARMAZIN ------------------------- Mel Karmazin President and Chief Executive Officer Attest: /s/ FARID SULEMAN - -------------------------------- Farid Suleman Vice President-Finance and Chief Financial Officer EX-4.6 5 WESTINGHOUSE ELECTRIC CORP. 1 Exhibit 4.6 INFINITY BROADCASTING CORPORATION (THE "COMPANY") IS A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE AND THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE STOCK ISSUED UPON EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND IS OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION AND THAT CERTAIN AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT AMONG THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY, DATED AS OF SEPTEMBER 10, 1990. A COPY OF SUCH STOCKHOLDERS' AGREEMENT IS ON FILE AND AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICES OF THE COMPANY. EXERCISABLE AT ANY TIME SUBJECT TO THE PROVISIONS HEREOF NO. 3 INFINITY BROADCASTING CORPORATION WARRANT CERTIFICATE Warrant Certificate for 62,500 Warrants to Purchase 62,500 shares of Class A Common Stock of Infinity Broadcasting Corporation (the "Company") This Warrant Certificate certifies that, for value received, Mel Karmazin (the "Holder"), is the owner of warrants, which entitle the Holder to purchase at any time from and after the date hereof and without expiration up to an aggregate of 62,500 shares of the Company's Class A Common Stock, par value $.002 per share (the "Class A Common Stock") at the purchase price stated in Section 2.3 hereof (the "Exercise Price"). The number of shares purchasable upon exercise of the Warrants and the Exercise Price shall be subject to adjustment from time to time as herein provided. In this Warrant Certificate, the securities issuable upon exercise of the Warrants are referred to as the "Warrant Shares". The Warrants are subject to the following terms, conditions and provisions: 2 SECTION 1. Registration; Transferability; Exchange of Warrant Certificate. 1.1 Registration. The Company shall number and register the Warrants in a register (the "Warrant Register") maintained at the office of the Company (the "Office"). The Company shall be entitled to treat the Holder of the Warrants as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in such Warrants on the part of any other person. If at any time there are more than 50 holders of warrants issued pursuant to (i) the Stock Purchase Agreement, dated as of August 3, 1990, among the Company, certain selling stockholders and certain purchasers (the "Stock Purchase Agreement"), and (ii) the Securities Purchase Agreement, dated as of September 30, 1991, among the Company and certain purchasers (the "Securities Purchase Agreement"), the Company shall appoint a warrant agent to maintain, in New York City, New York, the Warrant Register (including the recordation of transfers and exercises of Warrants). Such a warrant agent shall be a bank or trust company in good standing, incorporated under the laws of the United States of America or any State thereof or the District of Columbia and having at the time of its appointment as warrant agent a combined capital and surplus of at least $10,000,000. Upon such appointment, the warrant agent and the Company may enter into a warrant agency agreement upon customary terms; provided that, other than with respect to the identity of the entity maintaining the Warrant Register (including the recordation of transfers and exercises of Warrants), such warrant agency agreement shall in no way amend or modify or conflict with the provisions of this Warrant Certificate. 1.2 Transfer. Subject to compliance with the restrictions on transfer set forth in this Warrant Certificate, the Warrants shall be transferable only on the Warrant Register upon delivery thereof by the Holder or by his duly authorized attorney or representative or accompanied by proper evidence of succession, assignment or authority to transfer. In all cases of transfer by an attorney, the original power of attorney, duly approved, or a copy thereof, duly certified shall be deposited and shall remain with the Company. In case of transfer by executors, administrators, guardians or other legal representatives, duly authenticated evidence of their authority shall be produced, and may be required to be deposited and 2 3 to remain with the Company in its discretion. No transfer of the Warrants or any interest therein other than in compliance with this Section 1.2 shall be made or recorded in the Warrant Register, and any such purported transfer shall be void and of no effect. SECTION 2. Terms of Warrant. Exercise of Warrants. 2.1 Term of Warrant. Subject to the terms of this Warrant Certificate, the Holder shall have the right, which may be exercised at any time from the date hereof, without expiration, to purchase from the Company and to cause the Company to issue and sell to the Holder of the Warrants up to an aggregate of 62,500 fully paid and nonassessable Warrant Shares or such other number of Warrant Shares which the Holder may at the time be entitled to purchase in accordance with this Warrant Certificate. 2.2 Exercise of Warrants. Subject to the terms of this Warrant Certificate, the Warrants evidenced by this Warrant Certificate may be exercised in whole or in part, upon surrender to the Company, at its Office, of this Warrant Certificate, with a Purchase Form substantially in the form attached hereto duly completed and signed, and upon payment to the Company of the Exercise Price. Payment of the aggregate Exercise Price shall be in cash or by check payable to the order of the Company. Upon the surrender of this Warrant Certificate, with the Purchase Form duly executed, and payment of the 3 4 Exercise Price as aforesaid, the Company shall issue and deliver to or upon the Written order of the Holder and in such name or names as the Holder may designate a certificate or certificates for such number of Warrant Shares so purchased. Such certificate or certificates shall be dated and deemed to have been issued as of the date of the surrender of this Warrant Certificate and payment of the Exercise Price, as aforesaid. The right of purchase represented by this Warrant Certificate shall be exercisable, at the election of the Holder, in full at any time or in part from time to time. In the event the Holder shall exercise fewer than all the Warrants evidenced hereby, a new Warrant Certificate shall be issued evidencing the remaining unexercised Warrants. 4 5 2.3 Exercise Price. The price per share at which each Warrant Shares shall be purchased upon exercise of each Warrant shall be $0.002, subject to adjustment pursuant to Section 6. The aggregate Exercise Price for all Warrant Shares subject to this Warrant Certificate shall be rounded to the next higher $0.01. 2.4 Restriction on Exercise. (a) Notwithstanding anything contained herein to the contrary, the Warrants may not be exercised in full or in part as long as the Company directly or indirectly holds any right, title or interest in any FCC License, provided, however, that this Warrant may be exercised in full or in part when the Company is holding a FCC License if such exercise either (i) complies with the Communications Act of 1934, as amended, including, without limitation, the alien ownership and control provisions contained therein and the rules, regulations and policies of the Federal Communications Commission (the "Communications Act and Rules") or (ii) is exercised in connection with a sale to a person or entity or persons or entities whose ownership of Warrant Shares would not violate the Communications Act and Rules. For purposes of this Warrant Certificate, the term "FCC License" shall mean any license, permit or other authorization issued by the FCC to the Company or any of its subsidiaries necessary to conduct its business or operations. If requested by the Company, the Holder will consider in good faith exercising the Warrants if such exercise would facilitate a transaction contemplated by the Company and would comply with this Section 2.4; provided that for so long as the Purchasers (as defined in the Stock Purchase Agreement) continue to hold warrants issued pursuant to the Stock Purchase Agreement or the Securities Purchase Agreement, the Purchasers shall only be required to consider in good faith exercising such warrants if all (but not less than all) of the Purchasers are permitted to exercise their warrants issued pursuant to the Stock Purchase Agreement or the Securities Purchase Agreement in compliance with Section 2.4. (b) Notwithstanding anything contained herein to the contrary, the Warrants may not be exercised in full or in part unless the Holder has made any and all filings which are required in connection with such exercise under 5 6 the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder, and all applicable waiting periods under such Act with respect to such filing shall have expired or been terminated. SECTION 3. Payment of Taxes. The Company covenants and agrees that it will pay when due and payable all documentary, stamp and other similar taxes, if any, which may be payable in respect of the issuance or delivery of the Warrants or of the Warrant Shares purchasable and issuable upon the exercise of the Warrants. SECTION 4. Mutilated or Missing Warrants. In the event this Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company shall issue and deliver in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and in substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent right or interest, but only upon, in the event of a lost, stolen or destroyed certificate, receipt of evidence satisfactory to the company of such loss, theft or destruction. In making application for such a substitute Warrant Certificate, the Holder shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company may prescribe. SECTION 5. Reservation and availability of Warrant Shares; Purchase and Cancellation of Warrants. 5.1 Reservation of Warrant Shares. (a) The Company shall at all times reserve and keep available free from preemptive rights (other than pursuant to the Stockholders' Agreement), out of the aggregate of its authorized but unissued shares of Common Stock, for the purpose of enabling it to satisfy any obligations to issue the Warrant Shares upon exercise of the Warrants, the full number of Warrant Shares deliverable upon the exercise of all the Warrants evidenced by this Warrant Certificate. The Company or, if appointed, the transfer agent for the Common Stock and every subsequent transfer agent for any shares of the Company's capital stock issuable upon the exercise of any of the rights of purchase aforesaid (each, a "Transfer Agent") will be irrevocably authorized and directed at all times to reserve such number of authorized shares of Class A Common Stock, as shall be required for such purpose. The Company will keep a copy of this Warrant 6 7 Certificate on file with each Transfer Agent. The Company will furnish such Transfer Agent a copy of all notices of adjustments and certificates related thereto which are transmitted to the Holder pursuant to Section 6 hereof. (b) The Company covenants that all Warrant Shares issuable upon exercise of the Warrants will, upon issuance, be fully paid, nonassessable and free from preemptive rights (other than pursuant to the Stockholders' Agreement) and free from all taxes, liens, charges and security interests with respect to the issuance thereof (other than any liens, charges and security interests to which the Warrants are themselves subject). (c) Before taking any action which would cause an adjustment pursuant to Section 6 reducing the Exercise Price, the Company will take any and all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares at the Exercise Price as so adjusted. 5.2 Warrant Shares Record Date. Each person in whose name any stock certificate for Warrant Shares is issued shall for all purposes be deemed to have become the holder of record of the Warrant Shares represented thereby on, and such stock certificate shall be dated the date upon which this Warrant Certificate was duly surrendered and payment of the Exercise Price (and any applicable transfer taxes) was made. 5.3 Cancellation of Warrant. Upon surrender of the Warrant Certificate for exchange, Substitution, transfer or exercise, it shall be cancelled by the Company and retired. SECTION 6. Adjustment of Number or Warrant Shares and Exercise Price. The number of securities purchasable upon the exercise of the Warrant and the Exercise Price shall be subject to adjustment from time to time upon the happening of certain events as hereinafter described. 6.1 Mandatory Adjustment. The number of securities purchasable upon the exercise of the Warrant and the Exercise Price shall be subject to adjustment as follows: 7 8 (a) in case the Company shall (i) declare or pay a dividend on any class of its outstanding common stock in shares of common stock or make a distribution to holders of its outstanding common stock in shares of common stock, (ii) subdivide any class of its outstanding common stock into a greater number of shares of common stock, (iii) combine any class of its outstanding common stock into a smaller number of shares of common stock or (iv) issue by reclassification of any class of its shares of common stock other securities of the Company (including any such reclassification in connection with a consolidation, merger or other business combination in which the Company is the surviving corporation), the number and kind of Warrant Shares purchasable and issuable upon exercise of the Warrants shall be adjusted so that the Holder, upon exercise thereof, shall be entitled to receive the number and kind of Warrant Shares and other securities of the Company that the Holder would have owned or have been entitled to receive after the happening of any of the events described above had the Warrants been exercised and the relevant Warrant Shares issued in the name of the Holder immediately prior to the happening of such event or, if applicable, any record date with respect thereto. An adjustment made pursuant to this paragraph (a) shall became effective on the date of the dividend payment, subdivision, combination or issuance retroactive to the record date with respect thereto, if any, for such event. Such adjustment shall be made successively whenever such an issuance is made. (b) In case the Company shall distribute to all holders of its outstanding common stock evidences of indebtedness of the Company, cash (including cash dividends payable out of consolidated earnings or earned surplus) or assets or securities other than its common stock (including stock of a subsidiary or securities convertible into or exercisable for such stock but excluding dividends or distributions referred to in Sections 6.1(a) above or Section 6.1(c) below) (any such evidences of indebtedness, assets or securities, the "assets or securities"), then, in each case, the Exercise Price shall be adjusted by subtracting from the Exercise Price then in effect the value (as determined in accordance with Section 6.2(b)) of the assets or securities that the 8 9 Holder would have been entitled to receive as a result of such distribution had the Warrant been exercised and the relevant Warrant Shares issued in the name of the Holder immediately prior to the record date for such distribution; provided that if, after giving effect to such adjustment, the Exercise Price would be less than the then par value of the Common Stock, the Company shall distribute such assets or securities to the Holder as if the Holder had exercised the Warrants and the Warrant Shares had been issued in the name of the Holder immediately prior to the record date for such distribution. Any adjustment required by this Section 6.1(b) shall be made whenever any such distribution is made, and shall become effective on the date of distribution retroactive to the record date for the determination of stockholders entitled to receive such distribution. (c) No adjustment in the number of Warrant Shares purchasable hereunder shall be required unless such adjustment would require an increase or decrease of at least one tenth of one percent (.10%) in the number of Warrant Shares purchasable upon the exercise of each Warrant; PROVIDED, HOWEVER, that any adjustments which by reason of this Section 6.1(c) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations shall be made to the nearest one-thousandth of a share. No adjustment need be made for a change in the par value of the Warrant Shares. (d) Whenever the number of Warrant Shares is adjusted, as herein provided, the Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction of which the numerator shall be the number of Warrant Shares purchasable upon the exercise of each Warrant immediately prior to such adjustment and of which the denominator shall be the number of Warrant Shares purchasable immediately thereafter. 6.2 Notice at Adjustment. (a) No action which results in any adjustment of the number of Warrant Shares purchasable upon the exercise of the Warrants or the Exercise Price of such Warrants, as herein provided, shall 9 10 be undertaken by the Company unless the Company shall give to the Holder the greater of 10 business days notice and the number of days notice required to be given to stockholders with respect to such action or such adjustment prior to effecting such action and a certificate of the Chief Financial Officer of the Company, setting forth in reasonable detail (i) the number of Warrant Shares pur- chasable upon the exercise of the Warrants and the Exercise Price of the Warrants after such adjustment, (ii) a brief statement of the facts requiring such adjustment and (iii) the computation by which such adjustment was made. (b) If any adjustment is required to be made pursuant to Section 6.1(b) (unless the proviso to the first sentence of that Section is applicable to the action), the Company and the Holder shall negotiate in good faith toward agreeing upon the necessary adjustment. If no agreement can be reached within 14 days from the date of receipt by the Holder of such notice, the Company and the holders of a majority of the warrants issued pursuant to the Stock Purchase Agreement and the Securities Purchase Agreement shall appoint within 21 days from the date of such receipt a mutually acceptable independent investment banking firm to determine the necessary adjustment. Such firm shall make the necessary determination which shall be binding absent actual fraud or manifest error. One-half of the fees of such firm for making such determination and any related reimbursable expenses shall he paid by each of such holders and the Company. 6.3 Preservation of Purchase Rights Upon Merger, Consolidation, etc. (a) In the event of any merger, consolidation or other acquisition or business combination in which the Company is not the surviving corporation or in which all of the outstanding common stock of the Company is converted into, acquired or exchanged for securities, cash or property or in the event of the sale or other disposition of all or substantially all the assets of the Company, the successor, parent or purchasing person, as the case may be, shall deliver to the Holder an undertaking that the Holder shall have the right thereafter upon payment of the Exercise Price in effect immediately prior to such action to purchase upon exercise of each Warrant the kind and amount of securities, cash and property which the Holder would have owned or have been entitled to receive upon the happening of such merger, consolidation, acquisition, business combination or sale had each Warrant been exercised and the relevent Warrant 10 11 Shares issued in the name of the Holder immediately prior to the relevant record date, if any, or the occurrence of such merger, consolidation, acquisition, business combination or sale. Such undertaking shall provide for adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 6. The Company will not effect any transaction of the type referred to in this Section 6.4 unless the successor or purchasing person delivers such undertaking. The provisions of this Section 6.4 shall similarly apply to successive mergers, consolidations, business combinations and sales or transfers. (b) Upon any liquidation, dissolution or winding up of the Company, the Holder shall receive such cash or property (less the Exercise Price) which the Holder would have been entitled to receive upon the happening of such liquidation, dissolution or winding up had the Warrants been exercised and the Warrant Shares issued immediately prior to the occurrence of such liquidation, dissolution or winding up. 6.4 Statement on the Warrant. Irrespective of any adjustments in the number or kind of securities purchasable upon the exercise of the Warrant or the Exercise Price, any Warrant Certificate theretofore or thereafter issued may continue to express the same price and number and any kind of shares as are stated in this Warrant Certificate. SECTION 7. Fractional Interests. The Company shall not be required to issue fractional securities on the exercise of Warrants. If any fraction of a security would be issuable on the exercise of Warrants, the Company shall pay to the Holder of such Warrants an amount in cash equal to the fair market value of such fraction. SECTION 8. Registration. The Holder shall, from time to time, have the rights, if any, with respect to registration of Warrant Shares as are set forth in the Stockholders' Agreement. SECTION 9. No Rights as a Stockholder; Notices to Holder. Nothing contained in this Warrant Certificate shall be construed as conferring upon the Holder the right to vote or to consent or to receive notice as a stockholder in respect of any meeting of stockholders of the Company for the election of the directors of the Company 11 12 or any other matter, or any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the expiration of the Warrant and prior to its exercise, any of the following events shall occur: (a) the Company shall declare any dividend payable in cash or in any securities upon its shares of common stock or make any distribution to the holders of its shares of common stock: (b) the Company shall offer to all holders of its shares of common stock any additional shares of common stock or securities convertible into or exchangeable for shares of common stock or any right to subscribe for or purchase any thereof; (c) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation, merger, sale, transfer or lease of all or substantially all of its property, assets and business as an entirety) shall be proposed; or (a) any consolidation or merger to which the Company is a party and for which approval of the holders of common stock is required, or of the conveyance or transfer of all or substantially all assets of the Company as, or substantially as, an entirety, or of any reclassification or change of outstanding shares of Common Stock issuable upon exercise of the Warrant (other than a change in par value to no par value, or from no par value to par value) or as a result of a subdivision or combination, then in any one or more of said events, the Company shall give to the Holder the qreater of 10 business days' written notice and the number of days written notice required to be given to stockholders with respect to such action prior to the applicable record date hereinafter specified, stating (i) the date as of which the holders of record of shares of common stock to be entitled to receive any such dividends, rights or warrants are to be determined or (ii) the date on which any such dissolution, liquidation, winding up, consolidation, merger conveyance or transfer is expected to become effective and the date as of which it is expected that holders of record of shares of common stock shall be entitled to exchange their shares of common stock for securities or other property, if any, deliverable 12 13 upon such reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation, or winding up. Failure to mail or receive such notice or any defect therein or in the mailinq thereof shall not affect the validity of any action taken in connection with such dividend, distribution or subscription rights, or such proposed dissolution, liquidation, winding up, consolidation, merger, conveyance, transfer or reclassification. SECTION 10. Identity of Transfer Agent. Forthwith upon the appointment of any Transfer Agent for the common stock, or any other shares of the Company's capital stock issuable upon the exercise of the Warrant, the Company shall promptly notify the Holder of the name and address of such Transfer Agent. SECTION 11. Notices. Any notice, except as provided in Section 9 of this Warrant Certificate, or demand authorized by this Warrant Certificate to be qiven by the Holder to the Company, shall be in writing and shall be delivered in person or by facsimile transmission, or mailed by overnight courier, or otherwise delivered, to the Company, at 600 Madison Avenue, New York, New York 10022, attention of Chief Executive Officer, with a copy to Richard D. Bohm, Esq., Debevoise & Plimpton, 875 Third Avenue, New York, New York 10022. The Company may change the address to which notices to it are to be delivered or mailed hereunder by notice to the Holder. Any notice pursuant to this Warrant Certificate by the Company to the Holder shall be in writing and shall be mailed by overnight courier or otherwise delivered, to the Holder at Infinity Broadcasting Corporation, 600 Madison Avenue, New York, New York 10022. Notices delivered personally shall be effective at the time delivered by hand. notices sent by mail shall be effective when received, notices sent by facsimile transmission shall be effective when confirmed and notices sent by courier guaranteeing next day delivery shall be effective on the next business day after timely delivery to the courier. SECTION 12. Supplements and Amendments. The Warrant Certificate may not be supplemented, amended or otherwise modified without the prior written consent of the Holder. 13 14 SECTION 13. Successors. All the covenants and provisions of this Warrant Certificate by or for the bene- fit of the Company shall bind and inure to the benefit of its respective successors and assigns hereunder. SECTION 14. Applicable Law. This Warrant Certificate and the Warrants evidenced hereby shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflict of laws. The Company and the Holder agree to submit to the non-exclusive jurisdiction of the courts of the State of New York in any action or proceeding arising out of or relating to this Warrant Certificate and the Warrants evidenced hereby. SECTION 15. Benefits of this Warrant Certificate. Nothing in this Warrant Certificate shall be construed to give to any person or entity other than the Company and the Holder any legal or equitable right, 14 15 remedy or claim under this Warrant Certificate; and this Warrant Certificate shall be for the sole and exclusive benefit of this Company and the Holder. SECTION 16. Captions. The captions of the Sections and paragraphs of this Warrant Certificate have been inserted for convenience only and shall have no substantive effect. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed this 30th day of September, 1991. INFINITY BROADCASTING CORPORATION By: MEL KARMAZIN ----------------------------- Name: Mel Karmazin Title: Chief Executive Officer Attest: By: MICHAEL A. WIENER ----------------------------- Name: Michael A. Wiener Title: Secretary 15 16 PURCHASE FORM (To be executed upon exercise of Warrants) The undersigned hereby irrevocably elects to exercise the right, represented by the attached Warrant Certificate (the "Certificate"), to purchase __________ shares of Class A Common Stock as provided for in the Certificate and herewith tenders in payment for such shares of Class A Common Stock payment of the purchase price in full in the form of cash or a check payable to the order of Infinity Broadcasting Corporation in the amounts of $______, all in accordance with the terms of the Certificate. The undersigned requests that a certif- icate for such shares of Common Stock be registered in the name of _____________ whose address is __________________ and that such certificate shall be delivered to _______________ at the following address: ________________ If said number of shares of Class A Common Stock is less than all of the shares of Class A Common Stock purchasable under the Certificate, the undersigned requests that a new Warrant Certificate representing the right to purchase the remaining balance of the shares of Class A Common Stock be registered in the name of _______________ whose address is ____________________ and that such certificate shall be delivered to _________________ whose address is _________________________. Dated: _______________________ [HOLDER] By: _____________________________ Name: Title: 17 ASSIGNMENT (To be executed only upon assignment of the Warrant Certificate) FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ______________ (Name and Address of Assignee Must Be Printed or Typewritten) the within Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ________________, Attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: ________________________________ Signature of Registered Holder EX-5 6 WESTINGHOUSE ELECTRIC CORP. 1 Exhibit 5 January 2, 1997 Westinghouse Electric Corporation 11 Stanwix Street Pittsburgh, PA 15222 Ladies and Gentlemen: This opinion is being submitted in connection with the filing with the Securities and Exchange Commission, under the Securities Act of 1933, a amended, of the Post-Effective Amendment No. 1 to Registration Statement on Form S-8 to Westinghouse Electric Corporation's (the "Company") Registration Statement on Form S-4, Registration No. 333-13219. The Post-Effective Amendment No. 1 relates to 21,510,674 shares of the Common Stock, par value $1.00 per share (the "Common Stock") of Westinghouse Electric Corporation (the "Company") issuable upon the exercise of stock options and warrants granted under The Amended and Restated Infinity Broadcasting Corporation Stock Option Plan, The WCK Acquisition Corp. Stock Option Plan and the Infinity Broadcasting Corporation Warrant Certificate No. 3 to Mel Karmazin (collectively, the "Plans") which have been assumed by the Company in connection with the merger involving the Company and Infinity Broadcasting Corporation ("Infinity"), pursuant to the terms of an Agreement and Plan of Merger, dated as of June 20, 1996 (as amended, the "Merger Agreement"). I have reviewed the Restated Articles and the By-laws, both as amended, of the Company, a Pennsylvania corporation and such other documents as I have deemed necessary as a basis for the options hereinafter expressed. I am of the opinion that the Company is a duly organized and validly existing corporation under the laws of the Commonwealth of Pennsylvania. Based on the foregoing and having regard for such legal considerations as I deem relevant, I am of the opinion that the shares of Common Stock, when issued and delivered in accordance with the terms of the options and warrants issued under the Plans, as assumed by the Company pursuant to the Merger Agreement, will be duly authorized, validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment. Very truly yours, /s/ LOUIS J. BRISKMAN Louis J. Briskman Senior Vice President and General Counsel EX-23.2 7 WESTINGHOUSE ELECTRIC CORP. 1 Exhibit 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (No. 333-13219) of Westinghouse Electric Corporation of our report dated February 12, 1996 except for the restatement discussed in Note 23, for which the date is March 31, 1996, which is included in its Form 8-K dated September 19, 1996. /s/ PRICE WATERHOUSE LLP Price Waterhouse LLP 600 Grant Street Pittsburgh, Pennsylvania 15219-9954 December 27, 1996 -----END PRIVACY-ENHANCED MESSAGE-----