0001005477-01-501174.txt : 20011009 0001005477-01-501174.hdr.sgml : 20011009 ACCESSION NUMBER: 0001005477-01-501174 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010927 EFFECTIVENESS DATE: 20010927 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW YORK TIMES CO CENTRAL INDEX KEY: 0000071691 STANDARD INDUSTRIAL CLASSIFICATION: NEWSPAPERS: PUBLISHING OR PUBLISHING & PRINTING [2711] IRS NUMBER: 131102020 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-70280 FILM NUMBER: 1746003 BUSINESS ADDRESS: STREET 1: 229 W 43RD ST CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2125561234 MAIL ADDRESS: STREET 1: 229 W 43RD STREET CITY: NEW YORK STATE: NY ZIP: 10036 S-8 1 d01-34108.txt FORM S-8 As filed with the Securities and Exchange Commission on September 27, 2001 REGISTRATION NO. 333- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------- THE NEW YORK TIMES COMPANY (Exact name of Registrant as specified in its charter) NEW YORK 13-1102020 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) ------------- 229 WEST 43RD STREET NEW YORK, NY 10036 (212) 556-1234 (Address, including zip code, of Principal Executive Offices) -------------- THE NEW YORK TIMES COMPANY EMPLOYEE STOCK PURCHASE PLAN (FULL TITLE OF THE PLAN OR AGREEMENT) ------------- SOLOMON B. WATSON IV, ESQ. SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY THE NEW YORK TIMES COMPANY 229 WEST 43RD STREET NEW YORK, NEW YORK 10036 (212) 556-1234 (Name, address, and telephone number, including area code, of agent for service) -------------
CALCULATION OF REGISTRATION FEE ============================================================================================================ PROPOSED PROPOSED MAXIMUM MAXIMUM OFFERING AGGREGATE AMOUNT OF TITLE OF SECURITIES TO NUMBER OF SHARES TO BE PRICE PER OFFERING REGISTRATION BE REGISTERED REGISTERED (1) SHARE PRICE FEE (2) ----------------------------------------------------------------------------------------------------------- Class A Common Stock, $.10 par value 10,000,000 $34.319 $343,187,500 $85,796.88 per share ============================================================================================================
(1) Pursuant to Rule 416(a), the number of shares being registered shall include an indeterminate number of additional shares of common stock or common stock which may become issuable as a result of stock splits, stock dividends, or similar transactions in accordance with anti-dilution provisions of The New York Times Company Employee Stock Purchase Plan. (2) The amount of the registration fee is estimated in accordance with Rule 457(h) and is based on 85% of the average of the high and low price per share of the Company's Class A Common on September 24, 2001, as reported on the New York Stock Exchange. (The price at which shares of the Company's Class A Common are offered under the Employee Stock Purchase Plan is based on 85% of the fair market value of such stock.) This maximum aggregate offering price per share was multiplied by .00025 to determine the registration fee. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. PLAN INFORMATION.* Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.* * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"), and the Explanatory Note to Part I of Form S-8. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by us with the Securities and Exchange Commission ("SEC") are incorporated by reference into this Registration Statement: (a) Our Quarterly Report on Form 10-Q filed with the SEC on August 15, 2001; (b) Our Quarterly Report on Form 10-Q filed with the SEC on May 15, 2001; (c) Our Annual Report on Form 10-K filed with the SEC on February 21, 2001; (d) Our Current Report on Form 8-K filed with the SEC on April 2, 2001; and (e) The description of our Class A Common Stock contained in our Registration Statement on Form 10 filed under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on April 28, 1967, including any amendment or report filed for the purpose of updating such description. All reports and other documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document all or a portion of which is 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 so modified or superseded, to constitute a part of this Registration Statement. EXPERTS The financial statements and the related financial statement schedules incorporated in this registration statement by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 2000 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. Item 4. DESCRIPTION OF SECURITIES. Not Applicable. -II-1- Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The application of the Employee Retirement Income Security Act of 1974 to The New York Times Employee Stock Purchase Plan and the legality of the shares offered pursuant to this registration statement has been passed upon for the Company by Solomon B. Watson IV, Senior Vice President, General Counsel and Secretary of the Company, 229 West 43rd Street, New York, NY 10036. Mr. Watson is an officer of the Company and a holder of shares (and options to purchase shares) of common stock of the Company. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under the Company's by-laws, any individual made or threatened to be made a party to any civil or criminal action or proceeding by reason of the fact that the individual or the individual's testator or intestate is or was a director or officer of the Company, or served any other corporation or entity of any type or kind, domestic or foreign, in any capacity, at the request of the Company, shall be indemnified against judgments, fines, amounts paid in settlement and other related expenses, to the full extent permitted by law. The indemnification provided in the Business Corporation Law of New York is not exclusive of any other rights to which a director or officer may be entitled, whether contained in the certificate of incorporation or by-laws or, when authorized by the certificate of incorporation or by-laws, a stockholders' or directors' resolution or an indemnification agreement, except that no indemnification may be made in any case if a judgment or other final adjudication adverse to the director or officer establishes that the officer's or director's acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that the officer or director personally gained in fact a financial profit or other advantage to which he or she was not legally entitled. Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to officers and directors of the Company pursuant to the above-mentioned by-laws and statute, the Company has been advised that, in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for such indemnification (except insofar as it provides for payment by the Company of expenses incurred or paid by a director or officer in the successful defense of any action, suit or proceeding) is asserted against the Company by a director or officer and the omission is still of the same opinion, the Company will, unless the matter has, in the opinion of its counsel, been adjudicated by precedent deemed by it to be controlling, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. Item 8. EXHIBITS. EXHIBIT DESCRIPTION ------- ----------- 4.1 Certificate of Incorporation as amended and restated to reflect amendments effective June 19, 1998 (filed as an Exhibit to the Company's Form 10-Q dated August 11, 1998, and incorporated by reference herein). 4.2 By-laws as amended through May 21, 1998 (filed as an Exhibit to the Company's Form 10-Q dated August 11, 1998, and incorporated by reference herein). -II-2- 4.3 The New York Times Company Employee Stock Purchase Plan. 5 Opinion of the Company's Senior Vice President, General Counsel and Secretary. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Counsel (contained in the Opinion of the Company's General Counsel, Exhibit 5 hereto). 24 Power of Attorney (included on page II-5 of this Registration Statement). Item 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the Prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the 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. -II-3- (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. -II-4- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended (the "Securities Act"), the Company 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 New York, State of New York, on September 27, 2001. THE NEW YORK TIMES COMPANY BY:/S/ SOLOMON B. WATSON -------------------------------------------------- SOLOMON B. WATSON IV SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY POWERS OF ATTORNEY Each person whose signature appears below hereby authorizes, appoints and constitutes Solomon B. Watson IV, as his or her true and lawful attorney-in-fact with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign and file any and all amendments to this Registration Statement with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and he or she hereby ratifies and confirms all that said attorney-in-fact, or his or her substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirement of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE /S/ ARTHUR OCHS SULZBERGER Chairman Emeritus, Director September 27, 2001 -------------------------- Arthur Ochs Sulzberger /S/ ARTHUR SULZBERGER, JR. Chairman, Director (Principal September 27, 2001 -------------------------- Executive Officer) Arthur Sulzberger, Jr. /S/ RUSSELL T. LEWIS Chief Executive Officer, September 27, 2001 -------------------------- President and Director Russell T. Lewis -II-5- /S/ MICHAEL GOLDEN Vice Chairman, Senior Vice September 27, 2001 -------------------------- President and Director Michael Golden /S/ JOHN F. AKERS Director September 27, 2001 -------------------------- John F. Akers /S/ BRENDA C. BARNES Director September 27, 2001 -------------------------- Brenda C. Barnes /S/ RAUL E. CESAN Director September 27, 2001 -------------------------- Raul E. Cesan /S/ JACQUELINE H. DRYFOOS Director September 27, 2001 -------------------------- Jacqueline H. Dryfoos /S/ WILLIAM E. KENNARD Director September 27, 2001 -------------------------- William E. Kennard /S/ ROBERT A LAWRENCE Director September 27, 2001 -------------------------- Robert A. Lawrence /S/ DAVID E. LIDDLE Director September 27, 2001 -------------------------- David E. Liddle -II-6- /S/ ELLEN R. MARRAM Director September 27, 2001 -------------------------- Ellen R. Marram /S/ JOHN M. O'BRIEN Senior Vice President and September 27, 2001 -------------------------- Chief Financial Officer John M. O'Brien (Principal Financial Officer) /S/ CHARLES H. PRICE II Director September 27, 2001 -------------------------- Charles H. Price II /S/ HENRY B. SCHACHT Director September 27, 2001 -------------------------- Henry B. Schacht /S/ DONALD M. STEWART Director September 27, 2001 -------------------------- Donald M. Stewart /S/ STUART STOLLER Vice President, Corporate September 27, 2001 -------------------------- Controller (Principal Stuart Stoller Accounting Officer) -II-7- EXHIBITS EXHIBIT DESCRIPTION ------- ----------- 4.1 Certificate of Incorporation as amended and restated to reflect amendments effective June 19, 1998 (filed as an Exhibit to the Company's Form 10-Q dated August 11, 1998, and incorporated by reference herein). 4.2 By-laws as amended through May 21, 1998 (filed as an Exhibit to the Company's Form 10-Q dated August 11, 1998, and incorporated by reference herein). 4.3 The New York Times Company Employee Stock Purchase Plan. 5 Opinion of the Company's Senior Vice President, General Counsel and Secretary. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Counsel (contained in the Opinion of the Company's General Counsel, Exhibit 5 hereto). 24 Power of Attorney (included on page II-5 of this Registration Statement). -II-8- EX-4.3 3 ex4-3.txt EXHIBIT 4.3 Exhibit 4.3 THE NEW YORK TIMES COMPANY EMPLOYEE STOCK PURCHASE PLAN SECTION 1. Purpose. The Employee Stock Purchase Plan (the "Plan") of The New York Times Company ("The Times") is designed to provide an opportunity for the employees of The Times and its designated subsidiaries to purchase shares of the Class A Common Stock (the "Stock") of The Times through voluntary systematic payroll deductions. It is the purpose and policy of the Plan to provide employees with an opportunity to acquire an additional interest in the economic progress of The Times and a further incentive to promote its best interests. SECTION 2. Offerings Under the Plan. From time to time within the limits of the Plan, shares of the Stock will be made available for purchase only by employees of The Times through offers of the Stock made on behalf of The Times by its Board of Directors (the "Board"). The Board shall designate the subsidiaries of The Times whose employees may participate in an offering under the Plan and shall within the limits of the Plan fix the terms and conditions of each offering, provided that any such subsidiary qualifies as a "subsidiary corporation" as defined in Section 424(f) of the Internal Revenue Code of 1986, as amended (the "Code"). Except as provided in Section 3 of the Plan, all employees participating in an offering shall have the same rights and privileges to purchase Stock under the Plan. SECTION 3. Employees Eligible and Participation by Such Employees. All regular, full-time employees of The Times and of such subsidiaries as may be designated by the Board shall be eligible to participate in the Plan, except that the Board in its discretion may exclude, on a uniform basis, from any offering or offerings: (a) employees who at the time of an offering have been employed less than two (2) years, (b) employees whose customary employment is twenty (20) hours or less per week, (c) employees whose customary employment is for not more than five (5) months in any calendar year, and (d) highly compensated employees as defined in the Code. The number of shares that may be purchased by an employee under any one offering shall bear a uniform relationship to the basic compensation of such employee over a period of time in which such compensation is paid (the "Purchase Period"). However, an employee owning or who would own directly or indirectly more than five percent (5%) of the total combined voting power or value of all classes of stock of The Times, its parent or any subsidiary corporation immediately after any offering under the Plan in which he participates or in which he is otherwise eligible to participate, will not be eligible to participate in the Plan or any offering made thereunder. No employee shall he granted the right to purchase shares of the Stock which would permit his total rights to purchase Stock, under all employee stock purchase plans of The Times, to accrue at a rate which exceeds $25,000 of the fair market value of such Stock, determined at the time such rights are granted, for each calendar year during which rights to purchase such Stock are outstanding at any time. SECTION 4. Shares Subject to the Plan. The shares which may be offered under the Plan may be treasury Stock, unissued Stock, or The Times may go into the market and purchase Stock for sale. The number of shares of Stock to be sold under the Plan shall not exceed 10,000,000 shares, except as such number may be adjusted pursuant to Section 9. All shares offered under the Plan and for any reason not purchased as well as all shares not previously offered will be available for subsequent offerings. SECTION 5. Price. The price at which shares may from time to time be offered shall be fixed by the Board, but shall not be less than the lower of (a) 85% of the fair market value of the Stock on the date of offering (the "Offering Price"), or (b) 85% of the fair market value of the Stock on the last day of the Purchase Period, except as provided in Section 6. SECTION 6. Payroll Deductions, Interest and Right of Cancellation. Shares purchased under the Plan will be paid for by payroll deductions during the Purchase Period, which shall not exceed 27 months, without the right of prepayment. The Board will fix the rate of interest, if any, that will accrue on the amounts deducted. Each participant will have the right to cancel his election to purchase shares under the Plan within a designated time prior to the last day of the Purchase Period and in such case payroll deductions, plus any interest thereon, will be -II-9- returned to him. The Board will also make provision with respect to the rights of participants in the event of retirement, death, termination of employment, temporary layoff, or authorized leave of absence, including without limitation a provision that a participant whose employment has terminated through death or retirement or otherwise may purchase Stock within three (3) months thereafter at the Offering Price. SECTION 7. Issue of Shares. No shares purchased under the Plan will be issued except at the end of the Purchase Period and only upon such issuance will participants have, with respect to such shares, any of the rights of a stockholder, except as otherwise provided in Section 6. SECTION 8. Assignability. The rights of a participant will not be transferable by him other than by will or the laws of descent and distribution, and will be exercisable during his lifetime only by him. SECTION 9. Effects of Changes in Shares. If at any time The Times shall take any action, whether by stock dividend, stock split, combination of shares, or otherwise, which results in a proportionate increase or decrease in the number of shares of Stock theretofore issued and outstanding, the number of shares covered under the Plan shall be increased or decreased proportionately, and the price in Section 5 adjusted proportionately, and such other adjustment shall be made as may be equitable by the Board or the Committee. SECTION 10. Administration of the Plan. The Plan shall be administered by the Board or a Committee appointed by the Board of three or more of its members (the "Committee"). The Committee shall serve at the pleasure of the Board and shall have such powers as the Board may from time to time confer upon it. Any decision or action taken by the Board or the Committee arising out of or in connection with the construction, administration, interpretation and effect of the Plan shall be conclusive and binding upon all employees participating in the Plan and any person claiming or under or through any such employee. SECTION 11. Amendment or Discontinuance. The Board may amend or discontinue the Plan at any time. If required by applicable law or stock exchange rule, any such amendment shall be subject to stockholder approval. Unless otherwise required by such law or rule, the affirmative vote of a majority of the votes cast on such matter by the holders of the Class A Common Stock and Class B Common Stock, voting together as a single class, shall be required for such approval. SECTION 12. Approval by Stockholders. This Plan must be approved by the affirmative vote of a majority of the votes cast on such matter by the holders of the Class A Common Stock and Class B Common Stock, voting together as a single class. -II-10- EX-5 4 ex-5.txt EXHIBIT 5 EXHIBIT 5 September 27, 2001 The New York Times Company 229 West 43rd Street New York, New York 10036 Re: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: I am the Senior Vice President, General Counsel and Secretary of The New York Times Company, a New York corporation (the "Company"), and am admitted to the practice of law in the State of New York. I have represented the Company in connection with the proposed filing with the Securities and Exchange Commission expected to be made on or about September 27, 2001, under the Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the "Registration Statement") for the purpose of registering 10,000,000 shares (the "Shares") of Class A Common Stock, par value $.10 per share, which may be issued under the Company's Employee Stock Purchase Plan ("Plan"). In such capacity, I have examined the Registration Statement, Certificate of Incorporation and By-laws of the Company, the Plan, and such other documents of the Company as I have deemed necessary or appropriate for the purpose of the opinion expressed herein. Based upon the foregoing, I advise you that, in my opinion, the Plan is not subject to any provision of the Employee Retirement Income Security Act of 1974 and, the Shares, when issued in accordance with the terms of the Plan, will be duly authorized, validly issued, fully paid and non-assessable. Further, I consent to the use of my name under the caption "Interests of Named Experts and Counsel" in this Registration Statement, and to the filing of a copy of this opinion as an exhibit thereto and its use in connection therewith. The opinions expressed above are limited to the laws of the State of New York and United States federal law. Very truly yours, /S/ SOLOMON B. WATSON IV ------------------------ Solomon B. Watson IV -II-11- EX-23.1 5 ex23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of The New York Times Company on Form S-8 of our report dated January 24, 2001 (January 31, 2001 as to Note 17), appearing in the Annual Report on Form 10-K of The New York Times Company for the year ended December 31, 2000 and to the reference to us under the heading "Experts" in this Registration Statement. /S/ DELOITTE & TOUCHE LLP -------------------------- DELOITTE & TOUCHE LLP New York, New York September 27, 2001 -II-12-