-----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, Ed4pSN5XVVNHlN5IRCOMNFGv5KELmp6DkudxJxaKTyMZEJdmwuWyhxYMrMSOAO5T EFnjexxUZodI01QY23R3Lw== 0001047469-97-008974.txt : 19971230 0001047469-97-008974.hdr.sgml : 19971230 ACCESSION NUMBER: 0001047469-97-008974 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971229 EFFECTIVENESS DATE: 19971229 SROS: NYSE 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: SEC FILE NUMBER: 333-43369 FILM NUMBER: 97745426 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 FORM S-8 Registration No. 333- As filed with the Securities and Exchange Commission on December 29, 1997 =============================================================================== 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 issuer as specified in its charter) NEW YORK 13-1102020 (State or Other Jurisdiction (I.R.S. Employer of Incorporation) Identification No.) 229 WEST 43D STREET NEW YORK, NEW YORK 10036 (212) 556-1234 (Address and telephone number of principal executive offices) THE NEW YORK TIMES DESIGNATED EMPLOYEES DEFERRED EARNINGS PLAN (Full title of Plan) Laura J. Corwin, Vice President and Secretary The New York Times Company 229 West 43d Street New York, New York 10036 (212) 556-1234 (Name, address and telephone number of agent for service) ------------------------ CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE - -------------------------------------------------------------------------------------------------------------------------------- Deferred Compensation Obligations $17,300,000.00 100% $17,300,000.00 $5,103.50 - --------------------------------------------------------------------------------------------------------------------------------
- -------------- 1. The Deferred Compensation Obligations are unsecured obligations of The New York Times Company to pay deferred compensation in the future in accordance with the terms of The New York Times Designated Employees Deferred Earnings Plan. 2. Estimated solely for purposes of determining the registration fee. =============================================================================== PART I A prospectus setting forth the information required by Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1)(i). PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents which have heretofore been filed by The New York Times Company (the "Company") (File No. 1-5837) with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), are incorporated by reference herein and shall be deemed to be a part hereof: 1. The Company's Annual Report on Form 10-K for the fiscal year ended December 29, 1996; and 2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 30, 1997, June 29, 1997, and September 28, 1997. All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective amendment to this registration statement 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 made a part hereof from their respective dates of filing (such documents, and the documents enumerated above, being hereinafter referred to as "Incorporated Documents"); provided, however, that the documents enumerated above or subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act in each year during which the offering made by this registration statement is in effect prior to the filing with the Commission of the Company's Annual Report on Form 10-K covering such year shall not be Incorporated Documents or be incorporated by reference in this registration statement or be a part hereof from and after the filing of such Annual Report on Form 10-K. Any statement contained in an Incorporated Document 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 Incorporated Document 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. ITEM 4. DESCRIPTION OF SECURITIES. The securities being registered under this registration statement consist of obligations (the "Obligations") of the Company to pay compensation deferred by eligible employees under the terms of The New York Times Designated Employees Deferred Earnings Plan (the "Plan"). Subject to the provisions of the Plan, an eligible employee may enter into an agreement with the Company providing for the deferral of the payment of a specified portion or amount of compensation payable by the Company to the eligible employee. The amount ultimately payable to the eligible employee in respect of such a deferral election will be adjusted to reflect the investment experience of one or more of the benchmarks designated under the Plan and selected by the eligible employee. Such amounts are payable to the 2 employee commencing on the date designated by the employee in accordance with the terms of the Plan, in 10 substantially equal installments, unless the employee elects to be paid in a single lump sum or in substantially equal annual installments over 5 or 10 years, provided, however, that payment of employees' deferred amounts will be accelerated and paid in a single lump sum on certain events, such as a change in control of the Company, and may also be accelerated upon a termination of the Plan, and, provided, further, that the Plan Administrator and/or the Plan's ERISA Management Committee may elect to pay a participant's deferred amounts in a single lump sum upon certain events, such as death of the employee. An employee's rights to and under the Obligations cannot be assigned, alienated, sold, garnished, transferred, pledged or encumbered, except by way of transfer to the employee's beneficiary or estate upon the employee's death, pursuant to the terms of the Plan. The Obligations are unsecured general obligations of the Company which rank pari passu with other unsecured and unsubordinated indebtedness of the Company that may be outstanding from time to time. No sinking fund has or will be established with respect to the Obligations. The Obligations are not subject to redemption, in whole or in part, prior to the payment dates applicable under the Plan and the Obligations are not convertible into another security of the Company. The Company reserves the right to amend or terminate the Plan at any time, except that no such amendment or termination shall adversely affect the rights of employees with respect to amounts deferred prior to such amendment or termination. In the event the Plan is terminated, the Company may decide, in its sole discretion, to either pay the Obligations as they come due in accordance with the employees' initial elections or pay the Obligations immediately upon the termination of the Plan. Except as stated above, the Obligations do not enjoy the benefit of any affirmative or negative pledges or covenants by the Company. Although the Company has established a grantor trust to fund the payment of the Obligations (the "Trust"), the Company retains discretion to determine the amount and timing of its contributions to the Trust and the assets of the Trust are subject to the claims of the Company's creditors. The trustee of the Trust is required to administer the Trust in accordance with its terms, but the trustee's obligations and authority are limited to the amounts which may be held in the Trust from time to time and the trustee is subject to the direction of the Company with respect to the payment Obligations. Accordingly, the trustee of the Trust does not have any independent obligation or authority to act on behalf of any employee and each employee will be responsible for acting on his or her own behalf with respect to, among other things, the giving of notices, responding to requests for consents, waivers or amendments, enforcing covenants and taking action upon default. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The legality of the Obligations offered pursuant to this registration statement has been passed upon for the Company by Solomon B. Watson IV, Senior Vice President and General Counsel of the Company, 229 West 43d Street, New York, New York 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 liabilities 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 3 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 of 1933, as amended (the "1933 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 1933 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 Commission 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 1933 Act and will be governed by the final adjudication of such issue. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See Exhibit Index on page 9. ITEM 9. UNDERTAKINGS. The Company 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 1933 Act, each post-effective amendment to 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; (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; and (d) That, for purposes of determining any liability under the 1933 Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act 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. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the 4 Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 1933 Act and will be governed by the final adjudication of such issue. 5 SIGNATURES Pursuant to the requirements of the 1933 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 the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, and the State of New York, on December 18, 1997. THE NEW YORK TIMES COMPANY BY: /S/ LAURA J. CORWIN ------------------------------- Laura J. Corwin VICE PRESIDENT AND SECRETARY POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Laura J. Corwin as his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all capabilities, to sign any and all amendments to this registration statement, including any and all post-effective amendments, and any and all documents in connection therewith, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Commission granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes and as he or she might or could do in person, and hereby ratifies, approves and confirms all that his or her said attorney-in-fact and agent, or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the 1933 Act, the registration statement has been signed below by the following persons in the capacities and on the dates indicated: SIGNATURE TITLE DATE - ------------------------------ ------------------------- ------------------- /s/ ARTHUR OCHS SULZBERGER Chairman Emeritus, December 18, 1997 - ------------------------------ Director Arthur Ochs Sulzberger /s/ ARTHUR O. SULZBERGER, JR. Chairman, Director December 18, 1997 - ------------------------------ Arthur O. Sulzberger, Jr. /s/ JOHN F. AKERS Director December 18, 1997 - ------------------------------ John F. Akers 6 /s/ DIANE P. BAKER Senior Vice President, December 18, 1997 - ------------------------------ Chief Financial Officer Diane P. Baker (Principal Financial Officer) /s/ RICHARD L. GELB Director December 18, 1997 - ------------------------------ Richard L. Gelb /s/ MICHAEL GOLDEN Vice Chairman, December 18, 1997 - ------------------------------ Senior Vice President, Michael Golden Director /s/ A. LEON HIGGINBOTHAM, JR. Director December 18, 1997 - ------------------------------ A. Leon Higginbotham, Jr. /s/ RUTH S. HOLMBERG Director December 18, 1997 - ------------------------------ Ruth S. Holmberg /s/ ROBERT A. LAWRENCE Director December 18, 1997 - ------------------------------ Robert A. Lawrence /s/ RUSSELL T. LEWIS President, (Chief December 18, 1997 - ------------------------------ Executive Officer), Russell T. Lewis Director /s/ GEORGE B. MUNROE Director December 18, 1997 - ------------------------------ George B. Munroe /s/ CHARLES H. PRICE II Director December 18, 1997 - ------------------------------ Charles H. Price II /s/ GEORGE L. SHINN Director December 18, 1997 - ------------------------------ George L. Shinn /s/ DONALD M. STEWART Director December 18, 1997 - ------------------------------ Donald M. Stewart 7 /s/ STUART STOLLER Vice President, December 18, 1997 - ------------------------------ Corporate Controller Stuart Stoller (Principal Accounting Officer) /s/ JUDITH P. SULZBERGER Director December 18, 1997 - ------------------------------ Judith P. Sulzberger /s/ WILLIAM O. TAYLOR Director December 18, 1997 - ------------------------------ William O. Taylor 8 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 4 -- The New York Times Designated Employees Deferred Earnings Plan. 5 -- Opinion of the Company's Senior Vice President and General Counsel as to the legality of the Obligations offered under the Plan. 23(a) -- Independent Auditors' Consent. 23(b) -- Consent of Counsel (contained in the Opinion of the Company's General Counsel, Exhibit 5 hereto.) 24 -- Power of Attorney (included on the signature page). 9 EX-4 2 EXHIBIT 4 EXHIBIT 4 THE NEW YORK TIMES DESIGNATED EMPLOYEES DEFERRED EARNINGS PLAN ARTICLE I INTRODUCTION 1.1 PURPOSE OF PLAN. The Employer has adopted the Plan set forth herein to provide a means by which a select group of designated employees may elect to defer receipt of designated percentages of amounts of their Compensation. 1.2 STATUS OF PLAN. The Plan is intended to be "a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees" within the meaning of Section 201(2) and 301(a)(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), and shall be interpreted and administered to the extent possible in a manner consistent with that intent. ARTICLE II DEFINITIONS Wherever used herein, the following terms have the meanings set forth below, unless a different meaning is clearly required by the context: 2.1 ACCOUNT means, for each Participant, the account established for his or her benefit under Section 5.1. 2.2 CHANGE OF CONTROL means (a) any individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof (a "Person") (or two or more Persons acting in concert), other than any descendent (or any spouse thereof) of Iphigene Ochs Sulzberger (a "Family Member") or a beneficiary or trustee (as the same may change from time to time) of a trust over 50% of the individual beneficiaries of which are Family Members, acquiring the power to elect a majority of the directors of The New York Times Company (the "Company") in a transaction or series of transactions not approved in advance by a vote of at least three quarters of the Continuing Directors (as defined below); or (b) individuals who, as of the date hereof, constitute the Board of Directors of the Company (as of the date hereof the "Continuing Directors") ceasing for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose elections, or a 1 for election by the Company's shareholders, was approved in advance by a vote of at least three quarters of the Continuing Directors (other than a nomination of an individual whose initial assumption of office is in connection with an actual or threatened solicitation with respect to the election or removal of the directors of the Company, as such terms are used in Rule 14a-11 of the Regulation 14A promulgated under the Exchange Act) shall be, for purposes of this Agreement, considered as though such person were a Continuing Director; or (c) approval by the stockholders of the Company of a reorganization, merger, consolidation, liquidation or dissolution of the Company or of the sale (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company other than a reorganization, merger, consolidation, liquidation, dissolution or sale approved in advance by three quarters of the Continuing Directors. 2.3 CODE means the Internal Revenue Code of 1986, as amended from time to time. Reference to any section or subsection of the Code includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection. 2.4 COMPENSATION means the advertising and circulation sales incentive plan, the Management By Objective annual bonus and up to 35% of a Participant's base salary. For purposes of the Plan, Compensation shall be determined before giving effect to Elective Deferrals and other salary reduction amounts which are not included in the Participant's gross income under Code Sections 125, 401(k), 402(h) or 403 (b). 2.5 EFFECTIVE DATE means January 1, 1998. 2.6 ELECTION FORM means the participation election form as approved and prescribed by the Plan Administrator. 2.7 ELECTIVE DEFERRAL means the portion of Compensation which is deferred by a Participant under Article IV. 2.8 ELIGIBLE EMPLOYEE means, on the Effective Date or on any date thereafter, each employee of The New York Times, a division of the Employer, who is eligible to receive, based on specific performance measures, stock options under The New York Times Company 1991 Executive Stock Incentive Plan, and who is not eligible to participate in any other non-qualified deferred compensation plan sponsored by the Employer and/or its subsidiaries and affiliates. 2.9 EMPLOYER means The New York Times Company, any successor to all or a major portion of the Employer's assets or business which assumes the obligations of the Employer. 2 2.10 ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to any section or subsection of ERISA includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection. 2.11 ERISA BOARD COMMITTEE means a committee of the Board of Directors of The New York Times Company. 2.12 ERISA MANAGEMENT COMMITTEE means the persons appointed by the ERISA Board Committee. 2.13 INSOLVENCY means either (i) the Employer is unable to pay its debts as they become due, or (ii) the Employer is subject to a pending proceeding as a debtor under the United States Bankruptcy Code. 2.14 PARTICIPANT means any Eligible Employee who participates in the Plan in accordance with Article 3. 2.15 PLAN means The New York Times Designated Employees Deferred Earnings Plan and all amendments thereto. 2.16 PLAN ADMINISTRATOR means the person, persons or entity designated by the ERISA Management Committee under Article VIII for the day-to-day administration of the Plan and to serve as the agent for the Company with respect to the Trust as contemplated by the agreement establishing the Trust. If no such person or entity is so serving at any time, the Employer shall be the Plan Administrator. 2.17 PLAN YEAR means the 12-month period beginning on January 1 and ending on December 31 of each year. 2.18 RECORDKEEPER means the person(s) or entity appointed or hired by the ERISA Management Committee under Section 8.1. 2.19 RETIREE means a Participant who retires under The New York Times Companies Pension Plan. 2.20 TOTAL AND PERMANENT DISABILITY means the inability of a Participant to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, and the permanence and degree of which shall be supported by medical evidence satisfactory to the Plan Administrator. 2.21 TRUST means the trust established by the Employer that identifies the Plan as a plan with respect to which assets are to be held by the Trustee. The assets of the Trust shall be subject to claims of general creditors of The New York Times Company in the event of its bankruptcy or Insolvency. 3 2.22 TRUSTEE means the trustee or trustees under the Trust. 2.23 VALUATION OPTION means the performance of the investment funds listed in Appendix A of the Plan ARTICLE III PARTICIPATION 3.1 COMMENCEMENT OF PARTICIPATION. Any Eligible Employee who elects to defer part of his or her Compensation in accordance with Article IV shall become a Participant in the Plan as of the date such deferrals commence in accordance with such Article. 3.2 CONTINUED PARTICIPATION. A Participant in the Plan shall continue to be a Participant so long as any amount remains credited to his or her Account. ARTICLE IV ELECTIVE DEFERRALS 4.1 ELECTIVE DEFERRALS. Any Eligible Employee may elect to defer the receipt of a percentage or dollar amount of one or more payments of Compensation for a period of at least three Plan Years and no more than five Plan Years and on such terms as the ERISA Management Committee may permit, commencing with Compensation paid in the next succeeding Plan Year by completing an Election Form during the annual enrollment period for the Plan as determined by the Plan Administrator. No Participant may defer more than 100% of his or her Compensation for a Plan Year. A Participant's Compensation shall be reduced in accordance with the Participant's election hereunder and amounts deferred hereunder shall be paid by the Employer to the Trust as soon as administratively feasible and credited to the Participant's Account as of the date the amounts are received by the Trustee. 4.2 INVESTMENT ELECTION. An individual who is an Eligible Employee and elects to defer Compensation under this Plan shall elect to have his or her Account valued based on the Valuation Option represented by the performance of one or more of the investment funds listed in Appendix A of the Plan. Such Appendix A may be amended at any time by an action of the ERISA Management Committee. If a Participant does not elect a Valuation Option for any portion of his or her Account, that portion shall be valued based on the Valuation Option represented by the performance of Fund A. 4 ARTICLE V ACCOUNTS 5.1 ACCOUNTS. The Plan Administrator and/or the Recordkeeper shall establish an Account for each Participant reflecting his or her Elective Deferrals made for the Participant's benefit together with any adjustments for income, gain or loss and any payments from the Account. The Trustee will maintain and invest separate asset accounts corresponding to each Participant's Account. The Plan Administrator and/or the Recordkeeper shall establish sub-accounts for each Participant that has more than one election in effect under Section 7.1 and such other sub-accounts as are necessary for the proper administration of the Plan. As of the last business day of each calendar quarter, the Plan Administrator shall provide, or cause to be provided, the Participant with a statement of his or her Account reflecting the income, gains and losses (realized and unrealized), amounts so deferrals, fund transfers and distribution of such Account since the prior statement. 5.1 INVESTMENTS. The assets of the Trust shall be invested in such investments as the Trustee shall determine. The Trustee may (but is not required to) consider the Employer's or a Participant's investment preferences when investing the assets attributable to a Participant's account. ARTICLE VI VESTING 6.1 VESTING. A participant shall be immediately vested in, i.e., shall have a nonforfeitable right to, all Elective Deferrals, and all income, gain and loss attributable thereto, credited to his or her Account. ARTICLE VII PAYMENTS 7.1 ELECTION AS TO FORM OF PAYMENT. Payments to participants shall be made in annual installments over a period of 10 years commencing between January 1 and March 15 immediately following the end of the deferral period. The amount of each installment payment will equal the balance of a Participant's account immediately prior to the installment payment divided by the number of installment payments remaining to be made. The above notwithstanding, a Participant may elect in writing to receive his or her Elective Deferrals in one lump sum or in annual installments over a period of five years, so long as such election is made at least 13 months prior to the beginning of any previously scheduled payments. 5 7.2 EXTENSION OF DEFERRAL PERIODS. A Participant who is an active employee or a Retiree, or who is on Total and Permanent Disability may make an election in writing to extend any deferral period for at least five and no more than ten additional Plan Years so long as such Participant makes an election therefor at least 13 months prior to the expiration of the deferral period. Participants whose employment with the Employer has been terminated, may not extend his/her deferral periods and shall begin to receive distributions in accordance with Section 7.4. 7.3 CHANGE OF CONTROL. As soon as possible following a Change of Control of the Employer, each Participant shall be paid his or her entire Account balance in a single lump sum. 7.4 TERMINATION OF EMPLOYMENT OR DISABILITY. Upon termination of a Participant's employment for any reason other than death, the Participant's Account shall be paid to the Participant in the form of payment in effect at the time the disability or termination of employment occurs and after the expiration of each deferral period. 7.5 DEATH. If a Participant dies prior to the complete distribution of his or her Account, the balance of the Account shall be paid as soon as practicable to the Participant's designated beneficiary or beneficiaries, as most recently designated by the Participant prior to the time of his or her death, provided, however, that the ERISA Management Committee and/or the Plan Administrator may, in their sole discretion, pay out the balance of such Participant's Account in one lump sum. Any designation of beneficiary and form of payment to such beneficiary shall be made by the Participant on a Beneficiary Election Form filed with the Plan Administrator and may be changed by the Participant at any time by filing another Beneficiary Election Form containing the revised instructions. If no beneficiary is designated or no designated beneficiary survives the Participant, payment shall be made to the Participant's surviving spouse or, if none, to his or her issue per stirpes, in a single payment. If no spouse or issue survives the Participant, payment shall be made in a single lump sum to the Participant's estate. The most recent Beneficiary Election Form executed by the Participant prior to his death shall apply to all Election Deferrals credited to the Participant's Account at the date of his death. 7.6 TAXES. All federal, state or local taxes that the Plan Administrator determines are required to be withheld from any payments made pursuant to this Article 7 shall be withheld prior to any distribution under this Plan. ARTICLE VIII PLAN ADMINISTRATION 8.1 PLAN ADMINISTRATION AND INTERPRETATION. The ERISA Management Committee shall oversee the administration of the Plan, shall serve as the agent of the 6 Company with respect to the trust, and shall appoint a Plan Administrator and/or Recordkeeper for the day-to-day operations of the Plan. Such Plan Administrator and/or Recordkeeper shall be listed in Appendix B to this Plan. The Committee shall have complete control and authority to determine the rights and benefits under all claims, demands and actions arising out of the provisions of the Plan of any Participant, beneficiary, deceased Participant, or other person having or claiming to have any interest under the Plan. The Committee shall have complete discretion to interpret the Plan and to decide all matters under the Plan. Such interpretation and decision shall be final, conclusive and binding on all Participants and any person claiming under or through any Participant. Any individual(s) serving on the Committee who is a Participant will not vote or act on any matter relating solely to himself or herself. 8.2 COMMITTEE POWERS, DUTIES, PROCEDURES, ETC. The Committee shall have such procedures, may appoint such agents, may delegate such powers and duties, may receive such reimbursements and compensation, and shall follow such claims and appear procedures with respect to the Plan as it may establish. 8.3 PLAN ADMINISTRATOR'S DUTIES. The Plan Administrator shall be responsible for the day-to-day operations of the Plan. His or her duties shall include, but not be limited to, the following: (a) Keeping track of employees eligible to participate in the Plan and the date each employee becomes eligible to participate. (b) Maintaining, or causing to be maintained by the Recordkeeper, Participants' Accounts, including all sub-accounts required for different contribution types and payment elections made by Participants under the Plan and any other relevant information. (c) Transmitting, or causing to be transmitted by the Recordkeeper, various communications to the Participant and obtaining information from Participants such as changes in investment elections. (d) Filing reports required by various governmental agencies. When making a determination or calculation, the Plan Administrator and the Recordkeeper shall be entitled to rely on information furnished by a Participant, a beneficiary, the Employer or the Trustee. The Plan Administrator shall be have the responsibility for complying with any reporting and disclosure requirements of ERISA. 8.4 INFORMATION. To enable the Plan Administrator and/or Recordkeeper to perform their functions, the Employer shall supply full and timely information to the Plan Administrator and/or Recordkeeper on all matters relating to the compensation of Participants, their employment, retirement, death, termination of employment, and such other pertinent facts as the Plan Administrator and/or Recordkeeper may require. 7 8.5 INDEMNIFICATION OF COMMITTEE AND PLAN ADMINISTRATOR. The Employer agrees to indemnify and to defend to the fullest extent permitted by law any officer(s) or employee(s) who serve on the Committee or as Plan Administrator (including any such individual who formerly served on the Committee or as Plan Administrator) against all liabilities, damages, costs and expenses (including attorney's fees and amounts paid in settlement of any claims approved by the Employer) occasioned by any act or omission to act in connection with the Plan, is such act or omission is in good faith. ARTICLE IX AMENDMENT AND TERMINATION 9.1 AMENDMENTS. The Employer shall have the right to amend the Plan from time to time, subject to Section 9.3, by an action of the ERISA Board Committee. However, the preceding notwithstanding, the ERISA Management Committee shall have the power to amend at any time the payment provisions under Article VII of the Plan. 9.2 TERMINATION OF THE PLAN. This plan is strictly a voluntary undertaking on the part of the Employer and shall not be deemed to constitute a contract between the Employer and any Eligible Employee (or any other employee) or a consideration for, or an inducement or condition of employment for, the performance of the services by any Eligible Employee (or other employee). The Employer reserves the right to terminate the Plan at any time, subject to Section 9.3, by an action of the ERISA Board Committee. Upon termination, the Employer may (a) elect to continue to maintain the Trust to pay benefits hereunder as they become due as if the Plan had not terminated or (b) direct the Trustee to pay promptly to Participants (or their beneficiaries) the vested balance of their Accounts. 9.3 EXISTING RIGHTS. No amendment, or termination of the Plan shall adversely affect the rights of any Participant with respect to amounts that have been credited to his or her Account prior to the date of such amendment or termination. ARTICLE X MISCELLANEOUS 10.1 NO FUNDING. The Plan constitutes a mere promise by the Employer to make payments in accordance with the terms of the Plan and Participants and beneficiaries shall have the status of general unsecured creditors of the Employer. Nothing in the Plan will be construed to give any employee or any other person rights to any specific assets of the Employer or of any other person. In all events, it is the intent of the Employer that the Plan be treated as unfunded for tax purposes and for purposes of Title I of ERISA. 8 10.2 NON-ASSIGNABILITY. None of the benefits, payments, proceeds or claims of any Participant or beneficiary shall be subject to any claim of any creditor of any Participant or beneficiary and, in particular, the same shall not be subject to attachment or garnishment or other legal process by any creditor of such Participant or beneficiary, nor shall any Participant or beneficiary have any right to alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments or proceeds which he or she may expect to receive, contingently or otherwise, under the Plan. 10.3 LIMITATION OF PARTICIPANTS' RIGHTS. Nothing contained in the Plan shall confer upon any person a right to be employed or to continue in the employ of the Employer, or interfere in any way with the right of the Employer to terminate the employment of a Participant in the Plan at any time, with or without cause. 10.4 PARTICIPANTS BOUND. Any action with respect to the Plan taken by the Plan Administrator or the Employer or the Trustee or any action authorized by or taken at the direction of the Plan Administrator, the Employer or the Trustee shall be conclusive upon all Participants and beneficiaries entitled to benefits under the Plan. 10.5 RECEIPT AND RELEASE. Any payment to any Participant or beneficiary in accordance with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims against the Employer, the Plan Administrator and the Trustee under the Plan, and the Plan Administrator may require such Participant or beneficiary, as a condition precedent to such payment, to execute a receipt and release to such effect. If any Participant or beneficiary is determined by the Plan Administrator to be incompetent by reason of physical or mental disability (including minority) to give a valid receipt and release, the Plan Administrator may cause the payment or payments becoming due to such person to be made to another person for his or her benefit without responsibility on the part of the Plan Administrator, the Employer or the Trustee to follow the application of such funds. 10.6 GOVERNING LAW. The Plan shall be construed, administered, and governed in all respects under and by the laws of the State of New York (regardless of any conflict of law provision). If any provision shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall continue to be fully effective. 10.7 HEADINGS AND SUBHEADINGS. Headings and subheadings in the Plan are inserted for convenience only and are not to be considered in the construction of the provisions thereof. 9 APPENDIX A VALUATION OPTIONS For 1998 and until changed by the ERISA Management Committee, each Participant may elect to his or her account valued based on the performance of one or more of the following funds: 1. Fund A: AIM Limited Maturity Treasury 2. Fund B: AIM Aggressive Growth 3. Fund C: AIM Value 4. Fund F: Templeton Foreign 5. Fund E: Merrill Lynch Capital 6. Fund D: Merrill Lynch Federal Securities 7. Fund G. Merrill Lynch Global Allocation 10 APPENDIX B PLAN ADMINISTRATOR AND RECORDKEEPER 1.1 PLAN ADMINISTRATOR For the Plan Year 1998 and until removed by the ERISA Management Committee the Plan Administrator shall be Diane Zubalsky. 2.2 RECORDKEEPER For the Plan Year 1998 and until removed by the ERISA Management Committee the Recordkeeper shall be Merrill Lynch. 11 EX-5 3 EXHIBIT 5 EXHIBIT 5 December 19, 1997 The New York Times Company 229 West 43d Street New York, New York 10036 Dear Ladies and Gentlemen: I am the Senior Vice President and General Counsel 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 December 29, 1997, under the Securities Act of 1933, as amended, of a Registration Statement on Form S-8 (the "Registration Statement") for the purpose of registering $17,300,000 of Deferred Compensation Obligations which represent unsecured obligations of the Company to pay deferred compensation in accordance with the terms of The New York Times Designated Employees Deferred Earnings Plan (the "Plan"). In such capacity, I have examined the 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 advised you that, in my opinion, when issued in accordance with the provisions of the Plan, the Deferred Compensation Obligations will be valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency and other laws of general applicability related to or affecting enforcement of creditors' rights or by general equity principles. Further, I hereby consent to the use of my name under the caption "Interests of Named Experts and Counsel" in the Registration Statement and to the filing of a copy of this opinion as an exhibit thereto. Very truly yours, /s/ Solomon B. Watson IV ------------------------- Solomon B. Watson IV EX-23.(A) 4 EXHIBIT 23(A) EXHIBIT 23(a) INDEPENDENT AUDITORS' CONSENT THE NEW YORK TIMES COMPANY: 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 February 3, 1997, appearing in and incorporated by reference in the Annual Report on Form 10-K of The New York Times Company for the year ended December 29, 1996. /s/ DELOITTE & TOUCHE LLP - ------------------------- DELOITTE & TOUCHE LLP New York, New York December 29, 1997 -----END PRIVACY-ENHANCED MESSAGE-----