UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
THE NEW YORK TIMES COMPANY
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(Name of Issuer)
Class A Common Stock of $.10 par value
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(Title of Class of Securities)
650111 10 7
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(CUSIP Number)
Theodore R. Wagner
Carter, Ledyard & Milburn
2 Wall Street, New York, New York 10005
(212) 732-3200
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 11, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 650111 10 7
1 NAME OF REPORTING PERSON: JUDITH P. SULZBERGER
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): Not Applicable
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS: NOT APPLICABLE
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e): [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION: United States
NUMBER OF 7 SOLE VOTING POWER: 3,944,021 shares*
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 1,125,908 shares**
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 3,944,021 shares*
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE POWER: 1,125,908 shares**
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
5,069,929 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 5.30%
14 TYPE OF REPORTING PERSON: IN
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* Includes 6,000 shares issuable upon exercise of stock options and 1,185
shares issuable upon conversion of 1,185 shares of Class B Common Stock.
** Includes 369,405 shares issuable upon conversion of 369,405 shares of Class
B Common Stock.
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This Amendment No. 2 to the Statement on Schedule 13D of Judith P.
Sulzberger ("Dr. Sulzberger") is being filed to report (i) the termination of
the four trusts severally created on August 5, 1986 (the "1986 Trusts"), by each
of the four children of Iphigene Ochs Sulzberger -- Dr. Sulzberger, Ruth S.
Holmberg ("Mrs. Holmberg"), Arthur Ochs Sulzberger ("Mr. Sulzberger") and Marian
S. Heiskell ("Mrs. Heiskell" and, together with Dr. Sulzberger, Mrs. Holmberg
and Mr. Sulzberger, the "children"), (ii) the transfer on July 11, 1997, from
the 1986 Trusts to the children, in substantially equal one-quarter shares, of
an aggregate of 3,324,645 shares of the Company's Class A Common Stock of 10
cents par value (the "Class A Stock") and 369,405 shares of the Company's Class
B Common Stock of 10 cents par value (the "Class B Stock"), and (iii) the
creation by the children of a new trust (the "1997 Trust") and the transfer on
July 11, 1997, by the children to the 1997 Trust of the 369,405 shares of Class
B Stock previously held by the 1986 Trusts, together with a total of 700,000
shares of Class A Stock (175,000 shares by each of the children).
Item 4. Purpose of Transaction.
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ITEM 4 OF THIS STATEMENT IS HEREBY AMENDED TO ADD THE FOLLOWING:
The termination of the four 1986 Trusts and the creation of the 1997 Trust
resulted from a determination by the five trustees of the 1986 Trusts (the
children and Lynn G. Dolnick ("Ms. Dolnick")) that the primary purpose of the
1986 Trusts -- to maintain the editorial independence of The New York Times and
perpetuate it "as an independent newspaper, entirely fearless, free of ulterior
influence and unselfishly devoted to the public welfare," in accordance with the
wishes of Adolph S. Ochs as expressed in his will -- can best be effectuated by
maintaining control of The
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New York Times in the hands of a relatively small number of the descendants of
Adolph S. Ochs acting as trustees of a single trust for the benefit of all such
descendants.
Except as set forth in Item 6 of this Amendment No. 2, Dr. Sulzberger
currently has no plan or proposal, as a shareholder of the Company, which
relates to or would result in:
(a) the acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company, except that Dr.
Sulzberger may make gifts of Class A Stock to or for the benefit of members
of her immediate family and charitable institutions;
(b) an extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Company or any of its
subsidiaries;
(c) a sale or transfer of a material amount of the assets of the
Company or any of its subsidiaries;
(d) any change in the present board of directors or management of the
Company, including any plan or proposal to change the number or term of
directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any other material change in the Company's business or corporate
structure;
(g) changes in the Company's charter or by-laws or other actions which
may impede the acquisition of control of the Company by any person;
(h) a class of securities of the Company being delisted from a
national securities exchange or ceasing to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities
association;
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(i) a class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934 (the "Exchange Act"); or
(j) any action similar to any of those enumerated above.
However, such plans or proposals may have been considered, and may from time to
time hereafter be considered, by Dr. Sulzberger in her capacity as a director of
the Company.
Item 5. Interest in Securities of the Issuer.
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ITEM 5 OF THIS STATEMENT IS HEREBY AMENDED AND RESTATED TO READ IN ITS
ENTIRETY AS FOLLOWS:
(a) and (b) Dr. Sulzberger is the direct beneficial owner of, and has sole
voting and dispositive power with respect to, 3,944,021 shares of Class A Stock,
including (i) 1,185 shares issuable upon the conversion of 1,185 shares of Class
B Stock held by her, and (ii) 6,000 shares issuable upon the exercise of options
granted under the Company's stock option plans, representing in the aggregate
approximately 4.12% of the outstanding shares of Class A Stock.1
Dr. Sulzberger is also an officer and director of The Sulzberger
Foundation, Inc. (the "Foundation"), which holds 56,503 shares of Class A Stock,
or approximately 0.06% of the outstanding shares of Class A Stock, as to which
shares Dr. Sulzberger shares voting and dispositive
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1Except as described in footnote 2 below, all percentages of outstanding
Class A Stock herein are based on the 95,268,649 shares of Class A Stock shown
as outstanding as of May 4, 1997, in the Company's Quarterly Report on Form 10-Q
for the quarter ended March 30, 1997, plus the 376,590 unissued shares which are
issuable upon the exercise of options or the conversion of Class B Stock by the
1997 Trust or Dr. Sulzberger individually, as described in this Item 5.
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power with Mr. Sulzberger, Mrs. Heiskell and Mrs. Holmberg, all of whom are
officers and directors of the Foundation.
Dr. Sulzberger is also a co-trustee of the 1997 Trust, which holds
1,069,405 shares of Class A Stock (including 369,405 shares issuable upon the
conversion of 369,405 shares of Class B Stock also owned by the 1997 Trust),
representing approximately 1.12% of the outstanding shares of Class A Stock, as
to which shares Dr. Sulzberger shares voting and dispositive power with Mr.
Sulzberger, Mrs. Heiskell, Mrs. Holmberg and Ms. Dolnick, as co-trustee with
them of the 1997 Trust.
In summary of the foregoing, Dr. Sulzberger is the direct or indirect
beneficial owner in the aggregate of 5,069,929 shares of Class A Stock,
representing approximately 5.30% of the outstanding shares of Class A Stock.
By virtue of their being co-trustees of the 1997 Trust, Mrs. Holmberg, Mr.
Sulzberger, Mrs. Heiskell, Dr. Sulzberger and Ms. Dolnick could be deemed to
comprise a "group" within the meaning of Section 13(d)(3) of the Exchange Act
and Rule 13d-5(b) thereunder. Apart from their shared beneficial ownership with
Dr. Sulzberger of the 1,069,405 shares of Class A Stock held by the 1997 Trust
as described above:
1. Mr. Sulzberger (a) is the direct beneficial owner of, and has sole
voting and dispositive power with respect to, 4,100,588 shares of Class A
Stock, including 1,785 shares issuable upon the conversion of 1,785 shares
of Class B Stock held by him and 309,400 shares issuable upon the exercise
of options granted under the Company's stock option plans, (b) has sole
voting and dispositive power with respect to 750,000 shares of Class A
Stock held by a trust of which he is the sole trustee, (c) shares voting
and dispositive power with Mrs. Heiskell with respect to 14,403 shares of
Class A Stock held by a trust of which
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they are co-trustees, and (d) shares voting and dispositive power with Mrs.
Heiskell, Mrs. Holmberg and Dr. Sulzberger with respect to the 56,503
shares of Class A Stock held by the Foundation;
2. Mrs. Heiskell (a) is the direct beneficial owner of, and has sole
voting and dispositive power with respect to, 3,234,231 shares of Class A
Stock, including 1,485 shares issuable upon the conversion of 1,485 shares
of Class B Stock held by her and 6,000 shares issuable upon the exercise of
options granted under the Company's stock option plans, (b) shares voting
and dispositive power with Mr. Sulzberger with respect to 14,403 shares of
Class A Stock held by a trust of which they are co-trustees, and (c) shares
voting and dispositive power with Mr. Sulzberger, Mrs. Holmberg and Dr.
Sulzberger with respect to the 56,503 shares of Class A Stock held by the
Foundation;
3. Mrs. Holmberg (a) is the direct beneficial owner of, and has sole
voting and dispositive power with respect to, 3,950,881 shares of Class A
Stock, including 1,185 shares issuable upon the conversion of 1,185 shares
of Class B Stock held by her and 6,000 shares of Class A Stock issuable
upon the exercise of options granted under the Company's stock option
plans, (b) shares voting and dispositive power with her husband, A. William
Holmberg, with respect to 5,040 shares of Class A Stock held by three
trusts of which they are co-trustees, and (c) shares voting and dispositive
power with Mr. Sulzberger, Mrs. Heiskell and Dr. Sulzberger with respect to
the 56,503 shares of Class A Stock held by the Foundation; and
4. Ms. Dolnick (a) has sole voting and dispositive power with respect
to 929 shares of Class A Stock held by the Golden Family Charitable Fund,
Inc., (b) has sole voting
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and dispositive power with respect to an aggregate of 11,646 shares of
Class A Stock held by two trusts of which Ms. Dolnick is the sole trustee
(Ms. Dolnick disclaims beneficial ownership of these shares), and (c)
shares voting and dispositive power with her husband, Edward Dolnick, as
joint holder with him of 10,806 shares of Class A Stock, including 559
shares issuable upon the conversion of 559 shares of Class B Stock jointly
held by them.
In summary of the foregoing, the "group" comprised of Mrs. Holmberg, Mr.
Sulzberger, Mrs. Heiskell, Dr. Sulzberger and Ms. Dolnick is the beneficial
owner in the aggregate of 17,148,453 shares of Class A Stock, representing
approximately 17.87%2 of the outstanding shares of Class A Stock, which shares
include 375,604 shares issuable upon the conversion of an aggregate of 375,604
shares of Class B Stock held by the group members individually and by the 1997
Trust, and 327,400 shares issuable upon the exercise of options granted under
the Company's stock option plans.
The business address of Mr. Sulzberger is 229 West 43rd Street, New York,
New York 10036. The business address of Mrs. Heiskell is 229 West 43rd Street,
New York, New York 10036. The business address of Mrs. Holmberg is The
Chattanooga Times, 100 East Tenth Street, Chattanooga, Tennessee 37401. The
business address of Ms. Dolnick is 3001 Connecticut Avenue, Washington, D.C.
20008.
Mrs. Heiskell is principally employed as a director of various charitable
organizations. Mrs. Holmberg is principally employed as Chairman of Times
Publishing Company, the publisher of The
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2This percentage is based on the 95,268,649 shares of Class A Stock shown
as outstanding as of May 4, 1997, in the Company's Quarterly Report on Form 10-Q
for the quarter ended March 30, 1997, plus the 703,004 unissued shares which are
issuable upon the exercise of options or the conversion of Class B Stock by the
1997 Trust or any member of the "group," as described above in this Item 5.
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Chattanooga Times newspaper. Ms. Dolnick is principally employed as Chief of the
Division of Exhibition Interpretation at the National Zoological Park of the
Smithsonian Institution, the address of which is 3001 Connecticut Avenue,
Washington, D.C. 20008. Mr. Sulzberger's present principal occupation is
Chairman, Chief Executive Officer and a director of the Company. The principal
businesses of the Company comprise diversified activities in the communications
field, including: the publication of newspapers and magazines (such as The New
York Times and The Boston Globe); newspaper distribution in the New York City
and Boston metropolitan areas; news, photo and graphics services and news and
features syndication; distribution of TimesFax (a six-to-eight page synopsis of
The New York Times delivered to customers' facsimile machines or personal
computers); production of The New York Times Index; the licensing of electronic
data bases and microform, CD-ROM products and the trademarks and copyrights of
The New York Times; and television and radio broadcasting.
None of Mr. Sulzberger, Mrs. Heiskell, Mrs. Holmberg and Ms. Dolnick has,
during the last five years, (i) been convicted in a criminal proceeding or (ii)
been a party to a civil proceeding of a judicial or administrative body, as a
result of which he or she was or is subject to (A) a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws, or (B) a judgment, decree or final
order finding any violation with respect to such laws. Each of Mr. Sulzberger,
Mrs. Heiskell, Mrs. Holmberg and Ms. Dolnick is a citizen of the United States.
(c) During the past 60 days, no transactions in the Class A Stock have been
effected by Mr. Sulzberger, Mrs. Heiskell, Mrs. Holmberg, Dr. Sulzberger and Ms.
Dolnick, except that (i) on July 11, 1997, the 1986 Trust created by Mrs.
Holmberg distributed to her 831,161 shares of Class
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A Stock, the 1986 Trust created by Mr. Sulzberger distributed to him 831,162
shares of Class A Stock, the 1986 Trust created by Mrs. Heiskell distributed to
her 831,161 shares of Class A Stock, and the 1986 Trust created by Dr.
Sulzberger distributed to her 831,161 shares of Class A Stock, (ii) on July 11,
1997 Mrs. Holmberg, Mr. Sulzberger, Mrs. Heiskell and Dr. Sulzberger each
contributed 175,000 shares of Class A Stock to the 1997 Trust, (iii) on May 27,
1997, Ms. Dolnick transferred 170 shares of Class A Stock to the Foundation as a
charitable gift, (iv) on June 30, 1997, Mr. Sulzberger transferred 68,000 shares
of Class A Stock to a charitable remainder trust, (v) on June 30, 1997, Mrs.
Heiskell transferred 1,500 shares of Class A Stock to the National Park
Foundation as a charitable gift, and (vi) on July 10, 1997, Mrs. Heiskell
transferred 380 shares of Class A Stock to People for the American Way as a
charitable gift.
(d) See Item 6 of this Statement.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
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ITEM 6 OF THIS STATEMENT IS HEREBY AMENDED TO ADD THE FOLLOWING:
By unanimous vote of the trustees of the four 1986 Trusts, each of the 1986
Trusts was terminated on June 24, 1997, and on July 11, 1997, the assets of each
were transferred back to its grantor (one of the children). The children in turn
created a single new trust (the 1997 Trust) and transferred to it the 369,405
shares of Class B Stock previously held by the 1986 Trusts, together with a
total of 700,000 shares of Class A Stock.
The Company, the children, the children's children and the trustees of the
1997 Trust (collectively, "the Shareholders") are parties to a Shareholders
Agreement dated as of August 5,
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1986 (the "Shareholders Agreement"), which was previously filed as an exhibit to
this Statement and is hereby incorporated herein by reference. The Shareholders
Agreement restricts the transfer of the 369,405 shares of Class B Stock
currently held by the 1997 Trust by requiring that, prior to any sale or
transfer of such shares of Class B Stock by the 1997 Trust, it shall offer to
sell such shares first to the other Shareholders and then to the Company, at the
market price of the Class A Stock then prevailing (or if the Company is the
purchaser, at the option of the 1997 Trust, in exchange for Class A Stock on a
share-for-share basis). The Shareholders Agreement further requires that if any
shares of Class B Stock so offered are not purchased by the other Shareholders
or the Company, such shares must be converted into Class A Stock before being
transferred to any person other than a Shareholder or the Company. There are
certain exceptions for gifts and other transfers within the family of Adolph S.
Ochs, provided that the recipients become parties to the Shareholders Agreement.
In addition, the Shareholders Agreement provides that if the Company is a
party to a merger (other than a merger solely to change the Company's
jurisdiction of incorporation), a consolidation or a plan of liquidation in
which the Class B Stock is exchanged for cash, stock, securities or any other
property of the Company or of any other corporation or entity, the 1997 Trust
will convert the 369,405 shares of Class B Stock that are subject to the
Shareholders Agreement into shares of Class A Stock prior to the effective date
of such transaction so that a holder of such shares will receive the same cash,
stock or other consideration that a holder of Class A Stock would receive in
such a transaction. Except as described previously herein, each Shareholder
agreed not to convert any of the 369,405 shares of Class B Stock currently held
by the 1997 Trust into Class A Stock. The
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Shareholders Agreement will terminate upon the expiration of 21 years after the
death of the survivor of all descendants of Iphigene Ochs Sulzberger living on
August 5, 1986.
The Trust Indenture relating to the 1997 Trust (the "Indenture"), which is
similar in most material respects to the Trust Indentures relating to the 1986
Trusts, is being filed with this Amendment No. 2 as Exhibit E to this Statement
and is hereby incorporated herein by reference. The following summary of the
material terms of the Indenture is qualified in its entirety by such reference
to Exhibit E.
As with the 1986 Trusts, the trustees of the 1997 Trust, subject to the
limited exceptions described below, are directed to retain the Class B Stock
held in the 1997 Trust and not to sell, distribute or convert such shares into
Class A Stock, and to vote such Class B Stock against any merger, sale of assets
or other transaction pursuant to which control of The New York Times newspaper
passes from the trustees unless they unanimously determine that the primary
objective of the 1997 Trust, which is to maintain the editorial independence and
integrity of The New York Times and to continue it "as an independent newspaper,
entirely fearless, free of ulterior influence and unselfishly devoted to the
public welfare," in accordance with the wishes of Adolph S. Ochs as expressed in
his will, can be best achieved by the sale, distribution or conversion of such
stock or by the implementation of such transaction. If upon such determination
any Class B Stock is distributed to the beneficiaries of the 1997 Trust, it must
be distributed only to descendants of Iphigene Ochs Sulzberger, subject to the
provisions of the Shareholders Agreement. Similarly, any sale by the 1997 Trust
of Class B Stock upon such determination can be made only in compliance with the
Shareholders Agreement.
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The 1997 Trust also received 175,000 shares of Class A Stock from each of
the children, or 700,000 shares in the aggregate. The trustees may make
distributions of shares of Class A Stock and other trust principal, apart from
shares of Class B Stock, in such amount or amounts as the trustees may in their
absolute discretion determine to such of the beneficiaries of the 1997 Trust as
the trustees may in their absolute discretion select, provided that as long as
any of the children are alive, the trustees shall only distribute equal amounts
to each living child and to the descendants of a deceased child, such
descendants to take per stirpes. In exercising this discretionary power, the
trustees are required to bear in mind the need to retain in the 1997 Trust
assets other than shares of Class B Stock of sufficient value to pay any estate,
transfer, or generation-skipping taxes that may have to be paid out of the 1997
Trust.
The beneficiaries of the 1997 Trust are currently the children, their
descendants and the spouses of the children and their descendants. At any time
after the death of all the children, the trustees will be permitted, in their
absolute discretion, to remove a descendant of Iphigene Ochs Sulzberger and his
or her spouse as beneficiaries of the 1997 Trust at the request of such
descendant, by distributing to such descendant a specified fractional share of
the assets constituting trust principal, provided that the trustees shall not
distribute any shares of Class B Stock held by the 1997 Trust.
The trustees shall pay out of the net income of the 1997 Trust (almost all
of which will be derived from dividends paid on the Class A Stock and Class B
Stock held in trust) such amount or amounts as the trustees may in their
absolute discretion determine to such one or more of the beneficiaries of the
1997 Trust as the trustees may in their absolute discretion select, provided
that as long as any of the children are alive, the trustees shall distribute
one-quarter of the income either
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to that child or to such of the beneficiaries and in such amounts and
proportions as that child may from time to time in writing direct. Any net
income not so distributed shall be added to principal.
The trustees of the 1997 Trust are granted various powers and rights,
including among others: (i) to vote all the shares of Class A Stock and Class B
Stock held by the 1997 Trust; and (ii) to amend certain provisions of the
Indenture, but not the provisions relating to retaining the Class B Stock or the
manner in which the Class B Stock may be distributed, sold or converted. The
trustees act by the affirmative vote of four trustees, except that prior to any
sale or distribution of Class B Stock outside of the 1997 Trust, any conversion
of Class B Stock or a vote to approve a merger, sale of assets or other
transaction pursuant to which control of The New York Times newspaper passes
from the trustees, the trustees must unanimously determine that the primary
purpose of the 1997 Trust as described above is best achieved by such
distribution, sale, conversion or other transaction. Unanimity is also required
for the amendment of those provisions of the Indenture which may be amended.
None of the children may be removed as trustee of the 1997 Trust unless the
remaining four trustees determine that such child is physically or mentally
incapable of performing adequately as a trustee. A trustee who is not one of the
children may be removed without cause by the unanimous agreement of the other
four trustees. A trustee who is not one of the children (e.g., Ms. Dolnick)
shall serve for a term of five years. When a vacancy in the position of trustee
occurs, a new trustee shall be elected by majority vote of all beneficiaries of
the 1997 Trust who are over the age of 25 years and who are descendants of
Iphigene Ochs Sulzberger or are married to and living with such descendants, and
who wish to vote.
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The children are given certain limited powers to appoint trust principal
for the benefit of any one or more beneficiaries of the 1997 Trust. Any such
appointment must require that the Class B Stock be retained in further trust.
All such appointive trusts must continue for the same term as the 1997 Trust,
upon terms substantially identical to those of the Indenture and with the same
trustees, and must permit trust principal consisting of Class B Stock to vest
only in descendants of Iphigene Ochs Sulzberger and only at the end of the trust
term.
The 1997 Trust will continue in existence until the expiration of 21 years
after the death of the survivor of all descendants of Iphigene Ochs Sulzberger
living on June 24, 1997. Upon the termination of the 1997 Trust at the end of
the stated term thereof, the shares of Class B Stock will be distributed to the
descendants then living of Iphigene Ochs Sulzberger.
Item 7. Material to be Filed as Exhibits.
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Exhibit E: Indenture relating to the 1997 Trust dated June 24, 1997, made
by Marian S. Heiskell, Ruth S. Holmberg, Judith P. Sulzberger and
Arthur Ochs Sulzberger, as grantors and trustees, and by Lynn G.
Dolnick, as trustee.
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Signature
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
/s/Judith P. Sulzberger
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Judith P. Sulzberger
Dated: July 17, 1997
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EXHIBIT INDEX
Exhibit E: Indenture relating to the 1997 Trust dated June 24, 1997, made
by Marian S. Heiskell, Ruth S. Holmberg, Judith P. Sulzberger and
Arthur Ochs Sulzberger, as grantors and trustees, and by Lynn G.
Dolnick, as trustee.
EXHIBIT E
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THIS INDENTURE dated the 24th day of June, 1997, between MARIAN S.
HEISKELL, of New York, New York, RUTH S. HOLMBERG, of Chattanooga, Tennessee,
JUDITH P. SULZBERGER, of New York, New York and ARTHUR OCHS SULZBERGER, of New
York, New York (hereinafter called the "grantors") and MARIAN S. HEISKELL, RUTH
S. HOLMBERG, JUDITH P. SULZBERGER, ARTHUR OCHS SULZBERGER and LYNN G. DOLNICK,
of Chevy Chase, Maryland (hereinafter called the "trustees"),
W I T N E S S E T H :
WHEREAS the grantors desire to create a new trust to hold the shares of the
Class B Common Stock (hereinafter referred to as the "Stock") of The New York
Times Company (hereinafter referred to as the "Company") that they received upon
the termination of the trust created under Paragraph 51st of the will of Adolph
S. Ochs, deceased, for the primary purpose of maintaining the editorial
independence and integrity of The New York Times and perpetuating it "as an
independent newspaper, entirely fearless, free of ulterior influence and
unselfishly devoted to the public welfare", in accordance with the wishes of Mr.
Ochs as expressed in his will,
NOW, THEREFORE, each grantor hereby assigns to the trustees, as of the date
hereof, the property listed on Schedule "A" annexed hereto set forth opposite
his or her name, IN TRUST, as follows:
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ARTICLE ONE: The trustees shall invest and reinvest said property and any
other property received by them as trustees hereunder until the expiration of
twenty-one years after the death of the last survivor of all of the descendants
of Iphigene Ochs Sulzberger in being on the date of this indenture (said period
being hereinafter referred to as the "trust term").
During the trust term the trustees shall pay out of the net income such
amount or amounts (whether equal or unequal, and whether the whole or a lesser
amount) as the trustees may in their absolute discretion determine to such one
or more of the beneficiaries of the trust as the trustees may in their absolute
discretion select, provided that as long as any of the grantors is alive, the
trustees shall distribute one-quarter of the income either to that grantor or to
such of the beneficiaries and in such amounts and proportions as that grantor
may from time to time in writing direct. Any net income not so distributed shall
be added to principal.
The trustees may at any time or from time to time distribute from the
principal, other than the Stock, such amount or amounts (whether equal or
unequal, and whether the whole or a lesser amount) as the trustees may in their
absolute discretion determine to such of the beneficiaries as the trustees may
in their absolute discretion select, provided that as long as any of the
grantors is alive, the trustees shall only distribute equal amounts to each
living grantor and to the descendants of a deceased grantor, such descendants to
take per stirpes. In exercising this discretionary power, the trustees shall
bear in mind the need to retain in the trust assets other than the Stock of
sufficient value to pay any estate, transfer, or generation-skipping taxes that
may have to be paid out of the trust.
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The trustees, in their absolute discretion but subject to the provisions of
Article FIVE below, may distribute all but not less than all of the Stock to the
descendants then living of Iphigene Ochs Sulzberger who would receive the Stock,
and in the same proportions that such persons would receive the Stock if the
trust term had expired just prior to the time of distribution.
As used herein, the term "beneficiaries" means (i) the grantors, (ii) the
descendants of the grantors from time to time living of whatever degree and
whenever born, other than those descendants who are excluded from the term by
the provisions of Article TWO below, (iii) spouses of the grantors or of such
descendants, and (iv) organizations from time to time described in sections
170(c), 2055(a) and 2522(a) of the Internal Revenue Code of 1986, as amended, or
the corresponding provisions of any subsequent federal tax law, provided that no
such organization may have an interest in the trust that involves the
distribution to such organization of either the Stock or the income of the
Stock.
ARTICLE TWO: Upon the written request of a beneficiary who is a descendant
of Iphigene Ochs Sulzberger and who is over the age of twenty-five years, the
trustees in their absolute discretion may, but need not, at any time after the
death of the survivor of the grantors, distribute to that beneficiary that
fractional share of the entire trust, the numerator of which is one and the
denominator of which is the greater of (a) the total number of descendants of
Iphigene Ochs Sulzberger born prior to and living on the date of the request,
and (b) twenty. Neither any individual who requests and receives a distribution
under this Article, nor the spouse of such an individual, shall thereafter be a
beneficiary of the trust.
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The trustees may distribute to an individual requesting a distribution
under this Article any property held by them without making pro-rata
distributions of specific assets, and having regard only to the actual value of
the property as of the date of distribution, provided, however, that the
trustees shall not distribute any shares of the Stock.
In making any distribution of property hereunder, the Stock shall be valued
at the purchase price provided for in the Shareholders' Agreement dated August
5, 1986 among certain descendants of Iphigene Ochs Sulzberger and the Company
(the "Shareholders' Agreement"). Any division of property, allocation, or other
determination made in good faith by the trustees pursuant to the provisions of
this Article shall be binding upon all persons interested or claiming to be
interested in any trust created under this indenture.
It is the grantors' expectation that no distributions will be made under
this Article unless the trustees determine it to be in furtherance of the trust
purposes, and unless estate, transfer or generation-skipping transfer taxes that
may be imposed upon the trust have been adequately provided for.
ARTICLE THREE: Upon the expiration of the trust term all property then
belonging to the income and principal of the trust shall be divided into as many
equal shares as there are (a) then living descendants of Iphigene Ochs
Sulzberger in the generation nearest to the generation of the grantors which
contains at least one living descendant of Iphigene Ochs Sulzberger, and (b)
deceased members of that generation who left issue then living, if any. One such
share shall be distributed to each then living member of that generation. The
remaining shares shall then be
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combined and redivided and redistributed in the same manner among the surviving
issue, but treating those individuals who have already received distributions as
though they had previously died without issue.
ARTICLE FOUR: Notwithstanding the preceding Articles, each grantor shall
have the right, by an acknowledged instrument delivered to the trustees prior to
such grantor's death (but not by will), to appoint one quarter of all property
belonging to the income and principal of the trust to or for the benefit of any
one or more beneficiaries of the trust (including the grantor and the grantor's
estate), and in such estates, interests, trusts (including discretionary trusts)
and proportions, such appointment to take effect either before or after the
grantor's death, as the grantor shall provide in such instrument. Any such
instrument may be revoked or amended by a subsequent instrument, unless it is
specifically declared to be irrevocable. Each grantor may at any time by a like
instrument release in whole or in part all powers under this Article or Article
ONE.
Notwithstanding the foregoing provisions of this Article, any appointment
must require that the Stock be retained in trust on terms substantially
identical to those of this indenture; prohibiting the vesting in possession of
the Stock in anyone other than a descendant of Iphigene Ochs Sulzberger or at
any time prior to the expiration of the trust term hereunder, and providing that
the trustees of any other trust holding the Stock, and the method of selecting
successor trustees of such trust, shall be identical to those under this
indenture, and that all provisions of this indenture that refer to the Stock
shall continue to apply to the Stock. Moreover, no appointment creating any
interest in a charitable organization shall be effective if it is made without
the prior written consent of the trustees. Because the property other than the
Stock has been placed in the trust to provide for
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the payment of estate transfer or generation-skipping taxes, it is the grantors'
expectation that such property will not be appointed out of the trust unless and
except to the extent that such taxes have otherwise been adequately provided
for.
ARTICLE FIVE: During the trust term the trustees shall neither (1)
distribute any of the Stock, (2) sell any of the Stock, nor (3) convert any
shares of the Stock into shares of the Class A Common Stock of the Company, or
any other class of security not considered the Stock, and (4) they shall vote
against any merger, sale of assets, or other transaction pursuant to which
control of The New York Times newspaper passes from the trustees, unless all
five trustees in their absolute discretion unanimously determine that the
primary purpose of the trust as expressed above is best achieved by such a
distribution, sale, conversion or other transaction, and provided that any such
sale, distribution or conversion complies in all respects with the Shareholders'
Agreement.
ARTICLE SIX: The grantors declare that the trust is irrevocable, and that
this Article SIX, and the preceding provisions of this indenture may not be
altered, amended or modified. All five trustees, acting unanimously, may in
their absolute discretion amend the subsequent provisions of this indenture.
ARTICLE SEVEN: Whenever any property, whether principal or income
(including the Stock), vests pursuant to the provisions of this indenture in a
minor, the trustees shall have the right as donees of a power during minority,
upon the distribution of such property, to hold and manage the same until such
minor attains majority, and may exercise in respect of such property and the
income thereof all powers conferred by this indenture or by law on the trustees,
including the power
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to apply any such property or the income thereof to the use of such minor. Said
donees shall not be required to render periodic accounts to any court. For
purposes of this Article a minor shall be deemed to be a person who has not
attained the age of 21 years.
ARTICLE EIGHT: Any action of the trustees relating to or affecting the
Stock shall require the affirmative vote of four trustees, except for a sale,
distribution, conversion, or other transaction described in Article FIVE, which,
pursuant to said Article, shall require a unanimous vote of all five trustees.
No trustee (other than a grantor) shall participate in any decision or other
action of the trustees with respect to any discretionary distribution of
principal or income in favor of such trustee.
Any individual may resign at any time as trustee of any trust held under
this indenture by an instrument signed and acknowledged by him or her and
delivered to his or her then acting co-trustees, such resignation to be
effective upon the appointment of a successor trustee.
Any trustee (other than a grantor) may be removed without cause by the
unanimous agreement of the other four trustees. A grantor may be removed as
trustee only if the remaining four trustees determine that the trustee to be
removed is incapable, by reason of mental or physical infirmity, to perform
adequately as a trustee. Any such removal shall be effected by an instrument of
removal signed and acknowledged by the remaining four trustees and delivered to
the trustee to be removed.
There shall at all times be five trustees.
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Each trustee other than a grantor shall serve for a term of five years.
When a vacancy in the position of trustee occurs, a new trustee shall be elected
by a majority vote of those beneficiaries of the trust who are over the age of
twenty-five years and who are descendants of Iphigene Ochs Sulzberger or married
to and living with a descendant of Iphigene Ochs Sulzberger, and who wish to
vote, in an election called by the trustees for that purpose. Each successor
trustee appointed pursuant to the provisions of this Article shall accept such
appointment by an acknowledged instrument, filed with the trust records,
agreeing to faithfully discharge all duties of the office of trustee, and by
executing and becoming a party, as trustee, to the Shareholders' Agreement.
No trustee who is a descendant of Iphigene Ochs Sulzberger or a spouse of
any such descendant shall be entitled to receive any commissions for acting as
such trustee. Any commissions payable to a trustee who is not a descendant of
Iphigene Ochs Sulzberger or a spouse of such descendant shall be paid from trust
income.
Each trustee shall be exempt from giving any bond or other security in any
jurisdiction.
ARTICLE NINE: The trustees are authorized and empowered to exercise from
time to time in their sole and absolute discretion, but subject to the
provisions of Article FIVE above, and without prior authority from any court, in
respect of the Stock or any other securities of the Company, all powers
conferred by law upon trustees or expressed in this indenture, including the
following:
(1) Power to retain the Stock and any other securities of the Company
or any successor corporation, for such period as they deem proper, and to
purchase by subscription or otherwise additional securities of the Company
or any successor corporation. It is the
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grantors' intention that, except upon the determination of the trustees
described in Article FIVE above, the trust will retain the Stock for the
trust term without regard to such factors as lack of diversification,
diminution of the value of the trust, the inability of the trust and the
beneficiaries thereof to realize the maximum value thereof, and the failure
to derive an adequate income therefrom, and without any duty to consider
offers for the purchase of the Stock.
(2) Power to exchange any securities of the Company held by them for
other securities or property, or partly for such securities or property and
partly for cash, and to exercise conversion, subscription, option and
similar rights with respect to any securities of the Company or any
successor corporation held by them, and to make payments in connection
therewith, and to allocate to principal any property received as a result
thereof.
(3) Power to vote in person or by proxy at corporate or other meetings
and to participate in and consent to or oppose any voting trust,
reorganization, recapitalization, liquidation, dissolution, merger, or
other action affecting the Stock or other securities of the Company or the
Company or any successor corporation, and to make payments in connection
therewith, and to allocate to principal any property received as a result
thereof.
(4) Power to participate in agreements relating to the purchase or
sale of the Stock or other securities of the Company, including agreements
granting to the Company or to any of its shareholders, including any
beneficiary of any trust hereunder, a right of first
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refusal with respect to any sale of the Stock, it being the grantor's
intention that the trustees shall enter into the Shareholders' Agreement.
(5) Power (a) to act as directors, officers or other employees of the
Company or any subsidiary thereof or any successor corporation, the same to
be compensated without regard to being a beneficiary or trustee hereunder,
(b) to obtain and pay out of income or principal the cost of liability
insurance for any such officer or director, and (c) to make such other
arrangements in respect thereof as the trustees shall deem proper.
(6) Power to retain, and pay out of income or principal the
compensation of, investment bankers, appraisers, accountants, legal counsel
and others when the trustees shall determine that such services are
desirable in connection with the affairs of the Company or any subsidiary
thereof or any successor thereto.
(7) If the trustees shall determine to dispose of the Stock or other
securities of the Company held hereunder, they shall be under no obligation
to solicit offers from third parties and may sell such securities to
another shareholder (including themselves as trustees of another trust or a
trust beneficiary) or to the Company upon such terms as they shall in their
sole discretion deem reasonable. Except for a sale of all of the Stock held
in the trust, the grantors direct that the trustees not sell any of the
Stock held hereunder unless all adult descendants of Iphigene Ochs
Sulzberger who are the beneficiaries consent to the sale.
The grantors recognize that in the exercise of their powers one or
more of the trustees may be placed in a position of having conflicting
interests as a trustee and as an
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individual or as a director, officer or employee of the Company or in some
other capacity, and direct that, unless specifically provided to the
contrary herein, such conflicting interests shall not be a basis for any
trustee not participating in the exercise of powers with respect to the
Stock.
ARTICLE TEN: In addition to the foregoing powers which relate solely to the
Stock and other securities of the Company, the trustees are authorized and
empowered to exercise from time to time in their sole and absolute discretion
and without prior authority from any court, in respect of any property other
than the Stock or any other securities of the Company, all powers conferred by
law upon trustees, or expressed in this indenture, and the grantors intend that
such powers (including the following) be construed in the broadest possible
manner:
(1) Power to invest or reinvest in such securities or other property,
real or personal (whether within or without the United States), and to
retain any property at any time received or held by them hereunder for such
periods, as they shall in their sole discretion determine (and any aspect
of any diversification requirement that would otherwise apply is hereby
negated).
(2) Power to borrow in the name of the trust such sums for such
periods and upon such terms as they shall deem necessary or convenient in
the administration of the trust, and to secure any such loan by mortgage or
pledge of property other than the Stock. No lender shall be bound to see to
or be liable for the application of the proceeds, and no
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trustee shall be personally liable, but each such loan shall be payable
only out of assets of the trust other than the Stock.
(3) Power to apply to the use of any person any property, whether
principal or income, vesting in or payable to such person, and in the case
of a minor (a) to do so without regard either to the duty of any person to
furnish support for such minor or the availability of other funds for such
purpose, or (b) to pay or deliver the same to such minor, or to a guardian
or custodian under a gifts to minors act, including a custodian selected by
the trustees (who may select attaining the age of twenty-one years for
termination of the custodianship), or to the parent of such minor, or to a
person with whom such minor resides, or to the trustees as donees of a
power during minority under this indenture.
(4) Power to allocate receipts and disbursements between income and
principal in such manner as the trustees in their sole discretion determine
even though a particular allocation or allocations may be made in a manner
inconsistent with what would otherwise be applicable state law.
(5) Power to improve any real property held in the trust, and to pay
the cost out of principal (other than the Stock).
(6) Power to permit any person having any interest in the income of
the trust to occupy any real property forming part of such trust upon such
terms as the trustees shall deem proper, whether rent free or in
consideration of the payment of taxes, insurance, maintenance and ordinary
repairs, or otherwise.
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(7) Power to charge to principal (other than the Stock) such sums as
they shall determine to be the net loss incurred in operating or carrying
any parcel of real property which in their opinion is not producing net
income.
(8) Power to employ as custodian a bank or trust company located
within or without the United States, and to acquire, hold, register, or
dispose of property in the name of such custodian or agent or a nominee
thereof without designation of fiduciary capacity, and to employ investment
counsel or other agents and to pay out of principal or income or both the
charges and expenses of any such custodian, counsel or other agent.
(9) Power to compromise and adjust all claims or debts due to or made
against them.
ARTICLE ELEVEN: If by reason of a stock dividend, stock split,
recapitalization, merger or other change in the capital structure of the
Company, the trust receives securities of the Company or any successor
corporation, other than shares of the present Class B Common Stock, the trustees
shall determine whether the securities received shall be treated as "the Stock"
for purposes of this indenture or shall not be so treated. The trustees shall
have absolute discretion in making this determination. The grantors intend in
general that any securities of the corporation that owns and publishes The New
York Times newspaper, having voting rights equivalent or similar to those of the
present Class B Common Stock or having unlimited voting rights, shall be treated
as "the Stock" and other securities shall not be so treated.
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ARTICLE TWELVE: The terms "issue" and "descendant" as used herein are
intended to include persons whose relationship results solely from adoption
while under the age of eighteen years.
The term "spouse" as used herein shall mean any individual who is married
to a descendant of Adolph S. Ochs, or who was married to a descendant of Adolph
S. Ochs at the time of such descendant's death, whether or not such individual
shall have remarried.
The descendants of Iphigene Ochs Sulzberger referred to in Article ONE
hereof consist of her four children, Marian S. Heiskell, Ruth S. Holmberg,
Judith P. Sulzberger and Arthur Ochs Sulzberger, her thirteen grandchildren,
Jacqueline H. Dryfoos, Robert O. Dryfoos, Susan W. Dryfoos, Stephen A.O. Golden,
Michael D. Golden, Lynn G. Dolnick, Arthur S. Golden, Daniel H. Cohen, James M.
Cohen, Cathy Jean Sulzberger, Arthur O. Sulzberger, Jr., Karen A. Sulzberger and
Cynthia F. Sulzberger, her twenty-five great-grandchildren, James D. Dryfoos,
Victoria A. Dryfoos, Carolyn D. Greenspon, Michael S. Greenspon, Nicholas O.
Mazonowicz, Margot G. Golden, David S. Perpich, Matthew R. Cohen, David A.O.
Golden, Taylor Cohen, Rachel B. Golden, Sarah S. Perpich, Arthur G. Sulzberger,
Samuel Dolnick, Ann A. Sulzberger, Benjamin Dolnick, Robert A. Dryfoos, Hays N.
Golden, Pamela M. Dryfoos, Tess I. Golden, Abigail Perpich, Adam Cohen,
Alexander Cohen, Simon Lax and John Lax, their respective descendants, born in
wedlock, legitimatized or adopted while under the age of eighteen years, and any
such descendants conceived before, but born after the date of this indenture.
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When the term "per stirpes" is used herein, the stirpes shall begin in the
generation of the grantors.
ARTICLE THIRTEEN: This indenture shall be construed and regulated by and in
accordance with, and the trust hereby created shall be governed by, the laws of
the State of New York.
ARTICLE FOURTEEN: The grantors direct that in any proceeding relating to
the trust, service upon any person under a disability shall not be made when a
person not under a disability is a party to the proceeding and has the same
interest as the person under the disability.
ARTICLE FIFTEEN: Each grantor agrees that any federal or state death taxes
imposed by reason of her or his death upon any property constituting part of
this trust will be provided for and paid out of assets other than those held in
the trust.
ARTICLE SIXTEEN: Whenever in this indenture the trustees are given
"absolute" discretion, the grantors intend that such discretion shall be
uncontrolled and unfettered, and subject to review by a court only if the
trustees' actions are in bad faith. When this indenture sets forth guidelines
for the exercise of discretion (including the next sentence), it is the
intention of the grantors that such guidelines be viewed as precatory only and
not as establishing an enforceable standard under which the trustees' exercise
of discretion could be reviewed. The trustees may always exercise their
discretion with a view to the grantors' desire that The New York Times newspaper
remain independent and in the control of the trustees or the descendants of
Iphigene Ochs Sulzberger.
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No trustee shall be liable for the acts or defaults of a co-trustee. Each
trustee shall be deemed to have acted within the scope of his or her authority,
to have exercised reasonable care, diligence and prudence, and to have acted
impartially as to all persons interested unless the contrary be proved by clear
and convincing evidence, and in the absence of such proof shall not be liable
for any loss. In no event shall any trustee be held liable for any loss
resulting from retention of the Stock during the trust term. The provisions of
this Article shall apply to any person acting as donee of a power during
minority hereunder.
The trustees accept the trust hereby created and covenant that they will
faithfully discharge all duties of their office as such trustees.
/s/Marian S. Heiskell
---------------------
Marian S. Heiskell
/s/Ruth S. Holmberg
-------------------
Ruth S. Holmberg
/s/Judith P. Sulzberger
-----------------------
Judith P. Sulzberger
/s/Arthur Ochs Sulzberger
-------------------------
Arthur Ochs Sulzberger
Grantors and Trustees
/s/Lynn G. Dolnick
------------------
Lynn G. Dolnick
Trustee
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Schedule "A"
Contributor Property Contributed to trust
----------- -----------------------------
Marian S. Heiskell 175,000 shs., The New York Times Company, Class A common
92,351 shs., The New York Times Company, Class B common
Ruth S. Holmberg 175,000 shs., The New York Times Company, Class A common
92,351 shs., The New York Times Company, Class B common
Judith P. Sulzberger 175,000 shs., The New York Times Company, Class A common
92,351 shs., The New York Times Company, Class B common
Arthur Ochs Sulzberger 175,000 shs., The New York Times Company, Class A common
92,352 shs., The New York Times Company, Class B common
[Note: Acknowledgments of execution which follow in the original are omitted
from this filing.]
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