<PAGE>
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
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
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
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
Deferred Compensation Obligations $17,300,000.00 100% $17,300,000.00 $5,103.50
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------
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.
===============================================================================
<PAGE>
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
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<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
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/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
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/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
<PAGE>
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
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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
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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.
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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.
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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.
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<PAGE>
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.
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<PAGE>
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
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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.
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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.
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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.
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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
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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.
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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
<PAGE>
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
