UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
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(Amendment No. 3)*
THE NEW YORK TIMES COMPANY
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(Name of Issuer)
Class A Common Stock of $0.10 par value
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(Title of Class of Securities)
650111 10 7
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(CUSIP Number)
Peter A. Nussbaum
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
(212) 756-2565
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 13, 1998
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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-l(e), 13(d)-1(f) or 13(d)-1(g),
check the following box { }.
*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.
(Page 1 of 23 Pages)
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CUSIP No. 650111 10 7
1 NAME OF REPORTING PERSON: RUTH S. HOLMBERG
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: 2,972,462 shares*
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 3,761,113 shares**
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER: 2,972,462 shares*
PERSON WITH
10 SHARED DISPOSITIVE POWER: 3,761,113 shares**
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
6,773,575 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES { }
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 7.07%
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.
(Page 2 of 23 Pages)
<PAGE>
This Amendment No. 3 to the Statement on Schedule 13D of Ruth
S. Holmberg ("Mrs. Holmberg") dated June 11, 1990 is being filed to
report, among other things, (i) the transfer by Mrs. Holmberg of 146,000
shares of Class A Common Stock, $0.10 par value per share (the "Class A
Stock") of The New York Times Company (the "Company") to The Ruth S.
Holmberg 1998 Family Trust (the "Family Trust"), (ii) the transfer by
Mrs. Holmberg of 14,000 shares of Class A Stock to The Ruth S. Holmberg
1998 GST Trust (the "GST Trust"), (iii) the sale of an aggregate of
270,000 shares of Class A Stock, including 110,000 shares of Class A
Stock held by Mrs. Holmberg, 146,000 shares held by the Family Trust,
and 14,000 shares held by the GST Trust, (iv) the contribution by Mrs.
Holmberg of 650,000 shares of Class A Stock to MARLS, L.P. ("Marls"), a
newly formed limited partnership, which is indirectly controlled by
Marujupu, L.L.C. ("Marujupu"), and the limited partners of which at the
present time are Mrs. Holmberg, the Family Trust and the GST Trust, (v)
the contribution by Mrs. Holmberg of 2,000 shares of Class A Stock to
HOGODO, L.L.C. ("Hogodo"), a newly formed limited liability company
which is the general partner of Marls, and of which the managing member
is Marujupu, (vi) the contribution by Mrs. Holmberg of 100 shares of
Class A Stock to Marujupu, and (vii) the contributions similar to those
set forth in clauses (iv), (v), and (vi) above, of Class A Stock by each
of the other three children of Iphigene Ochs Sulzberger: Marian S.
Heiskell ("Mrs. Heiskell"), Arthur Ochs Sulzberger ("Mr. Sulzberger")
and Judith P. Sulzberger ("Dr. Sulzberger" and collectively with Mr.
Sulzberger, Mrs. Heiskell and Mrs. Holmberg, the "Third Generation")
each to a separate limited partnership (similar to Marls) of which such
member of the Third Generation is a limited partner, to a limited
liability company (similar to Hogodo) which is the general partner of
such limited partnership (similar to Marls) and to Marujupu.
Item 2. Identity and Background
PARAGRAPH (C) OF ITEM 2 IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY
AS FOLLOWS:
(c) Mrs. Holmberg's present principal occupation is Chairman
of Times Printing Company, the publisher of The Chattanooga Times
newspaper.
Item 4. Purpose of Transaction.
ITEM 4 OF THIS STATEMENT IS HEREBY AMENDED AND RESTATED TO READ IN ITS
ENTIRETY AS FOLLOWS:
Except as set forth in Item 6 of Amendment No. 1, as amended
by Amendment No. 2 and as set forth below, Mrs. Holmberg 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;
(Page 3 of 23 Pages)
<PAGE
(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 proposals 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) causing a class of securities of the Company to be
delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a
registered national securities association;
(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.
Mrs. Holmberg may in the future acquire or transfer (by gift
or otherwise) additional securities of the Company for family financial
planning, charitable and other purposes.
Item 5. Interest in Securities of the Issuer.
ITEM 5 OF THIS STATEMENT IS HEREBY AMENDED AND RESTATED TO READ IN ITS
ENTIRETY AS FOLLOWS:
(a) and (b) Mrs. Holmberg is the direct beneficial owner of,
and has sole voting and dispositive power with respect to, 2,972,462
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 an aggregate of approximately 3.10% of
the outstanding shares of Class A Stock.*
(Page 4 of 23 Pages)
<PAGE>
Mrs. Holmberg is also (i) a co-trustee of three trusts which
own an aggregate of 5,040 shares of Class A Stock, as to which shares
she shares voting and dispositive power with her husband, A. William
Holmberg, as co-trustee, and (ii) an officer and director of The
Sulzberger Foundation, Inc. (the "Foundation"), which holds 56,518
shares of Class A Stock, or approximately 0.06% of the outstanding
shares of Class A Stock, as to which shares Mrs. Holmberg shares voting
and dispositive power with Mr. Sulzberger, Mrs. Heiskell and Dr.
Sulzberger, all of whom are officers and directors of the Foundation.
Mrs. Holmberg is a co-trustee of the 1997 Trust (See Amendment
No. 2 to this Statement for a description), 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 the Class
A Stock, as to which Mrs. Holmberg shares voting and dispositive power
with Mr. Sulzberger, Mrs. Heiskell, Dr. Sulzberger, and Dr. Dolnick, as
co-trustee with them of the 1997 Trust.
Mrs. Holmberg is a member of Marujupu, the other members of
which are the three other members of the Third Generation. On May 11,
1998, Mrs. Holmberg and the other members of the Third Generation each
transferred 100 shares of Class A Stock to Marujupu. On May 12, 1998,
Marujupu transferred 100 shares to Hogodo. Mrs. Holmberg also
transferred 2,000 shares of Class A Stock to Hogodo on May 11, 1998 and
Mrs. Holmberg's children transferred an aggregate of 8,000 shares of
Class A Stock to Hogodo. On May 12, 1998 Hogodo contributed 10,100
shares of Class A Stock to Marls, in exchange for a general partnership
interest in Marls and Mrs. Holmberg contributed 650,000 shares of Class
A Stock to Marls in exchange for a limited partnership interest in
Marls. Mrs. Holmberg then sold a portion of her limited partnership
interest in Marls to the Family Trust and the GST Trust. The other 300
shares of Class A Stock held by Marujupu were similarly contributed to
three other limited partnerships (similar to Marls) organized by the
other members of the Third Generation (100 shares to each), which hold
an aggregate of 1,970,050 shares of Class A Stock (such shares having
been similarly contributed by the other members of the Third Generation
and their children). Therefore, Mrs. Holmberg shares voting and
dispositive power with Mr. Sulzberger, Mrs. Heiskell, and Dr. Sulzberger
as members of Marujupu over an aggregate of 2,630,150 shares of Class A
Stock, representing approximately 2.74% of the outstanding shares of
Class A Stock.
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* Except as described in footnote ** below, all percentages of
outstanding Class A Stock herein are based on the 95,403,489 shares of
Class A Stock shown as outstanding as of May 3, 1998, in the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March 29,
1998, plus those unissued shares which Mrs. Holmberg and entities under
her control have the right to acquire upon exercise of options or
conversion of Class B Stock, as described in this Item 5.
(Page 5 of 23 Pages)
<PAGE>
In summary of the foregoing, Mrs. Holmberg is the direct or
indirect beneficial owner in the aggregate of 6,773,575 shares of Class
A Stock, representing approximately 7.07% of the outstanding shares of
Class A Stock.
By virtue of their being co-trustees of the 1997 Trust, Mr.
Sulzberger, Mrs. Holmberg, Mrs. Heiskell, Dr. Sulzberger and Dr. 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. In addition,
by virtue of their being members of Marujupu, Mr. Sulzberger, Mrs.
Holmberg, Mrs. Heiskell and Dr. Sulzberger, 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 the shared beneficial ownership
with Mrs. Holmberg by Mr. Sulzberger, Mrs. Heiskell, Dr. Sulzberger and
Dr. Dolnick of the 1,069,405 shares of Class A Stock held by the 1997
Trust and apart from the shared beneficial ownership with Mrs. Holmberg
by Mr. Sulzberger, Mrs. Heiskell and Dr. Sulzberger (as members of
Marujupu) of 2,630,150 shares of Class A Stock:
1. Mr. Sulzberger (a) is the direct beneficial owner
of, and has sole voting and dispositive power with respect
to, 3,144,601 shares of Class A Stock, including (i) 1,785
shares issuable upon the conversion of 1,785 shares of Class
B Stock held by him, and (ii) 271,638 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 they are
co-trustees, and (d) shares voting and dispositive power with
Mrs. Heiskell, Mr. Sulzberger and Dr. Sulzberger with respect
to the 56,518 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, 2,297,085 shares of Class A Stock, including 1,485
shares issuable upon the conversion of 1,485 shares Class B
Stock held by her and 4,000 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 56,518
shares of Class A Stock held by the Foundation;
3. Dr. Sulzberger (a) is the direct beneficial owner of, and
has sole voting and dispositive power with respect to,
2,969,082 shares of Class A Stock, including 1,185 shares
(Page 6 of 23 Pages)
<PAGE>
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, and (b) shares voting and dispositive power with
Mr. Sulzberger, Mrs. Heiskell and Dr. Sulzberger with respect
to the 56,518 shares of Class A Stock held by the Foundation;
and
4. Dr. Dolnick (a) has sole voting and dispositive
power with respect to 564 shares of Class A Stock held by
the Golden Family Charitable Fund, Inc., (b) has sole voting
and dispositive power with respect to an aggregate of 12,254
shares of Class A Stock held by two trusts of which
Dr. Dolnick is the sole trustee (Dr. 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 9,420 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 Dr. Dolnick
is the beneficial owner in the aggregate of 15,931,420 shares of Class A
Stock, representing approximately 16.58%** 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 283,638 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 residence
address of Dr. Sulzberger is 146 Central Park West, New York, New York
10023. The business address of Dr. Dolnick is 3001 Connecticut Avenue,
Washington, D.C. 20008. The business address of Marujupu is 229 West
43rd Street, New York, New York 10036. The business address of Hogodo
is 229 West 43rd Street, New York, New York 10036. The business address
of Marls is 229 West 43rd Street, New York, New York 10036.
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** This percentage is based on the 95,403,489 shares of Class A
Stock shown as outstanding as of May 3, 1998, in the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 29, 1998, plus
the 659,242 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.
(Page 7 of 23 Pages)
<PAGE>
Mrs. Heiskell is principally employed as a director of various
charitable organizations. Dr. Sulzberger is a physician currently
retired from the active practice of medicine. Dr. 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 Emeritus 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. The
principal business of Marujupu is to serve as the "family office" of the
members of the Third Generation. The principal business of Hogodo is to
serve as the member of general partner of Marls. The principal business
of Marls is the management and investment of its assets.
None of Mr. Sulzberger, Mrs. Heiskell, Dr. Sulzberger, Dr.
Dolnick, Marujupu, Hogodo and Marls 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, Dr. Sulzberger and Dr. Dolnick is a
citizen of the United States. Marujupu is a Delaware limited liability
company. Hogodo is a Delaware limited liability company. Marls is a
Delaware limited partnership.
(c) During the past 60 days, no transactions in Class A
Stock have been effected by Mr. Sulzberger, Mrs. Heiskell, Mrs.
Holmberg, Dr. Sulzberger or Dr. Dolnick, except those described above or
set forth on Schedule A hereto.
(d) See Item 6 of this Statement.
(e) Not Applicable.
(Page 8 of 23 Pages)
<PAGE>
Item 6. Contracts, Arrangements, Undertakings or relationships with
Respect to Securities of the Issuer.
ITEM 6 OF THIS STATEMENT IS HEREBY AMENDED BY ADDING THE FOLLOWING:
The Limited Partnership Agreement (the "Agreement") of Marls
is being filed with this Amendment No. 6 as Exhibit F to this Statement.
The following summary of the material terms of the Agreement is
qualified in its entirety by reference to Exhibit F. The limited
partnership agreements of the three additional limited partnerships
indirectly controlled by Marujupu contain substantially the same
material terms. Reference is made to the Schedule 13D filed by Dr.
Sulzberger, Mr. Sulzberger, and Mrs. Heiskell.
Marls was formed for the purpose of the management and
investment of its capital assets and to engage in any other activities
not prohibited by Delaware law and deemed by Hogodo to be in the best
interests of Marls.
Hogodo, as general partner, has the power to manage the
business and activities of Marls, including voting and dispositive power
with respect to securities held by Marls. Hogodo is controlled by
Marujupu, as its manager, which has sole power to manage the business
and affairs of Hogodo, except with respect to withdrawal from a limited
partnership as a general partner and consent to the dissolution of any
limited partnership. The members of the Third Generation are the
members of, and have power to manage the business of, Marujupu. The
members of Hogodo may remove Marujupu at any time in their discretion.
Item 7. Material to be Filed as Exhibits.
Exhibit F: Limited Partnership Agreement, dated as of the
11th day of May, 1998, of MARLS, L.P.
(Page 9 of 23 Pages)
<PAGE>
Signature
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/Ruth S. Holmberg
---------------------------------
Ruth S. Holmberg
Dated: May 15, 1998
(Page 10 of 23 Pages)
<PAGE>
Schedule A
Date of Record Number of Shares Price Per Share
Transaction Owner Purchased/(Sold) (including
commissions,
if any)
5/13/98 Mrs.
Holmberg (104,375) $70.25
5/13/98 The Ruth S.
Holmberg
1998 Family
Trust* (146,000) $70.25
5/13/98 The Ruth S.
Holmberg
1998 GST
Trust* (14,000) $70.25
5/13/98 Mr.
Sulzberger (104,375) $70.25
5/13/98 The Arthur Ochs
Sulzberger
1998 Family
Trust* (146,000) $70.25
5/13/98 The Arthur Ochs
Sulzberger
1998 GST Trust* (14,000) $70.25
5/13/98 Dr.
Sulzberger (104,375) $70.25
5/13/98 The Judith P.
Sulzberger
1998 Family
Trust* (154,700) $70.25
5/13/98 The Judith P.
Sulzberger
1998 GST Trust* (5,300) $70.25
5/13/98 Mrs.
Heiskell (104,375) $70.25
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* Such shares were contributed on May 7, 1998 to such trust by the
member of the Third Generation whose name is borne by such trust. After
giving effect to such sales, the trusts own no securities of the
Company.
(Page 11 of 23 Pages)
<PAGE>
5/13/98 The Marian S.
Heiskell 1998
Family Trust* (160,000) $70.25
5/12/98 Mrs.
Holmberg (5,625) $72.34
5/12/98 Mr.
Sulzberger (5,625) $72.34
5/12/98 Dr.
Sulzberger (5,625) $72.34
5/12/98 Mrs. Holmberg (5,625) $72.34
4/2/98 Mrs. Holmberg (4,605) $0
4/2/98 Dr. Dolnick 614 $0
4/1/98 Mrs. Holmberg (384) $0
3/17/98 Mrs. Heiskell (1,538) $0
* Such shares were contributed on May 7, 1998 to such trust by the
member of the Third Generation whose name is borne by such trust. After
giving effect to such sales, the trusts own no securities of the
Company.
(Page 12 of 23 Pages)
<PAGE>
LIMITED PARTNERSHIP AGREEMENT
FOR
MARLS, L. P.
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement") is
made and entered into as of the 11th day of May, 1998, by the general
partner, HOGODO, L.L.C. (in such capacity, the "General Partner"), a
Delaware limited liability company, and those persons identified on
Schedule A as owners of Limited Partnership Units (the "Limited
Partners"). The General Partner and the Limited Partners are referred
to as the "Partners".
The Partners desire to form a limited partnership (the
"Partnership") for the express purpose of retaining control of much of
the family's shares of the Class A common stock of The New York Times
Company, and also, by pooling investments, to develop and maintain
sufficient other assets for the payment of transfer taxes, so that the
family's ownership of The New York Times may be continued in accordance
with the desires of Adolph S. Ochs, and for such other purposes as are
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements, it is agreed as follows:
ARTICLE I
ESTABLISHMENT OF THE PARTNERSHIP
1.1. Formation. The Partners form the Partnership as a
limited partnership pursuant to the provisions of The Revised Uniform
Limited Partnership Act as adopted in the State of Delaware (the "Act")
upon the terms and conditions set forth in this Agreement. The Partners
shall promptly take all actions necessary or appropriate to allow the
Partnership to carry on its business in accordance with the terms of
this Agreement.
1.2. Name. The name of the Partnership is MARLS, L.P. or
such other name selected by the General Partner as may be acceptable to
the appropriate recording officials of the State of Delaware.
1.3. Purposes. The Partnership is formed for the following
purposes:
1.3 (a) the management and investment of its capital
assets; and
1.3 (b) to engage in any other activities not
prohibited by law which are determined by the General Partner to be in
the best interests of the Partnership and its Partners.
(Page 13 of 23 Pages)
<PAGE>
1.4. Powers. The Partnership shall have the power to do all
things necessary or desirable in the conduct of its business to the
fullest possible extent.
1.5. Principal Place of Business. The principal place of
business of the Partnership is c/o Marujupu, The New York Times Company,
Room 1031, 229 West 43rd Street, New York, New York 10036 and/or such
other place or places as the General Partner may from time to time
determine.
1.6. Term. The term of the Partnership shall continue until
December 31, 2047, unless terminated at an earlier date as hereinafter
provided.
1.7. Registered Agent. The address of the Partnership's
registered office in the State of Delaware is Corporation Service
Company, 1013 Centre Road, Wilmington, Delaware 19805. The name of its
registered agent at that address is The Corporation Service Company.
ARTICLE II
CAPITAL CONTRIBUTIONS; PARTNERSHIP UNITS
WITHDRAWALS, AND CAPITAL ACCOUNTS
2.1. Initial Capital Contributions and Partnership Units.
Each Partner shall make an initial contribution to the capital of the
Partnership, simultaneously with the execution of this Agreement,
consisting of the property described in Schedule A. In consideration
therefor, each Partner shall be issued such number of units of
Partnership interest ("Partnership Units") as are indicated on Schedule
A, consisting of such number of units of General Partnership interest
(each a "General Partnership Unit") and units of Limited Partnership
interest (each a "Limited Partnership Unit") as indicated. Each
Partnership Unit shall represent equivalent economic interests in the
Partnership.
2.2. Subsequent Capital Contributions. If the General
Partner has a deficit balance in its capital account at the time of the
liquidation of the Partnership, it agrees to contribute to the capital
of the Partnership an amount of cash equal to the amount by which zero
exceeds such General Partner's capital account at such time. Such
amount shall be paid to the Partnership by the later of the end of the
taxable year in question or 90 days after the date of the Partnership's
liquidation and shall be available for payment to the creditors of the
Partnership or for distribution to Partners having positive capital
account balances.
2.3. Additional Contributions. No Partner shall be required
to make any capital contributions in addition to those called for by
Section 2.1 and Section 2.2.
(Page 14 of 23 Pages)
<PAGE>
2.4. Capital Accounts. A single capital account ("Capital
Account") shall be maintained for each Partner (regardless of whether
such Partner is a General Partner or a Limited Partner or both and
regardless of the time or manner in which such interests were acquired)
in accordance with the capital accounting rules of Section 704(b) of the
Internal Revenue Code (the "Code"). Each Partner's opening Capital
Account balance shall be the amount (as set forth in Schedule A) of such
Partner's initial Capital Contribution made pursuant to Section 2.1.
Thereafter, a Partner's Capital Account shall be credited with (a) such
Partner's subsequent cash capital contributions; (b) the agreed value of
any property subsequently contributed to the capital of the Partnership
by such Partner; (c) such Partner's share of partnership realized and
unrealized profits as provided in Article III; and (d) such other
amounts as may be required in order for the Capital Account to be
considered to be determined and maintained in accordance with the rules
of Treas. Reg. Section 1.704-1(b)(2)(iv) (including Treas. Reg.
Section 1.704-1(b)(2)(iv)(g)) or any successor section of similar
import. A Partner's Capital Account shall be debited with (a) such
Partner's share of partnership realized and unrealized losses as
provided in Article III, (b) distributions made to such Partner, and (c)
such other amounts as may be required for the Capital Account to be
considered to be determined and maintained in accordance with the rules
of Treas. Reg. Section 1.704-1(b)(2)(iv) (including Treas. Reg.
Section 1.704-1(b)(2)(iv)(g)) or any successor section of similar
import.
ARTICLE III
PROFIT AND LOSS
3.1. Definitions of Net Profit and Net Loss. Profits and
losses for a particular Operations Period shall be computed in the same
manner as the Partnership reports its income for Federal income tax
purposes, except that (i) for purposes of gain, loss, depreciation and
otherwise, property shall be considered to have a book value equal to
its fair market value as most recently determined pursuant to Section
3.2(c); (ii) income of the Partnership exempt from tax, and expenses not
deductible for tax purposes under the Code shall be included in the
computation; and (iii) unrealized gain or loss shall be taken into
account as provided in Section 3.2(c) hereof. The principles of Treas.
Reg. Section 1.704I (b)(4)(i) shall be applied when necessary to prevent
duplication or omission of Capital Account adjustments, including
without limitation those arising from deemed sales under Section 3.2(c).
3.2. Allocation of Profits and Loss.
3.2(a) The Partnership's net profits and losses for any
Operations Period shall be allocated to each of the Partners pro rata
for each Operations Period according to the ratio of (i) the number of
Partnership Units owned by each Partner to (ii) the aggregate number of
Partnership Units outstanding.
(Page 15 of 23 Pages)
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3.2(b) The Partnership's items of income, gain, loss
and deduction shall be allocated for Federal, state and local income tax
purposes among the Partners proportionately to the allocation of net
profits and losses among the Partners, except that each Partner's
distributive share of depreciation, amortization, and gain or loss, as
computed for tax purposes, with respect to any property shall be
determined so as properly to reflect the varying interests of the
Partners in unrealized profit or loss for prior Operations Periods, and
otherwise to take into account the variation between the adjusted basis
and the book value of the property in the same manner as under Section
704(c) of the Code and the Treasury Regulations thereunder.
3.2(c) On each Adjustment Date, as defined in Section
3.4, the properties of the Partnership (including in the case of a
distribution, any property being distributed) shall be considered to
have been sold at fair market value, as determined by the General
Partner using its reasonable business judgment. The deemed gain or loss
for the Operations Period in question upon such deemed sale shall be
allocated in accordance with Section 3.2. The amount of any
distribution in kind shall be considered to be the fair market value of
the property, as so determined.
3.2(d) If any Partnership Unit is transferred during an
Operations Period, the net profit or loss attributable to such
Partnership Unit for the Operations Period shall be allocated between
the transferor and transferee on a monthly basis based on actual monthly
profit or loss. For this purpose, (i) if a transfer occurs on or before
the 15th day of the month the transferee shall be treated as the owner
of the Partnership Unit for the entire month and (ii) if a transfer
occurs after the 15th day of the month the transferor shall be treated
as the owner of the Partnership Unit for the entire month.
3.3. Qualified Income Offset and Related Provisions.
Notwithstanding any other provision:
3.3(a) Net losses for any Operations Period that would
otherwise be allocated with respect to Partnership Units owned by a
Limited Partner and which would cause such Limited Partner to have an
Adjusted Capital Account Deficit with respect to his interest as a
Limited Partner shall instead be allocated to the General Partner.
3.3(b) If any Limited Partner receives an adjustment,
allocation, or distribution described in Treas. Reg. Section 1.704-1
(b)(2)(ii)(d)(4), (5), or (6), items of Partnership gross income shall
be specifically allocated to such Limited Partner in an amount and
manner sufficient to eliminate any Adjusted Capital Account Deficit
created by such adjustments, allocations, or distributions as quickly as
possible. The provisions of this Section 3.3(b) are intended to
constitute a "qualified income offset" within the meaning of Treas. Reg.
Section 1.704-1 (b)(2)(ii)(d) and shall be interpreted and implemented
as therein provided.
(Page 16 of 23 Pages)
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3.3(c) After satisfaction of any allocations required
by Section 3.3(b), net profit for an Operations Period shall be
allocated to the General Partner until the General Partner has received
allocations of net profit equal in the aggregate to any net losses
previously allocated to it pursuant to Section 3.3(a).
3.3(d) An "Adjusted Capital Account Deficit" exists
with respect to a Limited Partner if the Limited Partner's Capital
Account, determined for this purpose by reducing the Capital Account by
the items described in Treas. Reg. Section 1.704-1(b)(2)(ii)(d), (4),
(5) and (6) and by increasing the Capital Account by the amount
described in Treas. Reg. Section 1.704-1 (b)(2)(ii)(c) the Partner is
obligated to restore, is a negative amount.
3.4. Adjustment Date; Operations Period.
3.4(a) The "Adjustment Dates" of the Partnership shall
be the date of dissolution of the Partnership and each other date on
which there is a distribution in kind of property of the Partnership, a
contribution of money or other property (other than a de minimus amount)
to the Partnership by a new or existing Partner as consideration of an
interest in the Partnership, or a distribution of money (other than a de
minimus amount) by the Partnership to a retiring or continuing Partner
as consideration for an interest in the Partnership.
3.4(b) An "Operations Period" of the Partnership shall
be the period beginning on the date hereof, the first day of a fiscal
year or an Adjustment Date (as the case may be) and ending on the
earlier of the next succeeding Adjustment Date or the last day of a
fiscal year.
ARTICLE IV
DISTRIBUTIONS
4.1. Distributions Other Than Upon Winding-Up. Partnership
property may be distributed to the Partners from time to time at the
sole discretion of the General Partner; provided, however, that
distributions shall be made to each Partner pro rata according to the
ratio of (a) the number of Partnership Units owned by such Partner to
(b) the aggregate number of Partnership Units outstanding, determined at
the end of such Operations Period. After application of Section 3.2(c),
in the discretion of the General Partner, property of the Partnership
may be distributed in kind.
4.2. Distributions Upon Winding-Up. Upon the dissolution and
winding up of the Partnership, the assets of the Partnership, after
application of Section 3.2(c), shall be distributed in the following
order of priority:
(Page 17 of 23 Pages)
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4.2(a) To the payment of the debts and liabilities of
the Partnership and the expenses of winding-up, including the
establishment of any reserves against liabilities or obligations of the
Partnership which the General Partner in its sole discretion deem
appropriate, such reserves to be charged against the Partners' Capital
Accounts according to the ratio of (i) the number of Partnership Units
owned by each Partner, to (ii) the aggregate number of Partnership Units
outstanding, and, prior to payment of such liabilities and obligations,
shall be placed in the hands of an escrow agent for such period of time
and upon such terms as the General Partners shall determine; and, then,
4.2(b) To the payment of the Capital Accounts of the
Partners.
ARTICLE V
WITHDRAWALS
5.1. Withdrawals. No Partner may withdraw from the
Partnership prior to its dissolution.
ARTICLE VI
DISSOLUTION AND WINDING-UP
6.1. Events Occasioning Dissolution. The Partnership shall
dissolve and terminate upon the occurrence of any of the following,
whichever shall first occur:
(a) December 31, 2047.
(b) The unanimous written consent of all the Partners
to dissolve the Partnership.
(c) The occurrence of an event of withdrawal by the
General Partner under Section 17-402 of the Act, unless, within 90
(ninety) days from the occurrence of such event of withdrawal, a
majority in interest of the then existing Limited Partnership interests
agree to continue the business of the Partnership and to appoint,
effective as of the date of withdrawal, a new General Partner.
(d) The entry of a decree of judicial dissolution under
Section 17-802 of the Act.
6.2. Winding-Up. The Partnership shall be allowed one year
from the date of any event occasioning dissolution for the winding-up of
its affairs and shall be allowed such additional time as may be
reasonable for the orderly sale of the Partnership's properties.
(Page 18 of 23 Pages)
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ARTICLE VII
MANAGEMENT
7.1. Management by the General Partner. The business affairs
of the Partnership shall be managed by the General Partner. The General
Partner shall have all necessary powers to carry out the purposes of the
Partnership.
7.2. Liabilities of the General Partner, Other Interests.
The General Partner and its agents shall not be liable, responsible or
accountable in damages or otherwise to the Partnership or to any of the
Partners for any acts performed or omitted to be performed in good
faith. The General Partner and the Limited Partners may engage in or
possess interests in other business ventures of every nature and
description, whether or not competitive with the business of the
Partnership, independently or with others, and neither the Partnership
nor any of its Partners shall, by virtue of this Agreement, have any
rights in or to such other ventures or the income or profits derived
therefrom.
7.3. Limited Partners. No person in such person's capacity
as a Limited Partner shall take part in the management of the business
or affairs of the Partnership or have the right or authority to act for
or bind the Partnership. Notwithstanding any provision of this
Agreement, the Limited Partners shall not be liable for any of the
losses, debts or liabilities of the Partnership in excess of their
respective Capital Contributions, except as otherwise expressly provided
by law. The General Partner may also be a Limited Partner.
ARTICLE VIII
SUBSTITUTION; ADDITIONAL PARTNERS
8.1. Substituted Limited Partners. The transferee of a
Limited Partnership Unit may not be admitted as a substituted Limited
Partner unless all of the following conditions have been met:
(a) The transfer is made pursuant to the written
consent of the General Partner, which consent may be given or withheld
in the sole discretion of the General Partner;
(b) There has been filed with the General Partner a
written instrument, executed by the transferor, in form and substance
satisfactory to the General Partner, transferring to the transferee all
or part of the transferor's Partnership Units;
(c) The transferee has approved and adopted all of the
provisions of this Agreement, as the same may have been amended, which
approval and adoption may be evidenced in such manner as is required by
the General Partner; and
(Page 19 of 23 Pages)
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(d) The transferee has paid or agreed to pay, as the
General Partner may determine, all reasonable expenses relating to such
admission.
8.2. Transfers of General Partnership Units. The transferee
of a General Partnership Unit may not be admitted as a substituted
General Partner without (a) the written consent of all the Limited
Partners, which consent shall be given or withheld in the sole
discretion of a Limited Partner and (b) satisfaction of the requirements
of Section 8.1 in respect to a transfer of Limited Partnership Units;
provided, however, that if the requirements of clause (b), but not
clause (a), are met, such General Partnership Units shall be deemed
Limited Partnership Units in the hands of the transferee, and such
transferee shall be admitted only as a substituted Limited Partner with
respect thereto, and shall not be deemed a General Partner for any
purpose but provided further, that no such transfer shall be permitted
if the Partnership would have no General Partnership Units outstanding
after the transfer.
8.3. Additional Partners. Additional Partnership Units may
be issued and sold by the General Partner to any person, including but
not limited to a natural person, trust, corporation, partnership or
other association, for fair market value, as determined by the General
Partner, using their reasonable business judgment, and under such terms
as deemed advisable by the General Partner, including but not limited to
terms relating to the applicability of this Agreement to such additional
Partnership Units. Admission of any Partner shall not be a cause of
dissolution.
ARTICLE IX
ACCOUNTING
9.1. Books and Records. The General Partner shall maintain
the general accounts of the Partnership. The books of the Partnership
shall be kept on a basis consistent with the provisions of this
Agreement and shall be open to the inspection and examination of all
Partners, in person or by their duly authorized representatives, at
reasonable times. The books of the Partnership shall be maintained
using the accrual method of accounting.
9.2. Fiscal Year. The fiscal year of the Partnership shall
be the calendar year.
9.3. Reports. As soon as practicable after the close of each
fiscal year the Partnership shall furnish each Partner with a copy of
the Partnership's financial statements for such year and with a
statement of such Partner's Capital Account, as refected on the books of
the Partnership. Each Partner shall also be supplied with all
information with respect to the Partnership required in connection with
the preparation of such Partner's tax returns.
(Page 20 of 23 Pages)
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9.4. Federal Income Tax Elections. All elections required or
permitted to be made by the Partnership under the Internal Revenue Code
shall be made by the General Partner in such manner as will, in its
opinion, be most advantageous to a majority in interest of the Limited
Partners.
9.5. Tax Matters Partner. The General Partner shall from
time to time designate a Tax Matters Partner pursuant to Section
6231(a)(7) of the Code. The initial Tax Matters Partner shall be the
general partner, HOGODO, L.L.C.
ARTICLE X
MISCELLANEOUS
10.1. Amendments. This Agreement may be amended from time to
time upon the written consent of all of the Partners.
10.2. Notices. All notices to the Partnership or any Partner
under this Agreement shall be in writing, duly signed by the party
giving such notice, and transmitted postage prepaid by first class
certified mail, return receipt requested, to such Partner's address set
forth on Schedule A of this Agreement, or to any such other address as
may hereafter be designated by a Partner upon giving notice thereof to
the Partnership. All notices shall be deemed given when dispatched.
10.3. No Delivery of Certificates. The General Partner is
not required to deliver copies of any Certificate of Limited Partnership
or amendment or cancellations thereof to the Limited Partners.
10.4. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware
applicable in the case of agreements made and to be performed entirely
within such State.
10.5. Counterparts. This Agreement and any consents required
hereunder may be executed in counterparts, all of which, taken together,
shall be deemed one original.
(Page 21 of 23 Pages)
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IN WITNESS WHEREOF, the General Partner and the Limited
Partner have caused this document to be executed in their names as of
the day and year first above written.
HOGODO, L.L.C., General
Partner
By: MARUJUPU, L.L.C., Manager
By: /s/ Kathryn N. McCarthy
-------------------------
Name: Kathryn M. McCarthy
Title: President
/s/ Ruth S. Holmberg
- -----------------------------
Ruth S. Holmberg, Limited
Partner
(Page 22 of 23 Pages)
<PAGE>
General Limited
Capital Partner Partner
Partner Address Contribution Units Units
HOGODO, L.L.C. c/o Marujupu 10,100 shares of 404 -0-
Room 1031 New York Times
229 West 43rd St. Co. stock
New York, NY 10036
Ruth S. Holmberg c/o Marujupu 650,000 shares -0- 26,000
Room 1031 of New York
229 West 43rd St. Times Co.
New York, NY 10036 stock
Total Units: 404 26,000
(Page 23 of 23 Pages)
<PAGE>
