<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 21, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE NEW YORK TIMES COMPANY
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 13-1102020
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
</TABLE>
------------------------
229 WEST 43D STREET
NEW YORK, N.Y. 10036
(212) 556-1234
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
------------------------
SOLOMON B. WATSON IV
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
THE NEW YORK TIMES COMPANY
229 WEST 43D STREET
NEW YORK, N.Y. 10036
(212) 556-1234
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
<TABLE>
<S> <C>
COPIES TO:
SAMUEL S. FRIEDMAN ROBERT S. RISOLEO
MORGAN, LEWIS & BOCKIUS LLP SULLIVAN & CROMWELL
101 PARK AVENUE 125 BROAD STREET
NEW YORK, N.Y. 10178 NEW YORK, N.Y. 10004
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for any offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1)(2) UNIT(3)(4) PRICE(3)(4) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities.................................. $300,000,000 100% $300,000,000 $88,500
</TABLE>
(1) In United States dollars or the equivalent thereof in one or more foreign
currencies or currency units.
(2) Or, if any Debt Securities are issued at original issue discount, such
greater amount as may result as the initial offering price aggregating
$300,000,000.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) Plus accrued interest, if any.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 21, 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
$300,000,000
THE NEW YORK TIMES COMPANY
DEBT SECURITIES
------------------
The New York Times Company (the "Company") may offer from time to time its
unsecured debt securities consisting of notes, debentures or other evidences of
indebtedness (the "Debt Securities") at an aggregate initial offering price of
not more than $300,000,000 or, if applicable, the equivalent thereof in one or
more foreign currencies or currency units. The Debt Securities may be offered as
separate series in amounts, at prices and on terms to be determined in light of
market conditions at the time of sale and set forth in a Prospectus Supplement
or Prospectus Supplements.
The terms of each series of Debt Securities, including, where applicable,
the specific designation, aggregate principal amount, authorized denominations,
maturity, rate or rates and time or times of payment of any interest, any terms
for optional or mandatory redemption or payment of additional amounts or any
sinking fund provisions, any initial public offering price, the proceeds to the
Company and any other specific terms in connection with the offering and sale of
such series will be set forth in a Prospectus Supplement or Prospectus
Supplements. Debt Securities may be issued with amounts payable in respect of
principal of or any premium or interest on the Debt Securities determined by
reference to the value, rate or price of one or more specified indices.
The Debt Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. See "Plan
of Distribution". If any agents of the Company or any underwriters are involved
in the sale of any Debt Securities in respect of which this Prospectus is being
delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is August 21, 1998
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREBY
IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith, files reports, and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as the following Regional Offices
of the Commission: Midwest Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511, and Northeast Regional Office, Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at the prescribed rates. The Commission maintains a Web
site at http://www.sec.gov containing reports, proxy and information statements
and other information regarding registrants, including the Company, that file
electronically with the Commission. The Company's Class A Common Stock is listed
on The New York Stock Exchange ("NYSE") under the symbol "NYT". Reports, proxy
statements and other information concerning the Company may also be inspected at
the offices of the NYSE, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 28, 1997; and
2. The Company's Quarterly Reports on Form 10-Q for the periods ended March
29, 1998 and June 28, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities registered hereunder shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the purposes hereof to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part hereof.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated by reference in this Prospectus
(without exhibits other than exhibits specifically incorporated by reference).
Requests for such copies may be directed to The New York Times Company, 229 West
43d Street, New York, New York 10036, Attention: Corporate Secretary, (212)
556-1234.
2
<PAGE>
THE COMPANY
The Company is a diversified media company including newspapers, magazines,
television and radio stations, electronic information and publishing and forest
products investments.
The Company currently classifies its business into the following segments:
Newspapers: THE NEW YORK TIMES ("THE TIMES"); THE BOSTON GLOBE, a daily
newspaper, and the BOSTON SUNDAY GLOBE; 18 other daily and three non-daily
newspapers in Alabama, California, Florida, Louisiana, North Carolina and South
Carolina; newspaper distributors in the New York City and Boston metropolitan
areas; various newspaper on-line products; news, photo and graphics services and
news and features syndication; TIMESFAX; THE NEW YORK TIMES INDEX; and licensing
of electronic data bases and microform, CD-ROM products and the trademarks and
copyrights of THE TIMES and THE GLOBE.
Magazines: GOLF DIGEST, GOLF WORLD AND GOLF SHOP OPERATIONS.
Broadcasting: television stations WTKR-TV in Norfolk, Virginia; WREG-TV in
Memphis, Tennessee; KFOR-TV in Oklahoma City, Oklahoma; WNEP-TV in
Wilkes-Barre/Scranton, Pennsylvania; WHO-TV in Des Moines, Iowa; WHNT-TV in
Huntsville, Alabama; WQAD-TV in Moline, Illinois; and KFSM-TV in Fort Smith,
Arkansas; and radio stations WQXR (FM) and WQEW (AM) in New York City.
Forest Products Investments and Other Joint Ventures: Minority equity
interests in a Canadian newsprint company and a supercalendered paper
manufacturing partnership in Maine, and a one-half interest in the INTERNATIONAL
HERALD TRIBUNE.
The Company was incorporated on August 26, 1896, under the laws of the State
of New York. Its executive offices are located at 229 West 43d Street, New York,
N.Y., 10036, and its telephone number is (212) 556-1234.
USE OF PROCEEDS
The Company currently intends to use the net proceeds from the sale of any
Debt Securities for general corporate purposes, which may include the reduction
of indebtedness, possible acquisitions and such other purposes as may be stated
in any Prospectus Supplement. Pending such use, the net proceeds may be
temporarily invested. The precise amounts and timing of the application of
proceeds will depend upon the funding requirements of the Company and its
subsidiaries and the availability of other funds.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
FISCAL YEAR(2)
-----------------------------------------------------
<S> <C> <C> <C> <C> <C>
1997 1996 1995 1994 1993
--------- --------- --------- --------- ---------
Ratio of Earnings to Fixed Charges(l).............................. 7.96 3.39 4.44 4.80 3.54
<CAPTION>
FISCAL QUARTER ENDED
------------------------
<S> <C> <C>
JUNE 28, JUNE 29,
1998 1997
----------- -----------
Ratio of Earnings to Fixed Charges(l).............................. 9.91 7.77
</TABLE>
- ------------------------
(1) The ratio of earnings to fixed charges has been computed by dividing
earnings and fixed charges, excluding capitalized interest, by fixed
charges. For purposes of computing the ratio, "earnings" consist of income
before income taxes and income from joint ventures, adjusted for distributed
earnings of less-than-fifty-percent-owned affiliates. "Fixed charges"
represent interest expense, amortization of discounts or premiums relating
to any indebtedness whether expensed or capitalized, as well as such portion
of rental expense as can be demonstrated to be representative of the
interest factor.
(2) For 1993-1995, the Company's fiscal year was the calendar year. In 1996 and
for subsequent years the Company changed its fiscal year-end to the last
Sunday in December.
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Securities are to be issued under an Indenture dated as of March 29,
1995, between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"), as supplemented by an Indenture Supplement, dated as of August 21,
1998 (such Indenture, as supplemented, the "Indenture"). A copy of the Indenture
is filed as an exhibit to the Registration Statement of which this Prospectus is
a part. The Securities may be issued from time to time in one or more series.
The particular terms of each series, or of Securities forming a part of a
series, which are offered by a Prospectus Supplement will be described in such
Prospectus Supplement.
The following summary of certain provisions of the Indenture does not
purport to be complete and is subject, and is qualified in its entirety by
reference, to all the provisions of the Indenture, including the definitions
therein of certain terms, and, with respect to any particular Securities, to the
description of the terms thereof included in the Prospectus Supplement relating
thereto. Wherever particular Sections or defined terms of the Indenture are
referred to herein or in a Prospectus Supplement, such Sections or defined terms
are incorporated by reference herein or therein, as the case may be.
The term "Securities", as used under this caption, refers to all Securities
issued under the Indenture after July 31, 1998 and includes the Debt Securities.
GENERAL
The Indenture provides that Securities in separate series may be issued
thereunder from time to time without limitation as to aggregate principal
amount. The Company may specify a maximum aggregate principal amount for the
Securities of any series. (Section 301) The Securities are to have such terms
and provisions which are not inconsistent with the Indenture, including as to
maturity, principal and interest, as the Company may determine. The Securities
will be unsecured unsubordinated obligations of the Company and will rank on a
parity with all other unsecured and unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement will set forth the price or prices at
which the Securities to be offered will be issued and will describe the
following terms of such Securities: (1) the title of such Securities; (2) any
limit on the aggregate principal amount of such Securities or the series of
which they are a part; (3) the person to whom the interest on a Security of any
series will be payable if not the person in whose name that Security is
registered on the regular record date; (4) the date or dates on which the
principal of any of such Securities will be payable; (5) the rate or rates at
which any of such Securities will bear interest, if any, the date or dates from
which any such interest will accrue, the Interest Payment Dates on which any
such interest will be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date; (6) the place or places where the
principal of and any premium and interest on any of such Securities will be
payable; (7) the period or periods within which, the price or prices at which
and the terms and conditions on which any of such Securities may be redeemed, in
whole or in part, at the option of the Company; (8) the obligation, if any, of
the Company to redeem or purchase any of such Securities pursuant to any sinking
fund or analogous provision or at the option of the Holder thereof, and the
period or periods within which, the price or prices at which and the terms and
conditions on which any of such Securities will be redeemed or purchased, in
whole or in part, pursuant to any such obligation; (9) the denominations in
which any of such Securities will be issuable, if other than denominations of
$1,000 and any integral multiple thereof; (10) if the amount of principal of or
any premium or interest on any of such Securities may be determined with
reference to an index or pursuant to a formula, the manner in which such amounts
will be determined; (11) if other than the currency of the United States of
America, the currency, currencies or currency units in which the principal of or
any premium or interest on any of such Securities will be payable (and the
manner in which the equivalent of the principal amount thereof in the currency
of the United States of America is to be determined for any purpose, including
for the purpose of determining the principal amount deemed to be Outstanding at
any time); (12) if the principal of or any premium or interest on any of such
Securities is to be payable, at the election of the Company or
4
<PAGE>
the Holder thereof, in one or more currencies or currency units other than those
in which such Securities are stated to be payable, the currency, currencies or
currency units in which payment of any such amount as to which such election is
made will be payable, the periods within which and the terms and conditions upon
which such election is to be made and the amount so payable (or the manner in
which such amount is to be determined); (13) if other than the entire principal
amount thereof, the portion of the principal amount of any of such Securities
which will be payable upon declaration of acceleration of the Maturity thereof;
(14) if the principal amount payable at the Stated Maturity of any of such
Securities will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which will be deemed to be such principal amount as
of any such date for any purpose, including the principal amount thereof which
will be due and payable upon any Maturity other than the Stated Maturity or
which will be deemed to be outstanding as of any such date (or, in any such
case, the manner in which such deemed principal amount is to be determined);
(15) if applicable, that such Securities, in whole or any specified part, are
defeasible pursuant to the provisions of the Indenture described under
"Defeasance and Covenant Defeasance-Defeasance and Discharge" or "Defeasance and
Covenant Defeasance-Covenant Defeasance", or under both such captions; (16)
whether any of such Securities will be issuable in whole or in part in the form
of one or more Global Securities and, if so, the respective Depositaries for
such Global Securities, the form of any legend or legends to be borne by any
such Global Security in addition to or in lieu of the legend referred to under
"Form, Exchange and Transfer-Global Securities" and, if different from those
described under such caption, any circumstances under which any such Global
Security may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in the
names of Persons other than the Depositary for such Global Security or its
nominee; (17) any addition to or change in the Events of Default applicable to
any of such Securities and any change in the right of the Trustee or the Holders
to declare the principal amount of any of such Securities due and payable; (18)
any addition to or change in the covenants in the Indenture described under
"Covenants" applicable to any of such Securities; and (19) any other terms of
such Securities not inconsistent with the provisions of the Indenture. (Section
301)
Securities, including Original Issue Discount Securities, may be sold at a
substantial discount below their principal amount. Certain special United States
federal income tax considerations (if any) applicable to Securities sold at an
original issue discount may be described in the applicable Prospectus
Supplement. In addition, certain special United States federal income tax or
other considerations (if any) applicable to any Securities which are denominated
in a currency or currency unit other than United States dollars may be described
in the applicable Prospectus Supplement.
The Indenture does not contain any provisions that would provide protection
to Holders of any Securities against a sudden and dramatic decline in credit
quality of the Company resulting from any takeover, recapitalization or similar
restructuring or from other highly leveraged transactions.
FORM, EXCHANGE AND TRANSFER
The Securities of each series will be issuable only in fully registered
form, without coupons, and, unless otherwise specified in the applicable
Prospectus Supplement, only in denominations of $1,000 and integral multiples
thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Securities of each series will be
exchangeable for other Securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount. (Section 305)
Subject to the term of the Indenture and the limitations applicable to
Global Securities, Securities may be presented for exchange as provided above or
for registration of transfer (duly endorsed or with a written instrument of
transfer endorsed thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by the Company for such
purpose. No service charge will be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a
5
<PAGE>
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Such transfer or exchange will be effected upon the
Security Registrar or such transfer agent, as the case may be, being satisfied
with the documents of title and identity of the person making the request. The
Company has appointed the Trustee as Security Registrar. Any transfer agent (in
addition to the Security Registrar) initially designated by the Company for any
Securities will be named in the applicable Prospectus Supplement. (Section 305)
The Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for the Securities of each
series. (Section 1002)
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company will not be required to (i) issue, register
the transfer of or exchange any Security of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any such
Security that may be selected for redemption and ending at the close of business
on the day of such mailing or (ii) register the transfer of or exchange any
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any such Security being redeemed in part. (Section 305)
GLOBAL SECURITIES
Some or all of the Securities of any series may be represented, in whole or
in part, by one or more Global Securities which will have an aggregate principal
amount equal to that of the Securities represented thereby. Each Global Security
will be registered in the name of a Depositary or a nominee thereof identified
in the applicable Prospectus Supplement, will be deposited with such Depositary
or nominee or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any such other matters as may be provided for pursuant to the Indenture.
Notwithstanding any provision of the Indenture or any Security described
herein, no Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such Global
Security or any nominee of such Depositary unless (i) the Depositary has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or has ceased to be qualified to act as such as
required by the Indenture, (ii) there shall have occurred and be continuing an
Event of Default with respect to the Securities represented by such Global
Security or (iii) there shall exist such circumstances, if any, in addition to
or in lieu of those described above as may be described in the applicable
Prospectus Supplement. All securities issued in exchange for a Global Security
or any portion thereof will be registered in such names as the Depositary may
direct. (Sections 204 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Securities
represented thereby for all purposes under the Securities and the Indenture.
Except in the limited circumstances referred to above, owners of beneficial
interests in a Global Security will not be entitled to have such Global Security
or any Securities represented thereby registered in their names, will not
receive or be entitled to receive physical delivery of certificated Securities
in exchange therefor and will not be considered to be the owners or Holders of
such Global Security or any Securities represented thereby for any purpose under
the Securities or the Indenture. All payments of principal of and any premium
and interest on a Global Security will be made to the Depositary or its nominee,
as the case may be, as the Holder thereof. The laws of some jurisdictions
require that certain purchasers of securities take physical delivery of such
securities in definitive form. These laws may impair the ability to transfer
beneficial interests in a Global Security.
6
<PAGE>
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of a Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Securities represented by the Global Security to
the accounts of its participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by the Depositary (with
respect to participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and others matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of the Company, the Trustee or any agent of
the Company or the Trustee will have any responsibility or liability for any
aspect of the Depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Security on any Interest Payment Date will be made to the
Person in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement,
the corporate trust office of the Trustee in The City of New York will be
designated as the Company's sole Paying Agent for payments with respect to
Securities of each series. Any other Paying Agents initially designated by the
Company for the Securities of a particular series will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the Office through which any Paying Agent acts, except that
the Company will be required to maintain a Paying Agent in each Place of Payment
for the Securities of a particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent or the Trustee for the
payment of the principal of or any premium or interest on any Security which
remain unclaimed at the end of two years after such principal, premium or
interest has become due and payable will be repaid to the Company, and the
Holder of such Security thereafter may, as an unsecured creditor, look only to
the Company for payment thereof, and all liability of the Company, the Paying
Agent and the Trustee with respect thereto shall thereupon cease. (Section 1003)
RESTRICTIVE COVENANTS
LIMITATIONS ON LIENS.
The Indenture provides that the Company may not, nor may it permit any
Significant Subsidiary to, issue, assume or guarantee any indebtedness for money
borrowed (herein referred to as "Debt") if such Debt is secured by a Lien upon
any Principal Property or on any shares of stock or indebtedness of any
Significant Subsidiary (whether such Principal Property, shares of stock or
indebtedness is owned at the date of the Indenture or thereafter acquired)
without in any such case effectively providing that the Debt Securities of any
series Outstanding (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Significant Subsidiary not
subordinated to the
7
<PAGE>
Debt Securities, subject to applicable priority of payment) shall be secured
equally and ratably with or, at the option of the Company, prior to such Debt,
except that the foregoing restriction will not apply to (i) Liens existing on
the date of the Indenture or, as to Securities of any series, on the first date
of issue of any Security of such series; (ii) Liens on property, shares of stock
or indebtedness of or guaranteed by any corporation existing at the time such
corporation becomes a Significant Subsidiary, PROVIDED, HOWEVER, that such Lien
is not created, incurred or assumed in connection with, or in contemplation of
such corporation becoming a Significant Subsidiary and does not extend to any
other Principal Property; (iii) Liens on property existing at the time of
acquisition thereof, or Liens on property which secure the payment of the
purchase price of such property, or Liens on property which secure Debt incurred
or guaranteed for the purpose of financing the purchase price of such property
or the construction of such property (including Liens on existing property which
secure debt financing for improvements to such existing property), which Debt is
incurred or guaranteed within 180 days after such acquisition or completion of
such construction or commencement of full operation of such property; (iv) Liens
securing Debt owing by any Significant Subsidiary to the Company or a
wholly-owned Subsidiary; (v) Liens on property of a corporation existing at the
time such corporation is merged into or consolidated with the Company or a
Significant Subsidiary or at the time of a purchase, lease or other acquisition
of the properties of a corporation or other Person as an entirety or
substantially as an entirety by the Company or a Significant Subsidiary,
PROVIDED, HOWEVER, that such Lien is not created, incurred or assumed in
connection with, or in contemplation of, such merger, consolidation, purchase,
lease or other acquisition and does not extend to any other Principal Property;
(vi) Liens in favor of the United States of America or any State thereof or any
agency, instrumentality or political subdivision thereof, or in favor of any
other country, or any political subdivision thereof, to secure progress, advance
or other payments pursuant to any contract with any such entity or any statute
of the United States of America or any State thereof or any agency,
instrumentality or political subdivision thereof; or (vii) any extension,
renewal or replacement (or successive extensions, renewals or replacements), in
whole or in part, of any Lien referred to in the foregoing clauses (i) to (vi),
inclusive, PROVIDED, HOWEVER, that such extension, renewal or replacement Lien
is limited to all or a part of the same property (plus improvements thereon)
that secured the Lien extended, renewed or replaced. Notwithstanding the
foregoing, the Company or the Company and one or more Significant Subsidiaries
may, without securing the Debt Securities, issue, assume or guarantee secured
Debt which would otherwise be subject to the foregoing restrictions, provided
that after giving effect thereto the aggregate amount of such Debt then
outstanding (not including secured Debt permitted under the foregoing
exceptions) at such time does not exceed 10% of the shareholders' equity of the
Company and its consolidated subsidiaries as shown on the consolidated financial
statements of the Company as of the end of the fiscal year next preceding the
date of determination. (Section 1008)
LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Significant Subsidiary to,
enter into any arrangement with any bank, insurance company or other lender or
investor (not including the Company or any Significant Subsidiary), or to which
any such lender or investor is a party, providing for the leasing by the Company
or a Significant Subsidiary for a period, including renewals, in excess of three
years of any Principal Property that has been owned by the Company or a
Significant Subsidiary for more than six months and that has been or is to be
sold or transferred by the Company or a Significant Subsidiary to such lender or
investor or to any person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (a "Sale and
Leaseback Transaction") unless either (i) the Company or such Significant
Subsidiary would be entitled to issue, assume or guarantee Debt secured by the
property involved at least equal in amount to the Attributable Debt (as defined)
in respect of such transaction without equally and ratably securing the Debt
Securities of any series Outstanding which are entitled to the benefits of such
provision of the Indenture, provided that such Attributable Debt shall thereupon
be deemed to be Debt subject to the provisions of the "Limitations on Liens"
covenant, or (ii) an amount equal to such Attributable Debt is applied to the
retirement of Debt of the Company or a
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Significant Subsidiary having a remaining maturity of one year or more and which
is not subordinated to the Debt Securities of any series Outstanding. (Section
1009)
CERTAIN DEFINITIONS.
Unless otherwise specified in the Prospectus Supplement respecting any
particular Securities, the following terms shall have the following meaning:
"ATTRIBUTABLE DEBT" means as to any particular lease under which any Person
is at the time liable and at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining primary term thereof (or any renewal terms
for which the lease may be extended at the option of the lessor), discounted
from the respective due dates thereof to such date at a rate per annum equal to
the prevailing market interest rate, at the time the lease was entered into, on
United States Treasury obligations having a maturity substantially the same as
the average term of such lease plus 3%. The net amount of rent required to be
paid under any such lease for any such period will be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease that is
terminable by the lessee upon the payment of a penalty, such net amount will
also include the amount of such penalty, but no rent will be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated. In the case of any lease under which the amount of rent is
indeterminate (e.g., where rent is based on sales or profits), the net amount of
rent required to be paid per year for the remaining term thereof will be deemed
to be the amount of rent paid during the fiscal year immediately preceding the
date as of which the amount thereof is to be determined.
"CONSOLIDATED NET TANGIBLE ASSETS" means the aggregate amount of assets
less (a) all current liabilities and (b) all goodwill, trademarks, patents,
unamortized debt discount and expense, organization or developmental expenses,
and other like intangibles, all as set forth on the most recent consolidated
balance sheet of the Company prepared in accordance with generally accepted
accounting principles.
"LIEN" means any mortgage, lien, pledge, charge, security interest or other
similar encumbrance.
"PRINCIPAL PROPERTY" means any land, building, machinery or equipment, or
leasehold interests and improvements in respect of the foregoing owned by the
Company or a Significant Subsidiary, which would be reflected on a consolidated
balance sheet of the Company and its Subsidiaries prepared in accordance with
generally accepted accounting principles and which on the date as of which the
determination is being made exceeds five percent of the Consolidated Net
Tangible Assets, but excluding all such tangible property located outside the
United States of America and excluding any property which, in the opinion of the
Board of Directors set forth in a Board Resolution, is not of material
importance to the total business conducted by the Company and its Subsidiaries,
taken as a whole.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that in accordance with
generally accepted accounting principles is consolidated with the Company in the
Company's consolidated financial statements and that generated seven percent or
more of the revenues or held seven percent or more of the assets of the Company
and its consolidated Subsidiaries for or at the end of the most recently
completed fiscal year of the Company, for which an Annual Report on Form 10-K or
proxy statement of the Company containing audited financial results has been
filed with the Commission.
"SUBSIDIARY" means any corporation of which more than 50% of the
outstanding voting stock shall at the time be owned by the Company or by the
Company and one or more Subsidiaries or by one or more Subsidiaries. (Section
101)
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CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holder of any Outstanding
Securities, may consolidate with or merge into, or convey, transfer or lease its
properties and assets substantially as an entirety to, any Person, and may
permit any Person to merge into, or convey, transfer or lease its properties and
assets substantially as an entirety to, the Company, PROVIDED (i) that any
successor Person must be a corporation, partnership, limited liability company,
trust or other entity organized and validly existing under the laws of any
domestic jurisdiction and must expressly assume by an indenture supplement the
Company's obligations on the Securities and under the Indenture, (ii) that after
giving effect to the transaction, no Event of Default shall have occurred and be
continuing and (iii) that certain other conditions are met. For example, if, as
a result of the transaction, property of the Company would become subject to a
Lien that would not be permitted under the limitation on Liens described above
under "Restrictive Covenants," the Company would be required to secure the
Securities equally and ratably with (or prior to) the indebtedness secured by
such Lien. (Section 801)
EVENTS OF DEFAULT
Unless otherwise specified in the Prospectus Supplement respecting any
particular Securities, each of the following shall constitute an Event of
Default under the Indenture with respect to Securities of any series: (a)
failure to pay principal of or any premium on any Security of that series when
due; (b) failure to pay any interest on any Securities of that series when due,
continued for 30 days; (c) failure to deposit any sinking fund payment, when
due, in respect of any Security of that series; (d) failure to perform any other
covenant of the Company in the Indenture (other than a covenant included in the
Indenture solely for the benefit of a series other than that series), continued
for 90 days after written notice has been given by the Trustee, or by the
Holders of at least 25% in principal amount of the Outstanding Securities of
that series, as provided in the Indenture; and (e) certain events in bankruptcy,
insolvency or reorganization. (Section 501)
If an Event of Default (other than an Event of Default described in clause
(e) above) with respect to the Securities of any series at the time Outstanding
shall occur and be continuing, either the Trustee or the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of that series by
notice as provided in the Indenture may declare the principal amount of the
Securities of that series (or, in the case of any Security that is an Original
Issue Discount Security or the principal amount of which is not then
determinable, such portion of the principal amount of such Security, or such
other amount in lieu of such principal amount, as may be specified in the terms
of such Security) to be due and payable immediately. If an Event of Default
described in clause (e) above with respect to the Securities of any series at
the time Outstanding shall occur, the principal amount of all the Securities of
that series (or, in the case of any such Original Issue Discount Security or
other Security, such specified amount) will automatically, and without any
action by the Trustee or any Holder, become immediately due and payable. After
any such acceleration, but before a judgment or decree based on acceleration,
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series may, under certain circumstances, rescind and annul
such acceleration if (i) the Company has paid or deposited with the Trustee a
sum sufficient to pay all overdue interest on all Securities of that series, the
principal and premium, if any, on any Securities of that series which have
become due otherwise than by such acceleration and any interest thereon at the
rate or rates prescriber therefor in such Securities, and certain fees of the
Trustee; and (ii) all Events of Default, other than the non-payment of
accelerated principal (or other specified amount), have been cured or waived as
provided in the Indenture. (Section 502) For information as to waiver of
defaults, see "-Modification and Waiver".
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable security or indemnity. (Section
603) Subject to such provisions for
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the giving of security or the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of that series.
(Section 512)
No Holder of a Security of any series will have any right to institute any
proceeding with respect to the Indenture, or for the appointment of a receiver
or a trustee, or for any other remedy thereunder, unless (i) such Holder has
previously given to the Trustee written notice of a continuing Event of Default
with respect to the Securities of that series, (ii) the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of that series have
made written request, and such Holder or Holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee and (iii) the
Trustee has failed to institute such proceeding, and has not received from the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request, within 60
days after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Security for the
enforcement of payment of the principal of or any premium or interest on such
Security on or after the applicable due date specified in such Security.
(Section 508)
The Company will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not the Company, to their knowledge,
is in default in the performance or observance of any of the terms, provisions
and conditions of the Indenture and, if so, specifying all such known defaults.
(Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
modification or amendment, PROVIDED, HOWEVER, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal of, or any
instalment of principal of, or interest on, any Security, (b) reduce the
principal amount of, or any premium or interest on, any Security, (c) reduce the
amount of principal of an Original Issue Discount Security or any other Security
payable upon acceleration of the Maturity thereof, (d) change the place or
currency of payment of principal of, or any premium or interest on, any
Security, (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security, (f) reduce the percentage in
principal amount of Outstanding Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indenture, (g) reduce
the percentage in principal amount of Outstanding Securities of any series
necessary for waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults or (h) modify such provisions with respect to
modification and waiver. (Section 902)
The Holders of a majority in principal amount of the Outstanding Securities
of any series may waive compliance by the Company with certain restrictive
provisions of the Indenture. (Section 1010) The Holders of a majority in
principal amount of the Outstanding Securities of any series may waive any past
default under the Indenture, except a default in the payment of principal,
premium or interest and certain covenants and provisions of the Indenture which
cannot be amended without the consent of the Holder of each Outstanding Security
of such series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given or taken any
direction, notice, consent, waiver or other action under the Indenture as of any
date, (i) the principal amount of an Original Issue Discount Security that will
be deemed to be Outstanding will be the amount of the principal thereof that
would be due and payable as of such date upon acceleration of the Maturity
thereof to such date, (ii) if, as of such date, the principal amount payable at
the Stated Maturity of a Security is not determinable (for example, because it
is based on an index), the principal amount of such Security deemed to be
Outstanding as of such date will be an
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amount determined in the manner prescribed for such Security and (iii) the
principal amount of a Security denominated in one or more foreign currencies or
currency units that will be deemed to be Outstanding will be the U.S. dollar
equivalent, determined as of such date in the manner prescribed for such
Security, of the principal amount of such Security (or, in the case of a
Security described in clause (i) or (ii) above, of the amount described in such
clause). Certain Securities, including those for whose payment or redemption
money has been deposited or set aside in trust for the Holders and those that
have been fully defeased pursuant to Section 1302, will not be deemed to be
Outstanding. (Section 101)
Except in certain limited circumstances, the Company will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give or take any direction,
notice, consent, waiver or other action under the Indenture, in the manner and
subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee also will be entitled to set a record date for action
by Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Securities of that series on that record date, whether or not such
Holders remain Holders after such record date. To be effective, such action must
be taken by Holders of the requisite principal amount of such Securities within
a specified period following the record date. For any particular record date,
this period will be 180 days or such other shorter period as may be specified by
the Company (or the Trustee, if it set the record date), and may be shortened or
lengthened (but not beyond 180 days) from time to time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302, relating to defeasance and discharge of indebtedness, or Section 1303,
relating to defeasance of certain restrictive covenants in the Indenture,
applied to the Securities of any series, or to any specified part of a series.
(Section 1301)
DEFEASANCE AND DISCHARGE. The Indenture provides that, upon the Company's
exercise of its option (if any) to have Section 1302 applied to any Securities,
the Company will be discharged from all its obligations with respect to such
Securities (except for certain obligations to exchange or register the transfer
of Securities, to replace stolen, lost or mutilated Securities, to maintain
paying agencies and to hold moneys for payment in trust) upon the deposit in
trust for the benefit of the Holders of such securities of money or U.S.
Government Obligations, or both, which, through the payment of principal and
interest in respect thereof in accordance with their terms, will provide money
in an amount sufficient to pay the principal of and any premium and interest on
such Securities on the respective Stated Maturities in accordance with the terms
of the Indenture and such Securities. Such defeasance or discharge may occur
only if, among other things, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or there has
been a change in tax law since the date of the Indenture, in either case to the
effect that Holders of such Securities will not recognize gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit,
defeasance and discharge were not to occur. (Sections 1302 and 1304)
DEFEASANCE OF CERTAIN COVENANTS. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Securities, the Company may omit to comply with certain restrictive covenants,
including those described under "Restrictive Covenants" and in the last sentence
under "Consolidation, Merger and Sale of Assets" and any that may be described
in the applicable Prospectus Supplement, and the occurrence of certain Events of
Default, which are described above in clause (d) (with respect to such
restrictive covenants) under "Events of Default" and any that may be described
in the applicable Prospectus Supplement, will be deemed not to be or result in
an Event of Default, in each case with respect to such Securities. The Company,
in order to exercise such option, will be required to deposit, in trust for the
benefit of the Holders of such Securities, money or U.S.
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Government Obligations, or both, which, through the payment of principal and
interest in respect thereof in accordance with their terms, will provide money
in an amount sufficient to pay the principal of and any premium and interest on
such Securities on the respective Stated Maturities or on redemption in
accordance with the terms of the Indenture and such Securities. The Company will
also be required, among other things, to deliver to the Trustee an Opinion of
Counsel to the effect that Holders of such Securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit and defeasance
of certain obligations and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Securities and such Securities were
declared due and payable because of the occurrence of any Event of Default, the
amount of money and U.S. Government Obligations so deposited in trust would be
sufficient to pay amounts due on such Securities at the time of their respective
Stated Maturities but may not be sufficient to pay amounts due on such
Securities upon any acceleration resulting from such Event of Default. In such
case, the Company would remain liable for such payments. (Sections 1303 and
1304)
NOTICES
Notices to Holders of Securities will be given by mail to the addresses of
such Holders as they may appear in the Security Register. (Sections 101 and 106)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Security is registered as the owner thereof
(whether or not such Security may be overdue) for the purpose of making payment
and for all other purposes. (Section 308)
GOVERNING LAW
The Indenture and the Securities will be governed by, and construed in
accordance with, the law of the State of New York. (Section 112)
REGARDING THE TRUSTEE
The Trustee is The Chase Manhattan Bank.
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FOREIGN CURRENCY RISKS
GENERAL
Debt Securities of a series may be denominated in such foreign currencies or
currency units as may be designated by the Company at the time of offering (the
"Foreign Currency Securities").
THE INFORMATION SET FORTH BELOW DOES NOT DESCRIBE ALL RISKS OF AN INVESTMENT
IN FOREIGN CURRENCY SECURITIES THAT RESULT FROM SUCH SECURITIES BEING
DENOMINATED IN A FOREIGN CURRENCY OR CURRENCY UNIT EITHER AS SUCH RISKS EXIST AT
THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME. ANY
ADDITIONAL MATERIAL FOREIGN CURRENCY RISKS PERTAINING TO A PARTICULAR DEBT
SECURITY DENOMINATED IN A FOREIGN CURRENCY WILL BE DISCLOSED IN THE PROSPECTUS
SUPPLEMENT REGARDING SUCH DEBT SECURITY. PROSPECTIVE PURCHASERS SHOULD CONSULT
THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT
IN FOREIGN CURRENCY SECURITIES. FOREIGN CURRENCY SECURITIES ARE NOT AN
APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO
FOREIGN CURRENCY TRANSACTIONS.
Unless otherwise indicated in an applicable Prospectus Supplement, a Foreign
Currency Security will not be sold in, or to a resident of, the country of the
Specified Currency (as defined below) in which such Security is denominated. The
information set forth below is by necessity incomplete and prospective
purchasers of Foreign Currency Securities should consult their own financial and
legal advisors with respect to any matters that may affect the purchase or
holding of a Foreign Currency Security or the receipt of payments of principal
of and any premium and interest on a Foreign Currency Security in a Specified
Currency.
EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Foreign Currency Securities entails significant risks that
are not associated with a similar investment in a security denominated in U.S.
dollars. Such risks include, without limitation, the possibility of significant
changes in the rate of exchange between the U.S. dollar and the currency or
currency unit designated by the Company at the time of offering (the "Specified
Currency") and the possibility of the imposition or modification of foreign
exchange controls by either the United States or foreign governments. Such risks
generally depend on economic and political events and the supply of and demand
for the relevant currencies over which the Company has no control. In recent
years, rates of exchange between the U.S. dollar and certain foreign currencies
have been highly volatile and such volatility may be expected in the future.
Fluctuations in any particular exchange rate that have occurred in the past are
not necessarily indicative, however, of fluctuations in the rate that may occur
during the term of any Foreign Currency Security. Depreciation of the Specified
Currency applicable to a Foreign Currency Security against the U.S. dollar would
result in a decrease in the U.S. dollar equivalent yield of such Security, in
the U.S. dollar-equivalent value of the principal repayable at Maturity of such
Security and, generally, in the U.S. dollar-equivalent market value of such
Security.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or prior to a Foreign Currency
Security's Maturity. Even if there are not exchange controls, it is possible
that the Specified Currency for any particular Foreign Currency Security would
not be available at such Security's Maturity due to other circumstances beyond
the control of the Company.
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JUDGMENTS
In the event an action based on Foreign Currency Securities were commenced
in a court of the United States, it is likely that such court would grant
judgment relating to such Securities only in U.S. dollars. It is not clear,
however, whether, in granting such judgment, the rate of conversion into U.S.
dollars would be determined with reference to the date of default, the date
judgment is rendered or some other date. Holders of Foreign Currency Securities
would bear the risk of exchange rate fluctuations between the time the amount of
the judgment is calculated and the time the Trustee converts U.S. dollars to the
Specified Currency for payment of the judgment.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to one or more underwriters for public
offering and sale by them or may sell Debt Securities to investors directly or
through agents (such offered Debt Securities, the "Offered Securities"). Any
such underwriter or agent involved in the offer and sale of the Offered
Securities will be named in an applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company also may, from time to time, authorize
underwriters acting as the Company's agents to offer and sell the Offered
Securities upon the terms and conditions as shall be set forth in any Prospectus
Supplement. In connection with the sale of Offered Securities, underwriters may
be deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Offered Securities for whom they may act as agent. Underwriters
may sell Offered Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions (which may be changed from time to time) from
the purchasers for whom they may act as agent.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, by one or more firms
("remarketing firms") acting as principals for their own accounts or as agents
for the Company. Any remarketing firm will be identified and the terms of its
agreement, if any, with the Company and its compensation will be described in
the Prospectus Supplement. Remarketing firms may be deemed to be underwriters in
connection with the Securities remarketed thereby.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in an applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Offered Securities may be
deemed to be underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the Offered Securities may be
deemed to be underwriting discounts and commissions, under the Act.
Underwriters, dealers and agents may be entitled, under agreements with the
Company, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Act, and to reimbursement by the
Company for certain expenses.
If so indicated in an applicable Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase Offered Securities from the Corporation at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the aggregate principal amount of Offered Securities
sold pursuant to Contracts shall be not less nor more than, the respective
amounts stated in such Prospectus Supplement. Institutions with whom Contracts,
when authorized, may
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be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Offered Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Offered Securities
are being sold to underwriters, the Company shall have sold to such underwriters
the total principal amount of the Offered Securities less the principal amount
thereof covered by Contracts. Agents and underwriters will have no
responsibility in respect of the delivery or performance of Contracts.
All Offered Securities will be a new issue of securities with no established
trading market. Any underwriters to whom Offered Securities are sold by the
Company for public offering and sale may make a market in such Offered
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any Offered Securities.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for the Company in the
ordinary course of business.
VALIDITY OF OFFERED SECURITIES
The validity of the securities offered by this Prospectus will be passed
upon for the Company by Solomon B. Watson IV, Senior Vice President and General
Counsel of the Company. Certain legal matters will be passed on for the Company
by Morgan, Lewis & Bockius LLP, New York, New York, and for the underwriters by
Sullivan & Cromwell, New York, New York.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this Prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended December 28, 1997 have been audited by Deloitte &
Touche LLP, independent auditors, as set forth in their report included therein
and incorporated herein by reference. Such financial statements and financial
statement schedule are incorporated herein by reference in reliance upon such
report given upon authority of such firm as experts in accounting and auditing.
16
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The fees and expenses to be paid in connection with the distribution of the
securities being registered hereby are estimated as follows:
<TABLE>
<S> <C>
Registration fee.............................................. $ 88,500
Legal fees and expenses....................................... 50,000*
Accounting fees and expenses.................................. 25,000*
Printing...................................................... 25,000*
Rating agency fees............................................ 100,000*
---------
Trustees fees................................................. 10,000*
Miscellaneous................................................. 10,000*
---------
Total......................................................... $ 308,500*
---------
---------
</TABLE>
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the New York Business Corporation Law (the "NYBCL"), the
Registrant has the power to indemnify certain persons, including its officers
and directors, under stated circumstances and subject to certain limitations in
connection with services performed in good faith for the Registrant.
Under the Registrant's by-laws, any person made or threatened to be made a
party to any civil or criminal action or proceeding by reason of the fact that
he or she or his or her testator or intestate is or was a director or officer of
the Registrant, or served any other corporation or entity of any type or kind,
domestic or foreign, in any capacity, at the request of the Registrant, shall be
indemnified against judgments, fines, amounts paid in settlement, taxes or
penalties and expenses, including attorneys' fees, to the full extent permitted
by law, provided that no indemnification may be made in any case if a judgment
or other final adjudication adverse to the director or officer establishes that
his or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and, in either case, were material to the cause of action
so adjudicated, or that he or she personally gained in fact a financial profit
or other advantage to which he or she was not legally entitled.
The Registrant's by-laws provide that such right to indemnification is not
intended to limit any right to indemnification to which any officer or director
would be entitled by law in the absence of such by-law provision, nor shall it
be deemed exclusive of any other rights such a person may have under law, any
provision of the Registrant's certificate of incorporation or by-laws, any
agreement approved by the Board of Directors, or a resolution of stockholders or
directors.
The Registrant maintains directors' and officers' liability insurance which
insures against liabilities that directors or officers of the Registrant may
incur in such capacities.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <C> <S>
1 -- Form of Underwriting Agreement (incorporated by reference to Exhibit 1 to the
registrant's Registration Statement on Form S-3 File No. 33-57403)
4.1 -- Form of Indenture between The New York Times Company and The Chase Manhattan Bank,
as Trustee (incorporated by reference to Exhibit 4 to the registrant's Registration
Statement on Form S-3 File No. 33-57403)
4.2 -- Form of Indenture Supplement between The New York Times Company and The Chase
Manhattan Bank, as Trustee
5 -- Opinion of Solomon B. Watson IV as to the legality of the securities being
registered
12 -- Statement regarding computation of ratio of earnings to fixed charges
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Solomon B. Watson IV (included in the opinion filed as Exhibit 5)
24 -- Powers of Attorney (included on signature page hereof)
25 -- Statement on Form T-1 of the Eligibility of The Chase Manhattan Bank, as Trustee
</TABLE>
ITEM 17. UNDERTAKINGS.
(A) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) 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;
PROVIDED, HOWEVER that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(B) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-2
<PAGE>
(C) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 21st day of
August, 1998.
THE NEW YORK TIMES COMPANY
BY /S/ RHONDA L. BRAUER
-----------------------------------------
Name: Rhonda L. Brauer
Title: Assistant Secretary
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Solomon B. Watson IV, Laura J. Corwin and Rhonda L. Brauer, and each acting
alone, his/her and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him/her and in his/her name, place and
stead, in any and all capacities, to sign any or all amendments or supplements
to this Registration Statement, whether pre-effective or post-effective, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing necessary or appropriate to be done with respect to this
Registration Statement or any amendments or supplements thereto in the premises,
as fully to all intents and purposes as he/she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURES TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ ARTHUR O. SULZBERGER, Chairman of the Board
JR. (principal executive
- ------------------------------ officer) August 21, 1998
Arthur O. Sulzberger, Jr.
Senior Vice President and
/s/ JOHN M. O'BRIEN Chief Financial Officer
- ------------------------------ (principal financial August 21, 1998
John M. O'Brien officer)
Vice President and
/s/ STUART STOLLER Corporate Controller
- ------------------------------ (principal accounting August 21, 1998
Stuart Stoller officer)
/s/ RUSSELL T. LEWIS President and Chief
- ------------------------------ Executive Officer, August 21, 1998
Russell T. Lewis Director
/s/ MICHAEL GOLDEN Vice Chairman and Senior
- ------------------------------ Vice President, Director August 21, 1998
Michael Golden
/s/ JOHN F. AKERS Director
- ------------------------------ August 21, 1998
John F. Akers
II-4
<PAGE>
SIGNATURES TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ BRENDA C. BARNES Director
- ------------------------------ August 21, 1998
Brenda C. Barnes
/s/ RICHARD L. GELB Director
- ------------------------------ August 21, 1998
Richard L. Gelb
/s/ A. LEON HIGGINBOTHAM, Director
JR.
- ------------------------------ August 21, 1998
A. Leon Higginbotham, Jr.
/s/ ROBERT A. LAWRENCE Director
- ------------------------------ August 21, 1998
Robert A. Lawrence
/s/ ELLEN R. MARRAM Director
- ------------------------------ August 21, 1998
Ellen R. Marram
/s/ CHARLES H. PRICE II Director
- ------------------------------ August 21, 1998
Charles H. Price II
/s/ GEORGE L. SHINN Director
- ------------------------------ August 21, 1998
George L. Shinn
/s/ DONALD M. STEWART Director
- ------------------------------ August 21, 1998
Donald M. Stewart
/s/ ARTHUR OCHS SULZBERGER Director
- ------------------------------ August 21, 1998
Arthur Ochs Sulzberger
/s/ JUDITH P. SULZBERGER Director
- ------------------------------ August 21, 1998
Judith P. Sulzberger
/s/ WILLIAM O. TAYLOR Director
- ------------------------------ August 21, 1998
William O. Taylor
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <C> <S>
1 -- Form of Underwriting Agreement (incorporated by reference to Exhibit 1 to the
registrant's Registration Statement on Form S-3 File No. 33-57403)
4.1 -- Form of Indenture between The New York Times Company and The Chase Manhattan
Bank, as Trustee (incorporated by reference to Exhibit 4 to the registrant's
Registration Statement on Form S-3 File No. 33-57403)
4.2 -- Form of Indenture Supplement between The New York Times Company and The Chase
Manhattan Bank, as Trustee
5 -- Opinion of Solomon B. Watson IV as to the legality of the securities being
registered
12 -- Statement regarding computation of ratio of earnings to fixed charges
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Solomon B. Watson IV (included in the opinion filed as Exhibit 5)
24 -- Powers of Attorney (included on signature page hereof)
25 -- Statement on Form T-1 of the Eligibility of The Chase Manhattan Bank, as Trustee
</TABLE>
II-6
<PAGE>
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of August 21, 1998, between
The New York Times Company, a company duly organized and existing under the
laws of the State of New York (the "Company"), having its principal office at
229 West 43d Street, New York, New York 10036, and The Chase Manhattan Bank
(formerly known as Chemical Bank), a corporation duly organized and existing
under the laws of the State of New York, as Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company heretofore executed and delivered to the Trustee
an Indenture dated as of March 29, 1995 (the "Original Indenture", and as it may
from time to time be supplemented or amended by one or more additional
indentures supplemental thereto entered into pursuant to the applicable
provisions thereof, being hereinafter called the "Indenture"; all capitalized
terms used herein which are not otherwise defined herein have the meanings
ascribed thereto in the Indenture), providing for the issuance of the Company's
unsecured debentures, notes or other evidences of indebtedness (the
"Securities"); and
WHEREAS, Section 901(5) of the Indenture provides, inter alia, that
the Company and the Trustee may amend certain provisions of the Indenture or the
Securities without the consent of any of the Holders, provided that any such
amendment does not apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision; and
WHEREAS, the Company desires to amend certain provisions of the
Indenture, as set forth in Article I hereof; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid agreement of the Company, in accordance with its terms, have
been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that,
for and in consideration of the premises, the Company agrees with the Trustee as
follows:
<PAGE>
ARTICLE I
Amendments of Indenture
-----------------------
Section 1.01 Effect. The amendments set forth in this Article I shall
apply only in respect of Securities of any series created after July 31, 1998
pursuant to the Indenture.
Section 1.02 Definitions. Subject to Section 1.01 hereof, Section
101 of the Indenture is hereby amended by deleting the definitions of the
following terms in their entirety and by substituting therefor new definitions
of such terms reading as follows:
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Significant Subsidiary" means any Subsidiary that in accordance with
generally accepted accounting principles is consolidated with the Company in the
Company's consolidated financial statements and that generated seven percent or
more of the revenues or held seven percent or more of the assets of the Company
and its consolidated Subsidiaries for or at the end of the most recently
completed fiscal year of the Company, for which an Annual Report on Form 10-K or
proxy statement of the Company containing audited financial results has been
filed with the Commission.
Section 1.03 Events of Default. Subject to Section 1.01 hereof,
Section 501 of the Indenture is hereby amended by deleting in its entirety the
Event of Default set forth in subsection (5) thereof and by substituting
therefor the phrase "Intentionally Omitted."
Section 1.04 Amendment to Section 1303. Subject to Section 1.01
hereof, Section 1303 of the Indenture is hereby amended by deleting from the
seventh line thereof the following: ", 501(5)".
ARTICLE II
Miscellaneous Provisions; Governing Law; Acceptance by Trustee
--------------------------------------------------------------
Section 2.01 Instruments to be Read Together. This First
Supplemental Indenture is an indenture supplemental to and in implementation of
the Indenture, and said Indenture and this First Supplemental Indenture shall
henceforth be read together.
Section 2.02 Confirmation. The Indenture as amended and supplemented
by this First Supplemental Indenture is in all respects confirmed and preserved.
2
<PAGE>
Section 2.03 Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 2.04 Effectiveness. The provisions of this First
Supplemental Indenture will take effect immediately upon its execution and
delivery by the Trustee in accordance with the provisions of Section 904 of the
Indenture, provided that the amendments set forth in this First Supplemental
Indenture shall apply only in respect of Securities of any series created after
July 31, 1998 pursuant to the Indenture.
Section 2.05 Governing Law. This First Supplemental Indenture shall
be construed in accordance with and governed by the laws of the State of New
York.
Section 2.06 Acceptance by Trustee. The Trustee accepts the
amendments of the Indenture effected by this First Supplemental Indenture and
agrees to execute the trusts created by the Indenture as hereby amended, but
only upon the terms and conditions set forth in the Indenture. The Trustee
assumes no responsibility for the correctness of the recitals contained
herein, which shall be taken as the statements of the Company. The Trustee
makes no representation and shall have no responsibility as to the validity
of this First Supplemental Indenture or the proper authorization or the due
execution hereof by the Company.
[signature page follows]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
THE NEW YORK TIMES COMPANY
[corporate seal]
By /s/ Ellen Taus
---------------------------------
Name: Ellen Taus
Title: Treasurer
ATTEST:
/s/ Rhonda L. Brauer
- --------------------------------
Name: Rhonda L. Brauer
Title: Assistant Secretary
THE CHASE MANHATTAN BANK, as Trustee
[corporate seal]
By /s/ R. Lorenzen
---------------------------------
Name: R. Lorenzen
Title: Senior Trust Officer
ATTEST:
/s/ L. O'Brien
- --------------------------------
Name: L. O'Brien
Title: Senior Trust Officer
4
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 11th day of August, 1998, before me personally appeared
Ellen Taus, the subscriber to me known, who, being by me duly sworn, did
depose and say that he or she is the Treasurer of The New York Times
Company, one of the corporations described in and which executed the foregoing
instrument; that he or she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he or she
signed his or her name thereto by like authority.
Acknowledged and sworn to before me on the date above written.
/s/ Kathleen Corey
----------------------
Notary Public
My commission expires:
KATHLEEN COREY
Notary Public, State of New York
No. 30-4916026
Qualified in New York County
Commission Expires Dec. 21, 1999
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 12th day of August, 1998, before me personally appeared
R. Lorenzen, the subscriber to me known, who, being by me duly sworn, did
depose and say that he or she is the Senior Trust Officer of The Chase
Manhattan Bank, one of the corporations described in and which executed
the foregoing instrument; that he or she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said corporation;
and that he or she signed his or her name thereto by like authority.
Acknowledged and sworn to before me on the date above written.
/s/ Emily Fayan
----------------------
Notary Public
My commission expires:
EMILY FAYAN
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate Filed in New York County
Commission Expires December 31, 1999
5
<PAGE>
Exhibit 5
August 21, 1998
The New York Times Company
229 West 43d Street
New York, New York 10036
Re: Registration Statement on Form S-3 relating
to $300 million in Debt Securities
-------------------------------------------
Ladies and Gentlemen:
As Senior Vice President and General Counsel for The New York Times
Company, a New York corporation (the "Company"), I am rendering this opinion as
to the legality of the $300,000,000 aggregate principal amount of the Company's
unsecured debt securities (the "Debt Securities") to be registered pursuant to
the above-captioned Registration Statement on Form S-3 (the "Registration
Statement") filed on the date hereof by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"), and the rules and regulations promulgated thereunder
(the "Rules"). Except as otherwise defined herein, capitalized terms are used
as defined in the Registration Statement.
In connection herewith, I have examined the originals or copies of
(i) the Registration Statement, (ii) the Indenture dated March 29, 1995 (the
"Indenture") between the Company and the Chase Manhattan Bank (formerly known
as Chemical Bank), as trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of August 21, 1998 (the "Indenture
Supplement"), pursuant to which the Debt Securities are to be issued from
time to time, (iii) the Certificate of Incorporation and By-laws of the
Company, as amended to date, and (iv) records of certain corporate
proceedings of the Company relating to, among other things, the Debt
Securities. In addition, I have made such other examinations of law and fact
as I considered necessary in order to form a basis for the opinion
hereinafter expressed.
<PAGE>
The New York Times Company
August 21, 1998
Page 2
In my examination of the aforesaid documents, I have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the documents, the authenticity of
all documents submitted to me as originals, the conformity to the original
documents of all documents submitted to me as certified, photostatic, reproduced
or conformed copies and the authenticity of all such documents.
In rendering the opinion set forth below, I have also assumed that (i)
the definitive terms of any Debt Security offered pursuant to a Prospectus
Supplement will have been established in accordance with the authorizing
resolutions of the Board of Directors of the Company and applicable law; (ii)
the Registration Statement, and any amendments thereto, will have become
effective; (iii) a Prospectus Supplement will have been filed with the
Commission describing the Debt Securities offered thereby; (iv) all Debt
Securities will be issued in compliance with applicable federal and state
securities laws; (v) each of the Indenture and the Indenture Supplement has been
duly executed and delivered by the Trustee and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended; and (vi) the Debt Securities
will have been duly created, executed, authenticated by the Trustee, issued and
delivered (a) against receipt of the consideration therefor approved by the
Company and (b) as provided in the Indenture as supplemented by the Indenture
Supplement.
Based upon and subject to the foregoing, I am of the opinion that the
Debt Securities, when so issued and delivered, will constitute legal, valid and
binding obligations of the Company and will be entitled to the benefits of the
Indenture as supplemented by the Indenture Supplement (subject to applicable
bankruptcy, insolvency, reorganization, receivership, arrangement, fraudulent
conveyance, moratorium or other similar laws affecting creditors' rights
generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law).
My opinion expressed above is limited to the laws of the State of New
York.
I hereby consent to the use of my name in the Registration Statement,
in the related prospectus as the same appears under the caption "Validity of
Offered Securities" and in any supplement to such prospectus, and to the use of
this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Solomon B. Watson IV
Solomon B. Watson IV
<PAGE>
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The New York Times Company:
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 30, 1998, appearing in the
Annual Report on Form 10-K of The New York Times Company for the year ended
December 28, 1997.
We also consent to the reference to us under the heading "Experts"
in such Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
August 21, 1998
<PAGE>
Exhibit 25
-----------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)______
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
The New York Times Company
(Exact name of obligor as specified in its charter)
New York 13-1102020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
229 West 43rd Street
New York, NY 10036
(Address of principal executive offices) (Zip Code)
------------------------------------
Debt Securities
(Title of the indenture securities)
---------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 10th day of August, 1998.
THE CHASE MANHATTAN BANK
By /s/ R. Lorenzen
-----------------------
/s/ R. Lorenzen
Senior Trust Officer
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin..................................................... $ 12,037
Interest-bearing balances ............................................ 4,054
Securities:.............................................................
Held to maturity securities............................................. 2,340
Available for sale securities........................................... 50,134
Federal funds sold and securities purchased under
agreements to resell.................................................. 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income .............. $127,958
Less: Allowance for loan and lease losses.............. 2,797
Less: Allocated transfer risk reserve ................. 0
-------
Loans and leases, net of unearned income,
allowance, and reserve ................................................ 125,161
Trading Assets........................................................... 61,820
Premises and fixed assets (including capitalized
leases)................................................................ 2,961
Other real estate owned.................................................. 347
Investments in unconsolidated subsidiaries and
associated companies................................................... 242
Customers' liability to this bank on acceptances
outstanding............................................................ 1,380
Intangible assets........................................................ 1,549
Other assets............................................................. 11,727
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TOTAL ASSETS............................................................. $298,734
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</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
Dollar Amounts
in Millions
<S> <C>
Deposits
In domestic offices..................................................... $ 96,682
Noninterest-bearing........................................ $ 38,074
Interest-bearing........................................... 58,608
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In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................................. 72,630
Noninterest-bearing....................................... $ 3,289
Interest-bearing.......................................... 69,341
Federal funds purchased and securities sold under agreements
to repurchase............................................................ 42,735
Demand notes issued to the U.S. Treasury ................................. 872
Trading liabilities....................................................... 45,545
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less........................... 4,454
With a remaining maturity of more than one year
through three years..................................................... 231
With a remaining maturity of more than three years...................... 106
Bank's liability on acceptances executed and outstanding.................. 1,380
Subordinated notes and debentures ........................................ 5,708
Other liabilities......................................................... 11,295
TOTAL LIABILITIES......................................................... 281,638
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EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock)................. 10,291
Undivided profits and capital reserves ................................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (1)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,096
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TOTAL LIABILITIES AND EQUITY CAPITAL ...................................... $298,734
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</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
5
