UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
THE NEW YORK TIMES COMPANY
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(Name of Issuer)
Class A Common Stock of $0.10 par value
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(Title of Class of Securities)
650111 10 7
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(CUSIP Number)
Peter A. Nussbaum
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
(212) 756-2565
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 13, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13(d)-1(f) or 13(d)-1(g), check
the following box { }.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
(Page 1 of 23 Pages)
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CUSIP No. 650111 10 7
1 NAME OF REPORTING PERSON: MARIAN S. HEISKELL
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY):
Not Applicable
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) {x}
(b) { }
3 SEC USE ONLY
4 SOURCE OF FUNDS: Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) { }
6 CITIZENSHIP OR PLACE OF ORGANIZATION: United States
NUMBER OF 7 SOLE VOTING POWER: 2,298,085 shares*
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 3,770,476 shares**
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER: 2,298,085 shares*
PERSON WITH
10 SHARED DISPOSITIVE POWER: 3,770,476 shares**
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
6,068,561 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES { }
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 6.34%
14 TYPE OF REPORTING PERSON: IN
____________________
* Includes 4,000 shares issuable upon exercise of director stock options
and 1,485 shares issuable upon conversion of 1,485 shares of Class B
Common Stock.
** Includes 369,405 shares issuable upon conversion of 369,405 shares of
Class B Common Stock.
(Page 2 of 23 Pages)
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This Amendment No. 4 to the Statement on Schedule 13D of Marian S.
Heiskell ("Mrs. Heiskell") dated June 11, 1990 is being filed to report, among
other things, (i) the transfer by Mrs. Heiskell of 160,000 shares of Class A
Common Stock, $0.10 par value per share (the "Class A Stock") of The New York
Times Company (the "Company") to The Marian S. Heiskell 1998 Family Trust (the
"Family Trust"), (ii) the sale of an aggregate of 270,000 shares of Class A
Stock, including 110,000 shares of Class A Stock held by Mrs. Heiskell and
160,000 shares of Class A Stock held by the Family Trust, (iii) the
contribution by Mrs. Heiskell of 650,000 shares of Class A Stock to DRY N
HIGH, L.P. ("Dry N High"), a newly formed limited partnership, which is
indirectly controlled by Marujupu, L.L.C. ("Marujupu") and whose limited
partners at the present time are Mrs. Heiskell and the Family Trust, (iv) the
contribution by Mrs. Heiskell of 1,000 shares of Class A Stock to HIGH N DRY,
L.L.C. ("High N Dry"), a newly formed limited liability company which is the
general partner of Dry N High, and of which the managing member is Marujupu,
(v) the contribution by Mrs. Heiskell of 100 shares of Class A Stock to
Marujupu, and (vi) the contributions, similar to those set forth in clauses
(iii), (iv), and (v) above, of Class A Stock by each of the other three
children of Iphigene Ochs Sulzberger: Arthur Ochs Sulzberger ("Mr.
Sulzberger"), Ruth S. Holmberg ("Mrs. Holmberg") and Judith P. Sulzberger
("Dr. Sulzberger", and collectively with Mr. Sulzberger, Mrs. Holmberg, and
Dr. Sulzberger the "Third Generation") each to a separate limited partnership
(similar to Dry N High) of which such member of the Third Generation is a
limited partner, to a limited liability company(similar to High N Dry) which
is the general partner of such limited partnership, and to Marujupu.
Item 2. Identity and Background.
PARAGRAPH (C) OF ITEM 2 IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS
FOLLOWS:
(c) Mrs. Heiskell's present principal occupation is director of
various charitable organizations.
Item 4. Purpose of Transaction.
ITEM 4 OF THIS STATEMENT IS HEREBY AMENDED BY ADDING THE FOLLOWING:
Except as set forth in Item 6 of Amendment No. 3 to this Statement
and as set forth below, Mrs. Heiskell currently has no plan or proposal, as a
shareholder of the Company, which relates to or would result in:
(a) the acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company;
(b) an extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Company or any of its
subsidiaries;
(Page 3 of 23 Pages)
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(c) a sale or transfer of a material amount of the assets of the
Company or any of its subsidiaries;
(d) any change in the present board of directors or management of
the Company, including any plan or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any other material change in the Company's business or
corporate structure;
(g) changes in the Company's charter or by-laws or other actions
which may impede the acquisition of control of the Company by any person;
(h) causing a class of securities of the Company to be delisted
from a national securities exchange or to cease to be authorized to be quoted
in an inter-dealer quotation system of a registered national securities
association;
(i) a class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934 (the "Exchange Act"); or
(j) any action similar to any of those enumerated above.
Mrs. Heiskell may, in the future, acquire or transfer (by gift or otherwise)
additional securities of the Company for family financial planning, charitable
and other purposes.
Item 5. Interest in Securities of the Issuer.
ITEM 5 OF THIS STATEMENT IS HEREBY AMENDED AND RESTATED TO READ IN ITS
ENTIRETY AS FOLLOWS:
(a) and (b) Mrs. Heiskell is the direct beneficial owner of, and
has sole voting and dispositive power with respect to, 2,298,085 shares of
Class A Stock, including (i) 1,485 shares issuable upon the conversion of
1,485 shares of Class B Stock held by her, and (ii) 4,000 shares issuable upon
the exercise of options granted under the Company's stock option plans,
representing an aggregate of approximately 2.40% of the outstanding shares of
Class A stock.*
______________
* Except as set forth in note ** below, all percentages of outstanding
Class A Stock herein are based on the 95,403,489 shares of Class A Stock shown
as outstanding as of May 3, 1998, in the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended March 29, 1998, plus those unissued shares
which Mrs. Heiskell and entities under her control have the right to acquire
upon exercise of options or conversion of Class B Stock, as described in this
Item 5.
(Page 4 of 23 Pages)
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Mrs. Heiskell is also (i) a co-trustee of a trust that holds 14,403
shares of Class A Stock, as to which shares she shares voting and dispositive
power with Mr. Sulzberger, as co-trustee, and (ii) an officer and director of
The Sulzberger Foundation, Inc. (the "Foundation"), which holds 56,518 shares
of Class A Stock, or approximately 0.06% of the outstanding shares of Class A
Stock, as to which shares Mrs. Heiskell shares voting and dispositive power
with Mr. Sulzberger, Mrs. Holmberg and Dr. Sulzberger, all of whom are
officers and directors of the Foundation.
Mrs. Heiskell is a co-trustee of the 1997 Trust (See Amendment No. 3
to this Statement for a description), which holds 1,069,405 shares of Class A
Stock (including 369,405 shares issuable upon the conversion of 369,405 shares
of Class B Stock also owned by the 1997 Trust), representing approximately
1.12% of the outstanding shares of Class A Stock, as to which Mrs. Heiskell
shares voting and dispositive power with Mrs. Holmberg, Mr. Sulzberger, Dr.
Sulzberger, and Dr. Dolnick, as co-trustee with them of the 1997 Trust.
Mrs. Heiskell is a member of Marujupu, the other members of which
are the three other members of the Third Generation. On May 11, 1998, Mrs.
Heiskell and the other members of the Third Generation each transferred 100
shares of Class A Stock to Marujupu. On May 12, 1998, Marujupu transferred
100 shares to High N Dry on May 11, 1998. Mrs. Heiskell also transferred
1,000 shares of Class A Stock to High N Dry on May 11, 1998 and Mrs.
Heiskell's children transferred an aggregate of 2,000 shares of Class A Stock
to High N Dry. On May 12, 1998, High N Dry contributed 3,100 shares of Class
A Stock to Dry N High, in exchange for a general partnership interest in Dry N
High and Mrs. Heiskell contributed 650,000 shares of Class A Stock to Dry N
High in exchange for a limited partnership interest in Dry N High.
Mrs. Heiskell sold a portion of her limited partnership interest in Dry N High
to the Family Trust. The other 300 shares of Class A Stock held by Marujupu
were similarly contributed to three other limited partnerships (similar to Dry
N High) organized by the other members of the Third Generation (100 shares to
each), which hold an aggregate of 1,977,050 shares of Class A Stock (such
shares having been similarly contributed by the other members of the Third
Generation and their children). Therefore, Mrs. Heiskell shares voting and
dispositive power with Mrs. Holmberg, Mr. Sulzberger, and Dr. Sulzberger as
members of Marujupu over an aggregate of 2,630,150 shares of Class A Stock,
representing approximately 2.75% of the outstanding shares of Class A Stock.
In summary of the foregoing, Mrs. Heiskell is the direct or indirect
beneficial owner in the aggregate of 6,068,561 shares of Class A Stock,
representing approximately 6.34% of the outstanding shares of Class A Stock.
By virtue of their being co-trustees of the 1997 Trust,
Mr. Sulzberger, Mrs. Holmberg, Mrs. Heiskell, Dr. Sulzberger and Dr. Dolnick
could be deemed to comprise a "group" within the meaning of Section 13(d)(3)
of the Exchange Act and Rule 13d-5(b) thereunder. In addition, by virtue of
their being members of Marujupu, Mr. Sulzberger, Mrs. Holmberg, Mrs. Heiskell
and Dr. Sulzberger, could be deemed to comprise a "group" within the meaning
of Section 13(d)(3) of the Exchange Act and Rule 13d-5(b) thereunder. Apart
(Page 5 of 23 Pages)
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from the shared beneficial ownership with Mrs. Heiskell by Mrs. Holmberg,
Mr. Sulzberger, Dr. Sulzberger and Dr. Dolnick of the 1,069,405 shares of
Class A Stock held by the 1997 Trust and apart from the shared beneficial
ownership (as members of Marujupu) with Mrs. Heiskell by Mrs. Holmberg,
Mr. Sulzberger and Dr. Sulzberger of the 2,630,150 shares of Class A Stock:
1. Mrs. Holmberg (a) is the direct beneficial owner of,
and has sole voting and dispositive power with respect to,
2,972,462 shares of Class A Stock, including 1,185 shares
issuable upon the conversion of 1,185 shares of Class B Stock
held by her and 6,000 shares issuable upon the exercise of
options granted under the Company's stock option plans,
(b) shares voting and dispositive power with her husband,
A. William Holmberg, with respect to 5,040 shares of Class A
Stock held by three trusts of which they are co-trustees, and
(c) shares voting and dispositive power with Mrs. Heiskell,
Mr. Sulzberger and Dr. Sulzberger with respect to the 56,518
shares of Class A Stock held by the Foundation;
2. Mr. Sulzberger (a) is the direct beneficial owner
of, and has sole voting and dispositive power with respect
to, 3,144,601 shares of Class A Stock, including (i) 1,785
shares issuable upon the conversion of 1,785 shares of Class
B Stock held by him, and (ii) 271,638 shares issuable upon
the exercise of options granted under the Company's stock
option plans, (b) has sole voting and dispositive power with
respect to 750,000 shares of Class A Stock held by a trust
of which he is the sole trustee, (c) shares voting and
dispositive power with Mrs. Heiskell with respect to 14,403
shares of Class A Stock held by a trust of which they are
co-trustees and (d) shares voting and dispositive power with
Mrs. Heiskell, Mrs. Holmberg and Dr. Sulzberger with respect
to the 56,518 shares of Class A Stock held by the Foundation
3. Dr. Sulzberger (a) is the direct beneficial owner of,
and has sole voting and dispositive power with respect to,
2,969,082 shares of Class A Stock, including 1,185
shares issuable upon the conversion of 1,185 shares of Class B
Stock held by her and 6,000 shares of Class A Stock issuable
upon the exercise of options granted under the Company's stock
option plans, and (b) shares voting and dispositive power with
Mr. Sulzberger, Mrs. Heiskell and Mrs. Holmberg with respect
to the 56,518 shares of Class A Stock held by the Foundation;
and
4. Dr. Dolnick (a) has sole voting power with respect to
564 shares of Class A Stock held by the Golden Family
Charitable Fund, Inc., (b) has sole voting and dispositive
power with respect to an aggregate of 12,254 shares of Class A
Stock held by two trusts of which Dr. Dolnick is the sole
trustee (Dr. Dolnick disclaims beneficial ownership of these
(Page 6 of 23 Pages)
<PAGE>
shares), and (c) shares voting and dispositive power with her
husband, Edward Dolnick, as joint holder with him, of 9,420
shares of Class A Stock, including 559 shares issuable
upon the conversion of 559 shares of Class B Stock jointly held
by them.
In summary of the foregoing, the "group" comprised of Mrs. Holmberg,
Mr. Sulzberger, Mrs. Heiskell, Dr. Sulzberger and Dr. Dolnick is the
beneficial owner in the aggregate of 15,931,420 shares of Class A Stock,
representing approximately 16.58%** of the outstanding shares of Class A
Stock, which shares include 375,604 shares issuable upon the conversion of an
aggregate of 375,604 shares of Class B Stock held by the group members
individually and by the 1997 Trust, and 283,638 shares issuable upon the
exercise of options granted under the Company's stock option plans.
The business address of Mr. Sulzberger is 229 West 43rd Street,
New York, New York 10036. The business address of Mrs. Holmberg is The
Chattanooga Times, 100 East Tenth Street, Chattanooga, Tennessee 37401. The
residence address of Dr. Sulzberger is 146 Central Park West, New York, New
York 10023. The business address of Dr. Dolnick is 3001 Connecticut Avenue,
Washington, D.C. 20008. The business address of Marujupu is 229 West 43rd
Street, New York, New York 10036. The business address of High N Dry is 229
West 43rd Street, New York, New York 10036. The business address of Dry N
High is 229 West 43rd Street, New York, New York 10036.
Mrs. Holmberg is principally employed as Chairman of Times Printing
Company, the publisher of The Chattanooga Times newspaper, the address of
which is 100 East Tenth Street, Chattanooga, Tennessee 37401. Dr. Sulzberger
is a physician currently retired from the active practice of medicine. Dr.
Dolnick is principally employed as Chief of the Division of Exhibition
Interpretation at the National Zoological Park of the Smithsonian Institution.
Mr. Sulzberger's present principal occupation is Chairman Emeritus and a
director of the Company. The principal businesses of the Company comprise
diversified activities in the communications field, including: the
publication of newspapers and magazines (such as The New York Times and The
Boston Globe); newspaper distribution in the New York City and Boston
metropolitan areas; news, photo and graphics services and news and features
syndication; distribution of TimesFax (a six-to-eight page synopsis of The New
York Times delivered to customers' facsimile machines or personal computers);
production of The New York Times Index; the licensing of electronic data bases
_______________
** This percentage is based on the 95,403,489 shares of Class A Stock
shown as outstanding as of May 3, 1998, in the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended March 29, 1998, plus the 659,242
unissued shares which are issuable upon the exercise of options or the
conversion of Class B Stock by the 1997 Trust or any member of the "group," as
described above in this Item 5.
(Page 7 of 23 Pages)
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and microform, CD-ROM products and the trademarks and copyrights of The New
York Times; and television and radio broadcasting. The principal business of
Marujupu is to serve as the "family office" for the members of the Third
Generation. The principal business of High N Dry is to serve as the general
partner of Dry N High. The principal business of Dry N High is the management
and investment of its capital assets.
None of Mr. Sulzberger, Mrs. Holmberg, Dr. Sulzberger, Dr.
Dolnick, Marujupu, Dry N High and High N Dry has, during the last five years,
(i) been convicted in a criminal proceeding or (ii) been a party to a civil
proceeding of a judicial or administrative body, as a result of which she was
or is subject to (A) a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws, or (B) a judgment, decree or final order finding any
violation with respect to such laws. Each of Mr. Sulzberger, Mrs. Holmberg,
Dr. Sulzberger and Dr. Dolnick is a citizen of the United States. Marujupu is
a Delaware limited liability company. High N Dry is a Delaware limited
liability company. Dry N High is a Delaware limited partnership.
(c) During the past 60 days, no transactions in Class A Stock have
been effected by Mr. Sulzberger, Mrs. Heiskell, Mrs. Holmberg, Dr. Sulzberger,
Dr. Dolnick, except those described above and set forth on Schedule A hereto.
(d) See Item 6 of this Statement.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Undertakings or relationships with Respect
to Securities of the Issuer.
ITEM 6 OF THIS STATEMENT IS HEREBY AMENDED BY ADDING THE FOLLOWING:
The Limited Partnership Agreement (the "Agreement") of Dry N High is
being filed with this Amendment No. 4 as Exhibit F to this Statement. The
following summary of the material terms of the Agreement is qualified in its
entirety by reference to Exhibit F. The limited partnership agreements of the
three additional limited partnerships indirectly controlled by Marujupu
contain substantially the same material terms. Reference is made to the
Schedule 13D filed by Dr. Sulzberger, Mrs. Holmberg, and Mr. Sulzberger.
Dry N High was formed for the purpose of the management and
investment of its capital assets and to engage in any other activities not
prohibited by Delaware law and deemed by High N Dry to be in the best
interests of Dry N High.
High N Dry, as general partner, has the power to manage the business
and activities of Dry N High, including voting and dispositive power with
respect to securities held by Dry N High. High N Dry is controlled by
Marujupu, as its manager, which has sole power to manage the business and
affairs of High N Dry, except with respect to withdrawal from a limited
partnership as a general partner and consent to the dissolution of any limited
(Page 8 of 23 Pages)
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partnership. The members of the Third Generation are the members of, and have
power to manage the business of, Marujupu. The members of High N Dry may
remove Marujupu at any time in their discretion.
Item 7. Material to be Filed as Exhibits.
Exhibit F: Limited Partnership Agreement, dated as of the 11th day
of May, 1998, of DRY N HIGH.
(Page 9 of 23 Pages)
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Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
/s/ Marian S. Heiskell
---------------------
Marian S. Heiskell
Dated: May 15, 1998
(Page 10 of 23 Pages)
<PAGE
Schedule A
Date of Record Number of Shares Price Per Share
Transaction Owner Purchased/(Sold/Gifted) (including
commissions,
if any)
5/13/98 Mr.
Sulzberger (104,375) $70.25
5/13/98 The Arthur Ochs
Sulzberger
1998 Family
Trust* (146,000) $70.25
5/13/98 The Arthur Ochs
Sulzberger
1998 GST
Trust* (14,000) $70.25
5/13/98 Dr.
Sulzberger (104,375) $70.25
5/13/98 Judith P
Sulzberger
1998 Family
Trust* (154,700) $70.25
5/13/98 Judith P
Sulzberger
1998 GST Trust* (5,300) $70.25
5/13/98 Mrs.
Holmberg (104,375) $70.25
5/13/98 The Ruth S.
Holmberg
1998 Family
Trust* (146,000) $70.25
5/13/98 The Ruth S.
Holmberg
1998 GST Trust* (14,000) $70.25
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* Such shares were contributed on May 7, 1998 to such trust by the member
of the Third Generation whose name is borne by such trust. After giving
effect to such sales, the trusts own no securities of the Company.
(Page 11 of 23 Pages)
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5/13/98 Mrs.
Heiskell (104,375) $70.25
5/13/98 The Marian S.
Heiskell
1998 Family
Trust* (160,000) $70.25
5/13/98 Mrs.
Heiskell (5,625) $72.34
5/12/98 Mr.
Sulzberger (5,625) $72.34
5/12/98 Dr.
Sulzberger (5,625) $72.34
5/12/98 Mrs.
Holmberg (5,625) $72.34
4/2/98 Mrs. Holmberg (4,605) $0
4/2/98 Dr. Dolnick (614) $0
4/1/98 Mrs. Holmberg (384) $0
3/17/98 Mrs. Heiskell (1,538) $0
- -----------
* Such shares were contributed on May 7, 1998 to such trust by the member
of the Third Generation whose name is borne by such trust. After giving
effect to such sales, the trusts own no securities of the Company.
(Page 12 of 23 Pages)
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LIMITED PARTNERSHIP AGREEMENT
FOR
DRY N HIGH, L. P.
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement") is made and
entered into as of the 11th day of May, 1998, by the general partner, HIGH N
DRY, L.L.C. (in such capacity, the "General Partner"), a Delaware limited
liability company, and those persons identified on Schedule A as owners of
Limited Partnership Units (the "Limited Partners"). The General Partner and
the Limited Partners are referred to as the "Partners".
The Partners desire to form a limited partnership (the
"Partnership") for the express purpose of retaining control of much of the
family's shares of the Class A common stock of The New York Times Company, and
also, by pooling investments, to develop and maintain sufficient other assets
for the payment of transfer taxes, so that the family's ownership of The New
York Times may be continued in accordance with the desires of Adolph S. Ochs,
and for such other purposes as are set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements, it is agreed as follows:
ARTICLE I
ESTABLISHMENT OF THE PARTNERSHIP
1.1. Formation. The Partners form the Partnership as a limited
partnership pursuant to the provisions of The Revised Uniform Limited
Partnership Act as adopted in the State of Delaware (the "Act") upon the terms
and conditions set forth in this Agreement. The Partners shall promptly take
all actions necessary or appropriate to allow the Partnership to carry on its
business in accordance with the terms of this Agreement.
1.2. Name. The name of the Partnership is DRY N HIGH, L.P. or such
other name selected by the General Partner as may be acceptable to the
appropriate recording officials of the State of Delaware.
1.3. Purposes. The Partnership is formed for the following
purposes:
1.3 (a) the management and investment of its capital assets;
and
(Page 13 of 23 Pages)
<PAGE
1.3 (b) to engage in any other activities not prohibited by
law which are determined by the General Partner to be in the best interests of
the Partnership and its Partners.
1.4. Powers. The Partnership shall have the power to do all things
necessary or desirable in the conduct of its business to the fullest possible
extent.
1.5. Principal Place of Business. The principal place of business
of the Partnership is c/o Marujupu, The New York Times Company, Room 1031, 229
West 43rd Street, New York, New York 10036 and/or such other place or places
as the General Partner may from time to time determine.
1.6. Term. The term of the Partnership shall continue until
December 31, 2047, unless terminated at an earlier date as hereinafter
provided.
1.7. Registered Agent. The address of the Partnership's registered
office in the State of Delaware is The Corporation Service Company, 1013
Centre Road, Wilmington, Delaware 19805. The name of its registered agent at
that address is The Corporation Service Company.
ARTICLE II
CAPITAL CONTRIBUTIONS; PARTNERSHIP UNITS,
WITHDRAWALS; AND CAPITAL ACCOUNTS
2.1. Initial Capital Contributions and Partnership Units. Each
Partner shall make an initial contribution to the capital of the Partnership,
simultaneously with the execution of this Agreement, consisting of the
property described in Schedule A. In consideration therefor, each Partner
shall be issued such number of units of Partnership interest ("Partnership
Units") as are indicated on Schedule A, consisting of such number of units of
General Partnership interest (each a "General Partnership Unit") and units of
Limited Partnership interest (each a "Limited Partnership Unit") as indicated.
Each Partnership Unit shall represent equivalent economic interests in the
Partnership.
2.2. Subsequent Capital Contributions. If the General Partner
has a deficit balance in its capital account at the time of the liquidation of
the Partnership, it agrees to contribute to the capital of the Partnership an
amount of cash equal to the amount by which zero exceeds such General
Partner's capital account at such time. Such amount shall be paid to the
Partnership by the later of the end of the taxable year in question or 90 days
after the date of the Partnership's liquidation and shall be available for
payment to the creditors of the Partnership or for distribution to Partners
having positive capital account balances.
(Page 14 of 23 Pages)
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2.3. Additional Contributions. No Partner shall be required to
make any capital contributions in addition to those called for by Section 2.1
and Section 2.2.
2.4. Capital Accounts. A single capital account ("Capital
Account") shall be maintained for each Partner (regardless of whether such
Partner is a General Partner or a Limited Partner or both and regardless of
the time or manner in which such interests were acquired) in accordance with
the capital accounting rules of Section 704(b) of the Internal Revenue Code
(the "Code"). Each Partner's opening Capital Account balance shall be the
amount (as set forth in Schedule A) of such Partner's initial Capital
Contribution made pursuant to Section 2.1. Thereafter, a Partner's Capital
Account shall be credited with (a) such Partner's subsequent cash capital
contributions; (b) the agreed value of any property subsequently contributed
to the capital of the Partnership by such Partner; (c) such Partner's share of
partnership realized and unrealized profits as provided in Article III; and
(d) such other amounts as may be required in order for the Capital Account to
be considered to be determined and maintained in accordance with the rules of
Treas. Reg. Sec. 1.704-1(b)(2)(iv) (including Treas. Reg. Sec.
1.704-1(b)(2))iv)(g)) or any successor section of similar import. A Partner's
Capital Account shall be debited with (a) such Partner's share of partnership
realized and unrealized losses as provided in Article III, (b) distributions
made to such Partner, and (c) such other amounts as may be required for the
Capital Account to be considered to be determined and maintained in accordance
with the rules of Treas. Reg. Sec. 1.704-1(b)(2)(iv) (including Treas. Reg.
Sec. 1.704-1(b)(2)(iv)(g)) or any successor section of similar import.
ARTICLE III
PROFIT AND LOSS
3.1. Definitions of Net Profit and Net Loss. Profits and losses
for a particular Operations Period shall be computed in the same manner as the
Partnership reports its income for Federal income tax purposes, except that
(i) for purposes of gain, loss, depreciation and otherwise, property shall be
considered to have a book value equal to its fair market value as most
recently determined pursuant to Section 3.2(c); (ii) income of the Partnership
exempt from tax, and expenses not deductible for tax purposes under the Code
shall be included in the computation; and (iii) unrealized gain or loss shall
be taken into account as provided in Section 3.2(c) hereof. The principles of
Treas. Reg. Sec. 1.704-l(b)(4)(i) shall be applied when necessary to prevent
duplication or omission of Capital Account adjustments, including without
limitation those arising from deemed sales under Section 3.2(c).
(Page 15 of 23 Pages)
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3.2. Allocation of Profits and Losses.
3.2 (a) The Partnership's net profits and losses for any
Operations Period shall be allocated to each of the Partners pro rata for each
Operations Period according to the ratio of (i) the number of Partnership
Units owned by each Partner to (ii) the aggregate number of Partnership Units
outstanding.
3.2 (b) The Partnership's items of income, gain, loss and
deduction shall be allocated for Federal, state and local income tax purposes
among the Partners proportionately to the allocation of net profits and losses
among the Partners, except that each Partner's distributive share of
depreciation, amortization, and gain or loss, as computed for tax purposes,
with respect to any property shall be determined so as properly to reflect the
varying interests of the Partners in unrealized profit or loss for prior
Operations Periods, and otherwise to take into account the variation between
the adjusted basis and the book value of the property in the same manner as
under Section 704(c) of the Code and the Treasury Regulations thereunder.
3.2 (c) On each Adjustment Date, as defined in Section 3.4,
the properties of the Partnership (including in the case of a distribution,
any property being distributed) shall be considered have been sold at fair
market value, as determined by the General Partner using its reasonable
business judgment. The deemed gain or loss for the Operations Period in
question upon such deemed sale shall be allocated in accordance with Section
3.2. The amount of any distribution in kind shall be considered to be the
fair market value of the property, as so determined.
3.2 (d) If any Partnership Unit is transferred during an
Operations Period, the net profit or loss attributable to such Partnership
Unit for the Operations Period shall be allocated between the transferor and
transferee on a monthly basis based on actual monthly profit or loss. For this
purpose, (i) if a transfer occurs on or before the 15th day of the month the
transferee shall be treated as the owner of the Partnership Unit for the
entire month and (ii) if a transfer occurs after the 15th day of the month the
transferor shall be treated as the owner of the Partnership Unit for the
entire month.
3.3. Qualified Income Offset and Related Provisions.
Notwithstanding any other provision:
3.3 (a) Net losses for any Operations Period that would
otherwise be allocated with respect to Partnership Units owned by a
(Page 16 of 23 Pages)
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Limited Partner and which would cause such Limited Partner to have an Adjusted
Capital Account Deficit with respect to his interest as a Limited Partner
shall instead be allocated to the General Partner.
3.3 (b) If any Limited Partner receives an adjustment,
allocation, or distribution described in Treas. Reg. Sec. 1.704-
1(b)(2)(ii)(d)(4),(5) or (6), items of Partnership gross income shall be
specifically allocated to such Limited Partner in an amount and manner
sufficient to eliminate any Adjusted Capital Account Deficit created by such
adjustments, allocations, or distributions as quickly as possible. The
provisions of this Section 3.3(b) are intended to constitute a "qualified
income offset" within the meaning of Treas. Reg. Sec. 1.704-1(b)(2)(ii)(d) and
shall be interpreted and implemented as therein provided.
3.3 (c) After satisfaction of any allocations required by
Section 3.3(b), net profit for an Operations Period shall be allocated to the
General Partner until the General Partner has received allocations of net
profit equal in the aggregate to any net losses previously allocated to it
pursuant to Section 3.3(a).
3.3 (d) An "Adjusted Capital Account Deficit" exists with
respect to a Limited Partner if the Limited Partner's Capital Account,
determined for this purpose by reducing the Capital Account by the items
described in Treas. Reg. Sec. 1.704-1(b)(2)(ii)(d), (4), (5) and (6) and by
increasing the Capital Account by the amount described in Treas. Reg. Sec.
1.704-1(b)(2)(ii)(c) the Partner is obligated to restore, is a negative
amount.
3.4. Adjustment Date; Operations Period.
3.4 (a) The "Adjustment Dates" of the Partnership shall be
the date of dissolution of the Partnership and each other date on which there
is a distribution in kind of property of the Partnership, a contribution of
money or other property (other than a de minimis amount) to the Partnership by
a new or existing Partner as consideration of an interest in the Partnership,
or a distribution of money (other than a de minimis amount) by the Partnership
to a retiring or continuing Partner as consideration for an interest in the
Partnership.
3.4 (b) An "Operations Period" of the Partnership shall be
the period beginning on the date hereof, the first day of a fiscal year or an
Adjustment Date (as the case may be) and ending on the earlier of the next
succeeding Adjustment Date or the last day of a fiscal year.
(Page 17 of 23 Pages)
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ARTICLE IV
DISTRIBUTIONS
4.1. Distributions Other Than Upon Winding-Up. Partnership
property may be distributed to the Partners from time to time at the sole
discretion of the General Partner; provided, however, that distributions shall
be made to each Partner pro rata according to the ratio of (a) the number of
Partnership Units owned by such Partner to (b) the aggregate number of
Partnership Units outstanding, determined at the end of such Operations
Period. After application of Section 3.2(c), in the discretion of the General
Partner, property of the Partnership may be distributed in kind.
4.2. Distributions Upon Winding-Up. Upon the dissolution and
winding up of the Partnership, the assets of the Partnership, after
application of Section 3.2(c), shall be distributed in the following order of
priority:
4.2 (a) To the payment of the debts and liabilities of the
Partnership and the expenses of winding-up, including the establishment of any
reserves against liabilities or obligations of the Partnership which the
General Partner in its sole discretion deem appropriate, such reserves to be
charged against the Partners' Capital Accounts according to the ratio of (i)
the number of Partnership Units owned by each Partner, to (ii) the aggregate
number of Partnership Units outstanding, and, prior to payment of such
liabilities and obligations, shall be placed in the hands of an escrow agent
for such period of time and upon such terms as the General Partners shall
determine; and, then,
4.2 (b) To the payment of the Capital Accounts of Partners.
ARTICLE V
WITHDRAWALS
5.1. Withdrawals. No Partner may withdraw from the Partnership
prior to its dissolution.
ARTICLE VI
DISSOLUTION AND WINDING-UP
6.1. Events Occasioning Dissolution. The Partnership shall
dissolve and terminate upon the occurrence of any of the following, whichever
shall first occur:
(Page 18 of 23 Pages)
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(a) December 31, 2047.
(b) The unanimous written consent of all the Partners to
dissolve the Partnership.
(c) The occurrence of an event of withdrawal by the General
Partner under Section 17-402 of the Act, unless, within 90 (ninety) days from
the occurrence of such event of withdrawal, a majority in interest of the then
existing Limited Partnership interests agree to continue the business of the
Partnership and to appoint, effective as of the date of withdrawal, a new
General Partner.
(d) The entry of a decree of judicial dissolution under
Section 17-802 of the Act.
6.2. Winding-Up. The Partnership shall be allowed one year from
the date of any event occasioning dissolution for the winding-up of its
affairs and shall be allowed such additional time as may be reasonable for the
orderly sale of the Partnership's properties.
ARTICLE VII
MANAGEMENT
7.1. Management by the General Partner. The business affairs of
the Partnership shall be managed by the General Partner. The General Partner
shall have all necessary powers to carry out the purposes of the Partnership.
7.2. Liabilities of the General Partner; Other Interests. The
General Partner and its agents shall not be liable, responsible or accountable
in damages or otherwise to the Partnership or to any of the Partners for any
acts performed or omitted to be performed in good faith. The General Partner
and the Limited Partners may engage in or possess interests in other business
ventures of every nature and description, whether or not competitive with the
business of the Partnership, independently or with others, and neither the
Partnership nor any of its Partners shall, by virtue of this Agreement, have
any rights in or to such other ventures or the income or profits derived
therefrom.
7.3. Limited Partners. No person in such person's capacity as a
Limited Partner shall take part in the management of the business or affairs
of the Partnership or have the right or authority to act for or bind the
Partnership. Notwithstanding any provision of this Agreement, the Limited
Partners shall not be liable for any of the losses, debts or liabilities of
the Partnership in excess of their respective Capital Contributions, except as
otherwise expressly provided by law. The General Partner may also be a
Limited Partner.
(Page 19 of 23 Pages)
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ARTICLE VIII
SUBSTITUTION; ADDITIONAL PARTNERS
8.1. Substituted Limited Partners. The transferee of a Limited
Partnership Unit may not be admitted as a substituted Limited Partner unless
all of the following conditions have been met:
(a) The transfer is made pursuant to the written consent of
the General Partner, which consent may be given or withheld in the sole
discretion of the General Partner.
(b) There has been filed with the General Partner a written
instrument, executed by the transferor, in form and substance satisfactory to
the General Partner, transferring to the transferee all or part of the
transferor's Partnership Units;
(c) The transferee has approved and adopted all of the
provisions of this Agreement, as the same may have been amended, which
approval and adoption may be evidenced in such manner as is required by the
General Partner; and
(d) The transferee has paid or agreed to pay, as the General
Partner may determine, all reasonable expenses relating to such admission.
8.2. Transfers of General Partnership Units. The transferee of a
General Partnership Unit may not be admitted as a substituted General Partner
without (a) the written consent of all the Limited Partners, which consent
shall be given or withheld in the sole discretion of a Limited Partner and (b)
satisfaction of the requirements of Section 8.1 in respect to a transfer of
Limited Partnership Units; provided, however, that if the requirements of
clause (b), but not clause (a), are met, such General Partnership Units shall
be deemed Limited Partnership Units in the hands of the transferee, and such
transferee shall be admitted only as a substituted Limited Partner with
respect thereto, and shall not be deemed a General Partner for any purpose but
provided further, that no such transfer shall be permitted if the Partnership
would have no General Partnership Units outstanding after the transfer.
8.3. Additional Partners. Additional Partnership Units may be
issued and sold by the General Partner to any person, including but not
limited to a natural person, trust, corporation, partnership or other
association, for fair market value, as determined by the General Partner,
using their reasonable business judgment, and under such terms as deemed
advisable by the General Partner, including but not limited to terms relating
to the applicability of this Agreement to such additional Partnership Units.
Admission of any Partner shall not be a cause of dissolution.
(Page 20 of 23 Pages)
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ARTICLE IX
ACCOUNTING
9.1. Books and Records. The General Partner shall maintain the
general accounts of the Partnership. The books of the Partnership shall be
kept on a basis consistent with the provisions of this Agreement and shall be
open to the inspection and examination of all Partners, in person or by their
duly authorized representatives, at reasonable times. The books of the
Partnership shall be maintained using the accrual method of accounting.
9.2. Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
9.3. Reports. As soon as practicable after the close of each
fiscal year the Partnership shall furnish each Partner with a copy of the
Partnership's financial statements for such year and with a statement of such
Partner's Capital Account, as reflected on the books of the Partnership. Each
Partner shall also be supplied with all information with respect to the
Partnership required in connection with the preparation of such Partner's tax
returns.
9.4. Federal Income Tax Elections. All elections required or
permitted to be made by the Partnership under the Internal Revenue Code shall
be made by the General Partner in such manner as will, in its opinion, be most
advantageous to a majority in interest of the Limited Partners.
9.5. Tax Matters Partner. The General Partner shall from time to
time designate a Tax Matters Partner pursuant to Section 6231(a)(7) of the
Code. The initial Tax Matters Partner shall be the general partner, HIGH N
DRY, L.L.C.
ARTICLE X
MISCELLANEOUS
10.1. Amendments. This Agreement may be amended from time to time
upon the written consent of all of the Partners.
10.2. Notices. All notices to the Partnership or any Partner
under this Agreement shall be in writing, duly signed by the party giving such
notice, and transmitted postage prepaid by first class certified mail, return
receipt requested, to such Partner's address set forth on Schedule A of this
Agreement, or to any such other address as may hereafter be designated by a
Partner upon giving notice thereof to the Partnership. All notices shall be
deemed given when dispatched.
(Page 21 of 23 Pages)
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10.3. No Delivery of Certificates. The General Partner is not
required to deliver copies of any Certificate of Limited Partnership or
amendment or cancellations thereof to the Limited Partners.
10.4. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware applicable
in the case of agreements made and to be performed entirely within such State.
10.5. Counterparts. This Agreement and any consents required
hereunder may be executed in counterparts, all of which, taken together, shall
be deemed one original.
IN WITNESS WHEREOF, the General Partner and the Limited Partner have
caused this document to be executed in their names as of the day and year
first above written.
HIGH N DRY, L.L.C., General Partner
By: MARUJUPU, L.L.C., Manager
By: /s/ Kathryn M. McCarthy
Name: Kathryn M. McCarthy
Title: President
/s/ Marian S. Heiskell
Marian S. Heiskell, Limited Partner
(Page 22 of 23 Pages)
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Schedule A
General Limited
Capital Partner Partner
Partner Address Contribution Units Units
HIGH N DRY, L.L.C. c/o Marujupu 3,100 shares 124 -0-
Room 1031 of New York Times
229 West 43rd St. Co. stock
New York, NY 10036
Marian S. Heiskell c/o Marujupu 650,000 shares -0- 26,000
Room 1031 of New York
229 West 43rd St. Times Co. stock
New York, NY 10036
Total Units: 124 26,000
----------- --- ------
(Page 23 of 23 Pages)
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