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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 29, 1999
REGISTRATION NO. 333-43369
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE NEW YORK TIMES COMPANY
(Exact name of Registrant as specified in its charter)
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<S> <C>
NEW YORK 13-1102020
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
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229 WEST 43D STREET
NEW YORK, N.Y. 10036
(212) 556-1234
(Address and telephone number of principal executive offices)
THE NEW YORK TIMES COMPANY
DEFERRED EXECUTIVE COMPENSATION PLAN
(AS SUCCESSOR TO THE NEW YORK TIMES
DESIGNATED EMPLOYEES DEFERRED EARNINGS PLAN)
(Full title of Plan)
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 and telephone number of agent for service)
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EXPLANATORY NOTE
The New York Times Company filed registration statement No. 333-43369 on
December 29, 1997 registering $17,300,000 deferred compensation obligations
offered under its Designated Employees Deferred Earnings Plan. Effective
December 8, 1999 the plan was merged into The New York Times Deferred Executive
Compensation Plan. This Post-Effective Amendment No. 1 is being filed to reflect
such merger. This amendment also effects a change in the agent for service.
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PART I
A prospectus setting forth the information required by Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1)(i).
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed by The New York
Times Company (the "Company") (File No. 1-5837) with the securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 Act"), are incorporated by reference herein and shall be
deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 27, 1998; and
2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 28, 1999, June 25, 1999, and September 26, 1999.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
registration statement and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); PROVIDED, HOWEVER, that the documents
enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act in each year during which the
offering made by this registration statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
registration statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The securities being registered under this registration statement consist of
obligations (the "Obligations") of the Company to pay compensation deferred by
eligible employees under the terms of The New York Times Deferred Executive
Compensation Plan, as successor by plan merger to The New York Times Designated
Employees Deferred Earnings Plan (the "Plan"). Subject to the provisions of the
Plan, an eligible employee may enter into an agreement with the Company
providing for the deferral of the payment of a specified portion or amount of
compensation payable by the Company to the eligible employee. The amount
ultimately payable to the eligible employee in respect of such a deferral
election will be adjusted to reflect the investment experience of one or more of
the benchmarks designated under the Plan and selected by the eligible employee.
Such amounts are payable to the employee commencing on the date designated by
the employee in accordance with the terms of the Plan, in 10 substantially equal
installments, unless the employee elects to be paid in a single lump sum or in
substantially equal annual installments over 5 or 10 years, provided, however,
that payment of employees' deferred amounts will be accelerated and paid in a
single lump sum on certain events, such as a change in control of the Company,
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and may also be accelerated upon a termination of the Plan, and, provided,
further, that the Plan Administrator and/or the Plan's ERISA Management
Committee may elect to pay a participant's deferred amounts in a single lump sum
upon certain events, such as death of the employee. An employee's rights to and
under the Obligations cannot be assigned, alienated, sold, garnished,
transferred, pledged or encumbered, except by way of transfer to the employee's
beneficiary or estate upon the employee's death, pursuant to the terms of the
Plan.
The Obligations are unsecured general obligations of the Company which rank
PARI PASSU with other unsecured and unsubordinated indebtedness of the Company
that may be outstanding from time to time. No sinking fund has or will be
established with respect to the Obligations. The Obligations are not subject to
redemption, in whole or on part, prior to the payment dates applicable under the
Plan and the Obligations are not convertible into another security of the
Company. The Company reserves the right to amend or terminate the Plan at any
time, except that no such amendment or termination shall adversely affect the
rights of employees with respect to amounts deferred prior to such amendment or
termination. In the event the Plan is terminated, the Company may decide, in its
sole discretion, to either pay the Obligations as they come due in accordance
with the employees' initial elections or pay the Obligations immediately upon
the termination of the Plan.
Except as stated above, the Obligations do not enjoy the benefit of any
affirmative or negative pledges or covenants by the Company. Although the
Company has established a grantor trust to fund the payment of the Obligations
(the "Trust"), the Company retains discretion to determine the amount and timing
of its contributions to the trust and the assets of the Trust are subject to the
claims of the Company's creditors. The trustee of the Trust is required to
administer the Trust in accordance with its terms, but the trustee's obligations
and authority are limited to the amounts which may be held in the Trust from
time to time and the trustee is subject to the direction of the Company with
respect to the payment Obligations. Accordingly, the trustee of the Trust does
not have any independent obligation or authority to act on behalf of any
employee and each employee will be responsible for acting on his or her own
behalf with respect to, among other things, the giving of notices, responding to
requests for consents, waivers or amendments, enforcing covenants and taking
action upon default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Obligations offered pursuant to this registration
statement has been passed upon for the Company by Solomon B. Watson IV, Senior
Vice President and General Counsel of the Company, 229 West 43(rd) Street, New
York New York 10036. Mr. Watson is an officer of the company and a holder of
shares (and options to purchase shares) of common stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Company's by-laws, any individual made or threatened to be made a
party to any civil or criminal action or proceeding by reason of the fact that
the individual or the individual's testator or intestate is or was a director or
officer of the Company, or served any other corporation or entity of any type or
kind, domestic or foreign, in any capacity, at the request of the Company, shall
be indemnified against judgments, fines, amounts paid in settlement and other
liabilities expenses, to the full extent permitted by law.
The indemnification provided in the Business Corporation Law of New York is
not exclusive of any other rights to which a director or officer may be
entitled, whether contained in the certificate of incorporation or by-laws or,
when authorized by the certificate of incorporation or by-laws, a stockholders'
or directors' resolution or an indemnification agreement, except that no
indemnification may be made in any case if a judgment or other final
adjudication adverse to the director or officer establishes that the officer's
or director's acts were committed in bad faith or were the result of active and
deliberate
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dishonesty and were material to the cause of action so adjudicated, or that the
officer or director personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "1933 Act"), may be permitted to officers and directors
of the Company pursuant to the above-mentioned by-laws and statute, the Company
has been advised that, in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act, and is, therefore,
unenforceable. In the event that a claim for such indemnification (except
insofar as it provides for payment by the Company of expenses incurred or paid
by a director or officer in the successful defense of any action, suit or
proceeding) is asserted against the Company by a director or officer and the
Commission is still of the same opinion, the Company will, unless the matter
has, in the opinion of its counsel, been adjudicated by precedent deemed by it
to be controlling, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in the
1933 Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(b) That, for the purpose of determining any liability under the 1933
Act, each post-effective amendment to this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof;
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(d) That, for purposes of determining any liability under the 1933 Act,
each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the 1934 Act that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the 1933 Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer, or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion o of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company certifies that it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, and the State of New York, on December 29, 1999.
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THE NEW YORK TIMES COMPANY
By: /s/ LAURA J. CORWIN
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Laura J. Corwin
VICE PRESIDENT AND SECRETARY
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Pursuant to the requirements of the 1933 Act, the registration statement has
been signed below by the following persons in the capacities on the dates
indicated:
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SIGNATURE TITLE DATE
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* Chairman of the Board
---------------------------------------- (principal executive December 29, 1999
Arthur Ochs Sulzberger, Jr. officer)
Senior Vice President and
/s/ JOHN M. O'BRIEN Chief Financial Officer
---------------------------------------- (principal financial December 29, 1999
John M. O'Brien officer)
* Vice President and Corporate
---------------------------------------- Controller (principal December 29, 1999
Stuart Stoller accounting officer)
*
---------------------------------------- President and Chief Executive December 29, 1999
Russell T. Lewis Officer, Director
*
---------------------------------------- Vice Chairman and Senior Vice December 29, 1999
Michael Golden President, Director
*
---------------------------------------- Director December 29, 1999
John F. Akers
---------------------------------------- Director
Brenda C. Barnes
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SIGNATURE TITLE DATE
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---------------------------------------- Director
Raul E. Cesan
*
---------------------------------------- Director December 29, 1999
Richard L. Gelb
*
---------------------------------------- Director December 29, 1999
Robert A. Lawrence
---------------------------------------- Director
Ellen R. Marram
*
---------------------------------------- Director December 29, 1999
Charles H. Price II
---------------------------------------- Director
Henry B. Schacht
*
---------------------------------------- Director December 29, 1999
Donald M. Stewart
*
---------------------------------------- Director December 29, 1999
Arthur Ochs Sulzberger
*
---------------------------------------- Director December 29, 1999
Judith P. Sulzberger
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*By: /s/ LAURA J. CORWIN
------------------------------------
Laura J. Corwin
ATTORNEY-IN-FACT
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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4 The New York Times Company Deferred Executive Compensation
Plan (incorporated by reference from Registration Statement
333-09447).
5 Opinion of the Company's Senior Vice President and General
Counsel as to the legality of the Obligations offered under
the Plan (previously filed).
23 (a) Independent Auditors' Consent (filed herewith).
23 (b) Consent of Counsel (contained in the Opinion of the
Company's General Counsel, Exhibit 5 hereto).
24 Power of Attorney (previously filed).
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EXHIBIT NO. 23(A)
INDEPENDENT AUDITORS' CONSENT
THE NEW YORK TIMES COMPANY
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 Registration Statement No. 333-43369 of The New York Times
Company on Form S-8 of our report dated January 27, 1999, appearing in the
Annual Report on Form 10-K of The New York Times Company for the year ended
December 27, 1998.
Deloitte & Touche LLP
New York, New York
December 29, 1999
