Exhibit 10.2
THE NEW YORK TIMES COMPANY
1991 EXECUTIVE STOCK INCENTIVE PLAN
AS AMENDED THROUGH SEPTEMBER 21, 2000
1. NAME AND GENERAL PURPOSE
The name of this plan is The New York Times Company 1991 Executive Stock
Incentive Plan (hereinafter called the "Plan"). The purpose of the Plan is to
enable the Company (as hereinafter defined) to retain and attract executives who
enhance its tradition and contribute to its success by their ability, ingenuity
and industry, and to enable them to participate in the long-term success and
growth of the Company.
2. DEFINITIONS
(a) "Awards" has the meaning specified in Section 12 hereof.
(b) "Board" means the Board of Directors of the Company.
(c) "Cash Plan" means the Company's 1991 Executive Cash Bonus Plan.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Committee referred to in Section 3 of the
Plan. If at any time no Committee shall be in office then the
functions of the Committee specified in the Plan shall be exercised
by those members of the Board who are Non-Employee Directors.
(f) "Common Stock" means shares of the Class A Common Stock of the
Company.
(g) "Company" means The New York Times Company, a corporation organized
under the laws of the State of New York (or any successor
corporation), and, unless the context otherwise requires, its
subsidiaries (as hereinafter defined) and other non-corporate
entities in which it owns directly or indirectly 20% or more of the
equity interests. A "subsidiary" means any corporation in which the
Company possesses directly or indirectly 50% or more of the combined
voting power of all classes of stock.
(h) "Consolidated Statement of Income" means the consolidated statement
of income (or any comparable statement, however designated) of the
Company, audited by the independent certified public accountants of
the Company and contained in the Company's annual report to
stockholders or proxy statement.
(i) "Disability" means total disability as defined under the Company's
long-term disability plan, whether or not the Participant is covered
by such plan, as determined by the Committee.
(j) "Fair Market Value" means the arithmetic mean of the highest and
lowest sales prices of the Common Stock as reported by The New York
Stock Exchange (the "NYSE") (or such other national securities
exchange on which the Common Stock may be listed at the time of
determination, and if the Common Stock is listed on more than one
exchange, then on the one located in New York or if the Common Stock
is listed only on the National Association of Securities Dealers
Automated Quotations System ("NASDAQ"), then on
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such system) on the date of the grant or other date on which the
Common Stock is to be valued hereunder. If no sale shall have been
made on the NYSE, such other exchange or the NASDAQ on such date or
if the Common Stock is not then listed on any exchange or on the
NASDAQ, Fair Market Value shall be determined by the Committee in
accordance with Treasury Regulations applicable to incentive stock
options.
(k) "Income Before Income Taxes" means the amount designated as Income
Before Income Taxes for the applicable year and shown separately on
the Consolidated Statement of Income for such year.
(l) "Non-Employee Director" means any Director of the Company who at the
time of acting is a "Non-Employee Director" under Rule 16b-3 or any
successor rule ("Rule 16b-3") under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(m) "Participant" means a key employee of the Company who is selected by
the Committee to participate in any one or more parts of the Plan
from among persons who in the judgment of the Committee are key
employees of the Company. In general, key employees are those
employees who have principal responsibility for, or who contribute
substantially to, the management efficiency, editorial achievement
or financial success of the Company. Only employees of The New York
Times Company, its subsidiaries and other non-corporate entities in
which it owns directly or indirectly 40% or more of the equity
interests are eligible to participate in the Plan.
(n) "Retirement" means retirement as defined by the terms of "The New
York Times Companies Pension Plan" which became effective December
31, 1988, or any successor retirement plan, whether or not the
Participant is a member of such retirement plan, and, in the case of
employees of Affiliated Publications, Inc., or any subsidiary
thereof, who retire under the terms of the Globe Newspaper Company
Retirement Plan, which became effective January 1, 1994 (the "Globe
Pension Plan") or any successor retirement plan, "Retirement" shall
also mean retirement as defined by the terms of the Globe Pension
Plan or any successor plan.
3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board or the Committee appointed by
it and composed of two or more directors all of whom shall be Non-Employee
Directors. The membership of the Committee shall be constituted so as to comply
at all times with the applicable requirements of Rule 16b-3, and with the
administration requirements of Section 162(m)(4)(C) of the Code. The Committee
shall serve at the pleasure of the Board and shall have such powers as the Board
may from time to time confer upon it.
4. OPTIONS AND AWARDS UNDER THE PLAN
Options, which include "Non-Qualified Options" and "Incentive Stock
Options" or combinations thereof, are rights to purchase Common Stock.
Non-Qualified Options and Incentive Stock Options are subject to the terms,
conditions and restrictions provided in Part I of the Plan.
Awards under the Plan may include one or more of the following types,
either alone or in any combination thereof: (i) "Stock Awards," (ii) "Restricted
Stock Awards," (iii) "Retirement Unit Awards," (iv) "Annual Performance Awards,"
(v) "Performance Awards" or "Other Awards" and (vi) "Long-Term Performance
Awards."
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Stock Awards are granted under Part IIA of the Plan. Restricted Stock
Awards are granted under Part IIB of the Plan. Retirement Unit Awards are
granted under Part IIC of the Plan. Annual Performance Awards are granted under
Part IID of the Plan. Performance Awards or Other Awards are granted under Part
IIE of the Plan. Awards are subject to the terms, conditions and restrictions
provided in the respective subparts of Part II of the Plan. Annual Performance
Awards will be based exclusively on the criteria set forth in Section 27A.
Long-Term Performance Awards are granted under Part IIF of the Plan. Long-Term
Performance Awards will be based exclusively on the criteria set forth in
Section 28A.
PART I STOCK OPTIONS
5. PURPOSE
The purpose of the Stock Option portion of the Plan is to provide an added
incentive for effective service and high levels of performance to Participants
by affording them an opportunity, under the terms of the Plan, to acquire Common
Stock and thereby to increase their proprietary interest in the continued
progress and success of the Company.
6. DETERMINATION OF OPTIONEES; SHARES SUBJECT TO OPTIONS
(a) The Committee may grant options to purchase Common Stock ("Options")
to Participants in such amounts as the Committee may determine,
subject to the conditions and limitations set forth in the Plan.
Options may be granted in combination with Awards made under the
Plan, and Options may be granted to any Participant whether or not
he or she was eligible for, or received, an Award.
(b) The number of shares of Common Stock with respect to which Options
may be granted to any key employee during any calendar year shall
not exceed 400,000 (subject to adjustment as provided in Sections 28
and 29 hereof).
(c) There may be issued under the Plan pursuant to the exercise of
Options, an aggregate of not more than 60,000,000 shares of Common
Stock, subject to adjustment as provided in Sections 28 and 29
hereof. Shares of Common Stock issued pursuant to Options may be
either authorized but unissued shares, treasury shares, reacquired
shares, or any combination thereof. Any shares subject to an Option
which expires without being exercised shall be available for
issuance under new Options.
7. OPTION PRICE
The exercise price of Common Stock subject to Options granted pursuant to
the Plan shall be the Fair Market Value thereof at the time the Option is
granted. If a Participant owns or is deemed to be the owner of, by reason of the
attribution rules under Section 425(d) of the Code, more than 10% of the
combined voting power of all classes of the stock of the Company or any
subsidiary of the Company and an Option granted to such Participant is intended
to qualify as an Incentive Stock Option within the meaning of Section 422 of the
Code, the option price shall be no less than 110% of the Fair Market Value of
the Common Stock on the date the Option is granted.
8. PAYMENT OF OPTION PRICE
The purchase price is to be paid in full when the Option is exercised and
Common Stock will be delivered only against such payment. Payment of the option
price may be made (i) in cash, (ii) by
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delivering a properly executed exercise notice to the Company together with a
copy of irrevocable instructions to a broker to deliver promptly to the Company
the amount of sale or loan proceeds to pay the purchase price (or by otherwise
arranging, in a manner satisfactory to the Company, for a broker to promptly pay
the purchase price to the Company), (iii) by delivering to the Company shares of
Common Stock previously owned, or (iv) any combination of the foregoing forms,
all subject to the approval of the Committee and to such rules as the Committee
may adopt. In determining the number of shares of Common Stock necessary to be
delivered to the Company, such Common Stock shall be valued at Fair Market
Value.
9. TYPES OF STOCK OPTIONS
(a) Options granted under the Plan may be two types, an incentive stock
option ("Incentive Stock Option") and a non-qualified stock option
("Non-Qualified Option"). It is intended that Incentive Stock
Options granted hereunder shall constitute incentive stock options
within the meaning of Section 422 of the Code. Anything in the Plan
to the contrary notwithstanding, (i) no provision of this Plan
relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the
Plan be so exercised, so as to disqualify either the Plan or any
Incentive Stock Option granted under such provisions of the Code,
and (ii) no Option designated by the Committee as a Non-Qualified
Option shall constitute an Incentive Stock Option. In furtherance of
the foregoing and not by way of limitation, no Incentive Stock
Option shall be granted to a Participant who is not an employee of
The New York Times Company or one of its subsidiaries.
(b) If the aggregate Fair Market Value of the Common Stock (determined
as of the date of grant) for which any optionee may for the first
time exercise Incentive Stock Options in any calendar year under the
Plan and any other stock option plan of the Company, considered in
the aggregate, exceeds $100,000, such excess Incentive Stock Options
will be treated as Non-Qualified Options.
10. TERMS OF STOCK OPTIONS
(a) Each Option will be for a term of not more than ten years from the
date of grant, except that if a Participant owns or is deemed to be
the owner of, by reason of the attribution rules of Section 425(d)
of the Code, more than 10% of the combined voting power of all
classes of stock of the Company or any subsidiary of the Company and
an Incentive Stock Option is granted to such Participant, the term
of such Option shall be no more than five years from the date of
grant.
(b) An Option may not be exercised within one year after the date of
grant except in the case of the death of the optionee or upon
termination of active employment with the Company by reason of the
Disability or Retirement of the optionee during such period.
Thereafter, an Option shall be exercisable in such installments, if
any, as the Committee may specify, and shall be exercisable during
the optionee's lifetime only by the optionee (or, if the optionee is
disabled, by any guardian or other legal representative appointed to
represent him or her) and, except as provided in subsections (c) and
(d) below, shall not be exercisable by the optionee unless at the
time of exercise such optionee is an employee of the Company.
(c) Upon termination of active employment with the Company by reason of
Disability or Retirement, an optionee (or, if the optionee is
disabled, any guardian or legal representative appointed to
represent him or her) may exercise all Options otherwise
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exercisable by him or her at the time of such termination of
employment (subject to the provisions of subsection (e) below) until
the expiration thereof. In the event an optionee dies while employed
by the Company or after termination of employment by reason of
Disability or Retirement, the person who acquired the right to
exercise his or her Options by reason of the death of the optionee,
as provided in Section 30 hereof, may exercise such Options
otherwise exercisable at the time of death (subject to the
provisions of subsection (e) below) at any time until the expiration
thereof.
(d) Upon termination of employment with the Company for any reason other
than death, Retirement or Disability, the optionee may exercise all
Options otherwise exercisable by him or her at the time of such
termination of employment for an additional one year after such
termination of employment. In the event such optionee dies within
such one-year period, the person who acquired the right to exercise
his or her Options by reason of the death of the optionee, as
provided in Section 30 hereof, may exercise such Options at any time
within the period of the greater of (i) the remainder of the
one-year period described in the foregoing sentence, or (ii) three
months from the date of the optionee's death. For purposes of this
Section 10(d), in the event that any optionee is rehired by the
Company within one year of such optionee's termination of employment
with the Company, such optionee shall be deemed not to have
terminated employment for purposes of determining the expiration
date of all unexpired non-qualified stock options held by such
individual on the date of rehire, with the effect that such options
shall continue to be exercisable at any time until the expiration
thereof (subject to the terms thereof and the provisions of this
Section 10).
(e) Notwithstanding any of the foregoing, no Option shall be exercisable
in whole or in part after the expiration date provided in the
Option. In the event of the death of the optionee while employed by
the Company, or the Disability or Retirement of the optionee, the
Committee shall have the discretion to provide for the acceleration
of the exercisability of Options exercisable over a period of time,
or alternatively, to provide for all or any part of such Options to
continue to become exercisable in such installments as originally
specified by the Committee, or such revised installments as
specified by the Committee at the time of termination of employment
(but in no event beyond the original expiration date), in either
case subject to such conditions as determined by the Committee in
its discretion.
(f) No Option shall be transferable otherwise than by will or by the
laws of descent and distribution. Notwithstanding the foregoing
sentence, the Committee may determine that Options granted to a
Participant or a specified group of Participants may be transferred
by the Participant to one or more members of the Participant's
immediate family, to a partnership or limited liability company
whose only partners or members are members of the Participant's
immediate family, or to a trust established by the Participant for
the benefit of one or more members of the Participant's immediate
family; provided, however, that no Incentive Stock Options may
become transferable if inconsistent with Section 422 of the Code,
unless the Participant consents. For this purpose, "immediate
family" means the Participant's spouse, parents, children (including
adopted and step-children), grandchildren and the spouses of such
parents, children (including adopted and step-children) and
grandchildren. A transferee described in this subsection may not
further transfer an Option. An Option transferred pursuant to this
subsection shall remain subject to the provisions of the Plan and
shall be subject to such other rules as the Committee shall
determine.
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11. OPTION AGREEMENTS
In consideration of any Options granted to a Participant under the Plan,
if requested by the Committee, such Participant shall enter into an Option
Agreement with the Company providing such other terms as the Committee may deem
advisable.
PART II AWARDS
12. FORM OF AWARDS
The Award portion of the Plan is designed to provide incentives for
Participants by the making of awards of supplemental compensation ("Awards").
The Committee, subject to the terms and conditions hereof, may make Awards to a
Participant in any one, or in any combination, of the following forms:
(a) Common Stock as provided in Part IIA of the Plan ("Stock Awards");
(b) Restricted Stock as provided in Part IIB of the Plan ("Restricted
Stock Awards");
(c) Retirement Units as provided in Part IIC of the Plan ("Retirement
Unit Awards");
(d) Annual Performance Awards as provided in Part IID of the Plan
("Annual Performance Awards");
(e) Performance Awards ("Performance Awards") or other forms of Awards
("Other Awards"), as provided in Part IIE of the Plan; and
(f) Long-Term Performance Awards as provided in Part IIF of the Plan
("Long-Term Performance Awards").
Awards may be made to a Participant whether or not he or she is receiving
an Option grant under Part I of the Plan for the year and whether or not he or
she receives an award under the Cash Plan.
Awards will be based on a Participant's performance in those areas for
which the Participant is directly responsible. Performance for this purpose may
be measured by the achievement of specific management goals such as, but not
limited to, an increase in earnings or the operating cash flow of the Company,
outstanding initiative or achievement in any department of the Company, or any
other standards specified by the Committee. Annual Performance Awards will be
based exclusively on the criteria set forth in Section 27A. Long-Term
Performance Awards will be based exclusively on the criteria set forth in
Section 28A.
13. MAXIMUM AMOUNT AVAILABLE FOR THE ACCRUAL OF AWARDS UNDER PART II OF THE
PLAN FOR ANY YEAR
(a) No accrual for Awards shall be made hereunder (or under the Cash
Plan) for any year unless cash dividends of not less than five cents
($.05) per share (subject to adjustment as provided in Sections 28
and 29 hereof) have been declared on the outstanding Class A and
Class B Common Stock of the Company during such year.
(b) In the event that the above condition is met for any year during the
continuance of this Plan, the maximum aggregate amount that may be
accrued for Awards under the Plan and the Cash Plan for such year
shall be 4% of Income Before Income Taxes. The
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Committee, in its sole discretion, may make adjustments in Income
Before Income Taxes to take account of extraordinary, unusual or
infrequently occurring events and transactions, changes in
accounting principles that substantially affect the foregoing, or
such other circumstances as the Committee may determine warrant such
adjustment.
(c) As soon as feasible after the close of each year, the independent
certified public accountants of the Company shall report the maximum
amount that may be accrued for Awards for such year under the
formula described in Section 13(b), subject to the second sentence
of such Section.
(d) If amounts are accrued in any year under the formula described in
this Section 13 and are not awarded in full in such year under the
Plan and the Cash Plan, such unawarded amounts may, in the
discretion of the Committee, be carried forward and be available for
Awards under the Plan and under the Cash Plan in any future year
without regard to the provisions of Sections 13(a) or (b) of the
Plan applicable to Awards made in such year.
(e) Awards under the Plan for any year may not exceed the sum of (i) the
amount accrued for such year under Section 13(b) above plus (ii)
unawarded accrued amounts carried forward from previous years under
Section 13(d) above plus (iii) amounts that may become available for
Awards pursuant to the last sentence of Sections 15(c) and 27A
hereof, minus (x) the amount of interest or dividend equivalents set
aside during such year pursuant to Sections 15(c) and 27A hereof and
the amount of dividend equivalents allocated to Retirement Unit
Accounts during such year pursuant to Section 24 hereof, and minus
(y) the amount of awards made for such year under the Cash Plan (and
any interest equivalents allocated during such year pursuant to
Section 10(b), 11(f) and 12(b) thereof). For this purpose, the
amount of Awards of Common Stock under the Plan shall be based on
the Fair Market Value of the Common Stock subject to Awards as of
the date of grant of such Awards.
(f) Subject to Sections 28 and 29 hereof, the aggregate number of shares
of Common Stock for which Stock, Restricted Stock, Retirement Units,
Annual Performance Awards, and Performance and Other Awards may be
made under the Plan shall not exceed 2,000,000 shares, which shall
be treasury shares reserved for issuance of Awards under the Plan.
Shares of Common Stock subject to, but not issued under, any
deferred Award which has been discontinued by the Committee pursuant
to the provisions hereof or any Restricted Stock which is forfeited
by any Participant shall again be available for Awards under the
Plan.
14. DETERMINATION OF AWARDS AND PARTICIPANTS
(a) As promptly as practicable after the end of each year, the Committee
may make Awards (other than Annual Performance Awards and Long-Term
Performance Awards, which are to be made exclusively as set forth in
Sections 27A and 28A, respectively) for such year and determine the
amounts to be carried forward for Awards in future years. The
Committee may also, in its discretion, make Awards (other than
Annual Performance Awards and Long-Term Performance Awards, which
are to be made exclusively as set forth in Sections 27A and 28A,
respectively) prior to the end of the year based on the amounts
available under clauses (ii) and (iii) of Section 13(e) and
reasonable estimates of the accrual for the year in question.
(b) The Committee shall have absolute discretion to determine the key
employees who are to receive Awards (other than Annual Performance
Awards, which are to be made
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exclusively as set forth in Sections 27A and 28A, respectively)
under the Plan for any year and to determine the amount of such
Awards based on such criteria and factors as the Committee in its
sole discretion may determine, such as the Company's operating cash
flow and overall financial performance. Recommendations as to the
key employees who are to receive Awards (including Annual
Performance Awards and Long-Term Performance Awards) under the Plan
for any year and as to the amount and form of such Awards shall,
however, be made to the Committee by the chief executive officer of
the Company. The fact that an employee is selected as eligible for
an Award shall not mean, however, that such employee will
necessarily receive an Award.
(c) A person whose employment terminates during the year or who is
granted a leave of absence during the year may, in the discretion of
the Committee and under such rules as the Committee may from time to
time prescribe, be given an Award with respect to the period of such
person's service during such year.
15. METHOD AND TIME OF PAYMENT OF AWARDS
(a) Awards shall be paid in full as soon as practicable after the Award
is made; provided, however, that the payment of Annual Performance
Awards and Long-Term Performance Awards shall be subject to the
provisions of Sections 27A and 28A, respectively, and provided
further, that the payment of any or all Awards may be deferred,
divided into annual installments, or made subject to such other
conditions as the Committee in its sole discretion may authorize
under such rules and regulations as may be adopted from time to time
by the Committee.
(b) The Committee's rules and regulations may include procedures by
which a Participant expresses a preference to the Committee as to
the form of Award or method of payment of an Award but the final
determination as to the form and the terms and conditions of any
Award shall rest solely with the Committee.
(c) Awards deferred under the Plan shall become payable to the
Participant or, in the event of the Participant's death, as
specified in Section 30 hereof, in such manner, at such time or
times (which may be either before or after Retirement or other
termination of service), and subject to such conditions as the
Committee in its sole discretion shall determine. In any year the
Committee shall have the discretion to set aside, for payment in
such year or any future year, interest on any deferred Award payable
partly in cash, and amounts equivalent to dividends on any deferred
Award payable wholly or partly in stock; provided, however, that the
total amount of such interest and dividend equivalents shall be
deducted from the maximum amount available for Awards under Section
13(e) of the Plan. Any forfeited deferred Awards (including any
forfeited stock at its Award value) shall be carried forward and be
available for Awards in any future year without regard to the
provisions of Sections 13(a) or (b) of the Plan.
16. INDIVIDUAL AGREEMENTS
(a) The Committee may in its discretion require that each Participant
receiving an Award enter into an agreement with the Company which
shall contain such terms and conditions as the Committee in its
discretion may require.
(b) The Committee may cancel any unexpired, unpaid or deferred Award at
any time if the Participant is not in compliance with all applicable
provisions of the agreement referred to above, if any, and the Plan.
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17. STATUS OF PARTICIPANTS
No Participant in this Plan shall be deemed to be a stockholder of the
Company, or to have any interest in any stock or any specific assets of the
Company by reason of the fact that deferred Stock Awards, Retirement Unit
Awards, Annual Performance Awards, Long-Term Performance Awards, Performance
Awards, Other Awards or dollar credits are to be recorded as being held for such
Participant's account to be paid in installments in the future. The interest of
all Participants shall derive from and be determined solely by the terms and
provisions of the Plan set forth herein.
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PART IIA STOCK AWARDS
19. DETERMINATION OF STOCK AWARDS
(a) Each year the Committee shall designate those Participants who shall
receive Stock Awards under this part of the Plan. Stock Awards may
be granted under this part of the Plan only in lieu of cash salary
or bonuses. Stock Awards are made in the form of grants of Common
Stock, which may be delivered immediately, in installments or on a
deferred date, as the Committee, in its discretion, may provide.
(b) If the Committee determines that some portion of a Stock Award to a
Participant shall be treated as a deferred Stock Award and payable
in annual or other periodic installments, then the Participant will
be notified in writing when such deferred Stock Awards shall be paid
and over what period of time. As soon as feasible after the granting
of such a Stock Award, there shall be reserved out of the treasury
shares of the Company, a number (which may include a fraction) of
shares of Common Stock equal to the number of shares of Common Stock
so awarded. In each year at the discretion of the Committee there
may also be allocated or credited to each Participant a dollar
amount equal to the cash dividends declared and paid by the Company
on its Common Stock which the Participant would have received had
such Participant been the owner of the number of shares of any
Common Stock deferred for future payment. Any amounts provided for
pursuant to the preceding sentence shall become payable in such
manner, at such time or times, and subject to such conditions (which
may include provision for an amount equivalent to interest on such
dividend equivalents at rates fixed by the Committee) as the
Committee in its sole discretion shall determine; provided, however,
that the total value of such dividend equivalents (and any interest
thereon) shall be deducted from the amount available for Awards
under the provisions of Section 13(e) of the Plan. The Committee in
its discretion may make appropriate equitable adjustments to such
deferred Stock Award to account for any dividends of property (other
than cash) declared and paid by the Company on its Common Stock, or
to account for any other event described in Sections 28 and 29
hereof.
PART IIB RESTRICTED STOCK AWARDS
20. DETERMINATION OF RESTRICTED STOCK AWARDS
Each year the Committee shall designate the Participants who shall receive
Restricted Stock Awards. Shares awarded under this part of the Plan, while
subject to the restrictions hereinafter set forth,
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are referred to as "Restricted Stock."
21. TERMS OF RESTRICTED STOCK AWARDS
Any Award of Restricted Stock shall be subject to the following terms and
conditions and to any other terms and conditions not inconsistent with the Plan
as shall be prescribed by the Committee in its sole discretion and which may be
contained in the agreement, if any, referred to in Section 16 above (or in any
amendment thereto):
(a) DELIVERY OF RESTRICTED STOCK. Unless otherwise determined by the
Committee, the Company shall transfer treasury shares to each
Participant to whom an Award of Restricted Stock has been made equal
to the number of shares of Restricted Stock specified in the Award,
and may either (i) hold the certificates representing such shares of
Restricted Stock for the Participant or (ii) take other steps to
restrict the Participant's ability to transfer such shares, in
either case, for the period of time during which such shares shall
remain subject to the restrictions set forth in the Award (the
"Restricted Period"). Shares of Restricted Stock may not be sold,
assigned, transferred, pledged, hypothecated or otherwise encumbered
by a Participant during the Restricted Period, except as hereinafter
provided. Except for the restrictions set forth herein and unless
otherwise determined by the Committee, a Participant shall have all
the rights of a stockholder with respect to the shares of Restricted
Stock comprising his or her Award, including, but not limited to,
the right to vote and the right to receive dividends (which if in
shares of Common Stock shall be Restricted Stock under the same
terms and conditions).
(b) RESTRICTED PERIOD. The Restricted Period shall commence upon the
date of the Award (which unless otherwise specified by the Committee
shall be the date the Restricted Stock is transferred to the
Participant) and, unless sooner terminated as otherwise provided
herein, shall continue for such period of time as specified by the
Committee in the Award. The Restricted Period for Restricted Stock
shall be at least (i) one year in the case of Restricted Stock
having restrictions based on performance-based criteria and (ii)
three years in the case of Restricted Stock having restrictions
based solely on the passage of time. The terms of any Award of
Restricted Stock, or the Committee at any time, may provide for the
earlier termination of the Restricted Stock Period in the case of,
and only in the case of, the death, Disability or Retirement of the
Participant.
(c) LEGEND. If certificates are issued in respect of shares of
Restricted Stock transferred or issued to a Participant under an
Award registered in the name of the Participant, such
certificate shall bear the following (or a similar) legend:
"THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE
SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE NEW YORK TIMES
COMPANY 1991 EXECUTIVE STOCK INCENTIVE PLAN (THE "PLAN") APPLICABLE
TO RESTRICTED STOCK AND TO THE RESTRICTED STOCK AGREEMENT DATED (THE
"AGREEMENT"), AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED,
HYPOTHECATED, OR OTHERWISE DISPOSED OF OR ENCUMBERED IN ANY MANNER
DURING THE RESTRICTED PERIOD SPECIFIED IN SUCH AGREEMENT. COPIES OF
SUCH PLAN AND AGREEMENT ARE ON FILE WITH THE SECRETARY OF THE
COMPANY."
(d) DEATH OR DISABILITY. Unless the Committee shall otherwise determine
in the
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Award, if a Participant ceases to be employed by the Company by
reason of death or Disability, the Restricted Period covering all
shares of Restricted Stock transferred or issued to such Participant
under the Plan shall immediately lapse.
(e) RETIREMENT. Unless the Committee shall otherwise determine in the
Award, the Restricted Period covering all shares of Restricted Stock
transferred to a Participant under the Plan shall immediately lapse
upon such Participant's Retirement, whether early or not.
(f) TERMINATION OF EMPLOYMENT. Unless the Committee shall otherwise
determine in the Award or otherwise determine at or after the date
of grant, if a Participant ceases to be employed by the Company
other than due to a condition described in Sections 21(d) or (e)
above, all shares of Restricted Stock owned by such Participant for
which the Restricted Period has not lapsed shall revert back to the
Company upon such termination. Authorized leave of absence or
absence in military service shall constitute employment for the
purposes of this Section 21(f). Whether absence in government
service may constitute employment for the purposes of the Plan shall
be conclusively determined by the Committee.
(g) WAIVER OF FORFEITURE PROVISIONS. The Committee, in its sole and
absolute discretion, may waive the forfeiture provisions in respect
of all or some of the Restricted Stock awarded to a Participant.
(h) LAPSE OF RESTRICTED PERIOD. Upon the lapse of the Restricted Period
with respect to any shares of Restricted Stock, such shares shall no
longer be subject to the restrictions imposed in the Award and shall
no longer be considered Restricted Stock for the purposes of the
Award and the Plan, and the Company shall take all appropriate steps
to effect the foregoing.
PART IIC RETIREMENT UNIT AWARDS
22. DETERMINATION OF RETIREMENT UNIT AWARDS
Each year the Committee shall designate those Participants who shall
receive Retirement Unit Awards under the Plan. The Company shall create and
maintain appropriate records of account for each Participant which shall be
designated as the Participant's Retirement Unit Account.
23. CREDITS TO RETIREMENT UNIT ACCOUNTS
The Committee shall allocate to each Participant selected to receive a
Retirement Unit Award for that year such dollar amount as the Committee shall
determine, taking into account the value of the Participant's services to the
Company. Such dollar amount shall thereupon be converted into Retirement Units
or fractions of Units and credited to each such Participant's Retirement Unit
Account in a number equal to the quotient obtained by dividing such allocated
dollar amount by the Fair Market Value of one share of Common Stock as of the
date the allocation is made.
24. DIVIDEND CREDITS
At the discretion of the Committee there may also be allocated in each
year to each Participant a dollar amount equal to the cash dividends declared
and paid by the Company on the Common Stock which the Participant would have
received had such Participant been the owner of the number of shares of
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Common Stock equal to the number of the whole Retirement Units (but not
fractional Units) credited to the Participant's Retirement Unit Account;
provided, however, that the total value of such dividend equivalents shall be
deducted from the amount available for Awards under Section 13 of the Plan. The
dollar amounts allocated shall be converted into and credited to the
Participant's Retirement Unit Account as Retirement Units or fractions thereof
as set forth in Section 23 above as of the date on which such dividends were
paid by the Company. No interest shall be paid on the dollar amount so allocated
to the Retirement Unit Account of any Participant. The Committee in its
discretion may make appropriate equitable adjustments to such Retirement Unit
Accounts to account for any dividends of property (other than cash) declared and
paid by the Company on its Common Stock, or to account for any other event
described in Sections 28 and 29 hereof.
25. RESERVATION OF STOCK AND ACCOUNTING RECORDS
The Company shall keep records of the Participant's Retirement Unit
Account. At the time of any allocation to a Participant's account under Sections
23 or 24 hereof, there shall be reserved out of treasury shares of the Company a
number (which may include a fraction) of shares of Common Stock equal to the
number of Units or fraction thereof so allocated.
26. MATURITY AND PAYMENT AFTER MATURITY
(a) The Retirement Unit Account of each Participant shall mature upon
such Participant's death, Retirement or other termination of
employment.
(b) After maturity, the Company shall deliver to the Participant (or in
the event of the death of the Participant, as specified in Section
30 hereof) in ten approximately equal annual installments, shares of
Common Stock equal in the aggregate to the number of Retirement
Units credited to the Participant's Retirement Unit Account. Any
fraction of a Unit credited to the Participant's account at maturity
shall be paid in cash with the first installment, the fractional
Unit being converted into cash at the Fair Market Value of the
Common Stock on such first payment date. The first such installment
shall be paid within 90 days after maturity. However, the Committee
in its discretion at or any time after maturity may, with the
consent of the Participant (or the beneficiary of a deceased
Participant as specified in Section 30 hereof), (i) defer the
commencement of such distribution or defer any installment, (ii)
deliver full payment of the shares of Common Stock equal to the
aggregate number of Retirement Units credited to the Participant's
Retirement Unit Account and the dollar amount credited thereto, or
(iii) reduce or increase the number of annual installments in which
the payments are to be made.
(c) So long as Retirement Units remain credited to the Retirement Unit
Account of a Participant subsequent to maturity, such account shall
be credited with the dollar amount allocated to the account as
dividends as provided for in Section 24 hereof. Any dollar amount so
credited may be paid in cash with the next succeeding annual
installment made under Section 26(b) above, or in such manner, at
such time or times, and subject to such conditions as the Committee
in its sole discretion shall determine; provided, however, that in
the case of any dollar amount credited to an account after maturity
in respect of a dividend declared prior to maturity, such dollar
amounts shall be converted to Retirement Units as of the date of
payment and the remaining installments of Common Stock shall be
increased accordingly.
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PART IID ANNUAL PERFORMANCE AWARDS
27A. DETERMINATION OF ANNUAL PERFORMANCE AWARDS
(a) GENERAL. Each year the Committee may make Annual Performance Awards
under this part of the Plan; provided that no Participant may be
eligible to receive an Annual Performance Award hereunder and under
the Cash Plan in the same year.
(b) CERTAIN DEFINITIONS. For the purposes of this Section 27A, the
following terms shall have the meanings specified:
"Affected Officers" shall mean those executive officers of the Company
whose compensation is required to be disclosed in the Company's annual proxy
statement relating to the election of directors.
"Code Section 162(m)" shall mean Section 162(m) of the Code (or any
successor provision), and "Regulations" shall mean the regulations promulgated
thereunder, as from time to time in effect.
"Eligible Participants" shall have the meaning set forth in subsection (c)
below.
"Performance Adjustment" means, for any year, a factor ranging from 0% to
200%, based upon the achievement of Performance Goal Targets established by the
Committee, that, when multiplied by an Eligible Participant's Target Award,
determines the amount of such Eligible Participant's Annual Performance Award
for such year.
"Performance Goal" means, for any year, the business criteria selected by
the Committee to measure the performance during such year of the Company (or of
a division, subsidiary or group thereof) from one or more of the following:
(i) earnings per share of the Company for the year;
(ii) net income of the Company for the year;
(iii) return on assets of the Company for the year (net income of the
Company for the year divided by average total assets during such
year);
(iv) return on stockholder's equity of the Company for the year (net
income of the Company for the year divided by average
stockholder's equity during such year);
(v) operating profit or operating margins of the Company or of a
division, subsidiary or group thereof for the year;
(vi) cash flow of the Company or of a division, subsidiary or group
thereof for the year;
(vii) increase in shareholder value as determined at the end of each
year;
(viii) revenue growth of the Company or of a division, subsidiary or
group thereof for the year; and
(ix) improved use of capital and/or assets of the Company or of a
division, subsidiary or group thereof for the year.
"Performance Goal Target" means, for any Performance Goal, the levels of
performance during
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a year under such Performance Goal established by the Committee to determine the
Performance Adjustment to an Eligible Participant's Target Award for such year.
"Target Award" means, for any year, with respect to an Eligible
Participant, the dollar amount set by the Committee that, when multiplied by the
applicable Performance Adjustment, determines the dollar amount of such Eligible
Participant's Annual Performance Award.
(c) ELIGIBILITY. Annual Performance Awards are available each year only
to Plan Participants who are designated by the Committee, prior to
March 31 of such year (or prior to such later date as permitted by
Code Section 162(m) and the Regulations), as likely to be Affected
Officers for such year, whose annual salary and bonus for such year
are expected to exceed $1,000,000 and who are not designated by the
Committee as eligible for an annual performance award under the Cash
Plan for such year ("Eligible Participants").
(d) DETERMINATION OF ANNUAL PERFORMANCE AWARDS. Prior to March 31 of
each year (or prior to such later date as permitted by Code Section
162(m) and the Regulations), the Committee will determine the
Eligible Participants for such year, will designate those Eligible
Participants who will be entitled to earn an Annual Performance
Award for such year under this Plan, and will establish for each
such Eligible Participant for such year: (i) a Target Award, (ii)
one or more Performance Goals, and (iii) for each such Performance
Goal, a Performance Goal Target, the method by which achievement
thereof will be measured and a schedule of Performance Adjustment
factors corresponding to varying levels of Performance Goal Target
achievement. In the event more than one Performance Goal is
established for any Eligible Participant, the Committee shall at the
same time establish the weighting of each such Performance Goal in
determining such Eligible Participant's Annual Performance Award.
Notwithstanding anything in this Section 27A to the contrary, the
Annual Performance Award payable to any Eligible Participant in any
year may not exceed $3.0 million.
(e) PAYMENT OF ANNUAL PERFORMANCE AWARDS. Subject to subsection (f)
below, Annual Performance Awards will be paid as soon as practicable
after the end of the year to which it relates and after the
Committee certifies the extent to which the Performance Goal Target
or Targets under the Performance Goal or Goals have been met or
exceeded. In the discretion of the Committee, an Annual Performance
Award may be paid in cash, shares of Common Stock, shares of
Restricted Stock (subject to the provisions of Section 21 hereof),
Retirement Units (subject to the provisions of Sections 23-26
hereof) or any combination thereof. For this purpose, shares of
Common Stock shall be valued at Fair Market Value, and Restricted
Stock and Retirement Units shall be deemed to have a value equal to
the Fair Market Value of the underlying Common Stock, in each case
as of the date of the Committee's determination to pay such Annual
Performance Award in such form or forms. If permitted by the
Regulations and Code Section 162(m), the Committee may determine to
pay a portion of an Annual Performance Award in December of the year
to which it relates. The Committee may not increase the amount of an
Annual Performance Award that would otherwise be payable upon
achievement of the Performance Target or Targets, but it may reduce
any Eligible Participant's Annual Performance Award in its
discretion. Subject to Section 14(c) above, no Annual Performance
Award will be payable to any Eligible Participant who is not an
employee of the Company on the last day of the year to which such
Annual Performance Award relates.
(f) DEFERRAL OF ANNUAL PERFORMANCE AWARDS. If the Committee
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determines that some portion of an Annual Performance Award to an
Eligible Participant shall be treated as a deferred Annual
Performance Award and be payable in annual or other periodic
installments, the Eligible Participant will be notified in writing
when such deferred Annual Performance Award shall be paid and over
what period of time. A deferred Award in the form of shares of
Common Stock shall be subject to the provisions of Section 19(b)
hereof. In the case of a deferred Award in the form of cash, in each
year the Committee shall have the discretion to provide for the
payment of an amount equivalent to interest, at such rate or rates
fixed by the Committee, on such deferred cash Annual Performance
Award. Any amounts provided for pursuant to the preceding sentence
shall become payable in such a manner, at such time or times, and
subject to such conditions as the Committee shall in its sole
discretion determine; provided, however, that the total amount of
such interest shall be deducted from the maximum amount available
for Awards under the formula described in Section 13 of the Plan.
(g) CODE SECTION 162(m). It is the intent of the Company that Annual
Performance Awards satisfy, and this Section 27A be interpreted in a
manner that satisfies, the applicable requirements of Code Section
162(m) and the Regulations so that the Company's tax deduction for
Annual Performance Awards to Affected Officers is not disallowed in
whole or in part by operation of Code Section 162(m). If any
provision of this Plan or of any Annual Performance Award would
otherwise frustrate or conflict with such intent, that provision
shall be interpreted and deemed amended so as to avoid such
conflict. To the extent of any irreconcilable conflict with such
intent, such provision shall be deemed void as applicable to
Eligible Participants.
PART IIE PERFORMANCE OR OTHER AWARDS
27. DETERMINATION OF PERFORMANCE AND OTHER AWARDS
(a) Each year the Committee in its sole discretion may authorize other
forms of Awards such as, but not limited to, Performance Awards, if
the Committee deems it appropriate to do so in order to further the
purposes of the Plan.
(b) A "Performance Award" shall mean an Award which entitles the
Participant to receive Common Stock, Restricted Stock, Retirement
Units, Options under Part I of the Plan or other compensation (which
may include cash), or any combination thereof, in an amount which
depends upon the financial performance of the Company during a
stated period of more than one year. Performance for this purpose
may be measured by the growth in book value of the Common Stock, an
increase in per share earnings of the Company, an increase in
operating cash flow, or any other indicators specified by the
Committee. The Committee shall also fix the period during which such
performance is to be measured, the value of a Performance Award for
purposes of providing for the accrual pursuant to Section 13 of the
Plan and the form of payment to be made in respect of the
Performance Award.
PART IIF LONG-TERM PERFORMANCE AWARDS
28A. DETERMINATION OF LONG-TERM PERFORMANCE AWARDS
(a) GENERAL. Each year the Committee shall designate those Participants
who shall be
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eligible to receive Long-Term Performance Awards under this part of
the Plan.
(b) CERTAIN DEFINITIONS. For purposes of this Section 28A, the following
terms shall have the meanings specified:
"Code Section 162(m)" shall mean Section 162(m) of the Internal Revenue
Code of 1986, as amended (or any successor provision), and "Regulations" shall
mean the regulations promulgated thereunder, as from time to time in effect.
"Eligible Participants" shall mean certain key business leaders and senior
management of the Company as determined in the discretion of the Committee.
"Long-Term Performance Goal" means, for any Performance Period, the
business criteria selected by the Committee to measure the performance during
such Performance Period of the Company (or of a division, subsidiary or group
thereof) from one or more of the following:
(i) earnings per share of the Company for the Performance Period;
(ii) net income of the Company for the Performance Period;
(iii) return on assets of the Company for the Performance Period (net
income of the Company for the Performance Period divided by average
total assets for such Performance Period);
(iv) return on stockholder's equity of the Company for the Performance
Period (net income of the Company for the Performance Period divided
by average stockholder's equity for such Performance Period);
(v) operating profit or operating margins of the Company or of a
division, subsidiary or group thereof for the Performance Period;
(vi) cash flow of the Company or of a division, subsidiary or group
thereof for the Performance Period;
(vii) increase in shareholder value as determined at the end of the
Performance Period;
(viii) revenue growth of the Company or of a division, subsidiary or group
thereof for the Performance Period; and
(ix) improved use of capital and/or assets of the Company or of a
division, subsidiary or group thereof for the Performance Period.
"Long-Term Performance Goal Target" means, for any Long-Term Performance
Goal, the levels of performance during a Performance Period under such Long-Term
Performance Goal established by the Committee to determine an Eligible
Participant's maximum Long-Term Performance Award.
"Performance Period" means the period in excess of one year commencing on
January 1 of the year in which the Committee makes the Long-Term Performance
Award to an Eligible Participant.
(c) ELIGIBILITY. Long-Term Performance Awards are available each year to
Eligible Participants who are designated by the Committee, prior to
March 31 of such year (or prior to such later date as permitted by
Code Section 162(m) and the Regulations).
(d) DETERMINATION OF LONG-TERM PERFORMANCE AWARDS. Prior to
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March 31 of each year (or prior to such later date as permitted by
Code Section 162(m) and the Regulations), the Committee will
designate the Eligible Participants who will be entitled to earn a
Long-Term Performance Award for such Performance Period under this
Plan, and will establish for each such Eligible Participant for such
Performance Period (i) one or more Long-Term Performance Goals, and
(ii) for each such Long-Term Performance Goal, a Long-Term
Performance Goal Target and the method by which achievement thereof
will be measured. In the event that more than one Long-Term
Performance Goal is established for any Eligible Participant, the
Committee shall at the same time establish the weighting of each
such Long-Term Performance Goal in determining such Eligible
Participant's Long-Term Performance Award. Notwithstanding anything
in this Section 28A to the contrary, the Long-Term Performance Award
payable to any Eligible Participant in any Performance Period may
not exceed $3.0 million.
(e) PAYMENT OF LONG TERM PERFORMANCE AWARDS. Subject to subsection (g)
below, Long-Term Performance Awards will be paid in cash as soon as
practicable after the end of the Performance Period to which it
relates and after the Committee certifies the extent to which the
Long-Term Performance Goal Target or Targets under the Long-Term
Performance Goal or Goals have been met or exceeded. If permitted by
the Regulations and Code Section 162(m), the Committee may determine
to pay a portion of a Long-Term Performance Award in December of the
last year of the Performance Period to which it relates. The
Committee may not increase the amount of a Long-Term Performance
Award that would otherwise be payable upon the achievement of the
Long-Term Performance Goal Target or Targets, but it may reduce any
Eligible Participant's Long-Term Performance Award in its
discretion. Subject to Sections 14(c) and 28A(g), no Long-Term
Performance Award will be payable to any Eligible Participant who is
not an employee of the Company on the last day of the Performance
Period to which such Long-Term Performance Award relates.
(f) TERMINATION OF EMPLOYMENT BECAUSE OF DEATH, DISABILITY OR
RETIREMENT. In the event that an Eligible Participant terminates
employment because of death, Disability or Retirement, such Eligible
Participant, or in the event of death such person as determined in
accordance with Section 30, shall be paid a pro rata portion of such
Eligible Participant's Long-Term Performance Award that would
otherwise be payable upon the achievement of the Long-Term
Performance Goal Target or Targets had the Participant continued
employment until the end of the Performance Period. Such pro rata
Long-Term Performance Award shall not be paid until the end of the
Performance Period to which such Long-Term Award relates.
(g) DEFERRAL AND ALTERNATIVE FORM OF PAYMENT OF LONG-TERM PERFORMANCE
AWARDS. If the Committee determines that some portion of a Long-Term
Performance Award to an Eligible Participant shall be treated as a
deferred Long-Term Performance Award and payable in annual or other
periodic installments, the Eligible Participant will be notified in
writing when such deferred Long-Term Performance Award shall be paid
and over what period of time. In each year the Committee shall have
the discretion to provide for the payment of an amount equivalent to
interest, at such rate or rates fixed by the Committee, on any
deferred Long-Term Performance Award. Any amounts provided for
pursuant to the preceding sentence shall become payable in such
manner, at such time or times, and subject to such conditions as the
Committee shall in its sole discretion determine; provided, however,
that the total amount of such interest shall be deducted from the
maximum amount available for Awards under the formula described in
Section 5 of the Plan. Furthermore, the
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Committee may, in its sole discretion, determine that such Long-Term
Performance Award shall be paid in shares of Common Stock or in the
form of Retirement Units (subject to the provisions of Sections
23-26 hereof). For this purpose, shares of Common Stock shall be
valued at Fair Market Value, and Retirement Units shall be deemed to
have a value equal to the Fair Market Value of the underlying Common
Stock, in each case as of the date of the Committee's determination
to pay such Long-Term Performance Award in such form.
(h) CODE SECTION 162(m). It is the intent of the Company that Long-Term
Performance Awards satisfy, and this Section 28A be interpreted in a
manner that satisfies, the applicable requirement of Code Section
162(m) and the Regulations so that the Company's tax deduction for
Long-Term Performance Awards to Eligible Participants is not
disallowed in whole or in part by operation of Code Section 162(m).
If any provision of this Plan or of any Long-Term Performance Award
would otherwise frustrate or conflict with such intent, that
provision shall be interpreted and deemed amended so as to avoid
such conflict. To the extent of any irreconcilable conflict with
such intent, such provision shall be deemed void as applicable to
any Participant whose compensation is subject to Code Section
162(m).
PART III GENERAL PROVISIONS
28. STOCK DIVIDEND OR STOCK SPLIT
If at any time the Company shall take any action whether by stock
dividend, stock split, combination of shares, or otherwise, which results in a
proportionate increase or decrease in the number of shares of Common Stock
theretofore issued and outstanding, (i) the number of shares of Common Stock
then subject to deferred Awards, credited to Retirement Unit Accounts (matured
or unmatured) or set aside for Performance or Other Awards, (ii) the number of
outstanding Options, the number of shares of Common Stock for which such Options
are exercisable and the exercise price thereof, (iii) the number of shares of
Common Stock reserved for Awards, (iv) the number of shares of Common Stock
reserved for Options, and (v) the maximum number of shares with respect to which
Options may be granted to any key employee in any calendar year under Section
6(b), shall be increased or decreased in the same proportion. The Committee
shall make an appropriate equitable adjustment to the provisions of Section
13(a) to take account of such increase or decrease in issued and outstanding
shares. The Committee in its discretion may make appropriate equitable
adjustments respecting deferred Stock Awards, Retirement Units, Annual
Performance Awards, Long-Term Performance Awards, Performance or Other Awards
and outstanding Options to take account of a dividend by the Company of property
other than cash. All such adjustments shall be made by the Committee whose
determination shall be conclusive and binding upon all Participants and any
person claiming under or through any Participant.
29. RECLASSIFICATION OR MERGER
If at any time the Company reclassifies or otherwise changes its issued
and outstanding Common Stock (other than in par value) or the Company and one or
more corporations merge and the Company is the surviving corporation of such
merger, then each Stock Award, Retirement Unit (matured or unmatured), Annual
Performance Award, Performance or Other Award which at the time of such
reclassification or merger is credited as a Stock Award, Retirement Unit, Annual
Performance Award, Long-Term Performance Award, Performance or Other Award shall
thereafter be deemed to be the equivalent of (and all Units thereafter credited
to a Retirement Unit Account shall be computed with reference to), and
outstanding Options shall be exercisable for, the shares of stock or other
securities of the Company which pursuant to the terms of such reclassification
or merger are issued with respect to
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each share of Common Stock. The Committee shall also make an appropriate
equitable adjustment to the provisions of Sections 6(b) and 13(a) to take
account of such event. All such adjustments shall be made by the Committee whose
determination shall be conclusive and binding upon all Participants and any
person claiming under or through any Participant.
30. NON-ALIENATION OF BENEFITS
Except as herein specifically provided, no right or unpaid benefit under
this Plan shall be subject to alienation, assignment, pledge or charge and any
attempt to alienate, assign, pledge or charge the same shall be void. If any
Participant or person entitled to the benefits hereunder should attempt to
alienate, assign, pledge or charge any benefit hereunder, then such benefit
shall, in the discretion of the Committee, cease. Notwithstanding the foregoing,
rights and benefits hereunder shall pass by will or the laws of descent and
distribution in the following order: (i) to beneficiaries so designated by the
Participant; if none, then (ii) to a legal representative of the Participant; if
none, then (iii) to the persons entitled thereto as determined by a court of
competent jurisdiction. Awards so passing shall be made at such times and in
such manner as if the Participant were living.
31. WITHHOLDING OR DEDUCTION FOR TAXES
If at any time specified herein for the making of any payment or delivery
of any Common Stock to any Participant or beneficiary, any law or regulation of
any governmental authority having jurisdiction in the premises shall require the
Company to withhold, or to make any deduction for, any taxes or take any other
action in connection with the payment or delivery then to be made, such payment
or delivery shall be deferred until such withholding or deduction shall have
been provided for by the Participant or beneficiary, or other appropriate action
shall have been taken. The amount of any such tax shall be computed by the
Company in a manner consistent with applicable law. The Participant or
beneficiary may satisfy the obligation for such withholding or deduction in
whole or in part by electing to deliver shares of Common Stock already owned and
having a value (as determined by Committee rule consistent with applicable law)
equal to the amount to be withheld or deducted.
32. ADMINISTRATION EXPENSES
The entire expense of administering this Plan shall be borne by the
Company.
33. GENERAL CONDITIONS
(a) The Board in its discretion may from time to time amend, suspend or
terminate any or all of the provisions of this Plan, provided that
no change may be made which would prevent Incentive Stock Options
granted under the Plan from being Incentive Stock Options as
described therein without the consent of the optionees concerned,
and further provided that the Board may not make any amendment which
(1) changes the class of persons eligible for Incentive Stock
Options, or (2) increases the total number of shares for which
Options may be granted under Section 6(c), or (3) materially affects
the provisions of Sections 13(a) or (b) of the Plan, or (4)
materially increases the benefits accruing to Participants under the
Plan (provided that changes in the vesting and exercise periods for
Options for Participants who leave the Company may be effected by
the Board or the Committee without stockholder approval), or (5)
increases the total number of shares authorized under Section 13(f)
for which Awards may be granted, without the consent and approval of
the holders of a majority of the outstanding shares of Class A and
Class B Common Stock of the Company entitled to vote thereon, voting
together as one class. The foregoing provisions shall not be
construed to prevent the Committee from exercising its discretion,
or to limit such discretion, to increase the total number of shares
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for which Options may be granted under Section 6(b) or the total
number of shares authorized under Section 13(f) for which Awards may
be granted, as expressly permitted by Sections 28 and 29 hereof, or
to adjust the provisions of Sections 13(a) and (b) hereof as
expressly permitted by Sections 13(b), 28 and 29 hereof, or
otherwise to exercise any discretion to the extent expressly
authorized hereunder.
(b) Nothing contained in the Plan shall prohibit the Company from
establishing incentive compensation arrangements in addition to this
Plan and the Cash Plan. Payments made under any such separate
arrangements shall not be included in or considered a part of the
maximum dollar amount available for Awards under the Plan and Cash
Plan, or number of shares available for Awards or Options under the
Plan, and shall not be charged against the dollar or share amounts
available for Awards under the Plan and Cash Plan or Options under
the Plan. In the discretion of the Committee, employees shall be
eligible to participate in such other arrangements, as well as the
Plan and Cash Plan, in the same year.
(c) Nothing in this Plan shall be deemed to limit in any way the right
of the Company to terminate a Participant's employment with the
Company at any time.
(d) The Committee may promulgate rules and regulations relating to the
administration and interpretation of, and procedures under, the
Plan. Any decision or action taken by the Company, the Board or the
Committee arising out of or in connection with the construction,
administration, interpretation and effect of the Plan shall be
conclusive and binding upon all Participants and any person claiming
under or through any Participant.
(e) No member of the Board or of the Committee shall be liable for any
act or action, whether of commission or omission, taken by any other
member or by any officer, agent or employee, nor for anything done
or omitted to be done by such Director except in circumstances
involving actual bad faith.
(f) Notwithstanding any other provision of this Plan, the Company shall
not be obligated to make any Award, issue any shares of Common
Stock, or grant any Option with respect thereto, unless it is
advised by counsel of its selection that it may do so without
violation of the applicable Federal and State laws pertaining to the
issuance of securities, and may require any stock so issued to bear
a legend, may give its transfer agent instructions, and may take
such other steps, as in its judgment are reasonably required to
prevent any such violation.
(g) It is the intent of the Company that transactions involving Options
or Awards granted under the Plan be entitled to the exemption from
Section 16 of the Exchange Act provided by Rule 16b-3, that any
ambiguities or inconsistencies in construction of the Plan be
interpreted to give effect to such intention and that if any
provision of the Plan is found not to be in compliance with Rule
16b-3, such provision shall be deemed null and void to the extent
required to permit any such transaction to comply with Rule 16b-3.
The Committee may adopt rules and regulations under, and amend, the
Plan in furtherance of the intent of the foregoing.
34. TRANSITION
Upon the effectiveness of this Plan, as provided below, and the Cash Plan,
such plans replaced the Company's Executive Incentive Compensation Plan
("EICP"), except that the EICP shall continue to govern options and awards of
restricted stock outstanding under the EICP. No further awards will be
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made under the EICP, and all amounts accrued for awards under the EICP and
unawarded were carried forward and made available for Awards under the Plan and
awards under the Cash Plan. All unmatured and matured but undistributed
retirement units and all performance awards respecting current performance
cycles awarded under the EICP became Retirement Units and Performance Awards
hereunder and any payments or distributions in respect thereof shall be made
hereunder; provided, however, that the number of shares of Common Stock
available for Awards pursuant to Section 13(f) hereof shall not be reduced by
the number of such retirement units previously awarded under the EICP and paid
subsequently under the Plan.
35. EFFECTIVE DATE; EXPIRATION
The Plan became effective for periods beginning after January 1, 1991 upon
approval by the holders of a majority of the outstanding shares of Class A and
Class B Common Stock of the Company entitled to vote thereon at the 1991 Annual
Meeting of Stockholders, in person or by proxy, voting together as a single
class. No Options may be granted or Awards made under the Plan after December
31, 2010, or such earlier expiration date as may be designated by resolution of
the Board.
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