EXHIBIT 10.1

 

THE NEW YORK TIMES COMPANY

NON-EMPLOYEE DIRECTORS DEFERRAL PLAN
AS AMENDED THROUGH OCTOBER 11, 2007

 

ARTICLE 1

 

NAME AND PURPOSE

 

The New York Times Company (the “Company”) hereby establishes The New York Times Company Non-Employee Directors Deferral Plan (the “Plan”). The purpose of the Plan is to provide a means for (i) the elective deferral of the payment of compensation payable to non-employee directors of the Company and (ii) the payment of a portion of compensation payable to non-employee directors of the Company in the form of deferred compensation.

 

ARTICLE 2

 

EFFECTIVE DATE

 

The Plan is effective as of September 17, 1997 (the “Effective Date”). The terms of the Plan, as amended through October 11, 2007, apply to all deferred amounts whether made before or after October 11, 2007.

 

ARTICLE 3

 

PARTICIPATION

 

Each member of the Board of Directors of the Company (the “Board”) who is not an employee of the Company or any subsidiary of the Company may participate in the Plan (each a “Non-Employee Director”).

 

ARTICLE 4

 

DEFERRAL ELECTIONS

 

Pursuant to the terms of the Plan, a Non-Employee Director may make an election to defer a percentage of (i) the annual retainer fee payable in respect of the Non-Employee Director’s service on the Board and (ii) the Board meeting fees and committee meeting fees payable in respect of the Non-Employee Director’s attendance at such meetings (collectively, “Compensation”). A Non-Employee Director’s deferral election may apply to one or both of the foregoing categories of Compensation and may range from 10% to 100% of such Compensation, in 10% gradations, as elected by the Non-Employee Director. Each initial deferral election and each change to an existing deferral election shall be made by the submission of an Election Form. The Election Form shall include: (x) the amount of the deferral, (y) the form of the deferral (cash or stock), and (z) the form of the distribution (lump-sum or installment) for the

 

 

deferral. Each initial deferral election and each change to an existing deferral election shall be made by the submission of an Election Form as follows:

 

(a)    Prior to December 31st of each year, each Non-Employee Director may submit an Election Form which will be given effect with respect to Compensation earned by the Non-Employee Director for the subsequent calendar year.

 

(b)    Each Non-Employee Director initially elected or appointed to the Board on or after the December 31  of the previous calendar year may submit an Election Form no later than thirty (30) calendar days following the Non-Employee Director’s election or appointment, which Election Form will be given effect with respect to Compensation earned by the Non-Employee Director after the submission of the Election Form.

 

(c)    At any time after the election periods described in subparagraphs (a) and (b) above, a Non-Employee Director may submit an initial Election Form or a new Election Form superseding an existing Election Form, in which case such initial or new Election Form will be given effect with respect to Compensation earned by the Non-Employee Director for the subsequent calendar year. Any changes to the form of distribution must be consistent with the provisions of Article 7.

 

ARTICLE 5

 

BENEFICIARY DESIGNATION

 

Each Non-Employee Director may, at any time, designate one or more Beneficiaries to receive amounts credited to the Non-Employee Director’s deferral accounts in the event of the Non-Employee Director’s death. A Non-Employee Director may make an initial Beneficiary designation, or change an existing Beneficiary designation, by completing and signing a Beneficiary Designation Form and submitting it to the Secretary of the Company. Upon acceptance by the Secretary of the Company of a Non-Employee Director’s Beneficiary Designation Form, all Beneficiary designations previously filed shall automatically be canceled.

 

ARTICLE 6

 

MAINTENANCE OF DEFERRED ACCOUNTS/DISCRETIONARY GRANTS

 

Compensation may be deferred by a Non-Employee Director under the Plan either in the form of cash or units of class A common stock of the Company (“Stock”) (but in no event shall deferrals be made in a combination of cash and Stock). Compensation deferred by a Non-Employee Director under the Plan shall be credited to record keeping accounts maintained by the Company in the Non-Employee Director’s name as follows:

 

(a)    CASH DEFERRALS. Deferrals made in cash shall be credited to an account (“Cash Deferral Account”) as of the date on which such Compensation would otherwise have been paid to the Non-Employee Director. All amounts credited to a Non-Employee Director’s Cash Deferral Account shall accrue interest from the time such amounts would otherwise have been paid to

 

2

 

the Non-Employee Director until the date that such amounts cease accruing interest in connection with a distribution pursuant to Article 7. The interest rate shall be reset annually and shall equal the interest rate payable on one-year U.S. Treasury Bills auctioned in the first auction of the calendar year; provided however , if no one-year U.S. Treasury Bills are being auctioned, such interest rate shall equal the closing yield on a U.S. Treasury Note with one-year remaining to maturity as of the first business day of the calendar year. Interest in a Cash Deferral Account shall be compounded as of the last business day of each calendar quarter.

 

(b)    STOCK DEFERRALS. Deferrals made in Stock shall be initially credited in cash to an account (“Interim Cash Deferral Account”) as of the date on which such Compensation would otherwise have been paid to the Non-Employee Director. All amounts credited to a Non-Employee Director’s Interim Cash Deferral Account shall accrue interest from the time such amounts would otherwise have been paid to the Non-Employee Director until, as the case may be, the date that such amounts are credited to the Non-Employee Director’s Stock Deferral Account, as provided in this paragraph, or the date that such amounts cease accruing interest in connection with a distribution pursuant to Article 7. Amounts in the Interim Cash Deferral Account, including interest and Deemed Dividends (as defined below), shall be credited to an account (the “Stock Deferral Account”) as of the date of the Company’s Annual Meeting of Stockholders first occurring after the date on which such amounts were credited to the Interim Cash Deferral Account. All amounts to be credited to a Non-Employee Director’s Stock Deferral Account shall be credited using the average closing price of a share of Stock on the New York Stock Exchange for the 30 trading days prior to the date of credit. Dividends with respect to any Stock credited to a Non-Employee Director’s Stock Deferral Account will be credited as cash on the dividend payment date to the Interim Cash Deferral Account (“Deemed Dividends”) and shall accrue interest in the same manner as other amounts credited to such account from such time until such amounts are credited to the Non-Employee Director’s Stock Deferred Account pursuant to the terms of this paragraph. Interest in an Interim Cash Deferral Account shall be compounded as of the last business day of each calendar quarter. The interest rate for the purposes of this paragraph (b) shall be the rate set forth in paragraph (a) above.

 

On the date of the Company’s Annual Meeting of Stockholders each year, an amount of Stock, determined in accordance with the next sentence, may (in the discretion of the Board) be credited to each Non-Employee Director’s Stock Deferral Account (“Discretionary Grants”). The amount of Stock, if any, to be credited shall be equal to the dollar amount, if any, determined by the Board from time to time for this purpose, divided by the average closing price of a share of Stock on the New York Stock Exchange for the 30 trading days prior to the date of such Annual Meeting of Stockholders.

 

ARTICLE 7

 

METHOD OF DISTRIBUTION OF DEFERRALS

 

No distribution of deferrals may be made except as provided in this Article 7. All distributions, whether deferrals are made in cash or Stock, shall be made in cash as provided hereunder.

 

(a)    CASH DEFERRALS AND INTERIM CASH DEFERRALS. As described in the following

 

3

 

sentence, the full amount credited to a Non-Employee Director’s Cash Deferral Account and Interim Cash Deferral Account shall be distributed to the Non-Employee Director after the cessation of the Non-Employee Director’s service on the Board for any reason other than death. Such distribution shall be made in the form of (i) a lump sum cash payment made on the 30th day following the end of the month in which the Non-Employee Director ceases service and shall consist of all amounts credited to such Non-Employee Director’s Cash Deferral Account and Interim Cash Deferral Account plus interest accrued through the end of the month in which the Non-Employee Director ceases service or (ii) substantially equal annual cash installments over a period of up to ten (10) years, as designated on the Distribution Election Form submitted by the Non-Employee Director, with each installment payable as of January 30 of each of the selected number of years and the first installment payable on the January 30 immediately following the Non-Employee Director’s cessation from service. Each such cash installment shall consist of all amounts credited to such Non-Employee Director’s Cash Deferral Account and Interim Cash Deferral Account, plus interest accrued through the end of the calendar year prior to the year in which each such cash installment is paid, divided by the remaining number of years during which the amounts are to be distributed. If, subsequent to submitting an initial Distribution Election Form the Non-Employee Director wishes to change the form of distribution, then (x) a written election to do so must be made at least twelve months prior to the time the Non-Employee Director ceases service, (y) such election will not take effect for twelve (12) months of the date of the election, and (z) if the election does take effect, payments under such subsequent election may not commence prior to the fifth anniversary of the date the payment otherwise would have been paid. All distributions under this paragraph are subject to the terms of paragraph (d) of this Article 7.

 

(b)    STOCK DEFERRALS. As described in the following sentence, the full amount credited to a Non-Employee Director’s Stock Deferral Account shall be distributed to the Non-Employee Director after the cessation of the Non-Employee Director’s service on the Board for any reason other than death. Such distribution shall be in the form of (i) a lump sum cash payment made on the 30th day following the end of the month in which the Non-Employee Director ceases service and shall be calculated by multiplying the number of units of Stock credited to the Non-Employee Director’s Stock Deferral Account by the closing price of a share of Stock on the last business day of the month in which the Non-Employee Director ceases service, or (ii) substantially equal annual cash installments over a period of up to ten (10) years, as designated on the Distribution Election Form submitted by the Non-Employee Director, with each installment payable as of January 30 of each of the selected number of years and the first installment payable on the January 30 immediately following the Non-Employee Director’s cessation from service. Each such installment shall be calculated by multiplying the number of units of Stock credited to such Non-Employee Director’s Stock Deferral Account by the closing price of a share of Stock on the last business day of the calendar year prior to the year in which each such installment is paid, and dividing the total thereof by the remaining number of years during which the amounts are to be distributed. If, subsequent to submitting an initial Distribution Election Form the Non-Employee Director wishes to change the form of, then (x) a written election to do so must be made at least twelve months prior to the time the Non-Employee Director ceases service, (y) such election will not take effect for twelve (12) months of the date of the election, and (z) if the election does take effect, payments under

 

4

 

such subsequent election may not commence prior to the fifth anniversary of the date the payment otherwise would have been paid. All distributions under this paragraph are subject to the terms of paragraph (d) of this Article 7.

 

(c)    OTHER. (i) Notwithstanding the foregoing, at the written request of a Non-Employee Director, the Nominating & Governance Committee of the Board (in its role as Plan administrator), may in its sole discretion, accelerate the payment of amounts credited to the Non-Employee Director’s deferral accounts, upon a showing of unforeseeable financial emergency by such Non-Employee Director, taking into account the Non-Employee Director’s other financial resources. Such distribution shall be made in the form of a lump sum cash payment and shall not exceed the lesser of (x) the amount necessary to meet the financial need created by the unforeseeable emergency, plus any taxes reasonably anticipated as a result of the distribution or (y) all amounts credited to such Non-Employee Director’s deferral account plus interest accrued through the end of the month immediately preceding the month in which such request was made. Amounts distributed shall first be credited against the Non-Employee Director’s Cash Deferral Account, then against his or her Interim Cash Deferral Account, and then against his or her Stock Deferral Account (based on the closing price of a share of Stock on the date the request for distribution is made). For these purposes, “unforeseeable financial emergency” is a severe financial hardship resulting from a sudden and unexpected illness or accident of the Non-Employee Director, the Non-Employee Director’s spouse or the Non-Employee Director’s dependent, loss of the Non-Employee Director’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of one or more recent events beyond the control of the Non-Employee Director. In any event, payment may not be made to the extent such emergency is or may be relieved: (1) through reimbursement or compensation by insurance or otherwise; (2) by liquidation of the Non-Employee Director’s assets, to the extent the liquidation of such assets would not, itself, cause severe financial hardship; or (3) by cessation of deferrals under the Plan. Examples of what are not considered to be unforeseeable emergencies include the need to pay a child’s tuition expenses or the desire to purchase a home.

 

(ii)    In the event of a Non-Employee Director’s death either before or after the Non-Employee Director’s cessation from service on the Board, all amounts then credited to the Non-Employee Director’s Cash Deferral Account, Interim Cash Deferral Account and Stock Deferral Account shall be distributed to the Non-Employee Director’s designated Beneficiaries in the form of a lump sum cash payment within thirty (30) days after the end of the month in which such death occurred or, if not practicable to pay such amount in the 30-day period, such amount shall be paid by the end of the taxable year of the Non-Employee Director in which death occurs (if later than the end of the 30-day period) and shall consist of all amounts credited to such Non-Employee Director’s deferral accounts plus any dividend equivalents and interest accrued through the end of the month in which such death occurred. Stock in a Non-Employee Director’s Stock Deferral Account shall be valued as of the last business day of the month in which such death occurred. If the Non-Employee Director has not designated a Beneficiary or the Non-Employee Director’s designated Beneficiary(ies) do not survive the Non-Employee Director, the full amount of the Non-Employee Director’s deferral account shall be paid to the Non-Employee Director’s spouse, or if there is no spouse, to the Non-Employee Director’s estate. All distributions under this subparagraph (ii) are

 

5

 

subject to the terms of paragraph (d) of this Article 7.

 

(iii)   If at the time of a Non-Employee Director’s cessation from service on the Board, he or she is or becomes an employee of the Company, then for purposes determining the timing of distributions pursuant to this Article 7, such cessation from service on the Board shall trigger payment to the individual under the Plan notwithstanding that the individual is or becomes an employee at such time; provided, however, if immediately prior to such termination he or she is a “Specified Employee” within the meaning of Section 409A(a)(2)(B) of the Internal Revenue Code of 1986, as amended, and as determined in accordance with The New York Times Company 1991 Executive Stock Incentive Plan, no distribution may be made before the date that is six months after the date of such cessation from service (or, if earlier than the end of such 6-month period, the date of death of the Non-Employee Director). The accumulated postponed amount shall be paid to the Non-Employee Director on the 10th day after the end of the six month period (or within 10 days after the death of the Non-Employee Director, if earlier). All distributions under this subparagraph (iii) are subject to the terms of paragraph (d) of this Article 7.

 

(d)    WHEN A PAYMENT IS TREATED AS MADE. In accordance with Section 1.409A-3(d) of the Treasury Regulations, a distribution under this Plan will be treated as made on the designated payment date if the payment is made (i) at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the date designated in the Plan (provided the Non-Employee Director may not, directly or indirectly, designate the year of payment), or (ii) at a date no earlier that 30 days before the designated payment date and the Non-Employee Director (or, in the event of the death of the Non-Employee Director, his or her Beneficiary) may not directly or indirectly designate the taxable year of the payment.

 

ARTICLE 8

 

UNFUNDED STATUS OF THE PLAN

 

A Non-Employee Director shall not have any interest in any amount credited to his or her deferral accounts until it is distributed in accordance with the Plan. Distributions under the Plan shall be made only from the general assets of the Company. All amounts deferred under the Plan shall remain the sole property of the Company, subject to the claims of its general creditors and available for its use for whatever purposes are desired. With respect to amounts deferred, a Non-Employee Director is merely a general creditor of the Company; and the obligation of the Company hereunder is purely contractual and shall not be funded or secured in any way.

 

ARTICLE 9

 

NON-ALIENABILITY AND NON-TRANSFERABILITY

 

The rights of a Non-Employee Director to the payment of amounts credited to his or her deferral accounts shall not be assigned, transferred, pledged or encumbered or be subject in any manner to alienation or anticipation. A Non-Employee Director may not borrow against amounts

 

6

 

credited to the Non-Employee Director’s account and such amounts shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, change, garnishment, execution or levy of any kind, whether voluntary or involuntary, prior to distribution.

 

ARTICLE 10

 

STATEMENT OF ACCOUNT

 

Statements will be sent to each Non-Employee Director within thirty (30) days after each year’s Annual Meeting of Stockholders indicating the balance of the Non-Employee Director’s accounts as of the end of business on the date of the Annual Meeting (giving effect to the grants and transfers made as of such date).

 

ARTICLE 11

 

ADMINISTRATION

 

Except with respect to Discretionary Grants, the Plan is intended to be self-effectuating and does not require the exercise of discretion by the Company. With respect to the Discretionary Grants, and otherwise, to the extent necessary, the Nominating & Governance Committee of the Board shall act as the Plan administrator for purposes of resolving any ambiguities, claims or disputes arising with respect to the Plan or any deferrals under the Plan. As such the Nominating & Governance Committee is authorized to make any rulings and determinations that it deems to be appropriate and consistent with the terms and intent of the Plan and all such rulings and determinations shall be final and binding upon all parties for all purposes. Any member of the Nominating & Governance Committee making a claim or request to the Nominating & Governance Committee with respect to his or her rights or interests under the Plan shall excuse himself or herself from the Nominating & Governance Committee’s determination with respect to such claim or request.

 

ARTICLE 12

 

AMENDMENT AND TERMINATION

 

The Plan may, at any time, be amended, modified or terminated by the Board. No amendment, modification or termination shall, without the consent of a Non-Employee Director, adversely affect such Non-Employee Director’s rights with respect to amounts accrued under his or her deferral account.

 

ARTICLE 13

 

NOTICES

 

All notices and forms to be submitted to the Company hereunder shall be delivered to the attention of the Secretary of the Company.

 

7

EXHIBIT 10.2

 

THE NEW YORK TIMES COMPANY
1991 EXECUTIVE CASH BONUS PLAN
AS AMENDED THROUGH OCTOBER 11, 2007

 

1.    NAME AND GENERAL PURPOSE

 

The name of this plan is The New York Times Company 1991 Executive Cash Bonus 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 4 hereof.

 

(b)                                  “Board”—means the Board of Directors of the Company.

 

(c)                                   “Code”—means the Internal Revenue Code of 1986, as amended.

 

(d)                                  “Code Section 409A” shall mean Section 409A of the Code (or any successor provision).

 

(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 the non-employee members of the Board.

 

(f)                                     “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.

 

(g)                                  “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.

 

(h)                                  “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.

 

(i)                                      “Participant”—means a key employee of the Company who is selected by the Committee to participate in any part 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.

 

 

(j)                                      “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.

 

(k)                                   “Specified Employee”—means any employee who, at any time during the 12-month period ending on the identification date, is a “specified employee” under Code Section 409A, as determined by the Committee or its delegate. The determination of Specified Employees, including the number and identity of persons considered Specified Employees and the identification date, shall be made by the Committee or its delegate in accordance with the provisions of Code Sections 416(i) and 409A and the regulations issued thereunder.

 

(l)                                      “Stock Plan”—means the Company’s 1991 Executive Stock Incentive 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 who are not employees of the Company. The Committee shall be constituted so as to enable the Plan to comply 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.

 

PART I AWARDS

 

4.    FORM OF AWARDS

 

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)                                   Cash Awards as provided in Part IA of the Plan (“Cash Awards”);

 

(b)                                  Annual Performance Awards as provided in Part IB of the Plan (“Annual Performance Awards”);

 

(c)                                   Performance Awards (“Performance Awards”) or other forms of Awards as provided in Part IC of the Plan; and

 

(d)                                  Long-Term Performance Awards as provided in Part ID of the Plan (“Long-Term Performance Awards”).

 

Awards may be made to a Participant whether or not he or she receives an award or option under the Stock Plan. Cash Awards, Performance Awards and other forms of Awards pursuant to Part IC 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 Part IB. Long-Term Performance Awards will be based exclusively on the

 

2

 

criteria set forth in Part ID.

 

No Award under the Plan is payable in common stock or preferred stock of the Company.

 

5.    MAXIMUM AMOUNT AVAILABLE FOR THE ACCRUAL OF AWARDS FOR ANY YEAR

 

(a)                                   No accrual for Awards shall be made hereunder (or under the Stock Plan) for any year unless cash dividends of not less than ten cents ($.10) per share (as adjusted as hereafter provided) have been declared on the outstanding Class A and Class B Common Stock of the Company during such year. If at any time the Company shall take any action, whether by stock dividend, stock split, combination of shares, or otherwise, which results in an increase or decrease in the number of shares of Class A and/or Class B Common Stock theretofore issued and outstanding, or the Company reclassifies or otherwise changes its issued and outstanding Class A and/or Class B 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 the Committee shall make an equitable adjustment to the provisions of this Section 5(a) to take account of such event.

 

(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 Stock Plan for such year shall be 4% of Income Before Income Taxes. The 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 determine and report the maximum amount that may be accrued for Awards for such year under the formula described in Section 5(b), subject to the second sentence of such Section.

 

(d)                                  If amounts are accrued in any year under the formula described in this Section 5 and are not awarded in full in such year under the Plan and the Stock Plan, such unawarded amounts may, in the discretion of the Committee, be carried forward and be available for Awards under this Plan and under the Stock Plan in any future year without regard to the provisions of Sections 5(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 5(b) above, plus (ii) unawarded accrued amounts carried forward from previous years under Section 5(d) above, plus (iii) amounts that may become available for Awards pursuant to the last sentence of Section 7(c) hereof, minus (x) the amount of interest equivalents allocated during such year pursuant to Section 10(b) hereof, and minus (y) the amount of awards made for such year under the Stock Plan valued as set forth in Section 13(e) of the Stock Plan (and any interest or dividend equivalents allocated during such year pursuant to Sections 15(c), 24 and 27A thereof).

 

6.    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 Parts IB and ID, 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

 

3

 

Long-Term Performance Awards, which are to be made exclusively as set forth in Parts IB and ID, respectively) prior to the end of the year based on amounts available under clauses (ii) and (iii) of Section 5(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 and Long-Term Performance Awards, which are to be made exclusively as set forth in Parts IB and ID, 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 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.

 

7.    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 payment of Annual Performance Awards and Long-Term Performance Awards shall be subject to the provisions of Parts IB and ID, 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 14 hereof, in such manner, at such time or times (which may be either before or after 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; provided, however, that the total amount of such interest shall be deducted from the maximum amount available for Awards under Section 5 of the Plan. Any forfeited deferred Awards shall be carried forward and be available for Awards in any future year without regard to the provisions of Sections 5(a) or (b) of the Plan.

 

8.    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 may in its discretion request.

 

4

 

(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.

 

9.    STATUS OF PARTICIPANTS

 

No Participant in the Plan shall have any interest in any specific assets of the Company by reason of the fact that deferred Awards 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.

 

PART IA CASH AWARDS

 

10.                                DETERMINATION OF CASH AWARDS

 

(a)                                   Each year the Committee shall designate those Participants who shall receive Cash Awards under this part of the Plan. Cash Awards may be paid 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 Cash Award to a Participant shall be treated as a deferred Cash Award and be payable in annual or other periodic installments, the Participant will be notified in writing at the time such Cash Award is made when such deferred Cash Award shall be paid and over what period of time. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any deferred Cash 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 (i) the time and conditions for payment shall be provided in writing to the Participant at the time the Cash Award is granted, and (ii) 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.

 

(c)                                   Notwithstanding the preceding, as required by Code Section 409A, no amount shall be delivered with respect to a deferred Cash Award on account of a separation from service to a Participant who is a Specified Employee on the date of separation from service before the date which is 6 months after the date of the Participant’s separation from service. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any delayed payment. The accumulated postponed amount, with interest for the period of delay if applicable, shall be paid to the Participant in a lump sum payment on the 10th day after the end of the six-month period. Payment of the accumulated postponed amount (and interest, if applicable) shall be treated as made on the specified date if the payment is made at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the specified date (provided the Participant may not, directly or indirectly, designate the year of payment).

 

If the Participant dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Code Section 409A shall be paid as specified in Section 14 hereof within 90 days of the date of Participant’s death.

 

PART IB ANNUAL PERFORMANCE AWARDS

 

5

 

 

 

11.                                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 Stock Plan in the same year.

 

(b)                                  CERTAIN DEFINITIONS. For the purposes of this Part IB, 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 a year under such Performance Goal established by the Committee to determine the

 

6

 

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 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 Stock 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 Part IB 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, provided the Committee certifies the extent to which the Performance Goal Target or Targets under the Performance Goal or Goals have been met or exceeded, Annual Performance Awards will be paid by March 15 after the end of the year to which they relate, unless administratively impossible to do so. 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 6(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 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 at the time such Annual Performance Award is granted when such deferred Annual Performance Award shall be paid and over what period of time. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any deferred 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,

 

7

 

however, that (i) the time and conditions for payment shall be provided in writing to the Participant at the time the Annual Performance Award is granted, and (ii) 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.

 

(g)                                  CODE SECTION 162(m). It is the intent of the Company that Annual Performance Awards satisfy, and this Part IB 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.

 

(h)                                  CODE SECTION 409A. To the extent necessary to comply with Code Section 409A, no amount shall be delivered with respect to a deferred Annual Performance Award as a result of separation from service to an Eligible Participant who is a Specified Employee on the date of separation from service before the date which is 6 months after the date of the Eligible Participant’s separation from service. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any delayed payment. The accumulated postponed amount, with interest for the period of delay if applicable, shall be paid to the Eligible Participant in a lump sum payment on the 10th day after the end of the six-month period. Payment of the accumulated postponed amount (and interest, if applicable) shall be treated as made on the specified date if the payment is made at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the specified date (provided the Eligible Participant may not, directly or indirectly, designate the year of payment).

 

If the Eligible Participant dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Code Section 409A shall be paid as specified in Section 14 hereof within 90 days of the date of Eligible Participant’s death.

 

PART IC PERFORMANCE AND OTHER AWARDS

 

12.                                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 cash or other compensation, 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 of the Company, 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 5 of the Plan and the form of payment to be made in respect of the Performance Award.

 

8

 

PART ID LONG-TERM PERFORMANCE AWARDS

 

13.                                DETERMINATION OF LONG-TERM PERFORMANCE AWARDS

 

(a)                                   GENERAL. Each year the Committee shall designate those Participants who shall be eligible to receive Long-Term Performance Awards under this part of the Plan.

 

(b)                                  CERTAIN DEFINITIONS. For purposes of this Part ID, 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

 

9

 

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 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 13 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 (f) below, provided 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, Long-Term Performance Awards will be paid in cash by March 15 after the end of the year in which the Performance Period ends, unless administratively impossible to do so. 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 6(c) and 13(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)                                   DEFERRAL 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 at the time such Long-Term Performance Award is granted when such deferred Long-Term Performance Award shall be paid and over what period of time. 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 (i) the time and conditions for payment shall be provided in writing to the Participant at the time the Long-Term Performance Award is granted, and (ii)  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.

 

(g)                                  TERMINATION OF EMPLOYMENT BECAUSE OF DEATH, DISABILITY OR

 

10

 

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 14, 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 be paid on the 30th day after the end of the Performance Period to which such Long-Term Performance Award relates.

 

(h)                                  CODE SECTION 162(m). It is the intent of the Company that Long-Term Performance Awards satisfy, and this Section 13 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).

 

(i)                                    CODE SECTION 409A. To the extent necessary to comply with Code Section 409A, no amount shall be delivered with respect to a deferred Long-Term Performance Award as a result of separation from service to an Eligible Participant who is a Specified Employee on the date of separation from service before the date which is 6 months after the date of the Eligible Participant’s separation from service. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any delayed payment. The accumulated postponed amount, with interest for the period of delay if applicable, shall be paid to the Eligible Participant in a lump sum payment on the 10th day after the end of the six-month period. Payment of the accumulated postponed amount (and interest, if applicable) shall be treated as made on the specified date if the payment is made at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the specified date (provided the Eligible Participant may not, directly or indirectly, designate the year of payment).

 

If the Eligible Participant dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Code Section 409A shall be paid as specified in Section 14 hereof within 90 days of the date of Eligible Participant’s death.

 

PART II GENERAL PROVISIONS

 

14.                                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.

 

11

 

15.                                WITHHOLDING OR DEDUCTION FOR TAXES

 

If at any time specified herein for the making of any payment 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 then to be made, such payment 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.

 

16.                                ADMINISTRATION EXPENSES

 

The entire expense of administering this Plan shall be borne by the Company.

 

17.                                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 the Board may not make any amendment which materially affects the provisions of Sections 5(a) or (b) of the Plan 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 adjust the provisions of Sections 5(a) and (b) hereof as expressly permitted thereby 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 Stock Plan. Payments made under any such separate arrangements shall not be included in or considered a part of the maximum amount available for Awards under the Plan and Stock Plan and shall not be charged against the amount available for Awards under the Plan and Stock Plan for any year. In the discretion of the Committee, employees shall be eligible to participate in such other arrangements, as well as the Plan and Stock 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.

 

18.                                CODE SECTION 409A

 

It is the intent of the Company that, to the extent the Plan as to any Award constitutes a nonqualified deferred compensation plan within the meaning of Code Section 409A, the Plan as to such Award be interpreted in a manner that satisfies the requirements of Code Section 409A. If any provision of the Plan or of any Award would otherwise frustrate or conflict with such intent, that provision shall be

 

12

 

interpreted and deemed amended so as to avoid such conflict. Without limiting the foregoing, to the extent the Plan or Award provides the Committee with the discretion to determine the time or form of payment of an Award (including any earnings or interest credit), and/or defer or accelerate the time of payment of an Award (including any earnings or interest credit), the Committee shall exercise such discretion only at such time and in such manner as complies with Code Section 409A. Notwithstanding anything in the Plan or any Award to the contrary, distributions of Code Section 409A nonqualified deferred compensation to be made upon a termination of employment may only be made upon a Code Section 409A “separation from service” or other event permitted by Code Section 409A, and in a manner permitted by Code Section 409A or an applicable exemption.

 

19.                                TRANSITION

 

Upon the effectiveness of this Plan, and the Stock 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 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 Stock Plan.

 

20.                                EFFECTIVE DATES

 

The Plan became effective for periods beginning after January 1, 1991 upon the 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, in person or by proxy, voting together as a single class. No Awards may be granted under the Plan after December 31, 2010, or such earlier expiration date as may be designated by resolution of the Board.

 

13

EXHIBIT 10.3

 

THE NEW YORK TIMES COMPANY

1991 EXECUTIVE STOCK INCENTIVE PLAN

AS AMENDED THROUGH OCTOBER 11, 2007

 

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)                                   “Code Section 409A” shall mean Section 409A of the Code (or any successor provision).

 

(f)                                     “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.

 

(g)                                  “Common Stock” means shares of the Class A Common Stock of the Company.

 

(h)                                  “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.

 

(i)                                      “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.

 

(j)                                      “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.

 

---

 

(k)                                   “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 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.

 

(l)                                    “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.

 

(m)                              “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”).

 

(n)                                “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.

 

(o)                                  “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.

 

(p)                                  “Specified Employee” means any employee who, at any time during the 12-month period ending on the identification date, is a “specified employee” under Code Section 409A, as determined by the Committee or its delegate. The determination of Specified Employees, including the number and identity of persons considered Specified Employees and the identification date, shall be made by the Committee

 

2

 

or its delegate in accordance with the provisions of Code Sections 416(i) and 409A and the regulations issued thereunder.

 

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.”

 

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

 

3

 

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 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) by 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

 

4

 

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; provided, however, that the Committee shall have the discretion to provide for the immediate exercisability of the Options in such additional circumstances as the Committee in its discretion shall determine. 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 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

 

5

 

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. Upon termination of employment with the Company as a result of the sale or other disposition of a subsidiary or division of the Company, management shall have the discretion to extend the period the optionee may exercise all Options, otherwise exercisable by him or her for an additional one year after such termination of employment as described above, up to an additional two years (for a maximum period of three years) after such termination of employment. In the event of a termination as described in the preceding sentence, the one-year period referred to in the following sentences in this Section 10(d) shall be extended accordingly. 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

 

6

 

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.

 

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

 

7

 

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 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.

 

8

 

(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 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

 

9

 

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.

 

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.

 

18.                                [INTENTIONALLY LEFT BLANK]

 

10

 

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 at the time such Stock Award is made 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. 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 (i) the time and condition for payment shall be provided in writing to the Participant at the time the Stock Award is made, and (ii) 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, are referred to as “Restricted Stock.”

 

11

 

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

 

12

 

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 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

 

13

 

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 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 separation from service.

 

(b)                                  Except as determined by the Committee at the time a Retirement Unit Award is made, 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.

 

14

 

(c)                                   Notwithstanding the preceding, as required by Code Section 409A, no amount shall be delivered on account of Retirement or other separation from service (but not on account of death) to a Participant who is a Specified Employee on the date of separation from service before the date which is 6 months after the date of the Participant’s separation from service. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any delayed payment. The accumulated postponed amount, with interest for the period of delay if applicable, shall be paid to the Participant in a lump sum payment on the 10th day after the end of the six-month period. Payment of the accumulated postponed amount (and interest, if applicable) shall be treated as made on the specified date if the payment is made at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the specified date (provided the Participant may not, directly or indirectly, designate the year of payment).

 

If the Participant dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Code Section 409A shall be paid as specified in Section 30 hereof within 90 days of the date of Participant’s death.

 

(d)                                  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.

 

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:

 

15

 

“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 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.

 

16

 

“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, provided the Committee certifies the extent to which the Performance Goal Target or Targets under the Performance Goal or Goals have been met or exceeded, Annual Performance Awards will be paid by March 15 after the end of the year to which they relate, unless administratively impossible to do so. 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

 

17

 

Award tha t 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 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 at the time such Annual Performance Award is made 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, 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 (i) the time and condition for payment shall be provided in writing to the Participant at the time the Annual Performance Award is made, and (ii) 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.

 

(h)                                  CODE SECTION 409A. To the extent necessary to comply with Code Section 409A, no amount shall be delivered with respect to an Annual Performance Award as a result of separation from service to an Eligible Participant who is a Specified Employee on the date of separation from service before the date which is 6 months after the date of the Eligible Participant’s separation from service. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any delayed payment. The accumulated postponed amount, with interest for the period of delay if applicable, shall be paid to the Eligible Participant in a lump sum

 

18

 

payment on the 10th day after the end of the six-month period. Payment of the accumulated postponed amount (and interest, if applicable) shall be treated as made on the specified date if the payment is made at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the specified date (provided the Eligible Participant may not, directly or indirectly, designate the year of payment).

 

If the Eligible Participant dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Code Section 409A shall be paid as specified in Section 30 hereof within 90 days of the date of Eligible Participant’s death.

 

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 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:

 

19

 

“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:

 

(x)                                  earnings per share of the Company for the Performance Period;

 

(xi)                               net income of the Company for the Performance Period;

 

(xii)                            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);

 

(xiii)                         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);

 

(xiv)                        operating profit or operating margins of the Company or of a division, subsidiary or group thereof for the Performance Period;

 

(xv)                           cash flow of the Company or of a division, subsidiary or group thereof for the Performance Period;

 

(xvi)                        increase in shareholder value as determined at the end of the Performance Period;

 

(xvii)                     revenue growth of the Company or of a division, subsidiary or group thereof for the Performance Period; and

 

(xviii)                  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

 

20

 

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 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, provided 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, Long-Term Performance Awards will be paid in cash by March 15 after the end of the year in which the Performance Period ends, unless administratively impossible to do so. 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

 

21

 

Eligible Participant will be notified in writing at the time such Long-Term Performance Award is made when such deferred Long-Term Performance Award shall be paid and over what period of time. 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 (i) the time and condition for payment shall be provided in writing to the Eligible Participant at the time the Long-Term Performance Award is made, and (ii) 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 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).

 

(i)                                      CODE SECTION 409A. To the extent necessary to comply with Code Section 409A, no amount shall be delivered with respect to a Long-Term Performance Award as a result of separation from service to an Eligible Participant who is a Specified Employee on the date of separation from service before the date which is 6 months after the date of the Eligible Participant’s separation from service. The Committee shall have discretion to provide for the payment of an amount equivalent to interest, at such rate or rates fixed by the Committee, on any delayed payment. The accumulated postponed amount, with interest for the period of delay if applicable, shall be paid to the Eligible Participant in a lump sum payment on the 10th day after the end of the six-month period. Payment of the accumulated postponed amount (and interest, if applicable) shall be treated as made on the specified date if the payment is made at such date or a later date within the same calendar year, or if later, by the 15th day of the third month following the specified date (provided the Eligible Participant may not, directly or indirectly, designate the year of payment).

 

If the Eligible Participant dies during the postponement period prior to the payment of

 

22

 

postponed amount, the amounts withheld on account of Code Section 409A shall be paid as specified in Section 30 hereof within 90 days of the date of Eligible Participant’s death.

 

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 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.

 

23

 

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

 

24

 

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 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

 

25

 

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.

 

(h)                                  CODE SECTION 409A. It is the intent of the Company that, to the extent the Plan as to any Award constitutes a nonqualified deferred compensation plan within the meaning of Code Section 409A, the Plan as to such Award be interpreted in a manner that satisfies the requirements of Code Section 409A. If any provision of the Plan or of any Award would otherwise frustrate or conflict with such intent, that provision shall be interpreted and deemed amended so as to avoid such conflict. Without limiting the foregoing, to the extent the Plan or Award provides the Committee with the discretion to determine the time or form of payment of an Award (including any earnings, interest or dividends credit), and/or defer or accelerate the time of payment of an Award (including any earnings, interest or dividends credit), the Committee shall exercise such discretion only at such time and in such manner as complies with Code Section 409A. Notwithstanding anything in the Plan or any Award to the contrary, distributions of Code Section 409A nonqualified deferred compensation to be made upon a termination of employment may only be made upon a Code Section 409A “separation from service” or other event permitted by Code Section 409A, and in a manner permitted by Code Section 409A or an applicable exemption.

 

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 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.

 

26

EXHIBIT 10.4

 

THE NEW YORK TIMES COMPANY

 

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

 

 

Effective January 1, 1983

Amended and Restated Effective February 19, 1987
Amended May 5, 1989

Amended and Restated Effective January 1, 1993

Amended and Restated Effective January 1, 2004

Amended and Restated Effective January 1, 2008

 

 

THE NEW YORK TIMES COMPANY

 

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

 

PURPOSE

 

The Supplemental Executive Retirement Plan is designed to provide a benefit which, when added to the retirement income provided under other Company plans, will ensure the payment of a competitive level of retirement income to key senior executives of The New York Times Company, thereby providing an additional incentive for assuring orderly management succession. Eligibility for participation in the Plan shall be limited to executives designated by the SERP Committee. This Plan became effective on January 1, 1983, and shall be effective as to each Participant on the date he or she is designated as such hereunder. The Plan, as previously amended, is hereby amended and restated effective as of January 1, 2008.

 

2

 

SECTION I

 

DEFINITIONS

 

1.1.              “Basic Plan” means the qualified defined benefit pension plan to which the Company makes or has made contributions on behalf of a designated Participant (including, but not limited to The New York Times Companies Pension Plan, The Guild-Times Pension Plan and The Retirement Annuity Plan for Craft Employees of The New York Times Company (non-contributory portion)).

 

1.2.              “Basic Plan Benefit” means the amount of benefit payable to a Participant under any Basic Plan, assuming immediate commencement of payments as of the date of Retirement, with benefits payable in the form of a straight life annuity.

 

1.3               “Code” means the Internal Revenue Code of 1986, as amended.

 

1.4               “Child” means a natural or legally adopted child of a Participant and his/her Surviving Spouse.

 

1.5               “Company” means The New York Times Company and its subsidiaries and affiliates.

 

1.6               “Dependent Child(ren)” means any unmarried Child(ren) who reside with a Participant or a Surviving Spouse at the time of Participant’s or the Surviving Spouse’s death, as applicable.

 

1.7               “Final Average Earnings” means effective April 1, 2000, the average of the highest consecutive sixty (60) months of Earnings out of the last one hundred twenty (120) months preceding the date on which the Participant retires multiplied by twelve (12). “Earnings” for any calendar year shall include the Participant’s base salary, annual cash bonuses and sales commissions paid during such

 

3

 

year, and shall exclude any other compensation (such as deferred incentive compensation under the Long-Term Incentive Plan, retirement units and performance awards (other than annual cash bonuses) under the Executive Incentive Award Plan, the 1991 Executive Stock Incentive Plan, 1991 Executive Cash Bonus Plan and any successor plans and stock options under the 1974 Incentive Stock Option Plan, the Employee Stock Purchase Plan, the 1991 Executive Stock Incentive Plan and any successor plans) and any contributions to or benefits under this Plan or any other pension, profit-sharing, stock bonus or other plan of deferred compensation; except that amounts deferred under a non-qualified deferred compensation plan and/or amounts which the Company contributes to a plan on behalf of the Participant pursuant to a salary reduction agreement which are not includible in the Participant’s gross income under sections 125, 402(e)(3), 492(h) or 403(b) of the Code shall be included.

 

1.8               “Joint and Survivor Annuity” means a reduced annuity payable for the life of the Participant followed after the Participant’s death by an annuity payable for the life of the Participant’s Surviving Spouse in an amount equal to either 25%, 50%, 75% or 100% (as elected by the Participant prior to Retirement) of the reduced annuity that was payable to the Participant; provided, however, that if no election is made, the amount payable to the Participant’s surviving spouse under the Joint and Survivor Annuity shall be 50% of the reduced annuity that was payable to the Participant. The combined annuities payable to the Participant and the Surviving Spouse under the Joint and Survivor Annuity shall be the actuarial equivalent, using the actuarial factors specified in the Basic Plan, of the annual Retirement benefit determined under Section 3.1.

 

1.9               “Key Executive Position” means a position so designated by the SERP Committee.

 

4

 

1.10             “Participant” means an individual holding a Key Executive Position who has been designated as a Participant by the SERP Committee. An executive shall become a Participant in the Plan as of the date he or she is individually selected by, and specifically named by the SERP Committee for inclusion in the Plan. If a Participant is reclassified to a responsibility that is not a Key Executive Position, the Participant’s continuing eligibility will be subject to the approval of the SERP Committee.

 

1.11             “Plan” means The New York Times Company Supplemental Executive Retirement Plan.

 

1.12             “Retirement” or “Retire” means a Participant’s “separation from service” from the Company within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(h) or subsequent IRS guidance under Code section 409A on one of the Retirement Dates specified in Section 2.1.

 

1.13             “Section 409A Specified Employee” means a “specified employee” within the meaning of section 409A(a)(2)(B)(i) of the Code, as determined by the Compensation Committee of the Company’s Board of Directors or its delegate in accordance with the provisions of sections 416(i) and 409A of the Code and the regulations issued thereunder.

 

1.14             “SERP Committee” or “Committee” means a committee consisting of the Chairman and the President of The New York Times Company.

 

1.15             “Service” means the Participant’s service for vesting purposes as defined in the Basic Plan, up to a maximum of twenty (20) years, and shall include any additional service credit in specific situations as may be authorized by the Committee. Additionally, service shall include any credits for service pursuant to a buyout plan or agreement accepted by a Participant.

 

5

 

1.16             “Surviving Spouse” means the person to whom a Participant is married on the date on which benefits commence (or at his death, if earlier).

 

1.17             The masculine gender, where appearing in the Plan, will be deemed to include the feminine gender, and the singular may include the plural, unless the context clearly indicates the contrary.

 

6

 

SECTION II

 

ELIGIBILITY FOR BENEFITS

 

2.1.         Each Participant with ten (10) or more years of Service shall be eligible to Retire and receive a benefit under this Plan beginning on one of the following Retirement Dates:

 

(a)  “Normal Retirement Date,” which is the first day of the month following the month in which the Participant reaches age sixty-five (65).

 

(b)  “Early Retirement Date,” which is the first day of any month following (i) the Participant’s sixtieth (60th) birthday, or (ii) if the Committee consents to the Participant’s early retirement, the Participant’s fifty-fifth (55th) birthday.

 

(c)  “Postponed Retirement Date,” which in the case of a Participant who terminates his employment with the Company after his Normal Retirement Date, is the first day of the month next following the month in which the Participant terminates employment with the Company.

 

2.2.         For purposes of determining a Participant’s age under this Plan and Retirement Dates thereunder, the age of a Participant shall include any age credit pursuant to a buyout plan or agreement accepted by a Participant.

 

7

 

SECTION III

 

AMOUNT AND FORM OF RETIREMENT BENEFIT

 

3.1.         The annual Retirement benefit payable to a Participant who Retires on his Normal Retirement Date shall equal the excess, if any, of (a) fifty percent (50)% of the Final Average Earnings (prorated at two and one-half percent (2.5%) times Final Average Earnings times years of Service for Service of less than twenty (20) years) over (b) the sum of the Basic Plan Benefits payable as of the Participant’s Normal Retirement Date.

 

3.2.         The annual Retirement benefit payable to a Participant who Retires on an Early Retirement Date shall equal the benefit determined using the formula in Section 3.1, reduced by four percent (4%) for each year (one-third (1/3) of one percent (1%) for each month) benefits commenced prior to age sixty (60), less the sum of the annual Basic Plan Benefits payable as of the Participant’s Early Retirement Date.

 

3.3.         The annual Retirement benefit payable to a Participant who Retires on a Postponed Retirement Date shall be equal to the benefit determined in accordance with Section 3.1 based on the Participant’s Service and Final Average Earnings as of the Participant’s Normal Retirement Date.

 

3.4.        (a)    Prior to January 1, 2008, Retirement benefits payable under this Plan shall be payable at the same time and in the same manner as benefits under the Basic Plan (except the Level Income options), unless otherwise determined by the Company. Retirement benefits under this Plan for a Participant who elects a Level Income Option under the Basic Plan shall be paid in the form of an annuity for the life of the Participant. Once in pay status, a Participant may not change the form of benefit payable under the Plan.

 

8

 

(b)         Effective January 1, 2008, Retirement benefits shall, subject to Section 3.5,  be paid in the form of an annuity for the life of the Participant if the Participant is not married on his date of Retirement or a Joint and Survivor Annuity if the Participant is married on his date of Retirement.

 

3.5         Notwithstanding Section 3.4 and subject to Section 4.2(c), if the lump sum value of benefits under this Plan is less than or equal to the applicable dollar amount under section 402(g)(1)(B) of the Code, the Company shall, subject to Section 4.2(c), pay such benefit in a single lump sum to the Participant on the first business day of the month following the Participant’s date of Retirement.

 

9

 

SECTION IV

 

PAYMENT OF RETIREMENT BENEFITS

 

4.1.        (a)    A Participant with ten (10) or more years of Service who is age sixty (60) or older, may Retire under the Plan by giving a minimum of six months’ notice to the Committee (unless such notice is waived by the Committee).

 

(b)         A Participant with ten (10) or more years of Service who is not eligible for early Retirement under Section 4.1(a) may request Retirement under this Plan as of the first of any month between the ages of fifty-five (55) and sixty (60), but such request shall be subject to the approval of the Committee, which may approve or deny the request based on the needs of the Company. If the request is denied, the SERP Committee and the Participant will defer such Retirement under this Plan for a mutually agreed upon period of time. This will not preclude the right of the Participant to retire under the Basic Plan, in which case the Participant will not be entitled to any benefit hereunder.

 

4.2.         (a)    Prior to January 1, 2008, Retirement benefits payable in accordance with Section III will commence on the Participant’s date of Retirement under Section 2.1. Plan payments must begin immediately upon Retirement and may not be deferred. Benefits will continue to be paid on the first day of each succeeding month. The last payment will be on the first day of the month in which the retired Participant dies unless an optional form of benefit was elected in accordance with Section 3.4(a).

 

(b)          Effective January 1. 2008, subject to paragraph (c) of this Section 4.2, Retirement benefits payable under this Plan will commence on the first business day of the month following the Participant’s date of Retirement.

 

(c)         Notwithstanding Section 4.2(b), effective January 1, 2008, in the event that a Participant is a Section 409A Specified Employee as of his date of Retirement, the

 

10

 

Company shall withhold and accumulate the first six monthly annuity payments (or in the case of a lump sum cash out payment under Section 3.5, shall withhold the lump sum payment) of the Participant’s Retirement benefit until the first day of the seventh month following the Participant’s date of Retirement (the “Delayed Payment Date”). The six accumulated annuity payments (or lump sum cash out payment) shall be paid to the Participant in a single lump sum payment on the Delayed Payment Date, with interest for the period of delay, compounded monthly, equal to the prime or base lending rate in effect as of the date the payment would otherwise have been made. Payment of the withheld and accumulated annuity payments (with interest as calculated above) shall be treated as made on the Delayed Payment Date if the payment is made on such date or on a later date within the same calendar year as the Delayed Payment Date, or, if later, by the 15 ^th day of the third month following the Delayed Payment Date, provided that the Participant may not, directly or indirectly, designate the year of payment. Notwithstanding the foregoing, if the Participant dies prior to the Delayed Payment Date, any payments that have been withheld and accumulated in accordance with this paragraph shall be paid to the Participant’s beneficiary under the Basic Plan in a single lump sum payment within 90 days after the Participant’s death, with interest as calculated above.

 

4.3           Any benefit payments under the Plan shall be net of any applicable withholding tax under federal or state law.

 

11

 

SECTION V

 

PRE-RETIREMENT DEATH BENEFITS

 

5.1.             (a)     If a Participant dies while actively employed by the Company or while receiving Long-Term Disability benefits from the Company and (i) a Surviving Spouse is eligible to receive benefits under the provisions of a Basic Plan and (ii) the Participant had ten (10) or more years of Service and (iii) the Participant’s age plus Service at the time of death equaled or exceeded sixty-five (65), the Surviving Spouse shall be entitled to receive an annual benefit commencing as of the month following the month in which the Company receives satisfactory documentation of the Participant’s death in an amount equal to fifty percent (50%) of the amount of the Participant’s accrued benefit as of his date of death determined in accordance with Section III, in which case the sum of the Basic Plan Benefits actually payable as of each respective benefit payment date hereunder shall be substituted for the sum of the Basic Plan Benefits payable as of the Participant’s Normal Retirement Date. The reduction described in Section 3.2 for the early payment of benefits shall not apply to this benefit.

 

(b)       If there is no Surviving Spouse, but there are Dependent Children under age twenty-three (23), or if the Surviving Spouse dies while there are Dependent Children under age twenty-three (23), the Surviving Spouse’s benefits will be shared equally by each such Dependent Child until he or she reaches the age of twenty-three (23).

 

5.2.         The Surviving Spouse’s benefit will be payable monthly, and will commence within 90 days after the Participant’s death, provided, however, that the first monthly payment shall include any monthly payments that would have been made had benefits commenced on the first day of the month following the date of the Participant’s death. The last

 

12

 

payment will be made on the first day of the month in which the Surviving Spouse dies, or, where Section 5.1(b) applies, the date a Dependent Child reaches age twenty-three ( 23) or dies.

 

13

 

SECTION VI

 

FORFEITURE OF BENEFIT

 

Notwithstanding any other provision of this Plan, if at any time during which a Participant is entitled to receive payments under the Plan, the Participant engages in any business or practice or becomes employed in any position, which the SERP Committee, in its sole discretion, deems to be in competition with the Company or any of its business or interests, or which is deemed by the SERP Committee, in its sole discretion, to be otherwise prejudicial to any of its interests, or such Participant fails to make himself available to the Company for reasonable consultation and other services, the SERP Committee, in its sole discretion, may cause the Participant’s entire interest in benefits otherwise payable under the Plan to be forfeited and discontinued, or may cause the Participant’s payments of benefits under the Plan to be limited or suspended until such Participant is no longer engaging in the conduct above or for such other period the SERP Committee finds advisable under the circumstances, or may take any other action the SERP Committee, in its sole discretion, deems appropriate. The decision of the SERP Committee shall be final. The omission or failure of the SERP Committee to exercise this right at any time shall not be deemed a waiver of its right to exercise such right in the future. The exercise of discretion will not create a precedent in any future cases.

 

14

 

SECTION VII

 

MISCELLANEOUS

 

7.1          This Plan shall be binding on the Company and its successors and assigns. In furtherance of the foregoing, the Company may assign its obligations to make payments under this Plan to any successor to all or substantially all of the Company’s business.

 

7.2.         The SERP Committee may, in its sole discretion, terminate, suspend or amend this Plan at any time or from time to time, in whole or in part. However, no amendment or suspension of the Plan will affect a retired Participant’s right or the right of a Surviving Spouse or other beneficiary to continue to receive a benefit in accordance with this Plan as in effect on the date such Participant commenced to receive a benefit under this Plan.

 

7.3.         Nothing contained herein will confer upon any Participant or other employee the right to be retained in the service of the Company nor will it interfere with the right of the Company to discharge or otherwise deal with Participants and other employees without regard to the existence of this Plan.

 

7.4.         This Plan is intended to meet the Employee Retirement Income Security Act’s definition of “an unfunded plan for management or other highly compensated individuals” and, as such, the Company will make Plan benefit payments solely on a current disbursement basis out of general assets of the Company.

 

7.5          This Plan is intended to comply with the applicable requirements of section 409A of the Code with respect to the accrual and payment of benefits hereunder. This Plan shall be interpreted and administered to the extent possible in a manner consistent with the foregoing statement of intent.

 

15

 

7.6.         To the maximum extent permitted by law, no benefit under this Plan will be assignable or subject in any manner to alienation, sale, transfer, claims of creditors, pledge, attachment or encumbrances of any kind.

 

7.7.         The Plan shall be administered by the SERP Committee. The SERP Committee may adopt rules and regulations to assist it in the administration of the Plan and may appoint and/or employ individuals to assist it in the administration of the Plan and any other agents it seems advisable, including legal and actuarial counsel. In addition, the SERP Committee may, it is discretion, delegate any of its authority, duties and responsibilities hereunder to any other individual or individuals.

 

7.8.         This Plan is established under and will be construed according to the laws of the State of New York, except to the extent such laws are preempted by ERISA.

 

7.9.         Claims. If any Participant, beneficiary or other properly interested party is in disagreement with any determination that has been made under the Plan, a claim may be presented, but only in accordance with the procedures set forth herein.

 

(a)           Original Claim. Any Participant, beneficiary or other properly interested party may, if he/she so desires, file with the SERP Committee a written claim for benefits or a determination under the Plan. Within ninety (90) days after the filing of such a claim, the SERP Committee shall notify the claimant in writing whether the claim is upheld or denied in whole or in part or shall furnish the claimant a written notice describing specific special circumstances requiring a specified amount of additional time (but not more than one hundred eighty (180) days from the date the claim was filed) to reach a decision in the claim. If the claim is denied in whole or in part, the Committee shall state in writing:

 

(i)             the reasons for the denial;

 

16

 

(ii)            the references to the pertinent provisions of this Plan on which the denial is based;

 

(iii)           a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and

 

(iv)           an explanation of the claims review procedure set forth in this section.

 

(b)           Claim Review Procedure. Within sixty (60) days after receipt of notice that a claim has been denied in whole or in part, the claimant may file with the SERP Committee a written request for a review and may, in conjunction therewith, submit written issues and comments. Within sixty (60) days after the filing of such a request for review, the SERP Committee shall notify the claimant in writing whether, upon review, the claim was upheld or denied in whole or in part or shall furnish the claimant a written notice describing specific special circumstances requiring a specified amount of additional time (but not more than one hundred twenty (120) days from the date the request for review was filed) to reach a decision on the request for review.

 

(c)           General Rules.

 

(i)             No inquiry or question shall be deemed to be a claim or a request for a review of a denied claim unless made in accordance with the foregoing claims procedure. The SERP Committee may require that any claim for benefits and any request for a review of denied claim be filed on forms to be furnished by the SERP Committee upon request.

 

17

 

(ii)            All decisions on claims and on requests for a review of denied claims shall be made by the SERP Committee. The decisions of the SERP Committee shall be final, binding and conclusive upon all persons.

 

(iii)           The decision of the SERP Committee on a claim and on a request for a review of a denied claim shall be served on the claimant in writing. If a decision or notice is not received by a claimant within the time specified, the claim or request for a review of a denied claim shall be deemed to have been denied.

 

(iv)           Prior to filing a claim or a request for a review of a denied claim, the claimant or the claimant’s representative shall have a reasonable opportunity to review a copy of this Plan and all other pertinent documents in the possession of the Company and the SERP Committee.

 

(v)            The individuals serving on the SERP Committee shall, except as prohibited by law, be indemnified and held harmless by the employer from any and all liabilities, costs, and expenses (including legal fees), to the extent not covered by liability insurance arising out of any action taken by any individual of the SERP Committee with respect to this Plan, unless such liability arises from the individual’s claim for such individual’s own benefit, the proven gross negligence, bad faith, or (if the individual had reasonable cause to believe such conduct was unlawful) the criminal conduct of such individual. This indemnification shall continue as to an individual who has ceased to be a member of the SERP Committee for the employer and shall enure to the benefit of the heirs, executors and administrators of such an individual.

 

18

 

APPENDIX I

 

Everything in this Plan to the contrary notwithstanding, the following Participants shall have benefits under this Plan as provided in their respective agreements with the Company as follows:

 

1.      Lance R. Primis : as per his agreement with the Company dated December 4, 1996.

 

15

Exhibit 10.5

 

THE NEW YORK TIMES COMPANY

DEFERRED EXECUTIVE COMPENSATION PLAN

 

Effective July 1, 1994

 

 

Amended January 1, 1999

Amended December 8, 1999

Amended Effective January 1, 2001

Amended Effective July 1, 2002

Amended Effective January 1, 2005

Amended Effective January 1, 2008

 

 

ARTICLE I

 

Introduction

 

1.1                                Purpose Of Plan

 

The Employer has adopted the Plan set forth herein to provide a means by which certain employees may elect to defer receipt of designated percentages or amounts of their Compensation.

 

1.2                                Status Of Plan

 

The Plan is intended to be “a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees” within the meaning of Sections 201(2) and 301(a)(3) of ERISA, and shall be interpreted and administered to the extent possible in a manner consistent with that intent. Effective for Elective Deferrals made for Plan Year 2005 and thereafter, the Plan is intended to comply with the requirements of Section 409A of the Code, and shall be interpreted and administered to the extent possible in a manner consistent with that intent.

 

1.3                                History Of Plan

 

The Plan was first effective on July 1, 1994.

 

Thereafter, the Plan was amended effective January 1, 1999, to change the deferral periods under the Plan and the method of distribution thereunder.

 

Effective December 8, 1999, the Plan was amended to change the eligibility for participation in the Plan and the definition of Compensation thereunder for years following 1999. Effective December 8, 1999, The New York Times Designated Employees Deferred Earnings Plan was merged into the Plan, as amended.

 

Effective January 1, 2001, the Plan was amended to provide that only 85% of a Participant’s bonus may be deferred thereunder.

 

Effective January 1, 2001, the Plan was amended to further change the deferral periods and methods of benefit distribution thereunder.

 

Effective January 1, 2001, the Affiliated Publications, Inc. Deferment Plan for Key Executives (the “BG Plan”) was merged into the Plan and each participant account in the BG Plan was transferred into this Plan.

 

Effective July 1, 2002, the Plan was amended to further change the methods of benefit distribution thereunder.

 

2

 

Effective January 1, 2005, the Plan was amended to comply with the requirements of Section 409A of the Code.

 

Effective January 1, 2008, the Plan was amended to further comply with the requirements of Section 409A of the Code.

 

3

 

ARTICLE II

 

Definitions

 

Wherever used herein, the following terms have the meanings set forth below, unless a different meaning is clearly required by the context:

 

2.1                                Account means, for each Participant, the account established for his or her benefit under Section 5.1. Such Account shall include both salary and bonus deferrals. Effective January 1, 2001, an Account shall include the amounts, if any, transferred from the BG Plan to this Plan.

 

2.2                                Change Of Control means the occurrence of any of the events described in paragraphs (a), (b) or (c) below involving the Company:

 

(a)                       Change in ownership of the Company . A change in the ownership of the Company shall be deemed to occur on the date that any one person, or more than one person acting as a group (as described in paragraph (d) below), acquires ownership of the stock of the Company (“Company Stock”) that, together with stock already held by such person or group, constitutes more than 50% of the total fair market value of the outstanding Company Stock or that has the ability to elect more than 50% of the Company’s board of directors; except, however, that if any one person or group already holds Company stock that constitutes more than 50% of the total fair market value of the outstanding Company Stock or that has the ability to elect more than 50% of the Company’s board of directors, the acquisition of additional Company Stock by such person or group shall not be deemed to cause a change in ownership of the Company (or a change in effective control of the Company, within the meaning of paragraph (b) below). For purposes of this paragraph (a), an increase in the percentage of Company Stock owned by any one person or group resulting from a transaction in which the Company acquires its Company Stock in exchange for property shall be deemed to be an acquisition of additional Company Stock.

 

(b)                      Change in effective control of the Company . A change in the effective control of the Company shall be deemed to occur on the date that a majority of the members of the Company’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the member’s of the Company’s board of directors prior to the date of the appointment or election.

 

(c)                       Change in ownership of a substantial portion of the assets of the Company . A change in ownership of a substantial portion of the assets of the Company and its subsidiaries (“Company Assets”) shall be deemed to occur on the date that any one person, or more than one person acting as a group (as described in paragraph (d) below), acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or group) Company Assets that have a total gross fair market value equal to or exceeding 40% of the total gross fair market

 

4

 

value of all of the Company Assets immediately preceding such acquisition or acquisitions, where the total fair market value of the Company Assets and the assets being disposed of are determined without regard to any liabilities associated with such assets; except, however, that, for purposes of the Plan, a change in ownership of a substantial portion of the Company Assets shall not be deemed to have occurred in connection with the transfer of the Company Assets to any following entities:

 

(i)		An entity that was a shareholder of the Company immediately prior to the transfer provided that such transfer is in exchange for, or with respect to, the entity’s Company Stock;
(ii)		An entity whose total value or voting power immediately after the transfer is at least 50% owned, directly or indirectly, by the Company;
(iii)		A person or group that, immediately after the transfer, directly or indirectly owns at least 50% of the total value or voting power of the outstanding Company Stock; or
(iv)		An entity whose total value or voting power immediately after the transfer is at least 50% owned, directly or indirectly, by a person described in paragraph (c)(iii) above.

 

(d)                      Persons acting as a group . For purposes of this Section 2.2, persons will not be considered to be acting as a group solely because they purchase or own Company Stock or Company Assets at the same time, or as the result of the same public offering. Persons will be considered acting as a group, however, if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of Company Stock or Company Assets, or a similar business transaction with the Company.

 

(e)                       Attribution of stock ownership . In determining Company Stock ownership for purposes of this Section 2.2, the attribution rules of Code section 318(a) shall apply. Company Stock underlying a vested stock option shall be deemed to be owned by the individual who holds the vested option; except, however, that a vested option exercisable for Company Stock that is not substantially vested shall not be deemed to be owned by the individual who holds such vested option. Company Stock underlying an unvested option shall not be deemed to be owned by the individual who holds the unvested option.

 

2.3                                Code means the Internal Revenue Code of 1986, as amended from time to time. Reference to any section or subsection of the Code includes reference to any comparable or succeeding provisions of any legislation which amends, supplements or replaces such section or subsection.

 

2.4                                Company means The New York Times Company.

 

2.5                                Compensation means the annual bonus, amounts paid under The Advertising and Circulation Sales Incentive Plan, the Long-Term Performance Awards under The New

 

5

 

York Times Company 1991 Executive Cash Bonus Plan and 1991 Executive Stock Incentive Plan, any Discretionary Bonuses and the base salary (including bonuses in lieu of salary increases) of a Participant. The ERISA Management Committee, in its sole discretion, shall designate from time to time the maximum percentage of each component of Compensation that can be deferred under the Plan. Such designation shall be listed in Appendix A. For purposes of the Plan, Compensation shall be determined before giving effect to Elective Deferrals and other salary reduction amounts which are not included in the Participant’s gross income under Code Sections 125, 401(k), 402(h) or 403(b).

 

2.6                                Discretionary Bonus means a bonus that brings a Participant’s Compensation over the deductible amount stated in Section 162 (m) of the Code.

 

2.7                                Effective Date means July 1, 1994.

 

2.8                                Election Form means the participation election form as approved and prescribed by the Plan Administrator.

 

2.9                                Elective Deferral means the portion of Compensation that is deferred by a Participant under Article IV.

 

2.10                         Eligible Employee means, for the Plan Year 2000 and Plan Years thereafter, each employee of the Employer whose annual base salary on October 1 of the year prior to the year for which such employee defers any Compensation under the Plan is at least $110,000, who is not covered under a collective bargaining agreement, who is not eligible to participate in any other non-qualified deferred compensation plan sponsored by the Employer and/or its subsidiaries and affiliates while deferring Compensation under this Plan, and who consents to the purchase of Corporate Owned Life Insurance by the Employer. The $110,000 minimum annual base salary shall be adjusted by the ERISA Management Committee from time to time at its sole discretion and without the need for an amendment to the Plan. An employee who participated in this Plan or The New York Times Designated Employees Deferred Earnings Plan prior to 2000, and who no longer meets the definition of an Eligible Employee, shall continue to be an Eligible Employee hereunder.

 

2.11                         Employer means The New York Times Company, any successor to all or a major portion of the Employer’s assets or business which assumes the obligations of the Employer, and each other entity that is affiliated with the Employer whose employees, with the consent of the Company, are eligible, as provided under Section 2.8, to participate in the Plan.

 

2.12                         ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to any section or subsection of ERISA includes reference to any comparable or succeeding provisions of any legislation that amends, supplements or replaces such section or subsection.

 

6

 

2.13                         ERISA Management Committee means a committee appointed by the Compensation Committee of the Board of Directors of the Company.

 

2.14                         Insolvency means either (i) the Company is unable to pay its debts as they become due, or (ii) the Company is subject to a pending proceeding as a debtor under the United States Bankruptcy Code.

 

2.15                         Participant means any Eligible Employee who participates in the Plan in accordance with Article III. Effective January 1, 2001, a Participant also means a former participant of the Affiliated Publications, Inc. Deferment Plan for Key Executives whose account under the that plan has been transferred into this Plan.

 

2.16                         Plan means The New York Times Company Deferred Executive Compensation Plan and all amendments thereto.

 

2.17                         Plan Administrator means the person, persons or entity designated by the Employer under Article VIII to oversee the administration of the Plan. If no such person or entity is so serving at any time, the Employer shall be the Plan Administrator.

 

2.18                         Plan Year means the 12-month period beginning on January 1 and ending on December 31 of each year, except for the first plan year which begins on July 1, 1994, and ends on December 31, 1994.

 

2.19                         Recordkeeper means the person(s) or entity appointed or hired by the ERISA Management Committee under Section 8.1.

 

2.20                         Total and Permanent Disability means the inability of a Participant to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, and the permanence and degree of which shall be supported by medical evidence satisfactory to the Plan Administrator.

 

2.21                         Trust means the trust established by the Employer that identifies the Plan as a plan with respect to which assets are to be held by the Trustee. Plan assets in the trust are subject to the general creditors of the Company in the event of bankruptcy or Insolvency.

 

2.22                         Trustee means the trustee or trustees under the Trust.

 

2.23                         Valuation Option means the performance of the investment funds listed in Appendix B of the Plan.

 

7

 

ARTICLE III

 

Participation

 

3.1                                Commencement Of Participation

 

Any Eligible Employee who elects to defer part of his or her Compensation in accordance with Article IV shall become a Participant in the Plan as of the date such deferrals commence in accordance with such Article.

 

3.2                                Continued Participation

 

A Participant in the Plan shall continue to be a Participant so long as any amount remains credited to his or her Account. However, future deferrals under the Plan may be made only if such Participant continues to be an Eligible Employee under the Plan.

 

8

 

ARTICLE IV

 

Elective Deferrals

 

4.1                                Elective Deferrals

 

Except as provided in Appendix A, an individual who is an Eligible Employee on the Effective Date may, by completing an Election Form and filing it with the Plan Administrator or his designee by the end of the first month following the Effective Date, elect to defer the receipt of a portion of one or more payments of Compensation for a period of at least three Plan Years and on such terms as the ERISA Management Committee may permit. Thereafter, any Eligible Employee may elect to defer the receipt of a percentage or dollar amount of one or more payments of Compensation for a period of a least three Plan Years and on such terms as the ERISA Management Committee may permit, commencing with Compensation paid in the next succeeding Plan Year, by completing an Election Form during the annual enrollment period for the Plan as determined by the Plan Administrator.

 

Except as provided in Appendix A, effective January 1, 1999, with respect to Elective Deferrals made for the Plan Years 1999 and 2000, deferrals will mature at the end of a three-year cycle. An individual who is an Eligible Employee may elect to defer the receipt of a portion of one or more payments of Compensation during the first year of the deferral cycle for a period of three Plan Years and on such terms as the ERISA Management Committee may permit; an individual who is an Eligible Employee may elect to defer the receipt of a portion of one or more payments of Compensation during the second year of the deferral cycle for a period of two Plan Years and on such terms as the ERISA Management Committee may permit; and an individual who is an Eligible Employee may elect to defer the receipt of a portion of one or more payments of Compensation during the last year of a deferral cycle for a period of one Plan Year and on such terms as the ERISA Management Committee may permit. All deferrals made during a three-year cycle will mature at the end of the third Plan Year in that cycle. A new three-year cycle will commence after the expiration of each three-year cycle.

 

Except as provided in Appendix A, effective January 1, 2001, with respect to Elective Deferrals made for the Plan Years 2001 through 2004, deferrals will mature in a four-year cycle. An individual who is an Eligible Employee may elect to defer the receipt of a portion of one or more payments of Compensation during the first year of the deferral cycle for a period of four Plan Years and on such terms as the ERISA Management Committee may permit; an individual who is an Eligible Employee may elect to defer the receipt of a portion of one or more payments of Compensation during the second year of the deferral cycle for a period of three Plan Years and on such terms as the ERISA Management Committee may permit; and an individual who is an Eligible Employee may elect to defer the receipt of a portion of one or more payments of Compensation during the third year of a deferral cycle for a period of two Plan Years and on such terms as the ERISA Management Committee may permit. All deferrals made during a four-year cycle

 

9

 

will mature at the end of the second Plan Year that is after the end of the last deferral in that cycle.

 

Except as provided in Appendix A, effective January 1, 2005, with respect to Elective Deferrals for Plan Year 2005 and thereafter, an Eligible Employee may elect to defer, on such terms as the ERISA Management Committee may permit, the receipt of a percentage of Compensation earned during the next succeeding Plan Year for a minimum deferral period of a two Plan Years and a maximum deferral period of 15 Plan Years after the Plan Year in which the Compensation was earned, by completing an Election Form during the annual enrollment period for such Plan Year, as determined by the Plan Administrator. Except as provided in the next sentence, the annual enrollment period for a Plan Year must end no later than December 31 of the prior Plan Year. Notwithstanding the foregoing, (i) the annual enrollment period for Plan Year 2005 may end no later than March 15, 2005, (ii) the annual enrollment period for an individual who first becomes an Eligible Employee during a Plan Year may end no later than 30 days after the date the individual became an Eligible Employee, and (iii) the annual enrollment period for deferrals of Long-Term Performance Awards under The New York Times Company 1991 Executive Cash Bonus Plan and 1991 Executive Stock Incentive Plan may end no later than six months prior to the end of the applicable performance cycle; provided, however, that in the case of (i) and (ii) above, any Elective Deferral made after the start of a Plan Year may pertain only to Compensation that has not already been paid or become payable as of the date the deferral election is made, as determined in accordance with the requirements of Section 409A of the Code, and in the case of (iii) above, as of the date the deferral election is made the Long Term Performance Award being deferred is not substantially certain to be paid and the amount of the Award is not readily ascertainable.

 

It is expressly understood that accounts transferred from the BG Plan into this Plan shall be treated as if deferred during 2001 and the deferral period for such accounts shall expire at the same time all other deferrals made during 2001 expire.

 

No Participant may defer more than the portion of his or her Compensation designated by the ERISA Management Committee in Appendix A. A Participant’s Compensation shall be reduced in accordance with the Participant’s election hereunder and amounts deferred hereunder shall be paid by the Employer to the Trust as soon as administratively feasible and credited to the Participant’s Account as of the date the amounts are received by the Trustee.

 

4.2                                Investment Election

 

An individual who is an Eligible Employee and elects to defer Compensation under this Plan shall elect to have his or her Account valued based on the Valuation Option represented by the performance of one or more of the investment funds listed in Appendix B of the Plan. Such Appendix B may be amended at any time by an action of the ERISA Management Committee. If a Participant does not elect a Valuation Option for his or her Account, the Account shall be valued based on the Valuation Option

 

10

 

represented by the performance of Fund A. A Participant may change his or her selection of Valuation Options on any date.

 

11

 

ARTICLE V

 

Accounts

 

5.1                                Accounts

 

The Plan Administrator and/or the Recordkeeper shall establish an Account for each Participant reflecting his or her Elective Deferrals made for the Participant’s benefit together with any adjustments for income, gain or loss and any payments from the Account. The Plan Administrator and/or the Recordkeeper shall establish sub-accounts for each Participant that has more than one election in effect under Section 7.1 and such other sub-accounts as are necessary for the proper administration of the Plan. As of the last business day of each calendar quarter, the Plan Administrator shall provide, or cause to be provided, the Participant with a statement of his or her Account reflecting the income, gains and losses (realized and unrealized), amounts of deferrals, fund transfers and distributions of such Account since the prior statement.

 

Effective January 1, 2001, a Participant’s Account shall include the amount transferred from the BG Plan to this Plan.

 

5.2                                Investments

 

The assets of the Trust shall be invested in such investments as the Trustee shall determine. The Trustee may (but is not required to) consider the Employer’s or a Participant’s investment preferences when investing the assets attributable to a Participant’s Account.

 

12

 

ARTICLE VI

 

Vesting

 

6.1                                Vesting

 

A Participant shall be immediately vested in, i.e ., shall have a nonforfeitable right to, all Elective Deferrals, and all income and gain attributable thereto, credited to his or her Account.

 

13

 

ARTICLE VII

 

Payments

 

7.1                                Election As To Form Of Payment

 

Except as otherwise provided herein, payments to Participants shall be made in annual installments over a period of 10 years commencing between January 2 and March 15 immediately following the end of each deferral period. The amount of each installment payment will equal the balance of a Participant’s Account immediately prior to the installment payment divided by the number of installment payments remaining to be made.

 

The above notwithstanding, for Elective Deferrals for Plan Years prior to the 2005 Plan Year, a Participant may elect in writing to receive the value of his or her Account in one lump sum, in annual installments over a period of five years, or in annual installments over a period of fifteen years, so long as such election is made at least 13 months prior to the end of the deferral period. Additionally, effective January 1, 1999, a Participant may elect in writing to receive the value of his or her account in a partial lump sum where the Participant may choose the percent of an expiring deferral to be paid in a lump sum with the balance in annual installments over the remainder of the 5, 10 or 15 year-installment period; provided, however, that such election is made at least 13 months prior to the end of the deferral period.

 

Effective January 1, 1999, (i) for Elective Deferrals made for Plan Years 1999 through 2004, and (ii) for Elective Deferrals made prior to January 1, 1999 which are subject to a Participant’s election after January 1, 1999 to renew the deferral, a Participant’s election as to the form of payment as set forth in this Section 7.1 shall apply to the Participant’s entire Account. If the Participant begins to receive distributions of his or her Account pursuant to this Section 7.l, a subsequent election to defer additional Compensation shall be subject to a new election under this Section 7.1 and shall not affect the payment stream established by the prior distribution election.

 

Effective January 1, 2001, (i) for Elective Deferrals made for Plan Years 2001 through 2004, and (ii) for Elective Deferrals made prior to January 1, 2001 which are subject to a Participant’s election after January 1, 2001 to renew the deferral, a Participant may elect to receive a lump sum payment of a portion of his/her Account and renew the deferral of the of rest such Account. If the Participant begins to receive distributions of his or her Account pursuant to this Section 7.l, a subsequent election to defer additional Compensation shall be subject to a new election under this Section 7.1 and shall not affect the payment stream established by the prior distribution election.

 

Effective July 1, 2002, (i) for Elective Deferrals made for Plan Years 2002 through 2004, and (ii) for Elective Deferrals made for Plan Years prior to 2002 which are subject to a Participant’s election after July 1, 2002 to renew the deferral, a Participant’s election as to

 

14

 

the form of payment as set forth in this Section 7.1 shall apply to each of the Participant’s Elective Deferrals made for a specific Plan Year. Additionally, a Participant may elect to receive a lump sum payment of a portion of his/her Elective Deferral for a specific Plan Year and renew the deferral of the of rest such Elective Deferral. Finally, A Participant may elect to receive a partial lump sum of his/her Elective Deferral for a specific Plan Year with the balance of such Elective Deferral paid in annual installments over 5, 10 or 15 years. Except as provide in the next paragraph, all elections under this Section 7.1 must be made at least 13 months prior to the end of the applicable deferral period.

 

Effective January 1, 2005, for Elective Deferrals made for Plan Year 2005 and thereafter, a Participant’s election as to form of payment shall be made on a Plan Year to Plan Year basis and must be made during the annual enrollment period for each such Plan Year, as determined by the Plan Administrator in accordance with Section 5.1. During the applicable annual enrollment period, a Participant may to receive his/her Elective Deferrals for such Plan Year in either (i) one lump sum payment payable between January 2 and March 15 immediately following the end of the deferral period for such Plan Year or (ii) in annual installments over a period of five, ten or fifteen years commencing between January 2 and March 15 immediately following the end of the deferral period for such Plan Year. If no election as to form of payment is made during the applicable annual enrollment period for a Plan Year, Elective Deferrals for such Plan Year shall be paid in the form of a lump sum payment between January 2 and March 15 immediately following the end of the deferral period for such Plan Year. For Elective Deferrals made for Plan Year 2005 and thereafter, a Participant may subsequently elect to change the form of payment from installments to a lump sum or from a lump sum to installments, or increase or decrease the number of installments, subject to the requirements of Section 7.2.

 

The above notwithstanding, Participants whose accounts in the BG Plan were in pay status and were transferred from the BG Plan into this Plan shall continue to receive the same payments and under the same terms as they had under the BG Plan.

 

7.2                                Extension Of Deferral Periods

 

A Participant may make an election in writing to extend the deferral period for Elective Deferrals made prior to Plan Year 2005 for three to ten additional Plan Years so long as such Participant makes such election at least 13 months prior to the expiration of the deferral period.

 

Effective January 1, 1999, for Elective Deferrals made prior to Plan Year 2001, elections to extend a deferral period must be made for a three-year cycle. A new three-year cycle will commence at the end of every third Plan Year. An election to extend a deferral period must be made by the Participant in writing at least 13 months prior to the end of a deferral period. If a deferral period will expire during the course of a three-year cycle, the Participant’s election is limited to an election to extend the deferral period until the end of

 

15

 

such three-year cycle. A Participant may elect to renew deferral periods for additional three-year cycles an unlimited number of times.

 

Effective January 1, 1999, terminated Participants will not be permitted to renew their deferral elections. Payments to terminated Participants will begin at the expiration of their current deferral period in accordance with the method selected under Section 7.1 (unless the Participant retired under a Company pension plan, or had attained age 55 and completed at least ten years of service as of his or her date of termination, or has a Total and Permanent Disability, in which case additional elections to defer are permitted).

 

Effective January 1, 2001, for Elective Deferrals made prior to Plan Year 2005, elections to extend a deferral period must be made for a four year-cycle. A new four-year cycle will commence at the end of every fourth Plan Year. An election to extend a deferral period must be made by the Participant in writing at least 13 months prior to the end of a deferral period. If a deferral period will expire during the course of a four-year cycle, the Participant’s election is limited to an election to extend the deferral period until the end of such four-year cycle. A Participant may elect to renew deferral periods for additional four-year cycles an unlimited number of times.

 

Effective January 1, 2005, for Elective Deferrals made for Plan Year 2005 and thereafter, elections to extend a deferral period and/or change the form of payment shall be made on a Plan Year to Plan Year basis. An election to extend a deferral period and/or change the form of payment with respect to Elective Deferrals for a Plan Year must (i) be made by the Participant in writing at least 13 months prior to the end of the applicable deferral period for such Plan Year, (ii) shall not take effect until 12 months after the election is made, and (iii) must extend the applicable deferral period for a minimum of five additional years and a maximum of fifteen additional years. Elections to change the form of payment cannot be made without also extending the deferral period, as provided in the preceding sentence.

 

7.3                                Change Of Control

 

As soon as administratively feasible following a Change Of Control of the Employer, each Participant shall be paid his or her entire Account balance in a single lump sum.

 

7.4                                Termination Of Employment

 

Upon termination of a Participant’s employment for any reason other than death, the Participant’s Account shall be paid to the Participant in the form of payment in effect at the time the termination of employment occurs and after the expiration of the deferral period. The above notwithstanding, with respect to Elective Deferrals for Plan Years prior to Plan Year 2005 only, the Plan Administrator, in its sole discretion, may: (a) pay out a Participant’s Account balance attributable to such pre-2005 Elective Deferrals in one lump sum at any time prior to the expiration of each deferral period and (b) accelerate the

 

16

 

beginning of payments of any pre-2005 Elective Deferrals to any time prior to the expiration of the applicable deferral period.

 

7.5                                Death

 

If a Participant dies prior to the complete distribution of his or her Account, the balance of the Account shall be paid to the Participant’s designated beneficiary or beneficiaries within 90 days after the date of the Participant’s death (with the actual payment date within such 90-day period to be determined at the discretion of the Plan Administrator), in the form set out in the Participant’s distribution elections that were in effect at the time of his or her death, provided, however, that, with respect to the portion of the Account attributable to Elective Deferrals for Plan Years prior to Plan Year 2005 only, the ERISA Management Committee and/or the Plan Administrator may, in their sole discretion, pay out the balance of such Participant’s Account in one lump sum.

 

Any designation of beneficiary shall be made by the Participant on a Beneficiary Designation Form filed with the Plan Administrator and may be changed by the Participant at any time by filing another Beneficiary Designation Form containing the revised instructions. If no beneficiary is designated or no designated beneficiary survives the Participant, payment shall be made to the Participant’s surviving spouse or, if none, to his/her issue per stirpes, in a single payment. If no spouse or issue survives the Participant, payment shall be made in a single lump sum to the Participant’s estate. The most recent Beneficiary Designation Form executed by the Participant prior to his/her death shall apply to all Election Deferrals credited to the Participant’s Account at the date of his/her death.

 

7.6                                Taxes

 

All federal, state or local taxes that the Plan Administrator determines are required to be withheld from any payments made pursuant to this Article VII shall be withheld.

 

ARTICLE VIII

 

Plan Administration

 

8.1                                Plan Administration And Interpretation .

 

The ERISA Management Committee (the “Committee”) shall oversee the administration of the Plan, shall serve as the agent of the Company with respect to the trust, and shall appoint a Plan Administrator and/or Recordkeeper for the day-to-day operations of the Plan. Such Plan Administrator and/or Recordkeeper shall be listed in Appendix C to this Plan. The Committee shall have complete control and authority to determine the rights and benefits under all claims, demands and actions arising out of the provisions of the Plan of any Participant, beneficiary, deceased Participant, or other person having or

 

17

 

claiming to have any interest under the Plan. The Committee shall have complete discretion to interpret the Plan and to decide all matters under the Plan. Such interpretation and decision shall be final, conclusive and binding on all Participants and any person claiming under or through any Participant. Any individual(s) serving on the Committee who is a Participant will not vote or act on any matter relating solely to himself or herself.

 

8.2                                Committee Powers, Duties, Procedures, Etc .

 

The Committee shall have such powers and duties, may adopt such rules and regulations, may act in accordance with such procedures, may appoint such agents, may delegate such powers and duties, may receive such reimbursements and compensation, and shall follow such claims and appeal procedures with respect to the Plan as it may establish.

 

8.3                                Plan Administrator’s Duties

 

The Plan Administrator shall be responsible for the day-to-day operations of the Plan. His or her duties shall include, but not be limited to, the following:

 

(a)                                   Keeping track of employees eligible to participate in the Plan and the date each employee becomes eligible to participate.

 

(b)                                  Maintaining, or causing to be maintained by the Recordkeeper, Participants’ Accounts, including all sub-accounts required for different contribution types and payment elections made by Participants under the Plan and any other relevant information.

 

(c)                                   Transmitting, or causing to be transmitted by the Recordkeeper, various communications to Participants and obtaining information from Participants such as changes in investment selections.

 

(d)                                  Filing reports required by various governmental agencies. When making a determination or calculation, the Plan Administrator and the Recordkeeper shall be entitled to rely on information furnished by a Participant, a beneficiary, the Employer or the Trustee. The Plan Administrator shall have the responsibility for complying with any reporting and disclosure requirements of ERISA.

 

8.4                                Information

 

To enable the Plan Administrator and/or Recordkeeper to perform their functions, the Employer shall supply full and timely information to the Plan Administrator and/or Recordkeeper on all matters relating to the compensation of Participants, their employment, retirement, death, termination of employment, and such other pertinent facts as the Plan Administrator and/or Recordkeeper may require.

 

18

 

8.5                                Indemnification Of Committee And Plan Administrator

 

The Employer agrees to indemnify and to defend to the fullest extent permitted by law any officer(s) or employee(s) who serve on the Committee or as Plan Administrator (including any such individual who formerly served on the Committee or as Plan Administrator) against all liabilities, damages, costs and expenses (including attorneys’ fees and amounts paid in settlement of any claims approved by the Employer) occasioned by any act or omission to act in connection with the Plan, if such act or omission is in good faith.

 

19

 

ARTICLE IX

 

Amendment And Termination

 

9.1                                Amendments

 

The Employer shall have the right to amend the Plan from time to time, subject to Section 9.3, by an action of the ERISA Management Committee.

 

9.2                                Termination Of Plan

 

This Plan is strictly a voluntary undertaking on the part of the Employer and shall not be deemed to constitute a contract between the Employer and any Eligible Employee (or any other employee) or a consideration for, or an inducement or condition of employment for, the performance of the services by any Eligible Employee (or other employee). The Employer reserves the right to terminate the Plan at any time, subject to Section 9.3, by an action of the ERISA Management Committee. Upon termination, no new Elective Deferrals or elections to extend deferral periods may be made under the Plan and the Employer shall continue to maintain the Trust to pay benefits hereunder as they become due as if the Plan had not terminated.

 

Notwithstanding the foregoing, if at the time the Plan is terminated either (i) the Employer maintains no other account balance deferred compensations plans or arrangements that would be required to be aggregated with the Plan pursuant to Section 409A of the Code or (ii) any such plans or arrangements that are maintained by the Employer are terminated at the same time as the Plan, then the Employer may, in its discretion, continue to maintain the Trust to pay benefits hereunder as they become due for a period of at least 12 months after the Plan is terminated and thereafter direct the Trustee to pay the Participants (or their beneficiaries) the balance of their Accounts no later than 24 months after the date the Plan is terminated. In the event the Employer elects the alternative described in this paragraph, then for a period of five years after the date the Plan is terminated, the Employer shall be prohibited from adopting or establishing a new account balance deferred compensation plan or arrangement that would have been required to be aggregated with the Plan pursuant to Code Section 409A had the Plan not been terminated.

 

9.3                                Existing Rights

 

No amendment or termination of the Plan shall adversely affect the rights of any Participant with respect to amounts that have been credited to his or her Account prior to the date of such amendment or termination.

 

20

 

ARTICLE X

 

Miscellaneous

 

10.1                         No Funding

 

The Plan constitutes a mere promise by the Employer to make payments in accordance with the terms of the Plan and Participants and beneficiaries shall have the status of general unsecured creditors of the Employer. Nothing in the Plan will be construed to give any employee or any other person rights to any specific assets of the Employer or of any other person. In all events, it is the intent of the Employer that the Plan be treated as unfunded for tax purposes and for purposes of Title I of ERISA.

 

10.2                         Non-Assignability

 

None of the benefits, payments, proceeds or claims of any Participant or beneficiary shall be subject to any claim of any creditor of any Participant or beneficiary and, in particular, the same shall not be subject to attachment or garnishment or other legal process by any creditor of such Participant or beneficiary, nor shall any Participant or beneficiary have any right to alienate, anticipate, commute, pledge, encumber or assign any of the benefits or payments or proceeds which he or she may expect to receive, contingently or otherwise, under the Plan.

 

10.3                         Limitation Of Participants’ Rights

 

Nothing contained in the Plan shall confer upon any person a right to be employed or to continue in the employ of the Employer, or interfere in any way with the right of the Employer to terminate the employment of a Participant in the Plan at any time, with or without cause.

 

10.4                         Participants Bound

 

Any action with respect to the Plan taken by the Plan Administrator or the Employer or the Trustee or any action authorized by or taken at the direction of the Plan Administrator, the Employer or the Trustee shall be conclusive upon all Participants and beneficiaries entitled to benefits under the Plan.

 

10.5                         Receipt And Release

 

Any payment to any Participant or beneficiary in accordance with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims against the Employer, the Plan Administrator and the Trustee under the Plan, and the Plan Administrator may require such Participant or beneficiary, as a condition precedent to such payment, to execute a receipt and release to such effect. If any Participant or beneficiary is determined by the Plan Administrator to be incompetent by reason of physical or mental disability

 

21

 

(including minority) to give a valid receipt and release, the Plan Administrator may cause the payment or payments becoming due to such person to be made to another person for his or her benefit without responsibility on the part of the Plan Administrator, the Employer or the Trustee to follow the application of such funds.

 

10.6                         Governing Law

 

The Plan shall be construed, administered, and governed in all respects under and by the laws of the State of New York. If any provision shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall continue to be fully effective.

 

10.7                         Headings And Subheadings

 

Heading and subheadings in this Plan are inserted for convenience only and are not to be considered in the construction of the provisions hereof.

 

22

 

APPENDIX A

 

Limit on Elective Deferrals

 

For the 1994 and 1995 Plan Years, a Participant may defer up to 100% of his/her annual bonus and no portion of his/her salary.

 

For the 1996 Plan Year and until changed by the Committee, a Participant may defer up to 100% of his/her annual bonus and up to 33% of his/her base salary.

 

For the 2000 Plan Year and until changed by the Committee, a Participant may defer up to 100% of his/her annual bonus, up to 100% of amounts paid under The Advertising and Circulation Sales Incentive Plan, up to 100% of his/her Long-Term Performance Awards under The New York Times Company 1991 Executive Cash Bonus Plan and up to 33% of his/her base salary. In addition, a Participant who is a “covered employee” within the meaning of Code Section 162(m) (a “Covered Employee”) may defer his/her entire Discretionary Bonus, if any, payable in a Plan Year. Deferral of such Discretionary Bonus shall continue without further action by the Participant until such time as the ERISA Management Committee determines that the Participant is no longer a Covered Employee. The Participant shall be permitted to extend the deferral period beyond the time he/she ceases to be a Covered Employee for a three-year cycle (and for subsequent three-year cycles) in the manner provided in Section 7.2 of the Plan.

 

For the 2001 Plan Year and until changed by the Committee, a Participant may defer up to 85% of his/her annual bonus, up to 100% of amounts paid under The Advertising and Circulation Sales Incentive Plan, up to 100% of his/her Long-Term Performance Awards under The New York Times Company 1991 Executive Cash Bonus Plan and up to 33% of his/her base salary. In addition, a Participant who is a “covered employee” within the meaning of Code Section 162(m) (a “Covered Employee”) may defer his/her entire Discretionary Bonus, if any, payable in a Plan Year. Deferral of such Discretionary Bonus shall continue without further action by the Participant until such time as the ERISA Management Committee determines that the Participant is no longer a Covered Employee; except, however, that the deferral period for Discretionary Bonuses deferred in the 2005 Plan Year and thereafter shall end on the date that the Participant terminates employment with the Company, with payments commencing between January 2 and March 15 of the calendar year immediately following such termination date or, if later, on the first business day of the month immediately following the six-month anniversary of such termination date. A Participant shall be permitted to extend the deferral period for Discretionary Bonuses in the manner provided in Section 7.2 of the Plan.

 

23

 

APPENDIX B

 

Valuation Options

 

For 1994 and until changed by the ERISA Management Committee, each Participant may elect to value his or her account based on the performance of one or more of the following funds:

 

1.                                        Fund A : AIM Limited Maturity Treasury

 

2.                                        Fund B : AIM Aggressive Growth

 

3.                                        Fund C : AIM Value

 

4.                                        Fund D : Merrill Lynch Federal Securities

 

5.                                        Fund E: Merrill Lynch Capital

 

6.                                        Fund F : Templeton Foreign

 

7.                                        Fund G : Merrill Lynch Global Allocation

 

For 1999 and until changed by the ERISA Management Committee, each Participant may elect to value his or her account based on the performance of one or more of the following funds:

 

1.                                        Fund A : Vanguard Short Term Federal Fund

 

2.                                        Fund B : Vanguard Total Bond Market Index Fund

 

3.                                        Fund C : Vanguard Asset Allocation Fund

 

4.                                        Fund D : Vanguard Growth and Income Fund

 

5.                                        Fund E : Frank Russell Equity I Fund

 

6.                                        Fund F : Frank Russell Equity II Fund

 

7.                                        Fund G : AIM Aggressive Growth Fund

 

8.                                        Fund H : Putnam International Growth Fund

 

9.                                        Fund I : Putnam Asset Allocation Fund - Balanced Portfolio

 

24

 

For 2001 and until changed by the ERISA Management Committee, each Participant may elect to value his or her account based on the performance of one or more of the following funds:

 

1.                Fund A : Vanguard Short Term Federal Fund

 

2.                Fund B : Vanguard Total Bond Market Index Fund

 

3.                Fund C : Vanguard Asset Allocation Fund

 

4.                Fund D : Vanguard Growth and Income Fund

 

5.                Fund E : Frank Russell Equity I Fund

 

6.                Fund F : Frank Russell Equity II Fund

 

7.                Fund G : AIM Aggressive Growth Fund

 

8.                Fund H : Vanguard International Growth Investment Fund

 

9.                Fund I : Putnam Asset Allocation Fund - Balanced Portfolio

 

25

 

APPENDIX C

 

Plan Administrator And Record Keeper

 

1.1                                Plan Administrator

 

For the Plan Year 1995, and until removed, the Plan Administrator shall be Phil Ryan. For the Plan Year 1997, and until removed, the Plan Administrator shall be Diane Zubalsky. For the Plan Year 2000, and until removed, the Plan Administrator shall be Robert Nusspickel.

 

1.2                                Recordkeeper

 

For the Plan Year 1994, and until removed, the Recordkeeper shall be Actuarial Information Management Systems. From June 1, 1996, and thereafter until removed, the Recordkeeper shall be Merrill Lynch.

 

Effective December 28, 1998, and until removed by the ERISA Management Committee, the Recordkeeper shall be The Vanguard Group.

 

Effective July 17, 1999, and until removed by the ERISA Management Committee, in addition to The Vanguard Group, TBG Financial shall be a Recordkeeper for the Plan.

 

Effective January 1, 2001, The Vanguard Group shall be the only Recordkeeper of Plan.

 

26