-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dkcqi6D913J5il/UA8qCBJ52ID0VSFs1zKWlQ/t2NIooEkMBXlVWbuZdp45cyoyh F3phZlibNyFTjvSlsXTs9w== 0000910662-97-000101.txt : 19970722 0000910662-97-000101.hdr.sgml : 19970722 ACCESSION NUMBER: 0000910662-97-000101 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970721 SROS: AMEX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEW YORK TIMES CO CENTRAL INDEX KEY: 0000071691 STANDARD INDUSTRIAL CLASSIFICATION: NEWSPAPERS: PUBLISHING OR PUBLISHING & PRINTING [2711] IRS NUMBER: 131102020 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-13851 FILM NUMBER: 97642904 BUSINESS ADDRESS: STREET 1: 229 W 43RD ST CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2125561234 MAIL ADDRESS: STREET 1: 229 W 43RD STREET CITY: NEW YORK STATE: NY ZIP: 10036 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SULZBERGER ARTHUR OCHS CENTRAL INDEX KEY: 0001028875 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: NEW YORK TIMES STREET 2: 229 W 43RD ST CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2125561771 MAIL ADDRESS: STREET 1: ARTHUR OCHS SULZBERGER STREET 2: NEW YORK TIMES 229 W 43RD ST CITY: NEW YORK STATE: NY ZIP: 10036 SC 13D/A 1 SCHEDULE 13D AMDMT NO.5 FOR ARTHUR OCHS SULZBERGER UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 5)* THE NEW YORK TIMES COMPANY - -------------------------------------------------------------------------------- (Name of Issuer) Class A Common Stock of $.10 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 650111 10 7 ----------- (CUSIP Number) Theodore R. Wagner Carter, Ledyard & Milburn 2 Wall Street, New York, New York 10005 (212) 732-3200 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 11, 1997 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 650111 10 7 1 NAME OF REPORTING PERSON: ARTHUR OCHS SULZBERGER I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): Not Applicable 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS: NOT APPLICABLE 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e): [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION: United States NUMBER OF 7 SOLE VOTING POWER: 4,850,588 shares* SHARES BENEFICIALLY 8 SHARED VOTING POWER: 1,140,311 shares** OWNED BY EACH 9 SOLE DISPOSITIVE POWER: 4,850,588 shares* REPORTING PERSON WITH 10 SHARED DISPOSITIVE POWER: 1,140,311 shares** 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 5,990,899 shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 6.24% 14 TYPE OF REPORTING PERSON: IN - ----------- * Includes 309,400 shares issuable upon exercise of stock options and 1,785 shares issuable upon conversion of 1,785 shares of Class B Common Stock. ** Includes 369,405 shares issuable upon conversion of 369,405 shares of Class B Common Stock. -2- This Amendment No. 5 to the Statement on Schedule 13D of Arthur Ochs Sulzberger ("Mr. Sulzberger") is being filed to report (i) the termination of the four trusts severally created on August 5, 1986 (the "1986 Trusts"), by each of the four children of Iphigene Ochs Sulzberger -- Mr. Sulzberger, Ruth S. Holmberg ("Mrs. Holmberg"), Marian S. Heiskell ("Mrs. Heiskell") and Judith P. Sulzberger ("Dr. Sulzberger" and, together with Mr. Sulzberger, Mrs. Holmberg and Mrs. Heiskell, the "children"), (ii) the transfer on July 11, 1997, from the 1986 Trusts to the children, in substantially equal one-quarter shares, of an aggregate of 3,324,645 shares of the Company's Class A Common Stock of 10 cents par value (the "Class A Stock") and 369,405 shares of the Company's Class B Common Stock of 10 cents par value (the "Class B Stock"), and (iii) the creation by the children of a new trust (the "1997 Trust") and the transfer on July 11, 1997, by the children to the 1997 Trust of the 369,405 shares of Class B Stock previously held by the 1986 Trusts, together with a total of 700,000 shares of Class A Stock (175,000 shares by each of the children). Item 4. Purpose of Transaction. ---------------------- ITEM 4 OF THIS STATEMENT IS HEREBY AMENDED TO ADD THE FOLLOWING: The termination of the four 1986 Trusts and the creation of the 1997 Trust resulted from a determination by the five trustees of the 1986 Trusts (the children and Lynn G. Dolnick ("Ms. Dolnick")) that the primary purpose of the 1986 Trusts -- to maintain the editorial independence of The New York Times and perpetuate it "as an independent newspaper, entirely fearless, free of ulterior influence and unselfishly devoted to the public welfare," in accordance with the wishes of Adolph S. Ochs as expressed in his will -- can best be effectuated by maintaining control of The -3- New York Times in the hands of a relatively small number of the descendants of Adolph S. Ochs acting as trustees of a single trust for the benefit of all such descendants. Except as set forth in Item 6 of this Amendment No. 5, Mr. Sulzberger currently has no plan or proposal, as a shareholder of the Company, which relates to or would result in: (a) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company, except that Mr. Sulzberger may make gifts of Class A Stock to or for the benefit of members of his immediate family and charitable institutions; (b) an extraordinary corporate transaction, such as a merger, reorganization, or liquidation, involving the Company or any of its subsidiaries; (c) a sale or transfer of a material amount of the assets of the Company or any of its subsidiaries; (d) any change in the present board of directors or management of the Company, including any plan or proposal to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Company's business or corporate structure; (g) changes in the Company's charter or by-laws or other actions which may impede the acquisition of control of the Company by any person; (h) a class of securities of the Company being delisted from a national securities exchange or ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; -4- (i) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934 (the "Exchange Act"); or (j) any action similar to any of those enumerated above. However, such plans or proposals may have been considered, and may from time to time hereafter be considered, by Mr. Sulzberger in his capacity as a director and executive officer of the Company. Item 5. Interest in Securities of the Issuer. ------------------------------------ ITEM 5 OF THIS STATEMENT IS HEREBY AMENDED AND RESTATED TO READ IN ITS ENTIRETY AS FOLLOWS: (a) and (b) Mr. Sulzberger is the direct beneficial owner of, and has sole voting and dispositive power with respect to, 4,100,588 shares of Class A Stock, including (i) 1,785 shares issuable upon the conversion of 1,785 shares of Class B Stock held by him, and (ii) 309,400 shares issuable upon the exercise of options granted under the Company's stock option plans, representing in the aggregate approximately 4.27% of the outstanding shares of Class A Stock.1 In addition, Mr. Sulzberger is the indirect beneficial owner of, and has sole voting and dispositive power with respect to, 750,000 shares of Class A Stock held by a trust of which he is the sole trustee. Accordingly, Mr. Sulzberger is the direct or indirect beneficial owner, with sole voting and dispositive power, of an - -------- 1Except as described in footnote 2 below, all percentages of outstanding Class A Stock herein are based on the 95,268,649 shares of Class A Stock shown as outstanding as of May 4, 1997, in the Company's Quarterly Report on Form 10-Q for the quarter ended March 30, 1997, plus the 680,590 unissued shares which are issuable upon the exercise of options or the conversion of Class B Stock by the 1997 Trust or Mr. Sulzberger individually, as described in this Item 5. -5- aggregate of 4,850,588 shares of Class A Stock, representing approximately 5.06% of the outstanding shares of Class A stock. Mr. Sulzberger is also (i) a co-trustee of a trust which holds 14,403 shares of Class A Stock, as to which shares he shares voting and dispositive power with Mrs. Heiskell, as co-trustee, and (ii) an officer and director of The Sulzberger Foundation, Inc. (the "Foundation"), which holds 56,503 shares of Class A Stock, or approximately 0.06% of the outstanding shares of Class A Stock, as to which shares Mr. Sulzberger shares voting and dispositive power with Mrs. Holmberg, Mrs. Heiskell and Dr. Sulzberger, all of whom are officers and directors of the Foundation. Mr. Sulzberger is also a co-trustee of the 1997 Trust, which holds 1,069,405 shares of Class A Stock (including 369,405 shares issuable upon the conversion of 369,405 shares of Class B Stock also owned by the 1997 Trust), representing approximately 1.11% of the outstanding shares of Class A Stock, as to which shares Mr. Sulzberger shares voting and dispositive power with Mrs. Holmberg, Mrs. Heiskell, Dr. Sulzberger and Ms. Dolnick, as co-trustee with them of the 1997 Trust. In summary of the foregoing, Mr. Sulzberger is the direct or indirect beneficial owner in the aggregate of 5,990,899 shares of Class A Stock, representing approximately 6.24% of the outstanding shares of Class A Stock. Mr. Sulzberger also holds 68,671 retirement units under the Company's Executive Incentive Compensation Plan and the Company's 1991 Executive Stock Incentive Plan. Such units entitle Mr. Sulzberger to receive one share of Class A Stock per unit in ten annual installments upon his retirement from the Company. Mr. Sulzberger disclaims beneficial ownership of the shares of Class -6- A Stock underlying these retirement units, which shares are excluded from the aggregate number of shares shown above as being beneficially owned by Mr. Sulzberger. Allison S. Cowles, Mr. Sulzberger's wife, owns 1,870 shares of Class A Stock. Mr. Sulzberger disclaims beneficial ownership of these shares, which are excluded from the aggregate number of shares shown above as being beneficially owned by Mr. Sulzberger. By virtue of their being co-trustees of the 1997 Trust, Mr. Sulzberger, Mrs. Holmberg, Mrs. Heiskell, Dr. Sulzberger and Ms. Dolnick could be deemed to comprise a "group" within the meaning of Section 13(d)(3) of the Exchange Act and Rule 13d-5(b) thereunder. Apart from their shared beneficial ownership with Mr. Sulzberger of the 1,069,405 shares of Class A Stock held by the 1997 Trust as described above: 1. Mrs. Holmberg (a) is the direct beneficial owner of, and has sole voting and dispositive power with respect to, 3,950,881 shares of Class A Stock, including 1,185 shares issuable upon the conversion of 1,185 shares of Class B Stock held by her and 6,000 shares issuable upon the exercise of options granted under the Company's stock option plans, (b) shares voting and dispositive power with her husband, A. William Holmberg, with respect to 5,040 shares of Class A Stock held by three trusts of which they are co-trustees, and (c) shares voting and dispositive power with Mrs. Heiskell, Mr. Sulzberger and Dr. Sulzberger with respect to the 56,503 shares of Class A Stock held by the Foundation; 2. Mrs. Heiskell (a) is the direct beneficial owner of, and has sole voting and dispositive power with respect to, 3,234,231 shares of Class A Stock, including 1,485 shares issuable upon the conversion of 1,485 shares of Class B Stock held by her and 6,000 shares issuable upon the exercise of options granted under the Company's stock option plans, (b) -7- shares voting and dispositive power with Mr. Sulzberger with respect to 14,403 shares of Class A Stock held by a trust of which they are co-trustees, and (c) shares voting and dispositive power with Mr. Sulzberger, Mrs. Holmberg and Dr. Sulzberger with respect to the 56,503 shares of Class A Stock held by the Foundation; 3. Dr. Sulzberger (a) is the direct beneficial owner of, and has sole voting and dispositive power with respect to, 3,944,021 shares of Class A Stock, including 1,185 shares issuable upon the conversion of 1,185 shares of Class B Stock held by her and 6,000 shares of Class A Stock issuable upon the exercise of options granted under the Company's stock option plans, and (b) shares voting and dispositive power with Mr. Sulzberger, Mrs. Heiskell and Mrs. Holmberg with respect to the 56,503 shares of Class A Stock held by the Foundation; and 4. Ms. Dolnick (a) has sole voting and dispositive power with respect to 929 shares of Class A Stock held by the Golden Family Charitable Fund, Inc., (b) has sole voting and dispositive power with respect to an aggregate of 11,646 shares of Class A Stock held by two trusts of which Ms. Dolnick is the sole trustee (Ms. Dolnick disclaims beneficial ownership of these shares), and (c) shares voting and dispositive power with her husband, Edward Dolnick, as joint holder with him of 10,806 shares of Class A Stock, including 559 shares issuable upon the conversion of 559 shares of Class B Stock jointly held by them. In summary of the foregoing, the "group" comprised of Mrs. Holmberg, Mr. Sulzberger, Mrs. Heiskell, Dr. Sulzberger and Ms. Dolnick is the beneficial owner in the aggregate of -8- 17,148,453 shares of Class A Stock, representing approximately 17.87%2 of the outstanding shares of Class A Stock, which shares include 375,604 shares issuable upon the conversion of an aggregate of 375,604 shares of Class B Stock held by the group members individually and by the 1997 Trust, and 327,400 shares issuable upon the exercise of options granted under the Company's stock option plans. The business address of Mrs. Heiskell is 229 West 43rd Street, New York, New York 10036. The business address of Mrs. Holmberg is The Chattanooga Times, 100 East Tenth Street, Chattanooga, Tennessee 37401. The residence address of Dr. Sulzberger is 146 Central Park West, New York, New York 10023. The business address of Ms. Dolnick is 3001 Connecticut Avenue, Washington, D.C. 20008. Mrs. Heiskell is principally employed as a director of various charitable organizations. Mrs. Holmberg is principally employed as Chairman of Times Printing Company, the publisher of The Chattanooga Times newspaper. Dr. Sulzberger is a physician currently retired from the active practice of medicine. Ms. Dolnick is principally employed as Chief of the Division of Exhibition Interpretation at the National Zoological Park of the Smithsonian Institution, the address of which is 3001 Connecticut Avenue, Washington, D.C. 20008. None of Mrs. Holmberg, Mrs. Heiskell, Dr. Sulzberger and Ms. Dolnick has, during the last five years, (i) been convicted in a criminal proceeding or (ii) been a party to a civil proceeding of a judicial or administrative body, as a result of which she was or is subject to (A) a judgment, decree - -------- 2This percentage is based on the 95,268,649 shares of Class A Stock shown as outstanding as of May 4, 1997, in the Company's Quarterly Report on Form 10-Q for the quarter ended March 30, 1997, plus the 703,004 unissued shares which are issuable upon the exercise of options or the conversion of Class B Stock by the 1997 Trust or any member of the "group," as described above in this Item 5. -9- or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or (B) a judgment, decree or final order finding any violation with respect to such laws. Each of Mrs. Holmberg, Mrs. Heiskell, Dr. Sulzberger and Ms. Dolnick is a citizen of the United States. (c) During the past 60 days, no transactions in the Class A Stock have been effected by Mr. Sulzberger, Mrs. Heiskell, Mrs. Holmberg, Dr. Sulzberger and Ms. Dolnick, except that (i) on July 11, 1997, the 1986 Trust created by Mrs. Holmberg distributed to her 831,161 shares of Class A Stock, the 1986 Trust created by Mr. Sulzberger distributed to him 831,162 shares of Class A Stock, the 1986 Trust created by Mrs. Heiskell distributed to her 831,161 shares of Class A Stock, and the 1986 Trust created by Dr. Sulzberger distributed to her 831,161 shares of Class A Stock, (ii) on July 11, 1997 Mrs. Holmberg, Mr. Sulzberger, Mrs. Heiskell and Dr. Sulzberger each contributed 175,000 shares of Class A Stock to the 1997 Trust, (iii) on May 27, 1997, Ms. Dolnick transferred 170 shares of Class A Stock to the Foundation as a charitable gift, (iv) on June 30, 1997, Mr. Sulzberger transferred 68,000 shares of Class A Stock to a charitable remainder trust, (v) on June 30, 1997, Mrs. Heiskell transferred 1,500 shares of Class A Stock to the National Park Foundation as a charitable gift, and (vi) on July 10, 1997, Mrs. Heiskell transferred 380 shares of Class A Stock to People for the American Way as a charitable gift. (d) See Item 6 of this Statement. (e) Not Applicable. -10- Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. -------------------------------------------------------- ITEM 6 OF THIS STATEMENT IS HEREBY AMENDED TO ADD THE FOLLOWING: By unanimous vote of the trustees of the four 1986 Trusts, each of the 1986 Trusts was terminated on June 24, 1997, and on July 11, 1997, the assets of each were transferred back to its grantor (one of the children). The children in turn created a single new trust (the 1997 Trust) and transferred to it the 369,405 shares of Class B Stock previously held by the 1986 Trusts, together with a total of 700,000 shares of Class A Stock. The Company, the children, the children's children and the trustees of the 1997 Trust (collectively, "the Shareholders") are parties to a Shareholders Agreement dated as of August 5, 1986 (the "Shareholders Agreement"), which was previously filed as an exhibit to this Statement and is hereby incorporated herein by reference. The Shareholders Agreement restricts the transfer of the 369,405 shares of Class B Stock currently held by the 1997 Trust by requiring that, prior to any sale or transfer of such shares of Class B Stock by the 1997 Trust, it shall offer to sell such shares first to the other Shareholders and then to the Company, at the market price of the Class A Stock then prevailing (or if the Company is the purchaser, at the option of the 1997 Trust, in exchange for Class A Stock on a share-for-share basis). The Shareholders Agreement further requires that if any shares of Class B Stock so offered are not purchased by the other Shareholders or the Company, such shares must be converted into Class A Stock before being transferred to any person other than a Shareholder or the Company. There are certain exceptions for gifts and other transfers within the family of Adolph S. Ochs, provided that the recipients become parties to the Shareholders Agreement. -11- In addition, the Shareholders Agreement provides that if the Company is a party to a merger (other than a merger solely to change the Company's jurisdiction of incorporation), a consolidation or a plan of liquidation in which the Class B Stock is exchanged for cash, stock, securities or any other property of the Company or of any other corporation or entity, the 1997 Trust will convert the 369,405 shares of Class B Stock that are subject to the Shareholders Agreement into shares of Class A Stock prior to the effective date of such transaction so that a holder of such shares will receive the same cash, stock or other consideration that a holder of Class A Stock would receive in such a transaction. Except as described previously herein, each Shareholder agreed not to convert any of the 369,405 shares of Class B Stock currently held by the 1997 Trust into Class A Stock. The Shareholders Agreement will terminate upon the expiration of 21 years after the death of the survivor of all descendants of Iphigene Ochs Sulzberger living on August 5, 1986. The Trust Indenture relating to the 1997 Trust (the "Indenture"), which is similar in most material respects to the Trust Indentures relating to the 1986 Trusts, is being filed with this Amendment No. 5 as Exhibit E to this Statement and is hereby incorporated herein by reference. The following summary of the material terms of the Indenture is qualified in its entirety by such reference to Exhibit E. As with the 1986 Trusts, the trustees of the 1997 Trust, subject to the limited exceptions described below, are directed to retain the Class B Stock held in the 1997 Trust and not to sell, distribute or convert such shares into Class A Stock, and to vote such Class B Stock against any merger, sale of assets or other transaction pursuant to which control of The New York Times newspaper passes from the trustees unless they unanimously determine that the primary objective of the 1997 Trust, which is to maintain the editorial independence and integrity of The New York -12- Times and to continue it "as an independent newspaper, entirely fearless, free of ulterior influence and unselfishly devoted to the public welfare," in accordance with the wishes of Adolph S. Ochs as expressed in his will, can be best achieved by the sale, distribution or conversion of such stock or by the implementation of such transaction. If upon such determination any Class B Stock is distributed to the beneficiaries of the 1997 Trust, it must be distributed only to descendants of Iphigene Ochs Sulzberger, subject to the provisions of the Shareholders Agreement. Similarly, any sale by the 1997 Trust of Class B Stock upon such determination can be made only in compliance with the Shareholders Agreement. The 1997 Trust also received 175,000 shares of Class A Stock from each of the children, or 700,000 shares in the aggregate. The trustees may make distributions of shares of Class A Stock and other trust principal, apart from shares of Class B Stock, in such amount or amounts as the trustees may in their absolute discretion determine to such of the beneficiaries of the 1997 Trust as the trustees may in their absolute discretion select, provided that as long as any of the children are alive, the trustees shall only distribute equal amounts to each living child and to the descendants of a deceased child, such descendants to take per stirpes. In exercising this discretionary power, the trustees are required to bear in mind the need to retain in the 1997 Trust assets other than shares of Class B Stock of sufficient value to pay any estate, transfer, or generation-skipping taxes that may have to be paid out of the 1997 Trust. The beneficiaries of the 1997 Trust are currently the children, their descendants and the spouses of the children and their descendants. At any time after the death of all the children, the trustees will be permitted, in their absolute discretion, to remove a descendant of Iphigene Ochs Sulzberger and his or her spouse as beneficiaries of the 1997 Trust at the request of such descendant, -13- by distributing to such descendant a specified fractional share of the assets constituting trust principal, provided that the trustees shall not distribute any shares of Class B Stock held by the 1997 Trust. The trustees shall pay out of the net income of the 1997 Trust (almost all of which will be derived from dividends paid on the Class A Stock and Class B Stock held in trust) such amount or amounts as the trustees may in their absolute discretion determine to such one or more of the beneficiaries of the 1997 Trust as the trustees may in their absolute discretion select, provided that as long as any of the children are alive, the trustees shall distribute one-quarter of the income either to that child or to such of the beneficiaries and in such amounts and proportions as that child may from time to time in writing direct. Any net income not so distributed shall be added to principal. The trustees of the 1997 Trust are granted various powers and rights, including among others: (i) to vote all the shares of Class A Stock and Class B Stock held by the 1997 Trust; and (ii) to amend certain provisions of the Indenture, but not the provisions relating to retaining the Class B Stock or the manner in which the Class B Stock may be distributed, sold or converted. The trustees act by the affirmative vote of four trustees, except that prior to any sale or distribution of Class B Stock outside of the 1997 Trust, any conversion of Class B Stock or a vote to approve a merger, sale of assets or other transaction pursuant to which control of The New York Times newspaper passes from the trustees, the trustees must unanimously determine that the primary purpose of the 1997 Trust as described above is best achieved by such distribution, sale, conversion or other transaction. Unanimity is also required for the amendment of those provisions of the Indenture which may be amended. -14- None of the children may be removed as trustee of the 1997 Trust unless the remaining four trustees determine that such child is physically or mentally incapable of performing adequately as a trustee. A trustee who is not one of the children may be removed without cause by the unanimous agreement of the other four trustees. A trustee who is not one of the children (e.g., Ms. Dolnick) shall serve for a term of five years. When a vacancy in the position of trustee occurs, a new trustee shall be elected by majority vote of all beneficiaries of the 1997 Trust who are over the age of 25 years and who are descendants of Iphigene Ochs Sulzberger or are married to and living with such descendants, and who wish to vote. The children are given certain limited powers to appoint trust principal for the benefit of any one or more beneficiaries of the 1997 Trust. Any such appointment must require that the Class B Stock be retained in further trust. All such appointive trusts must continue for the same term as the 1997 Trust, upon terms substantially identical to those of the Indenture and with the same trustees, and must permit trust principal consisting of Class B Stock to vest only in descendants of Iphigene Ochs Sulzberger and only at the end of the trust term. The 1997 Trust will continue in existence until the expiration of 21 years after the death of the survivor of all descendants of Iphigene Ochs Sulzberger living on June 24, 1997. Upon the termination of the 1997 Trust at the end of the stated term thereof, the shares of Class B Stock will be distributed to the descendants then living of Iphigene Ochs Sulzberger. -15- Item 7. Material to be Filed as Exhibits. -------------------------------- Exhibit E: Indenture relating to the 1997 Trust dated June 24, 1997, made by Marian S. Heiskell, Ruth S. Holmberg, Judith P. Sulzberger and Arthur Ochs Sulzberger, as grantors and trustees, and by Lynn G. Dolnick, as trustee. -16- Signature --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. /s/Arthur Ochs Sulzberger ------------------------- Arthur Ochs Sulzberger Dated: July 17, 1997 -17- EXHIBIT INDEX Exhibit E: Indenture relating to the 1997 Trust dated June 24, 1997, made by Marian S. Heiskell, Ruth S. Holmberg, Judith P. Sulzberger and Arthur Ochs Sulzberger, as grantors and trustees, and by Lynn G. Dolnick, as trustee. EX-99.E 2 EXHIBIT E-INDENTURE RELATING TO 1997 TRUST EXHIBIT E THIS INDENTURE dated the 24th day of June, 1997, between MARIAN S. HEISKELL, of New York, New York, RUTH S. HOLMBERG, of Chattanooga, Tennessee, JUDITH P. SULZBERGER, of New York, New York and ARTHUR OCHS SULZBERGER, of New York, New York (hereinafter called the "grantors") and MARIAN S. HEISKELL, RUTH S. HOLMBERG, JUDITH P. SULZBERGER, ARTHUR OCHS SULZBERGER and LYNN G. DOLNICK, of Chevy Chase, Maryland (hereinafter called the "trustees"), W I T N E S S E T H : WHEREAS the grantors desire to create a new trust to hold the shares of the Class B Common Stock (hereinafter referred to as the "Stock") of The New York Times Company (hereinafter referred to as the "Company") that they received upon the termination of the trust created under Paragraph 51st of the will of Adolph S. Ochs, deceased, for the primary purpose of maintaining the editorial independence and integrity of The New York Times and perpetuating it "as an independent newspaper, entirely fearless, free of ulterior influence and unselfishly devoted to the public welfare", in accordance with the wishes of Mr. Ochs as expressed in his will, NOW, THEREFORE, each grantor hereby assigns to the trustees, as of the date hereof, the property listed on Schedule "A" annexed hereto set forth opposite his or her name, IN TRUST, as follows: ARTICLE ONE: The trustees shall invest and reinvest said property and any other property received by them as trustees hereunder until the expiration of twenty-one years after the death of the last survivor of all of the descendants of Iphigene Ochs Sulzberger in being on the date of this indenture (said period being hereinafter referred to as the "trust term"). During the trust term the trustees shall pay out of the net income such amount or amounts (whether equal or unequal, and whether the whole or a lesser amount) as the trustees may in their absolute discretion determine to such one or more of the beneficiaries of the trust as the trustees may in their absolute discretion select, provided that as long as any of the grantors is alive, the trustees shall distribute one-quarter of the income either to that grantor or to such of the beneficiaries and in such amounts and proportions as that grantor may from time to time in writing direct. Any net income not so distributed shall be added to principal. The trustees may at any time or from time to time distribute from the principal, other than the Stock, such amount or amounts (whether equal or unequal, and whether the whole or a lesser amount) as the trustees may in their absolute discretion determine to such of the beneficiaries as the trustees may in their absolute discretion select, provided that as long as any of the grantors is alive, the trustees shall only distribute equal amounts to each living grantor and to the descendants of a deceased grantor, such descendants to take per stirpes. In exercising this discretionary power, the trustees shall bear in mind the need to retain in the trust assets other than the Stock of sufficient value to pay any estate, transfer, or generation-skipping taxes that may have to be paid out of the trust. -2- The trustees, in their absolute discretion but subject to the provisions of Article FIVE below, may distribute all but not less than all of the Stock to the descendants then living of Iphigene Ochs Sulzberger who would receive the Stock, and in the same proportions that such persons would receive the Stock if the trust term had expired just prior to the time of distribution. As used herein, the term "beneficiaries" means (i) the grantors, (ii) the descendants of the grantors from time to time living of whatever degree and whenever born, other than those descendants who are excluded from the term by the provisions of Article TWO below, (iii) spouses of the grantors or of such descendants, and (iv) organizations from time to time described in sections 170(c), 2055(a) and 2522(a) of the Internal Revenue Code of 1986, as amended, or the corresponding provisions of any subsequent federal tax law, provided that no such organization may have an interest in the trust that involves the distribution to such organization of either the Stock or the income of the Stock. ARTICLE TWO: Upon the written request of a beneficiary who is a descendant of Iphigene Ochs Sulzberger and who is over the age of twenty-five years, the trustees in their absolute discretion may, but need not, at any time after the death of the survivor of the grantors, distribute to that beneficiary that fractional share of the entire trust, the numerator of which is one and the denominator of which is the greater of (a) the total number of descendants of Iphigene Ochs Sulzberger born prior to and living on the date of the request, and (b) twenty. Neither any individual who requests and receives a distribution under this Article, nor the spouse of such an individual, shall thereafter be a beneficiary of the trust. -3- The trustees may distribute to an individual requesting a distribution under this Article any property held by them without making pro-rata distributions of specific assets, and having regard only to the actual value of the property as of the date of distribution, provided, however, that the trustees shall not distribute any shares of the Stock. In making any distribution of property hereunder, the Stock shall be valued at the purchase price provided for in the Shareholders' Agreement dated August 5, 1986 among certain descendants of Iphigene Ochs Sulzberger and the Company (the "Shareholders' Agreement"). Any division of property, allocation, or other determination made in good faith by the trustees pursuant to the provisions of this Article shall be binding upon all persons interested or claiming to be interested in any trust created under this indenture. It is the grantors' expectation that no distributions will be made under this Article unless the trustees determine it to be in furtherance of the trust purposes, and unless estate, transfer or generation-skipping transfer taxes that may be imposed upon the trust have been adequately provided for. ARTICLE THREE: Upon the expiration of the trust term all property then belonging to the income and principal of the trust shall be divided into as many equal shares as there are (a) then living descendants of Iphigene Ochs Sulzberger in the generation nearest to the generation of the grantors which contains at least one living descendant of Iphigene Ochs Sulzberger, and (b) deceased members of that generation who left issue then living, if any. One such share shall be distributed to each then living member of that generation. The remaining shares shall then be -4- combined and redivided and redistributed in the same manner among the surviving issue, but treating those individuals who have already received distributions as though they had previously died without issue. ARTICLE FOUR: Notwithstanding the preceding Articles, each grantor shall have the right, by an acknowledged instrument delivered to the trustees prior to such grantor's death (but not by will), to appoint one quarter of all property belonging to the income and principal of the trust to or for the benefit of any one or more beneficiaries of the trust (including the grantor and the grantor's estate), and in such estates, interests, trusts (including discretionary trusts) and proportions, such appointment to take effect either before or after the grantor's death, as the grantor shall provide in such instrument. Any such instrument may be revoked or amended by a subsequent instrument, unless it is specifically declared to be irrevocable. Each grantor may at any time by a like instrument release in whole or in part all powers under this Article or Article ONE. Notwithstanding the foregoing provisions of this Article, any appointment must require that the Stock be retained in trust on terms substantially identical to those of this indenture; prohibiting the vesting in possession of the Stock in anyone other than a descendant of Iphigene Ochs Sulzberger or at any time prior to the expiration of the trust term hereunder, and providing that the trustees of any other trust holding the Stock, and the method of selecting successor trustees of such trust, shall be identical to those under this indenture, and that all provisions of this indenture that refer to the Stock shall continue to apply to the Stock. Moreover, no appointment creating any interest in a charitable organization shall be effective if it is made without the prior written consent of the trustees. Because the property other than the Stock has been placed in the trust to provide for -5- the payment of estate transfer or generation-skipping taxes, it is the grantors' expectation that such property will not be appointed out of the trust unless and except to the extent that such taxes have otherwise been adequately provided for. ARTICLE FIVE: During the trust term the trustees shall neither (1) distribute any of the Stock, (2) sell any of the Stock, nor (3) convert any shares of the Stock into shares of the Class A Common Stock of the Company, or any other class of security not considered the Stock, and (4) they shall vote against any merger, sale of assets, or other transaction pursuant to which control of The New York Times newspaper passes from the trustees, unless all five trustees in their absolute discretion unanimously determine that the primary purpose of the trust as expressed above is best achieved by such a distribution, sale, conversion or other transaction, and provided that any such sale, distribution or conversion complies in all respects with the Shareholders' Agreement. ARTICLE SIX: The grantors declare that the trust is irrevocable, and that this Article SIX, and the preceding provisions of this indenture may not be altered, amended or modified. All five trustees, acting unanimously, may in their absolute discretion amend the subsequent provisions of this indenture. ARTICLE SEVEN: Whenever any property, whether principal or income (including the Stock), vests pursuant to the provisions of this indenture in a minor, the trustees shall have the right as donees of a power during minority, upon the distribution of such property, to hold and manage the same until such minor attains majority, and may exercise in respect of such property and the income thereof all powers conferred by this indenture or by law on the trustees, including the power -6- to apply any such property or the income thereof to the use of such minor. Said donees shall not be required to render periodic accounts to any court. For purposes of this Article a minor shall be deemed to be a person who has not attained the age of 21 years. ARTICLE EIGHT: Any action of the trustees relating to or affecting the Stock shall require the affirmative vote of four trustees, except for a sale, distribution, conversion, or other transaction described in Article FIVE, which, pursuant to said Article, shall require a unanimous vote of all five trustees. No trustee (other than a grantor) shall participate in any decision or other action of the trustees with respect to any discretionary distribution of principal or income in favor of such trustee. Any individual may resign at any time as trustee of any trust held under this indenture by an instrument signed and acknowledged by him or her and delivered to his or her then acting co-trustees, such resignation to be effective upon the appointment of a successor trustee. Any trustee (other than a grantor) may be removed without cause by the unanimous agreement of the other four trustees. A grantor may be removed as trustee only if the remaining four trustees determine that the trustee to be removed is incapable, by reason of mental or physical infirmity, to perform adequately as a trustee. Any such removal shall be effected by an instrument of removal signed and acknowledged by the remaining four trustees and delivered to the trustee to be removed. There shall at all times be five trustees. -7- Each trustee other than a grantor shall serve for a term of five years. When a vacancy in the position of trustee occurs, a new trustee shall be elected by a majority vote of those beneficiaries of the trust who are over the age of twenty-five years and who are descendants of Iphigene Ochs Sulzberger or married to and living with a descendant of Iphigene Ochs Sulzberger, and who wish to vote, in an election called by the trustees for that purpose. Each successor trustee appointed pursuant to the provisions of this Article shall accept such appointment by an acknowledged instrument, filed with the trust records, agreeing to faithfully discharge all duties of the office of trustee, and by executing and becoming a party, as trustee, to the Shareholders' Agreement. No trustee who is a descendant of Iphigene Ochs Sulzberger or a spouse of any such descendant shall be entitled to receive any commissions for acting as such trustee. Any commissions payable to a trustee who is not a descendant of Iphigene Ochs Sulzberger or a spouse of such descendant shall be paid from trust income. Each trustee shall be exempt from giving any bond or other security in any jurisdiction. ARTICLE NINE: The trustees are authorized and empowered to exercise from time to time in their sole and absolute discretion, but subject to the provisions of Article FIVE above, and without prior authority from any court, in respect of the Stock or any other securities of the Company, all powers conferred by law upon trustees or expressed in this indenture, including the following: (1) Power to retain the Stock and any other securities of the Company or any successor corporation, for such period as they deem proper, and to purchase by subscription or otherwise additional securities of the Company or any successor corporation. It is the -8- grantors' intention that, except upon the determination of the trustees described in Article FIVE above, the trust will retain the Stock for the trust term without regard to such factors as lack of diversification, diminution of the value of the trust, the inability of the trust and the beneficiaries thereof to realize the maximum value thereof, and the failure to derive an adequate income therefrom, and without any duty to consider offers for the purchase of the Stock. (2) Power to exchange any securities of the Company held by them for other securities or property, or partly for such securities or property and partly for cash, and to exercise conversion, subscription, option and similar rights with respect to any securities of the Company or any successor corporation held by them, and to make payments in connection therewith, and to allocate to principal any property received as a result thereof. (3) Power to vote in person or by proxy at corporate or other meetings and to participate in and consent to or oppose any voting trust, reorganization, recapitalization, liquidation, dissolution, merger, or other action affecting the Stock or other securities of the Company or the Company or any successor corporation, and to make payments in connection therewith, and to allocate to principal any property received as a result thereof. (4) Power to participate in agreements relating to the purchase or sale of the Stock or other securities of the Company, including agreements granting to the Company or to any of its shareholders, including any beneficiary of any trust hereunder, a right of first -9- refusal with respect to any sale of the Stock, it being the grantor's intention that the trustees shall enter into the Shareholders' Agreement. (5) Power (a) to act as directors, officers or other employees of the Company or any subsidiary thereof or any successor corporation, the same to be compensated without regard to being a beneficiary or trustee hereunder, (b) to obtain and pay out of income or principal the cost of liability insurance for any such officer or director, and (c) to make such other arrangements in respect thereof as the trustees shall deem proper. (6) Power to retain, and pay out of income or principal the compensation of, investment bankers, appraisers, accountants, legal counsel and others when the trustees shall determine that such services are desirable in connection with the affairs of the Company or any subsidiary thereof or any successor thereto. (7) If the trustees shall determine to dispose of the Stock or other securities of the Company held hereunder, they shall be under no obligation to solicit offers from third parties and may sell such securities to another shareholder (including themselves as trustees of another trust or a trust beneficiary) or to the Company upon such terms as they shall in their sole discretion deem reasonable. Except for a sale of all of the Stock held in the trust, the grantors direct that the trustees not sell any of the Stock held hereunder unless all adult descendants of Iphigene Ochs Sulzberger who are the beneficiaries consent to the sale. The grantors recognize that in the exercise of their powers one or more of the trustees may be placed in a position of having conflicting interests as a trustee and as an -10- individual or as a director, officer or employee of the Company or in some other capacity, and direct that, unless specifically provided to the contrary herein, such conflicting interests shall not be a basis for any trustee not participating in the exercise of powers with respect to the Stock. ARTICLE TEN: In addition to the foregoing powers which relate solely to the Stock and other securities of the Company, the trustees are authorized and empowered to exercise from time to time in their sole and absolute discretion and without prior authority from any court, in respect of any property other than the Stock or any other securities of the Company, all powers conferred by law upon trustees, or expressed in this indenture, and the grantors intend that such powers (including the following) be construed in the broadest possible manner: (1) Power to invest or reinvest in such securities or other property, real or personal (whether within or without the United States), and to retain any property at any time received or held by them hereunder for such periods, as they shall in their sole discretion determine (and any aspect of any diversification requirement that would otherwise apply is hereby negated). (2) Power to borrow in the name of the trust such sums for such periods and upon such terms as they shall deem necessary or convenient in the administration of the trust, and to secure any such loan by mortgage or pledge of property other than the Stock. No lender shall be bound to see to or be liable for the application of the proceeds, and no -11- trustee shall be personally liable, but each such loan shall be payable only out of assets of the trust other than the Stock. (3) Power to apply to the use of any person any property, whether principal or income, vesting in or payable to such person, and in the case of a minor (a) to do so without regard either to the duty of any person to furnish support for such minor or the availability of other funds for such purpose, or (b) to pay or deliver the same to such minor, or to a guardian or custodian under a gifts to minors act, including a custodian selected by the trustees (who may select attaining the age of twenty-one years for termination of the custodianship), or to the parent of such minor, or to a person with whom such minor resides, or to the trustees as donees of a power during minority under this indenture. (4) Power to allocate receipts and disbursements between income and principal in such manner as the trustees in their sole discretion determine even though a particular allocation or allocations may be made in a manner inconsistent with what would otherwise be applicable state law. (5) Power to improve any real property held in the trust, and to pay the cost out of principal (other than the Stock). (6) Power to permit any person having any interest in the income of the trust to occupy any real property forming part of such trust upon such terms as the trustees shall deem proper, whether rent free or in consideration of the payment of taxes, insurance, maintenance and ordinary repairs, or otherwise. -12- (7) Power to charge to principal (other than the Stock) such sums as they shall determine to be the net loss incurred in operating or carrying any parcel of real property which in their opinion is not producing net income. (8) Power to employ as custodian a bank or trust company located within or without the United States, and to acquire, hold, register, or dispose of property in the name of such custodian or agent or a nominee thereof without designation of fiduciary capacity, and to employ investment counsel or other agents and to pay out of principal or income or both the charges and expenses of any such custodian, counsel or other agent. (9) Power to compromise and adjust all claims or debts due to or made against them. ARTICLE ELEVEN: If by reason of a stock dividend, stock split, recapitalization, merger or other change in the capital structure of the Company, the trust receives securities of the Company or any successor corporation, other than shares of the present Class B Common Stock, the trustees shall determine whether the securities received shall be treated as "the Stock" for purposes of this indenture or shall not be so treated. The trustees shall have absolute discretion in making this determination. The grantors intend in general that any securities of the corporation that owns and publishes The New York Times newspaper, having voting rights equivalent or similar to those of the present Class B Common Stock or having unlimited voting rights, shall be treated as "the Stock" and other securities shall not be so treated. -13- ARTICLE TWELVE: The terms "issue" and "descendant" as used herein are intended to include persons whose relationship results solely from adoption while under the age of eighteen years. The term "spouse" as used herein shall mean any individual who is married to a descendant of Adolph S. Ochs, or who was married to a descendant of Adolph S. Ochs at the time of such descendant's death, whether or not such individual shall have remarried. The descendants of Iphigene Ochs Sulzberger referred to in Article ONE hereof consist of her four children, Marian S. Heiskell, Ruth S. Holmberg, Judith P. Sulzberger and Arthur Ochs Sulzberger, her thirteen grandchildren, Jacqueline H. Dryfoos, Robert O. Dryfoos, Susan W. Dryfoos, Stephen A.O. Golden, Michael D. Golden, Lynn G. Dolnick, Arthur S. Golden, Daniel H. Cohen, James M. Cohen, Cathy Jean Sulzberger, Arthur O. Sulzberger, Jr., Karen A. Sulzberger and Cynthia F. Sulzberger, her twenty-five great-grandchildren, James D. Dryfoos, Victoria A. Dryfoos, Carolyn D. Greenspon, Michael S. Greenspon, Nicholas O. Mazonowicz, Margot G. Golden, David S. Perpich, Matthew R. Cohen, David A.O. Golden, Taylor Cohen, Rachel B. Golden, Sarah S. Perpich, Arthur G. Sulzberger, Samuel Dolnick, Ann A. Sulzberger, Benjamin Dolnick, Robert A. Dryfoos, Hays N. Golden, Pamela M. Dryfoos, Tess I. Golden, Abigail Perpich, Adam Cohen, Alexander Cohen, Simon Lax and John Lax, their respective descendants, born in wedlock, legitimatized or adopted while under the age of eighteen years, and any such descendants conceived before, but born after the date of this indenture. -14- When the term "per stirpes" is used herein, the stirpes shall begin in the generation of the grantors. ARTICLE THIRTEEN: This indenture shall be construed and regulated by and in accordance with, and the trust hereby created shall be governed by, the laws of the State of New York. ARTICLE FOURTEEN: The grantors direct that in any proceeding relating to the trust, service upon any person under a disability shall not be made when a person not under a disability is a party to the proceeding and has the same interest as the person under the disability. ARTICLE FIFTEEN: Each grantor agrees that any federal or state death taxes imposed by reason of her or his death upon any property constituting part of this trust will be provided for and paid out of assets other than those held in the trust. ARTICLE SIXTEEN: Whenever in this indenture the trustees are given "absolute" discretion, the grantors intend that such discretion shall be uncontrolled and unfettered, and subject to review by a court only if the trustees' actions are in bad faith. When this indenture sets forth guidelines for the exercise of discretion (including the next sentence), it is the intention of the grantors that such guidelines be viewed as precatory only and not as establishing an enforceable standard under which the trustees' exercise of discretion could be reviewed. The trustees may always exercise their discretion with a view to the grantors' desire that The New York Times newspaper remain independent and in the control of the trustees or the descendants of Iphigene Ochs Sulzberger. -15- No trustee shall be liable for the acts or defaults of a co-trustee. Each trustee shall be deemed to have acted within the scope of his or her authority, to have exercised reasonable care, diligence and prudence, and to have acted impartially as to all persons interested unless the contrary be proved by clear and convincing evidence, and in the absence of such proof shall not be liable for any loss. In no event shall any trustee be held liable for any loss resulting from retention of the Stock during the trust term. The provisions of this Article shall apply to any person acting as donee of a power during minority hereunder. The trustees accept the trust hereby created and covenant that they will faithfully discharge all duties of their office as such trustees. /s/Marian S. Heiskell --------------------- Marian S. Heiskell /s/Ruth S. Holmberg ------------------- Ruth S. Holmberg /s/Judith P. Sulzberger ----------------------- Judith P. Sulzberger /s/Arthur Ochs Sulzberger ------------------------- Arthur Ochs Sulzberger Grantors and Trustees /s/Lynn G. Dolnick ------------------ Lynn G. Dolnick Trustee -16- Schedule "A" Contributor Property Contributed to trust ----------- ----------------------------- Marian S. Heiskell 175,000 shs., The New York Times Company, Class A common 92,351 shs., The New York Times Company, Class B common Ruth S. Holmberg 175,000 shs., The New York Times Company, Class A common 92,351 shs., The New York Times Company, Class B common Judith P. Sulzberger 175,000 shs., The New York Times Company, Class A common 92,351 shs., The New York Times Company, Class B common Arthur Ochs Sulzberger 175,000 shs., The New York Times Company, Class A common 92,352 shs., The New York Times Company, Class B common [Note: Acknowledgments of execution which follow in the original are omitted from this filing.] -17- -----END PRIVACY-ENHANCED MESSAGE-----