EXHIBIT 10.5
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
Executive Committee. This Plan shall become effective as of January 1, 1983, and
shall be effective as to each Participant on the date he or she is designated as
such hereunder.
SECTION I - DEFINITIONS
1.1. "Basic Plan" means the qualified non-contributory 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, The New York Times Company
Retirement Annuity Plan) and any excess benefit plan (within the meaning of
Section 3(36) of the Employee Retirement Income Security Act of 1974) pursuant
to which the Company makes payments to or on behalf of a designated Participant.
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. "Committee" means a committee consisting of the Chairman and the
President of The New York Times Company, which has been given authority by the
Board of Directors to administer this Plan.
1.4. "Company" means The New York Times Company and its subsidiaries and
affiliates.
1.5. "Final Average Earnings" means the average of a Participant's
"Earnings" for the highest five consecutive calendar years out of the last ten
years (or the total number of calendar years as a Participant in the Basic Plan
if less than five) prior to the year of Retirement under Section 2.1. "Earnings"
for any calendar year shall include the Participant's base salary, annual cash
bonuses and sales commissions paid during such year, and shall exclude any other
compensation (such as deferred incentive compensation under the Long-Range
Incentive Plan, retirement units, performance awards under the Executive
Incentive Award Plan and stock options under the 1974 Incentive Stock Option
Plan, the Employee Stock Purchase 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 Section 125, 402(e)(3), 492(h) or 403(b) of the Code shall be
included.
1.6. "Key Executive Position" means a position so designated by the
Committee.
1.7. "Participant" means a key senior executive of the Company who has been
designated as a Participant by the Committee. An executive shall become a
Participant in the Plans as of the date he or she is individually selected by,
and specifically named by the 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 Committee.
1.8. "Plan" means the Company's Supplemental Executive Retirement Plan.
1.9. "Retirement" means the termination of a Participant's employment with
the Company on one of the retirement dates specified in Section 2.1.
1.10. "Service" means the Participant's service for vesting purposes as
defined in the Basic Plan, up to a maximum of 20 years, and shall include any
additional service credit in specific situations as may be authorized by the
Committee, and approved by the Compensation Committee of the Board.
1.11. "Surviving Spouse" means the Participant's spouse who qualifies for a
surviving spouse's benefit under the Basic Plan in the event of a Participant's
death before retirement.
1.12. 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.
SECTION II - ELIGIBILITY FOR BENEFITS
2.1. Each Participant with ten or more years of Service shall be eligible to
retire and receive a benefit under this Plan beginning on one of the following
dates:
(a) "Normal Retirement Date," which is the first day of the month
following the month in which the Participant reaches age 65.
(b) "Early Retirement Date," which is the first day of any month
following (i) the Participant's 60th birthday when an election to retire has
been made in accordance with Section 4.1(a), or (ii) if the Committee
consents to the Participant's early retirement, the Participant's 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.
SECTION III - AMOUNT OF AND FORM OF RETIREMENT BENEFIT
AMOUNT OF BENEFIT
3.1. The annual retirement benefit payable at Normal Retirement Date under
the Plan shall equal the excess, if any, of (a) 50% of the Final Average
Earnings (prorated at 2.5% times Final Average Earnings times years of Service
for Service of less than 20 years) over (b) the sum of the Basic Plan Benefits
payable as of the Participant's Normal Retirement Date.
3.2. The annual benefit payable at an Early Retirement Date shall equal the
benefit determined using the formula in Section 3.1, reduced by 4% for each year
(1/3 of 1% for each month) benefits commenced prior to age 60, less the sum of
the annual Basic Plan Benefits payable as of the Participant's Early Retirement
Date.
3.3. The annual benefit payable at 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.
FORM OF BENEFIT
3.4. 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
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by the Company. Once in pay status, a Participant may not change the form of
benefit payable under the Plan.
SECTION IV - PAYMENT OF RETIREMENT BENEFITS
4.1. (a) A Participant with ten or more years of Service who is age 60 or
older, may elect to 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 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 55 and 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
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. 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.
SECTION V - DEATH BENEFITS PAYABLE
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 or more years of Service and (iii) the
Participant's age plus Service equalled or exceeded 65, the Surviving Spouse
shall be entitled to receive an annual benefit commencing as of the month
following the month in which the Participant's death occurs in an amount equal
to 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 does not apply to this benefit.
(b) If there is no Surviving Spouse, but there are dependent children
under age 23, or if the Surviving Spouse dies while there are dependent children
under age 23, the Surviving Spouse's benefits will be shared equally by each
such child until he or she reaches the age of 23.
5.2. The Surviving Spouse's benefit will be payable monthly, and will
commence on the first day of the month following the month in which the
Participant dies. The last 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 23 or dies.
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 elects to engage in any business or practice or become employed in
any position, which the 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 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 Committee, in its
sole discretion, may cause the Participant's entire interest in benefits
otherwise payable under the Plan
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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 Committee
finds advisable under the circumstances, or may take any other action the
Committee, in its sole discretion, deems appropriate. The decision of the
Committee shall be final. The omission or failure of the 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.
SECTION VII - MISCELLANEOUS
7.1. The 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.
7.2. 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.
7.3. 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.
7.4. 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.
7.5. The Committee may adopt rules and regulations to assist it in the
administration of the Plan.
7.6. This Plan is established under and will be construed according to the
laws of the State of New York.
7.7. 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 Committee a written
claim for benefits or a determination under the Plan. Within ninety (90) days
after the filing of such a claim, the 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;
(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 claim review procedure set forth in this
section.
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(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
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 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 Committee may require that any claim for benefits and
any request for a review of a denied claim be filed on forms to be furnished
by the Committee upon request.
(ii) All decisions on claims and on requests for a review of denied
claims shall be made by the Committee. The decisions of the Committee shall
be final, binding and conclusive upon all persons.
(iii) The decision of the 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 Committee.
(v) The individuals serving on the 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 this 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 Committee for the employer and shall
enure to the benefit of the heirs, executors and administrators of such an
individual.
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