EXHIBIT 10.18
THE NEW YORK TIMES COMPANY
DEFERRED EXECUTIVE COMPENSATION PLAN
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 the Employee Retirement
Income Security Act of 1974 ("ERISA"), and shall be interpreted and administered
to the extent possible in a manner consistent with that intent.
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.
2.2 Change Of Control means:
(a) any individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof (a
"Person") (or two or more Persons acting in concert), other than any descendent
(or any spouse thereof) of Iphigene Ochs Sulzberger (a "Family Member") or a
beneficiary or trustee (as the same may change from time to time) of a trust
over 50% of the individual beneficiaries of which are Family Members, acquiring
the power to elect a majority of the directors of The New York Times Company
(the "Company") in a transaction or series of transactions not approved in
advance by a vote of at least three quarters of the Continuing Directors (as
defined below); or
(b) individuals who, as of the date hereof, constitute the Board of
Directors of the Company (as of the date hereof the "Continuing Directors")
ceasing for any reason to constitute at least a majority of the Board of
Directors, provided that any person becoming a director subsequent to the date
hereof whose election, or a nomination for election by the Company's
shareholders, was approved in advance by a vote of at least three quarters of
the Continuing Directors (other than a nomination of an individual whose initial
assumption of office is in connection with an actual or threatened solicitation
with respect to the election or removal of the directors of the Company, as such
terms are used in Rule 14a-11 of the Regulation 14A promulgated under the
Exchange Act) shall be, for purposes of this Agreement, considered as though
such person were a Continuing Director; or
(c) approval by the stockholders of the Company of a reorganization,
merger, consolidation, liquidation or dissolution of the Company or of the sale
(in one transaction or a series of related transactions) of all or substantially
all of the assets of the Company other than a reorganization, merger,
consolidation, liquidation, dissolution or sale approved in advance by three
quarters of the Continuing Directors.
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 Compensation means the annual bonus and the base salary of a
Participant. The ERISA Board Committee, in its sole discretion, shall designate
from time to time the maximum percentage of base salary and bonus 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).
2.5 Effective Date means July 1, 1994.
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2.6 Election Form means the participation election form as approved and
prescribed by the Plan Administrator.
2.7 Elective Deferral means the portion of Compensation which is deferred
by a Participant under Article IV.
2.8 Eligible Employee means, on the Effective Date or on any date
thereafter, each employee of the Employer who is in the class of employees
eligible to receive options under The New York Times Company 1991 Executive
Stock Incentive Plan, whose eligibility for such options is not dependent on the
achievement of specific performance measures and actually receives such options
in the year prior to the year for which such employee defers any Compensation
under the Plan, and 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.
2.9 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.
2.10 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
which amends, supplements or replaces such section or subsection.
2.11 ERISA Board Committee means a committee of the Board of Directors of
The New York Times Company.
2.12 ERISA Management Committee means a committee appointed by the ERISA
Board Committee.
2.13 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.
2.14 Participant means any Eligible Employee who participates in the Plan
in accordance with Article III.
2.15 Plan means The New York Times Company Deferred Executive Compensation
Plan and all amendments thereto.
2.16 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.
2.17 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.
2.18 Recordkeeper means the person(s) or entity appointed or hired by the
ERISA Management Committee under Section 8.1.
2.19 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.
2.20 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 New York Times
Company in the event of bankruptcy or Insolvency.
2.21 Trustee means the trustee or trustees under the Trust.
2.22 Valuation Option means the performance of the investment funds listed
in Appendix B of the Plan.
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.
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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.
ARTICLE IV
ELECTIVE DEFERRALS
4.1 Elective Deferrals. An individual who is an Eligible Employee on the
Effective Date may, by completing an Election Form and filing it with the Plan
Administrator 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.
Effective January 1, 1999, with respect to Elective Deferrals made for the
Plan Year 1999 and thereafter, 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.
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 represented
by the performance of Fund A. A participant may change his or her selection of
Valuation Options on any date.
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.
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.
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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.
ARTICLE VII
PAYMENTS
7.1 Election As To Form Of Payment. 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, 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, for (i) Elective Deferrals made for Plan Year
1999 and thereafter, 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.
7.2 Extension Of Deferral Periods. A Participant may make an election in
writing to extend any deferral period for three to ten additional Plan Years so
long as such Participant makes an election therefor at least 13 months prior to
the expiration of the deferral period.
Effective January 1, 1999, 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 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, in which case additional elections
to defer are permitted).
7.3 Change Of Control. As soon as possible 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 Or Disability. 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 Total and Permanent Disability or termination of employment occurs and
after the expiration of the deferral period. The above notwithstanding, the Plan
Administrator, in its sole discretion, may: (a) pay out a Participant's Account
balance in one lump sum at any time prior to the expiration of each deferral
period; (b) accelerate the beginning of payments of deferrals to any time prior
to the expiration of a deferral period; and (c) revoke the deferral elections of
a Participant for the year of the termination of his/her employment.
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 as soon as practicable
to the Participant's designated beneficiary or beneficiaries, in the form
elected by the Participant at the time of his or her death, provided, however,
that the ERISA Management
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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 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.
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
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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.
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 Board Committee.
However, the preceding notwithstanding, the ERISA Management Committee shall
have the power to amend at any time the payment provisions under Article VII of
the Plan.
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 Board Committee. Upon termination, the
Employer may (a) elect to continue to maintain the Trust to pay benefits
hereunder as they become due as if the Plan had not terminated or (b) direct the
Trustee to pay promptly to Participants (or their beneficiaries) the vested
balance of their Accounts.
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.
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 (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.
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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.
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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
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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.
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.
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