THE NEW YORK TIMES COMPANY
1991 EXECUTIVE STOCK INCENTIVE PLAN
AS AMENDED
1. NAME AND GENERAL PURPOSE
The name of this plan is The New York Times Company 1991 Executive Stock
Incentive Plan (hereinafter called the "Plan"). The purpose of the Plan is to
enable the Company (as hereinafter defined) to retain and attract executives who
enhance its tradition and contribute to its success by their ability, ingenuity
and industry, and to enable them to participate in the long-term success and
growth of the Company.
2. DEFINITIONS
(a) "Awards"--has the meaning specified in Section 12 hereof.
(b) "Board"--means the Board of Directors of the Company.
(c) "Cash Plan"--means the Company's 1991 Executive Cash Bonus Plan.
(d) "Code"--means the Internal Revenue Code of 1986, as amended.
(e) "Committee"--means the Committee referred to in Section 3 of the Plan.
If at any time no Committee shall be in office then the functions of the
Committee specified in the Plan shall be exercised by those members of the Board
who are Non-Employee Directors.
(f) "Common Stock"--means shares of the Class A Common Stock of the
Company.
(g) "Company"--means The New York Times Company, a corporation organized
under the laws of the State of New York (or any successor corporation), and,
unless the context otherwise requires, its subsidiaries (as hereinafter defined)
and other non-corporate entities in which it owns directly or indirectly 20% or
more of the equity interests. A "subsidiary" means any corporation in which the
Company possesses directly or indirectly 50% or more of the combined voting
power of all classes of stock.
(h) "Consolidated Statement of Income"--means the consolidated statement
of income (or any comparable statement, however designated) of the Company,
audited by the independent certified public accountants of the Company and
contained in the Company's annual report to stockholders or proxy statement.
(i) "Disability"--means total disability as defined under the Company's
long-term disability plan, whether or not the Participant is covered by such
plan, as determined by the Committee.
(j) "Fair Market Value"--means the arithmetic mean of the highest and
lowest sales prices of the Common Stock as reported in the Consolidated
Transactions of the American Stock Exchange ("AMSE") (or such other national
securities exchange on which the Common Stock may be listed at the time of
determination, and if the Common Stock is listed on more than one exchange, then
on the one located in New York or if the Common Stock is listed only on the
National Association of Securities Dealers Automated Quotations System
("NASDAQ"), then on such system) on the date of the grant or other date on which
the Common Stock is to be valued hereunder. If no sale shall have been made on
the AMSE, such other exchange or the NASDAQ on such date or if the Common Stock
is not then listed on any exchange or on the NASDAQ, Fair Market Value shall be
determined by the Committee in accordance with Treasury Regulations applicable
to incentive stock options.
(k) "Income Before Income Taxes"--means the amount designated as Income
Before Income Taxes for the applicable year and shown separately on the
Consolidated Statement of Income for such year.
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(l) "Non-Employee Director"--means any Director of the Company who at the
time of acting is a "Non-Employee Director" under Rule 16b-3 or any successor
rule ("Rule 16b-3") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(m) "Participant"--means a key employee of the Company who is selected by
the Committee to participate in any one or more parts of the Plan from among
persons who in the judgment of the Committee are key employees of the Company.
In general, key employees are those employees who have principal responsibility
for, or who contribute substantially to, the management efficiency, editorial
achievement or financial success of the Company. Only employees of The New York
Times Company, its subsidiaries and other non-corporate entities in which it
owns directly or indirectly 40% or more of the equity interests are eligible to
participate in the Plan.
(n) "Retirement"--means retirement as defined by the terms of "The New
York Times Companies Pension Plan" which became effective December 31, 1988, or
any successor retirement plan, whether or not the Participant is a member of
such retirement plan, and, in the case of employees of Affiliated Publications,
Inc., or any subsidiary thereof, who retire under the terms of the Globe
Newspaper Company Retirement Plan, which became effective January 1, 1994 (the
"Globe Pension Plan") or any successor retirement plan, "Retirement" shall also
mean retirement as defined by the terms of the Globe Pension Plan or any
successor plan.
3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board or the Committee appointed by
it and composed of two or more directors all of whom shall be Non-Employee
Directors. The membership of the Committee shall be constituted so as to comply
at all times with the applicable requirements of Rule 16b-3, and with the
administration requirements of Section 162(m)(4)(C) of the Code. The Committee
shall serve at the pleasure of the Board and shall have such powers as the Board
may from time to time confer upon it.
4. OPTIONS AND AWARDS UNDER THE PLAN
Options, which include "Non-Qualified Options" and "Incentive Stock
Options" or combinations thereof, are rights to purchase Common Stock.
Non-Qualified Options and Incentive Stock Options are subject to the terms,
conditions and restrictions provided in Part I of the Plan.
Awards under the Plan may include one or more of the following types,
either alone or in any combination thereof: (i) "Stock Awards," (ii) "Restricted
Stock Awards," (iii) "Retirement Unit Awards," (iv) "Annual Performance Awards,"
(v) "Performance Awards" or "Other Awards" and (vi) "Long-Term Performance
Awards."
Stock Awards are granted under Part IIA of the Plan. Restricted Stock
Awards are granted under Part IIB of the Plan. Retirement Unit Awards are
granted under Part IIC of the Plan. Annual Performance Awards are granted under
Part IID of the Plan. Performance Awards or Other Awards are granted under Part
IIE of the Plan. Awards are subject to the terms, conditions and restrictions
provided in the respective subparts of Part II of the Plan. Annual Performance
Awards will be based exclusively on the criteria set forth in Section 27A.
Long-Term Performance Awards are granted under Part IIF of the Plan. Long-Term
Performance Awards will be based exclusively on the criteria set forth in
Section 28A.
PART I STOCK OPTIONS
5. PURPOSE
The purpose of the Stock Option portion of the Plan is to provide an added
incentive for effective service and high levels of performance to Participants
by affording them an opportunity, under the terms of the Plan, to acquire Common
Stock and thereby to increase their proprietary interest in the continued
progress and success of the Company.
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6. DETERMINATION OF OPTIONEES; SHARES SUBJECT TO OPTIONS
(a) The Committee may grant options to purchase Common Stock ("Options")
to Participants in such amounts as the Committee may determine, subject to the
conditions and limitations set forth in the Plan. Options may be granted in
combination with Awards made under the Plan, and Options may be granted to any
Participant whether or not he or she was eligible for, or received, an Award.
(b) The number of shares of Common Stock with respect to which Options may
be granted to any key employee during any calendar year shall not exceed 200,000
(subject to adjustment as provided in Sections 28 and 29 hereof).
(c) There may be issued under the Plan pursuant to the exercise of
Options, an aggregate of not more than 20,000,000 shares of Common Stock,
subject to adjustment as provided in Sections 28 and 29 hereof. Shares of Common
Stock issued pursuant to Options may be either authorized but unissued shares,
treasury shares, reacquired shares, or any combination thereof. Any shares
subject to an Option which expires without being exercised shall be available
for issuance under new Options.
7. OPTION PRICE
The exercise price of Common Stock subject to Options granted pursuant to
the Plan shall be the Fair Market Value thereof at the time the Option is
granted. If a Participant owns or is deemed to be the owner of, by reason of the
attribution rules under Section 425(d) of the Code, more than 10% of the
combined voting power of all classes of the stock of the Company or any
subsidiary of the Company and an Option granted to such Participant is intended
to qualify as an Incentive Stock Option within the meaning of Section 422 of the
Code, the option price shall be no less than 110% of the Fair Market Value of
the Common Stock on the date the Option is granted.
8. PAYMENT OF OPTION PRICE
The purchase price is to be paid in full when the Option is exercised and
stock certificates will be delivered only against such payment. Such purchase
price may be paid in such form as the Committee may determine. Payment of the
option price may be made (i) in cash, (ii) by delivering a properly executed
exercise notice to the Company together with a copy of irrevocable instructions
to a broker to deliver promptly to the Company the amount of sale or loan
proceeds to pay the purchase price, (iii) by delivering to the Company shares of
Common Stock previously owned, (iv) by electing to have the Company retain
Common Stock which would be otherwise issued on exercise of the Option, or (v)
any combination of the foregoing forms, all subject to the approval of the
Committee and to such rules as the Committee may adopt. In determining the
number of shares of Common Stock necessary to be delivered to or retained by the
Company, such Common Stock shall be valued at Fair Market Value.
9. TYPES OF STOCK OPTIONS
(a) Options granted under the Plan may be two types, an incentive stock
option ("Incentive Stock Option") and a non-qualified stock option
("Non-Qualified Option"). It is intended that Incentive Stock Options granted
hereunder shall constitute incentive stock options within the meaning of Section
422 of the Code. Anything in the Plan to the contrary notwithstanding, (i) no
provision of this Plan relating to Incentive Stock Options shall be interpreted,
amended or altered, nor shall any discretion or authority granted under the Plan
be so exercised, so as to disqualify either the Plan or any Incentive Stock
Option granted under such provisions of the Code, and (ii) no Option designated
by the Committee as a Non-Qualified Option shall constitute an Incentive Stock
Option. In furtherance of the foregoing and not by way of limitation, no
Incentive Stock Option shall be granted to a Participant who is not an employee
of The New York Times Company or one of its subsidiaries.
(b) If the aggregate Fair Market Value of the Common Stock (determined as
of the date of grant) for which any optionee may for the first time exercise
Incentive Stock Options in any calendar year under the
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Plan and any other stock option plan of the Company, considered in the
aggregate, exceeds $100,000, such excess Incentive Stock Options will be treated
as Non-Qualified Options.
10. TERMS OF STOCK OPTIONS
(a) Each Option will be for a term of not more than ten years from the
date of grant, except that if a Participant owns or is deemed to be the owner
of, by reason of the attribution rules of Section 425(d) of the Code, more than
10% of the combined voting power of all classes of stock of the Company or any
subsidiary of the Company and an Incentive Stock Option is granted to such
Participant, the term of such Option shall be no more than five years from the
date of grant.
(b) An Option may not be exercised within one year after the date of grant
except in the case of the death of the optionee or upon termination of active
employment with the Company by reason of the Disability or Retirement of the
optionee during such period. Thereafter, an Option shall be exercisable in such
installments, if any, as the Committee may specify, and shall be exercisable
during the optionee's lifetime only by the optionee (or, if the optionee is
disabled, by any guardian or other legal representative appointed to represent
him or her) and, except as provided in subsections (c) and (d) below, shall not
be exercisable by the optionee unless at the time of exercise such optionee is
an employee of the Company.
(c) Upon termination of active employment with the Company by reason of
Disability or Retirement, an optionee (or, if the optionee is disabled, any
guardian or legal representative appointed to represent him or her) may exercise
all Options otherwise exercisable by him or her at the time of such termination
of employment (subject to the provisions of subsection (e) below) until the
expiration thereof. In the event an optionee dies while employed by the Company
or after termination of employment by reason of Disability or Retirement, the
person who acquired the right to exercise his or her Options by reason of the
death of the optionee, as provided in Section 30 hereof, may exercise such
Options otherwise exercisable at the time of death (subject to the provisions of
subsection (e) below) at any time until the expiration thereof.
(d) Upon termination of employment with the Company for any reason other
than death, Retirement or Disability, the optionee may exercise all Options
otherwise exercisable by him or her at the time of such termination of
employment for an additional one year after such termination of employment. In
the event such optionee dies within such one-year period, the person who
acquired the right to exercise his or her Options by reason of the death of the
optionee, as provided in Section 30 hereof, may exercise such Options at any
time within the period of the greater of (i) the remainder of the one-year
period described in the foregoing sentence, or (ii) three months from the date
of the optionee's death. For purposes of this Section 10(d), in the event that
any optionee is rehired by the Company within one year of such optionee's
termination of employment with the Company, such optionee shall be deemed not to
have terminated employment for purposes of determining the expiration date of
all unexpired non-qualified stock options held by such individual on the date of
rehire, with the effect that such options shall continue to be exercisable at
any time until the expiration thereof (subject to the terms thereof and the
provisions of this Section 10).
(e) Notwithstanding any of the foregoing, no Option shall be exercisable
in whole or in part after the expiration date provided in the Option. In the
event of the death of the optionee while employed by the Company, or the
Disability or Retirement of the optionee, the Committee shall have the
discretion to provide for the acceleration of the exercisability of Options
exercisable over a period of time, or alternatively, to provide for all or any
part of such Options to continue to become exercisable in such installments as
originally specified by the Committee, or such revised installments as specified
by the Committee at the time of termination of employment (but in no event
beyond the original expiration date), in either case subject to such conditions
as determined by the Committee in its discretion.
(f) No Option shall be transferable otherwise than by will or by the laws
of descent and distribution. Notwithstanding the foregoing sentence, the
Committee may determine that Options granted to a Participant or a specified
group of Participants may be transferred by the Participant to one or more
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members of the Participant's immediate family, to a partnership or limited
liability company whose only partners or members are members of the
Participant's immediate family, or to a trust established by the Participant for
the benefit of one or more members of the Participant's immediate family;
provided, however, that no Incentive Stock Options may become transferable if
inconsistent with Section 422 of the Code, unless the Participant consents. For
this purpose, "immediate family" means the Participant's spouse, parents,
children (including adopted and step-children), grandchildren and the spouses of
such parents, children (including adopted and step-children) and grandchildren.
A transferee described in this subsection may not further transfer an Option. An
Option transferred pursuant to this subsection shall remain subject to the
provisions of the Plan and shall be subject to such other rules as the Committee
shall determine.
11. OPTION AGREEMENTS
In consideration of any Options granted to a Participant under the Plan,
if requested by the Committee, such Participant shall enter into an Option
Agreement with the Company providing, in addition to such other terms as the
Committee may deem advisable, that the optionee must remain in the employ of the
Company for one year before such optionee will be entitled to exercise the
Option, except as provided in Section 10 hereof with respect to death,
Disability and Retirement, and specifying the installments, if any, in which
such Option shall become exercisable.
PART II AWARDS
12. FORM OF AWARDS
The Award portion of the Plan is designed to provide incentives for
Participants by the making of awards of supplemental compensation ("Awards").
The Committee, subject to the terms and conditions hereof, may make Awards to a
Participant in any one, or in any combination, of the following forms:
(a) Common Stock as provided in Part IIA of the Plan ("Stock
Awards");
(b) Restricted Stock as provided in Part IIB of the Plan
("Restricted Stock Awards");
(c) Retirement Units as provided in Part IIC of the Plan
("Retirement Unit Awards");
(d) Annual Performance Awards as provided in Part IID of the Plan
("Annual Performance Awards");
(e) Performance Awards ("Performance Awards") or other forms of
Awards ("Other Awards"), as provided in Part IIE of the Plan; and
(f) Long-Term Performance Awards as provided in Part IIF of the Plan
("Long-Term Performance Awards").
Awards may be made to a Participant whether or not he or she is receiving an
Option grant under Part I of the Plan for the year and whether or not he or she
receives an award under the Cash Plan.
Awards will be based on a Participant's performance in those areas for
which the Participant is directly responsible. Performance for this purpose may
be measured by the achievement of specific management goals such as, but not
limited to, an increase in earnings or the operating cash flow of the Company,
outstanding initiative or achievement in any department of the Company, or any
other standards specified by the Committee. Annual Performance Awards will be
based exclusively on the criteria set forth in Section 27A. Long-Term
Performance Awards will be based exclusively on the criteria set forth in
Section 28A.
13. MAXIMUM AMOUNT AVAILABLE FOR THE ACCRUAL OF AWARDS UNDER PART II OF THE PLAN
FOR ANY YEAR
(a) No accrual for Awards shall be made hereunder (or under the Cash Plan)
for any year unless cash dividends of not less than ten cents ($.10) per share
(subject to adjustment as provided in Sections 28 and
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29 hereof) have been declared on the outstanding Class A and Class B Common
Stock of the Company during such year.
(b) In the event that the above condition is met for any year during the
continuance of this Plan, the maximum aggregate amount that may be accrued for
Awards under the Plan and the Cash Plan for such year shall be 4% of Income
Before Income Taxes. The Committee, in its sole discretion, may make adjustments
in Income Before Income Taxes to take account of extraordinary, unusual or
infrequently occurring events and transactions, changes in accounting principles
that substantially affect the foregoing, or such other circumstances as the
Committee may determine warrant such adjustment.
(c) As soon as feasible after the close of each year, the independent
certified public accountants of the Company shall report the maximum amount that
may be accrued for Awards for such year under the formula described in Section
13(b), subject to the second sentence of such Section.
(d) If amounts are accrued in any year under the formula described in this
Section 13 and are not awarded in full in such year under the Plan and the Cash
Plan, such unawarded amounts may, in the discretion of the Committee, be carried
forward and be available for Awards under the Plan and under the Cash Plan in
any future year without regard to the provisions of Sections 13(a) or (b) of the
Plan applicable to Awards made in such year.
(e) Awards under the Plan for any year may not exceed the sum of (i) the
amount accrued for such year under Section 13(b) above plus (ii) unawarded
accrued amounts carried forward from previous years under Section 13(d) above
plus (iii) amounts that may become available for Awards pursuant to the last
sentence of Sections 15(c) and 27A hereof, minus (x) the amount of interest or
dividend equivalents set aside during such year pursuant to Sections 15(c) and
27A hereof and the amount of dividend equivalents allocated to Retirement Unit
Accounts during such year pursuant to Section 24 hereof, and minus (y) the
amount of awards made for such year under the Cash Plan (and any interest
equivalents allocated during such year pursuant to Section 10(b), 11(f) and
12(b) thereof). For this purpose, the amount of Awards of Common Stock under the
Plan shall be based on the Fair Market Value of the Common Stock subject to
Awards as of the date of grant of such Awards.
(f) Subject to Sections 28 and 29 hereof, the aggregate number of shares
of Common Stock for which Stock, Restricted Stock, Retirement Units, Annual
Performance Awards, and Performance and Other Awards may be made under the Plan
shall not exceed 1,000,000 shares, which shall be treasury shares reserved for
issuance of Awards under the Plan. Shares of Common Stock subject to, but not
issued under, any deferred Award which has been discontinued by the Committee
pursuant to the provisions hereof or any Restricted Stock which is forfeited by
any Participant shall again be available for Awards under the Plan.
14. DETERMINATION OF AWARDS AND PARTICIPANTS
(a) As promptly as practicable after the end of each year, the Committee
may make Awards (other than Annual Performance Awards and Long-Term Performance
Awards, which are to be made exclusively as set forth in Sections 27A and 28A,
respectively) for such year and determine the amounts to be carried forward for
Awards in future years. The Committee may also, in its discretion, make Awards
(other than Annual Performance Awards and Long-Term Performance Awards, which
are to be made exclusively as set forth in Sections 27A and 28A, respectively)
prior to the end of the year based on the amounts available under clauses (ii)
and (iii) of Section 13(e) and reasonable estimates of the accrual for the year
in question.
(b) The Committee shall have absolute discretion to determine the key
employees who are to receive Awards (other than Annual Performance Awards, which
are to be made exclusively as set forth in Sections 27A and 28A, respectively)
under the Plan for any year and to determine the amount of such Awards based on
such criteria and factors as the Committee in its sole discretion may determine,
such as the Company's operating cash flow and overall financial performance.
Recommendations as to the key employees who are to receive Awards (including
Annual Performance Awards and Long-Term Performance Awards) under
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the Plan for any year and as to the amount and form of such Awards shall,
however, be made to the Committee by the chief executive officer of the Company.
The fact that an employee is selected as eligible for an Award shall not mean,
however, that such employee will necessarily receive an Award.
(c) A person whose employment terminates during the year or who is granted
a leave of absence during the year may, in the discretion of the Committee and
under such rules as the Committee may from time to time prescribe, be given an
Award with respect to the period of such person's service during such year.
15. METHOD AND TIME OF PAYMENT OF AWARDS
(a) Awards shall be paid in full as soon as practicable after the Award is
made; provided, however, that the payment of Annual Performance Awards and
Long-Term Performance Awards shall be subject to the provisions of Sections 27A
and 28A, respectively, and provided further, that the payment of any or all
Awards may be deferred, divided into annual installments, or made subject to
such other conditions as the Committee in its sole discretion may authorize
under such rules and regulations as may be adopted from time to time by the
Committee.
(b) The Committee's rules and regulations may include procedures by which
a Participant expresses a preference to the Committee as to the form of Award or
method of payment of an Award but the final determination as to the form and the
terms and conditions of any Award shall rest solely with the Committee.
(c) Awards deferred under the Plan shall become payable to the Participant
or, in the event of the Participant's death, as specified in Section 30 hereof,
in such manner, at such time or times (which may be either before or after
Retirement or other termination of service), and subject to such conditions as
the Committee in its sole discretion shall determine. In any year the Committee
shall have the discretion to set aside, for payment in such year or any future
year, interest on any deferred Award payable partly in cash, and amounts
equivalent to dividends on any deferred Award payable wholly or partly in stock;
provided, however, that the total amount of such interest and dividend
equivalents shall be deducted from the maximum amount available for Awards under
Section 13(e) of the Plan. Any forfeited deferred Awards (including any
forfeited stock at its Award value) shall be carried forward and be available
for Awards in any future year without regard to the provisions of Sections 13(a)
or (b) of the Plan.
16. INDIVIDUAL AGREEMENTS
(a) The Committee may in its discretion require that each Participant
receiving an Award enter into an agreement with the Company which shall contain
such terms and conditions as the Committee in its discretion may require.
(b) The Committee may cancel any unexpired, unpaid or deferred Award at
any time if the Participant is not in compliance with all applicable provisions
of the agreement referred to above, if any, and the Plan.
17. STATUS OF PARTICIPANTS
No Participant in this Plan shall be deemed to be a stockholder of the
Company, or to have any interest in any stock or any specific assets of the
Company by reason of the fact that deferred Stock Awards, Retirement Unit
Awards, Annual Performance Awards, Long-Term Performance Awards, Performance
Awards, Other Awards or dollar credits are to be recorded as being held for such
Participant's account to be paid in installments in the future. The interest of
all Participants shall derive from and be determined solely by the terms and
provisions of the Plan set forth herein.
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18. [Intentionally Left Blank]
PART IIA STOCK AWARDS
19. DETERMINATION OF STOCK AWARDS
(a) Each year the Committee shall designate those Participants who shall
receive Stock Awards under this part of the Plan. Stock Awards are made in the
form of grants of Common Stock, which may be delivered immediately, in
installments or on a deferred date, as the Committee, in its discretion, may
provide.
(b) If the Committee determines that some portion of a Stock Award to a
Participant shall be treated as a deferred Stock Award and payable in annual or
other periodic installments, then the Participant will be notified in writing
when such deferred Stock Awards shall be paid and over what period of time. As
soon as feasible after the granting of such a Stock Award, there shall be
reserved out of the treasury shares of the Company, a number (which may include
a fraction) of shares of Common Stock equal to the number of shares of Common
Stock so awarded. In each year at the discretion of the Committee there may also
be allocated or credited to each Participant a dollar amount equal to the cash
dividends declared and paid by the Company on its Common Stock which the
Participant would have received had such Participant been the owner of the
number of shares of any Common Stock deferred for future payment. Any amounts
provided for pursuant to the preceding sentence shall become payable in such
manner, at such time or times, and subject to such conditions (which may include
provision for an amount equivalent to interest on such dividend equivalents at
rates fixed by the Committee) as the Committee in its sole discretion shall
determine; provided, however, that the total value of such dividend equivalents
(and any interest thereon) shall be deducted from the amount available for
Awards under the provisions of Section 13(e) of the Plan. The Committee in its
discretion may make appropriate equitable adjustments to such deferred Stock
Award to account for any dividends of property (other than cash) declared and
paid by the Company on its Common Stock, or to account for any other event
described in Sections 28 and 29 hereof.
PART IIB RESTRICTED STOCK AWARDS
20. DETERMINATION OF RESTRICTED STOCK AWARDS
Each year the Committee shall designate the Participants who shall receive
Restricted Stock Awards. Shares awarded under this part of the Plan, while
subject to the restrictions hereinafter set forth, are referred to as
"Restricted Stock."
21. TERMS OF RESTRICTED STOCK AWARDS
Any Award of Restricted Stock shall be subject to the following terms and
conditions and to any other terms and conditions not inconsistent with the Plan
as shall be prescribed by the Committee in its sole discretion and which may be
contained in the agreement, if any, referred to in Section 16 above (or in any
amendment thereto):
(a) DELIVERY OF RESTRICTED STOCK. Unless otherwise determined by the
Committee, the Company shall transfer treasury shares to each Participant
to whom an Award of Restricted Stock has been made equal to the number of
shares of Restricted Stock specified in the Award, and hold the
certificates representing such shares of Restricted Stock for the
Participant for the period of time during which such shares shall remain
subject to the restrictions set forth in the Award (the "Restricted
Period"). Shares of Restricted Stock may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered by a
Participant during the Restricted Period, except as hereinafter provided.
Except for the restrictions set forth herein and unless otherwise
determined by the Committee, a Participant shall have all the rights of a
stockholder with respect to the shares of Restricted Stock comprising his
or her Award, including, but not limited to, the right to vote and the
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right to receive dividends (which if in shares of Common Stock shall be
Restricted Stock under the same terms and conditions).
(b) LAPSE OF RESTRICTED PERIOD. The Restricted Period shall commence
upon the date of the Award (which unless otherwise specified by the
Committee shall be the date the Restricted Stock is transferred to the
Participant) and, unless sooner terminated as otherwise provided herein,
shall continue for such period of time as specified by the Committee in
the Award, which shall in no event be less than one year, and thereafter
shall lapse in such installments, if any, as provided by the Committee in
the Award.
(c) LEGEND. Each certificate issued in respect of shares of
Restricted Stock transferred or issued to a Participant under an Award
shall be registered in the name of the Participant and shall bear the
following (or a similar) legend:
"THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY
ARE SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE NEW
YORK TIMES COMPANY 1991 EXECUTIVE STOCK INCENTIVE PLAN (THE
"PLAN") APPLICABLE TO RESTRICTED STOCK AND TO THE RESTRICTED
STOCK AGREEMENT DATED (THE "AGREEMENT"), AND MAY NOT BE
SOLD, PLEDGED, TRANSFERRED, ASSIGNED, HYPOTHECATED, OR
OTHERWISE DISPOSED OF OR ENCUMBERED IN ANY MANNER DURING THE
RESTRICTED PERIOD SPECIFIED IN SUCH AGREEMENT. COPIES OF SUCH
PLAN AND AGREEMENT ARE ON FILE WITH THE SECRETARY OF THE
COMPANY."
(d) DEATH OR DISABILITY. Unless the Committee shall otherwise
determine in the Award, if a Participant ceases to be employed by the
Company by reason of death or Disability, the Restricted Period covering
all shares of Restricted Stock transferred or issued to such Participant
under the Plan shall immediately lapse.
(e) RETIREMENT. Unless the Committee shall otherwise determine in
the Award, the Restricted Period covering all shares of Restricted Stock
transferred to a Participant under the Plan shall immediately lapse upon
such Participant's Retirement, whether early or not.
(f) TERMINATION OF EMPLOYMENT. Unless the Committee shall otherwise
determine in the Award or otherwise determine at or after the date of
grant, if a Participant ceases to be employed by the Company other than
due to a condition described in Sections 21(d) or (e) above, all shares of
Restricted Stock owned by such Participant for which the Restricted Period
has not lapsed shall revert back to the Company upon such termination.
Authorized leave of absence or absence in military service shall
constitute employment for the purposes of this Section 21(f). Whether
absence in government service may constitute employment for the purposes
of the Plan shall be conclusively determined by the Committee.
(g) WAIVER OF FORFEITURE PROVISIONS. The Committee, in its sole and
absolute discretion, may waive the forfeiture provisions in respect of all
or some of the Restricted Stock awarded to a Participant.
(h) ISSUANCE OF NEW CERTIFICATES. Upon the lapse of the Restricted
Period with respect to any shares of Restricted Stock, such shares shall
no longer be subject to the restrictions imposed in the Award and shall no
longer be considered Restricted Stock for the purposes of the Award and
the Plan, and the Company shall issue new share certificates respecting
such shares registered in the name of the Participant without the legend
described in Section 21(c) in exchange for those previously issued.
9
PART IIC RETIREMENT UNIT AWARDS
22. DETERMINATION OF RETIREMENT UNIT AWARDS
Each year the Committee shall designate those Participants who shall
receive Retirement Unit Awards under the Plan. The Company shall create and
maintain appropriate records of account for each Participant which shall be
designated as the Participant's Retirement Unit Account.
23. CREDITS TO RETIREMENT UNIT ACCOUNTS
The Committee shall allocate to each Participant selected to receive a
Retirement Unit Award for that year such dollar amount as the Committee shall
determine, taking into account the value of the Participant's services to the
Company. Such dollar amount shall thereupon be converted into Retirement Units
or fractions of Units and credited to each such Participant's Retirement Unit
Account in a number equal to the quotient obtained by dividing such allocated
dollar amount by the Fair Market Value of one share of Common Stock as of the
date the allocation is made.
24. DIVIDEND CREDITS
At the discretion of the Committee there may also be allocated in each
year to each Participant a dollar amount equal to the cash dividends declared
and paid by the Company on the Common Stock which the Participant would have
received had such Participant been the owner of the number of shares of Common
Stock equal to the number of the whole Retirement Units (but not fractional
Units) credited to the Participant's Retirement Unit Account; provided, however,
that the total value of such dividend equivalents shall be deducted from the
amount available for Awards under Section 13 of the Plan. The dollar amounts
allocated shall be converted into and credited to the Participant's Retirement
Unit Account as Retirement Units or fractions thereof as set forth in Section 23
above as of the date on which such dividends were paid by the Company. No
interest shall be paid on the dollar amount so allocated to the Retirement Unit
Account of any Participant. The Committee in its discretion may make appropriate
equitable adjustments to such Retirement Unit Accounts to account for any
dividends of property (other than cash) declared and paid by the Company on its
Common Stock, or to account for any other event described in Sections 28 and 29
hereof.
25. RESERVATION OF STOCK AND ACCOUNTING RECORDS
The Company shall keep records of the Participant's Retirement Unit
Account. At the time of any allocation to a Participant's account under Sections
23 or 24 hereof, there shall be reserved out of treasury shares of the Company a
number (which may include a fraction) of shares of Common Stock equal to the
number of Units or fraction thereof so allocated.
26. MATURITY AND PAYMENT AFTER MATURITY
(a) The Retirement Unit Account of each Participant shall mature upon such
Participant's death, Retirement or other termination of employment.
(b) After maturity, the Company shall deliver to the Participant (or in
the event of the death of the Participant, as specified in Section 30 hereof) in
ten approximately equal annual installments, shares of Common Stock equal in the
aggregate to the number of Retirement Units credited to the Participant's
Retirement Unit Account. Any fraction of a Unit credited to the Participant's
account at maturity shall be paid in cash with the first installment, the
fractional Unit being converted into cash at the Fair Market Value of the Common
Stock on such first payment date. The first such installment shall be paid
within 90 days after maturity. However, the Committee in its discretion at or
any time after maturity may, with the consent of the Participant (or the
beneficiary of a deceased Participant as specified in Section 30 hereof), (i)
defer the commencement of such distribution or defer any installment, (ii)
deliver full payment of the shares of Common Stock equal to the aggregate number
of Retirement Units credited to the Participant's
10
Retirement Unit Account and the dollar amount credited thereto, or (iii) reduce
or increase the number of annual installments in which the payments are to be
made.
(c) So long as Retirement Units remain credited to the Retirement Unit
Account of a Participant subsequent to maturity, such account shall be credited
with the dollar amount allocated to the account as dividends as provided for in
Section 24 hereof. Any dollar amount so credited may be paid in cash with the
next succeeding annual installment made under Section 26(b) above, or in such
manner, at such time or times, and subject to such conditions as the Committee
in its sole discretion shall determine; provided, however, that in the case of
any dollar amount credited to an account after maturity in respect of a dividend
declared prior to maturity, such dollar amounts shall be converted to Retirement
Units as of the date of payment and the remaining installments of Common Stock
shall be increased accordingly.
PART IID ANNUAL PERFORMANCE AWARDS
27A. DETERMINATION OF ANNUAL PERFORMANCE AWARDS
(a) GENERAL. Each year the Committee may make Annual Performance Awards
under this part of the Plan; provided that no Participant may be eligible to
receive an Annual Performance Award hereunder and under the Cash Plan in the
same year.
(b) CERTAIN DEFINITIONS. For the purposes of this Section 27A, the
following terms shall have the meanings specified:
"Affected Officers" shall mean those executive officers of the
Company whose compensation is required to be disclosed in the Company's
annual proxy statement relating to the election of directors.
"Code Section 162(m)" shall mean Section 162(m) of the Code (or any
successor provision), and "Regulations" shall mean the regulations
promulgated thereunder, as from time to time in effect.
"Eligible Participants" shall have the meaning set forth in
subsection (c) below.
"Performance Adjustment" means, for any year, a factor ranging from
0% to 200%, based upon the achievement of Performance Goal Targets
established by the Committee, that, when multiplied by an Eligible
Participant's Target Award, determines the amount of such Eligible
Participant's Annual Performance Award for such year.
"Performance Goal" means, for any year, the business criteria
selected by the Committee to measure the performance during such year of
the Company (or of a division, subsidiary or group thereof) from one or
more of the following:
(i) earnings per share of the Company for the year;
(ii) net income of the Company for the year;
(iii) return on assets of the Company for the year (net income
of the Company for the year divided by average total assets during
such year);
(iv) return on stockholder's equity of the Company for the
year (net income of the Company for the year divided by average
stockholder's equity during such year);
(v) operating profit or operating margins of the Company or of
a division, subsidiary or group thereof for the year;
(vi) cash flow of the Company or of a division, subsidiary or
group thereof for the year;
(vii) increase in shareholder value as determined at the end
of each year;
(viii) revenue growth of the Company or of a division,
subsidiary or group thereof for the year; and
(ix) improved use of capital and/or assets of the Company or
of a division, subsidiary or group thereof for the year.
11
"Performance Goal Target" means, for any Performance Goal, the
levels of performance during a year under such Performance Goal
established by the Committee to determine the Performance Adjustment to an
Eligible Participant's Target Award for such year.
"Target Award" means, for any year, with respect to an Eligible
Participant, the dollar amount set by the Committee that, when multiplied
by the applicable Performance Adjustment, determines the dollar amount of
such Eligible Participant's Annual Performance Award.
(c) ELIGIBILITY. Annual Performance Awards are available each year only to
Plan Participants who are designated by the Committee, prior to March 31 of such
year (or prior to such later date as permitted by Code Section 162(m) and the
Regulations), as likely to be Affected Officers for such year, whose annual
salary and bonus for such year are expected to exceed $1,000,000 and who are not
designated by the Committee as eligible for an annual performance award under
the Cash Plan for such year ("Eligible Participants").
(d) DETERMINATION OF ANNUAL PERFORMANCE AWARDS. Prior to March 31 of each
year (or prior to such later date as permitted by Code Section 162(m) and the
Regulations), the Committee will determine the Eligible Participants for such
year, will designate those Eligible Participants who will be entitled to earn an
Annual Performance Award for such year under this Plan, and will establish for
each such Eligible Participant for such year: (i) a Target Award, (ii) one or
more Performance Goals, and (iii) for each such Performance Goal, a Performance
Goal Target, the method by which achievement thereof will be measured and a
schedule of Performance Adjustment factors corresponding to varying levels of
Performance Goal Target achievement. In the event more than one Performance Goal
is established for any Eligible Participant, the Committee shall at the same
time establish the weighting of each such Performance Goal in determining such
Eligible Participant's Annual Performance Award. Notwithstanding anything in
this Section 27A to the contrary, the Annual Performance Award payable to any
Eligible Participant in any year may not exceed $1.5 million.
(e) PAYMENT OF ANNUAL PERFORMANCE AWARDS. Subject to subsection (f) below,
Annual Performance Awards will be paid as soon as practicable after the end of
the year to which it relates and after the Committee certifies the extent to
which the Performance Goal Target or Targets under the Performance Goal or Goals
have been met or exceeded. In the discretion of the Committee, an Annual
Performance Award may be paid in cash, shares of Common Stock, shares of
Restricted Stock (subject to the provisions of Section 21 hereof), Retirement
Units (subject to the provisions of Sections 23-26 hereof) or any combination
thereof. For this purpose, shares of Common Stock shall be valued at Fair Market
Value, and Restricted Stock and Retirement Units shall be deemed to have a value
equal to the Fair Market Value of the underlying Common Stock, in each case as
of the date of the Committee's determination to pay such Annual Performance
Award in such form or forms. If permitted by the Regulations and Code Section
162(m), the Committee may determine to pay a portion of an Annual Performance
Award in December of the year to which it relates. The Committee may not
increase the amount of an Annual Performance Award that would otherwise be
payable upon achievement of the Performance Target or Targets, but it may reduce
any Eligible Participant's Annual Performance Award in its discretion. Subject
to Section 14(c) above, no Annual Performance Award will be payable to any
Eligible Participant who is not an employee of the Company on the last day of
the year to which such Annual Performance Award relates.
(f) DEFERRAL OF ANNUAL PERFORMANCE AWARDS. If the Committee determines
that some portion of an Annual Performance Award to an Eligible Participant
shall be treated as a deferred Annual Performance Award and be payable in annual
or other periodic installments, the Eligible Participant will be notified in
writing when such deferred Annual Performance Award shall be paid and over what
period of time. A deferred Award in the form of shares of Common Stock shall be
subject to the provisions of Section 19(b) hereof. In the case of a deferred
Award in the form of cash, in each year the Committee shall have the discretion
to provide for the payment of an amount equivalent to interest, at such rate or
rates fixed by the Committee, on such deferred cash Annual Performance Award.
Any amounts provided for pursuant to the preceding sentence shall become payable
in such a manner, at such time or times, and subject to such
12
conditions as the Committee shall in its sole discretion determine; provided,
however, that the total amount of such interest shall be deducted from the
maximum amount available for Awards under the formula described in Section 13 of
the Plan.
(g) CODE SECTION 162(m). It is the intent of the Company that Annual
Performance Awards satisfy, and this Section 27A be interpreted in a manner that
satisfies, the applicable requirements of Code Section 162(m) and the
Regulations so that the Company's tax deduction for Annual Performance Awards to
Affected Officers is not disallowed in whole or in part by operation of Code
Section 162(m). If any provision of this Plan or of any Annual Performance Award
would otherwise frustrate or conflict with such intent, that provision shall be
interpreted and deemed amended so as to avoid such conflict. To the extent of
any irreconcilable conflict with such intent, such provision shall be deemed
void as applicable to Eligible Participants.
PART IIE PERFORMANCE OR OTHER AWARDS
27. DETERMINATION OF PERFORMANCE AND OTHER AWARDS
(a) Each year the Committee in its sole discretion may authorize other
forms of Awards such as, but not limited to, Performance Awards, if the
Committee deems it appropriate to do so in order to further the purposes of the
Plan.
(b) A "Performance Award" shall mean an Award which entitles the
Participant to receive Common Stock, Restricted Stock, Retirement Units, Options
under Part I of the Plan or other compensation (which may include cash), or any
combination thereof, in an amount which depends upon the financial performance
of the Company during a stated period of more than one year. Performance for
this purpose may be measured by the growth in book value of the Common Stock, an
increase in per share earnings of the Company, an increase in operating cash
flow, or any other indicators specified by the Committee. The Committee shall
also fix the period during which such performance is to be measured, the value
of a Performance Award for purposes of providing for the accrual pursuant to
Section 13 of the Plan and the form of payment to be made in respect of the
Performance Award.
PART IIF LONG-TERM PERFORMANCE AWARDS
28A. DETERMINATION OF LONG-TERM PERFORMANCE AWARDS
(a) GENERAL. Each year the Committee shall designate those Participants
who shall be eligible to receive Long-Term Performance Awards under this part of
the Plan.
(b) CERTAIN DEFINITIONS. For purposes of this Section 28A, the following
terms shall have the meanings specified:
"Code Section 162(m)" shall mean Section 162(m) of the Internal
Revenue Code of 1986, as amended (or any successor provision), and
"Regulations" shall mean the regulations promulgated thereunder, as from
time to time in effect.
"Eligible Participants" shall mean certain key business leaders and
senior management of the Company as determined in the discretion of the
Committee.
"Long-Term Performance Goal" means, for any Performance Period, the
business criteria selected by the Committee to measure the performance
during such Performance Period of the Company (or of a division,
subsidiary or group thereof) from one or more of the following:
(i) earnings per share of the Company for the Performance
Period;
(ii) net income of the Company for the Performance Period;
13
(iii) return on assets of the Company for the Performance
Period (net income of the Company for the Performance Period divided
by average total assets for such Performance Period);
(iv) return on stockholder's equity of the Company for the
Performance Period (net income of the Company for the Performance
Period divided by average stockholder's equity for such Performance
Period);
(v) operating profit or operating margins of the Company or of
a division, subsidiary or group thereof for the Performance Period;
(vi) cash flow of the Company or of a division, subsidiary or
group thereof for the Performance Period;
(vii) increase in shareholder value as determined at the end
of the Performance Period;
(viii) revenue growth of the Company or of a division,
subsidiary or group thereof for the Performance Period; and
(ix) improved use of capital and/or assets of the Company or
of a division, subsidiary or group thereof for the Performance
Period.
"Long-Term Performance Goal Target" means, for any Long-Term
Performance Goal, the levels of performance during a Performance Period
under such Long-Term Performance Goal established by the Committee to
determine an Eligible Participant's maximum Long-Term Performance Award.
"Performance Period" means the period in excess of one year
commencing on January 1 of the year in which the Committee makes the
Long-Term Performance Award to an Eligible Participant.
(c) ELIGIBILITY. Long-Term Performance Awards are available each year to
Eligible Participants who are designated by the Committee, prior to March 31 of
such year (or prior to such later date as permitted by Code Section 162(m) and
the Regulations).
(d) DETERMINATION OF LONG-TERM PERFORMANCE AWARDS. Prior to March 31 of
each year (or prior to such later date as permitted by Code Section 162(m) and
the Regulations), the Committee will designate the Eligible Participants who
will be entitled to earn a Long-Term Performance Award for such Performance
Period under this Plan, and will establish for each such Eligible Participant
for such Performance Period (i) one or more Long-Term Performance Goals, and
(ii) for each such Long-Term Performance Goal, a Long-Term Performance Goal
Target and the method by which achievement thereof will be measured. In the
event that more than one Long-Term Performance Goal is established for any
Eligible Participant, the Committee shall at the same time establish the
weighting of each such Long-Term Performance Goal in determining such Eligible
Participant's Long-Term Performance Award. Notwithstanding anything in this
Section 28A to the contrary, the Long-Term Performance Award payable to any
Eligible Participant in any Performance Period may not exceed $1.5 million.
(e) PAYMENT OF LONG TERM PERFORMANCE AWARDS. Subject to subsection (g)
below, Long-Term Performance Awards will be paid in cash as soon as practicable
after the end of the Performance Period to which it relates and after the
Committee certifies the extent to which the Long-Term Performance Goal Target or
Targets under the Long-Term Performance Goal or Goals have been met or exceeded.
If permitted by the Regulations and Code Section 162(m), the Committee may
determine to pay a portion of a Long-Term Performance Award in December of the
last year of the Performance Period to which it relates. The Committee may not
increase the amount of a Long-Term Performance Award that would otherwise be
payable upon the achievement of the Long-Term Performance Goal Target or
Targets, but it may reduce any Eligible Participant's Long-Term Performance
Award in its discretion. Subject to Sections 14(c) and 28A(g), no Long-Term
Performance Award will be payable to any Eligible Participant who is not an
employee of the Company on the last day of the Performance Period to which such
Long-Term Performance Award relates.
(f) TERMINATION OF EMPLOYMENT BECAUSE OF DEATH, DISABILITY OR RETIREMENT.
In the event that an Eligible Participant terminates employment because of
death, Disability or Retirement, such Eligible Participant, or in the event of
death such person as determined in accordance with Section 30, shall be paid a
pro rata portion of such Eligible Participant's Long-Term Performance Award that
would otherwise be payable upon the achievement of the Long-Term Performance
Goal Target or Targets had the Participant continued
14
employment until the end of the Performance Period. Such pro rata Long-Term
Performance Award shall not be paid until the end of the Performance Period to
which such Long-Term Award relates.
(g) DEFERRAL AND ALTERNATIVE FORM OF PAYMENT OF LONG-TERM PERFORMANCE
AWARDS. If the Committee determines that some portion of a Long-Term Performance
Award to an Eligible Participant shall be treated as a deferred Long-Term
Performance Award and payable in annual or other periodic installments, the
Eligible Participant will be notified in writing when such deferred Long-Term
Performance Award shall be paid and over what period of time. In each year the
Committee shall have the discretion to provide for the payment of an amount
equivalent to interest, at such rate or rates fixed by the Committee, on any
deferred Long-Term Performance Award. Any amounts provided for pursuant to the
preceding sentence shall become payable in such manner, at such time or times,
and subject to such conditions as the Committee shall in its sole discretion
determine; provided, however, that the total amount of such interest shall be
deducted from the maximum amount available for Awards under the formula
described in Section 5 of the Plan. Furthermore, the Committee may, in its sole
discretion, determine that such Long-Term Performance Award shall be paid in
shares of Common Stock or in the form of Retirement Units (subject to the
provisions of Sections 23-26 hereof). For this purpose, shares of Common Stock
shall be valued at Fair Market Value, and Retirement Units shall be deemed to
have a value equal to the Fair Market Value of the underlying Common Stock, in
each case as of the date of the Committee's determination to pay such Long-Term
Performance Award in such form.
(h) CODE SECTION 162(m). It is the intent of the Company that Long-Term
Performance Awards satisfy, and this Section 28A be interpreted in a manner that
satisfies, the applicable requirement of Code Section 162(m) and the Regulations
so that the Company's tax deduction for Long-Term Performance Awards to Eligible
Participants is not disallowed in whole or in part by operation of Code Section
162(m). If any provision of this Plan or of any Long-Term Performance Award
would otherwise frustrate or conflict with such intent, that provision shall be
interpreted and deemed amended so as to avoid such conflict. To the extent of
any irreconcilable conflict with such intent, such provision shall be deemed
void as applicable to any Participant whose compensation is subject to Code
Section 162(m).
PART III GENERAL PROVISIONS
28. STOCK DIVIDEND OR STOCK SPLIT
If at any time the Company shall take any action whether by stock
dividend, stock split, combination of shares, or otherwise, which results in a
proportionate increase or decrease in the number of shares of Common Stock
theretofore issued and outstanding, (i) the number of shares of Common Stock
then subject to deferred Awards, credited to Retirement Unit Accounts (matured
or unmatured) or set aside for Performance or Other Awards, (ii) the number of
outstanding Options, the number of shares of Common Stock for which such Options
are exercisable and the exercise price thereof, (iii) the number of shares of
Common Stock reserved for Awards, (iv) the number of shares of Common Stock
reserved for Options, and (v) the maximum number of shares with respect to which
Options may be granted to any key employee in any calendar year under Section
6(b), shall be increased or decreased in the same proportion. The Committee
shall make an appropriate equitable adjustment to the provisions of Section
13(a) to take account of such increase or decrease in issued and outstanding
shares. The Committee in its discretion may make appropriate equitable
adjustments respecting deferred Stock Awards, Retirement Units, Annual
Performance Awards, Long-Term Performance Awards, Performance or Other Awards
and outstanding Options to take account of a dividend by the Company of property
other than cash. All such adjustments shall be made by the Committee whose
determination shall be conclusive and binding upon all Participants and any
person claiming under or through any Participant.
29. RECLASSIFICATION OR MERGER
If at any time the Company reclassifies or otherwise changes its issued
and outstanding Common Stock (other than in par value) or the Company and one or
more corporations merge and the Company is
15
the surviving corporation of such merger, then each Stock Award, Retirement Unit
(matured or unmatured), Annual Performance Award, Performance or Other Award
which at the time of such reclassification or merger is credited as a Stock
Award, Retirement Unit, Annual Performance Award, Long-Term Performance Award,
Performance or Other Award shall thereafter be deemed to be the equivalent of
(and all Units thereafter credited to a Retirement Unit Account shall be
computed with reference to), and outstanding Options shall be exercisable for,
the shares of stock or other securities of the Company which pursuant to the
terms of such reclassification or merger are issued with respect to each share
of Common Stock. The Committee shall also make an appropriate equitable
adjustment to the provisions of Sections 6(b) and 13(a) to take account of such
event. All such adjustments shall be made by the Committee whose determination
shall be conclusive and binding upon all Participants and any person claiming
under or through any Participant.
30. NON-ALIENATION OF BENEFITS
Except as herein specifically provided, no right or unpaid benefit under
this Plan shall be subject to alienation, assignment, pledge or charge and any
attempt to alienate, assign, pledge or charge the same shall be void. If any
Participant or person entitled to the benefits hereunder should attempt to
alienate, assign, pledge or charge any benefit hereunder, then such benefit
shall, in the discretion of the Committee, cease. Notwithstanding the foregoing,
rights and benefits hereunder shall pass by will or the laws of descent and
distribution in the following order: (i) to beneficiaries so designated by the
Participant; if none, then (ii) to a legal representative of the Participant; if
none, then (iii) to the persons entitled thereto as determined by a court of
competent jurisdiction. Awards so passing shall be made at such times and in
such manner as if the Participant were living.
31. WITHHOLDING OR DEDUCTION FOR TAXES
If at any time specified herein for the making of any payment or delivery
of any Common Stock to any Participant or beneficiary, any law or regulation of
any governmental authority having jurisdiction in the premises shall require the
Company to withhold, or to make any deduction for, any taxes or take any other
action in connection with the payment or delivery then to be made, such payment
or delivery shall be deferred until such withholding or deduction shall have
been provided for by the Participant or beneficiary, or other appropriate action
shall have been taken. The Participant or beneficiary may satisfy the obligation
for such withholding or deduction in whole or in part by electing to deliver
shares of Common Stock already owned or to have the Company retain from the
distribution shares of Common Stock, in each case having a Fair Market Value
equal to the amount to be withheld or deducted.
32. ADMINISTRATION EXPENSES
The entire expense of administering this Plan shall be borne by the
Company.
33. GENERAL CONDITIONS
(a) The Board in its discretion may from time to time amend, suspend or
terminate any or all of the provisions of this Plan, provided that no change may
be made which would prevent Incentive Stock Options granted under the Plan from
being Incentive Stock Options as described therein without the consent of the
optionees concerned, and further provided that the Board may not make any
amendment which (1) changes the class of persons eligible for Incentive Stock
Options, or (2) increases the total number of shares for which Options may be
granted under Section 6(b), or (3) materially affects the provisions of Sections
13(a) or (b) of the Plan, or (4) increases the total number of shares authorized
under Section 13(f) for which Awards may be granted, without the consent and
approval of the holders of a majority of the outstanding shares of Class A and
Class B Common Stock of the Company entitled to vote thereon, voting together as
one class. The foregoing provisions shall not be construed to prevent the
Committee from exercising its discretion, or to limit such discretion, to
increase the total number of shares for which Options may be granted under
Section 6(b) or the total number of shares authorized under Section 13(f) for
which Awards may be granted, as expressly permitted by Sections 28 and 29
hereof, or to
16
adjust the provisions of Sections 13(a) and (b) hereof as expressly permitted by
Sections 13(b), 28 and 29 hereof, or otherwise to exercise any discretion to the
extent expressly authorized hereunder.
(b) Nothing contained in the Plan shall prohibit the Company from
establishing incentive compensation arrangements in addition to this Plan and
the Cash Plan. Payments made under any such separate arrangements shall not be
included in or considered a part of the maximum dollar amount available for
Awards under the Plan and Cash Plan, or number of shares available for Awards or
Options under the Plan, and shall not be charged against the dollar or share
amounts available for Awards under the Plan and Cash Plan or Options under the
Plan. In the discretion of the Committee, employees shall be eligible to
participate in such other arrangements, as well as the Plan and Cash Plan, in
the same year.
(c) Nothing in this Plan shall be deemed to limit in any way the right of
the Company to terminate a Participant's employment with the Company at any
time.
(d) The Committee may promulgate rules and regulations relating to the
administration and interpretation of, and procedures under, the Plan. Any
decision or action taken by the Company, the Board or the Committee arising out
of or in connection with the construction, administration, interpretation and
effect of the Plan shall be conclusive and binding upon all Participants and any
person claiming under or through any Participant.
(e) No member of the Board or of the Committee shall be liable for any act
or action, whether of commission or omission, taken by any other member or by
any officer, agent or employee, nor for anything done or omitted to be done by
such Director except in circumstances involving actual bad faith.
(f) Notwithstanding any other provision of this Plan, the Company shall
not be obligated to make any Award, issue any shares of Common Stock, or grant
any Option with respect thereto, unless it is advised by counsel of its
selection that it may do so without violation of the applicable Federal and
State laws pertaining to the issuance of securities, and may require any stock
so issued to bear a legend, may give its transfer agent instructions, and may
take such other steps, as in its judgment are reasonably required to prevent any
such violation.
(g) It is the intent of the Company that transactions involving Options or
Awards granted under the Plan be entitled to the exemption from Section 16 of
the Exchange Act provided by Rule 16b-3, that any ambiguities or inconsistencies
in construction of the Plan be interpreted to give effect to such intention and
that if any provision of the Plan is found not to be in compliance with Rule
16b-3, such provision shall be deemed null and void to the extent required to
permit any such transaction to comply with Rule 16b-3. The Committee may adopt
rules and regulations under, and amend, the Plan in furtherance of the intent of
the foregoing.
34. TRANSITION
Upon the effectiveness of this Plan, as provided below, and the Cash Plan,
such plans replaced the Company's Executive Incentive Compensation Plan
("EICP"), except that the EICP shall continue to govern options and awards of
restricted stock outstanding under the EICP. No further awards will be made
under the EICP, and all amounts accrued for awards under the EICP and unawarded
were carried forward and made available for Awards under the Plan and awards
under the Cash Plan. All unmatured and matured but undistributed retirement
units and all performance awards respecting current performance cycles awarded
under the EICP became Retirement Units and Performance Awards hereunder and any
payments or distributions in respect thereof shall be made hereunder; provided,
however, that the number of shares of Common Stock available for Awards pursuant
to Section 13(f) hereof shall not be reduced by the number of such retirement
units previously awarded under the EICP and paid subsequently under the Plan.
35. EFFECTIVE DATES
The Plan became effective for periods beginning after January 1, 1991 upon
approval by the holders of a majority of the outstanding shares of Class A and
Class B Common Stock of the Company entitled to vote thereon at the 1991 Annual
Meeting of Stockholders, in person or by proxy, voting together as a single
class. No Options may be granted or Awards made under the Plan after December
31, 2000, or such earlier expiration date as may be designated by resolution of
the Board.
17