EXHIBIT E
THIS INDENTURE dated the 24th day of June, 1997, between XXXXXX X.
XXXXXXXX, of New York, New York, XXXX X. XXXXXXXX, of Chattanooga, Tennessee,
XXXXXX X. XXXXXXXXXX, of New York, New York and XXXXXX XXXX XXXXXXXXXX, of New
York, New York (hereinafter called the "grantors") and XXXXXX X. XXXXXXXX, XXXX
X. XXXXXXXX, XXXXXX X. XXXXXXXXXX, XXXXXX XXXX XXXXXXXXXX and XXXX X. XXXXXXX,
of Chevy Chase, Maryland (hereinafter called the "trustees"),
W I T N E S S E T H :
WHEREAS the grantors desire to create a new trust to hold the shares of the
Class B Common Stock (hereinafter referred to as the "Stock") of The New York
Times Company (hereinafter referred to as the "Company") that they received upon
the termination of the trust created under Paragraph 51st of the will of Xxxxxx
X. Xxxx, deceased, for the primary purpose of maintaining the editorial
independence and integrity of The New York Times and perpetuating it "as an
independent newspaper, entirely fearless, free of ulterior influence and
unselfishly devoted to the public welfare", in accordance with the wishes of Xx.
Xxxx as expressed in his will,
NOW, THEREFORE, each grantor hereby assigns to the trustees, as of the date
hereof, the property listed on Schedule "A" annexed hereto set forth opposite
his or her name, IN TRUST, as follows:
ARTICLE ONE: The trustees shall invest and reinvest said property and any
other property received by them as trustees hereunder until the expiration of
twenty-one years after the death of the last survivor of all of the descendants
of Xxxxxxxx Xxxx Xxxxxxxxxx in being on the date of this indenture (said period
being hereinafter referred to as the "trust term").
During the trust term the trustees shall pay out of the net income such
amount or amounts (whether equal or unequal, and whether the whole or a lesser
amount) as the trustees may in their absolute discretion determine to such one
or more of the beneficiaries of the trust as the trustees may in their absolute
discretion select, provided that as long as any of the grantors is alive, the
trustees shall distribute one-quarter of the income either to that grantor or to
such of the beneficiaries and in such amounts and proportions as that grantor
may from time to time in writing direct. Any net income not so distributed shall
be added to principal.
The trustees may at any time or from time to time distribute from the
principal, other than the Stock, such amount or amounts (whether equal or
unequal, and whether the whole or a lesser amount) as the trustees may in their
absolute discretion determine to such of the beneficiaries as the trustees may
in their absolute discretion select, provided that as long as any of the
grantors is alive, the trustees shall only distribute equal amounts to each
living grantor and to the descendants of a deceased grantor, such descendants to
take per stirpes. In exercising this discretionary power, the trustees shall
bear in mind the need to retain in the trust assets other than the Stock of
sufficient value to pay any estate, transfer, or generation-skipping taxes that
may have to be paid out of the trust.
-2-
The trustees, in their absolute discretion but subject to the provisions of
Article FIVE below, may distribute all but not less than all of the Stock to the
descendants then living of Xxxxxxxx Xxxx Xxxxxxxxxx who would receive the Stock,
and in the same proportions that such persons would receive the Stock if the
trust term had expired just prior to the time of distribution.
As used herein, the term "beneficiaries" means (i) the grantors, (ii) the
descendants of the grantors from time to time living of whatever degree and
whenever born, other than those descendants who are excluded from the term by
the provisions of Article TWO below, (iii) spouses of the grantors or of such
descendants, and (iv) organizations from time to time described in sections
170(c), 2055(a) and 2522(a) of the Internal Revenue Code of 1986, as amended, or
the corresponding provisions of any subsequent federal tax law, provided that no
such organization may have an interest in the trust that involves the
distribution to such organization of either the Stock or the income of the
Stock.
ARTICLE TWO: Upon the written request of a beneficiary who is a descendant
of Xxxxxxxx Xxxx Xxxxxxxxxx and who is over the age of twenty-five years, the
trustees in their absolute discretion may, but need not, at any time after the
death of the survivor of the grantors, distribute to that beneficiary that
fractional share of the entire trust, the numerator of which is one and the
denominator of which is the greater of (a) the total number of descendants of
Xxxxxxxx Xxxx Xxxxxxxxxx born prior to and living on the date of the request,
and (b) twenty. Neither any individual who requests and receives a distribution
under this Article, nor the spouse of such an individual, shall thereafter be a
beneficiary of the trust.
-3-
The trustees may distribute to an individual requesting a distribution
under this Article any property held by them without making pro-rata
distributions of specific assets, and having regard only to the actual value of
the property as of the date of distribution, provided, however, that the
trustees shall not distribute any shares of the Stock.
In making any distribution of property hereunder, the Stock shall be valued
at the purchase price provided for in the Shareholders' Agreement dated August
5, 1986 among certain descendants of Xxxxxxxx Xxxx Xxxxxxxxxx and the Company
(the "Shareholders' Agreement"). Any division of property, allocation, or other
determination made in good faith by the trustees pursuant to the provisions of
this Article shall be binding upon all persons interested or claiming to be
interested in any trust created under this indenture.
It is the grantors' expectation that no distributions will be made under
this Article unless the trustees determine it to be in furtherance of the trust
purposes, and unless estate, transfer or generation-skipping transfer taxes that
may be imposed upon the trust have been adequately provided for.
ARTICLE THREE: Upon the expiration of the trust term all property then
belonging to the income and principal of the trust shall be divided into as many
equal shares as there are (a) then living descendants of Xxxxxxxx Xxxx
Xxxxxxxxxx in the generation nearest to the generation of the grantors which
contains at least one living descendant of Xxxxxxxx Xxxx Xxxxxxxxxx, and (b)
deceased members of that generation who left issue then living, if any. One such
share shall be distributed to each then living member of that generation. The
remaining shares shall then be
-4-
combined and redivided and redistributed in the same manner among the surviving
issue, but treating those individuals who have already received distributions as
though they had previously died without issue.
ARTICLE FOUR: Notwithstanding the preceding Articles, each grantor shall
have the right, by an acknowledged instrument delivered to the trustees prior to
such grantor's death (but not by will), to appoint one quarter of all property
belonging to the income and principal of the trust to or for the benefit of any
one or more beneficiaries of the trust (including the grantor and the grantor's
estate), and in such estates, interests, trusts (including discretionary trusts)
and proportions, such appointment to take effect either before or after the
grantor's death, as the grantor shall provide in such instrument. Any such
instrument may be revoked or amended by a subsequent instrument, unless it is
specifically declared to be irrevocable. Each grantor may at any time by a like
instrument release in whole or in part all powers under this Article or Article
ONE.
Notwithstanding the foregoing provisions of this Article, any appointment
must require that the Stock be retained in trust on terms substantially
identical to those of this indenture; prohibiting the vesting in possession of
the Stock in anyone other than a descendant of Xxxxxxxx Xxxx Xxxxxxxxxx or at
any time prior to the expiration of the trust term hereunder, and providing that
the trustees of any other trust holding the Stock, and the method of selecting
successor trustees of such trust, shall be identical to those under this
indenture, and that all provisions of this indenture that refer to the Stock
shall continue to apply to the Stock. Moreover, no appointment creating any
interest in a charitable organization shall be effective if it is made without
the prior written consent of the trustees. Because the property other than the
Stock has been placed in the trust to provide for
-5-
the payment of estate transfer or generation-skipping taxes, it is the grantors'
expectation that such property will not be appointed out of the trust unless and
except to the extent that such taxes have otherwise been adequately provided
for.
ARTICLE FIVE: During the trust term the trustees shall neither (1)
distribute any of the Stock, (2) sell any of the Stock, nor (3) convert any
shares of the Stock into shares of the Class A Common Stock of the Company, or
any other class of security not considered the Stock, and (4) they shall vote
against any merger, sale of assets, or other transaction pursuant to which
control of The New York Times newspaper passes from the trustees, unless all
five trustees in their absolute discretion unanimously determine that the
primary purpose of the trust as expressed above is best achieved by such a
distribution, sale, conversion or other transaction, and provided that any such
sale, distribution or conversion complies in all respects with the Shareholders'
Agreement.
ARTICLE SIX: The grantors declare that the trust is irrevocable, and that
this Article SIX, and the preceding provisions of this indenture may not be
altered, amended or modified. All five trustees, acting unanimously, may in
their absolute discretion amend the subsequent provisions of this indenture.
ARTICLE SEVEN: Whenever any property, whether principal or income
(including the Stock), vests pursuant to the provisions of this indenture in a
minor, the trustees shall have the right as donees of a power during minority,
upon the distribution of such property, to hold and manage the same until such
minor attains majority, and may exercise in respect of such property and the
income thereof all powers conferred by this indenture or by law on the trustees,
including the power
-6-
to apply any such property or the income thereof to the use of such minor. Said
donees shall not be required to render periodic accounts to any court. For
purposes of this Article a minor shall be deemed to be a person who has not
attained the age of 21 years.
ARTICLE EIGHT: Any action of the trustees relating to or affecting the
Stock shall require the affirmative vote of four trustees, except for a sale,
distribution, conversion, or other transaction described in Article FIVE, which,
pursuant to said Article, shall require a unanimous vote of all five trustees.
No trustee (other than a grantor) shall participate in any decision or other
action of the trustees with respect to any discretionary distribution of
principal or income in favor of such trustee.
Any individual may resign at any time as trustee of any trust held under
this indenture by an instrument signed and acknowledged by him or her and
delivered to his or her then acting co-trustees, such resignation to be
effective upon the appointment of a successor trustee.
Any trustee (other than a grantor) may be removed without cause by the
unanimous agreement of the other four trustees. A grantor may be removed as
trustee only if the remaining four trustees determine that the trustee to be
removed is incapable, by reason of mental or physical infirmity, to perform
adequately as a trustee. Any such removal shall be effected by an instrument of
removal signed and acknowledged by the remaining four trustees and delivered to
the trustee to be removed.
There shall at all times be five trustees.
-7-
Each trustee other than a grantor shall serve for a term of five years.
When a vacancy in the position of trustee occurs, a new trustee shall be elected
by a majority vote of those beneficiaries of the trust who are over the age of
twenty-five years and who are descendants of Xxxxxxxx Xxxx Xxxxxxxxxx or married
to and living with a descendant of Xxxxxxxx Xxxx Xxxxxxxxxx, and who wish to
vote, in an election called by the trustees for that purpose. Each successor
trustee appointed pursuant to the provisions of this Article shall accept such
appointment by an acknowledged instrument, filed with the trust records,
agreeing to faithfully discharge all duties of the office of trustee, and by
executing and becoming a party, as trustee, to the Shareholders' Agreement.
No trustee who is a descendant of Xxxxxxxx Xxxx Xxxxxxxxxx or a spouse of
any such descendant shall be entitled to receive any commissions for acting as
such trustee. Any commissions payable to a trustee who is not a descendant of
Xxxxxxxx Xxxx Xxxxxxxxxx or a spouse of such descendant shall be paid from trust
income.
Each trustee shall be exempt from giving any bond or other security in any
jurisdiction.
ARTICLE NINE: The trustees are authorized and empowered to exercise from
time to time in their sole and absolute discretion, but subject to the
provisions of Article FIVE above, and without prior authority from any court, in
respect of the Stock or any other securities of the Company, all powers
conferred by law upon trustees or expressed in this indenture, including the
following:
(1) Power to retain the Stock and any other securities of the Company
or any successor corporation, for such period as they deem proper, and to
purchase by subscription or otherwise additional securities of the Company
or any successor corporation. It is the
-8-
grantors' intention that, except upon the determination of the trustees
described in Article FIVE above, the trust will retain the Stock for the
trust term without regard to such factors as lack of diversification,
diminution of the value of the trust, the inability of the trust and the
beneficiaries thereof to realize the maximum value thereof, and the failure
to derive an adequate income therefrom, and without any duty to consider
offers for the purchase of the Stock.
(2) Power to exchange any securities of the Company held by them for
other securities or property, or partly for such securities or property and
partly for cash, and to exercise conversion, subscription, option and
similar rights with respect to any securities of the Company or any
successor corporation held by them, and to make payments in connection
therewith, and to allocate to principal any property received as a result
thereof.
(3) Power to vote in person or by proxy at corporate or other meetings
and to participate in and consent to or oppose any voting trust,
reorganization, recapitalization, liquidation, dissolution, merger, or
other action affecting the Stock or other securities of the Company or the
Company or any successor corporation, and to make payments in connection
therewith, and to allocate to principal any property received as a result
thereof.
(4) Power to participate in agreements relating to the purchase or
sale of the Stock or other securities of the Company, including agreements
granting to the Company or to any of its shareholders, including any
beneficiary of any trust hereunder, a right of first
-9-
refusal with respect to any sale of the Stock, it being the grantor's
intention that the trustees shall enter into the Shareholders' Agreement.
(5) Power (a) to act as directors, officers or other employees of the
Company or any subsidiary thereof or any successor corporation, the same to
be compensated without regard to being a beneficiary or trustee hereunder,
(b) to obtain and pay out of income or principal the cost of liability
insurance for any such officer or director, and (c) to make such other
arrangements in respect thereof as the trustees shall deem proper.
(6) Power to retain, and pay out of income or principal the
compensation of, investment bankers, appraisers, accountants, legal counsel
and others when the trustees shall determine that such services are
desirable in connection with the affairs of the Company or any subsidiary
thereof or any successor thereto.
(7) If the trustees shall determine to dispose of the Stock or other
securities of the Company held hereunder, they shall be under no obligation
to solicit offers from third parties and may sell such securities to
another shareholder (including themselves as trustees of another trust or a
trust beneficiary) or to the Company upon such terms as they shall in their
sole discretion deem reasonable. Except for a sale of all of the Stock held
in the trust, the grantors direct that the trustees not sell any of the
Stock held hereunder unless all adult descendants of Xxxxxxxx Xxxx
Xxxxxxxxxx who are the beneficiaries consent to the sale.
The grantors recognize that in the exercise of their powers one or
more of the trustees may be placed in a position of having conflicting
interests as a trustee and as an
-10-
individual or as a director, officer or employee of the Company or in some
other capacity, and direct that, unless specifically provided to the
contrary herein, such conflicting interests shall not be a basis for any
trustee not participating in the exercise of powers with respect to the
Stock.
ARTICLE TEN: In addition to the foregoing powers which relate solely to the
Stock and other securities of the Company, the trustees are authorized and
empowered to exercise from time to time in their sole and absolute discretion
and without prior authority from any court, in respect of any property other
than the Stock or any other securities of the Company, all powers conferred by
law upon trustees, or expressed in this indenture, and the grantors intend that
such powers (including the following) be construed in the broadest possible
manner:
(1) Power to invest or reinvest in such securities or other property,
real or personal (whether within or without the United States), and to
retain any property at any time received or held by them hereunder for such
periods, as they shall in their sole discretion determine (and any aspect
of any diversification requirement that would otherwise apply is hereby
negated).
(2) Power to borrow in the name of the trust such sums for such
periods and upon such terms as they shall deem necessary or convenient in
the administration of the trust, and to secure any such loan by mortgage or
pledge of property other than the Stock. No lender shall be bound to see to
or be liable for the application of the proceeds, and no
-11-
trustee shall be personally liable, but each such loan shall be payable
only out of assets of the trust other than the Stock.
(3) Power to apply to the use of any person any property, whether
principal or income, vesting in or payable to such person, and in the case
of a minor (a) to do so without regard either to the duty of any person to
furnish support for such minor or the availability of other funds for such
purpose, or (b) to pay or deliver the same to such minor, or to a guardian
or custodian under a gifts to minors act, including a custodian selected by
the trustees (who may select attaining the age of twenty-one years for
termination of the custodianship), or to the parent of such minor, or to a
person with whom such minor resides, or to the trustees as donees of a
power during minority under this indenture.
(4) Power to allocate receipts and disbursements between income and
principal in such manner as the trustees in their sole discretion determine
even though a particular allocation or allocations may be made in a manner
inconsistent with what would otherwise be applicable state law.
(5) Power to improve any real property held in the trust, and to pay
the cost out of principal (other than the Stock).
(6) Power to permit any person having any interest in the income of
the trust to occupy any real property forming part of such trust upon such
terms as the trustees shall deem proper, whether rent free or in
consideration of the payment of taxes, insurance, maintenance and ordinary
repairs, or otherwise.
-12-
(7) Power to charge to principal (other than the Stock) such sums as
they shall determine to be the net loss incurred in operating or carrying
any parcel of real property which in their opinion is not producing net
income.
(8) Power to employ as custodian a bank or trust company located
within or without the United States, and to acquire, hold, register, or
dispose of property in the name of such custodian or agent or a nominee
thereof without designation of fiduciary capacity, and to employ investment
counsel or other agents and to pay out of principal or income or both the
charges and expenses of any such custodian, counsel or other agent.
(9) Power to compromise and adjust all claims or debts due to or made
against them.
ARTICLE ELEVEN: If by reason of a stock dividend, stock split,
recapitalization, merger or other change in the capital structure of the
Company, the trust receives securities of the Company or any successor
corporation, other than shares of the present Class B Common Stock, the trustees
shall determine whether the securities received shall be treated as "the Stock"
for purposes of this indenture or shall not be so treated. The trustees shall
have absolute discretion in making this determination. The grantors intend in
general that any securities of the corporation that owns and publishes The New
York Times newspaper, having voting rights equivalent or similar to those of the
present Class B Common Stock or having unlimited voting rights, shall be treated
as "the Stock" and other securities shall not be so treated.
-13-
ARTICLE TWELVE: The terms "issue" and "descendant" as used herein are
intended to include persons whose relationship results solely from adoption
while under the age of eighteen years.
The term "spouse" as used herein shall mean any individual who is married
to a descendant of Xxxxxx X. Xxxx, or who was married to a descendant of Xxxxxx
X. Xxxx at the time of such descendant's death, whether or not such individual
shall have remarried.
The descendants of Xxxxxxxx Xxxx Xxxxxxxxxx referred to in Article ONE
hereof consist of her four children, Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxx,
Xxxxxx X. Xxxxxxxxxx and Xxxxxx Xxxx Xxxxxxxxxx, her thirteen grandchildren,
Xxxxxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx, Xxxxxxx X.X. Xxxxxx,
Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxx X.
Xxxxx, Xxxxx Xxxx Xxxxxxxxxx, Xxxxxx X. Xxxxxxxxxx, Xx., Xxxxx X. Xxxxxxxxxx and
Xxxxxxx X. Xxxxxxxxxx, her twenty-five great-grandchildren, Xxxxx X. Xxxxxxx,
Xxxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxxxx X.
Xxxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxx X.X.
Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxxxx,
Xxxxxx Xxxxxxx, Xxx X. Xxxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxxxxxx Xxxxx, Xxxxx Xxx and Xxxx Xxx, their respective descendants, born in
wedlock, legitimatized or adopted while under the age of eighteen years, and any
such descendants conceived before, but born after the date of this indenture.
-14-
When the term "per stirpes" is used herein, the stirpes shall begin in the
generation of the grantors.
ARTICLE THIRTEEN: This indenture shall be construed and regulated by and in
accordance with, and the trust hereby created shall be governed by, the laws of
the State of New York.
ARTICLE FOURTEEN: The grantors direct that in any proceeding relating to
the trust, service upon any person under a disability shall not be made when a
person not under a disability is a party to the proceeding and has the same
interest as the person under the disability.
ARTICLE FIFTEEN: Each grantor agrees that any federal or state death taxes
imposed by reason of her or his death upon any property constituting part of
this trust will be provided for and paid out of assets other than those held in
the trust.
ARTICLE SIXTEEN: Whenever in this indenture the trustees are given
"absolute" discretion, the grantors intend that such discretion shall be
uncontrolled and unfettered, and subject to review by a court only if the
trustees' actions are in bad faith. When this indenture sets forth guidelines
for the exercise of discretion (including the next sentence), it is the
intention of the grantors that such guidelines be viewed as precatory only and
not as establishing an enforceable standard under which the trustees' exercise
of discretion could be reviewed. The trustees may always exercise their
discretion with a view to the grantors' desire that The New York Times newspaper
remain independent and in the control of the trustees or the descendants of
Xxxxxxxx Xxxx Xxxxxxxxxx.
-15-
No trustee shall be liable for the acts or defaults of a co-trustee. Each
trustee shall be deemed to have acted within the scope of his or her authority,
to have exercised reasonable care, diligence and prudence, and to have acted
impartially as to all persons interested unless the contrary be proved by clear
and convincing evidence, and in the absence of such proof shall not be liable
for any loss. In no event shall any trustee be held liable for any loss
resulting from retention of the Stock during the trust term. The provisions of
this Article shall apply to any person acting as donee of a power during
minority hereunder.
The trustees accept the trust hereby created and covenant that they will
faithfully discharge all duties of their office as such trustees.
/s/Xxxxxx X. Xxxxxxxx
---------------------
Xxxxxx X. Xxxxxxxx
/s/Xxxx X. Xxxxxxxx
-------------------
Xxxx X. Xxxxxxxx
/s/Xxxxxx X. Xxxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxxx
/s/Xxxxxx Xxxx Xxxxxxxxxx
-------------------------
Xxxxxx Xxxx Xxxxxxxxxx
Grantors and Trustees
/s/Xxxx X. Xxxxxxx
------------------
Xxxx X. Xxxxxxx
Trustee
-16-
Schedule "A"
Contributor Property Contributed to trust
----------- -----------------------------
Xxxxxx X. Xxxxxxxx 175,000 shs., The New York Times Company, Class A common
92,351 shs., The New York Times Company, Class B common
Xxxx X. Xxxxxxxx 175,000 shs., The New York Times Company, Class A common
92,351 shs., The New York Times Company, Class B common
Xxxxxx X. Xxxxxxxxxx 175,000 shs., The New York Times Company, Class A common
92,351 shs., The New York Times Company, Class B common
Xxxxxx Xxxx Xxxxxxxxxx 175,000 shs., The New York Times Company, Class A common
92,352 shs., The New York Times Company, Class B common
[Note: Acknowledgments of execution which follow in the original are omitted
from this filing.]
-17-
