EXHIBIT 10.4


 


THE
NEW YORK TIMES COMPANY


 


SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN


 


 


Effective January 1,
1983


Amended
and Restated Effective February 19, 1987

Amended May 5, 1989


Amended
and Restated Effective January 1, 1993


Amended
and Restated Effective January 1, 2004


Amended and Restated Effective January 1, 2008


 

















 


THE
NEW YORK TIMES COMPANY


 


SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN


 


PURPOSE


 


The
Supplemental Executive Retirement Plan is designed to provide a benefit which,
when added to the retirement income provided under other Company plans, will
ensure the payment of a competitive level of retirement income to key senior
executives of The New York Times Company, thereby providing an additional
incentive for assuring orderly management succession. Eligibility for
participation in the Plan shall be limited to executives designated by the SERP
Committee. This Plan became effective on January 1, 1983, and shall be
effective as to each Participant on the date he or she is designated as such
hereunder. The Plan, as previously amended, is hereby amended and restated
effective as of January 1, 2008.


 


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SECTION I


 


DEFINITIONS


 


1.1.             “Basic Plan” means the qualified defined benefit pension plan to which the Company
makes or has made contributions on behalf of a designated Participant
(including, but not limited to The New York Times Companies Pension Plan, The
Guild-Times Pension Plan and The Retirement Annuity Plan for Craft Employees of
The New York Times Company (non-contributory portion)).


 


1.2.             “Basic Plan Benefit” means the amount of benefit payable to a
Participant under any Basic Plan, assuming immediate commencement of payments
as of the date of Retirement, with benefits payable in the form of a straight life
annuity.


 


1.3              “Code” means the Internal Revenue Code of
1986, as amended.


 


1.4              “Child” means a natural or legally adopted
child of a Participant and his/her Surviving Spouse.


 


1.5              “Company” means The New York Times Company and its subsidiaries and affiliates.


 


1.6              “Dependent Child(ren)” means any unmarried
Child(ren) who reside with a Participant or a Surviving Spouse at the time of
Participant’s or the Surviving Spouse’s death, as applicable.


 


1.7              “Final Average Earnings” means effective April 1, 2000, the
average of the highest consecutive sixty (60) months of Earnings out of the
last one hundred twenty (120) months preceding the date on which the
Participant retires multiplied by twelve (12). “Earnings” for any calendar year
shall include the Participant’s base salary,
annual cash bonuses and sales commissions paid during such


 


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year,
and shall exclude any other compensation (such as deferred incentive
compensation under the Long-Term Incentive Plan, retirement units and
performance awards (other than annual cash bonuses) under the Executive
Incentive Award Plan, the 1991 Executive Stock Incentive Plan, 1991 Executive
Cash Bonus Plan and any successor plans and stock options under the 1974
Incentive Stock Option Plan, the Employee Stock Purchase Plan, the 1991
Executive Stock Incentive Plan and any successor plans) and any contributions
to or benefits under this Plan or any other pension, profit-sharing, stock
bonus or other plan of deferred compensation; except that amounts deferred
under a non-qualified deferred compensation plan and/or amounts which the
Company contributes to a plan on behalf of the Participant pursuant to a salary
reduction agreement which are not includible in the Participant’s gross income
under sections 125, 402(e)(3), 492(h) or 403(b) of the Code shall be included.


 


1.8              “Joint and Survivor Annuity” means a reduced
annuity payable for the life of the Participant followed after the Participant’s
death by an annuity payable for the life of the Participant’s Surviving Spouse
in an amount equal to either 25%, 50%, 75% or 100% (as elected by the
Participant prior to Retirement) of the reduced annuity that was payable to the
Participant; provided, however, that if no election is made, the amount payable
to the Participant’s surviving spouse under the Joint and Survivor Annuity
shall be 50% of the reduced annuity that was payable to the Participant. The
combined annuities payable to the Participant and the Surviving Spouse under
the Joint and Survivor Annuity shall be the actuarial equivalent, using the
actuarial factors specified in the Basic Plan, of the annual Retirement benefit
determined under Section 3.1.


 


1.9              “Key Executive Position” means a position so
designated by the SERP Committee.


 


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1.10            “Participant” means an individual holding a
Key Executive Position who has been designated as a Participant by the SERP
Committee. An executive shall become a Participant in the Plan as of the date
he or she is individually selected by, and specifically named by the SERP
Committee for inclusion in the Plan. If a Participant is reclassified to a
responsibility that is not a Key Executive Position, the Participant’s
continuing eligibility will be subject to the approval of the SERP Committee.


 


1.11            “Plan” means The New York Times Company
Supplemental Executive Retirement Plan.


 


1.12            “Retirement” or “Retire” means a Participant’s
“separation from service” from the Company within the meaning of Code section
409A and Treasury Regulation section 1.409A-1(h) or subsequent IRS guidance
under Code section 409A on one of the Retirement Dates specified in Section
2.1.


 


1.13            “Section 409A Specified Employee” means a “specified
employee” within the meaning of section 409A(a)(2)(B)(i) of the Code, as
determined by the Compensation Committee of the Company’s Board of Directors or
its delegate in accordance with the provisions of sections 416(i) and 409A of
the Code and the regulations issued thereunder.


 


1.14            “SERP Committee” or “Committee” means a committee consisting of the Chairman
and the President of The New York Times Company.


 


1.15            “Service” means the Participant’s service for
vesting purposes as defined in the Basic Plan, up to a maximum of twenty
(20) years, and shall include any
additional service credit in specific situations as may be authorized by the
Committee. Additionally, service shall include any credits for service pursuant
to a buyout plan or agreement accepted by a Participant.


 


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1.16            “Surviving Spouse” means the person to whom a
Participant is married on the date on which benefits commence (or at his death,
if earlier).


 


1.17            The masculine gender, where appearing in the
Plan, will be deemed to include the feminine gender, and the singular may
include the plural, unless the context clearly indicates the contrary.


 


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SECTION II


 


ELIGIBILITY FOR BENEFITS


 


2.1.        Each
Participant with ten (10) or
more years of Service shall be eligible to Retire and receive a benefit under
this Plan beginning on one of the following Retirement Dates:


 


(a)  “Normal
Retirement Date,” which is the first day of the month following the month in
which the Participant reaches age sixty-five (65).


 


(b)  “Early
Retirement Date,” which is the first day of any month following (i) the
Participant’s sixtieth (60th) birthday, or (ii) if the Committee consents to
the Participant’s early retirement, the Participant’s fifty-fifth (55th) birthday.


 


(c)  “Postponed
Retirement Date,” which in the case of a Participant who terminates his
employment with the Company after his Normal Retirement Date, is the first day
of the month next following the month in which the Participant terminates
employment with the Company.


 


2.2.        For
purposes of determining a Participant’s age under this Plan and Retirement
Dates thereunder, the age of a Participant shall include any age credit
pursuant to a buyout plan or agreement accepted by a Participant.


 


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SECTION III


 


AMOUNT AND FORM OF RETIREMENT BENEFIT


 


3.1.        The
annual Retirement benefit payable to a Participant who Retires on his
Normal Retirement Date shall equal the excess, if any, of (a) fifty percent
(50)% of the Final Average Earnings (prorated at two and one-half percent
(2.5%) times Final Average Earnings times years of Service for Service of less
than twenty (20) years) over (b) the sum of the Basic Plan Benefits payable as
of the Participant’s Normal Retirement Date.


 


3.2.        The
annual Retirement benefit payable to a Participant who Retires on an Early
Retirement Date shall equal the benefit determined using the formula in Section
3.1, reduced by four percent (4%) for each year (one-third (1/3) of one
percent (1%) for each month) benefits commenced prior to age sixty (60), less
the sum of the annual Basic Plan Benefits payable as of the Participant’s Early
Retirement Date.


 


3.3.        The
annual Retirement benefit payable to a Participant who Retires on a Postponed
Retirement Date shall be equal to the benefit determined in accordance with
Section 3.1 based on the Participant’s Service and Final Average Earnings as of
the Participant’s Normal Retirement Date.


 


3.4.       (a)    Prior
to January 1, 2008, Retirement benefits payable under this Plan shall be
payable at the same time and in the same manner as benefits under the Basic
Plan (except the Level Income options), unless otherwise determined by the
Company. Retirement benefits under this Plan for a Participant who elects a
Level Income Option under the Basic Plan shall be paid in the form of an
annuity for the life of the Participant. Once in pay status, a Participant may
not change the form of benefit payable under the Plan.


 


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(b)        Effective January 1, 2008, Retirement benefits shall, subject to
Section 3.5,  be paid in the form of an
annuity for the life of the Participant if the Participant is not married on
his date of Retirement or a Joint and Survivor Annuity if the Participant is
married on his date of Retirement.


 


3.5        Notwithstanding Section 3.4 and subject to
Section 4.2(c), if the lump sum value of benefits under this Plan is less than
or equal to the applicable dollar amount under section 402(g)(1)(B) of the
Code, the Company shall, subject to Section 4.2(c), pay such benefit in a
single lump sum to the Participant on the first business day of the month
following the Participant’s date of Retirement.


 


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SECTION IV


 


PAYMENT OF RETIREMENT
BENEFITS


 


4.1.       (a)    A
Participant with ten (10) or more years of Service who is age sixty (60) or
older, may Retire under the Plan by giving a minimum of six months’ notice to
the Committee (unless such notice is waived by the Committee).


 


(b)        A Participant with ten (10)
or more years of Service who is not eligible for early Retirement under Section
4.1(a) may request Retirement under this Plan as of the first of any month
between the ages of fifty-five (55) and sixty (60), but such request shall be subject to the
approval of the Committee, which may approve or deny the request based on the
needs of the Company. If the request is denied, the SERP Committee and the
Participant will defer such Retirement under this Plan for a mutually agreed
upon period of time. This will not preclude the right of the Participant to
retire under the Basic Plan, in which case the Participant will not be entitled
to any benefit hereunder.


 


4.2.        (a)    Prior to January 1, 2008, Retirement
benefits payable in accordance with Section III will commence on the
Participant’s date of Retirement under Section 2.1. Plan payments must begin
immediately upon Retirement and may not be deferred. Benefits will continue to
be paid on the first day of each succeeding month. The last payment will be on
the first day of the month in which the retired Participant dies unless an
optional form of benefit was elected in accordance with Section 3.4(a).


 


(b)         Effective January 1. 2008, subject to paragraph (c) of this Section
4.2, Retirement benefits payable under this Plan will commence on the first
business day of the month following the Participant’s date of Retirement.


 


(c)        Notwithstanding Section 4.2(b), effective January 1, 2008, in the event
that a Participant is a Section 409A Specified Employee as of his date of
Retirement, the


 


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Company
shall withhold and accumulate the first six monthly annuity payments (or in the
case of a lump sum cash out payment under Section 3.5, shall withhold the lump
sum payment) of the Participant’s Retirement benefit until the first day of the
seventh month following the Participant’s date of Retirement (the “Delayed
Payment Date”). The six accumulated annuity payments (or lump sum cash out
payment) shall be paid to the Participant in a single lump sum payment on the
Delayed Payment Date, with interest for the period of delay, compounded
monthly, equal to the prime or base lending rate in effect as of the date the
payment would otherwise have been made. Payment of the withheld and accumulated
annuity payments (with interest as calculated above) shall be treated as made
on the Delayed Payment Date if the payment is made on such date or on a later
date within the same calendar year as the Delayed Payment Date, or, if later,
by the 15th day of the third month following the Delayed Payment
Date, provided that the Participant may not, directly or indirectly, designate
the year of payment. Notwithstanding the foregoing, if the Participant dies
prior to the Delayed Payment Date, any payments that have been withheld and
accumulated in accordance with this paragraph shall be paid to the Participant’s
beneficiary under the Basic Plan in a single lump sum payment  within 90 days after the Participant’s death,
with interest as calculated above.


 


4.3          Any benefit payments under
the Plan shall be net of any applicable withholding tax under federal or state
law.


 


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SECTION V


 


PRE-RETIREMENT DEATH BENEFITS


 


5.1.            (a)     If a Participant
dies while actively employed by the Company or while receiving Long-Term
Disability benefits from the Company and (i) a Surviving Spouse is eligible to
receive benefits under the provisions of a Basic Plan and (ii) the Participant
had ten (10) or more years of
Service and (iii) the Participant’s age plus Service at the time of death equaled or exceeded sixty-five (65), the Surviving Spouse shall be entitled to
receive an annual benefit commencing as of the month following the month in
which the Company receives satisfactory documentation of the Participant’s
death in an amount equal to fifty percent (50%) of the amount of
the Participant’s accrued benefit as of his date of death determined in
accordance with Section III, in which case the sum of the Basic Plan Benefits
actually payable as of each respective benefit payment date hereunder shall be
substituted for the sum of the Basic Plan Benefits payable as of the
Participant’s Normal Retirement Date. The reduction described in Section 3.2 for
the early payment of benefits shall not apply to this benefit.


 


(b)      If there is no Surviving Spouse, but there are Dependent Children under
age twenty-three (23), or if the
Surviving Spouse dies while there are Dependent Children under age twenty-three
(23), the Surviving Spouse’s benefits
will be shared equally by each such Dependent Child until he or she reaches the
age of twenty-three (23).


 


5.2.        The
Surviving Spouse’s benefit will be payable monthly, and will commence within 90
days after the Participant’s death, provided, however, that the first monthly
payment shall include any monthly payments that would have been made had
benefits commenced on the first day of the month following the date of the
Participant’s death. The last


 


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payment
will be made on the first day of the month in which the Surviving Spouse dies,
or, where Section 5.1(b) applies, the date a Dependent Child reaches age twenty-three
(23) or dies.


 


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SECTION VI


 


FORFEITURE OF BENEFIT


 


Notwithstanding
any other provision of this Plan, if at any time during which a Participant is
entitled to receive payments under the Plan, the Participant engages in any
business or practice or becomes employed in any position, which the SERP
Committee, in its sole discretion, deems to be in competition with the Company
or any of its business or interests, or which is deemed by the SERP Committee,
in its sole discretion, to be otherwise prejudicial to any of its interests, or
such Participant fails to make himself available to the Company for reasonable
consultation and other services, the SERP Committee, in its sole discretion,
may cause the Participant’s entire interest in benefits otherwise payable under
the Plan to be forfeited and discontinued, or may cause the Participant’s
payments of benefits under the Plan to be limited or suspended until such
Participant is no longer engaging in the conduct above or for such other period
the SERP Committee finds advisable under the circumstances, or may take any
other action the SERP Committee, in its sole discretion, deems appropriate. The
decision of the SERP Committee shall be final. The omission or failure of the
SERP Committee to exercise this right at any time shall not be deemed a waiver
of its right to exercise such right in the future. The exercise of discretion
will not create a precedent in any future cases.


 


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SECTION VII


 


MISCELLANEOUS


 


7.1         This Plan shall be binding on the
Company and its successors and assigns. In furtherance of the foregoing, the
Company may assign its obligations to make payments under this Plan to any
successor to all or substantially all of the Company’s business.


 


7.2.        The SERP Committee may, in its sole discretion, terminate, suspend or
amend this Plan at any time or from time to time, in whole or in part. However,
no amendment or suspension of the Plan will affect a retired Participant’s
right or the right of a Surviving Spouse or other beneficiary to continue to
receive a benefit in accordance with this Plan as in effect on the date such
Participant commenced to receive a benefit under this Plan.


 


7.3.        Nothing contained herein will confer upon any Participant or other
employee the right to be retained in the service of the Company nor will it
interfere with the right of the Company to discharge or otherwise deal with
Participants and other employees without regard to the existence of this Plan.


 


7.4.        This Plan is intended to meet the Employee Retirement Income Security
Act’s definition of “an unfunded plan for management or other highly
compensated individuals” and, as such, the Company will make Plan benefit
payments solely on a current disbursement basis out of general assets of the Company.


 


7.5         This
Plan is intended to comply with the applicable requirements of section 409A of
the Code with respect to the accrual and payment of benefits hereunder. This
Plan shall be interpreted and administered to the extent possible in a manner
consistent with the foregoing statement of intent.


 


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7.6.        To the maximum extent permitted by law, no benefit under this Plan will
be assignable or subject in any manner to alienation, sale, transfer, claims of
creditors, pledge, attachment or encumbrances of any kind.


 


7.7.        The Plan shall be administered by the SERP Committee. The SERP
Committee may adopt rules and regulations to assist it in the administration of
the Plan and may appoint and/or employ individuals to assist it in the
administration of the Plan and any other agents it seems advisable, including
legal and actuarial counsel. In addition, the SERP Committee may, it is
discretion, delegate any of its authority, duties and responsibilities
hereunder to any other individual or individuals.


 


7.8.        This Plan is established under and will be construed according to the
laws of the State of New York, except to the extent such laws are preempted by
ERISA.


 


7.9.        Claims. If any Participant, beneficiary or other
properly interested party is in disagreement with any determination that has
been made under the Plan, a claim may be presented, but only in accordance with
the procedures set forth herein.


 


(a)          Original Claim. Any Participant, beneficiary or other
properly interested party may, if he/she so desires, file with the SERP
Committee a written claim for benefits or a determination under the Plan. Within
ninety (90) days after the filing of such a claim, the SERP Committee shall
notify the claimant in writing whether the claim is upheld or denied in whole
or in part or shall furnish the claimant a written notice describing specific
special circumstances requiring a specified amount of additional time (but not
more than one hundred eighty (180) days from the date the claim was filed) to
reach a decision in the claim. If the claim is denied in whole or in part, the
Committee shall state in writing:


 


(i)            the reasons for the denial;


 


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(ii)           the
references to the pertinent provisions of this Plan on which the denial is
based;


 


(iii)          a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such material or
information is necessary; and


 


(iv)          an explanation of the claims review procedure set forth in this
section.


 


(b)          Claim Review Procedure. Within sixty (60) days after receipt of
notice that a claim has been denied in whole or in part, the claimant may file
with the SERP Committee a written request for a review and may, in conjunction
therewith, submit written issues and comments. Within sixty (60) days after the
filing of such a request for review, the SERP Committee shall notify the
claimant in writing whether, upon review, the claim was upheld or denied in
whole or in part or shall furnish the claimant a written notice describing
specific special circumstances requiring a specified amount of additional time
(but not more than one hundred twenty (120) days from the date the request for
review was filed) to reach a decision on the request for review.


 


(c)          General Rules.


 


(i)            No inquiry or question shall be deemed to be
a claim or a request for a review of a denied claim unless made in accordance
with the foregoing claims procedure. The SERP Committee may require that any
claim for benefits and any request for a review of denied claim be filed on
forms to be furnished by the SERP Committee upon request.


 


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(ii)           All decisions on claims and on requests for a review of denied claims
shall be made by the SERP Committee. The decisions of the SERP Committee shall
be final, binding and conclusive upon all persons.


 


(iii)          The decision of the SERP Committee on a claim and on a request for a
review of a denied claim shall be served on the claimant in writing. If a
decision or notice is not received by a claimant within the time specified, the
claim or request for a review of a denied claim shall be deemed to have been
denied.


 


(iv)          Prior
to filing a claim or a request for a review of a denied claim, the claimant or
the claimant’s representative shall have a reasonable opportunity to review a
copy of this Plan and all other pertinent documents in the possession of the
Company and the SERP Committee.


 


(v)           The individuals serving on the SERP Committee shall, except as
prohibited by law, be indemnified and held harmless by the employer from any
and all liabilities, costs, and expenses (including legal fees), to the extent
not covered by liability insurance arising out of any action taken by any
individual of the SERP Committee with respect to this Plan, unless such
liability arises from the individual’s claim for such individual’s own benefit,
the proven gross negligence, bad faith, or (if the individual had reasonable
cause to believe such conduct was unlawful) the criminal conduct of such
individual. This indemnification shall continue as to an individual who has
ceased to be a member of the SERP Committee for the employer and shall enure to
the benefit of the heirs, executors and administrators of such an individual.


 


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APPENDIX
I


 


Everything
in this Plan to the contrary notwithstanding, the following Participants shall
have benefits under this Plan as provided in their respective agreements with
the Company as follows:


 


1.     Lance R. Primis: as per his agreement with the Company dated
December 4, 1996.


 


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