New York Times Co 8-K, filed Jan 7, 2022

About this 8-K

Items reported

New York Times Co (NYT)

8-K 2022-01-07 For: 2022-01-06

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Added on April 04, 2026

New York Times Co filed this 8-K on January 7, 2022, reporting on events of January 6, 2022.

THE NEW YORK TIMES COMPANY

Date: January 7, 2022

/s/ Diane Brayton

Diane Brayton

Executive Vice President,

General Counsel and Secretary

Item 1.01: Entered into a material agreement
Item 7.01: Regulation FD disclosure
Item 9.01: Financial statements and exhibits

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Exhibit Number		Description

Exhibit 2.1*		Agreement and Plan of Merger, dated as of January 6, 2022 by and among (i) The Athletic Media Company, a Delaware corporation (“The Athletic”), (ii) The New York Times Company, a New York corporation, (iii) Subscription Holding Co., a Delaware corporation and a wholly owned subsidiary of The New York Times Company and (iv) Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as representative of the Securityholders of The Athletic (as set forth in the Agreement)

Exhibit 99.1		The New York Times Company Press Release, dated January 6, 2022

Exhibit 104		Cover Page Interactive Data File (embedded within the Inline XBRL document)


Page
ARTICLE I THE MERGER		2
1.01	The Merger	2
1.02	Filing of Merger Certificate; Effective Time	3
1.03	Effect of the Merger; Further Assurances	3
1.04	Conversion of Shares; Treatment of Options and Warrants	4
1.05	Pre-Closing Merger Consideration Estimate	5
1.06	Closing Payments	7
1.07	Surrender of Certificates; Paying Agent	8
1.08	Post-Closing Merger Consideration Adjustment	10
1.09	Appraisal Rights	13
1.10	Withholding Rights	13

ARTICLE II CLOSING		14
2.01	The Closing	14
2.02	Certain Closing Deliveries	14

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY		15
3.01	Organization and Power	15
3.02	Authorization; No Breach	16
3.03	Governmental Consents	17
3.04	Capitalization	17
3.05	Subsidiaries	18
3.06	Financial Statements; No Undisclosed Liabilities	19
3.07	Absence of Certain Developments	20
3.08	Litigation; No Orders	22
3.09	Permits; Compliance with Laws	23
3.10	Taxes	24
3.11	Contracts	28
3.12	Accounts Receivable	30
3.13	Real Property; Assets	30
3.14	Intellectual Property	30
3.15	Data Privacy and Security	33
3.16	Employees	35


Page
3.17	Employee Benefit Plans	37
3.18	Insurance	40
3.19	Environmental Matters	41
3.20	Affiliated Transactions	41
3.21	Broker Fees	42
3.22	Key Suppliers	42
3.23	Books and Records	42
3.24	Competition Act	42
3.25	Investment Canada Act	42
3.26	CASL	43
3.27	Corrupt Practices	44
3.28	No Additional Representations or Warranties	44

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER AND MERGER SUB		44
4.01	Organization and Power	44
4.02	Authorization; No Breach	45
4.03	Governmental Bodies; Consents	45
4.04	Litigation	45
4.05	Broker Fees	46
4.06	Investment Representation; Investigation	46
4.07	Board Approvals	46
4.08	Vote Required	46
4.09	Financial Capability	46
4.10	Operation of Merger Sub	47
4.11	No Additional Representations or Warranties	47

ARTICLE V COVENANTS OF THE COMPANY		47
5.01	Conduct of the Company	47
5.02	Access to Books and Records	51
5.03	Regulatory Filings	52
5.04	Notification	52
5.05	Exclusivity	52


Page
5.06	Reasonable Best Efforts	52
5.07	Resignations	53
5.08	280G Cooperation	53
5.09	Repayment of Indebtedness	53

ARTICLE VI COVENANTS OF BUYER AND MERGER SUB		53
6.01	Access to Books and Records	53
6.02	Regulatory Filings	54
6.03	Notification	54
6.04	Reasonable Best Efforts	55
6.05	Director and Officer Liability and Indemnification	55
6.06	Tax Matters	57
6.07	R&W Insurance Policy	59
6.08	Gaming Approvals	59

ARTICLE VII CONDITIONS TO CLOSING		59
7.01	Conditions to All Parties’ Obligations	59
7.02	Conditions to Buyer’s and Merger Sub’s Obligations	60
7.03	Conditions to the Company’s Obligations	61
7.04	Waiver of Conditions	61

ARTICLE VIII TERMINATION		61
8.01	Termination	61
8.02	Effect of Termination	62

ARTICLE IX ADDITIONAL AGREEMENTS AND COVENANTS		63
9.01	Further Assurances	63
9.02	Employees and Employee Benefits	63
9.03	Antitrust Notification	64
9.04	Certain Consents	66
9.05	Section 262 Notices	66

ARTICLE X INDEMNIFICATION		67
10.01	Survival	67
10.02	Indemnification by the Securityholders	67
10.03	Indemnification by Buyer	68
10.04	Indemnification Procedures	68


Page
10.05	Other Matters Relating to Indemnification	71
10.06	Release from Escrow	72
10.07	Exclusive Remedy	73

ARTICLE XI MISCELLANEOUS		73
11.01	Acknowledgment by the Buyer Parties	73
11.02	Provision Respecting Representation of Company	75
11.03	Press Releases and Communications	76
11.04	Expenses	76
11.05	Notices	77
11.06	Assignment	78
11.07	Amendment and Waiver	78
11.08	Third Party Beneficiaries	79
11.09	Non-Recourse	79
11.10	Severability	79
11.11	Construction	79
11.12	Disclosure Schedules	79
11.13	Complete Agreement	80
11.14	Conflict Between Transaction Documents	80
11.15	Specific Performance	80
11.16	Jurisdiction and Exclusive Venue	81
11.17	Governing Law; Waiver of Jury Trial	81
11.18	Securityholders’ Representative	82
11.19	No Right of Set-Off	85
11.20	Counterparts	85

ARTICLE XII DEFINITIONS		86
12.01	Certain Definitions	86
12.02	Defined Terms	101
12.03	Interpretation	104


Exhibit A		Form of Certificate of Merger
Exhibit B		Accounting Principles and Net Working Capital Sample Calculation
Exhibit C		Excluded Deferred Revenue
Exhibit D		Escrow Agreement
Exhibit E		Paying Agent Agreement
Exhibit F		Form of Letter of Transmittal
Exhibit G		Form of Company Closing Certificate
Exhibit H		Form of Buyer Closing Certificate
Exhibit I		Form of Option Cancellation Agreement
Exhibit J		Form of Warrant Cancellation Agreement


Accounting Principles			86
Acquisition Transaction			52
Adjustment Amount			12
Adjustment Calculation Time			86
Adjustment Escrow Account			8
Adjustment Escrow Deposit Amount			86
Adjustment Escrow Funds			86
Advisors			86
Advisory Group			83
Affiliate			86
Aggregate Fully-Diluted Shares			86
Aggregate Non-Converting Series D Liquidation Preference			86
Aggregate Option Exercise Price			86
Agreement			1
Antitrust Approvals			16
Antitrust Laws			87
ARP			40
Audited Financial Statements			19
Base Merger Consideration			87
Basket			71
BCL			87
Business Day			87
Buyer			1


Buyer Group			87
Buyer Indemnified Parties			67
Buyer Indemnified Party			87
Buyer Parties			87
Buyer Plan			63
Canadian Optionholder			58
Capital Stock			87
CARES Act			87
Carta			8
Cash			87
CASL			87
CCC			87
CEM			88
Certificate			88
Certificate of Merger			3
Charter			88
Claim Notice			68
Closing			14
Closing Capital Stock Merger Consideration			88
Closing Cash			88
Closing Common Stock Payment			6
Closing Date			14
Closing Indebtedness			88


Closing Net Working Capital			88
Closing Non-Converting Series D Preferred Stock Payment			6
Closing Option Payment			6
Closing Option Per Share Merger Consideration			88
Closing Per Participating Share Merger Consideration			88
Closing Preferred Stock Payment			6
Closing Statement			10
Closing Warrant Payment			6
Code			88
Common Stock			88
Company			1
Company Board			1
Company Equity Plan			88
Company Group			75
Company Indemnified Parties			68
Company Intellectual Property			88
Company Licensing Parties			89
Company Parties			89
Company Service Provider			89
Company Unaudited Financial Statements			19
Company’s Knowledge			93
Competition Act			89
Confidentiality Agreement			89
Constituent Corporations			1
Contracts			89
control			86
COVID-19			89
COVID-19 Measures			89
CRTC			89
Data Protection Requirements			89
Dataroom			73
Designated States			90
DGCL			90
Disclosure Schedules			15
Dispute Period			68
Dissenting Shares			13
DOJ			64
Effective Time			3
Employee Option			90
Employee Optionholders			90
End Date			62
Environmental Laws			90
ERISA			90


ERISA Affiliate			90
Escrow Accounts			90
Escrow Agent			90
Escrow Agreement			8
Estimated Closing Balance Sheet			5
Estimated Closing Cash			5
Estimated Closing Indebtedness			5
Estimated Closing Net Working Capital			5
Estimated Closing Statement			5
Estimated Merger Consideration			90
Estimated Transaction Expenses			5
Excess Amount			12
Excluded Deferred Revenue			90
Export Control Laws			91
Final Merger Consideration			91
Financial Statements			19
Firm			11
Foreign Plan			39
Foreign Plans			39
Fraud			91
FTC			64
Fundamental Representations			91
GAAP			91
Gaming Approvals			91
Gaming Authorities			91
Gaming Law			91
Gaming-Related Business Activities			91
Government Closure			64
Governmental Body			91
Gunderson			75
Hazardous Substance			91
HSR Act			92
HSR Approval			59
Indebtedness			92
Indemnification Cap			71
Indemnification Escrow Account			8
Indemnification Escrow Deposit Amount			92
Indemnification Escrow Funds			92
Indemnification Obligation			56
Indemnified Party			93
Indemnified Persons			55
Indemnifying Party			68
Indemnity Notice			70
Intellectual Property			93
Intellectual Property Agreements			93
Interim Period			93


Investment Canada Act			93
Key Employees			93
Key Supplier			42
Knowledge of the Company			93
Latest Balance Sheet			19
Law			93
Leased Real Property			30
Leases			30
Letter of Transmittal			9
Liabilities			19
Liens			94
Liquidation Preference			1
Lookback Date			94
Loss			94
Majority Holders			82
Marketing and Subscription Laws			94
Material Adverse Effect			94
Merger			1
Merger Consideration			95
Merger Sub			1
Net Working Capital			95
Non-Compete Agreements			95
Non-Converting Series D Preferred Stock			95
Non-Employee Option			95
Non-Employee Optionholders			95
Notice of Disagreement			10
Offer Letters			96
Off-The-Shelf Software			96
Open Source Software			33
Option Cancellation Agreement			5
Option Consideration			96
Optionholders			96
Options			96
Order			96
Organizational Documents			96
Other Indemnitors			56
Outstanding Option			5
Outstanding Warrant			5
Owned Intellectual Property			96
Parties			1
Party			1
Paying Agent			96
Paying Agent Agreement			8
Payment Card Data			96
Payment Card Industry Rules			96
Payoff Letters			53


Payor			14
Per Share Non-Converting Series D Consideration			96
Permits			23
Permitted Liens			96
Person			97
Personal Data			97
Plan			37
Pre-Closing Tax Period			97
Preferred Stock			97
Prior Acquisitions			19
Pro Rata Portion			97
Proceeding			98
Projections			74
Protected Seller Communications			75
R&W Insurance Policy			59
Registered Intellectual Property			98
Release Date			98
Remaining Adjustment Escrow Funds			12
Remaining Stockholder			66
Representative Expenses			84
Representative Group			83
Representative Holdback Amount			98
Representatives			98
Restricted Cash			98
Retained Employees			63
Second Request			65
Securities Act			46
Securityholders			98
Securityholders’ Representative			1
Securityholders’ Representative Engagement Agreement			83
Series A Preferred Stock			98
Series A-1 Preferred Stock			98
Series A-2 Preferred Stock			98
Series A-3 Preferred Stock			98
Series A-4 Preferred Stock			98
Series A-5 Preferred Stock			99
Series B Preferred Stock			99
Series C Preferred Stock			99
Series C-1 Preferred Stock			99
Series D Preferred Stock			99
Settlement Date			12
Software			93
Specific Indemnity Cap			71
Specific Indemnity Escrow Account			8


Specific Indemnity Escrow Deposit Amount			99
Specific Indemnity Escrow Funds			99
Specified Tax Exposures			99
Specified Tax Liability Amount			99
Stock Consideration			99
Stockholder Resolutions			1
Stockholders			99
Straddle Period			97
Subsidiary			99
Surviving Corporation			3
Target Net Working Capital			99
Tax			100
Tax Act			100
Tax Contest			58
Tax Returns			100


Taxes			100
Third Party Intellectual Property			100
Third-Party Claim			68
Tracking Data			100
Transaction Approval			1
Transaction Documents			80
Transaction Expenses			100
Transactions			101
Transfer Taxes			57
WARN Act			20
Warrant Cancellation Agreement			5
Warrant Common Stock			2
Warrant Consideration			101
Warrant Holders			101
Warrants			2
willful breach			101



SHAREHOLDER REPRESENTATIVE SERVICES LLC, solely in its capacity as the Securityholders’ Representative

By:


Name	Title	Signature	Contact Number

Casey McTigue	Executive Director		415-363-6081

Michelle Kirkpatrick	Senior Director		720-799-8614

Lon LeClair	President		303-222-2078

Paul Koenig	Managing Director		303-957-2850


SHAREHOLDER REPRESENTATIVE SERVICES LLC,
solely in its capacity as the Representative


Available Services	Description Fees (USD)
Payments Administration
Setup Fee	Payments Agreement negotiation, LOT review, shareholder data table import, Clearinghouse configuration, pre-populate documents, process KYC and payments account opening, VIP communication, access to client service team.	$10,000
Closing Payment	Process closing payment instructions and validation, tax form validation, remittance notice, and year-end 1099-B.	$75 per holder
Post-Closing Payments	Process subsequent payment, payment instruction maintenance, remittance notice, and electronic year-end 1099-B, if applicable. electronic year-end 1099-B, if applicable.	$2,500 lot charge
Foreign Exchange	Non-US holders can elect to receive their proceeds in their local currencies (150 currencies supported)	Included
Additional Stockholder Documents (optional)*	Preparation and electronic distribution, collection, review and acceptance of additional stockholder documents (example: joinder, consent, 280G, etc.).	$30 per signature document per holder * $20 per view only document per holder *


*Optional Services* *(if applicable or requested)*	*Description*	*Fees (USD)*
*Offline LOT Review and Acceptance*	Distribute hard copy LOT to Securityholders if requested, receive responses, review documentation for completeness.	*$60 per Securityholder*

*Additional Tax Reporting*	Additional fee for preparation and distribution of any (i) non-electronic IRS Form 1099-B, (ii) IRS Form 1042-S to Foreign Securityholders, or (iii) any other IRS tax forms pursuant to Exhibit C of the Payments Administration Agreement.	*$2,500 setup +* *$50 per tax form per Securityholder*


		IF the entity/person on line 1 is a(n) . . .		THEN check the box for . . .
		• Corporation		Corporation
		• Individual • Sole proprietorship, or • Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes.		Individual/sole proprietor or single-member LLC
		• LLC treated as a partnership for U.S. federal tax purposes, • LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or • LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes.		Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation)
		• Partnership		Partnership
		• Trust/estate		Trust/estate


IF the payment is for . . .		THEN the payment is exempt for . . .
Interest and dividend payments		All exempt payees except for 7
Broker transactions		Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012.
Barter exchange transactions and patronage dividends		Exempt payees 1 through 4
Payments over $600 required to be reported and direct sales over $5,000¹		Generally, exempt payees 1 through 5²
Payments made in settlement of payment card or third party network transactions		Exempt payees 1 through 4



For this type of account:			Give name and SSN of:
	1.	Individual	The individual

	2.	Two or more individuals (joint account) other than an account maintained by an FFI	The actual owner of the account or, if combined funds, the first individual on the account¹

	3.	Two or more U.S. persons (joint account maintained by an FFI)	Each holder of the account

	4.	Custodialaccount of a minor (Uniform Gift to Minors Act)	The minor²

	5.	a. The usual revocable savings trust (grantor is also trustee)	The grantor-trustee¹
		b. So-called trust account that is not a legal or valid trust under state law	The actual owner¹

	6.	Sole proprietorship or disregarded entity owned by an individual	The owner³

	7.	Grantortrust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A))	The grantor*

For this type of account:			Give name and EIN of:
	8.	Disregarded entity not owned by an individual	The owner

	9.	A valid trust, estate, or pension trust	Legal entity⁴

	10.	Corporation or LLC electing corporate status on Form 8832 or Form 2553	The corporation

	11.	Association, club, religious, charitable, educational, or other tax-exempt organization	The organization

	12.	Partnership or multi-member LLC	The partnership

	13.	A broker or registered nominee	The broker or nominee


BUYER:

THE NEW YORK TIMES COMPANY

By:
		Name:
		Title:

MERGER SUB:

SUBSCRIPTION HOLDING CO.

By:
		Name:
		Title:


Very truly yours,

The Athletic Media Company

By:
Name:
Title:


Closing Options	Grant Date	Number of Shares of Common Stock	Exercise Price Per Share	Estimated Closing Option Payment Applicable to Such Closing Options(1)(2)(3)


Closing Warrants	Grant Date	Number of Shares of Common Stock	Warrant Price	Estimated Closing Warrant Payment Applicable to Such Closing Warrants(1)(2)(3)