Joint Venture Contract Template

EXHIBIT 10.4

 

JOINT VENTURE AGREEMENT

 

AMONG

 

PULITZER INC.,

 

PULITZER TECHNOLOGIES, INC.,

 

THE HERALD COMPANY, INC.

 

AND

 

ST. LOUIS POST-DISPATCH LLC

 

DATED AS OF May 1, 2000

TABLE OF CONTENTS

 

JOINT VENTURE AGREEMENT

 

This JOINT VENTURE AGREEMENT (the “Agreement”) dated as of May 1, 2000, among PULITZER INC., a Delaware corporation (“Pulitzer”), PULITZER TECHNOLOGIES, INC., a Delaware corporation (“PTI” and together with Pulitzer, the “Pulitzer Parties”), THE HERALD COMPANY, INC. a New York corporation (“Herald”), and ST. LOUIS POST-DISPATCH LLC, a Delaware limited liability company (the “Company”).

 

PRELIMINARY STATEMENTS

 

WHEREAS, on March 1, 1961 The Pulitzer Publishing Company, a Missouri corporation (“TPPC”), then publisher of the St. Louis Post-Dispatch (the “Post-Dispatch”) and a predecessor of Pulitzer, and the Globe Democrat Publishing Company, a Missouri corporation (“GDPC”), then publisher of the Globe-Democrat (the “Globe-Democrat”) and a predecessor of Herald, entered into a joint operating agreement relating to the operations of their respective newspapers (such agreement, as amended, modified and supplemented, the “Agency Agreement”);

 

WHEREAS, on April 12, 1979, TPPC and GDPC amended the Agency Agreement to provide that TPPC would supervise, manage and perform all operations of the Globe-Democrat other than its separate news (including photographic) and editorial departments;

 

WHEREAS, on December 22, 1983, TPPC and Herald amended the Agency Agreement to provide for the sale by Herald of certain assets of the Globe-Democrat to an unrelated third party and the continuation of the rights and obligations of Herald under the Agency Agreement;

 

WHEREAS, the Agency Agreement then and still provides that no provision therein shall constitute the parties thereto as partners, joint venturers or an unincorporated association; and

 

WHEREAS, Pulitzer and Herald have determined that it would promote and be in the best interests of the Post-Dispatch to restructure its operations and their relationship by conducting the various activities of the Post-Dispatch through a limited liability company.

 

NOW, THEREFORE, the Pulitzer Parties, Herald and the Company agree as follows:

 

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ARTICLE I

 

ORGANIZATION OF THE COMPANY

 

1.1 Formation of the Company. Pulitzer has caused each of the following to occur:

 

(a) Organization of the Company. The Company has been organized as a limited liability company under the laws of the State of Delaware.

 

(b) Organizational Documents. The Company’s Certificate of Formation was filed with the Secretary of State of Delaware on April 12, 2000, a copy of which is set forth as Exhibit 1.1(b) hereto.

 

ARTICLE II

 

CONTRIBUTION AND ASSUMPTION

 

2.1 Contribution of Assets; Assumption of Liabilities. On the terms and subject to the conditions set forth herein and in the Transaction Agreements, at the Closing the parties shall take the following actions, which shall be deemed to take place simultaneously:

 

(a) Herald Contribution; Assumption of Liabilities. Herald shall (i) contribute, grant, convey, transfer, assign and deliver to the Company, and the Company shall accept from Herald, all right, title and interest of Herald in and to the Herald Contributed Assets, free and clear of all Encumbrances (other than Permitted Encumbrances); and (ii) assign to the Company, and the Company shall assume and agree to pay, honor, discharge and perform, the Herald Assumed Liabilities. The parties agree that the Herald Assumed Liabilities are intended to be, and the parties shall treat them as, “qualified liabilities” under Regulations Section 1.707-5(a)(6) unless different treatment is required under applicable law.

 

(b) Pulitzer Contribution; Assumption of Liabilities. Pulitzer shall (i) contribute, grant, convey, transfer, assign and deliver to the Company, and the Company shall accept from Pulitzer, all right, title and interest of Pulitzer in and to the Pulitzer Contributed Assets, free and clear of all Encumbrances (other than Permitted Encumbrances); and (ii) assign to the Company, and the Company shall assume and agree to pay, honor, discharge and perform, the Pulitzer Assumed Liabilities. The parties agree that the Pulitzer Assumed Liabilities are intended to be, and the parties shall treat them as, “qualified liabilities” under Regulations Section 1.707-5(a)(6) unless different treatment is required under applicable law.

 

(c) PTI Contribution; Assumption of Liabilities. PTI shall (i) contribute, grant, convey, transfer, assign and deliver to the Company, and the Company shall accept from PTI, all right, title and interest of PTI in and to the

 

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PTI Contributed Assets, free and clear of all Encumbrances (other than Permitted Encumbrances); and (ii) assign to the Company, and the Company shall assume and agree to pay, honor, discharge and perform, the PTI Assumed Liabilities. The parties agree that the PTI Assumed Liabilities are intended to be, and the parties shall treat them as, “qualified liabilities” under Regulations Section 1.707-5(a)(6) unless different treatment is required under applicable law.

 

(d) Operating Agreement. The Pulitzer Parties and Herald shall enter into an Operating Agreement, substantially in the form of Exhibit 2.1(d) hereto, the terms of which shall govern the management and operations of the Company.

 

(e) Company Debt. The Company will use the proceeds of the Company Debt to fund the distribution to Herald of $306,000,000, as contemplated under Section 3.11(a) of the Operating Agreement. The parties hereto agree that the Company Debt is allocable to and shall be allocated to Herald under Regulations Sections 1.752-2 and 1.707-5(b).

 

(f) License Agreement. Pulitzer and the Company shall enter into a License Agreement, substantially in the form of Exhibit 2.1(f) hereto.

 

(g) Employee Plans. The Company shall (or, as the case may be, shall cause each Contributed Entity to) assume or become a participating employer in Employee Plans as provided in Section 2.10.

 

(h) Indemnity Agreement. Pulitzer and Herald shall enter into an Indemnity Agreement, substantially in the form of Exhibit 2.1(h) hereto.

 

(i) Non-Confidentiality Agreement. The parties hereto shall enter into a Non-Confidentiality Agreement, substantially in the form of Exhibit 2.1(i) hereto.

 

2.2 Closing of Transaction. The Closing of the transactions contemplated by this Agreement shall take place at the New York offices of Fulbright & Jaworski L.L.P. at 10:00 a.m. (New York time) on May 1, 2000. The date on which the Closing occurs is called the “Closing Date.” The Closing shall be deemed effective at 11:59 p.m. (New York time), on April 30, 2000 (the “Effective Time”). To effect the steps set forth in Section 2.1 hereof, the parties shall execute and deliver to each other and to third parties, as appropriate, all documents reasonably necessary to effect the Closing. Without limiting the generality of the foregoing, at the Closing:

 

(a) Herald Deliveries. Herald shall execute and deliver:

 

(i) to the Company, limited warranty deeds, in form and substance reasonably acceptable to the Pulitzer Parties, transferring all Herald Owned Real Property to the Company;

 

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(ii) to the Company, certificates of title, assignments, and all other instruments of transfer, in form and substance reasonably acceptable to the Pulitzer Parties, transferring to the Company all Herald Contributed Assets other than the Herald Real Property which is being transferred to the Company pursuant to the conveyance documents described in clause (i) above;

 

(iii) to the Company, such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to the Pulitzer Parties, as may be necessary to effect assignment of the Herald Assumed Liabilities to the Company;

 

(iv) to the Company or Pulitzer, as appropriate, a duly executed copy of each of the Transaction Agreements to which Herald is a party, including the Operating Agreement, the Herald Indemnity and the Non-Confidentiality Agreement;

 

(v) to the Pulitzer Parties and the Company, the opinion of Sabin, Bermant & Gould LLP, counsel to Herald, substantially in the form of Exhibit 2.2(a)(v) hereto;

 

(vi) to the Company, evidence reasonably satisfactory to the Pulitzer Parties that all Encumbrances, if any, other than Permitted Encumbrances on any of the Herald Contributed Assets have been released; and

 

(vii) to the Pulitzer Parties and/or the Company, as appropriate, such other instruments or documents, in form and substance reasonably acceptable to the Pulitzer Parties and the Company, as may be necessary to effect the Closing and the contribution of the Herald Contributed Assets in accordance with this Agreement.

 

(b) Pulitzer Deliveries. Pulitzer shall execute and deliver:

 

(i) to the Company, limited warranty deeds, in form and substance reasonably acceptable to Herald, transferring all Pulitzer Owned Real Property to the Company;

 

(ii) to the Company, assignments or, where necessary, subleases, in form and substance reasonably acceptable to Herald, assigning or subleasing to the Company all Pulitzer Real Property Leases;

 

(iii) to the Company, certificates of title, assignments, and all other instruments of transfer, in form and substance reasonably acceptable to Herald, transferring to the Company all Pulitzer Contributed Assets other than the Pulitzer Real Property which is being transferred to the Company pursuant to the conveyance documents described in clauses (i) - (ii) above;

 

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(iv) to the Company, such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Herald, as may be necessary to effect assignment of the Pulitzer Assumed Liabilities to the Company;

 

(v) to the Company or Herald, as appropriate, a duly executed copy of each of the Transaction Agreements to which Pulitzer is a party, including the Operating Agreement, the Pulitzer Guaranty, the License Agreement and the Non-Confidentiality Agreement;

 

(vi) to the Company and Herald, a copy of the opinion of Fulbright & Jaworski L.L.P., counsel to the Pulitzer Parties, substantially in the form of Exhibit 2.2(b)(vi) hereto;

 

(vii) to the Company, evidence reasonably satisfactory to Herald that all Encumbrances, if any, other than Permitted Encumbrances on any of the Pulitzer Contributed Assets have been released; and

 

(viii) to Herald and/or the Company, as appropriate, such other instruments or documents, in form and substance reasonably acceptable to Herald, as may be necessary to effect the Closing and the contribution of the Pulitzer Contributed Assets in accordance with this Agreement.

 

(c) PTI Deliveries. PTI shall execute and deliver:

 

(i) to the Company, certificates of title, assignments, and all other instruments of transfer, in form and substance reasonably acceptable to Herald, transferring to the Company all PTI Contributed Assets;

 

(ii) to the Company, such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Herald, as may be necessary to effect assignment of the PTI Assumed Liabilities to the Company;

 

(iii) to the Company and Herald, a copy of the opinion of Fulbright & Jaworski L.L.P., counsel to the Pulitzer Parties, substantially in the form of Exhibit 2.2(b)(vi) hereto;

 

(iv) to the Company, assignments or, where necessary, subleases, in form and substance reasonably acceptable to Herald, assigning or subleasing to the Company all PTI Real Property Leases;

 

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(v) to the Company evidence reasonably satisfactory to Herald that all Encumbrances, if any, other than Permitted Encumbrances on any of the PTI Contributed Assets have been released;

 

(vi) to the Company or Herald, as appropriate, a duly executed copy of each of the Transaction Agreements to which PTI is a party, including the Operating Agreement and the Non-Confidentiality Agreement; and

 

(vii) to Herald and/or the Company, as appropriate such other instruments or documents, in form and substance reasonably acceptable to Herald and the Company, as may be necessary to effect the Closing and the contribution of the PTI Contributed Assets in accordance with this Agreement.

 

(d) Deliveries by the Company. The Company shall execute and deliver:

 

(i) to Herald and the Pulitzer Parties, such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Herald and the Pulitzer Parties, as may be necessary to effect the Company’s assumption of the Assumed Liabilities;

 

(ii) to the Pulitzer Parties or Herald, as appropriate, a duly executed copy of each of the Transaction Agreements to which the Company is a party, including the Operating Agreement, the Note Agreement, the License Agreement and the Non-Confidentiality Agreement; and

 

(iii) to the Pulitzer Parties and Herald, as appropriate, such other instruments or documents, in form and substance reasonably acceptable to Herald and the Pulitzer Parties, as may be necessary to effect the Closing.

 

2.3 Retained Pulitzer Assets and Liabilities. Notwithstanding anything herein to the contrary, (i) from and after the Closing, each of Pulitzer and its Affiliates shall retain all of its direct or indirect right, title and interest in and to, and there shall be excluded from the Pulitzer Contributed Assets, the Pulitzer Retained Assets, and (ii) the Pulitzer Retained Liabilities shall not be assumed by the Company hereunder.

 

2.4 Retained Herald Assets and Liabilities. Notwithstanding anything herein to the contrary, (i) from and after the Closing each of Herald and its Affiliates shall retain all of its direct or indirect right, title and interest in and to, and there shall be excluded from the Herald Contributed Assets, the Herald Retained Assets, and (ii) the Herald Retained Liabilities shall not be assumed by the Company hereunder.

 

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2.5 Retained PTI Assets and Liabilities. Notwithstanding anything herein to the contrary, (i) from and after the Closing, each of PTI and its Affiliates shall retain all of its direct or indirect right, title and interest in and to, and there shall be excluded from the PTI Contributed Assets, the PTI Retained Assets, and (ii) the PTI Retained Liabilities shall not be assumed by the Company hereunder.

 

2.6 Agency Adjustment.

 

(a) All items of income, gain, loss, deduction and credit arising from the operation and ownership of the Business for any tax period or portion thereof beginning December 27, 1999 and ending at the Effective Time shall be accounted for under and in accordance with the Agency Agreement and prior practice thereunder, treating April 30, 2000 as the end of a period for which income and loss is calculated under the Agency Agreement. Within sixty (60) Business Days following the Closing Date, Pulitzer shall pay to Herald its share of “Excess of Income over Expenses” (as defined in the Agency Agreement and prior practice thereunder), if any, for such period to the extent the amount due to Herald with respect to such period has not previously been paid, or Herald shall pay to Pulitzer its share of “Excess of Expenses over Income” (as defined in the Agency Agreement and prior practice thereunder), if any, for such period to the extent the amount due to Pulitzer with respect to such period has not previously been paid.

 

(b) Any payments made to or from the Company pursuant to Section 2.6(a) shall not result in any change in the value of any party’s Contributed Assets (as set forth in the Operating Agreement) or any party’s Capital Account or Percentage Interest (as both terms are defined in the Operating Agreement).

 

2.7 Transfer Taxes and Recording Fees. Each party shall be responsible for any and all taxes or fees imposed or incurred by reason of the filing or recording of any instruments necessary to effect the transfer of its Contributed Assets and Assumed Liabilities hereunder, including, without limitation, use, value- added, excise, real estate transfer, lease assignment, stamp, documentary and similar taxes and fees (the “Transfer Costs”). To the extent under applicable law the Company is responsible for filing tax returns in respect of Transfer Costs, the Company shall prepare all such tax returns. The parties shall provide such certificates and other information and otherwise cooperate to the extent reasonably required to minimize Transfer Costs.

 

2.8 Consents. None of the Pulitzer Parties or Herald shall have any obligation to obtain any Consent prior to the Closing. If a party has not obtained a Consent, the Closing shall not constitute a transfer, or any attempted transfer, of any Contract or asset, the transfer of which requires such Consent. Rather, following the Closing, such party shall use commercially reasonable efforts and the Company shall cooperate in such efforts, to obtain promptly such Consent or to enter into reasonable and lawful arrangements (including subleasing or subcontracting if permitted) reasonably acceptable to the other party to provide to the Company the full economic and operational benefits

 

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and liabilities and for substantially similar time periods, as the Company would have had if such Consent had been obtained as of Closing. Once such Consent for the transfer of a Contributed Asset not transferred at the Closing is obtained, the party receiving such Consent shall promptly transfer, or cause to be transferred, such Contributed Asset to the Company for no additional consideration and without changing any party’s Capital Account or Percentage Interest (as both terms are defined in the Operating Agreement).

 

2.9 Closing Certificates. The obligation of each of the parties hereto to consummate the transactions contemplated by this Agreement shall be subject to (i) the receipt of a certificate from each other party, executed by the President, Vice President or managing member of such other party, attesting to the fulfillment of each of the following conditions by such other party: (A) that all representations and warranties of such other party to this Agreement are true and correct in all material respects on and as of the Closing Date, with the same force and effect as though such representations and warranties were made on and as of the Closing Date and (B) that such other party has fulfilled all of its obligations under this Agreement to be performed on or prior to the Closing, and (ii) the Company’s having borrowed at least $306 million on terms and conditions substantially similar to those set forth on Exhibit 2.9.

 

2.10 Employee Matters. Each Employee will become an employee of the Company or, where applicable, will continue to be employed by the same Contributed Entity. The Company shall (or, as the case may be, shall cause each Contributed Entity to) assume or become a participating employer under each Employee Plan with respect to each Employee who, immediately after the Closing, is an Employee of the Company or of a Contributed Entity and with respect to each former Employee who is currently receiving or who is entitled in the future to receive payments or benefits, as well as with respect to the covered dependents and beneficiaries of any such Employee or former Employee. Notwithstanding the foregoing, employees of the Company or any of the Contributed Entities may be prohibited from participating in the Pulitzer Inc. Employee Stock Purchase Plan if and to the extent that such participation would cause the plan to fail to satisfy the requirements of Section 423 of the Code.

 

ARTICLE III

 

REPRESENTATIONS AND WARRANTIES OF HERALD

 

Herald represents and warrants to the Pulitzer Parties, the Company and the Lenders as follows:

 

3.1 Organization and Qualification.

 

(a) Herald is a corporation duly organized, validly existing and in good standing under the laws of its state of organization as set forth on Schedule 3.1(a). Herald has all requisite corporate power and authority to own and operate the Herald Contributed Assets.

 

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(b) Herald is duly qualified to do business and is in good standing as a foreign corporation in the jurisdictions listed on Schedule 3.1(b), which are the only jurisdictions where the ownership or operation of the Herald Contributed Assets requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect.

 

3.2 Corporate Authorization. Herald has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder and under any agreement or contract contemplated hereby, including the Transaction Agreements to which Herald is or becomes a party. The execution, delivery and performance by Herald of this Agreement and any agreement or contract contemplated hereby, including the Transaction Agreements to which Herald is or becomes a party, have been duly and validly authorized by all necessary corporate action, and no additional corporate authorization is required in connection with the execution, delivery and performance by Herald of this Agreement and any agreement or contract contemplated hereby, including the Transaction Agreements to which Herald is or becomes a party.

 

3.3 Consents and Approvals. Except as specifically set forth in Schedule 3.3, no Consent is required to be obtained by Herald from, and no notice or filing is required to be given by Herald to, or made by Herald with, any Governmental Authority or other Person in connection with the execution, delivery and performance by Herald of this Agreement, each of the Transaction Agreements to which Herald is or becomes a party, any other agreement or contract contemplated hereby and the contribution to the Company of the Herald Contributed Assets, except where the failure to obtain any such Consent or Consents, give any such notice or notices or make any such filing or filings would not have a Material Adverse Effect.

 

3.4 Non-Contravention. Except as set forth on Schedule 3.4, the execution, delivery and performance by Herald of this Agreement and each of the Transaction Agreements to which Herald is or becomes a party, and the consummation of the transactions contemplated hereby and thereby, does not and will not (i) violate any provision of the certificate of incorporation or bylaws of Herald, (ii) subject to obtaining the Consents referred to in Section 3.3, conflict with, or result in the breach of, or constitute a default under, or result in the termination, cancellation or acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation of Herald under, or to a loss of any benefit to which Herald is entitled under, any Contract or result in the creation of any Encumbrance (other than a Permitted Encumbrance) upon the Herald Contributed Assets, or (iii) assuming compliance with the matters set forth in Section 3.3, violate, or result in a breach of or constitute a default under any Law, rule, regulation, judgment, injunction, order, decree or other restriction of any court or Governmental Authority to which Herald is subject, including any Governmental Authorization, except in each case, such matter or matters that would not have a Material Adverse Effect.

 

3.5 Binding Effect. This Agreement constitutes, and each of the Transaction Agreements to which Herald is or becomes a party when executed and delivered by the

 

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parties thereto will constitute, a valid and legally binding obligation of Herald, enforceable with respect to Herald in accordance with its terms, except as the enforceability thereof may be limited or otherwise effected by bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability Relating to, or affecting, creditors rights and to general equity principles.

 

3.6 Entire Business; Title to Property.

 

(a) Except as set forth in Schedule 3.6(a), the Herald Contributed Assets and the rights specifically provided or made available to the Company under the Transaction Agreements to which Herald is or becomes a party, include all of Herald’s right, title and interest in the buildings, machinery, equipment and other assets (whether tangible or intangible) utilized in connection with the operations of the Business immediately before Closing (subject to changes expressly permitted by the terms hereof to be made after the date hereof).

 

(b) Herald has good (and, in the case of its Owned Real Property, marketable) title to, or a valid and binding leasehold interest in, the Herald Contributed Assets, free and clear of all Encumbrances, except (i) as set forth in Schedule 3.6(b), and (ii) any Permitted Encumbrances.

 

3.7 Finder’s Fees. There is no investment banker, financial advisor, broker or finder which has been retained by or is authorized to act on behalf of Herald which might be entitled to any fee, commission or other compensation from the Pulitzer Parties or the Company in connection with the transactions contemplated by this Agreement.

 

3.8 Indebtedness for Borrowed Money. There is no indebtedness for borrowed money included in the Herald Assumed Liabilities.

 

3.9 No Other Representations or Warranties. Except for the representations and warranties contained in this Article III, neither Herald nor any other Person makes any other express or implied representation or warranty, including warranties of merchantability or fitness for a particular purpose, on behalf of Herald.

 

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES OF THE PULITZER PARTIES

 

The Pulitzer Parties, jointly and severally, represent and warrant to Herald, the Company and the Lenders as follows:

 

4.1 Organization and Qualification. Pulitzer and PTI each is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own and operate its Contributed Assets. Pulitzer and PTI each is duly qualified to do business and is in good standing as a foreign corporation in the jurisdictions respectively listed on Schedule 4.1,

 

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which are the only jurisdictions where the ownership or operation of its Contributed Assets or the conduct of the Business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect.

 

4.2 Corporate Authorization. Pulitzer and PTI each has full corporate power and authority to execute and deliver this Agreement, and to perform its obligations hereunder and under any agreement or contract contemplated hereby, including the Transaction Agreements to which Pulitzer or PTI is or becomes a party. The execution, delivery and performance by Pulitzer and PTI of this Agreement and the agreements and contracts contemplated hereby, including the Transaction Agreements to which Pulitzer or PTI is or becomes a party, have been duly and validly authorized by all necessary corporate action, and no additional corporate authorization is required in connection with the execution, delivery and performance by Pulitzer and PTI of this Agreement and the agreements and contracts contemplated hereby, including the Transaction Agreements to which Pulitzer or PTI is or becomes a party.

 

4.3 Consents and Approvals. Except as specifically set forth in Schedule 4.3, no Consent is required to be obtained by Pulitzer or PTI from, and no notice or filing is required to be given by Pulitzer or PTI to or made by Pulitzer or PTI with, any Governmental Authority or other Person in connection with the execution, delivery and performance by Pulitzer or PTI of this Agreement, each of the Transaction Agreements to which Pulitzer or PTI is or becomes a party, any other agreemen