Exhibit 10.1 – Management Agreement between Lee Enterprises, Inc. and BH Media Group, Inc.

 

CONFIDENTIAL

EXECUTION COPY

MANAGEMENT AGREEMENT

This MANAGEMENT AGREEMENT (this " Agreement ") is entered into as of June 26, 2018, by and between BH Media Group, Inc., a Delaware corporation (" BH "), and Lee Enterprises, Incorporated, a Delaware corporation (" Lee ").  BH and Lee are each referred to herein as a " Party, " and are referred to together as the " Parties. "

WHEREAS, BH is a Berkshire Hathaway Inc. (" Berkshire ") company that owns and operates daily and weekly newspapers and other publications and related digital platforms;

WHEREAS, Lee is a leading provider of local news, information and advertising in primarily midsize markets; and

WHEREAS, BH and Lee are entering into this Agreement in order for Lee to manage certain of BH's newspapers and corresponding digital sites, as more fully set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties hereby agree as follows:

ARTICLE I
TERM

The term of this Agreement (the " Term ") will begin on July 2, 2018 (the " Start Date" )   and, unless sooner terminated pursuant to Section 4.1 , will continue for five (5) fiscal years ending June 25, 2023, and may thereafter be extended for successive one (1) fiscal year  periods on such terms as may be mutually agreed by the Parties. The one (1) fiscal year period beginning on the Start Date and each successive period during the Term is referred to as a " Contract Year. "

ARTICLE II
MANAGEMENT OF NEWSPAPERS

2.1   Appointment of Lee .  Effective as of the Start Date, BH hereby grants Lee the sole authority to manage and operate BH's publications as listed on Exhibit A , which list may be updated by mutual written agreement, and the digital versions of such publications, in all formats, mediums and platforms (the " Newspapers ") under the terms of this Agreement, provided that BH is retaining editorial control over local news coverage and the editorial pages. BH will cooperate with Lee in carrying out Lee's management of the Newspapers, including by having BH's personnel perform their responsibilities in accordance with Lee's decisions. BH is not transferring any assets, liabilities or personnel to Lee under this Agreement.

2.2   Annual Budget Process .  Prior to the start of each Contract Year, or as soon as reasonably possible thereafter, the Parties will jointly participate in an annual budget review process, during which BH will approve an operating and capital budget reasonably acceptable to it that includes specific revenue and expense initiatives and business transformation initiatives. Specific decisions around operations, sales and news will be approved or rejected by BH during such process.

2.3   Lee's Decision-Making Authority . Lee will have the flexibility to implement revenue initiatives and business transformation initiatives consistent with the annual operating and capital budgets. Lee will have the right to make any decisions that are consistent with the annual operating and capital budgets and any decisions made in the annual budget review process or that are otherwise permitted by Exhibit B . BH will be bound by any decision made by Lee that Lee reasonably and in good faith believed to be within Lee's decision-making authority, but if BH objects to any such decision and it is subsequently determined not to have been within Lee's decision-making authority, the decision will be reversed to the extent feasible.  In its performance of its management services, including the Transition Services, Lee shall exercise the same care and attention to managing the Newspapers in a manner compliant in all material respects with laws, regulations and contractual obligations applicable to them as it exercises in the management of its own business.

 

 

 

2.4   Relationship Managers .  Each Party will designate a relationship manager, who will have overall responsibility for the relationship between the Parties under this Agreement (each a " Relationship Manager "). Each Party's Relationship Manager will have full authority to act on behalf of such Party with respect to all matters related to this Agreement.  Lee's initial Relationship Manager is Kevin D. Mowbray, and BH's initial Relationship Manager is Ted Weschler. Each Party may designate a new Relationship Manager at any time by providing written notice thereof to the other Party.

2.5   Revenue and Expenses . All revenue from the Newspapers will belong to BH, and any such revenue that is collected by Lee will be collected on behalf of BH and as BH directs, will, to the maximum extent feasible, be collected in the form of checks or other transfers payable to BH or the Newspapers, and will be promptly deposited or otherwise transferred to accounts of BH as BH directs. Lee will cause any sales or use tax payable in connection with any such revenue to be collected from the subscriber, advertiser, or other purchaser, as the case may be, and to be remitted to the appropriate taxing authority, in accordance with the historical practice of BH and the Newspapers or as BH may otherwise direct.  BH will maintain levels of cash and working capital available for the Newspapers in line with historical practice, or as otherwise anticipated by the annual budget process, and will pay all accounts payable and payroll for the Newspapers.  Lee will have authority to write checks or otherwise direct payment for payment of all such accounts payable and payroll amounts, except that any payments to Lee or to an entity that controls, is controlled by or under common control with Lee or any person who is an officer, director or employee of Lee, shall additionally require signature or other authorization by the BH Relationship Manager.

2.6   Exclusions . For the avoidance of doubt, BH includes the following legal entities: Catamaran Media Company, LLC, World Investments, Incorporated and Palace Building Master Tenant, LLC. It is the intent of BH to transfer the ownership of World Investments, Incorporated out of BH as soon as practicable after execution of this Agreement. This Agreement excludes management of or any responsibility for World Investments, Incorporated and Palace Building Master Tenant, LLC. The following legal entities are not subsidiaries of BH, and therefore this Agreement excludes management of or any responsibility for: BH Holding LLC (which owns and operates a broadcast television station), The Buffalo News, Inc., and the Berkshire Hathaway Consolidated Pension Plan and any other defined benefit pension plans related to the Newspapers, which are all the responsibility of Berkshire.

ARTICLE III
FINANCIAL TERMS

3.1   Financial Reports; EBITDA .  Lee will be responsible for the preparation of the quarterly and annual unaudited financial reporting packages on a consolidated basis for BH, consistent with the practices followed by BH as of the date of this Agreement as those may be changed in accordance with changes made by Berkshire in its consolidation practices with respect to its consolidated subsidiaries generally, including financial statements for the period covered (" Berkshire Reporting Financial Statements ") and all other information Berkshire reasonably requests to permit consolidation of BH's financial results in Berkshire's consolidated financial statements for the periods covered, and with such reporting packages furnished to Berkshire within 20 days after the end of each calendar quarter and calendar year.  In addition, Lee will prepare monthly unaudited financial reports in accordance with historical practice for the Newspapers for each month, which will be provided to Berkshire within 30 days after the end of each such month (" Newspaper Financial Statements ").  Following the end of each Contract Year, Lee will also prepare

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annual unaudited Newspaper Financial Statements together with an EBITDA calculation of the Newspapers for the Contract Year. The Berkshire Reporting Financial Statements and the Newspaper Financial Statements will be prepared in accordance with U.S. generally accepted accounting principles, as consistently applied by Berkshire with respect to BH's business.  The calculation of EBITDA will be based on the Newspaper Financial Statements and will include or exclude certain items as set forth in Exhibit C .  Lee will provide BH with copies of or access to supporting documentation reasonably requested by BH.  If BH disagrees with Lee's calculation of EBITDA for a Contract Year, it will promptly inform Lee of such disagreement, and the Relationship Managers will cooperate in good faith to resolve the disagreement in a manner consistent with the spirit and intent of this Agreement.  The books and records maintained by Lee, including the books and records relating to BH used in preparing the quarterly and annual financial reporting packages or in preparing or filing any tax reports or returns, shall be the property of BH and made available to BH or Berkshire or their representatives upon the request of BH or Berkshire and, in any event, furnished to BH or Berkshire upon termination of this Agreement.  In addition, Berkshire and its outside auditors will be granted full access as needed to any other books and records of Lee relating to the Berkshire Reporting Financial Statements and the management services and Shared Services provided by Lee hereunder, as may be needed by Berkshire to prepare its quarterly and annual consolidated financial statements, to audit or review such statements, and for tax, internal audit or internal control purposes of BH or Berkshire.

3.2   Fees .  BH will pay to Lee a fixed fee for each Contract Year in the amount specified in the table below (each a " Fixed Fee "). Each Fixed Fee will be paid in four (4) equal installments at least ten (10) business days before the last business day of each of Lee's fiscal quarters. If the EBITDA for a Contract Year exceeds $34,000,000, then BH will also pay to Lee a variable fee for such Contract Year (each a " Variable Fee "), calculated as (i) the amount of such excess, multiplied by (ii) the percentage specified in the table below for the applicable Contract Year. The variable fee will be paid within ten (10) business days after Lee's delivery of the Newspaper Financial Statements for the relevant Contract Year. Notwithstanding the above, in the event of early termination pursuant to Section 4.1 the Fixed Fee will be prorated for the portion of the Contract Year that has expired prior to termination, and the $34,000,000 base used for calculating excess EBITDA will also be prorated on the same basis.

3.3   Reimbursement for Shared Services and Expenses .  Lee's business includes the performance of certain shared services among its business units. Lee may determine, subject to Section  2.3 , that the Newspapers will obtain certain shared services from Lee (the " Shared Services "). The performance of the Shared Services will be in lieu of internal BH charges and in addition to Lee's management of the Newspapers hereunder.  BH will reimburse Lee for Lee's internal allocated costs (on an "at cost" basis without mark-up) for performing the Shared Services, as reasonably determined by Lee in a manner consistent with its internal practices for cost and expense allocation among its business units. Payments to Lee for Shared Services will be made on a monthly basis. Payments to Lee will require approval from the Relationship Managers.

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3.4   Additional Incentives .  Lee may earn additional, mutually agreed upon incentives for sales of real estate and other mutually agreed upon actions. Berkshire Hathaway, in any event, is not obligated to use Lee's services in the sale of real estate.

3.5   Taxes .  BH will be responsible for the payment of any and all taxes, including sales, use, service, excise, receipts, value added and other transaction related taxes, arising from the Newspapers or applicable to the payments made to Lee hereunder, except for Lee's income taxes.

3.6   Audit Rights .  BH will have the right, at its own expense, to have a third-party auditor reasonably acceptable to Lee examine Lee's books and records relating to the calculation of the amounts payable by BH under this Agreement for the then-most recently completed Contract Year, and if the amount paid by BH as Variable Fee pursuant to Section 3.2 is determined (i) to have exceeded the amount payable, Lee shall reimburse BH the amount of such excess or (ii) to be less than the amount payable, BH shall pay the difference, in each case within ten (10) business days after such determination.

ARTICLE IV
TERMINATION

4.1   Termination .

(a)                 Either Party may terminate this Agreement upon written notice to the other Party if:

(i)

the EBITDA for a Contract Year (as calculated pursuant to Section 3.1 ) is less than $20,000,000; or

(ii)

the other Party voluntarily files for bankruptcy or insolvency, or is subject to an involuntary filing for bankruptcy or insolvency that is not dismissed within 60 days.

(b)               BH may terminate this Agreement upon written notice to Lee if:

(i)

any person or group of related persons has become the beneficial owner of more than 50% of Lee's voting equity interests or Lee sells all or substantially all of its assets to a third party; or

(ii)

Lee has not refinanced or otherwise satisfied its Senior Secured Notes prior to February 13, 2022 or its Second Lien Term Notes prior to November 15, 2022.

4.2   Transition Services .  Upon the expiration or earlier termination of this Agreement, Lee will provide transition services (including Shared Services) to BH to enable BH to operate the Newspapers for a transition period of up to 24 months. The nature and extent of such transition services shall be such as would permit BH to continue receiving the services, including Shared Services, it was receiving at the time of such termination and shall otherwise be as mutually agreed by the Parties, and compensation for such transition services (including Shared Services) shall be at Lee's cost without mark-up.

4.3   Survival .  The following provisions will survive expiration or termination of this Agreement for any reason:  Section 2.1 (for Transition Services), Section 2.2 (for Transition Services), Section 2.3 (for Transition Services), Section 2.4 (for Transition Services), Section 2.5 ( for Transition Services), Section 3.1 (for one (1) year and for Transition Services), Section 3.3 (for Transition Services), Section 3.5 , Section 3.6 (for one (1) year), Section 4.2 , this Section 4.3 , and Section 5.2 , and Article III (with respect to unpaid amounts ), Article VI , Article VII , Article VIII , Article IX and Article X .

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ARTICLE V
WARRANTIES; DISCLAIMER

5.1   Mutual .  Each Party represents, warrants and covenants that:  (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; (ii) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action, and this Agreement constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its terms; and (iii) the execution, delivery and performance of this Agreement by such Party of this Agreement and the performance of its obligations hereunder do not and will not breach or violate any laws or regulations to which such Party is subject or any agreement, obligation or restriction by which such Party is or becomes bound.

5.2   DISCLAIMER OF WARRANTIES .  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES, AND BOTH PARTIES HEREBY DISCLAIM, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

ARTICLE VI
LIMITATION OF LIABILITY

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE, IN NO EVENT WILL LEE'S AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (i) $5,000,000   OR (ii) THE FEES PAID BY BH UNDER SECTION 3.2 FOR THE CONTRACT YEAR MOST RECENT TO THE DATE OF THE MOST RECENT CLAIM FOR DAMAGES BY BH MULTIPLIED BY TWO (2), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY, AND EVEN IF LEE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL THIS ARTICLE BE CONSIDERED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. The limitations of liability set forth in this Article will not apply to Lee's indemnification obligations under Section 9.2 .

ARTICLE VII
EXCLUSION OF CONSEQUENTIAL DAMAGES

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE, IN NO EVENT WILL LEE BE LIABLE FOR LOST PROFITS OR FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL THIS ARTICLE BE CONSIDERED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. The exclusion of damages set forth in this Article will not apply to a Party's indemnification obligations under Section 9.2 with respect to damages required to be paid to a third party.

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ARTICLE VIII

CONFIDENTIALITY

8.1   Confidential Information . Each Party may receive or have access to Confidential Information of the other Party (the Party receiving or having access is referred to as the " Receiving Party " and the other Party is referred to as the " Providing Party "). " Confidential Information " means information, whether in oral, written, electronic or other form, that is marked or otherwise identified as confidential or which by the nature of the information or the circumstances of its disclosure should reasonably be understood to be confidential, but excludes information that:  (i) was already in the Receiving Party's possession; (ii) is or becomes publicly available other than through a breach of this Article by the Receiving Party; (iii) the Receiving Party lawfully receives from a third party; or (iv) is independently developed by the Receiving Party. The terms of this Agreement will be considered to be the Confidential Information of each Party.

8.2   Obligations .   The Receiving Party will protect the Providing Party's Confidential Information from disclosure using at least the same degree of care that the Receiving Party uses to protect its own Confidential Information of a similar nature (but in no event less than a reasonable degree of care). The Receiving Party may disclose the Providing Party's Confidential Information to its personnel and other third parties as the Receiving Party reasonably determines is necessary for carrying out the purposes of this Agreement, provided that such personnel and other third parties are subject to confidentiality obligations consistent with this Article.

8.3   Required Disclosure . Nothing in this Agreement prohibits the Receiving Party from disclosing any Confidential Information of the Providing Party as required by applicable law or regulations, including without limitation such disclosures relating to this Agreement as may be required under the federal or state securities laws; provided that the Receiving Party will use commercially reasonable efforts to give the Providing Party advance notice of any third-party request for such disclosure (to the extent permitted by applicable law) so that the Providing Party may seek an appropriate protective order or other remedy at the Providing Party's expense.

ARTICLE IX

LIABILITIES

9.1   BH Obligations; Indemnification by BH .  Except for third-party claims subject to indemnification by Lee under Section 9.2 , and subject to and without limiting any remedies available to BH for breach of contract claims against Lee arising under this Agreement, (a) BH is responsible to Lee and liable to it for all liabilities, costs and expenses of Lee arising from Lee's management of the Newspapers hereunder (including those resulting from decisions made by Lee in accordance with Section 2.3 ) (collectively, the " BH Obligations "), and will assume, perform, discharge and fulfill when due and, to the extent applicable, comply with all of the BH Obligations in accordance with their respective terms, and (b) BH will indemnify and hold harmless Lee (and its directors, officers, employees and representatives) from the BH Obligations and from all damages, liabilities, costs and expenses (" Losses ") arising from third-party claims made against Lee relating to Lee's management of the Newspapers hereunder (including claims by BH's personnel for employment-related claims). Lee shall give BH prompt notice of any lawsuits or charges filed, claims asserted, or investigations commenced against BH or the Newspapers to Lee's knowledge and shall provide BH with all information reasonably requested by it regarding any such matters.  If BH reasonably concludes that any such matter may result in a loss greater than $5 million it may assume the management of any such matter by notice to Lee. Any legal settlement in excess of $1 million to be paid by BH or the Newspapers requires the approval of the BH Relationship Manager.

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9.2   Indemnification by Lee .  Lee will indemnify and hold harmless BH (and its directors, officers, employees and representatives) from all Losses from third-party claims to the extent arising from Lee's willful misconduct or bad faith in the performance of its management obligations under this Agreement.

9.3   Procedures .  Each Party will promptly notify the other of any claim subject to indemnification hereunder (provided that any delay in providing notice will not relieve the indemnifying Party of its indemnification obligations except to the extent the indemnifying Party is actually prejudiced by such delay). The indemnified Party may elect to control the defense of a claim. If the indemnified Party does not elect to control the defense of a claim, then the indemnifying Party will do so.  Neither Party will settle, compromise or offer to settle or compromise any such claim without the other Party's consent, not to be unreasonably withheld.