LEE ENTERPRISES, Inc DEFA14A, filed Dec 30, 2025
LEE ENTERPRISES, Inc (LEE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 30, 2025
LEE ENTERPRISES, INCORPORATED
(Exact name of registrant as specified in its charter)
| Delaware | 1-6227 | 42-0823980 | ||
| (State of Incorporation) | (Commission File Number) |
(I.R.S. Employer Identification No.) |
4600 E. 53rd Street,
Davenport, Iowa 52807
(Address of Principal Executive Offices)
(563) 383-2100
Registrant’s telephone number, including area code
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☒ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading symbol(s) | Name of each exchange on which registered | ||
| Common Stock, par value $.01 per share | LEE | The Nasdaq Global Select Market | ||
| Preferred Share Purchase Rights | LEE | The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
Stock Purchase Agreement
On December 30, 2025, Lee Enterprises, Incorporated (the “Company”) entered into a stock purchase agreement (the “Purchase Agreement”) with David Hoffmann (the “Anchor Investor”) and certain additional investors (the “Other Investors” and, together with the Anchor Investor, the “Investors”), pursuant to which the Company agreed to issue and sell to the Investors in a private placement (the “Private Placement”) an aggregate of 15,384,615 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), at a purchase price of $3.25 per share. The aggregate gross proceeds from the Private Placement are expected to be approximately $50.0 million, before deducting offering expenses. The Company expects to use the net proceeds for working capital and for other general corporate purposes.
Pursuant to the terms of the Purchase Agreement, the Company has agreed to hold a special meeting of stockholders (the “Special Meeting”) as promptly as reasonably practicable to obtain stockholder approval of (i) the proposed issuance of the Shares in the Private Placement for the purposes of Nasdaq Listing Rule 5635(b) and 5635(d) and (ii) a proposal to amend the Company’s amended and restated certificate of incorporation (the “Charter Amendment”) to increase the number of shares of Common Stock authorized for issuance from 12,000,000 shares to 40,000,000 shares (such proposals, the “Transaction Proposals” and the approval thereof, the “Stockholder Approval”). The Private Placement is expected to close (the “Closing”) in the first quarter of 2026, following the receipt of Stockholder Approval.
The Purchase Agreement contains customary representations, warranties and agreements of the Company and the Investors. The Investors have also agreed to a lock-up with respect to the Shares for a period of 180 days and standstill period of twelve months, subject to certain exceptions. With respect to the standstill, certain Investors are each able to purchase up to 600,000 shares of Common Stock during the standstill period.
Pursuant to the Purchase Agreement, upon the Closing, the size of the board of directors of the Company is expected to be automatically increased from nine to ten members. Following such increase, the Anchor Investor will have the right to designate for nomination or otherwise appoint one individual (the “Anchor Designee Director”) to serve on the Company’s board of directors. The Anchor Investor is expected to be the Anchor Designee Director and is expected to be appointed as the Chairperson of the board of directors. In addition, one individual who is mutually agreeable to the Anchor Investor and the Company is expected to be designated for nomination or otherwise appointed to serve on the Company’s board of directors.
The Private Placement is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act and in reliance on similar exemptions under applicable state laws. The Company is relying on this exemption from registration based in part on representations made by the Investors. At the time of issuance, the Shares will not be registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration with the Securities and Exchange Commission (the “SEC”) or an applicable exemption from the registration requirements. Neither this Current Report on Form 8-K nor the exhibits attached hereto is an offer to sell or the solicitation of an offer to buy the securities described herein.
The Closing is subject to certain closing conditions, including but not limited to: (i) the absence of any injunction or order preventing the Private Placement and the other transactions and actions contemplated by the Purchase Agreement; (ii) the receipt of Stockholder Approval; (iii) the effectiveness of the Charter Amendment; (iv) the approval for listing of the Shares by the Nasdaq Global Select Market; (v) the execution and delivery of the Registration Rights Agreement (as defined below); and (vi) the effectiveness of the Credit Agreement Amendment (as defined below) which was executed concurrently with the Purchase Agreement.
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The Purchase Agreement may be terminated under certain circumstances prior to the Closing, including, but not limited to: (i) by mutual written agreement of the Company and the Anchor Investor, (ii) by the Company or the Anchor Investor upon a material and uncured breach; (iii) by the Company, at its option, upon receipt of a Superior Proposal (as defined in the Purchase Agreement), compliance with the Anchor Investor’s matching rights and payment to the Anchor Investor a termination fee of $2.5 million; (iv) by the Company or the Anchor Investor upon the failure of the other party to consummate the Private Placement within three business days of the satisfaction or waiver of all conditions to Closing; and (v) by the Company or the Anchor Investor if the Closing has not occurred by April 30, 2026.
The Company has also agreed to reimburse the Anchor Investor for up to $2.0 million in expenses. At the Anchor Investor’s option, the Anchor Investor’s expenses may be reimbursed in shares of Common Stock at a price of $3.25 per share.
A copy of the Purchase Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference. The foregoing description of the Purchase Agreement is qualified in its entirety by reference thereto.
The Purchase Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of the Purchase Agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement. Accordingly, the representations and warranties in the Purchase Agreement should not be relied upon as characterizations of the actual state of facts about the Company or the Investors.
Registration Rights Agreement
Pursuant to the terms of the Purchase Agreement, at or prior to the Closing, the Company and the Investors will enter into a registration rights agreement (the “Registration Rights Agreement”), pursuant to which the Company will agree to provide certain customary registration rights, including the registration of the Shares for resale. The Company is required to use commercially reasonable efforts to file a registration statement with the SEC covering the resale by the Investors of their Shares within 60 days following the Closing.
The form of Registration Rights Agreement is filed with this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference. The foregoing description of the Registration Rights Agreement is qualified in its entirety by reference thereto.
Voting Agreements
Concurrently with the execution of the Purchase Agreement, each Investor and each member of the board of directors of the Company entered into a voting agreement (collectively, the “Voting Agreements”), providing among other things, that such directors and investors will vote all of their shares of Common Stock, among other things: (i) in favor of each Transaction Proposal and (ii) in favor of the approval of any proposal to adjourn or postpone the Special Meeting to a later date if there are not sufficient votes present for there to be a quorum or for the adoption of the Private Placement on the date on which such meeting is held, or if the Company proposes or requests such adjournment or proposal, in each case, in accordance with the Purchase Agreement.
The form of Voting Agreement is filed with this Current Report on Form 8-K as Exhibit 10.3 and is incorporated herein by reference. The foregoing description of the Voting Agreements is qualified in its entirety by reference thereto.
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Executive Retirement and Transition Agreement
Concurrently with the execution of the Purchase Agreement, Kevin Mowbray, the Company’s President and Chief Executive Officer, entered into an agreement with the Company (the “Retirement and Transition Agreement”) which sets forth the terms of Mr. Mowbray’s voluntary retirement from his positions at Company and its subsidiaries and affiliates, which resignation is expected to become effective immediately prior to the Closing. Pursuant to the Executive Retirement and Transition Agreement, the Company has agreed to pay (i) a severance payment to Mr. Mowbray of $1,500,000 payable in thirty-six installments and (ii) COBRA medical premiums for a period of 18 months for Mr. Mowbray and his spouse. In addition, Mr. Mowbray agreed to provide consultation, advice and assistance in the transition and operation of the Company’s business as reasonably requested by the Company through May 31, 2026. The Retirement and Transition Agreement also includes standard indemnification, non-competition and non-solicitation provisions.
A copy of the Retirement and Transition Agreement is filed with this Current Report on Form 8-K as Exhibit 10.4 and is incorporated herein by reference. The foregoing description of the Retirement and Transition Agreement is qualified in its entirety by reference thereto.
In connection with the Closing and the planned retirement of the Chief Executive Officer, Nathan Bekke, the Company’s current Chief Operating Officer, is expected to step into the role of Interim Chief Executive Officer.
Credit Agreement Amendment
Concurrently with the execution of the Purchase Agreement, the Company entered into the Second Amendment to Credit Agreement (the “Credit Agreement Amendment”), which amended the Company’s existing Credit Agreement, dated January 29, 2020 (as amended by that Waiver and Amendment dated May 1, 2025), with BH Finance LLC (the “Lender”). The amendments set forth in the Credit Agreement Amendment are conditioned upon, and will become operative only upon, the Company’s receipt of the proceeds of the Private Placement at the Closing. Pursuant to the Credit Agreement Amendment, and effective upon the Closing, among other things, the parties agreed to: (i) for a period of five years following the Closing, reduce the applicable margin on the Company’s 25-year term loan from 9.00% to 5.00% (the “Interest Rate Reduction”), (ii) amend the definition of “Change of Control” to exclude the beneficial ownership of the Investors and their Affiliates and (iii) for a period of five years following the Closing, amend the definition of “Excess Cash Flow” such that the minimum amount of cash-on hand held by the Company before being deemed Excess Cash Flow would be equal to $64.0 million. If the Closing occurs, the Interest Rate Reduction is expected to result in interest savings of approximately $18 million annually and up to $90 million over the five-year period.
A copy of the Credit Agreement Amendment is filed with this Current Report on Form 8-K as Exhibit 10.5 and is incorporated herein by reference. The foregoing description of the Credit Agreement Amendment is qualified in its entirety by reference thereto.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure related to the Private Placement set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The disclosure related to the Retirement and Transition Agreement set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein.
Item 7.01 Regulation FD.
On December 30, 2025, the Company issued a press release announcing the Private Placement, a copy of which is attached hereto as Exhibit 99.1 and is incorporated into this Item 7.01 by reference.
The information furnished by and incorporated by reference in this Item 7.01, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 nor shall it be deemed incorporated by reference in any filing under the Securities Act, except as shall be expressly set forth by specific reference in such filing.
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Important Additional Information
This communication is being made in regard to the Special Meeting and the related proposals. In connection therewith, the Company intends to file a preliminary proxy statement with the SEC. Once the preliminary proxy statement is declared effective, a definitive proxy statement will be mailed or otherwise made available through permissible means to the Company’s stockholders. BEFORE MAKING ANY VOTING DECISION, STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT ONCE AVAILABLE REGARDING THE PROPOSALS SET FORTH THEREIN AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSALS SET FORTH THEREIN. This Current Report on Form 8-K is not a substitute for the proxy statement or any other document that the Company may file with the SEC. Stockholders may obtain free copies of the proxy statement, any amendments or supplements thereto and other documents containing important information about the Company once such documents are filed with the SEC, through the website maintained by the SEC at www.sec.gov. Copies of the documents filed with the SEC by the Company will be available free of charge on the “Investor Relations” section of the Company’s website (https://investors.lee.net/).
The Company and members of the Company’s board of directors, as well as certain existing stockholders participating in the Private Placement as described below, may be deemed to be “participants” under SEC rules in any solicitation of the Company’s stockholders in respect of the Company’s proposals set forth in the definitive proxy statement. Information regarding the directors and executive officers of the Company is set forth (i) in the Company's Annual Report on Form 10-K for its fiscal year ended September 28, 2025, filed with the SEC on November 26, 2025 (the “Annual Report”) and (ii) to the extent holdings of the Company’s securities by its directors or executive officers have changed since the amounts set forth in the Company’s Annual Report, such changes have been or will be reflected on Initial Statement of Beneficial Ownership of Securities on Form 3, Statement of Changes in Beneficial Ownership on Form 4, or Annual Statement of Changes in Beneficial Ownership on Form 5 filed with the SEC, including: Form 4 filed by Joseph Battistoni on December 18, 2025, Form 4 filed by Nathan Bekke on December 18, 2025, Form 4 filed by Astrid Garcia on December 18, 2025, Form 4 filed by Timothy Millage on December 18, 2025, and Form 4 filed by Kevin Mowbray on December 18, 2025.
Further information concerning certain persons, including with respect to their holdings, who may be deemed participants in the solicitation of the Company’s stockholders under the rules of the SEC will be set forth in the definitive proxy statement when it is filed with the SEC. You may obtain free copies of these documents through the website maintained by the SEC at https://www.sec.gov.
No Offer or Solicitation
This Current Report on Form 8-K does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. This Current Report on Form 8-K does not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Special Meeting.
Forward-Looking Statements
This communication includes forward-looking statements, including statements relating to the expected timing of the closing of the Private Placement (if at all), the use of proceeds of the Private Placement and the Credit Agreement Amendment and any expected interest savings as a result thereof. All statements other than statements of historical fact are, or may be deemed to be, forward-looking statements. In some cases, forward-looking statements can be identified by the use of forward-looking terms such as “may,” “will,” “should,” “could,” “expect,” “intend,” “plan,” “anticipate,” “potential,” “outlook” or “shall,” or the negative of these terms or other comparable terms. However, the absence of these words does not mean that the statements are not forward-looking. These forward-looking statements are based on certain assumptions and analyses made by us in light of our experience and our perception of historical trends, current conditions and expected future developments, as well as other factors we believe are appropriate in the circumstances.
These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions that may cause actual results, levels of activity, performance, or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. Factors that might cause or contribute to a material difference include the risks discussed in our filings with the SEC and the following: potential delays in consummating or the inability to consummate the Private Placement; the occurrence of any event, change or other circumstance that could give rise to the termination of the Purchase Agreement; failure to obtain Stockholder Approval; the effect of the pendency or completion of the Private Placement on the parties’ business relationships and business generally; changes in the Company’s corporate governance (including with respect to any new directors); competition and pricing pressures; and economic conditions generally. All forward-looking statements set forth in this communication are qualified by these cautionary statements and there can be no assurance that the actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected consequences to or effects on us or our business or operations. Forward-looking statements set forth in this communication speak only as of the date hereof, and we do not undertake any obligation to update forward-looking statements to reflect subsequent events or circumstances, changes in expectations or the occurrence of unanticipated events, except to the extent required by law.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
|
Exhibit No. |
Description | |
| 10.1* | Stock Purchase Agreement, dated as of December 30, 2025, by and among the Company, David Hoffmann and the Other Investors party thereto. | |
| 10.2 | Form of Registration Rights Agreement. | |
| 10.3 | Form of Voting Agreement. | |
| 10.4 | Executive Retirement and Transition Agreement, dated as of December 30, 2025, by and between the Company and Kevin Mowbray. | |
| 10.5 | Second Amendment to Credit Agreement, dated as of December 30, 2025, by and between the Company and the Lender. | |
| 99.1 | Private Placement Press Release, dated December 30, 2025. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
| * | Certain schedules and exhibits to this Exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to provide a copy of any omitted schedule or exhibit to the SEC or its staff upon request. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: December 30, 2025
| LEE ENTERPRISES, INCORPORATED | ||
| By: | /s/ Timothy R. Millage | |
| Timothy R. Millage | ||
| Vice President, Chief Financial Officer and Treasurer | ||
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Exhibit 10.1
STOCK PURCHASE AGREEMENT
entered into on December 30, 2025,
by and between
Lee Enterprises, Incorporated,
a Delaware corporation
and
the undersigned investors
TABLE OF CONTENTS
| 1. | Definitions and Interpretations | 1 |
| 2. | Purchase | 8 |
| 3. | Closing | 9 |
| 4. | Closing Conditions | 9 |
| 5. | [Reserved] | 11 |
| 6. | Company Representations and Warranties | 12 |
| 7. | Investor Representations and Warranties | 16 |
| 8. | Additional Covenants | 19 |
| 9. | Lock-up & Legends | 21 |
| 10. | Standstill | 22 |
| 11. | Board Appointment and Related Agreements | 23 |
| 12. | Superior Proposals; Company Board Recommendation | 24 |
| 13. | Fees and Expenses | 28 |
| 14. | Termination | 29 |
| 15. | Confidentiality | 30 |
| 16. | Publicity | 31 |
| 17. | Non-Disparagement | 31 |
| 18. | Miscellaneous | 32 |
| 19. | Notices | 35 |
i
STOCK PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this “Purchase Agreement”) is entered into on December 30, 2025 (the “Effective Date”), by and between Lee Enterprises, Incorporated, a Delaware corporation (the “Company”), David Hoffmann, an individual (the “Anchor Investor”), and the other investors on Schedule B attached hereto (the “Additional Investors”, together with the Anchor Investor, the “Investors”). Each of the Investors and the Company are sometimes referred to herein as a “Party.”
WHEREAS, the Investors have agreed to purchase shares of the Company’s common stock, par value $0.01 per share (“Common Stock”, and such purchased Common Stock, the “Purchased Securities”), in a private placement transaction for a purchase price of $3.25 per share of Common Stock (the “Per Share Purchase Price”) for an aggregate purchase price of $50.0 million (the “Aggregate Purchase Price”) to be paid by the Investors (the portion of the Aggregate Purchase Price with respect to each Investor, the “Purchase Price”) for an aggregate of 15,384,615 of shares of Common Stock (such transaction, the “PIPE Transaction”); and
WHEREAS, following the execution of this Purchase Agreement, the Company shall hold a special meeting of stockholders for the purpose of obtaining the Requisite Stockholder Approval (as defined herein).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein, and intending to be legally bound hereby, each of the Investors and the Company acknowledges and agrees as follows:
1. Definitions and Interpretations
(a) Certain Definitions. For all purposes of and pursuant to this Purchase Agreement, the following capitalized terms have the following respective meanings:
(i) “Acquisition/Alternative Proposal” means any offer or proposal (other than an offer or proposal by the Investors (including the Anchor Investor)) to engage in an Acquisition/Alternative Transaction.
(ii) “Acquisition/Alternative Transaction” means any single transaction or series of related transactions (other than the PIPE Transaction) involving:
(1) any direct or indirect purchase or other acquisition by any Person or Group, or stockholders of any such Person or Group, whether from the Company or any other Person(s), of shares of Common Stock (or other securities convertible into, or exercisable for, Common Stock) representing 75% of the Common Stock outstanding after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any Person or Group that, if consummated in accordance with its terms, would result in such Person or Group beneficially owning 75% of the Common Stock outstanding after giving effect to the consummation of such tender or exchange offer;
(2) any direct or indirect purchase or other acquisition by any Person or Group of 75% of the consolidated assets, net revenue or net income of the Company taken as a whole (measured by the fair market value thereof as determined in good faith by the Board);
(3) any merger, consolidation, business combination, share exchange, recapitalization, reorganization, liquidation, dissolution or other transaction involving the Company pursuant to which any Person or Group, would hold, directly or indirectly, 75% of the equity interests of the Company or the surviving or resulting entity of such transaction after giving effect to the consummation of such transaction; or
(4) any combination of the foregoing.
(iii) “Affiliate” has the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act, and shall include all persons or entities that at any time during the term of this Purchase Agreement become Affiliates of any person or entity referred to in this Purchase Agreement.
(iv) “Anchor Designee Director” means one (1) person selected by the Anchor Investor that is designated for nomination or otherwise appointed to the Board.
(v) “Anchor Investor” means David Hoffmann or an Affiliate thereof.
(vi) “Anchor Investor Transaction Expenses” means the fees and expenses of the legal, accounting and financial advisors of the Anchor Investor subject to reimbursement by the Company in connection with negotiating and executing the PIPE Transaction.
(vii) “Agreed-Upon Director” means one (1) person meeting the Agreed-Upon Director Criteria who is mutually agreeable to the Anchor Investor and the Company that is designated for nomination or otherwise appointed to the Board.
(viii) “Agreed-Upon Director Criteria” means that a person qualifies as “independent” pursuant to SEC rules and regulations and applicable stock exchange listing standards, including the definition of “Independent Director” as set forth in Nasdaq Rule 5605(a)(2).
(ix) “Beneficial Ownership” means having the right or ability to vote, cause to be voted or control or direct the voting of any Voting Securities (in each case whether directly or indirectly, including pursuant to any agreement, arrangement or understanding, whether or not in writing); provided, that a Person shall be deemed to have “Beneficial Ownership” of any Voting Securities that such Person has a right, option or obligation to own, acquire or control or direct the voting of upon conversion, exercise, expiration, settlement or similar event (“Exercise”) under or pursuant to (i) any Derivative (whether such Derivative is subject to Exercise immediately or only after the passage of time or upon the satisfaction of one or more conditions) and (ii) any Synthetic Position that is required or permitted to be settled, in whole or in part, in Voting Securities. A Person shall be deemed to be the “Beneficial Owner” of, or to “beneficially own,” any securities that such Person has Beneficial Ownership of.
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(x) “Board” means the board of directors of the Company (or any successor governing body).
(xi) “Business Day” shall mean a day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
(xii) “Company Stockholders” means the holders of shares of Common Stock.
(xiii) “Company Termination Fee” means an amount equal to $2.5 million.
(xiv) “Company Transaction Expenses” means the fees and expenses incurred by the Company for its legal and financial advisors with respect to negotiating and completing the Transaction, as set forth in and contemplated by the PIPE Transaction and this Purchase Agreement. For the avoidance of doubt, the Company Transaction Expenses shall not include amounts arising from: (1) litigation, including, but not limited to, litigation that may arise as a result of the PIPE Transaction; (2) shareholder activism, including, but not limited to, activism arising as a result of the PIPE Transaction; (3) alternative financing or change of control transactions (including, but not limited to, any fees and expenses with respect to the consideration or consummation of any Acquisition/Alternative Proposal or Acquisition/Alternative Transaction); or (4) the Company’s annual meeting or periodic SEC reporting.
(xv) “Competitively Sensitive Information” means material confidential, non-public information with respect to the Company or Affiliates that reflects details as to (a) current or future pricing and pricing strategy; (b) sales and subscriber information and metrics; (c) vendor information; (d) sales and advertising (including margins, discounts, rebates, and other price terms) or future sales, product and advertising plans; (e) newsroom strategy and individual employee compensation and benefits; (f) digital and platform strategy; and (g) actual or potential mergers and acquisitions, asset sales and divestitures, and capital allocation decisions and related discussions and strategy.
(xvi) “Credit Agreement Amendment” means that certain amendment, substantially in the form attached hereto as Exhibit B to the credit agreement, dated as of January 29, 2020, by and between the Company and BH Finance LLC, as the lender (as further amended by that certain waiver and amendment to the foregoing credit agreement, dated as of May 1, 2025, by and between the Company and BH Finance LLC, as the lender).
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(xvii) “DGCL” means General Corporation Law of the State of Delaware, as amended.
(xviii) “Exchange Act” means the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder).
(xix) “Extraordinary Transaction” means any merger, consolidation, acquisition, tender or exchange offer, recapitalization, reorganization, liquidation, disposition of all or substantially all of the assets of the Company or other business combination or extraordinary transaction involving the Company that requires a vote of Company Stockholders or requires the tender by holders of a majority of the outstanding Common Stock.
(xx) “Executive Compensation Documents” means (a) the Lee Enterprises, Incorporated 2020 Long-Term Incentive Plan, as made effective on February 19, 2020, (b) that certain amended and restated employment agreement, dated as of February 17, 2016, by and between the Company and Kevin D. Mowbray (the “CEO Employment Agreement”), (c) that certain amended and restated employment agreement, dated as of December 7, 2015, by and between the Company and Astrid Garcia and (d) that certain amended and restated employment agreement, dated as of December 7, 2015, by and between the Company and Nathan Bekke.
(xxi) “Executive Retirement and Transition Agreement” means that certain executive retirement and transition agreement, fully executed on or prior to the date hereof, substantially in the form attached hereto as Exhibit D.
(xxii) “Group” means a “group” as used in Section 13(d) of the Exchange Act.
(xxiii) “Material Adverse Effect” means any event, change, occurrence or effect that would have a material adverse effect on the business, condition (financial or otherwise), properties or results of operations of the Company and its Subsidiaries, taken as a whole, other than any event, change, occurrence or effect arising out of, attributable to or resulting from, alone or in combination with respect to the following:
(1) changes in general economic or business conditions or in the financial, debt, banking, capital, credit or securities markets, or in interest or exchange rates, in each case, in the United States or elsewhere in the world;
(2) general changes or developments in any of the industries in which the Company or its Subsidiaries operate;
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(3) (x) changes in any applicable laws, or (y) changes in applicable accounting regulations or principles or interpretations thereof;
(4) any change in the price or trading volume of the Common Stock (as may be listed on Nasdaq), in and of itself (provided, that the facts or occurrences giving rise to or contributing to such change that are not otherwise excluded from the definition of “Material Adverse Effect” may be taken into account in determining whether there has been a Material Adverse Effect);
(5) any failure by the Company to meet internal or published projections, forecasts or revenue or earnings predictions, in and of itself (provided, that the facts or occurrences giving rise to or contributing to such failure that are not otherwise excluded from the definition of “Material Adverse Effect” may be taken into account in determining whether there has been a Material Adverse Effect);
(6) geopolitical conditions or any outbreak, continuation or escalation of any military conflict, declared or undeclared war, armed hostilities, or acts of foreign or domestic terrorism (including cyber-terrorism or other cyber-attacks);
(7) natural disasters or weather conditions, global health conditions (including any outbreak, pandemic or epidemic of disease) or other acts of God;
(8) any national or international calamity, crisis or emergency (including any shutdown of the U.S. federal government), whether or not caused by any person or entity;
(9) the announcement of this Purchase Agreement or the PIPE Transaction, including the initiation of litigation by any person with respect to this Purchase Agreement or the PIPE Transaction, and including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company and its Subsidiaries due to the announcement and performance of this Purchase Agreement, the PIPE Transaction or the identity of the parties to this Purchase Agreement or the PIPE Transaction, including compliance with the covenants set forth herein;
(10) any action taken by the Company, or which the Company causes to be taken by any of its Subsidiaries, in each case which is required or permitted by or resulting from or arising in connection with this Purchase Agreement or the PIPE Transaction; or
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(11) any actions taken (or omitted to be taken) at the request of Investors;
provided, in the case of the foregoing clauses (1), (2), (3), (6), (7) and (8), to the extent the impact of such event, change, occurrence or effect does not have a disproportionately adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other companies operating in the industries in which the Company and its Subsidiaries operate (and provided further, that in such event, only the incremental disproportionate adverse impact shall be taken into account when determining whether there has been a “Material Adverse Effect”).
(xxiv) “Nasdaq” means The Nasdaq Stock Market.
(xxv) “Organizational Documents” means with respect to the Company, its Amended and Restated Certificate of Incorporation (as may be amended from time to time) (the “Charter”) and the Second Amended and Restated By-Laws of the Company (as may be amended from time to time).
(xxvi) “Person” means an individual (including a natural person) or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
(xxvii) “Representatives” means any directors, managers, partners, officers, employees, consultants, agents, financial advisors, investment bankers, attorneys, accountants and other advisors and representatives, including any of the foregoing parties’ controlled Affiliates.
(xxviii) “Requisite Stockholder Approval” means such approvals as may be required by (i) the applicable rules and regulations of Nasdaq and (ii) in accordance with the Company’s Organizational Documents, as may be applicable, in each case, from the Company Stockholders in connection with the PIPE Transaction.
(xxix) “Rights Agreement” means that certain rights agreement, dated as of March 28, 2024, by and between the Company, and Equiniti Trust Company, LLC, as rights agent (as further amended by that certain amendment, dated as of March 26, 2025, by and between the Company and Equiniti Trust Company, LLC, as rights agent).
(xxx) “SEC” means the United States Securities and Exchange Commission.
(xxxi) “SEC Documents” means, collectively, all reports, schedules, forms, registration statements, definitive proxy statements and other documents (including exhibits and all information incorporated by reference) filed or furnished by the Company with the SEC on or after September 29, 2024 and prior to the Effective Date. For the avoidance of doubt, the SEC Documents shall not include any filings or similar reports, including those filed pursuant to Section 16 or Section 13 of the Exchange Act, by Persons other than the Company that may be referred to in the Company’s SEC Documents.
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(xxxii) “Standstill Period” means the period commencing on the Effective Date and terminating upon the earliest to occur of the following (i) 9:30 a.m., New York City time on the date that is twelve months from Closing and (ii) the date on which the Company enters into an Alternative Acquisition/Financing Agreement.
(xxxiii) “Subsidiary” means, with respect to any Person, any other Person (other than a natural Person) of which securities or other ownership interests (1) having ordinary voting power to elect a majority of the board of directors or managers, or other Persons performing similar functions or (2) representing more than 50% of such securities or ownership interests, in each case, that are at the time directly or indirectly owned or controlled by such first Person.
(xxxiv) “Superior Proposal” means any unsolicited bona fide written Acquisition/Alternative Proposal on terms that the Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) (A) to be reasonably likely to be consummated if accepted, and (B) if consummated, would result in a transaction more favorable to the Company Stockholders from a financial point of view than the PIPE Transaction (taking into account (y) if applicable, any changes to the terms of this Purchase Agreement offered by the Anchor Investor in response to such Superior Proposal in accordance with Section 12 and (z) any legal, regulatory, financial, timing, financing, the identity of the Person making such proposal, form of consideration, and other aspects of such proposal that the Board considers in good faith to be relevant).
(xxxv) “Synthetic Position” means any option, warrant, convertible security, stock appreciation right or other security, contract right or derivative position or similar right (including any “swap” transaction with respect to any security, other than a broad based market basket or index) (each of the foregoing, a “Derivative”), whether or not presently exercisable, that has an exercise or conversion privilege or a settlement payment or mechanism at a price related to the value of Voting Securities or a value determined in whole or in part with reference to, or derived in whole or in part from, the value of Voting Securities and that increases in value as the market price or value of Voting Securities increases or that provides an opportunity, directly or indirectly, to profit or share in any profit derived from any increase in the value of Voting Securities, in each case regardless of whether (i) it conveys any voting rights in such Voting Securities to any Person, (ii) it is required to be or capable of being settled, in whole or in part, in Voting Securities, or (iii) any Person (including the holder of such Synthetic Position) may have entered into other transactions that hedge its economic effect.
(xxxvi) “Transfer” means any direct or indirect sale, assignment, transfer, conveyance, gift, bequest by will or under intestacy laws, pledge, mortgage, charge, hypothecation or other encumbrance, or any other disposition (including any interest or right in any security, including the issuance of any total return swap or other derivative whose economic value is primarily based upon the value of the referenced security) or of all or part of the voting power (other than the granting of a revocable proxy) associated with any referenced security (or any interest therein) whatsoever, or any other transfer of Beneficial Ownership, with or without consideration and whether voluntarily or involuntarily (including by operation of law).
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(xxxvii) “Voting Securities” means the Common Stock and any other securities of the Company entitled to vote in the election of directors.
(b) Certain Interpretations. Unless otherwise expressly provided in this Purchase Agreement, for purposes of this Purchase Agreement, the following rules of interpretation shall apply:
(i) “or” is not exclusive.
(ii) “including” means “including without limitation”;
(iii) “will” and “shall” expresses a command;
(iv) words in the singular include the plural and words in the plural include the singular, unless the context requires otherwise;
(v) “herein,” “hereof” and other words of similar import refer to this Purchase Agreement as a whole and not to any particular section or other subdivision of this Purchase Agreement, unless the context requires otherwise;
(vi) references to currency mean the lawful currency of the United States of America, unless the context requires otherwise; and
(vii) the exhibits, schedules and other attachments to this Purchase Agreement are deemed to form part of this Purchase Agreement.
(d) Drafting. The Parties have participated jointly in the negotiation and drafting of this Purchase Agreement and, in the event that an ambiguity or question of intent or interpretation arises, this Purchase Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Purchase Agreement. Further, prior drafts of this Purchase Agreement or any ancillary agreements hereto or the fact that any clauses have been added, deleted or otherwise modified from any prior drafts of this Purchase Agreement or any ancillary agreements hereto shall not be used as an aid of construction or otherwise constitute evidence of the intent of the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of such prior drafts.
2. Purchase. Each Investor, severally and not jointly, hereby irrevocably agrees to purchase at the Closing from the Company, and the Company hereby agrees to issue and sell to each Investor at the Closing, the number of Purchased Securities set forth on Schedule B attached hereto to this Purchase Agreement at the Purchase Price, on the terms and subject to the conditions provided for herein; provided that, to the extent any Additional Investor fails to pay its respective Purchase Price promptly on the scheduled Closing Date or affirmatively indicates in writing (email being sufficient) prior to the Closing that such Additional Investor will not complete its respective purchase at the Closing (a “Defaulting Additional Investor”), the Anchor Investor hereby irrevocably agrees in full replacement of such Defaulting Additional Investor to purchase at the Closing from the Company, and the Company hereby agrees to issue and to sell to the Anchor Investor at the Closing, the number of Purchased Securities set forth on Schedule B attached hereto to this Purchase Agreement at the Purchase Price, on the terms and subject to the conditions provided for herein, that would have otherwise been issued and sold to such Defaulting Investor, and the Closing shall then occur as promptly as reasonably practicable.
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3. Closing
(a) Closing. The closing of the purchase and sale of the Purchased Securities contemplated hereby (the “Closing”) shall take place at 9:00 a.m., New York City time, promptly upon receipt of the Requisite Stockholder Approval and satisfaction or waiver of each of the conditions in Section 4 (other than those conditions that are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions at the Closing), and no later than two (2) Business Days following the satisfaction or waiver of the foregoing conditions, through electronic exchange of documents and signatures, unless another time, date or place is agreed to in writing by the Company and the Anchor Investor. The date on which the Closing actually occurs is referred to in this Purchase Agreement as the “Closing Date.” Except as otherwise set forth herein, all proceedings to be taken and all documents to be executed and delivered by all Parties at the Closing will be deemed to have been taken and executed simultaneously.
(b) Purchase and Sale of the Purchased Securities. At the Closing, (i) each Investor shall pay to the Company its respective Purchase Price, in cash, by wire transfer of immediately available funds to an account of the Company, which account shall be designated in writing by the Company to each Investor no less than two (2) Business Days prior to the Closing, and (ii) the Company shall issue each respective Investor’s Purchased Securities and cause such Purchased Securities to be registered in book entry form in the name of each Investor on the Company stock register with the Company’s transfer agent.
(c) Tax-Related Deliverables. At least three (3) Business Days prior to the Closing, each Investor shall deliver to the Company a duly completed and executed Internal Revenue Service Form W-9 (or for each Investor that is a non-U.S. Person, a duly completed and executed Internal Revenue Service Form W-8).
4. Closing Conditions
(a) Conditions to Obligations of all Parties. The obligations of the Company and each Investor to consummate the purchase and sale of the Purchased Securities pursuant to this Purchase Agreement is subject to the satisfaction (or waiver in writing to the extent permitted by applicable law by the Company and the Anchor Investor) of the following conditions:
(i) there shall not be in force any injunction or order enjoining or prohibiting the consummation of the PIPE Transaction pursuant to this Purchase Agreement;
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(ii) each Transaction Proposal shall have been approved at the Company Stockholder Meeting as follows: (i) each of the Nasdaq 19.99% Share Issuance Approval and the Nasdaq Change of Control Proposal shall have been approved at such meeting (upon a quorum being present in accordance with the Company’s Organizational Documents) by the vote of a majority of the voting power of the Common Stock of the Company present in person or by proxy at such meeting and entitled to vote thereat in accordance with Company’s Organizational Documents and (ii) the Charter Amendment Proposal (upon a quorum being present in accordance with the Company’s Organizational Documents) shall have been approved at such meeting by a majority of the votes cast by the Company Stockholders at such meeting in accordance with Section 242(d) of the DGCL and the Company’s Organizational Documents (collectively, the foregoing approvals referenced in clauses (i) through (ii), the “Requisite Stockholder Approval”);
(iii) the Charter Amendment shall have been filed by the Company and shall be in full force and effect;
(iv) a notification form for the “Listing of Additional Shares” (as set forth by Nasdaq) with respect to the Purchased Securities shall have been filed with and accepted by Nasdaq;
(b) Conditions to the Obligations of the Investors. The obligation of each Investor to consummate the purchase and sale of the Purchased Securities pursuant to this Purchase Agreement is subject to the satisfaction (or waiver in writing to the extent permitted by applicable law by the Anchor Investor) of the following conditions:
(i) the representations and warranties of the Company contained herein shall be true and correct in all material respects, except for those representations and warranties qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects as so qualified, as of the Effective Date, the Closing Date or such earlier date than the Closing Date, as applicable, as though made on and as of such date;
(ii) the Company shall have performed in all material respects the obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date;
(iii) [Reserved];
(iv) the Board shall have taken all appropriate actions so that the restrictions on business combinations contained in Section 203 of the DGCL will not apply with respect to or as a result of the PIPE Transaction and any other transactions between the Company and the Investors;
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(v) the Company shall have executed and delivered the Registration Rights Agreement, substantially in the form attached hereto as Exhibit A (the “Registration Rights Agreement”);
(vi) each of the Company and BH Finance LLC shall have executed and delivered the Credit Agreement Amendment and such amendment shall be in full force and effect as of the Closing;
(vii) the Board shall have terminated the Rights Agreement, and, as may be necessary pursuant to the Rights Agreement, such Rights (as defined therein) shall have been redeemed and canceled;
(viii) solely with respect to the PIPE Transaction, no cash payments with respect to a “Change of Control” (as defined in each of the applicable Executive Compensation Documents) shall be required pursuant to the Executive Compensation Documents; and
(ix) since the Effective Date, no event or series of events shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect.
(c) Conditions to the Obligations of the Company. The obligation of the Company to consummate the purchase and sale of the Purchased Securities pursuant to this Purchase Agreement is subject to the satisfaction (or waiver in writing to the extent permitted by applicable law by the Company) of the following conditions:
(i) the representations and warranties of each Investor contained herein shall be true and correct in all material respects, except for those representations and warranties qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects as so qualified, as of the Effective Date, the Closing Date or such earlier date than the Closing Date, as applicable, as though made on and as of such date;
(ii) each Investor shall have performed in all material respects the obligations and conditions herein required to be performed or observed by such Investor on or prior to the Closing Date;
(iii) each Investor shall have executed and delivered the Registration Rights Agreement; and
(iv) each Investor shall have delivered to the Company the requested information set forth on Schedule A hereto.
5. [Reserved]
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6. Company Representations and Warranties. The Company represents and warrants to each Investor that, as of the Effective Date (unless as of another date or time as specified below):
(a) Due Organization, Good Standing and Qualification. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Purchase Agreement. The Company is not in violation of the Organizational Documents, except where such violation would not reasonably be expected to have a Company Material Adverse Effect.
(b) Due Authorization. As of the Closing Date, the Purchased Securities will be duly authorized and, when issued and delivered to each Investor against full payment therefor in accordance with the terms of this Purchase Agreement, the Purchased Securities will be validly issued, fully paid and non-assessable, free and clear of all liens or other encumbrances (other than those arising under this Purchase Agreement or applicable securities laws or those imposed on each Investor through any other agreement with the Company) and will not have been issued in violation of or subject to any preemptive or similar rights created under the Company’s Organizational Documents or contractual arrangements (as in effect at such time of issuance of the Purchased Securities).
(c) Corporate Authority; Approval. This Purchase Agreement and the sale and delivery of the Purchased Securities have been duly authorized by the Company and no further corporate action is required by the Company, its Board or Company Stockholders in connection therewith, other than the Requisite Stockholder Approval. This Purchase Agreement has been duly authorized, executed and delivered by the Company and, assuming that this Purchase Agreement constitutes the valid and binding agreement of each Investor, this Purchase Agreement is enforceable against the Company in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally or (ii) principles of equity, whether considered at law or equity.
(d) No Conflict. Assuming the execution and delivery of the Credit Agreement Amendment and that such amendment shall be in full force and effect at the Closing, the issuance and sale by the Company of the Purchased Securities pursuant to this Purchase Agreement at the Closing will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation, a change of control right or to a loss of a benefit under any agreement or instrument, credit facility, franchise, license, judgment, order, statute, law, ordinance, rule or regulations, applicable to the Company its properties or assets, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, in each case, that would reasonably be expected to have a Material Adverse Effect, or affect the validity of the Purchased Securities or the legal authority of the Company to comply in all material respects with its obligations under this Purchase Agreement or (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that would reasonably be expected to have a Material Adverse Effect or materially affect the Company’s ability to comply in all material respects with its obligations under this Purchase Agreement.
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(e) Consents. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other Person in connection with the issuance and sale of the Purchased Securities pursuant to this Purchase Agreement, other than (i) filings with the Securities and Exchange Commission (the “SEC”), (ii) filings required by applicable state securities laws, (iii) filings required by Nasdaq or with respect to the amendment of the Charter to authorize the issuance of the Purchased Securities, or (iv) the failure of which to obtain would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the Company’s ability to comply in all material respects with its obligations under this Purchase Agreement.
(f) SEC Documents and Financial Statements.
(i) Since September 29, 2024, the Company has timely filed or furnished with the SEC all SEC Documents required to be filed or furnished by the Company with the SEC. As of their respective filing dates, and giving effect to any amendments or supplements thereto filed prior to the Effective Date, the Company SEC Documents complied in all material respects as to form with the requirements of the Securities Act of 1933, as amended, the Exchange Act, and the respective rules and regulations of the SEC promulgated thereunder applicable to such SEC Documents.
(ii) As of the time they were filed, none of the filed SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. There are no outstanding or unresolved comments from the SEC staff with respect to the SEC Documents. To the Company’s knowledge, none of the SEC Documents are the subject of an ongoing SEC review. The interactive data in eXtensible Business Reporting Language included in the SEC Documents fairly presents the information called for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto in all material respects, such that the Company would be ineligible to use Form S-3 (or a comparable form).
(iii) The Company’s disclosure of its authorized, issued and outstanding capital stock in the SEC Documents containing such disclosure was accurate in all material respects as of the date indicated in such SEC Documents. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares of the Common Stock of the Company were issued in violation of any preemptive or other similar rights of any securityholder of the Company which have not been waived, and such shares were issued in compliance in all material respects with applicable state and federal securities law and any rights of third parties. Except as disclosed in the SEC Documents, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of Common Stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any Common Stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options. The capital stock of the Company conforms in all material respects to the description thereof incorporated by reference into the Company’s Form 10-K for the fiscal year ended September 28, 2025, filed with the SEC on November 26, 2025.
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(iv) The consolidated financial statements of the Company included in the SEC Documents (collectively, the “Financial Statements”) comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing (or to the extent corrected by a subsequent restatement) and fairly present in all material respects the consolidated financial position of the Company as of the dates indicated, and the results of its operations and cash flows for the periods therein specified, and have been prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods therein specified (except as otherwise noted therein, and except that any unaudited financial statements may not contain certain footnotes and are subject to normal and recurring year-end adjustments). Except as set forth in the Financial Statements filed prior to the Effective Date, the Company has not incurred any liabilities, contingent or otherwise, except (y) those incurred in the ordinary course of business, consistent with past practices since the date of such financial statements or (z) liabilities not required under GAAP to be reflected in the Financial Statements, in either case, none of which, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect.
(g) Registration Rights. Except for the Registration Rights Agreement, the Company is presently not under any obligation, and has not granted any rights, to register under the Securities Act any of the Company’s presently outstanding securities or any of its securities that may hereafter be issued, other than such rights and obligations that have expired or been satisfied or waived.
(h) Nasdaq Market. The issued and outstanding shares of Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Nasdaq Global Select Market under the symbol “LEE”. The Company is in compliance with all listing requirements of Nasdaq applicable to the Company. As of the Effective Date, there is no suit, action, proceeding or investigation pending or, to the knowledge of the Company, threatened against the Company by Nasdaq or the SEC, respectively, to prohibit or terminate the listing of the Common Stock on the Nasdaq Global Select Market or to deregister the Common Stock under the Exchange Act. The Company has taken no action as of the Effective Date that is designed to terminate the registration of the Common Stock under the Exchange Act.
(i) Private Placement. Assuming the accuracy of each Investor’s representations and warranties set forth in Section 7, no registration under the Securities Act of 1933, as amended (the “Securities Act”), is required for the offer and sale of the Purchased Securities by the Company to each such Investor.
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(j) Investment Company. The Company is not required, and immediately after receipt of payment for the Purchased Securities, will not be required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(k) Executive Retirement and Transition Agreement. Each of the CEO and the Company have entered into the Executive Retirement and Transition Agreement and such Executive Retirement and Transition Agreement is in full force and effect.
(l) Company Board Recommendation. At a meeting duly called and held, the Board has unanimously resolved as follows, and such resolutions have not been rescinded, modified, or withdrawn in any way:
(i) determined that it is in the best interests of the Company and the Company Stockholders, and declared it advisable, to enter into this Purchase Agreement and consummate the PIPE Transaction upon the terms and subject to the conditions set forth herein;
(ii) approved the execution and delivery of this Purchase Agreement by the Company, the performance by the Company of its covenants and other obligations under this Purchase Agreement, and the consummation of the PIPE Transaction upon the terms and conditions set forth herein;
(iii) resolved to recommend that the Company Stockholders vote in favor of the following proposals at the Company Stockholder Meeting:
(1) the approval of the adoption by the Company of an amendment to the Charter to increase the authorized number of shares of Common Stock to 40.0 million shares of Common Stock in aggregate as of the Closing (the “Charter Amendment Proposal”, and such amendment, the “Charter Amendment”),
(2) the approval, for purposes of complying with the stockholder approval requirements of Nasdaq Listing Rule 5635(d) (as may be in effect on the date of the Company Stockholder Meeting), the issuance of the Purchased Securities to the Investors (the “Nasdaq 19.99% Share Issuance Proposal”),
(3) the approval, for purposes of complying with the stockholder approval requirements of Nasdaq Listing Rule 5635(b) (as may be in effect on the date of the Company Stockholder Meeting), of the issuance of the Purchased Securities to the Investors in connection with a transaction that may potentially result in a change of control for purposes of such Nasdaq rule (the “Nasdaq Change of Control Proposal”, together with the Charter Amendment Proposal and the Nasdaq 19.99% Share Issuance Proposal, the “Transaction Proposals”).
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7. Investor Representations and Warranties. Each Investor represents and warrants to the Company that, as of the Effective Date (unless as of another date or time as specified below):
(a) Independent Investigation. (i) Such Investor has conducted its own investigation of the Company, the Common Stock and the other outstanding securities of the Company, (ii) such Investor has been offered the opportunity to ask questions of the Company and received answers thereto, as it deemed necessary in connection with its decision to purchase the Purchased Securities and (iii) such Investor has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Purchased Securities.
(b) QIB/AI Investor Status. Such Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or (ii) an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A hereto.
(c) No View to Distribution. Such Investor is not purchasing the Purchased Securities with a view to, or for offer or sale in connection with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States or any state thereof, and the information set forth on Schedule A hereto with respect to such Investor shall be true in all respects. The Purchased Securities to be received by such Investor hereunder will be acquired for such Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act or other securities laws of the United States or any state thereof.
(d) Private Placement. Such Investor is aware that the offer and sale to such Investor of the Purchased Securities is being made in reliance on a private placement exemption from registration under the Securities Act and each Investor is acquiring the Purchased Securities for such Investor’s own account or for an account over which such Investor exercises sole discretion for another qualified institutional buyer or accredited investor.
(e) Investor Knowledge and Experience. Such Investor is able to fend for itself in the PIPE Transaction contemplated herein. Such Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Purchased Securities, has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
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(f) No Registration. Such Investor acknowledges and agrees that the offer and sale of the Purchased Securities have not been registered under the Securities Act or any other applicable securities laws, are being offered for sale in a transaction not requiring registration under the Securities Act, and unless so registered, the Purchased Securities may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act and any other applicable securities laws, pursuant to any exemption therefrom or in a transaction not subject thereto. Such Investor acknowledges and agrees that any certificates or book entries representing the Purchased Securities shall contain a restrictive legend to such effect. Such Investor acknowledges and agrees that the Purchased Securities will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, such Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Purchased Securities and may be required to bear the financial risk of an investment in the Purchased Securities for an indefinite period of time. Such Investor acknowledges and agrees that the Purchased Securities may not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act. Such Investor acknowledges and agrees that it has been advised to consult legal, tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Purchased Securities.
(g) Investment Authority. If such Investor is purchasing the Purchased Securities as a fiduciary or agent for one or more investor accounts, such Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account.
(h) Access to Information. Such Investor acknowledges and agrees that such Investor has received or had access to such information as such Investor deems necessary in order to make an investment decision with respect to the Purchased Securities, including, with respect to the Company, its other securities and the business of the Company. Such Investor acknowledges that such Investor has consulted with its own legal, accounting, financial, regulatory, and tax advisors, to the extent deemed appropriate. Without limiting the generality of the foregoing, such Investor acknowledges that it has had the opportunity to review the SEC Documents filed by the Company with the SEC prior to Effective Date. Such Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Purchased Securities, including those set forth in the Company’s SEC Documents. Such Investor acknowledges that such Investor shall be responsible for any of such Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Purchase Agreement, and that neither the Company nor the Company’s advisors or other Representatives have provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by such Purchase Agreement.
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(i) No General Solicitation. Such Investor became aware of this offering of the Purchased Securities solely by means of direct contact between such Investor and the Company or a Representative of the Company, and the Purchased Securities were offered to such Investor solely by direct contact between such Investor and the Company or a Representative of the Company. Such Investor did not become aware of this offering of the Purchased Securities, nor were the Purchased Securities offered to such Investor, by any other means. Such Investor acknowledges that the Purchased Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Such Investor acknowledges that such Investor has relied solely upon independent investigation made by such Investor and that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any Person, firm or corporation, other than the SEC Documents and the representations and warranties of the Company expressly contained in Section 6, in making its investment or decision to invest in the Company and the Purchased Securities.
(j) No Agency Review. Such Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Purchased Securities or made any findings or determination as to the fairness of this investment.
(k) Due Organization, Good Standing and Qualification. Such Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Purchase Agreement.
(l) No Conflicts. The execution, delivery and performance by such Investor of this Purchase Agreement are within the powers of such Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which such Investor is a party or by which such Investor is bound, and will not violate any provisions of such Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of such Investor on this Purchase Agreement is genuine, and the signatory has legal competence and capacity to execute the same or the signatory has been duly authorized to execute the same, and, assuming that this Purchase Agreement constitutes the valid and binding agreement of the Company, this Purchase Agreement constitutes a legal, valid and binding obligation of such Investor, enforceable against such Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
(m) Sufficient Funds. When required to deliver payment to the Company pursuant to Section 3, such Investor will have sufficient funds to pay the Purchase Price and consummate the purchase and sale of the Purchased Securities pursuant to this Purchase Agreement.
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(n) No Other Representation and Warranty. Such Investor acknowledges and agrees that, except for the representations and warranties of the Company expressly set forth in Section 6, neither the Company nor any of its Affiliates, any control Persons or Representatives of any of the foregoing or any other Person or entity makes or has made any express or implied representation or warranty to such Investor or any of its Affiliates or Representatives with respect to the Company or its Affiliates or their respective securities or businesses, or any estimates, projections, forecasts and other forward-looking information or business and strategic plan information regarding the Company or its Affiliates or with respect to any other information provided or made available to such Investor or its Affiliates or Representatives in connection with the Purchased Securities (including any information, documents, projections, forecasts, estimates, predictions or other material made available to such Investor or its Representatives in expectation of the Purchased Securities). Such Investor acknowledges that certain information provided to such Investor was based on estimates and projections, and such estimates and projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic, competitive and other risks and uncertainties that could cause actual results to differ materially from those contained in the estimates or projections. Such Investor acknowledges that the Company does not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections. Such Investor also acknowledges and agrees that neither the Company nor any other Person makes or has made any express or implied representation or warranty to such Investor or any of its Affiliates or Representatives with respect to (i) any financial projection, forecast, estimate, budget or prospect information relating to the Company, its Affiliates or its or their respective businesses or (ii) any oral or written information presented to such Investor or any of its Affiliates or Representatives in the course of its or their due diligence investigation of the Company and Affiliates, the negotiation of this Purchase Agreement or the PIPE Transaction. Such Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any Person, firm or corporation, other than the representations and warranties of the Company expressly contained in Section 6, in making its investment or decision to invest in the Company. Such Investor acknowledges and agrees that, to the maximum extent permitted by law, none of any Affiliates, or any control Persons, officers, directors, employees, partners, agents or Representatives of the Company shall be liable to such Investor pursuant to this Purchase Agreement, the negotiation hereof or the subject matter hereof, or the transactions contemplated hereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Purchased Securities.
8. Additional Covenants
(a) Voting Agreements. In connection with entry into the Stock Purchase Agreement, each Investor and each member of the Board, shall respectively enter into a voting agreement with the Company, the form of which is attached hereto as Exhibit C (the “Voting Agreement”).
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(b) Proxy Statement.
(i) As promptly as reasonably practicable using its reasonable best efforts following the Effective Date, the Company (with the assistance and cooperation of such Investors as reasonably requested by the Company) shall prepare and file with the SEC a preliminary proxy statement (as amended or supplemented, the “Proxy Statement”) relating to the Company Stockholder Meeting. Subject to Section 12, the Company shall include the Company Board Recommendation with respect to the Transaction Proposals in the Proxy Statement. Subject to applicable law, the Company shall use its commercially reasonable efforts to cause a definitive Proxy Statement to be mailed and disseminated to the Company Stockholders as promptly as reasonably practicable.
(ii) The Company shall promptly notify the Anchor Investor of the receipt of any comments of the SEC with respect to the Proxy Statement and of any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to the Anchor Investor copies of all correspondence between the Company and/or any of its Representatives and the SEC with respect to the Proxy Statement. The Company shall use its reasonable best efforts to promptly provide responses to the SEC with respect to all comments received in respect of the Proxy Statement by the SEC.
(iii) If at any time prior to the Company Stockholder Meeting, any fact relating to the Company is discovered by the Company that is required pursuant to the Exchange Act to be included in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include a misstatement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (A) the Company shall promptly inform the Anchor Investor after such discovery and (B) the Company shall promptly amend or supplement the Proxy Statement to include disclosure of such fact. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied in writing by or on behalf of any Investor, its Affiliates or its respective Representatives for inclusion or incorporation by reference in the Proxy Statement, and each Investor shall promptly notify the Company if any such information contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Company Stockholder Meeting. Subject to Section 12 and applicable law (including the rules and regulations of the SEC and upon the resolution of any comments by the SEC or its staff with respect to the Proxy Statement), the Company shall duly call and hold a meeting of the Company Stockholders (the “Company Stockholder Meeting”) as promptly as reasonably practicable (accounting for any period of time that may be reasonably advisable with respect to the solicitation of the Company Stockholders) in connection with the dissemination and mailing of the Proxy Statement to the Company Stockholders for the purpose of obtaining the Requisite Stockholder Approval.
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(d) Adjournment of Company Stockholder Meeting. Notwithstanding anything to the contrary in this Purchase Agreement, nothing will prevent the Company from postponing or adjourning the Company Stockholder Meeting (i) to allow additional solicitation of votes in order to obtain the Requisite Stockholder Approval with respect to each Transaction Proposal; (ii) if there are holders of an insufficient number of shares of the Common Stock present or represented by proxy at the Company Stockholder Meeting to constitute a quorum at the Company Stockholder Meeting; (iii) if the Company is required to postpone or adjourn the Company Stockholder Meeting by applicable law or a request from the SEC or its staff; or (iv) in order to give the Company Stockholders sufficient time to evaluate any information or disclosure that the Company has sent to the Company Stockholders or otherwise made available to the Company Stockholders if, in the good faith judgment of the Board (after consultation with outside legal counsel), the failure to do so would be reasonably likely to be inconsistent with its fiduciary obligations under applicable law or with applicable federal securities laws.
(e) Further Assurances. Each Party agrees to cooperate with each other and their respective officers, employees, attorneys, accountants and other agents, and, generally, do such other reasonable acts and things in good faith as may be necessary to effectuate the intents and purposes of this Purchase Agreement, subject to the terms and conditions of this Purchase Agreement and compliance with applicable law, including taking reasonable action to facilitate the filing of any document or the taking of reasonable action to assist the other Parties hereto in complying with the terms of this Purchase Agreement, and to ensure the satisfaction of the conditions set forth in Section 4. Between the Effective Date and the Closing Date, unless the Anchor Investor shall otherwise provide its prior written consent, the business of the Company shall be conducted only in the ordinary course of business or consistent with past practice in all material respects.
9. Lock-up & Legends
(a) Lock-up. Except as otherwise permitted in this Purchase Agreement, from the Closing Date until 180 days following the Closing Date (the “Transfer Restriction Period”), such Investor will not directly or indirectly Transfer any Purchased Securities issued pursuant to this Purchase Agreement. During the Transfer Restriction Period, the Company may prohibit and/or void any purported Transfer, including by placing a stop order with the Company’s transfer agent, with respect to the Purchased Securities.
(b) Permitted Transfers. Notwithstanding Section 9(a), each Investor shall be permitted to Transfer any portion or all of their Purchased Securities at any time during the Transfer Restriction Period under the following circumstances:
(i) Transfers to any (A) Affiliate of such Investor, (B) any successor entity of such Investor, or (C) if such Investor is an investment fund, vehicle or similar entity, any other investment fund, vehicle or similar entity controlling, controlled by, managing or managed by or under common control with such Investor, its investment manager, or its Affiliates (each, a “Permitted Transferee”); provided that such Permitted Transferee agrees in writing for the benefit of the Company (in form and substance reasonably satisfactory to the Company and with a copy thereof to be furnished to the Company) to be bound by the terms of this Purchase Agreement and the transferor and transferee agree for the benefit of the Company that the transferee shall Transfer the Purchased Securities so Transferred back to the transferor at or before such time as the transferee ceases to be a Permitted Transferee of the transferor;
(ii) Transfers pursuant to an Extraordinary Transaction;
(iii) Transfers to the Company; and
(iv) Transfers that have been approved by the Board or a duly authorized committee thereof in its reasonable discretion.
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(c) Legends. Such Investor agrees that all certificates or other instruments representing the Purchased Securities subject to this Purchase Agreement will bear a legend substantially to the following effect, until such time as they may be removed:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER RESTRICTIONS SET FORTH IN A PURCHASE AGREEMENT, DATED AS OF DECEMBER 30, 2025, COPIES OF WHICH ARE ON FILE WITH THE ISSUER.
(d) In connection with any Permitted Transfer during the Transfer Restriction Period, or following the expiration thereof, any sale, assignment, transfer or other disposition of the Purchased Securities by an Investor pursuant to (i) Rule 144 or any other exemption under the Securities Act such that the purchaser acquires freely tradable shares, or (ii) an effective registration statement, and upon compliance by the Investor with the requirements of this Purchase Agreement, in each case, if requested by the Investor by notice to the Company, the Company shall instruct its transfer agent to remove any restrictive legends related to the book entry account holding such Purchased Securities and make a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends as soon as reasonably practicable following any such request therefor from the Investor, provided that, subject to the customary procedures of the transfer agent, the Company has timely received from the Investor customary representations and other documentation reasonably acceptable to the Company and the transfer agent in connection therewith. The Company shall be responsible for the fees of its transfer agent and its legal counsel associated with such legend removal.
10. Standstill
(a) Each Investor agrees with the Company, severally and not jointly, that during the Standstill Period it shall not, and it will cause each of its controlled Affiliates not to, directly or indirectly (including through any Representative of such Investor), in any manner, alone or in concert with others (unless expressly permitted in writing by the Board):
(i) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining or forming a partnership, limited partnership, syndicate or other group (including any Group), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of, or any economic interest in, any equity securities of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities or securities convertible into or exchangeable for any such Voting Securities);
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(ii) acquire, cause to be acquired, enter into any agreement with respect to or offer, seek or agree to acquire, whether by purchase or otherwise, any Synthetic Position;
(iii) solicit any proxy, consent or other authority to vote or conduct any other referendum (binding or nonbinding) (including any “withhold”, “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities; or
(iv) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing.
(b) The restrictions in this Section 10 shall terminate automatically with respect to each Investor upon the expiration of the Standstill Period.
(c) Notwithstanding the foregoing, the Investors may make one or more Acquisitions of Common Stock directly from the Company during the Standstill Period.
(d) Notwithstanding the foregoing, each of the Investors that beneficially owns more than 10.0% of the aggregate outstanding shares of the Common Stock immediately prior to any Acquisition of Common Stock may make one or more Acquisitions of Common Stock in open market purchases during the period subsequent to the Closing Date and prior to the termination of the Standstill Period in an amount not to exceed 600,000 shares of Common Stock with respect to each such Investor.
11. Board Appointment and Related Agreements
(a) Board Appointment. The Company shall take all necessary actions to appoint each of the Anchor Designee Director and the Agreed-Upon Director (each, a “New Director” and, collectively, the “New Directors”) as directors of the Company effective as of the Closing Date with such New Directors having terms expiring at the Company’s Annual Meeting in 2028, and to appoint the Anchor Designee Director as the Chairperson of the Board, unless otherwise agreed to by the Company and the Anchor Investor. At all times while serving as a member of the Board (and as a condition to such service), the New Directors shall comply with and satisfy all agreements, policies, codes, charters, guidelines, SEC and stock exchange rules and law applicable to Board members generally.
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(b) Replacement Directors. Following the Effective Date, if either of the New Directors is unable or unwilling to serve as a director or resigns as a director, then the Anchor Investor shall, as long as the Anchor Investor is not in material breach of this Purchase Agreement (and such material breach has not been cured within ten (10) days after written notice has been delivered by the Company to the Anchor Investor of such material breach), have the ability within thirty (30) days of such New Director’s departure from the Board to recommend a substitute Person to replace the applicable New Director in accordance with, and subject to, this Section 11(b). If a replacement Director (a “Replacement Director”) is appointed to the Board pursuant to this Section 11(b), all references in this Purchase Agreement to the term “New Director” or “New Directors” will include and refer to such Replacement Director, as applicable (including for the avoidance of doubt, as the term “New Director” is used in Section 11(c)).
(c) General Director Criteria. The appointment of any New Director shall be subject to the execution and delivery by such New Director of (x) a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of Board members generally and (y) a written acknowledgment that such New Director or Replacement Director, as applicable, agrees to be bound by all agreements, policies, codes, charters, guidelines, stock exchange rules and law applicable to Board members generally. In addition, the Agreed-Upon Director shall satisfy the Agreed-Upon Director Criteria. For the avoidance of doubt, if the Board does not approve and appoint any such candidate as a New Director, the procedures described in this Section 11(c) shall be followed until a New Director is approved and appointed to the Board.
12. Superior Proposals; Company Board Recommendation
(a) No Solicitation; Existing Discussions.
(i) From the Effective Date until the termination of this Purchase Agreement, and except as expressly permitted by this Section 12 and Section 18, neither the Company nor any of the directors and officers of the Company shall, and the Company shall instruct and use its reasonable best efforts to cause the other Representatives of the Company not to, directly or indirectly initiate, solicit, propose, knowingly assist, or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal, announcement or offer that constitutes, or would reasonably be expected to lead to, any Acquisition/Alternative Proposal (other than discussions solely to clarify whether such proposal or offer constitutes an Acquisition/Alternative Proposal or informing such Person of the provisions contained in this Section 12(a)).
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(ii) Subject to Section 12(b), Section 12(c) and Section 18, upon execution and delivery of this Purchase Agreement, the Company agrees that it will (i) cease and cause to be terminated any activities, discussions or negotiations with any parties conducted with respect to any Acquisition/Alternative Proposal, (ii) cease providing any information to any such Person or its Representatives, (iii) terminate all access granted to any such Person and its Representatives to any physical or electronic data room and (iv) promptly request the prompt return or destruction of all non-public information concerning the Company theretofore furnished to any Person with whom a confidentiality agreement was entered in connection with its consideration of an Acquisition/Alternative Proposal. For the avoidance of doubt, subject to Section 18, the Company and its Representatives may continue activities, discussions or negotiations with respect to Persons who may reasonably become parties to this Purchase Agreement as Additional Investors after the Effective Date.
(iii) The Company agrees that if it (i) affirmatively permits any of its Representatives to take any action or (ii) is made aware of an action by one of its Representatives and does not use its reasonable best efforts to prohibit or terminate such action and, in each case, such action would constitute a breach of this Section 12(a) if taken by the Company, then such action will be deemed to constitute a breach by the Company of this Section 12(a).
(b) Superior Proposals. Notwithstanding anything to the contrary set forth in this Purchase Agreement, from the Effective Date until the earlier to occur of the termination of this Purchase Agreement or the Company’s receipt of the Requisite Stockholder Approval, the Company and the Board may, subject to Section 12(a) above, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of Affiliates to, or afford access to the business, properties, assets, books, records or personnel, of the Company to any Person or such Person’s Representatives, provided that the Company and such Person and such Person’s Representatives have entered into an appropriate confidentiality agreement (which shall not contain any provisions that prohibit the Company from complying with its obligations pursuant to this Section 12), that has made or delivered to the Company an Acquisition/Alternative Proposal after the Effective Date, and otherwise facilitate such Acquisition/Alternative Proposal or assist such Person (and such Person’s Representatives and financing sources) with such Acquisition/Alternative Proposal if requested by such Person, in each case, only with respect to an Acquisition/Alternative Proposal that the Company Board has determined in good faith (A) after consultation with its financial advisors and outside legal counsel, either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal and (B) after consultation with its outside legal counsel, that the failure to do so would be reasonably be likely to be inconsistent with its fiduciary duties under applicable law.
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(c) Company Board Recommendation Change; Entry into Alternative Acquisition/Financing Agreement. Notwithstanding anything to the contrary set forth in this Purchase Agreement, until the earlier to occur of the termination of this Purchase Agreement or the receipt of the Requisite Stockholder Approval, if (i) the Company has received an Acquisition/Alternative Proposal, and (ii) the Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) that such Acquisition/Alternative Proposal constitutes a Superior Proposal, then the Board may (A) effect a Company Board Recommendation Change with respect to such Acquisition/Alternative Proposal; or (B) cause the Company to terminate this Purchase Agreement in order to concurrently enter into any letter of intent, memorandum of understanding, merger agreement, investment agreement, purchase agreement, acquisition agreement, contract or other agreement relating to an Acquisition/Alternative Transaction that is a Superior Proposal (“Alternative Agreement”) (with such term excluding a confidentiality agreement with respect to such Acquisition/Alternative Proposal ) with respect to such Acquisition/Alternative Proposal; provided that the Board shall not take any action described in the foregoing clauses (A) and (B) unless:
(i) the Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable law;
(ii) (x) the Company has provided prior written notice to the Anchor Investor at least four (4) Business Days in advance (such notice period, including any extension thereto in accordance with Section 12(c)(ii), the “Fiduciary-Out Notice Period”) to the effect that the Board intends to take the actions described in clauses (A) or (B) of this Section 12(c), which notice shall include the identity of the Person or Group making such Acquisition/Alternative Proposal, the material terms thereof and copies of all material relevant transaction agreements (including any Alternative Agreements) relating to such Acquisition/Alternative Proposal; and (y) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Fiduciary-Out Notice Period, negotiate with Anchor Investor and its Representatives in good faith (to the extent that the Anchor Investor desires to so negotiate) to enable the Anchor Investor and the Additional Investors, as may be applicable, to make adjustments to the terms and conditions of this Purchase Agreement in such a manner as to be at least as favorable to the Company and the Stockholders as the Acquisition/Alternative Proposal; provided that, in the event of any material modifications to such Acquisition/Alternative Proposal (it being understood that any change to the financial terms (including the form, amount and timing of payment of consideration) or other material terms of such Acquisition/Alternative Proposal shall be deemed a material modification), the Company will be required to deliver a new written notice to the Anchor Investor and to comply with the requirements of this Section 12(c)(ii) with respect to such new written notice, it being understood that the “Fiduciary Out Notice Period” in respect of such new written notice will be three (3) Business Days; and
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(iii) at the end of the Fiduciary-Out Notice Period and prior to taking any such action, the Board has considered in good faith any such proposals by the Anchor Investor and the Additional Investors, as may be applicable, to make revisions to the terms of this Purchase Agreement, and has determined in good faith (after consultation with its financial advisors and outside legal counsel), that (i) such Acquisition/Alternative Proposal continues to constitute a Superior Proposal necessitating the need for such Company Board Recommendation Change and (ii) the failure to take such action with respect such Acquisition/Alternative Proposal would continue to be reasonably likely to be inconsistent with the Board’s fiduciary duties under applicable law if such changes proposed by the Anchor Investor were to be given effect.
(d) No Change in Company Board Recommendation or Entry into an Alternative Agreement. Except as not prohibited by this Section 12, the Board shall not:
(i) (A) withhold, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, the Company Board Recommendation; (B) adopt, approve, recommend or endorse or otherwise declare advisable, or publicly propose to adopt, approve or recommend to the Company Stockholders an Acquisition/Alternative Proposal; (C) fail to include the Company Board Recommendation in the Proxy Statement; (D) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of the public disclosure of an Acquisition/Alternative Proposal (other than of the type referred to in the following clause (E)) with any Person other than the Investors (provided that if the Company Stockholder Meeting is scheduled to be held more than three (3) Business Days but less than ten Business Days from the date of such public disclosure, promptly and in any event prior to the date which is one Business Day before the date on which the Company Stockholder Meeting is scheduled to be held), (E) fail to recommend, in any solicitation/recommendation statement on Schedule 14D-9 under the Exchange Act, against any Acquisition/Alternative Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under the Exchange Act within ten Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer (provided that if the Company Stockholder Meeting is scheduled to be held more than three (3) Business Days but less than ten Business Days from the date of such public disclosure, prior to the date which is one Business Day before the date on which the Company Stockholder Meeting is scheduled to be held) or (F) resolve, agree or publicly propose to do any of the foregoing (any action described in clauses (A) through (F), a “Company Board Recommendation Change”); provided that, for the avoidance of doubt, none of (1) the factually accurate disclosure by the Company of the receipt of an Acquisition/Alternative Proposal, (2) the determination by the Board that an Acquisition/Alternative Proposal constitutes a Superior Proposal; or (3) the delivery by the Company to Anchor Investor of any notice contemplated by Section 12(c) will constitute a Company Board Recommendation Change; or
(ii) cause or permit the Company to enter into an Alternative Agreement.
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(e) Notice. From the Effective Date until the earlier to occur of the termination of this Purchase Agreement or the Closing Date, the Company shall as promptly as reasonably practicable (and, in any event, no later than 11:59 p.m. Eastern Time on the next Business Day) notify Anchor Investor if any Acquisition/Alternative Proposal or any offers or proposals that would reasonably be expected to lead to an Acquisition/Alternative Proposal are received by the Company or any of its Representatives. Such notice must include (i) the identity of the Person or Group making such Acquisition/Alternative Proposal or such offers or proposals; and (ii) a summary of the material terms and conditions (including, for the avoidance of doubt, the form and amount of consideration and proposed financing arrangements) of any such Acquisition/Alternative Proposal and, if applicable, copies of any such Acquisition/Alternative Proposal or offers or proposals. Thereafter, the Company must keep Anchor Investor reasonably informed, on a prompt basis (and in any event by 11:59 p.m. Eastern Time on the next Business Day of any material development, as determined in good faith by the Company), of the status and material terms of any such Acquisition/Alternative Proposal (including any amendments, revisions or other changes thereto) and the status of any related discussions or negotiations.
(f) Certain Disclosures. Nothing contained in this Purchase Agreement will prohibit the Company or the Board (i) from taking and disclosing to the Company Stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or making a customary “stop-look-and-listen” communication to the Company Stockholders pursuant to Rule 14d-9(f) under the Exchange Act or (ii) from making factual disclosures to the Company Stockholders solely to the extent required under applicable securities laws with respect to the issuance of the Purchased Securities or an Acquisition/Alternative Proposal; provided however, that the Board shall not make or resolve to make a Company Board Recommendation Change except in accordance with Section 12(d) above.
13. Fees and Expenses
(a) General. Except as set forth in this Purchase Agreement, all fees and expenses incurred in connection with this Purchase Agreement and the PIPE Transaction shall be paid by the applicable Party incurring such fees and expenses whether or not the PIPE Transaction is consummated; provided, that, upon the Closing, the Anchor Investor shall be reimbursed by the Company for such Anchor Investor’s reasonably documented Anchor Investor Transaction Expenses in an maximum amount of up to $2.0 million in the aggregate (such actual amount, the “Anchor Investor Fees” and such maximum amount, the “Anchor Investor Fee Cap”); provided, further, that, other than the Anchor Investor Fees, the aggregate Company Transaction Expenses shall not exceed $4.0 million. At the election of the Anchor Investor, the Anchor Investor Fees shall be reimbursed and paid by the Company in shares of Common Stock at the Per Share Purchase Price (subject to rounding with respect to any fractional shares).
(b) Company Termination Fee. If this Purchase Agreement is terminated by the Company pursuant to Section 14(c), then the Company must prior to or substantially concurrently with such termination pay, or cause to be paid, to the Anchor Investor the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by the Anchor Investor.
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(c) Single Payment Only. The Anchor Investor and the Company acknowledge and agree that in no event will the Company be required to pay the Company Termination Fee on more than one occasion whether or not the Company Termination Fee may be payable pursuant to more than one provision of this Purchase Agreement at the same or at different times and upon the occurrence of different events.
(d) Sole Remedy. Anchor Investor’s receipt of the Company Termination Fee, will be the sole and exclusive remedies of the Anchor Investor and its Affiliates against the Company, its Affiliates or any of their respective former, current or future general or limited partners, stockholders, equityholders, members, managers, directors, officers, employees, agents or Affiliates (collectively, the “Company Related Parties”) in respect of this Purchase Agreement, any agreement executed in connection herewith and the transactions contemplated hereby and thereby (including any breach, whether a willful breach or otherwise (except in the case of willful and material breach by the Company of its obligations in Section 12)), and other than the Company’s obligation to pay the Company Termination Fee and the Anchor Investor Fees to the Anchor Investor, as may be applicable, none of the Company Related Parties will have any liability or obligation to any Anchor Investor relating to or arising out of this Purchase Agreement or any agreement executed in connection herewith or the transactions contemplated hereby and thereby. The Company Related Parties are intended third party beneficiaries of this Section 13(d). In no event shall the Company have liability for monetary damages in the aggregate in excess of the amount of the Company Termination Fee plus the Anchor Investor Fee Cap, which shall be the maximum aggregate liability of the Company with respect to any and all claims under or relating to this Purchase Agreement and the PIPE Transaction with respect to the Investors (except in the case of willful and material breach by the Company of its obligations in Section 12). Notwithstanding anything to the contrary herein, other than obligation of the Company to pay the Company Termination Fee and the Anchor Investor Fee Cap, in no event will any Company Related Party or any other Person have any liability for monetary damages to the Anchor Investor or other Investors relating to or arising out of this Purchase Agreement or the PIPE Transaction.
(e) Acknowledgments. The Parties acknowledge that the agreements contained in this Section 13 are an integral part of this Purchase Agreement and that, without this Section 13, the Investors would not have entered into this Purchase Agreement and that, without this Section 13, the Parties would not have entered into this Purchase Agreement.
14. Termination. This Purchase Agreement may be terminated and shall thereafter be void and of no further force and effect, and all rights and obligations of the Parties hereunder shall terminate without any further liability on the part of any party in respect thereof (except as set forth in this Purchase Agreement), as follows:
(a) by the mutual written agreement of each of the Company and the Anchor Investor to terminate this Purchase Agreement at any time prior to the Closing (whether prior to or after the receipt of the Requisite Stockholder Approval);
(b) by either the Company or the Anchor Investor upon a material breach of the terms of this Purchase Agreement that is not cured by the breaching party within ten (10) Business Days of delivery by the non-breaching party of written notice of such breach;
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(c) by the Company, at any time prior to receiving the Requisite Stockholder Approval, if the Company (i) has complied with Section 12 and (ii) pays to Anchor Investor in immediately available funds the Company Termination Fee substantially concurrently with such termination;
(d) by the Company, (i) if all of the conditions set forth in Section 4(b) are satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, so long as such conditions are at the time of termination capable of being satisfied as if such time were the Closing), (ii) the Anchor Investor fails to consummate the PIPE Transaction by the date that is three (3) Business Days after the first date on which the Anchor Investor is required to consummate the Closing pursuant to Section 3, and (iii) the Company has irrevocably confirmed to the Investors in writing that it is prepared to consummate the Closing;
(e) by the Anchor Investor, (i) if all of the conditions set forth in Section 4(a) and Section 4(c) are satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, so long as such conditions are at the time of termination capable of being satisfied as if such time were the Closing), (ii) the Company fails to consummate the PIPE Transaction by the date that is three (3) Business Days after the first date on which the Company is required to consummate the Closing pursuant to Section 3, and (iii) the Anchor Investor has irrevocably confirmed to the Investors in writing that it is prepared to consummate the Closing;
(f) by the Company if the Closing has not occurred by April 30, 2026; or
(g) by the Anchor Investor if the Closing has not occurred by April 30, 2026.
15. Confidentiality
(a) Each Investor covenants that until such time as the transactions contemplated by this Purchase Agreement and any material non-public information provided to such Investor are publicly disclosed by the Company, such Investor will maintain the confidentiality of all such disclosures made to it in connection with this transaction (including the existence and terms of this transaction), other than to such Investor’s outside attorney, accountant, auditor or business advisors only to the extent necessary to permit evaluation of the investment, and the performance of the necessary or required tax, accounting, financial, legal, or administrative tasks and services and other than as may be required by law.
(b) The Anchor Investor and the Company agree and acknowledge that, subject to applicable law, the New Directors may share material non-public information (including oral, written and electronic information) concerning the Company, its Subsidiaries (if any) or its Affiliates that may be furnished to them by or on behalf of the Company or any of its Representatives (including discussions or matters considered in meetings of the Board or any Board committees) (“Confidential Information”) but not Competitively Sensitive Information with Anchor Investor and its Affiliates solely for the purposes of monitoring, administering or managing the Anchor Investor’s investment in the Company made pursuant to this Purchase Agreement, subject to adequate procedures being maintained to prevent such information being used in connection with the purchase or sale of securities of the Company in violation of applicable law; provided that, for the avoidance of doubt, no Confidential Information or Competitively Sensitive Information shall be shared with any “portfolio companies” (as such term is customarily used among institutional investors) in which the Anchor Investor or any of its Affiliates has an investment (whether as debt or equity), except with respect to any directors, officers or employees who are (x) compliance personnel for compliance purposes or (y) non-compliance personnel of the Anchor Investor who are directors of, or function in a similar oversight role at, such portfolio company as long as Confidential Information is not otherwise disclosed to such portfolio company.
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(c) The obligations of the Anchor Investor and the New Directors under this Section 15 shall be in addition to, and not in lieu of, any confidentiality obligations of the New Directors under Delaware law and the applicable corporate governance policies of the Company; provided, that in the event of a conflict between the New Directors’ confidentiality obligations under the applicable such policies and those in this Section 15, the terms of this Section 15 shall control.
16. Publicity. Each Investor and the Company shall use commercially reasonable efforts to consult with each other prior to issuing any press release, public disclosure or other public statements with respect to any descriptions of the existence or terms of this Purchase Agreement or PIPE Transaction (including the Proxy Statement or any filing with the SEC on Form 10-Q, Form 10-K or any proxy statement with respect to the Company’s annual meeting or other SEC Documents generally describing the material terms of the PIPE Transaction) (a “Transaction Public Statement”), and no Investor, on the one hand, shall make any Transaction Public Statement without the prior written consent of the Company, and the Company, on the other hand, shall not make any Transaction Public Statement without the prior written consent of any Investor named in such Transaction Public Statement, in each case not to be unreasonably withheld; provided that the Company shall not be obligated to consult with Investors to the extent that any Transaction Public Statement is consistent with prior Transaction Public Statements approved in accordance with this Section 16. Notwithstanding the foregoing, each Investor, including the Anchor Investor, may make such public disclosure to the extent required by applicable law or SEC regulations, and such Investors shall use commercially reasonable efforts to notify the Company at least 24 hours prior to any such disclosure by such Investors and to provide and consider incorporating, in good faith, any comments by the Company into any such disclosures. From the Effective Date through the termination of Standstill Period, if the Anchor Investor determines that it must file a further amendment to its Schedule 13D with respect to the Common Stock, the Anchor Investor shall provide the Company with reasonable notice (which shall not be less than 24 hours’ advance notice), including the draft of such disclosure, prior to the filing thereof.
17. Non-Disparagement. Subject to applicable law, each of the Parties covenants and agrees that, during the period from the signing of this Purchase Agreement until the termination of the Standstill Period, neither it nor any of its respective Affiliates shall in any way disparage, comment negatively upon, slander, criticize, attempt to discredit, make derogatory statements with respect to, call into disrepute, defame, make or cause to be made any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages (or causes to be disparaged) the other Party or such other Party’s Subsidiaries, Affiliates, successors, assigns, officers (including any current or former officer of a Party or a Party’s Subsidiaries), directors (including any current or former director of a Party or a Party’s Subsidiaries), stockholders, or Representatives, in each case in their capacities as such. Nothing in this Section 17 will (a) prevent either the Company or the Anchor Investor or any of their respective Affiliates from complying with their respective disclosure obligations under any law, legal process, subpoena, the rules of Nasdaq or any legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the Party from whom information is sought, (b) apply to any private communications between any Investor, its Affiliates and their respective Representatives, on the one hand, and the directors or officers of the Company, on the other hand, or (c) be deemed to prevent the Parties or any of their respective Affiliates from bringing litigation to enforce the provisions of this Purchase Agreement or making counterclaims with respect to any proceeding initiated by or on behalf of a Party or its Affiliates or any of their respective Representatives.
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18. Miscellaneous
(a) Assignability. Neither this Purchase Agreement nor any rights that may accrue to such Investor hereunder (other than the Purchased Securities acquired hereunder, if any, subject to Section 10) may be transferred or assigned, other than (i) a transfer or assignment by the Anchor Investor to another Person with the consent of the Company or (ii) an assignment to any Affiliate of such Investor or any fund or account managed by the same investment manager as such Investor or an Affiliate thereof, subject to, if such transfer or assignment is prior to the Closing, such transferee or assignee, as applicable, executing a joinder to this Purchase Agreement as set forth in Annex A hereto (or a separate Purchase Agreement in substantially the same form as this Purchase Agreement, including with respect to the Purchase Price and other terms and conditions); provided that, in the case of any such transfer or assignment pursuant to clauses (i) and (ii), the initial party to this Purchase Agreement shall remain bound by its obligations under this Purchase Agreement in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary herein, in no event shall the number of Purchased Securities allocated to the Anchor Investor be reduced below the amount set forth on Schedule B.
(b) Additional Information. The Company may request from such Investor such additional information as the Company may deem necessary to evaluate the eligibility of such Investor to acquire the Purchased Securities and in connection with the inclusion of the Purchased Securities in any periodic report, registration statement or prospectus supplement, as applicable, and such Investor shall promptly provide such information as may reasonably be requested, to the extent readily available and to the extent consistent with its internal policies and procedures; provided that the Company agrees to keep any such information provided by such Investor confidential, except as required by laws, rules or regulations, at the request of the staff of the SEC or another regulatory agency or by the regulations of any applicable stock exchange. Such Investor acknowledges that the Company may file a copy of the form of this Purchase Agreement with the SEC as an exhibit to or within a current or periodic report or a registration statement of the Company.
(c) Understanding. Such Investor acknowledges that the Company will rely on the acknowledgments, understandings, agreements, representations and warranties of such Investor contained in this Purchase Agreement. Prior to the Closing, such Investor agrees to promptly notify the Company if any of the acknowledgments, understandings, agreements, representations and warranties of such Investor set forth herein are no longer accurate.
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(d) Legal Proceeding Production. The Company and such Investor are each entitled to rely upon this Purchase Agreement and each is irrevocably authorized to produce this Purchase Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
(e) No Survival. Except for Section 15, the representations and warranties and covenants and agreements (to the extent contemplating or requiring performance at or prior to the Closing) of the Investors and the Company set forth in this Purchase Agreement or in any certificate delivered in connection with this Purchase Agreement shall not survive the Closing. Each of the representations and warranties of the Investors and the Company (including those subject to satisfaction or waiver of such conditions at the Closing) set forth in this Purchase Agreement shall terminate effective immediately at the Closing. Notwithstanding anything herein to the contrary, no termination of this Purchase Agreement shall relieve or otherwise limit the liability of any Party for any breach of this Purchase Agreement occurring prior to such termination.
(f) Amendments; Waivers. This Purchase Agreement may not be modified, waived or terminated except by an instrument in writing, signed by each of the Parties. No failure or delay of any Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.
(g) Entire Agreement. This Purchase Agreement and the Confidentiality Agreement dated as of December 3, 2025 between the company and Hoffmann Florida Media Group, LLC, an Affiliate of the Anchor Investor (including, for the avoidance of doubt, any exhibits and schedules hereto) constitute the entire understanding, and supersedes all other prior agreements (including any non-binding term sheets), understandings, representations and warranties, both written and oral, among the Parties, with respect to the subject matter hereof. Except as set forth in Section 13(d), Section 18(c) and Section 18(d) with respect to the persons referenced therein, this Purchase Agreement shall not confer any rights or remedies upon any Person other than the Parties, and their respective successor and assigns.
(h) Binding. Except as otherwise provided herein, this Purchase Agreement shall be binding upon, and inure to the benefit of the Parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
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(i) Severability. If any provision of this Purchase Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Purchase Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
(j) No Representation. Each Additional Investor hereby acknowledges and agrees that this Purchase Agreement was prepared and negotiated by Kirkland & Ellis (“K&E”), as legal counsel to the Company, and Lathrop GPM LLP (“LGPM”), as legal counsel to the Anchor Investor, and that neither K&E nor LGPM is acting as legal counsel to any Additional Investor. Accordingly, each Additional Investor is advised that the interests of the Additional Investors, the Company, and the Anchor Investor may be opposed to each other, and K&E’s and LGPM’s representation as aforesaid may not be not be in the best interests of the Additional Investors. Each Additional Investor is advised to retain separate legal counsel to review this Purchase Agreement prior to its execution, and by their execution hereof, each Additional Investor hereby acknowledges that they have been giving an opportunity to review this Purchase Agreement with any attorney of their choice.
(k) Counterparts. This Purchase Agreement may be executed (including by DocuSign or similar electronic signature method) in one or more counterparts (including by electronic mail and in .pdf) and by different parties in separate counterparts, with the same effect as if all Parties had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(l) Specific Performance. The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Purchase Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Purchase Agreement and to specific enforcement of this Purchase Agreement, in addition to any other remedy to which any party is entitled at law, in equity, in contract, in tort or otherwise. In the event that any claim, action, suit or proceeding shall be brought in equity to enforce the provisions of this Purchase Agreement, no party hereto shall allege, and each party hereto hereby waives the defense, that there is an adequate remedy at law, and each party hereto agrees to waive any requirement for the securing or posting of any bond in connection therewith.
(m) Jurisdiction; Forum. Any claim, action, suit or proceeding based upon, arising out of or related to this Purchase Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, only to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware), and each of the Parties hereto irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction of each such court in any such claim, action, suit or proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of such action, suit or proceeding shall be heard and determined only in any such court and (iv) agrees not to bring any claim, action, suit or proceeding arising out of or relating to this Purchase Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction to enforce judgments obtained in any claim, action, suit or proceeding brought in accordance with this Section 18(l); provided that service of process with respect to any such claim, action, suit or proceeding may also be made upon any party hereto by mailing a copy thereof by registered or certified mail, postage prepaid, to such party at its address as provided in Section 19.
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(n) Governing Law. This Purchase Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other State.
(o) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS PURCHASE AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY; AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS PURCHASE AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 18(n).
19. Notices. All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (a) when delivered in Person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service, or (d) when sent by electronic mail with no known mail undeliverable or rejection notice received by the sender, addressed as follows:
If to an Investor, to the address provided on such Investor’s signature page hereto.
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If to the Company, to:
Lee Enterprises, Incorporated
4600, E 53rd Street, Davenport, Iowa 52807
| Attention: | Astrid Garcia | |
| Email: | [***] |
with copies (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
| Attention: | Sarkis Jebejian, P.C., Jennifer L. Lee, P.C., Drew Maliniak | |
| Email: | sarkis.jebejian@kirkland.com; jennifer.lee@kirkland.com; drew.maliniak@kirkland.com |
Lane & Waterman LLP
220 N. Main Street, Suite 600
Davenport, Iowa 52801
| Attention: | T.F. Olt III | |
| Email: | tolt@L-WLaw.com |
or to such other address or addresses as the Parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.
[SIGNATURE PAGES FOLLOW]
36
IN WITNESS WHEREOF, the Investor has executed or caused this Purchase Agreement to be executed by its duly authorized representative as of the date first written above.
| Name of Investor: | State/Country of Formation or Domicile: | ||
| By: | |||
| Name: | |||
| Title: | |||
| Name in which Purchased Securities are to be registered (if different): | |||
| Investor’s EIN: | ||
| Business Address-Street: | Mailing Address-Street (if different): | |
| City, State, Zip: | City, State, Zip: | |
| Attn: | Attn: | |
| Telephone No.: | Telephone No.: | |
| Email: | Email: | |
| Number of Purchased Securities being purchased: | ||
| Aggregate Purchase Price: $ |
You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Company.
[Signature Page to Purchase Agreement]
IN WITNESS WHEREOF, the Company has agreed to this Purchase Agreement as of the date first written above.
| COMPANY: | ||
| LEE ENTERPRISES, INCORPORATED | ||
| By: | /s/ Timothy R. Millage | |
| Name: | Timothy R. Millage | |
| Title: | Vice President, Chief Financial Officer and Treasurer | |
[Signature Page to Purchase Agreement]
IN WITNESS WHEREOF, the Investor has agreed to this Purchase Agreement as of the date first written above.
| INVESTOR: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Purchase Agreement]
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE INVESTOR
| A. | QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the applicable subparagraphs): |
| ☐ | We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act). |
OR
| B. | ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs): |
1. ☐ We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.”
2. ☐ We are not a natural person.
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”
| ☐ | Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company; |
| ☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
| ☐ | Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, savings and loan association, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000, or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; |
| ☐ | Any private business development company; |
| ☐ | Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; |
[Schedule A to Purchase Agreement]
| ☐ | Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; |
| ☐ | Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 calendar days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability; |
| ☐ | Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; |
| ☐ | Any trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person; |
| ☐ | Any entity in which all of the equity owners are accredited investors; |
| ☐ | Any entity of a type not listed first, second, third, fourth, ninth or tenth bullets of this section, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; |
| ☐ | Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the Securities and Exchange Commission has designated as qualifying an individual for accredited investor status; |
| ☐ | Any natural person who is a “knowledgeable employee” as defined in rule 3c-5(a)(4) under the Investment Company Act of 1940 of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act; |
| ☐ | Any “family office,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, as amended, with assets under management in excess of $5,000,000, not formed to acquire the securities offered, and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment; or |
| ☐ | Any “family client,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, as amended, of a family office meeting the requirements set forth above and whose prospective investment in the issuer is directed by such family office pursuant to the requirements set forth above. |
[Schedule A to Purchase Agreement]
| 3a. | Please indicate whether or not the Investor is, or is acting (directly or indirectly) on behalf of, (i) an employee benefit plan (within the meaning of Section 3(3) of ERISA), whether or not such plan is subject to ERISA, (ii) a plan, individual retirement account or other arrangement that is described in Section 4975(e)(1) of the Code, whether or not such plan, account or arrangement is subject to Section 4975 of the Code, (iii) an insurance company using general account assets, if such general account assets are deemed to include the assets of any of the foregoing types of plans, accounts or arrangements for purposes of Title I of ERISA or Section 4975 of the Code under Section 401(c)(1)(A) of ERISA or the regulations promulgated thereunder, or (iv) an entity which is deemed to hold the assets of any of the foregoing types of plans, accounts or arrangements (each of the foregoing described in clauses (i), (ii), (iii) and (iv) being referred to as a “Plan Investor”). |
| ☐ | Yes |
| ☐ | No |
| 3b. | If question 3a above was answered “Yes,” please indicate whether or not the Plan Investor is subject to Title I of ERISA or Section 4975 of the Code. |
| ☐ | Yes |
| ☐ | No |
| 3c. | If question 3b above was answered “Yes,” please indicate what percentage of the Plan Investor’s assets invested in the Company are the assets of “benefit plan investors” as defined in Section 3(42) of ERISA. |
| ______% |
This page should be completed by the Investor
and constitutes a part of the Purchase Agreement.
[Schedule A to Purchase Agreement]
SCHEDULE B
[Intentionally Omitted]
[Schedule B to Purchase Agreement]
Annex A
Form of Joinder
JOINDER TO STOCK PURCHASE AGREEMENT
This Joinder (this “Joinder Agreement”) is made as of [●], 20[●], by and between Lee Enterprises, Incorporated, a Delaware corporation (the “Company”), [the Anchor Investor,] [[●], (the “Original Investor”)] and [●] (“New Investor Party”) to the Stock Purchase Agreement, dated as of December 30, 2025, by and among the Company and the Investors party thereto, a copy of which is attached hereto as Annex I (as amended, supplemented, replaced or otherwise modified from time to time, the “Purchase Agreement”).
Pursuant to the terms of the Purchase Agreement, including Section 18(a) thereof, each of [the Anchor Investor,] [the Original Investor,] the New Investor Party and the Company is required to execute this Joinder Agreement for the purposes of transferring certain rights and obligations to purchase Common Stock at the Closing as reflected on Schedule B to the Purchase Agreement and making the New Investor Party a party to the Purchase Agreement. Upon the execution and delivery of this Joinder Agreement, Schedule B shall be deemed updated and reflect the assignment to the New Investor Party.
Each of the Company, [Anchor Investor] [Original Investor] and the New Investor Party have agreed to execute this Joinder Agreement and agree as follows:
| 1. | Defined Terms. All capitalized, undefined terms used in this Joinder Agreement have the meanings assigned thereto in the Purchase Agreement. |
| 2. | Consent and Assignment. The [Anchor Investor] [Original Investor] hereby assigns to the New Investor Party its rights and obligations under the Purchase Agreement to purchase an aggregate amount number of shares of Common Stock equal to [●] from the Company (such transfer or assignment, the “Transfer”); provided, that such assignment will not relieve the [Anchor Investor] [Original Investor] of its obligations under the Purchase Agreement in the event the New Investor Party fails to fully perform its obligations under the Purchase Agreement. For the avoidance of doubt, the Company hereby consents to such Transfer. |
| 3. | Joinder of New Member. |
| a. | The New Investor Party hereby agrees to become a party to the Purchase Agreement, and upon acceptance hereof by the Company, agrees to become a party as an [“Investor”] [“Anchor Investor”]1 party thereto, subject to all of the terms and conditions thereof and shall be deemed to make all of the representations, warranties and covenants, as an Investor, in the same manner as if it were the original signatory of the Purchase Agreement. |
| b. | The New Investor Party has executed and delivered a Voting Agreement with the Company. |
| c. | The New Investor has executed and delivered Schedule A to the Purchase Agreement. |
| 1 | To be used for transfers by Anchor Investors to its Affiliates only. |
[Remainder of Page Left Blank]
IN WITNESS WHEREOF, the following Parties have agreed to this Joinder Agreement as of the date first written above.
| COMPANY: | ||
| LEE ENTERPRISES, INCORPORATED | ||
| By: | ||
| Name: | ||
| Title: | ||
| [ANCHOR
INVESTOR:] [ORIGINAL INVESTOR] | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| NEW INVESTOR PARTY: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Joinder]
Exhibit A
Form of Registration Rights Agreement
[Attached]
Exhibit B
Form of Credit Agreement Amendment
[Attached]
Exhibit C
Form of Voting Agreement
[Attached]
Exhibit D
Form of Executive Retirement and Transition Agreement
[Attached]
Exhibit 10.2
FORM OF
REGISTRATION RIGHTS AGREEMENT
AMONG
LEE ENTERPRISES, INCORPORATED
AND
THE HOLDERS PARTY HERETO
DATED [●], 2026
TABLE OF CONTENTS
| Page | |||
| Article I DEFINITIONS | 1 | ||
| Section 1.1 | Definitions | 1 | |
| Article II SHELF REGISTRATION | 3 | ||
| Section 2.1 | Shelf Registration | 3 | |
| Section 2.2 | Deferral or Suspension of Registration | 6 | |
| Section 2.3 | Selection of Underwriters; Cutback | 6 | |
| Section 2.4 | Lock-up | 7 | |
| Section 2.5 | Participation in Underwritten Offering; Information by Holder | 7 | |
| Section 2.6 | Registration Expenses | 8 | |
| Article III PIGGYBACK REGISTRATION | 8 | ||
| Section 3.1 | Notices | 8 | |
| Section 3.2 | Underwriter’s Cutback | 9 | |
| Section 3.3 | Company Control | 10 | |
| Section 3.4 | Selection of Underwriters | 10 | |
| Section 3.5 | Withdrawal of Registration | 10 | |
| Article IV REGISTRATION PROCEDURES | 10 | ||
| Section 4.1 | Registration Procedures | 10 | |
| Article V INDEMNIFICATION | 14 | ||
| Section 5.1 | Indemnification by the Company | 14 | |
| Section 5.2 | Indemnification by Holders | 15 | |
| Section 5.3 | Conduct of Indemnification Proceedings | 15 | |
| Section 5.4 | Settlement Offers | 16 | |
| Section 5.5 | Other Indemnification | 16 | |
| Section 5.6 | Contribution | 16 | |
| Article VI EXCHANGE ACT COMPLIANCE | 16 | ||
| Section 6.1 | Exchange Act Compliance | 16 | |
| Article VII MISCELLANEOUS | 17 | ||
| Section 7.1 | Severability | 17 | |
| Section 7.2 | Governing Law; Jurisdiction; Waiver of Jury Trial | 17 | |
| Section 7.3 | (Reserved.) | 17 | |
| Section 7.4 | Successors and Assigns | 17 | |
| Section 7.5 | Notices | 17 | |
| Section 7.6 | Headings | 18 | |
| Section 7.7 | Additional Parties | 18 | |
| Section 7.8 | Adjustments | 18 | |
| Section 7.9 | Entire Agreement | 18 | |
| Section 7.10 | (Reserved.) | 18 | |
| Section 7.11 | Counterparts; .pdf Signature | 19 | |
| Section 7.12 | Amendment | 19 | |
| Section 7.13 | Extensions; Waivers | 19 | |
| Section 7.14 | Business Days | 19 | |
| Section 7.15 | Independent Nature of Holder’s Obligations | 20 | |
| Section 7.16 | Further Assurances | 20 | |
| Section 7.17 | No Third-Party Beneficiaries | 20 | |
| Section 7.18 | Interpretation; Construction | 20 | |
| Section 7.19 | Term | 20 | |
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THIS REGISTRATION RIGHTS AGREEMENT, dated as of [●], [●] (this “Agreement”), is entered into by and among Lee Enterprises, Incorporated, a Delaware corporation (the “Company”), and each of the Holders (as defined below) that are parties hereto from time to time.
RECITALS
The Company and the Holders entered into that certain Stock Purchase Agreement, dated as of December 30, 2025 (the “Stock Purchase Agreement”), in connection with the issuance of certain shares of Common Stock through a private placement. Capitalized terms that are used but not defined herein shall have the meanings set forth in the Stock Purchase Agreement.
Upon the Closing, the Company and the Holders, as set forth on Schedule I hereto, have agreed to enter into this Agreement pursuant to which the Company shall grant the Holders registration rights under the Securities Act (as defined below) with respect to the Registrable Securities (as defined below) in furtherance of the foregoing.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Holders hereby agree as follows:
AGREEMENT
Article
I
DEFINITIONS
Section 1.1 Definitions. The following terms as used herein shall have the following respective meanings:
“Joinder Agreement” means a Joinder Agreement in the form attached hereto as Exhibit A.
“Agreement” has the meaning set forth in the Preamble.
“Board” means the Board of Directors of the Company.
“Business Day” means any day other than a Saturday, Sunday, a day on which the SEC or state or federally chartered banking institutions in New York City, New York, in each case, are authorized or obligated by law or executive order to close.
“Company” has the meaning set forth in the Preamble.
“Common Stock” shall mean, collectively, the Company’s common stock, par value $0.01 per share.
“Control,” and its correlative meanings, “Controlling,” and “Controlled,” mean the possession, direct or indirect (Including through one or more intermediaries), of the power to direct or cause the direction of the management of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Demand Holder” means the Anchor Investor.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Registration” means any registration (i) pursuant to a Shelf Registration completed in accordance with Article II, or (ii) in connection with registrations on Form S-4 or Form S-8 promulgated by the SEC or any successor or similar forms).
“FINRA” means the Financial Industry Regulatory Authority or any successor regulatory authority.
“Holders” means each Investor as set forth in the Stock Purchase Agreement that is a holder of Registrable Securities being set forth on Schedule I hereto and any Person that executes a Joinder Agreement.
“Person” means any individual, partnership, limited liability company, corporation, company, association, joint stock company, trust, joint venture, unincorporated organization or any governmental entity or any department, agency or political subdivision thereof.
“Prospectus” means the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the securities covered by such Registration Statement and, in each case, by all other amendments and supplements to such prospectus, including post-effective amendments and, in each case, all material incorporated by reference in such prospectus.
“Registrable Securities” means, with respect to any Holder, at any time, the Purchased Securities at such time; provided, however, that as to any Registrable Securities, such securities shall cease to be Registrable Securities (i) upon the sale or transfer thereof pursuant to an effective registration statement, pursuant to Rule 144 or otherwise, (ii) when such securities cease to be outstanding, or (iii) when such securities may be sold or disposed of by such Holder under Rule 144 (or any similar provisions then in force) without limitation during a three-month period.
“Registration Statement” means any registration statement of the Company filed with the SEC under the Securities Act that covers the Registrable Securities, including any preliminary Prospectus and the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits thereto and all material incorporated by reference in such registration statement.
“Rule 144” means Rule 144 under the Securities Act (or successor rule).
“SEC” means the Securities and Exchange Commission or any other U.S. Federal agency at the time administering the Securities Act.
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“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Selling Holder” means the Holders selling Registrable Securities pursuant to a Registration Statement under this Agreement.
“Subsidiary” means each Person in which another Person owns or controls, directly or indirectly, capital stock or other equity interests representing more than 50% in voting power of the outstanding capital stock or other equity interests.
“Underwritten Offering” means a sale, on the Company’s or any Holder’s behalf, of Common Stock by the Company or a Holder to an underwriter for reoffering to the public.
Article
II
SHELF REGISTRATION
Section 2.1 Shelf Registration.
(a) Shelf Filing. The Company shall use its commercial best efforts to file with the SEC and have declared effective, as promptly as practicable following the execution of this Agreement, a registration statement on Form S-3, to the extent permitted and available (and otherwise, on Form S-1), or any comparable or successor form or forms or any similar short-form registration constituting a “shelf” registration statement providing for the registration of, and the sale by the Holders on a continuous or delayed basis of, all of the Registrable Securities, pursuant to Rule 415 or otherwise (a “Shelf Registration Statement”); provided that, notwithstanding anything to the contrary, the initial Shelf Registration Statement shall in any event be filed and declared effective no later than 60 days after the date hereof, but in no event more than 75 days following the initial filing (with such 75-day period tolled for any SEC shutdown during such period). The Company shall replace any Shelf Registration Statement at or before expiration with a successor effective registration statement on Form S-3 (or any comparable or successor form or forms or, if the Company is not eligible to file a registration statement on Form S-3, a successor effective registration statement on Form S-1 providing for the registration of, and the sale by the Stockholders on a continuous or delayed basis of, all of the Registrable Securities, pursuant to Rule 415 or otherwise) to the extent the Demand Holder holds any Registrable Securities. Any such successor registration statement shall be considered a “Shelf Registration Statement” for the purposes of this Agreement. In the event the Company files a Shelf Registration Statement on Form S-1, the Company shall use its reasonable best efforts to convert it to a Shelf Registration Statement on Form S-1 to a registration statement on Form S-3 as soon as practicable after the Company is eligible to use Form S-3.
(b) Shelf Take-Downs. Any Holder may initiate an offering or sale of all or part of its Registrable Securities (a “Shelf Take-Down”), in which case the provisions of this Section 2.1 shall apply. Notwithstanding the foregoing:
(i) any such Holder may initiate an unlimited number of Non-Marketed Shelf Take-Downs pursuant to Section 2.1(d) below; and
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(ii) the Demand Holder may initiate an Underwritten Offering (including any block trade) (an “Underwritten Shelf Take-Down”) pursuant to Section 2.1(c) below; provided that in each case, (A) the Company shall only be required to effect one (1) Underwritten Shelf Take-Down in any twelve (12) month period and (B) the Registrable Securities proposed to be sold by the Demand Holder in such Underwritten Shelf Take-Down shall be required to (x) have a reasonably anticipated aggregate offering price of at least $10.0 million before deduction of underwriting discounts and commissions or (y) constitute all remaining Registrable Securities held by the Demand Holder.
(c) Underwritten Shelf Take-Downs.
(i) Subject to Section 2.1(b), if the Demand Holder so elects in a written request delivered to the Company (an “Underwritten Shelf Take-Down Notice”) to effect a Shelf Take-Down in the form of an Underwritten Shelf Take-Down, the Company shall use commercially reasonable efforts to file and effect an amendment or supplement to its Shelf Registration Statement for such purpose as soon as practicable. The Demand Holder shall indicate in such Underwritten Shelf Take-Down Notice the number of Registrable Securities of the Demand Holder to be included in such Underwritten Shelf Take-Down and whether it intends for such Underwritten Shelf Take-Down to involve a customary “roadshow” (including an “electronic roadshow”) or other marketing effort by the Company and the underwriters (a “Marketed Underwritten Shelf Take- Down”).
(ii) Promptly upon receipt of an Underwritten Shelf Take-Down Notice with respect to a Marketed Underwritten Shelf Take-Down (but in no event more than ten (10) days prior to the expected date of such Marketed Underwritten Shelf Take-Down), the Company shall promptly deliver a written notice of such Marketed Underwritten Shelf Take-Down to any Piggyback Eligible Holder (which notice may be by email and shall state that the material terms of such proposed Marketed Underwritten Shelf Take-Down, to the extent known) (a “Company Notice”) and, in each case, subject to Section 2.3(b) and Section 2.5, the Company shall include in such Marketed Underwritten Shelf Take-Down all such Registrable Securities of such Holders for which the Company has received written requests, which requests must specify the aggregate amount of such Registrable Securities of such Holder to be offered and sold pursuant to such Marketed Underwritten Shelf Take-Down, at least three (3) Business Days prior to the expected date of such Marketed Underwritten Shelf Take-Down.
(iii) Subject to Section 2.2(b), if the Demand Holder desires to effect an Underwritten Shelf Take-Down that is not a Marketed Underwritten Shelf Take-Down, the Demand Holder shall provide written notice (a “Shelf Take-Down Notice”) of such Shelf Take-Down to the Company and the Piggyback Eligible Holders as far in advance of the completion of such Shelf Take-Down as shall be reasonably practicable in light of the circumstances applicable to such Shelf Take-Down but no less than five (5) Business Days prior to such Shelf Take- Down. Any Shelf Take-Down Notice shall set forth (A) the total number of Registrable Securities expected to be offered and sold in such Shelf Take-Down, (B) the expected date of such Shelf Take-Down, (C) the expected plan of distribution of such Shelf Take-Down, and (E) both (i) an invitation to the Piggyback Eligible Holders to elect to include in the Shelf Take-Down the Registrable Securities held by such other Holders (but subject to Section 2.3(b) and Section 2.5) and (ii) the action or actions required (including the timing thereof) in connection with such Shelf Take-Down with respect to the other Piggyback Eligible Holders if any such Holder elects to exercise such right. Upon receipt of a Shelf Take-Down Notice, the Piggyback Eligible Holders may elect to sell Registrable Securities in such Shelf Take-Down, at the same price per Registrable Security and pursuant to the same terms and conditions with respect to payment for the Registrable Securities as agreed to by the Demand Holder, by sending, at least two (2) Business Days prior to the expected date of such Shelf Take-Down set forth in such Shelf Take-Down Notice, an irrevocable written notice to the Demand Holder, indicating its election to participate in the Shelf Take-Down and the total number of its Registrable Securities to include in the Shelf Take-Down (but, in all cases, subject to Section 2.3(b) and Section 2.5).
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(iv) Notwithstanding the delivery of any Underwritten Shelf Take-Down Notice, all determinations as to whether to complete any Underwritten Shelf Take-Down and as to the timing, manner, price and other terms of any Underwritten Shelf Take-Down shall be at the discretion of the Demand Holder.
(d) Non-Marketed Shelf Take-Downs. If a Holder desires to effect a Shelf Take-Down that does not constitute an Underwritten Shelf Take-Down (a “Non-Marketed Shelf Take-Down”) and if such Non-Marketed Shelf Take-Down requires actions to be taken by the Company, such Holder shall so indicate in a written request delivered to the Company no later than three (3) Business Days prior to the expected date of such Non-Marketed Shelf Take-Down (or such shorter period as the Company may agree), which request shall include (i) the aggregate number and class or classes of Registrable Securities expected to be offered and sold in such Non-Marketed Shelf Take-Down and (ii) the expected plan of distribution of such Non-Marketed Shelf Take-Down.
(e) Continued Effectiveness. The Company shall use commercially reasonable efforts to keep the Shelf Registration Statement filed pursuant to Section 2.1(a) hereof continuously effective under the Securities Act in order to permit the Prospectus forming a part thereof to be usable by a Holder until the earlier of (i) the date as of which all Registrable Securities registered by such Shelf Registration Statement have been sold and (ii) such shorter period as Holders holding a majority of the Registrable Securities may reasonably determine.
(f) Subsequent Shelf Registrations. If any Shelf Registration Statement ceases to be effective for any reason at any time during the period described in Section 2.1(e), the Company shall use commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) days of such cessation of effectiveness amend such Shelf Registration Statement in a manner designed to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional shelf registration statement pursuant to Rule 415 under the Securities Act (or any similar provision then in force) covering all of the Registrable Securities covered by and not sold under the Shelf Registration Statement (a “Subsequent Shelf Registration Statement”). If a Subsequent Shelf Registration Statement is filed, the Company shall use commercially reasonable efforts to cause the Subsequent Shelf Registration Statement to be declared effective as soon as practicable after such filing. As used herein the term “Shelf Registration Statement” means the Shelf Registration Statement referenced in Section 2.1(a) and any Subsequent Shelf Registration Statements.
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Section 2.2 Deferral or Suspension of Registration. If (a) the Company receives a written request from a Holder for a Shelf Take-Down and the Board, in its good faith judgment, determines that it would be materially adverse to the Company for such Shelf Take-Down to be effected, because such action would: (i) materially interfere with a significant acquisition or disposition, corporate reorganization, financing, securities offering or other similar transaction involving the Company; (ii) based on the advice of the Company’s outside counsel, require disclosure of material non- public information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or the Exchange Act or Nasdaq, or (b) the Company is subject to an SEC stop order suspending the effectiveness of any Registration Statement or the initiation of proceedings with respect to such Registration Statement under Section 8(d) or 8(e) of the Securities Act, then the Company shall have the right to defer such Shelf Take-Down (but not the preparation) therein for a period of not more than sixty (60) days (or such longer period as the Demand Holder may determine). Unless consented to in writing by the Demand Holder, the Company may utilize its deferral or suspension rights provided under this Section 2.2 for no more than forty-five (45) days in the aggregate in any six (6) month period and for no more than ninety (90) days in the aggregate in any twelve (12) month period.
Section 2.3 Selection of Underwriters; Cutback.
(a) Selection of Underwriters. If the Demand Holder intends to offer and sell the Registrable Securities covered by its request under this Article II by means of an Underwritten Shelf Take-Down, the Demand Holder shall select the managing underwriter or underwriters to administer such offering, which managing underwriter or underwriters shall be investment banking firms of nationally recognized standing and shall be reasonably acceptable to the Company, such acceptance not to be unreasonably withheld, conditioned or delayed.
(b) Underwriter’s Cutback. Notwithstanding any other provision of this Article II or Section 3.2, if the managing underwriter or underwriters of an Underwritten Shelf Take-Down advise the Company in their good faith opinion that the inclusion of all such Registrable Securities proposed to be included in the Underwritten Shelf Take-Down would be reasonably likely to interfere with the successful marketing, including, but not limited to, the pricing, timing or distribution, of the Registrable Securities to be offered in such Underwritten Shelf Take-Down, then the number of Registrable Securities proposed to be included in such Underwritten Shelf Take-Down shall be allocated among the Company, the Selling Holders and all other Persons selling Registrable Securities in such Underwritten Shelf Take-Down in the following order:
(i) first, the Registrable Securities of the class or classes proposed to be registered held by the Demand Holder and the Registrable Securities of the same class or classes (or convertible at the Holder’s option into such class or classes) held by other Holders requested to be included in such Underwritten Shelf Take-Down (allocated, if necessary, pro rata among the respective Holders of such Registrable Securities in proportion, as nearly as practicable, to the amounts of Registrable Securities owned by each such Holder);
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(ii) second, all other securities of the same class or classes (or convertible at the holder’s option into such class or classes) requested to be included in such Underwritten Shelf Take-Down other than securities to be sold by the Company; and
(iii) third, the securities of the same class or classes to be sold by the Company.
No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration or offering. If the underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include securities for its own account (or for the account of any other Persons) in such registration if the underwriter so agrees and if the number of Registrable Securities would not thereby be limited.
Section 2.4 Lock-up. If requested by the managing underwriters in connection with any Underwritten Shelf Take-Down, each Holder who is either (i) participating in the Underwritten Shelf Take-Down or (ii) is a natural person and serving as a director or executive officer of the Company shall agree to be bound by customary lock-up agreements providing that such Holder shall not, directly or indirectly, effect any Transfer (including sales pursuant to Rule 144) of any such Common Stock without prior written consent from the underwriters managing such Underwritten Shelf Take-Down during a period beginning on the date of launch of such Underwritten Offering and ending up to ninety (90) days from and including the date of pricing or such shorter period as reasonably requested by the underwriters managing such Underwritten Shelf Take-Down (the “Lock-Up Period”); provided that (A) the foregoing shall not apply to any shares of Common Stock that are offered for sale as part of such Underwritten Offering and (B) such Lock-Up Period shall be no longer than and on substantially the same terms as the lock-up period applicable to the Company or its directors and executive officers. Each such Holder agrees to execute a customary lock-up agreement in favor of the underwriters to such effect.
Section 2.5 Participation in Underwritten Offering; Information by Holder. No Holder may participate in an Underwritten Shelf Take-Down hereunder unless such Holder (a) agrees to sell such Holder’s Common Stock on the basis provided in any underwriting arrangements, and in accordance with the terms and provisions of this Agreement, including, for the avoidance of doubt, any lock-up arrangements, and (b) completes and executes all questionnaires, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. In addition, the Holders shall furnish to the Company such information regarding such Holder or Holders and the distribution proposed by such Holders, as applicable, as the Company may reasonably request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Article II. Nothing in this Section 2.5 shall be construed to create any additional rights regarding the registration of Common Stock in any Person otherwise than as set forth herein.
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Section 2.6 Registration Expenses. All expenses incident to the Company’s performance of or compliance with this Agreement, including without limitation (i) all registration and filing fees, and any other fees and expenses associated with filings required to be made with any stock exchange, the SEC and FINRA (including, if applicable, the reasonable fees and expenses of any “qualified independent underwriter” and its counsel as may be required by the rules and regulations of FINRA), (ii) all fees and expenses of compliance with state securities or blue sky laws (including fees and disbursements of counsel for the underwriters or Selling Holders in connection with blue sky qualifications of the Common Stock and determination of their eligibility for investment under the laws of such jurisdictions as the managing underwriters or the Demand Holder may designate), (iii) all printing and related messenger and delivery expenses (including expenses of printing certificates for the Common Stock in a form eligible for deposit with The Depository Trust Company and of printing prospectuses), (iv) all fees and disbursements of counsel for the Company and of all independent certified public accountants of the Company and its Subsidiaries (including the expenses of any special audit and “cold comfort” letters required by or incident to such performance), (v) all fees and expenses incurred in connection with the listing of the Common Stock on any securities exchange and (vi) all reasonable fees and documented out-of-pocket disbursements of underwriters customarily paid by the issuer or sellers of securities, including expenses of any special experts retained, if required, in connection with the requested registration (excluding underwriting discounts and commissions and transfer taxes, if any, and fees and disbursements of counsel to underwriters (other than such fees and disbursements incurred in connection with any registration or qualification of Common Stock under the securities or blue sky laws of any state)), will be borne by the Company; provided, however, that (x) any underwriting discounts, commissions or fees in connection with the sale of the Registrable Securities will be borne by the Holders pro rata on the basis of the number of Common Stock so registered and sold, (y) transfer taxes with respect to the sale of Registrable Securities will be borne by the Holder of such Registrable Securities and (z) the fees and expenses of any counsel, accountants or other persons retained or employed by any Holder will be borne by such Holder.
Article
III
PIGGYBACK REGISTRATION
Section 3.1 Notices.
(a) If the Company at any time proposes for any reason to register the sale of securities for cash under the Securities Act through an Underwritten Offering (other than an Excluded Registration) whether or not securities are to be sold by the Company or otherwise (such registration, a “Piggyback Registration”), the Company shall give to the Demand Holder and each Holder holding Registrable Securities equal to or more than 10% of the outstanding shares of the Common Stock immediately prior to the time of such proposed offering of the same class or classes proposed to be registered (or convertible at the Holder’s option into such class or classes) eligible to participate in such Piggyback Registration (any such Holder, a “Piggyback Eligible Holders”) written notice of its intention to so register the securities, at least ten (10) Business Days prior to the expected date of filing of such Registration Statement or amendment thereto in which the Company first intends to identify the selling stockholders and the number of and type of securities to be sold (each such notice, an “Initial Notice”), to each Holder. The Company shall, subject to the provisions of Section 3.2 and Section 3.3 below, use commercially reasonable efforts to include in such Piggyback Registration on the same terms and conditions as the securities otherwise being sold, all Registrable Securities of the same class or classes as the securities proposed to be registered (or convertible at the Holder’s option into such class or classes) with respect to which the Company has received written requests from Holders for inclusion therein within the time period specified by the Company in the applicable Initial Notice, which time period shall be not less than five (5) Business Days after sending the applicable Initial Notice (each such written request, a “Piggyback Notice”), which Piggyback Notice shall specify the number of, and the class or classes, of Registrable Securities proposed to be included in the Piggyback Registration.
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(b) If a Holder does not deliver a Piggyback Notice within the period specified in Section 3.1(a), such Holder shall be deemed to have irrevocably waived any and all rights under this Article III with respect to such registration (but not with respect to future registrations in accordance with this Article III).
(c) No registration effected under this Section 3.1 shall relieve the Company of its obligation to effect any registration upon request under Section 2.1 hereof, and no registration effected pursuant to this Section 3.1 shall be deemed to have been effected pursuant to Section 2.1 hereof. The Initial Notice, the Piggyback Notice and the contents thereof shall be kept confidential until the public filing of the Registration Statement.
Section 3.2 Underwriter’s Cutback. If the managing underwriter of an Underwritten Offering that includes a Piggyback Registration advises the Company that it is the managing underwriter’s good faith opinion that the inclusion of all such Registrable Securities proposed to be included in the Registration Statement for such Underwritten Offering would be reasonably likely to interfere with the successful marketing, including, but not limited to, the pricing, timing or distribution, of the Registrable Securities to be offered thereby, then the number of securities proposed to be included in such Underwritten Offering shall be allocated among the Company, the Selling Holders and all other Persons selling securities in such Underwritten Offering in the following order:
(a) If the Piggyback Registration referred to in Section 3.1 is initiated as an underwritten primary registration on behalf of the Company, then, with respect to each class proposed to be registered:
(i) first, the securities held by the Company of the class or classes proposed to be registered that the Company proposes to sell, as applicable;
(ii) second, all Registrable Securities of the same class or classes (or convertible at the Holder’s option into such class or classes) held by Holders requested to be included in such Piggyback Registration (allocated, if necessary, pro rata among the respective Holders of such Registrable Securities in proportion, as nearly as practicable, to the amounts of Registrable Securities owned by each such Holder at the time of such Piggyback Registration); and
(iii) third, all other securities of the same class or classes (or convertible at the holder’s option into such class or classes) requested to be included in such Piggyback Registration.
(b) if the Piggyback Registration referred to in Section 3.1 is an underwritten secondary registration on behalf of any holder of securities other than a Holder, then, with respect to each class proposed to be registered:
(i) first, the securities of the class or classes proposed to be registered held by such holder;
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(ii) second, the Registrable Securities of the same class or classes (or convertible at the Holder’s option into such class or classes) held by Holders requested to be included in such Piggyback Registration (pro rata among the respective Holders of such Registrable Securities in proportion, as nearly as practicable, to the amounts of Registrable Securities owned by each such Holder at the time of such Piggyback Registration);
(iii) third, all other securities of the same class or classes (or convertible at the holder’s option into such class or classes) requested to be included in such Piggyback Registration other than Common Stock to be sold by the Company; and
(iv) fourth, the Common Stock to be sold by the Company.
Section 3.3 Company Control. The Company may decline to file a Registration Statement for a primary registration on behalf of the Company after an Initial Notice has been given or after receipt by the Company of a Piggyback Notice, and the Company may withdraw a Registration Statement after filing and after such Initial Notice or Piggyback Notice, but prior to the effectiveness of the Registration Statement, provided that the Company shall promptly notify the Selling Holders in writing of any such action and.
Section 3.4 Selection of Underwriters. If the Company intends to offer and sell Common Stock by means of an Underwritten Offering (other than an offering pursuant to Section 2.1), the Company shall select the managing underwriter or underwriters to administer such Underwritten Offering, which managing underwriter or underwriters shall be investment banking firms of nationally recognized standing.
Section 3.5 Withdrawal of Registration. Any Holder shall have the right to withdraw all or a part of its Piggyback Notice by giving written notice to the Company of such withdrawal at least three (3) Business Days prior to the earliest of (i) effectiveness of the applicable Registration Statement, (ii) the filing of any Registration Statement relating to such Piggyback Registration that includes a price range or (iii) commencement of a “roadshow” relating to the Registration Statement for such Piggyback Registration.
Article
IV
REGISTRATION PROCEDURES
Section 4.1 Registration Procedures. If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use commercially reasonable efforts to effect the registration of any Registrable Securities, the Company shall, as expeditiously as practicable:
(a) in the case of Registrable Securities, use commercially reasonable efforts to cause a Registration Statement that registers such Registrable Securities to become and remain effective for a period of 180 days or, if earlier, until all of such Registrable Securities covered thereby have been disposed of; provided, that, such 180-day period shall be extended, if necessary, to keep the Registration Statement continuously effective, supplemented and amended, including by filing a new Registration Statement, to the extent necessary to ensure that it is available for sales of such Registrable Securities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the SEC as announced from time to time, until the Selling Holders have sold all of such Registrable Securities.
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(b) furnish to each Holder at least ten (10) Business Days before filing a Registration Statement copies of such Registration Statement or any amendments or supplements thereto, which documents shall be subject to the review, comment and approval by one lead counsel (and any reasonably necessary local counsel) selected by the Holders who Beneficially Own a majority of such Registrable Securities included in such registration, which counsel (who may also be counsel to the Company), in each case, shall be subject to the reasonable approval of the Demand Holder, and who shall represent all Holders as a group (the “Selling Holders’ Counsel”) (it being understood that such ten (10) Business Day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Selling Holders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(c) furnish to each Selling Holder and each underwriter, if any, such number of copies of final conformed versions of the applicable Registration Statement and of each amendment and supplement thereto (in each case including all exhibits and any documents incorporated by reference) reasonably requested by such Selling Holder or underwriter in writing;
(d) in the case of Registrable Securities, prepare and file with the SEC such amendments, including post-effective amendments, and supplements to such Registration Statement and the applicable Prospectus or Prospectus supplement, including any free writing prospectus as defined in Rule 405 under the Securities Act, used in connection therewith as may be (i) reasonably requested by any Holder (to the extent such request relates to information relating to such Selling Holder), or (ii) necessary to keep such Registration Statement effective for at least the period specified in Section 4.1(a) and to comply with the provisions of this Agreement and the Securities Act with respect to the sale or other disposition of such Registrable Securities, and furnish to each Selling Holder and to the managing underwriter(s), if any, within a reasonable period of time prior to the filing thereof a copy of any amendment or supplement to such Registration Statement or Prospectus; provided, however, that, with respect to each free writing prospectus or other materials to be delivered to purchasers at the time of sale of the Registrable Securities, the Company shall (i) ensure that no Registrable Securities are sold “by means of” (as defined in Rule 159A(b) under the Securities Act) such free writing prospectus or other materials without the prior written consent of the sellers of the Registrable Securities, which free writing prospectus or other materials shall be subject to the review of counsel to such sellers and (ii) make all required filings of all free writing prospectuses or other materials with the SEC as are required;
(e) notify in writing the designated Selling Holders’ Counsel promptly (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes and, in any such case as promptly as reasonably practicable thereafter, prepare and file an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
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(f) use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Selling Holders reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable such Selling Holders to consummate their disposition in such jurisdictions; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 4.1(f);
(g) furnish to each Selling Holder such number of copies of a summary Prospectus or other prospectus, including a preliminary prospectus and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Holders or any underwriter may reasonably request in writing;
(h) notify on a timely basis each Selling Holder of such Registrable Securities at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing and, at the request of such Selling Holder, as soon as practicable prepare, file with the SEC and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the offeree of such securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(i) make available for inspection by the Selling Holders’ Counsel or any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, managers and employees to supply all information (together with the Records, the “Information”) requested by any such Inspector in connection with such Registration Statement and request that the independent public accountants who have certified the Company’s financial statements make themselves available, at reasonable times and for reasonable periods, to discuss the business of the Company. Any of the Information which the Company determines in good faith and upon consultation with external counsel to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (i) the disclosure of such Information is necessary to avoid or correct a misstatement or omission in the Registration Statement, (ii) the release of such Information is requested or required pursuant to a subpoena, order from a court of competent jurisdiction or other interrogatory by a governmental entity or similar process; (iii) such Information has been made generally available to the public; or (iv) such Information is or becomes available to such Inspector on a non-confidential basis other than through the breach of an obligation of confidentiality (contractual or otherwise). The Holder(s) of Registrable Securities agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction or by another governmental entity, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of the Information deemed confidential;
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(j) deliver to the underwriters of any Underwritten Offering, and any Holder that is named as an underwriter in such offering, a “comfort” letter addressed thereto in customary form and at customary times and covering matters of the type customarily covered by such comfort letters from its independent certified public accountants;
(k) deliver to the underwriters of any Underwritten Offering, and any Holder that is named as an underwriter in such offering, a written and signed legal opinion or opinions addressed thereto in customary form from its outside or in-house legal counsel dated the closing date of the Underwritten Offering;
(l) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Securities and deliver to such transfer agent and registrar such customary forms, legal opinions from its outside or in-house legal counsel, agreements and other documentation as such transfer agent and/or registrar so request;
(m) issue to any underwriter to which any Selling Holders may sell Registrable Securities in such offering certificates, or if the Registrable Securities are uncertificated other evidence of issuance, evidencing such Registrable Securities;
(n) upon the request of any Selling Holder of the Registrable Securities included in such registration, use commercially reasonable efforts to cause such Registrable Securities to be listed on Nasdaq;
(o) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC;
(p) notify the Selling Holders and the lead underwriter or underwriters, if any, and (if requested) confirm such advice in writing (email being sufficient), as promptly as reasonably practicable after notice thereof is received by the Company when the applicable Registration Statement or any amendment thereto has been filed or becomes effective and when the applicable Prospectus or any amendment or supplement thereto has been filed;
(q) use commercially reasonable efforts to prevent the entry of, and use commercially reasonable efforts to obtain as promptly as reasonably practicable the withdrawal of, any stop order with respect to the applicable Registration Statement or other order suspending the use of any preliminary or final Prospectus;
(r) promptly incorporate in a prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the lead underwriter or underwriters, if any, and each Selling Holder agree should be included therein relating to the plan of distribution with respect to such class of Registrable Securities, which may include disposition of Registrable Securities by all lawful means, including firm-commitment underwritten public offerings, block trades, agented transactions, sales directly into the market, purchases or sales by brokers, derivative transactions, short sales, stock loan or stock pledge transactions and sales not involving a public offering; and make all required filings of such prospectus supplement or post- effective amendment as promptly as reasonably practicable after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;
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(s) cooperate with each Selling Holder and each underwriter or agent, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(t) provide a CUSIP number or numbers for all such units, in each case not later than the effective date of the applicable Registration Statement;
(u) to the extent reasonably requested by the lead or managing underwriters in connection with an Underwritten Offering (including an Underwritten Offering pursuant to Section 2.1) make appropriate officers of the Company available to attend any electronic “roadshows” scheduled in connection with any such Underwritten Offering, with all reasonable out of pocket costs and expenses incurred by the Company or such officers in connection with such attendance to be paid by the Company;
(v) upon request, promptly and no more than three (3) Business Days following any request (subject to the customary receipt of a shareholder representation letter from the Holder and customary procedures of the transfer agent), remove all legends on such Selling Holder’s Registrable Securities relating to the restrictions on resale in connection with the sale of such Registrable Securities pursuant to an effective Registration Statement; and
(w) subject to all the other provisions of this Agreement, use commercially reasonable efforts to take all other steps necessary to effect the registration, marketing and sale of such Registrable Securities contemplated hereby.
Article
V
INDEMNIFICATION
Section 5.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the full extent permitted by law, each Holder, its Affiliates and their respective officers, directors, managers, partners, members and representatives, and each of their respective successors and assigns, and each Person who controls any of the foregoing (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), against any losses, claims, damages, liabilities, expenses, actions or proceedings caused by any violation by the Company of the Securities Act or the Exchange Act applicable to the Company and relating to action or inaction required of the Company in connection with the registration contemplated by a Registration Statement or any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto, or any other disclosure document (including reports and other documents filed under the Exchange Act and any document incorporated by reference therein) or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, preliminary Prospectus, free writing prospectus or any amendment thereof or supplement thereto, in the light of the circumstances under which they were made) not misleading, or a Selling Holder being deemed to be an “underwriter,” as defined in Section 2(a)(11) of the Securities Act, and will reimburse each such Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such losses, claims, damages, liabilities, expenses, actions or proceedings; provided, however, that the Company shall not be liable in any such case to the extent that any such losses, claims, damages, liabilities, expenses, actions or proceedings arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished to the Company in writing by the Person asserting such loss, claim, damage, liability, expense, action or proceeding specifically for use therein. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any such Person and shall survive the transfer of such securities. The Company will also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who Controls such Persons to the same extent as provided above with respect to the indemnification of the Holder, if requested.
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Section 5.2 Indemnification by Holders. Each Holder agrees to indemnify and hold harmless, to the fullest extent permitted by law, the Company, the Company’s Controlled Affiliates and their respective directors, managers, partners, members and representatives, and each of their respective successors and assigns, and each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) against any losses, claims, damages, liabilities, expenses, actions or proceedings caused by any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment thereof or supplement thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or any amendment thereof or supplement thereto, in the light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that such untrue statement or omission was made in reliance on and in conformity with any information furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement and has not been corrected in a subsequent writing prior to or concurrently with the sale of the Registrable Securities to the Person asserting such loss, claim, damage, liability, expense, action or proceeding; provided that the obligation to indemnify shall be several, not joint and several, for each Holder and in no event shall the liability of any Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.
Section 5.3 Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder will (i) give prompt (but in any event within 30 days after such Person has actual knowledge of the facts constituting the basis for indemnification) written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any delay or failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations hereunder only to the extent, if at all, that it is materially and adversely prejudiced by reason of such delay or failure. Any Person entitled to indemnification hereunder shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (a) the indemnifying party has agreed in writing to pay such fees or expenses, (b) the indemnifying party shall have failed to assume the defense of such claim within a reasonable time after receipt of notice of such claim from the Person entitled to indemnification hereunder and employ counsel reasonably satisfactory to such Person, (c) the indemnified party has reasonably concluded, based on the advice of counsel, that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party or (d) in the reasonable judgment of any such Person, based upon advice of counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if such Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person). The indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld, conditioned or delayed). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action or claim in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action, (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, (iii) does not commit any indemnified party to take, or hold back from taking, any action, and does not impose any specific performance or injunctive or other equitable relief or other non-monetary remedy on any indemnified party, and (iv) by its terms obligates the indemnifying party to pay the full amount of monetary damages arising out of, related to, or in connection with such claim and does not require the indemnified party to pay any amount. No indemnified party shall, without the written consent of the indemnifying party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder, and no indemnifying party shall be liable for any settlement or compromise of any such action or claim effected without its consent, in each case which consent shall not be unreasonably withheld.
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Section 5.4 Settlement Offers. Whenever the indemnified party or the indemnifying party receives a firm offer to settle a claim for which indemnification is sought hereunder, it shall promptly notify the other of such offer. If the indemnifying party refuses to accept such offer within 20 Business Days after receipt of such offer (or of notice thereof), such claim shall continue to be contested and, if such claim is within the scope of the indemnifying party’s indemnity contained herein, the indemnified party shall be indemnified pursuant to the terms hereof. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim in any one jurisdiction, unless in the written opinion of counsel to the indemnified party, reasonably satisfactory to the indemnifying party, use of one counsel would be expected to give rise to a conflict of interest between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of one additional counsel.
Section 5.5 Other Indemnification. Indemnification similar to that specified in this Article V (with appropriate modifications) shall be given by the Company and each Selling Holder with respect to any required registration or other qualification of Registrable Securities under Federal or state law or regulation of governmental authority other than the Securities Act.
Section 5.6 Contribution. If for any reason the indemnification provided for in Section 5.1 or Section 5.2 is unavailable to an indemnified party or insufficient to hold it harmless as contemplated by Section 5.1 and Section 5.2, then (i) the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and such prospective sellers, on the other hand, from their sale of the Registrable Securities, provided that, no Selling Holder shall be required to contribute in an amount greater than the dollar amount of the net proceeds received by such Selling Holder with respect to the sale of the Registrable Securities giving rise to such indemnification obligation. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities, or expenses (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or, except as provided in Section 5.3, defending any such action or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 5.6 to contribute shall be several in proportion to the amount of Registrable Securities registered by them and not joint.
Article
VI
EXCHANGE ACT COMPLIANCE
Section 6.1 Exchange Act Compliance. So long as the Company (a) has registered a class of securities under Section 12 or Section 15 of the Exchange Act and (b) files reports under Section 13 of the Exchange Act, then the Company shall use commercially reasonable efforts to enable Holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such rule may be amended from time to time or any similar rules or regulations adopted by the SEC, including, without limiting the generality of the foregoing, (i) making and keeping current public information available, as those terms are understood and defined in Rule 144 promulgated under the Securities Act and (ii) filing with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act to the extent so required.
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Article
VII
MISCELLANEOUS
Section 7.1 Severability. If any provision of this Agreement is adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
Section 7.2 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware irrespective of the choice of laws principles thereof. The parties agree that any legal action or proceeding regarding this Agreement shall be brought and determined exclusively in a state or federal court located within the State of Delaware. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.3 (Reserved.)
Section 7.4 Successors and Assigns. The Company may not assign any of its rights or delegate any of its duties hereunder without the prior written consent of the Demand Holder. No Holder may not assign any of its rights or delegate any of its duties hereunder without the prior written consent of the Company.
Section 7.5 Notices. All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if delivered in writing in person, by electronic mail, or sent by nationally-recognized overnight courier postage prepaid (with a copy of such communication sent by electronic mail), addressed to such party at the address set forth below or at such other address as may hereafter be designated in writing by such party to the other parties. All such notices, requests, consents and other communications shall be delivered as follows:
(a) if to the Company, to:
Lee Enterprises, Incorporated
4600 E. 53rd Street
Davenport, IA
Attn: Astrid Garcia
Email: [***]
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with copies (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Drew Maliniak
Tel: (212) 390-4441
Email: drew.maliniak@kirkland.com
Lane & Waterman LLP
220 North Main Street, Suite 600
Davenport, Iowa 52801
Attn: T.F. Olt III, Esq.
Tel: (563) 324-3246
Email: tolt@L-WLaw.com
(b) if to a Holder, to the address or e-mail address set forth under such Holder’s name in Schedule I attached hereto.
All such notices, requests, consents and other communications shall be deemed to have been received (i) in the case of personal delivery or delivery by electronic mail, on the date of such delivery and (ii) in the case of dispatch by nationally recognized overnight courier, on the next Business Day following such dispatch.
Section 7.6 Headings. The headings contained in this Agreement are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
Section 7.7 Additional Parties. Additional parties to this Agreement shall only include each Holder who has executed a Joinder Agreement, in the form attached hereto as Exhibit A.
Section 7.8 Adjustments. If, and as often as, there are any changes in the Common Stock or securities convertible into or exchangeable into or exercisable for Common Stock as a result of any reclassification, recapitalization, stock split (including a reverse stock split) or subdivision or combination, exchange or readjustment of shares or units, or any stock dividend or stock distribution, merger or other similar transaction affecting such Common Stock or such securities, appropriate adjustment shall be made in the provisions of this Agreement, as may be required, so that the rights, privileges, duties and obligations hereunder shall continue with respect to such Common Stock or such securities as so changed.
Section 7.9 Entire Agreement. This Agreement and the other writings referred to herein constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such subject matter.
Section 7.10 (Reserved.)
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Section 7.11 Counterparts; .pdf Signature. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute one and the same document. This Agreement may be executed by .pdf signature (or similar means), and a .pdf signature (or similar means, including DocuSign) shall constitute an original for all purposes. No party hereto or to any such agreement or instrument will raise the use of electronic mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of electronic mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
Section 7.12 Amendment. Other than with respect to amendments to Schedule I attached hereto, which may be amended by the Company from time to time to reflect the Holders at such time, this Agreement (including this Section 7.12) may not be amended, modified, supplemented or any provision hereof waived without the written consent of the Holders of at least a majority of the Registrable Securities; provided, however, that any party may give a waiver as to itself; provided further, however that no amendment, modification, supplement, or waiver that disproportionately and adversely affects, alters, or changes the interests of any Holder relative to all other Holders shall be effective against such Holder without the prior written consent of such Holder; provided further, however, that the waiver of any provision with respect to any Registration Statement or offering may be given by Holders holding at least a majority of the then-outstanding Registrable Securities entitled to participate in such offering or, if such offering shall have been commenced, having elected to participate in such offering. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of certain Holders and that does not directly or indirectly affect the rights of other Holders may be given by Holders of at least a majority of the Registrable Securities to which such waiver or consent relates, unless such waiver or consent disproportionately and adversely affects, alters, or changes the interests of any Holder relative to all other Holders to which such waiver or consent relates, in which case, such waiver or consent shall not be effective against such Holder without the prior written consent of such Holder; provided, however, that the provisions of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the immediately preceding sentence.
Section 7.13 Extensions; Waivers. Any party may, for itself only, (a) extend the time for the performance of any of the obligations of any other party under this Agreement, (b) waive any inaccuracies in the representations and warranties of any other party contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any extension or waiver pursuant to this Section 7.13 will be valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise of the same or of any other right or remedy.
Section 7.14 Business Days. If any time period for giving notice or taking action hereunder expires on a day that is not a Business Day, the time period will automatically be extended to the Business Day immediately following such Saturday, Sunday or legal holiday.
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Section 7.15 Independent Nature of Holder’s Obligations. The obligations of each Holder under this Agreement are several and not joint with the obligations of any other Holder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder under this Agreement. Nothing contained herein, and no action taken by any Holder pursuant thereto, shall be deemed to constitute the Holder as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that a Holder is in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Holder shall be entitled to independently protect and enforce its rights, including, the rights arising out of this Agreement, and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose.
Section 7.16 Further Assurances. Each of the parties hereto shall execute all such further instruments and documents and take all such further action as the Company may reasonably require in order to effectuate the terms and purposes of this Agreement.
Section 7.17 No Third-Party Beneficiaries. Except pursuant to Article V, this Agreement shall not confer any rights or remedies upon any Person other than the parties hereto and their respective successors and permitted assigns and other Persons expressly named herein.
Section 7.18 Interpretation; Construction. This Agreement has been freely and fairly negotiated among the parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any reference to any law will be deemed to refer to such law as amended and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder” and words of similar import refer to this Agreement as a whole, including the schedules, exhibits and annexes, as the same may from time to time be amended, modified or supplemented, and not to any particular subdivision unless expressly so limited. References to “will” or “shall” mean that the party must perform the matter so described and a reference to “may” means that the party has the option, but not the obligation, to perform the matter so described. All references to sections, schedules, annexes and exhibits mean the sections of this Agreement and the schedules, annexes and exhibits attached to this Agreement, except where otherwise stated. The parties intend that each representation, warranty, and covenant contained herein will have independent significance. If any party has breached any covenant contained herein in any respect, the fact that there exists another covenant relating to the same subject matter (regardless of the relative levels of specificity) that the party has not breached will not detract from or mitigate the party’s breach of the first covenant.
Section 7.19 Term. This Agreement shall terminate (i) with respect to any Holder, at such time as such Holder has no Registrable Securities and (ii) in full and be of no further effect at such time as there are no Registrable Securities held by any Holders. Notwithstanding the foregoing, Article V, Section 7.2, Section 7.5, and Section 7.18 shall survive any termination.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.
| COMPANY: | |||
| Lee Enterprises, Incorporated | |||
| By: | |||
| Name: | |||
| Title: | |||
| DEMAND HOLDER: | |||
| By: | |||
| Name: | |||
| Title: | |||
| HOLDER: | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
EXHIBIT A
JOINDER AGREEMENT
This Joinder Agreement (“Joinder”) is executed pursuant to the terms of the Registration Rights Agreement, dated as of [●], [●], a copy of which is attached hereto (as amended, the “Registration Rights Agreement”), by the undersigned (the “Undersigned”) executing this Joinder. Capitalized terms used herein without definition are defined in the Registration Rights Agreement and are used herein with the same meanings set forth therein. By the execution of this Joinder, the Undersigned agrees as follows:
1. Acknowledgment. The Undersigned acknowledges that the Undersigned is acquiring Common Stock, subject to the terms and conditions of the Registration Rights Agreement.
2. Agreement. The Undersigned (i) agrees that the Common Stock acquired by the Undersigned, and any other Common Stock and other securities of the Company that may be acquired by the Undersigned in the future, shall be bound by and subject to the terms of the Registration Rights Agreement, pursuant to the terms thereof, and (ii) hereby adopts the Registration Rights Agreement with the same force and effect as if the Undersigned were originally a party thereto.
3. Notice. Any notice required as permitted by the Registration Rights Agreement shall be given to the Undersigned at the address listed beside the Undersigned’s signature below.
| [NAME OF HOLDER] | Address for Notices: | |||
| By: | [_______] | |||
| Name: | [_______] | |||
| Title: | Telephone: | [_______] | ||
| Date: | Email: | [_______] | ||
| Number of Registrable Securities Beneficially Owned | ||||
| (as of the date hereof): [_______] | ||||
SCHEDULE I
List of Holders
| Name | Address for Notice | E-mail Address for Notice | Registrable Securities (Common Stock) |
Exhibit 10.3
FORM OF
VOTING AGREEMENT
This Voting Agreement (this “Agreement”) is made and entered into as of December 30, 2025, by and between Lee Enterprises, Incorporated, a Delaware corporation (the “Company”), and (the “Stockholder”).
RECITALS
WHEREAS, the Company, David Hoffmann, or his designee (the “Anchor Investor”), and the other investors on Schedule B of the Purchase Agreement (as defined below) (the “Additional Investors” and together with the Anchor Investor, the “Investors”) have entered into a stock purchase agreement dated as of December 30, 2025 (as it may be amended, supplemented or otherwise modified from time to time, the “Purchase Agreement”) that, among other things and subject to the terms and conditions set forth therein, provides for the private investment into the Company (the “PIPE Transaction”);
WHEREAS, as of the date hereof, the Stockholder is the record and/or “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934 (the “Exchange Act”, as amended), which meaning will apply for all purposes of this Agreement; provided, that all options, warrants, restricted stock units and other convertible securities are included even if not exercisable within sixty (60) days of the date hereof) of the number of shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) as set forth next to such Stockholder’s name on Schedule A hereto, being all of the shares of Common Stock owned of record or beneficially by such Stockholder as of the date hereof (with respect to such Stockholder, the “Owned Shares” and, the Owned Shares together with such Stockholder’s Additional Shares (as defined herein), such Stockholder’s “Covered Shares”);
WHEREAS, the Board has, by unanimous vote of the directors voting, (a) approved the execution and delivery by the Company of the Purchase Agreement, the performance by the Company of its covenants and agreements contained therein and the consummation of the PIPE Transaction subject to the conditions contained therein and (b) subject to the terms and conditions set forth in the Purchase Agreement, resolved to recommend that the stockholders of the Company vote to approve each Transaction Proposal (as defined below) in accordance with the Purchase Agreement; and
WHEREAS, as a condition and/or inducement for the Investors to enter into the Purchase Agreement, the Stockholder has agreed to enter into this Agreement with respect to such Stockholder’s Covered Shares.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement. When used in this Agreement, the following terms shall have the meanings assigned to them in this Section 1.
“Company Stockholders” means the holders of shares of Common Stock.
“Company Stockholder Meeting” means a meeting of the Company Stockholders (including every adjournment or postponement or recess thereof) to be held for the purposes of approving each Transaction Proposal in accordance with the Purchase Agreement.
“Additional Shares” means, with respect to a Stockholder, any additional shares of Common Stock or other voting securities of the Company that such Stockholder may acquire record and/or beneficial ownership of after the date hereof (including by way of stock dividend or distribution, split-up, recapitalization, combination, exchange of shares or issued upon the exercise of any options, the settlement of any restricted stock or other conversion of any convertible securities).
“Expiration Time” means the earlier to occur of (a) the Closing Date, (b) such date and time as the Purchase Agreement shall be validly terminated pursuant to Section 14 of the Purchase Agreement, (c) the Board effecting a Company Board Recommendation Change, (d) with respect to Section 2 only, receipt of the Requisite Stockholder Approval, or (e) the mutual consent of the Stockholder and the Company as the parties to this Agreement.
“Lien” means any lien, encumbrance, hypothecation, adverse claim, charge, mortgage, security interest, pledge or option, proxy, right of first refusal or first offer, preemptive right, deed of trust, servitude, voting agreement, voting trust, transfer restriction or any other similar restriction.
“Permitted Lien” means (a) any Lien arising under this Agreement, (b) any applicable restrictions on transfer under the Securities Act, (c) community property interests under applicable law and (d) with respect to options or awards issued pursuant to the Company’s equity incentive plans, any Lien created by the terms of any such plan or award agreement thereunder.
“Transaction Proposal” means each of the following proposals for approval at the Company Stockholder Meeting: (a) a proposal for the approval of the adoption by the Company of an amendment to the Charter to increase the authorized number of shares of Common Stock to 40.0 million shares of Common Stock in aggregate as of the Closing; (b) a proposal for the approval, for purposes of complying with the stockholder approval requirements of Nasdaq Listing Rule 5635(d) (as may be in effect on the date of the Company Stockholder Meeting), of the issuance of the Purchased Securities to the Investors; and (c) a proposal for the approval, for purposes of complying with the stockholder approval requirements of Nasdaq Listing Rule 5635(b) (as may be in effect on the date of the Company Stockholder Meeting), of the issuance of the Purchased Securities to the Investors in connection with a transaction that may potentially result in a change of control for purposes of such Nasdaq rule.
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2. Agreement to Vote the Covered Shares.
(a) From the execution and delivery of this Agreement until the Expiration Time, at the Company Stockholder Meeting, the Stockholder shall vote (including by providing proxy) or execute and deliver a consent with respect to, all of such Stockholder’s Covered Shares (or cause the holder(s) of record on any applicable record date to vote (including by providing proxy) or execute and deliver a consent with respect to all of such Stockholder’s Covered Shares):
(i) in favor of the approval of each Transaction Proposal; and
(ii) in favor of the approval of any proposal to adjourn or postpone the meeting to a later date if there are not sufficient votes present for there to be a quorum or for the adoption of a Transaction Proposal on the date on which such meeting is held, or if the Company proposes or requests such adjournment or proposal, in each case, in accordance with the Purchase Agreement.
(b) From the execution and delivery of this Agreement until the Expiration Time, at the Company Stockholder Meeting, the Stockholder shall appear in person at such meeting or shall cause such Stockholder’s Covered Shares to be represented by proxy and shall otherwise cause all of such Stockholder’s Covered Shares to be counted for the purposes of establishing a quorum at such meeting (or, with respect to any such Covered Shares that such Stockholder owns beneficially but not of record, such Stockholder shall cause the holder(s) of record of such shares as of any applicable record date for determining such stockholders entitled to vote at the meeting to be represented in person or by such proxy at such meeting as provided herein and to be counted as present for purposes of establishing a quorum). The Stockholder hereby appoints the Company and any designee of the Company, and each of them individually, until the Expiration Time (at which time this proxy shall automatically be revoked), as its proxy and attorney-in-fact, with full power of substitution and re-substitution, to vote or act by written consent during the term of this Agreement with respect to the Covered Shares in accordance with Section 2 hereof in the event the Stockholder fails to comply with its obligation under this Agreement or attempts or purports to vote (or provide consent with respect to), or cause any other Person to vote or provide consent with respect to, the Stockholder’s Covered Shares in a manner inconsistent with the terms of this Agreement. This proxy and power of attorney is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by the Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy, and shall revoke any and all prior proxies granted by such Stockholder with respect to the Covered Shares. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the bankruptcy, death or incapacity of such Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. Until the Expiration Time, the Stockholder shall retain at all times the right to vote the Covered Shares in the Stockholder’s sole discretion, and without any other limitation, on any matters other than those set forth in this Section 2 that are at any time or from time to time presented for consideration to the Company’s stockholders generally.
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3. Fiduciary Duties. The Stockholder is entering into this Agreement solely in its capacity as the record holder and/or beneficial owner of such Stockholder’s Covered Shares. Without limiting the terms of the Purchase Agreement in any respect, nothing in this Agreement shall in any way attempt to limit or affect any actions taken by any Stockholder or its Affiliates’ designee(s) or beneficial owner(s) serving on the Company Board (in any such director’s capacity as such) or any such Stockholder, in his or her capacity as a director, officer or employee of the Company or any of its Affiliates, from complying with his or her fiduciary obligations to the extent acting in such designee’s or beneficial owner’s capacity as a director, officer or employee of the Company, including with respect to any Company Board Recommendation Change. Without limiting the terms of the Purchase Agreement in any respect, including Section 12 thereof with respect to any Company Board Recommendation Change, no action taken (or omitted to be taken), by any such designee, beneficial owner or Stockholder taken (or omitted to be taken) by such person in his or her capacity as a director, officer or employee of the Company or any of its Affiliates shall be deemed to constitute a breach of this Agreement, including any actions taken with respect to any Company Board Recommendation Change.
4. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to the Company that:
(a) Due Authority. Such Stockholder has the full power and capacity to make, enter into and carry out the terms of this Agreement and the other definitive documentations contemplated hereby. If an entity, such Stockholder is duly organized, validly existing and in good standing (to the extent such concept exists) in accordance with the laws of its jurisdiction of formation, as applicable. The execution and delivery of this Agreement, the performance of such Stockholder’s obligations hereunder, and the consummation of the transactions contemplated hereby have been validly authorized, and no other consents or authorizations are required to give effect to this Agreement or the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Stockholder, and this Agreement constitutes a valid and binding obligation of such Stockholder enforceable against it in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar applicable laws affecting or relating to creditors’ rights generally and equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(b) Ownership of the Covered Shares. Such Stockholder is, as of the date hereof, the beneficial and/or record owner of such Stockholder’s Covered Shares, all of which are free and clear of any Liens, other than Permitted Liens, and if applicable, such Stockholder has sole voting power over all of such Stockholder’s Covered Shares and no person (other than such Stockholder and any person under common control with such Stockholder) has a right to acquire any of the Covered Shares held by such Stockholder. Such Stockholder has not entered into and will not enter into prior to the Expiration Time, any agreement to Transfer any Covered Shares, other than as may be not prohibited by the Purchase Agreement. As of the date hereof, such Stockholder does not own, beneficially or of record, any shares of Common Stock or other voting shares of the Company (or any securities convertible, exercisable or exchangeable for, or rights to purchase or acquire, any shares of Common Stock or other voting shares of the Company) other than the Owned Shares, except as set forth on Schedule A.
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(c) No Conflict: Consents.
(i) The execution and delivery of this Agreement by such Stockholder does not, and the performance by such Stockholder of its obligations under this Agreement does not and will not: (i) violate any laws applicable to such Stockholder or (ii) result in any breach of or constitute a default under any contract or obligation to which such Stockholder is a party or by which such Stockholder is subject or (iii) if an entity, violate the certificate of incorporation, bylaws, operating agreement, limited partnership agreement or any equivalent organizational or governing documents of such Stockholder, in each case of clauses (i) through (iii), except for such violations, breaches or defaults as would not materially delay or materially impair the ability of such Stockholder to perform its obligations under this Agreement.
(ii) No consent, approval, order or authorization of, or registration, declaration is required by or with respect to such Stockholder in connection with the execution and delivery of this Agreement or the performance by such Stockholder of its obligations under this Agreement.
(d) Absence of Litigation. As of the date hereof, there is no legal action pending against, or, to the knowledge of such Stockholder, threatened against or affecting such Stockholder that would reasonably be expected to prevent, materially delay or materially impair the ability of such Stockholder to perform its obligations under this Agreement.
5. Representations and Warranties of the Company. The Company hereby represents and warrants to the Stockholder that the Company has the full power and capacity to make, enter into and carry out the terms of this Agreement. The Company is duly organized, validly existing and in good standing in accordance with the laws of its jurisdiction of formation. The execution and delivery of this Agreement and the performance of the Company’s obligations hereunder have been validly authorized, and assuming the accuracy of the representations and warranties set forth in Section 4, no other consents or authorizations are required to give effect to this Agreement. This Agreement has been duly and validly executed and delivered by the Company, and this Agreement constitutes a valid and binding obligation of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency and similar applicable laws affecting creditors’ rights and remedies generally.
6. Miscellaneous.
(a) No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company any direct, indirect or beneficial ownership or incidence of ownership of or with respect to the Covered Shares. Without limiting this Agreement in any manner, rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Stockholder, and the Company shall have no authority to direct any Stockholder in the voting or disposition of any of the Covered Shares, except as expressly provided herein.
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(b) Amendments and Modifications. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by all of the parties hereto. No waiver by any party of its rights hereunder shall be effective against such party unless the same shall be in writing. No waiver by any party hereto of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty, covenant or agreement hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. For the avoidance of doubt, nothing in this Agreement shall be deemed to amend, alter or modify, in any respect, any of the provisions of the Purchase Agreement.
(c) Expenses. Except as otherwise provided, all costs and expenses incurred in connection with this Agreement shall be paid by the party hereto incurring such cost or expense.
7. Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service, or (d) when sent by electronic mail with no known mail undeliverable or rejection notice received by the sender, addressed as follows:
If to the Stockholder, to the address provided on such Stockholder’s signature page hereto.
If to the Company, to:
Lee Enterprises, Incorporated
4600, E 53rd Street, Davenport, Iowa 52807
| Attention: | Astrid Garcia | |
| Email: | [***] |
with copies (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
| Attention: | Sarkis Jebejian, P.C., Jennifer L. Lee, P.C., Drew Maliniak | |
| Email: | sarkis.jebejian@kirkland.com; jennifer.lee@kirkland.com; drew.maliniak@kirkland.com |
Lane & Waterman LLP
220 N. Main Street, Suite 600
Davenport, Iowa 52801
| Attention: | T.F. Olt III | |
| Email: | tolt@L-WLaw.com |
or to such other address or addresses as the parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.
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8. Specific Performance; Governing Law and Venue.
(a) The Company and the Stockholder acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that Company and the Stockholder shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific enforcement of this Agreement, in addition to any other remedy to which any party is entitled at law, in equity, in contract, in tort or otherwise. In the event that any claim, action, suit or proceeding shall be brought in equity to enforce the provisions of this Agreement, no party hereto shall allege, and each party hereto hereby waives the defense, that there is an adequate remedy at law, and each party hereto agrees to waive any requirement for the securing or posting of any bond in connection therewith.
(b) Any claim, action, suit or proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, only to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware), and each of the Company and the Stockholder irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction of each such court in any such claim, action, suit or proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of such action, suit or proceeding shall be heard and determined only in any such court and (iv) agrees not to bring any claim, action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction to enforce judgments obtained in any claim, action, suit or proceeding brought in accordance with this Section 8(b); provided that service of process with respect to any such claim, action, suit or proceeding may also be made upon any party hereto by mailing a copy thereof by registered or certified mail, postage prepaid, to such party at its address as provided in Section 7.
(c) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other State.
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9. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY; AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9.
10. Documentation and Information. The Stockholder consents to and authorizes the publication and disclosure by the Company of such Stockholder’s identity and holding of the Covered Shares, and the terms of this Agreement (including, for the avoidance of doubt, the disclosure of this Agreement), and any other information that the Company reasonably determines is required to be disclosed by applicable law, in any press release, the Proxy Statement and any other disclosure document required in connection with the Purchase Agreement, the PIPE Transaction and the other transactions contemplated by the Purchase Agreement. The Stockholder acknowledges that the Company, in its sole discretion, may file this Agreement or a form hereof with the U.S. Securities and Exchange Commission (the “SEC”) or any other Governmental Authority. Such Stockholder agrees to promptly give the Company any information it may reasonably request for the preparation of any such disclosure documents.
11. Further Assurances. The Stockholder agrees, from time to time, at the reasonable request of the Company and without further consideration, to execute and deliver such additional documents and take all such further action as may be reasonably required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.
12. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. For the avoidance of doubt, nothing in this Agreement shall be deemed to amend, alter or modify, in any respect, any of the provisions of the Purchase Agreement.
13. Reliance. The Stockholder understands and acknowledges that the Investors have entered into the Purchase Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement.
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14. Interpretation. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. References to sections and schedules are to section and schedules of this Agreement unless otherwise specified. All schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. The definitions contained in this Agreement are applicable to the masculine as well as to the feminine and neuter genders of such term. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute and to any rules or regulations promulgated thereunder. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including such date or through and including such date, respectively. References to any period of days will be deemed to be to the relevant number of calendar days unless otherwise specified. The parties agree that in the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party hereto by virtue of the authorship of any of the provisions of this Agreement.
15. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto in whole or in part (whether by operation of applicable law or otherwise) without the prior written consent of the other parties, and any such assignment without such consent shall be null and void. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.
16. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application of such provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.
17. Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. Delivery of an executed counterpart (including by DocuSign or similar electronic signature method) of a signature page to this Agreement by email of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Agreement.
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18. Non-Survival of Representations and Warranties. None of the representations and warranties in this Agreement or in any schedule, instrument or other document delivered pursuant to this Agreement shall survive the Expiration Time or the termination of this Agreement. This Section 18 shall not limit any covenant or agreement contained in this Agreement that by its terms is to be performed in whole or in part after the Expiration Time or the termination of this Agreement.
19. No Recourse. All claims, obligations, liabilities and causes of action based upon, in respect of, arising under, by reason of, in connection with, or relating in any manner to this Agreement may be made only against (and are those solely of) the Persons that are expressly identified as parties in the preamble and signatories to this Agreement (the “Contracting Parties”). No Person who is not a Contracting Party, including any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, Affiliate, agent, attorney, representative, financing source, heir or assignee of, or any financial advisor or lender to, or successor to, any Contracting Party, or any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, equityholder, Affiliate, agent, attorney, representative, financing source, heir or assignee of, or any financial advisor or lender to, or successor to, any of the foregoing (collectively, “Nonparty Affiliates”), shall have any liability, obligations, claims or causes of action based upon, in respect of, arising under, by reason of, in connection with, or relating in any manner to this Agreement, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of any party hereto or otherwise, and, to the maximum extent permitted by law, each Contracting Party hereby waives and releases all such liabilities, claims, causes of action and obligations against any such Nonparty Affiliates. Without limiting the foregoing, to the maximum extent permitted by law, (a) each Contracting Party hereby waives and releases any and all rights, claims, demands or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose liability of a Contracting Party on any Nonparty Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise and (b) each Contracting Party disclaims any reliance upon any Nonparty Affiliates with respect to the performance of this Agreement or any representation or warranty made by a Nonparty Affiliate in, in connection with, or as an inducement to this Agreement.
20. Termination. This Agreement shall automatically terminate without further action by any of the parties hereto and shall have no further force or effect as of the Expiration Time; provided that the provisions of this Section 20 shall survive any such termination. Notwithstanding the foregoing, termination of this Agreement shall not prevent any party hereto from seeking any remedies (at law or in equity) against any other party for that party’s breach of any of the terms of this Agreement prior to the date of termination; provided, however, that in no event shall any Stockholder have any liability for any monetary damages resulting from a breach of this Agreement other than in connection with a willful or deliberate act or failure to act by the Stockholder that such Stockholder knows, or could reasonably be expected to have known, that the taking of such act or failure could result in such a material breach.
21. No Agreement until Executed. This Agreement shall not be effective unless and until (i) the Board has approved, for purposes of Section 203 of the DGCL, and any applicable provision of the Company’s Organizational Documents, the Purchase Agreement, this Agreement and the PIPE Transaction, and following such approval, (ii) the Purchase Agreement is executed by all parties thereto and (iii) this Agreement is executed and delivered by all parties hereto.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.
| COMPANY: | ||
| LEE ENTERPRISES, INCORPORATED | ||
| By: | ||
| Name: | ||
| Title: | ||
| STOCKHOLDER: | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
[Signature Page to Voting Agreement]
Schedule A
| Stockholder | Shares
of Company Common Stock |
Exhibit 10.4
EXECUTIVE RETIREMENT AND TRANSITION AGREEMENT
This Executive Retirement and Transition Agreement (the “Agreement”) is made by and between LEE ENTERPRISES, INCORPORATED (hereinafter “Lee” or the “Company”) and KEVIN D. MOWBRAY (hereinafter “Mowbray”) as of December 30, 2025.
- - - - - - - - - - - - -
R E C I T A L S:
A. Mowbray and the Company are parties to that certain Amended and Restated Employment Agreement dated February 17, 2016 (the “Employment Agreement”).
B. Mowbray intends to voluntarily retire his employment, to be effective concurrently with the closing of the transactions contemplated by the Stock Purchase Agreement dated as of December 30, 2025 (the “Purchase Agreement”) between the Company and David Hoffmann (or an affiliate) and the other investors signatory thereto, from the position of President and Chief Executive Officer of Lee, as an officer and director of any Lee subsidiary or affiliate, and as an employee of Lee (the date on which such resignation becomes effective, the “Effective Date”).
Lee and Mowbray desire to set forth certain agreements with respect to Mowbray’s retirement from employment with Lee.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. Resignation. Mowbray hereby agrees to resign, effective on the Effective Date, from the position of President and Chief Executive Officer of Lee, as an officer and director of Lee and any and all subsidiaries and affiliated of Lee, and as an employee of Lee (provided that if the Effective Date occurs prior to the expiration of the 7-day revocation period described below, then this Agreement will be effective as of the expiration of such revocation), and Lee hereby accepts such resignation when tendered. Mowbray shall receive all pay and benefits thru the Effective Date. The consideration set forth in this Agreement shall be in satisfaction of and in lieu of, and Mowbray waives all rights to or in respect of, any salary or other compensation or perquisite, whether or not fully earned, accrued or vested at the Effective Date not described in paragraph 2, including any compensation described in Section 6 of the Employment Agreement. This includes but is not limited to accrued and unused vacation, and any claims which are capable of assertion as a consequence of or in connection with his employment or resignation from employment. Mowbray shall have the right to convert his status in his Lee benefits as may be provided under the benefit plan documents or by federal or state statute to a resigning executive of Lee, including COBRA.
2. Consulting Services. Mowbray hereby agrees, commencing on the Effective Date and extending through May 31, 2026 (the “Consulting Term”), to provide such consultation, advice and assistance in the transition and operation of Lee’s business as shall be reasonably requested, by the President and Chief Executive Officer, of the Company or his/her designee. Mowbray hereby agrees to make himself available to the Company by telephone and email for such consultation, advice and assistance as reasonably necessary to inform executives of Lee with regard to matters as to which Mowbray has knowledge as a consequence of and related to his employment by Lee. Reasonable out-of-pocket expenses incurred by Mowbray in providing such consulting services shall be paid or reimbursed by Lee.
3. Additional Consideration. Provided Mowbray has not revoked this Agreement as set forth in Exhibit “A” attached, as consideration for the covenants of Mowbray in paragraph 6 and 7 of this Agreement, Lee agrees as follows:
| (a) | The Company agrees to pay Mowbray a severance of $1,500,000, which shall be payable in thirty-six (36) equal installments through the Company payroll process and in accordance with the Company’s general payroll practices. |
| (b) | The Company agrees to pay Mowbray and spouse COBRA medical premiums for Mowbray and Mowbray’s spouse for a period of eighteen (18) months, commencing as of the date upon which such COBRA continuation coverage for Mowbray and his spouse shall commence. |
| (c) | Mowbray shall be permitted to retain his Company issued laptop and phone, with appropriate deletion for protection of confidential information of the Company. |
4. Indemnification. Notwithstanding any provision of this Agreement to the contrary, Mowbray will continue to be entitled to indemnification from Lee, as and to the extent provided in its Certificate of Incorporation or By-laws, or in its Indemnification Agreement with Mowbray dated September 19, 2002, with respect to acts occurring while he was or is an officer or employee of, or consultant to Lee, or performed services for any employee benefit plan of Lee, and Mowbray will continue to be entitled to coverage with respect to such acts to the extent afforded under any liability insurance maintained by Lee for the general benefit of its employees, officers and directors.
5. Non-Competition, Non-Solicitation and Confidential Information. In consideration of the Payments to be made hereunder:
(a) Unless approved by the President and Chief Executive Officer of the Company in advance, for a period of twelve (12) months following the Effective Date, Mowbray shall not Compete with the Company, or any of its affiliated companies, provided Mowbray is permitted to own up to one percent (1%) of the outstanding capital stock or other equity interests of any publicly-traded Person that is a Competitor, and/or serve in the capacity of a paid Board member for any business or not-for-profit organization.
(b) Unless approved by the President and Chief Executive Officer of the Company in advance, for a period of twelve (12) months following the Effective Date, Mowbray shall not, directly or indirectly, solicit the employment of, assist in the soliciting of the employment of, or hire any employee of the Company or any of its affiliated companies, or induce any Person who is an employee, agent or contractor of the Company to terminate such relationship, or to join with Mowbray or any other Person for the purpose of leaving the employ or such other relationship with the Company or any of its affiliated companies and undertaking any form of business. The preceding sentence shall not prevent Mowbray’s employer from hiring any employee of the Company who contacts Mowbray’s employer of his or her own initiative in response to advertisements or other general solicitations of employment from Mowbray’s employer not specifically directed to such employee.
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(c) For a period of twelve (12) months following the Effective Date, Mowbray shall not, directly or indirectly, solicit Customers for any purpose related to the Restricted Business.
(d) The restrictions set forth in subparagraphs 5(b) and 5(c) shall not apply to general advertising or other general solicitations not intended to target employees or Customers of the Company.
(e) Mowbray shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliated companies, and their respective businesses, which shall have been obtained by Mowbray during Mowbray’s employment by the Company or any of its affiliated companies and which shall not be or become public knowledge (other than by acts by Mowbray or representatives of Mowbray in violation of this Agreement). After termination of Mowbray’s employment with the Company, Mowbray shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it. In no event shall an asserted violation of the provisions of this subparagraph 6(e) constitute a basis for deferring or withholding any amounts otherwise payable to the Mowbray under this Agreement.
(f) In the event of Mowbray’s actual or threatened breach of this paragraph 6, the Company shall be entitled to an injunction restraining Mowbray therefrom, and shall not be deemed to be the exclusive remedy for any such breach, but shall be in addition to all other remedies at law or in equity. Mowbray agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. If, at the time of enforcement of this paragraph 6, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law.
(g) For purposes of this paragraph 6, the following terms shall have the respective meanings set forth below:
(i) “Compete” means to, directly or indirectly, own, manage, control or participate in the ownership, management, or control of, or be employed or engaged by or otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any Competitor, or otherwise directly or indirectly engage in any Restricted Business primarily targeted to the Restricted Area; provided that Compete shall not include providing consultative services regarding cost management or reduction strategies or initiatives.
(ii) “Competitor” means any Person (other than the Company or its affiliated companies) who undertakes any Restricted Business.
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(iii) “Customer” means any Person who was a customer of, had a contractual relationship with, or was a prospective customer of the Company or its affiliated companies, at any time within the twenty-four (24) month period ending on the Effective Date. “Person” means any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended.
(iv) “Restricted Business” shall mean any multi media news and/or advertising business that competes with the Company.
6. RELEASE. In exchange for receiving payment of the amounts described in Section 4(a) above, Mowbray releases the Company, its directors, officers, and any affiliate or subsidiary from any and all debts, obligations, claims, losses, injuries, damages, causes of action, demands or any other rights arising out of or related to his employment with Lee, the termination of such employment, or any compensation of any nature either paid or alleged to be owing to you, including, but not limited to:
| a. | Any claim relating to alleged employment discrimination, harassment, or civil rights violations whether based upon statutory or common law claims, such as, but not limited to, any possible claims arising under Title VII of the Civil Rights Act of 1964, as amended; the Family and Medical Leave Act; the Age Discrimination in Employment Act of 1967, as amended; the Older Worker Benefits Protection Act, as amended; the Americans with Disabilities Act, as amended; the Genetic Information Non-Discrimination Act; the Civil Rights Act of 1991; the Employee Retirement Income Security Act, as amended; the Iowa Civil Rights Act, as amended, and any other federal, state, or local statute or law; |
| b. | Any claim under the Employment Agreement or any other agreement between Mowbray and the Company; |
| c. | Any other claim related to wrongful discharge, breach of any express or implied promise, misrepresentation, retaliation, whistleblower claims, breach of public policy, breach of any privacy rights, infliction of emotional distress, negligence, defamation, claims for lost wages or bonuses, claims relating to any form of employee benefits, claims for attorney fees or costs; and |
| d. | Any other claim, action or liability arising under any federal, state or local statute or ordinance, or common law arising out of or in connection with Mowbray’s employment with the Company. |
The releases contained in this Agreement are intended to include all claims that may exist at the time of its execution, including claims that Mowbray may not know or suspect to exist. Execution of this Agreement shall result in the extinguishment of any such claim or claims.
By signing this Agreement, Mowbray also gives up any and all rights he may have for individual relief under the laws listed above, and any other laws.
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In exchange for the payments to be made under this Agreement, Mowbray specifically waives any claims that he may have under the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, and any successor to either of these laws or any other similar law.
A “covenant not to sue” is a legal term, and it is different from the Release of all claims set forth above. Besides waiving and releasing the claims covered in the Release of all claims section above, to the fullest extent permitted by law, Mowbray agrees never to sue Lee in any forum for any reason arising out of or related in any way to his employment and/or separation of employment, including but not limited to claims, laws or theories covered by the Release of all claims language set forth above. Notwithstanding Mowbray’s covenant not to sue as provided herein, such covenant shall not apply to any claims for which Mowbray is not providing a release or otherwise waiving under the terms of this Agreement.
By signing this Agreement, Mowbray will not waive (a) his rights under state unemployment insurance law, (b) his rights under state workers compensation laws, (c) the right to file a charge or complaint or otherwise communicate with the EEOC or equivalent state agency or other governmental agency, although Mowbray agrees that he is waiving any right that Mowbray may have to obtain or receive any monetary damages or other relief of any kind directly from the Company or Lee as a result of any action or proceeding brought by Mowbray or by any other person or entity on behalf of Mowbray regarding such claims; (d) any other rights or claims that Mowbray may have that cannot, by law, be released by private agreement; (e) Mowbray’s right to enforce this Agreement and the terms hereof; (f) any rights that Mowbray may have under ERISA or any federal, state or local law to claim retirement benefits or any other employee benefits to which Mowbray has a vested right as of the Effective Date, or in which Mowbray attains any vested right as a result of his entering into this Agreement or the voluntary resignation of employment with Lee; and (g) any rights or claims that arise after the date of this Agreement. Nothing in this Agreement is intended to or will be used in any way to limit Mowbray rights to communicate with, participate in any investigation or proceeding conducted by, or report any allegations of unlawful conduct to a government agency, as provided for, protected under or warranted by applicable law.
By signing this Agreement, Mowbray represents that (a) he has disclosed to Lee any and all work-related injuries that he may have suffered; and (b) as of the Effective Date, he will have been paid in full all wages due and owing for any and all work performed for Lee through the Effective Date. If there is any work-related injury that has not been reported or if have not been paid for all work performed, Mowbray must report this to his Human Resources representative immediately.
7. Notices. Any notices to be given hereunder by either party to the other shall be effective when mailed, registered or certified, postage prepaid with return receipt requested, except as otherwise noted. Mailed notices shall be addressed to the parties at the addresses appearing below, but each party may change address by written notice to the other.
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If to Lee:
President and Chief Executive Officer
Lee Enterprises, Incorporated
201 N. Harrison St., Suite 600
Davenport, IA 52801
Attn: President & Chief Executive Officer
If to Mowbray:
Kevin D. Mowbray
[****]
8. Independent Consultation. Mowbray acknowledges that he has been advised to consult with advisors of his choice, including an attorney and a tax or financial consultant, prior to signing this Agreement; that he has been afforded an opportunity to review this Agreement with advisors of his choice, including an attorney or tax or financial consultant; that he has read and understands this Agreement; and that he has signed this Agreement freely and voluntarily.
9. Modification. Any modification of this Agreement will be effective only if in writing and signed by both parties.
10. Waiver. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of any such provision. The rights granted each party herein are cumulative and the election of one shall not constitute a waiver of such party’s right to assert all legal remedies available under the circumstances.
11. Right to Cure. Any material violation by either party to this Agreement shall, after notice to the violator with an opportunity to cure said violation and without the cure thereof within a reasonable period (not to exceed 10 days with respect to monetary items and 30 days otherwise), entitle the other party to proceed against the violator by all legal and equitable process available, including injunctive relief and monetary damages. In the event of violation or threatened violation of this Agreement, then in addition to any other damages or remedies available, the prevailing party shall be entitled to recover reasonable attorney’s fees and all costs of suit incurred in enforcing this Agreement.
12. Successors and Assigns. This Agreement and all of its provisions shall be binding upon and inure to the benefit of any successors, assigns, personal representatives or heirs of the parties hereto.
13. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Iowa.
14. Prior Agreements. This Agreement supersedes and cancels any and all other prior agreements and understandings between the parties existing at the date set forth below, including the parties’ Amended and Restated Employment Agreement dated February 17, 2016.
THIS AGREEMENT INCLUDES A RELEASE OF CLAIMS. READ CAREFULLY BEFORE SIGNING. THE PARTIES ARE ADVISED TO CONSULT WITH A LAWYER TO UNDERSTAND THE LEGAL EFFECT OF THIS AGREEMENT.
Mowbray has 21 days to think about whether he wants to agree, although he may sign this Agreement sooner if he wishes.
*Signature page follows*
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| LEE ENTERPRISES, INCORPORATED | |||
| By: | /s/ Astrid Garcia | /s/ Kevin D. Mowbray | |
| Astrid Garcia | Kevin D. Mowbray | ||
| Vice President - Human Resources and | |||
| Legal; Chief Legal Officer | |||
REVOCATION
This Agreement does not take effect until the eighth day after signed by Mowbray. The day Mowbray signs the Agreement is counted as the first day. Mowbray may revoke this agreement by signing on the additional space provided below and giving an original copy of this contract back to Astrid Garcia, VP Legal and HR; Chief Legal Officer of Company, prior to 5:00 P.M. on the seventh day. If the seventh day is a Saturday, Sunday, or legal holiday, then receipt by Lee on the next business day shall be considered to be within the seven days.
I hereby revoke my agreement with Lee Enterprises, Incorporated.
| Date: |
| Kevin D. Mowbray |
[Signature Page – Executive Retirement and Transition Agreement]
Exhibit 10.5
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into and effective as of December 30, 2025 by and among LEE ENTERPRISES, INCORPORATED, a Delaware corporation (“Borrower”) and BH FINANCE LLC, a Nebraska limited liability company (“Lender”).
RECITALS
WHEREAS, Borrower and Lender are parties to that certain Credit Agreement dated as of January 29, 2020 (as amended by that certain Waiver and Amendment to Credit Agreement dated as of May 1, 2025, the “Existing Credit Agreement” and as further amended by this Amendment, the “Credit Agreement”);
WHEREAS, capitalized terms used and not otherwise defined herein have the meanings set forth in the Credit Agreement;
WHEREAS, Borrower intends to consummate a Borrower Equity Issuance that is a private investment in public equity transaction pursuant to which Borrower will issue voting Equity Interests consisting of shares of its common stock, $0.01 par value (the “PIPE Investment”) to certain investors, pursuant to the Stock Purchase Agreement, dated on or about the date hereof, (as amended, restated, supplemented or otherwise modified from time to time, and together with any substantially similar stock purchase agreements entered into in connection therewith, the “SPA”), which PIPE Investment is intended to result in aggregate cash gross proceeds to Borrower of no less than $50.0 million upon the issuance of the Equity Interests offered pursuant thereto; and
WHEREAS, Borrower has requested, and Lender has agreed to certain amendments to the Existing Credit Agreement in connection with the consummation of the PIPE Investment, on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Article
I
AMENDMENTS TO CREDIT AGREEMENT
1.1 Applicable Rate. The definition of “Applicable Rate” of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Applicable Rate” means (i) if the Successful PIPE Investment Date has occurred, then commencing the following Business Day after such occurrence until the five year anniversary of the Successful PIPE Investment Date, a fixed rate of five percent (5.00%) per annum or (ii) at any other date following the Second Amendment Date, a fixed rate of nine percent (9.00%) per annum.
1.2 Change of Control. The definition of “Change of Control” of the Credit Agreement is hereby amended by inserting the following new sentence at the end thereof:
Notwithstanding the foregoing or anything to the contrary contained herein, upon and after the occurrence of the Successful PIPE Investment Date, no “Change of Control” will have occurred as a result of any such “person” or “group” consisting of any of the PIPE Investors and their Affiliates becoming the “beneficial owner”, directly or indirectly, of 25.0% or more of the Equity Interests of Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any other option right).
1.3 Excess Cash Flow. The definition of “Excess Cash Flow” of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Excess Cash Flow” means any cash or Cash Equivalents, as defined under GAAP, in excess of $20,000,000 as shown on the Borrower’s consolidated balance sheet, calculated at the end of each fiscal quarter; provided that, notwithstanding the foregoing, upon and after the occurrence of the Successful PIPE Investment Date, commencing with the fiscal quarter in which such date occurs and continuing until the five (5) year anniversary of the Successful PIPE Investment Date, Excess Cash Flow shall be deemed to be zero to the extent that the aggregate amount of cash and Cash Equivalents shown on the Borrower’s consolidated balance sheet at the end of such fiscal quarter does not exceed $64,000,000. Excess Cash Flow shall exclude the proceeds of any Borrower Equity Issuance, including any proceeds from the exercise of warrants, made subsequent to the PIPE Investment.
1.4 PIPE Investment. The Credit Agreement is hereby amended to add the following definitions:
“PIPE Investment” means the issuance by Borrower of its Equity Interests pursuant to the SPA.
“PIPE Investors” means those certain Investors (as defined in the SPA) that are signatories to the SPA.
“Second Amendment Date” means December 30, 2025.
“SPA” means that certain Stock Purchase Agreement, dated on or about the Second Amendment Date, by and among Borrower and the investors party thereto, as amended, restated, supplemented or otherwise modified from time to time, together with any substantially similar stock purchase agreements entered into in connection with the PIPE Investment.
“Successful PIPE Investment Date” shall mean the date upon which Borrower has consummated the PIPE Investment resulting in aggregate gross cash proceeds of no less than $50.0 million.
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Article
II
EFFECTIVENESS
This Amendment shall become effective upon receipt by Lender of this Amendment duly executed and delivered by Borrower and Lender.
Article
III
MISCELLANEOUS
3.1 References; Effect on Credit Agreement.
(a) On and after the effectiveness hereof, each reference in the Credit Agreement or any other Loan Document to the Credit Agreement shall mean and be a reference to the same as amended by this Amendment.
(b) Except as expressly amended hereby, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.
(c) Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Lender under the Credit Agreement or any other Loan Document, or constitute a waiver of any provision of the Credit Agreement or any other Loan Document.
(d) Borrower acknowledges and agrees that: (i) as of the date hereof, Borrower has no defenses, claims or set-offs to the payment of the Obligations or other amounts due under the Credit Agreement or the other Loan Documents or to the enforcement of the Credit Agreement or the other Loan Documents; and (ii) the Liens granted pursuant to the Loan Documents remain valid perfected Liens in the assets of the Loan Parties securing the payment and performance of the Obligations.
3.2 Representations and Warranties of Borrower. Borrower represents and warrants as follows:
(a) The execution, delivery and performance by Borrower of this Amendment (i) are within Borrower’s powers, (ii) have been duly authorized by all necessary action, and (iii) do not contravene (A) Borrower’s Organization Documents, or (B) any law or contractual restriction binding on or affecting Borrower.
(b) This Amendment, the Credit Agreement (as amended hereby) and the other Loan Documents constitute legal, valid and binding obligations of Borrower and any other Loan Parties party thereto and are enforceable against Borrower and such other Loan Parties in accordance with their respective terms.
(c) Immediately after giving effect to this Amendment, no Event of Default exists and is continuing.
3.3 Execution in Counterparts. This Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument. This Amendment shall be valid, binding and enforceable against a party only when executed by an authorized individual on behalf of the party by means of (a) a DocuSign® electronic signature, (b) an original, manual signature, or (c) a faxed, electronic image scan transmission (e.g., “pdf” or “tif” via electronic mail) or photocopied manual signature. Each DocuSign®, faxed, electronic image scan transmission (e.g., “pdf” or “tif” via electronic mail) or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature.
3.4 Governing Law; Venue; Waiver of Jury Trial. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York. The terms of Section 8.13(b) through (d) and Section 8.14 of the Credit Agreement are incorporated herein by reference.
3.5 Amendment is a Loan Document. This Amendment is a Loan Document.
[remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the date first above written.
| BORROWER: | ||
| LEE ENTERPRISES, INCORPORATED, a Delaware corporation | ||
| By: | /s/ Timothy R. Millage | |
| Name: | Timothy R. Millage | |
| Title: | Vice President, Chief Financial Officer and Treasurer | |
| LENDER: | ||
| BH FINANCE LLC, | ||
| a Nebraska limited liability company | ||
| By: | /s/ R. Ted Weschler | |
| Name: | R. Ted Weschler | |
| Title: | Authorized Signatory | |
[Signature Page to Second Credit Agreement Amendment]
Exhibit 99.1
Lee Enterprises Announces Strategic Investment and Board-Led Transition
Davenport, Iowa — December 30, 2025 — Lee Enterprises, Incorporated (the “Company” and Nasdaq: LEE) today announced that it has entered into a definitive stock purchase agreement for a $50 million strategic equity investment in the Company’s common stock. The investment is led by David Hoffmann (“Hoffmann”), with participation from other existing investors in the Company, providing the Company with committed capital and a strengthened financial and governance foundation as it moves into its next phase.
Under the agreement, the Company has entered into a $50 million private placement of common stock at an investment price of $3.25 per share anchored and fully backstopped by Hoffmann, who initially committed a minimum of $20 million, with the remaining $30 million allocated to other top existing investors. As a result of the subscription levels and backstop, at signing, Hoffmann has committed approximately $35 million, with additional investors committing approximately $15 million. Also, Hoffmann has backstopped the capital raise by fully committing to purchase any remaining amount of common stock to the extent not purchased by any additional investors at the closing of the transaction. Subject to customary closing conditions and stockholder approval, the Company expects to receive the full $50 million of gross proceeds at the closing of the transaction, before transaction expenses.
The closing of the $50 million investment is expected to satisfy a condition to amend the Company’s existing credit facility, reducing the annual interest rate on approximately $455.5 million of the Company’s outstanding long-term debt to 5% from 9% for a five-year period, materially improving the Company’s capital structure and cash flow outlook.
Following a comprehensive review of the Company’s performance, capital structure, and long-term opportunities, the Company’s board of directors (the “Board”) unanimously approved the transaction and determined that decisive action was required. The Board concluded that strengthening the balance sheet, implementing leadership change, and advancing a clear strategic direction are necessary to improve execution and position the Company for long-term value creation.
“This transaction reflects the Board’s determination to act decisively," said Mary Junck, Chair of the Board. “By strengthening the balance sheet and improving the Company’s capital structure, we are putting the Company in a better position to execute and create long-term value.”
As part of the closing of the strategic equity investment, David Hoffmann is expected to assume the role of Chair of the Board.
“This transaction strengthens the Company’s balance sheet and reflects the Board’s determination to take decisive action,” said David Hoffmann, incoming Chair of the Board. “With improved financial stability and a clear governance framework in place, the focus can now be on disciplined execution and long-term value creation.”
Concurrently with the execution of the stock purchase agreement, Kevin Mowbray, the Company’s President and Chief Executive Officer, has announced his retirement. The Company expects the current Chief Operating Officer, Nathan Bekke, to serve as Interim Chief Executive Officer, and the Board has initiated a search for a permanent CEO. Kevin joined the Company in 1986, and over his 39-year career, he served in thirteen Lee markets.
Advisors
Oppenheimer & Co. Inc., Kirkland & Ellis LLP and Lane & Waterman LLP served as exclusive financial advisor and legal advisors, respectively, to Lee Enterprises, Incorporated.
Stifel and Lathrop GPM LLP served as the exclusive financial advisor and legal advisor, respectively, to Hoffmann.
Other Important Information
The issuance and sale of shares of the Company’s common stock pursuant to the foregoing transactions is subject to customary closing conditions, including among other things, the approval of our stockholders at a special meeting (the “Special Meeting”), which is expected to be held in the first quarter of 2026.
The shares of common stock being issued and sold in the above-mentioned transaction will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or applicable state securities laws and accordingly may not be offered or sold in the United States absent registration with the Securities and Exchange Commission (the “SEC”) or an applicable exemption from the registration requirements of the Securities Act and such applicable state securities laws.
This communication is being made in regard to the Special Meeting and the related proposals. In connection therewith, the Company intends to file a preliminary proxy statement with the SEC. Once the preliminary proxy statement is declared effective, a definitive proxy statement will be mailed or otherwise made available through permissible means to the Company’s stockholders. BEFORE MAKING ANY VOTING DECISION, STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT ONCE AVAILABLE REGARDING THE PROPOSALS SET FORTH THEREIN AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSALS SET FORTH THEREIN. This press release is not a substitute for the proxy statement or any other document that the Company may file with the SEC. Stockholders may obtain free copies of the proxy statement, any amendments or supplements thereto and other documents containing important information about the Company once such documents are filed with the SEC, through the website maintained by the SEC at www.sec.gov. Copies of the documents filed with the SEC by the Company will be available free of charge on the “Investor Relations” section of the Company’s website (https://investors.lee.net/).
In support of the transaction, the Company’s board of directors, senior management, and key stockholders have entered into voting agreements in favor of the transaction. The Company and members of the Company’s board of directors, as well as certain existing stockholders participating in the transaction as described above, may be deemed to be “participants” under SEC rules in any solicitation of the Company’s stockholders in respect of the Company’s proposals set forth in the definitive proxy statement. Information regarding the directors and executive officers of the Company is set forth (i) in the Company's Annual Report on Form 10-K for its fiscal year ended September 28, 2025, filed with the SEC on November 26, 2025 (the “Annual Report”) and (ii) to the extent holdings of the Company’s securities by its directors or executive officers have changed since the amounts set forth in the Company’s Annual Report, such changes have been or will be reflected on Initial Statement of Beneficial Ownership of Securities on Form 3, Statement of Changes in Beneficial Ownership on Form 4, or Annual Statement of Changes in Beneficial Ownership on Form 5 filed with the SEC, including: Form 4 filed by Joseph Battistoni on December 18, 2025, Form 4 filed by Nathan Bekke on December 18, 2025, Form 4 filed by Astrid Garcia on December 18, 2025, Form 4 filed by Timothy Millage on December 18, 2025, and Form 4 filed by Kevin Mowbray on December 18, 2025.
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Further information concerning certain persons, including with respect to their holdings, who may be deemed participants in the solicitation of the Company’s stockholders under the rules of the SEC will be set forth in the definitive proxy statement when it is filed with the SEC. You may obtain free copies of these documents through the website maintained by the SEC at https://www.sec.gov.
No Offer or Solicitation
This press release does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. This press release does not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Special Meeting.
About Lee
Lee Enterprises is a major subscription and advertising platform and a leading provider of local news and information with daily newspapers, rapidly growing digital products and nearly 350 weekly and specialty publications serving 72 markets in 25 states. Our core commitment is to provide valuable, intensely local news and information to the communities we serve. Our markets include St. Louis, MO; Buffalo, NY; Omaha, NE; Richmond, VA; Lincoln, NE; Madison, WI; Davenport, IA; and Tucson, AZ. Lee Common Stock is traded on the NASDAQ under the symbol LEE. For more information about Lee, please visit www.lee.net.
Forward-Looking Statements
This press release includes forward-looking statements, including statements relating to the expected timing of the closing of the transaction (if at all), the use of proceeds of the transaction and any expected interest savings as a result thereof. All statements other than statements of historical fact are, or may be deemed to be, forward-looking statements. In some cases, forward-looking statements can be identified by the use of forward-looking terms such as “may,” “will,” “should,” “could,” “expect,” “intend,” “plan,” “anticipate,” “potential,” “outlook” or “shall,” or the negative of these terms or other comparable terms. However, the absence of these words does not mean that the statements are not forward-looking. These forward-looking statements are based on certain assumptions and analyses made by us in light of our experience and our perception of historical trends, current conditions and expected future developments, as well as other factors we believe are appropriate in the circumstances.
These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions that may cause actual results, levels of activity, performance, or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. Factors that might cause or contribute to a material difference include the risks discussed in our filings with the SEC and the following: potential delays in consummating or the inability to consummate the transaction; the occurrence of any event, change or other circumstance that could give rise to the termination of the stock purchase agreement; failure to obtain stockholder approval at the Special Meeting; the effect of the pendency or completion of the transaction on the parties’ business relationships and business generally; changes in the Company’s corporate governance (including with respect to any new directors); competition and pricing pressures; and economic conditions generally. All forward-looking statements set forth in this press release are qualified by these cautionary statements and there can be no assurance that the actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected consequences to or effects on us or our business or operations. Forward-looking statements set forth in this press release speak only as of the date hereof, and we do not undertake any obligation to update forward-looking statements to reflect subsequent events or circumstances, changes in expectations or the occurrence of unanticipated events, except to the extent required by law.
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