E.W. SCRIPPS Co 10-Q for FY2025 Q3
E.W. SCRIPPS Co (SSP)
10-Q
2025-11-07
For: 2025-09-30
View Original
Added on
April 10, 2026
About this 10-Q
E.W. SCRIPPS Co filed this 10-Q on November 7, 2025, covering the quarter ended September 30, 2025 (FY2025 Q3).
Headline figures
Quarter ended September 30, 2025, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $525.85M
- down 18.6% from $646.3M a year earlier
- Net loss
- $32.96M
- compared with net income of $47.78M a year earlier
- Diluted EPS
- -$0.55
- compared with $0.37 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||||||
For the quarterly period ended September 30, 2025
OR
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||||||
For the transition period from to | ||||||||
Commission File Number 001-10701
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) | (IRS Employer Identification Number) | ||||||||||
| (Address of principal executive offices) | (Zip Code) | ||||||||||
Registrant's telephone number, including area code: (513 ) 977-3000
Not applicable
(Former name, former address and former fiscal year, if changed since last report.)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☑ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☑ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” “smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | ☑ | Emerging growth company | ||||||||||||||
| Non-accelerated filer | ☐ | Smaller reporting 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. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☑
Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. As of September 30, 2025, there were 76,869,408 of the registrant’s Class A Common shares, $0.01 par value per share, outstanding and 11,932,722 of the registrant’s Common Voting shares, $0.01 par value per share, outstanding.
Index to The E.W. Scripps Company Quarterly Report
on Form 10-Q for the Quarter Ended September 30, 2025
| Item No. | Page | |||||||
1. Financial Statements | ||||||||
2. Management's Discussion and Analysis of Financial Condition and Results of Operations | ||||||||
3. Quantitative and Qualitative Disclosures About Market Risk | ||||||||
4. Controls and Procedures | ||||||||
PART II - Other Information | ||||||||
1. Legal Proceedings | ||||||||
1A. Risk Factors | ||||||||
3. Defaults Upon Senior Securities | ||||||||
4. Mine Safety Disclosures | ||||||||
5. Other Information | ||||||||
6. Exhibits | ||||||||
Signatures | ||||||||
2
PART I
As used in this Quarterly Report on Form 10-Q, the terms “Scripps,” “Company,” “we,” “our,” or “us” may, depending on the context, refer to The E.W. Scripps Company, to one or more of its consolidated subsidiary companies, or to all of them taken as a whole.
Item 1. Financial Statements
The information required by this item is filed as part of this Form 10-Q. See Index to Financial Information at page F-1 of this Form 10-Q.
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations
The information required by this item is filed as part of this Form 10-Q. See Index to Financial Information at page F-1 of this Form 10-Q.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The information required by this item is filed as part of this Form 10-Q. See Index to Financial Information at page F-1 of this Form 10-Q.
Item 4. Controls and Procedures
The information required by this item is filed as part of this Form 10-Q. See Index to Financial Information at page F-1 of this Form 10-Q.
PART II
Item 1. Legal Proceedings
We are involved in litigation and regulatory proceedings arising in the ordinary course of business, such as defamation actions and governmental proceedings primarily relating to renewal of broadcast licenses, none of which is expected to result in material loss.
Item 1A. Risk Factors
There have been no material changes to the risk factors disclosed in Item 1A. Risk Factors in our 2024 Annual Report on Form 10-K.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
There were no sales of unregistered equity securities during the quarter ended September 30, 2025.
Item 3. Defaults Upon Senior Securities
There were no defaults upon senior securities during the quarter ended September 30, 2025.
Item 4. Mine Safety Disclosures
None.
3
Item 5. Other Information
Director and Officer Trading Arrangements
None of our directors or officers adopted terminated
Item 6. Exhibits
| Exhibit Number | Exhibit Description | |||||||
| 10.01 | ||||||||
| 10.02 | ||||||||
| 31(a) | ||||||||
| 31(b) | ||||||||
| 32(a) | ||||||||
| 32(b) | ||||||||
| 101 | The Company's unaudited Condensed Consolidated Financial Statements and related Notes for the three and nine months ended September 30, 2025 from this Quarterly Report on Form 10-Q, formatted in iXBRL (Inline eXtensible Business Reporting Language). * | |||||||
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101). * | |||||||
* - Filed herewith
4
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, thereunto duly authorized.
| THE E.W. SCRIPPS COMPANY | ||||||||
| Dated: November 7, 2025 | By: | /s/ Daniel W. Perschke | ||||||
| Daniel W. Perschke | ||||||||
| Senior Vice President, Controller | ||||||||
| (Principal Accounting Officer) | ||||||||
5
The E.W. Scripps Company
Index to Financial Information (Unaudited)
F-1
The E.W. Scripps Company
Condensed Consolidated Balance Sheets (Unaudited)
| (in thousands, except share data) | As of September 30, 2025 | As of December 31, 2024 | ||||||||||||
| Assets | ||||||||||||||
| Current assets: | ||||||||||||||
| Cash and cash equivalents | $ | $ | ||||||||||||
Accounts receivable (less allowances — $ | ||||||||||||||
| Miscellaneous | ||||||||||||||
| Assets held for sale | ||||||||||||||
| Total current assets | ||||||||||||||
| Investments | ||||||||||||||
| Property and equipment | ||||||||||||||
| Operating lease right-of-use assets | ||||||||||||||
| Goodwill | ||||||||||||||
| Other intangible assets | ||||||||||||||
| Programming | ||||||||||||||
| Miscellaneous | ||||||||||||||
| Total Assets | $ | $ | ||||||||||||
| Liabilities and Equity | ||||||||||||||
| Current liabilities: | ||||||||||||||
| Accounts payable | $ | $ | ||||||||||||
| Unearned revenue | ||||||||||||||
| Current portion of long-term debt | ||||||||||||||
| Accrued liabilities: | ||||||||||||||
| Employee compensation and benefits | ||||||||||||||
| Accrued income taxes | ||||||||||||||
| Programming liability | ||||||||||||||
| Accrued interest | ||||||||||||||
| Miscellaneous | ||||||||||||||
| Other current liabilities | ||||||||||||||
| Total current liabilities | ||||||||||||||
| Long-term debt (less current portion) | ||||||||||||||
| Deferred income taxes | ||||||||||||||
| Operating lease liabilities | ||||||||||||||
| Other liabilities (less current portion) | ||||||||||||||
| Equity: | ||||||||||||||
Preferred stock, $ | ||||||||||||||
Preferred stock — Series A, $ | ||||||||||||||
Common stock, $ | ||||||||||||||
Class A — authorized: | ||||||||||||||
Voting — authorized: | ||||||||||||||
| Total preferred and common stock | ||||||||||||||
| Additional paid-in capital | ||||||||||||||
| Accumulated deficit | ( | ( | ||||||||||||
| Accumulated other comprehensive loss, net of income taxes | ( | ( | ||||||||||||
| Total equity | ||||||||||||||
| Total Liabilities and Equity | $ | $ | ||||||||||||
F-2
The E.W. Scripps Company
Condensed Consolidated Statements of Operations (Unaudited)
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||
| (in thousands, except per share data) | 2025 | 2024 | 2025 | 2024 | ||||||||||||||||||||||
| Operating Revenues: | ||||||||||||||||||||||||||
| Advertising | $ | $ | $ | $ | ||||||||||||||||||||||
| Distribution | ||||||||||||||||||||||||||
| Other | ||||||||||||||||||||||||||
| Total operating revenues | ||||||||||||||||||||||||||
| Operating Expenses: | ||||||||||||||||||||||||||
| Cost of revenues, excluding depreciation and amortization | ||||||||||||||||||||||||||
| Selling, general and administrative expenses, excluding depreciation and amortization | ||||||||||||||||||||||||||
| Restructuring costs | ||||||||||||||||||||||||||
| Depreciation | ||||||||||||||||||||||||||
| Amortization of intangible assets | ||||||||||||||||||||||||||
| Losses (gains), net on disposal of property and equipment | ( | ( | ||||||||||||||||||||||||
| Total operating expenses | ||||||||||||||||||||||||||
| Operating income | ||||||||||||||||||||||||||
| Interest expense | ( | ( | ( | ( | ||||||||||||||||||||||
| Loss on extinguishment of debt | ( | ( | ||||||||||||||||||||||||
| Other financing transaction costs | ( | ( | ||||||||||||||||||||||||
| Defined benefit pension plan income (expense) | ( | ( | ||||||||||||||||||||||||
| Miscellaneous, net | ( | ( | ||||||||||||||||||||||||
| Income (loss) from operations before income taxes | ( | ( | ||||||||||||||||||||||||
| Provision (benefit) for income taxes | ( | ( | ||||||||||||||||||||||||
| Net income (loss) | ( | ( | ||||||||||||||||||||||||
| Preferred stock dividends | ( | ( | ( | ( | ||||||||||||||||||||||
| Net income (loss) attributable to the shareholders of The E.W. Scripps Company | $ | ( | $ | $ | ( | $ | ||||||||||||||||||||
| Net income (loss) per basic share of common stock attributable to the shareholders of The E.W. Scripps Company | $ | ( | $ | $ | ( | $ | ||||||||||||||||||||
| Net income (loss) per diluted share of common stock attributable to the shareholders of The E.W. Scripps Company | $ | ( | $ | $ | ( | $ | ||||||||||||||||||||
See notes to condensed consolidated financial statements.
F-3
The E.W. Scripps Company
Condensed Consolidated Statements of Comprehensive Income (Loss) (Unaudited)
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||
| (in thousands) | 2025 | 2024 | 2025 | 2024 | ||||||||||||||||||||||
| Net income (loss) | $ | ( | $ | $ | ( | $ | ||||||||||||||||||||
Changes in defined benefit pension plans, net of tax of $ | ||||||||||||||||||||||||||
| Other | ||||||||||||||||||||||||||
| Total comprehensive income (loss) attributable to preferred and common stockholders | $ | ( | $ | $ | ( | $ | ||||||||||||||||||||
See notes to condensed consolidated financial statements.
F-4
The E.W. Scripps Company
Condensed Consolidated Statements of Cash Flows (Unaudited)
| Nine Months Ended September 30, | ||||||||||||||
| (in thousands) | 2025 | 2024 | ||||||||||||
| Cash Flows from Operating Activities: | ||||||||||||||
| Net income (loss) | $ | ( | $ | |||||||||||
| Adjustments to reconcile net income (loss) to net cash flows from operating activities: | ||||||||||||||
| Depreciation and amortization | ||||||||||||||
| Losses (gains), net on disposal of property and equipment | ( | |||||||||||||
| Loss on extinguishment of debt | ||||||||||||||
| Programming assets and liabilities | ||||||||||||||
| Restructuring impairment charges | ||||||||||||||
| Losses (gains) on sale of investments | ( | ( | ||||||||||||
| Deferred income taxes | ( | ( | ||||||||||||
| Stock and deferred compensation plans | ||||||||||||||
| Pension contributions, net of income/expense | ( | ( | ||||||||||||
| Other changes in certain working capital accounts, net | ( | |||||||||||||
| Miscellaneous, net | ||||||||||||||
| Net cash provided by operating activities | ||||||||||||||
| Cash Flows from Investing Activities: | ||||||||||||||
| Additions to property and equipment | ( | ( | ||||||||||||
| Purchase of investments | ( | ( | ||||||||||||
| Proceeds from sale of property and equipment | ||||||||||||||
| Proceeds from sale of investments | ||||||||||||||
| Net cash provided by (used in) investing activities | ( | |||||||||||||
| Cash Flows from Financing Activities: | ||||||||||||||
| Net borrowings (payments) under revolving credit facility | ( | |||||||||||||
| Proceeds received from accounts receivable securitization facility | ||||||||||||||
| Payments on accounts receivable securitization facility | ( | |||||||||||||
| Proceeds from issuance of long-term debt | ||||||||||||||
| Payments on long-term debt | ( | ( | ||||||||||||
| Payments of deferred financing costs | ( | |||||||||||||
| Payments of debt extinguishment costs | ( | |||||||||||||
| Tax payments related to shares withheld for vested stock and RSUs | ( | ( | ||||||||||||
| Miscellaneous, net | ( | ( | ||||||||||||
| Net cash provided by (used in) financing activities | ( | |||||||||||||
| Increase (decrease) in cash and cash equivalents | ( | |||||||||||||
| Cash and cash equivalents: | ||||||||||||||
| Beginning of year | ||||||||||||||
| End of period | $ | $ | ||||||||||||
| Supplemental Cash Flow Disclosures | ||||||||||||||
| Interest paid | $ | $ | ||||||||||||
| Income taxes paid | $ | $ | ||||||||||||
| Non-cash investing information | ||||||||||||||
| Accrued capital expenditures | $ | $ | ||||||||||||
See notes to condensed consolidated financial statements.
F-5
The E.W. Scripps Company
Condensed Consolidated Statements of Equity (Unaudited)
Three Months Ended September 30, 2025 and 2024 (in thousands, except per share data) | Preferred Stock | Common Stock | Additional Paid-in Capital | Retained Earnings (Accumulated Deficit) | Accumulated Other Comprehensive Income (Loss) ("AOCI") | Total Equity | ||||||||||||||||||||||||||||||||||||||
| As of June 30, 2025 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
| Comprehensive income (loss) | — | — | — | ( | ( | |||||||||||||||||||||||||||||||||||||||
Preferred stock dividends, $ | — | ( | — | — | ||||||||||||||||||||||||||||||||||||||||
Compensation plans: | — | — | — | |||||||||||||||||||||||||||||||||||||||||
| As of September 30, 2025 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
* Net of tax payments related to shares withheld for vested RSUs of $474 for the three months ended September 30, 2025 .
| As of June 30, 2024 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
| Comprehensive income (loss) | — | — | — | |||||||||||||||||||||||||||||||||||||||||
Preferred stock dividends, $ | — | ( | — | — | ||||||||||||||||||||||||||||||||||||||||
Compensation plans: | — | — | — | |||||||||||||||||||||||||||||||||||||||||
| As of September 30, 2024 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
* Net of tax payments related to shares withheld for vested RSUs of $29 for the three months ended September 30, 2024.
Nine Months Ended September 30, 2025 and 2024 (in thousands, except per share data) | Preferred Stock | Common Stock | Additional Paid-in Capital | Retained Earnings (Accumulated Deficit) | Accumulated Other Comprehensive Income (Loss) ("AOCI") | Total Equity | ||||||||||||||||||||||||||||||||||||||
| As of December 31, 2024 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
| Comprehensive income (loss) | — | — | — | ( | ( | |||||||||||||||||||||||||||||||||||||||
Preferred stock dividends, $ | — | ( | — | — | ||||||||||||||||||||||||||||||||||||||||
Compensation plans: | — | — | — | |||||||||||||||||||||||||||||||||||||||||
| As of September 30, 2025 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
* Net of tax payments related to shares withheld for vested RSUs of $1,348 for the nine months ended September 30, 2025.
| As of December 31, 2023 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
| Comprehensive income (loss) | — | — | — | |||||||||||||||||||||||||||||||||||||||||
Preferred stock dividends, $ | — | ( | — | — | ||||||||||||||||||||||||||||||||||||||||
Compensation plans: | — | — | — | |||||||||||||||||||||||||||||||||||||||||
| As of September 30, 2024 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||||||
* Net of tax payments related to shares withheld for vested RSUs of $1,814 for the nine months ended September 30, 2024.
See notes to condensed consolidated financial statements.
F-6
The E.W. Scripps Company
Notes to Condensed Consolidated Financial Statements (Unaudited)
1. Summary of Significant Accounting Policies
As used in the Notes to Condensed Consolidated Financial Statements, the terms “Scripps,” “Company,” “we,” “our,” or “us” may, depending on the context, refer to The E.W. Scripps Company, to one or more of its consolidated subsidiary companies, or to all of them taken as a whole.
Results of operations are not necessarily indicative of the results that may be expected for future interim periods or for the full year. Additionally, certain amounts in prior periods have been reclassified to conform to the current period's presentation.
Principles of Consolidation — The consolidated financial statements include our accounts and those of our wholly-owned and majority-owned subsidiaries and variable interest entities ("VIEs") for which we are the primary beneficiary. We are the primary beneficiary of a VIE when we have the power to direct the activities of the VIE that most significantly impact the economic performance of the VIE and have the obligation to absorb losses or the right to receive returns that would be significant to the VIE. All intercompany transactions and account balances have been eliminated in consolidation.
Investments in entities over which we have significant influence but not control are accounted for using the equity method of accounting. Income from equity method investments represents our proportionate share of net income generated by equity method investees.
Nature of Operations — We are a diverse media enterprise, serving audiences and businesses through a portfolio of local television stations and national news and entertainment networks. All of our businesses also have digital presences across online, mobile, connected television and social platforms, reaching consumers on all devices and platforms they use to consume content. Our media businesses are organized into the following reportable segments: Local Media, Scripps Networks and Other. Additional information for our segments is presented in Note 11. Segment Information.
Use of Estimates — Preparing financial statements in accordance with accounting principles generally accepted in the United States of America requires us to make a variety of decisions that affect the reported amounts and the related disclosures. Such decisions include the selection of accounting principles that reflect the economic substance of the underlying transactions and the assumptions on which to base accounting estimates. In reaching such decisions, we apply judgment based on our understanding and analysis of the relevant circumstances, including our historical experience, actuarial studies and other assumptions.
Our financial statements include estimates and assumptions used in accounting for our defined benefit pension plan; the periods over which long-lived assets are depreciated or amortized; the fair value of long-lived assets, goodwill and indefinite lived assets; the liability for uncertain tax positions and valuation allowances against deferred income tax assets; the fair value of assets acquired and liabilities assumed in business combinations; and self-insured risks.
While we re-evaluate our estimates and assumptions on an ongoing basis, actual results could differ from those estimated at the time of preparation of the financial statements.
Nature of Products and Services — The following is a description of principal activities from which we generate revenue.
Core Advertising — Core advertising is comprised of sales to local and national businesses. The advertising includes a combination of broadcast spots as well as digital and connected TV advertising. Pricing of advertising time is based on audience size and share, the demographic of our audiences and the demand for our limited inventory of commercial time. Local advertising time is sold by each station's local sales staff who call upon advertising agencies and local businesses. National advertising time is generally sold by calling upon advertising agencies. Digital revenues are primarily generated from the sale of
F-7
advertising to local and national customers on our business websites, tablet and mobile products, over-the-top apps and other platforms.
Political Advertising — Political advertising is generally sold through our Washington, D.C. sales office. Advertising is sold to presidential, gubernatorial, U.S. Senate and House of Representative candidates, as well as for state and local issues. It is also sold to political action groups (PACs) and other advocacy groups.
Distribution Revenues — We earn revenues from cable operators, satellite carriers, other multi-channel video programming distributors (collectively "MVPDs"), other online video distributors and subscribers for access rights to our local broadcast signals. These arrangements are generally governed by multi-year contracts and the fees we receive are typically based on the number of subscribers the respective distributor has in our markets and the contracted rate per subscriber.
Refer to Note 11. Segment Information for further information, including revenue by significant product and service offering.
Revenue Recognition — Revenue is measured based on the consideration we expect to be entitled to in exchange for promised goods or services provided to customers, and excludes any amounts collected on behalf of third parties. Revenue is recognized upon transfer of control of promised products or services to customers.
Advertising — Advertising revenue is recognized, net of agency commissions, over time primarily as ads are aired or impressions are delivered and any contracted audience guarantees are met. We apply the practical expedient to recognize revenue at the amount we have the right to invoice, which corresponds directly to the value a customer has received relative to our performance. For advertising sold based on audience guarantees, audience deficiency may result in an obligation to deliver additional advertisements to the customer. To the extent that we do not satisfy contracted audience ratings, we record deferred revenue until such time that the audience guarantee has been satisfied.
Distribution — Our primary source of distribution revenue is from retransmission consent contracts with MVPDs. Retransmission revenues are considered licenses of functional intellectual property and are recognized at the point in time the content is transferred to the customer. MVPDs report their subscriber numbers to us generally on a 30- to 90-day lag. Prior to receiving the MVPD reporting, we record revenue based on estimates of the number of subscribers, utilizing historical levels and trends of subscribers for each MVPD.
Cost of Revenues — Cost of revenues reflects the cost of providing our broadcast signals, programming and other content to respective distribution platforms. The costs captured within the cost of revenues caption include programming, content distribution, satellite transmission fees, production and operations and other direct costs.
Contract Balances — Timing of revenue recognition may differ from the timing of cash collection from customers. We record a receivable when revenue is recognized prior to cash receipt, or unearned revenue when cash is collected in advance of revenue being recognized.
Payment terms may vary by contract type, although our terms generally include a requirement of payment within 30 to 90 days. In instances where the timing of revenue recognition differs from the timing of invoicing, we have determined our contracts do not include a significant financing component. The primary purpose of our invoicing terms is to provide customers with simplified and predictable ways of purchasing our products and services.
Leases — We determine if an arrangement is a lease at inception. Operating leases are included in operating lease right-of-use (“ROU”) assets, other current liabilities and operating lease liabilities in our Condensed Consolidated Balance Sheets. Finance leases are included in property and equipment and other long-term liabilities in our Condensed Consolidated Balance Sheets.
F-8
Lease assets represent our right to use an underlying asset for the lease term and lease liabilities represent our obligation to make lease payments arising from the lease. Lease assets and liabilities are recognized at the commencement date based on the present value of lease payments over the lease term. As the implicit rate is not readily determinable for most of our leases, we use our incremental borrowing rate when determining the present value of lease payments. The incremental borrowing rate represents an estimate of the interest rate we would incur at lease commencement to borrow an amount equal to the lease payments on a collateralized basis over the term of the lease. Our lease assets also include any payments made at or before commencement and are reduced by any lease incentives. Our lease terms may include options to extend or terminate the lease when it is reasonably certain that we will exercise that option. Operating lease expense is recognized on a straight-line basis over the lease term.
Share-Based Compensation — We have a Long-Term Incentive Plan (the “Plan”) which is described more fully in our 2024 Annual Report on Form 10-K. The Plan provides for the award of incentive and nonqualified stock options, stock appreciation rights, restricted stock units ("RSUs") and unrestricted Class A Common shares and performance units to key employees and non-employee directors.
Share-based compensation costs totaled $3.3 million and $2.8 million for the third quarter of 2025 and 2024, respectively. Year-to-date share-based compensation costs totaled $14.8 million and $12.4 million in 2025 and 2024, respectively.
The following table presents information about basic and diluted weighted-average shares outstanding:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||
| (in thousands) | 2025 | 2024 | 2025 | 2024 | ||||||||||||||||||||||
Numerator (for basic and diluted earnings per share) | ||||||||||||||||||||||||||
| Net income (loss) | $ | ( | $ | $ | ( | $ | ||||||||||||||||||||
| Less income allocated to RSUs | ( | ( | ||||||||||||||||||||||||
| Less preferred stock dividends | ( | ( | ( | ( | ||||||||||||||||||||||
| Numerator for basic and diluted earnings per share | $ | ( | $ | $ | ( | $ | ||||||||||||||||||||
| Denominator | ||||||||||||||||||||||||||
| Basic weighted-average shares outstanding | ||||||||||||||||||||||||||
| Effect of dilutive securities | ||||||||||||||||||||||||||
| Diluted weighted-average shares outstanding | ||||||||||||||||||||||||||
The dilutive effects of performance-based stock awards are included in the computation of diluted earnings per share to the extent the related performance criteria are met through the respective balance sheet reporting date. As of September 30, 2025 and 2024, potential dilutive securities representing 7.9 million and 1.1 million shares, respectively, were excluded from the computation of diluted earnings per share as the related performance criteria were not yet met, although the Company expects to meet various levels of criteria in the future.
F-9
2. Recently Adopted and Issued Accounting Standards
Recently Issued Accounting Standards
In September 2025, the Financial Accounting Standards Board ("FASB") issued new guidance that amends certain aspects of the accounting and disclosure requirements for internal-use software costs. The amendments in the guidance remove all references to prescriptive and sequential software development stages, and also provide criteria for when an entity is required to start capitalizing software costs. The guidance is effective for our annual periods beginning in 2028 and interim periods within those annual reporting periods, with early adoption permitted. The guidance can be applied using a prospective transition, modified transition or retrospective transition approach. We are currently evaluating the potential impact that this new guidance will have on our Consolidated Financial Statements and related disclosures.
In November 2024, the FASB issued new guidance on disaggregation of income statement expenses. The guidance requires entities to disaggregate any relevant expense caption presented on the face of the income statement within continuing operations into the following required natural expense categories: (1) purchases of inventory, (2) employee compensation, (3) depreciation, (4) intangible asset amortization, and (5) depreciation, depletion and amortization recognized as part of oil-and gas-producing activities or other types of depletion expenses. Such disclosures must be made on an annual and interim basis in a tabular format in the footnotes to the financial statements. The guidance does not change the expense captions an entity presents on the face of the income statement. The guidance also provides clarification regarding identifying relevant expense captions. Furthermore, certain other expenses and gains or losses that must be disclosed under existing U.S. GAAP, and that are recorded in a relevant expense caption, must be presented in the same tabular disclosure on an annual, and, when applicable, interim basis. In addition, the guidance requires entities to disclose selling expenses on an annual and interim basis. The guidance does not define selling expenses, rather, entities will make their own determination of the composition of selling expenses and disclose the definition on an annual basis. The guidance is effective for our annual periods beginning in 2027 and interim periods beginning in the first quarter of 2028, with early adoption permitted. The guidance will be applied on a prospective basis, but retrospective application is permitted. We are currently evaluating the potential impact of adopting this new guidance on our disclosures.
In December 2023, the FASB issued new guidance that modifies the rules on income tax disclosures. The guidance requires entities to disclose: (1) specific categories in the rate reconciliation, (2) the income or loss from continuing operations before income tax expense or benefit (separated between domestic and foreign) and (3) income tax expense or benefit from continuing operations (separated by federal, state and foreign). The guidance also requires entities to disclose their income tax payments to international, federal, state and local jurisdictions, among other changes. The guidance is effective for our annual periods beginning in 2025, with early adoption permitted. The guidance will be applied on a prospective basis, but retrospective application is permitted. We are currently assessing the impact of this new guidance on our income tax disclosures.
Recently Adopted Accounting Standards
In November 2023, the FASB issued new guidance which expands annual and interim disclosure requirements for reportable segments, primarily through enhanced disclosures about significant segment expenses. We adopted this guidance starting with our annual period beginning in fiscal year 2024 and adopted for interim periods beginning in the first quarter of 2025. The guidance is applied retrospectively to all prior periods presented in the financial statements. Upon transition, the segment expense categories and amounts disclosed in the prior periods are based on the significant segment expense categories identified and disclosed in the period of adoption. Refer to Note 11. Segment Information for the enhanced disclosures.
3. Restructuring Costs and Other Transactions
Restructuring and Reorganization
In January 2023, we announced a strategic restructuring and reorganization of the Company to further leverage our strong position in the U.S. television ecosystem and propel our growth across new distribution platforms and emerging media marketplaces. The strategic reorganization, which was substantially completed by the end of the 2024 second quarter, created a leaner and more agile operating structure through the centralization of certain services and the consolidation of layers of management across our operating businesses and corporate office. We have continued to identify efficiency opportunities within the functional departments of our organization, which has resulted in additional restructuring charges since the end of 2024 second quarter.
On September 27, 2024, we announced plans to significantly reduce Scripps News' national network programming
F-10
beginning in the fourth quarter of 2024. As of November 15, 2024, Scripps News was no longer broadcast over the air, although it remained on streaming and digital platforms with weekday live coverage from the field. These restructuring activities resulted in the elimination of more than 200 jobs during 2024.
Restructuring costs in the third quarter of 2025 and 2024 totaled $2.7 million and $12.7 million, respectively. Year-to-date restructuring costs totaled $7.5 million and $18.7 million in 2025 and 2024, respectively. Restructuring costs in 2025 included severance charges of $4.2 million and operating lease exit costs of $2.1 million. Remaining restructuring costs in 2025 included outside consulting fees associated with the strategic reorganization efforts. In the third quarter of 2024, we incurred $10.9 million in severance charges related to the significant reduction of Scripps News' national news programming. Remaining restructuring costs in 2024 included severance charges and outside consulting fees associated with the strategic reorganization efforts.
Nine Months Ended September 30, 2025 and 2024 (in thousands) | Severance and Employee Benefits | Other Restructuring Charges | Total | |||||||||||||||||
Liability as of December 31, 2024 | $ | $ | $ | |||||||||||||||||
| Net charges | ||||||||||||||||||||
| Payments | ( | ( | ( | |||||||||||||||||
Non-cash (a) | ( | ( | ( | |||||||||||||||||
Liability as of September 30, 2025 | $ | $ | $ | |||||||||||||||||
Liability as of December 31, 2023 | $ | $ | $ | |||||||||||||||||
| Net charges | ||||||||||||||||||||
| Payments | ( | ( | ( | |||||||||||||||||
Non-cash (a) | ||||||||||||||||||||
Liability as of September 30, 2024 | $ | $ | $ | |||||||||||||||||
(a) Represents share-based compensation costs and asset write-downs included in restructuring charges.
Other Transactions
On February 9, 2024, following the completed sale of Broadcast Music, Inc. ("BMI") to New Mountain Capital, we received $18.1 million in pre-tax cash proceeds for our equity ownership in BMI. We did not have any carrying value associated with our BMI investment. This gain was included in Miscellaneous, net for the nine months ended September 30, 2024.
4. Income Taxes
We file a consolidated federal income tax return, consolidated unitary tax returns in certain states and other separate state income tax returns for our subsidiary companies.
The income tax provision for interim periods is determined based upon the expected effective income tax rate for the full year and the tax rate applicable to certain discrete transactions in the interim period. To determine the annual effective income tax rate, we must estimate both the total income (loss) before income tax for the full year and the jurisdictions in which that income (loss) is subject to tax. The actual effective income tax rate for the full year may differ from these estimates if income (loss) before income tax is greater than or less than what was estimated or if the allocation of income (loss) to jurisdictions in which it is taxed is different from the estimated allocations. We review and adjust our estimated effective income tax rate for the full year each quarter based upon our most recent estimates of income (loss) before income tax for the full year and the jurisdictions in which we expect that income will be taxed.
The effective income tax rate for the nine months ended September 30, 2025 and 2024 was 8.1 % and 34 %, respectively. Differences between our effective income tax rate and the U.S. federal statutory rate are the impact of state taxes, foreign taxes, non-deductible expenses, changes in reserves for uncertain tax positions, excess tax benefits or expense from the exercise and vesting of share-based compensation awards ($2.3 million expense in 2025 and $3.9 million expense in 2024), state deferred rate changes ($2.7 million expense in 2025 and $2.1 million expense in 2024) and state NOL valuation allowance changes.
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We recognize state NOL carryforwards as deferred tax assets, subject to valuation allowances. At each balance sheet date, we estimate the amount of carryforwards that are not expected to be used prior to expiration of the carryforward period. The tax effect of the carryforwards that are not expected to be used prior to their expiration is included in the valuation allowance.
On July 4, 2025, H.R. 1, commonly referred to as the One Big Beautiful Bill Act ("OBBBA"), was enacted into law. The OBBBA makes permanent key elements of the Tax Cuts and Jobs Act, including 100% bonus depreciation, domestic research cost expensing and the business interest expense limitation. The legislation has multiple effective dates, with certain provisions effective in 2025 and others implemented through 2027. We currently expect a beneficial cash flow impact in the near term due to accelerated tax deductions resulting from these key elements of the Act, but no material impact to our effective tax rate.
5. Leases
We have operating leases for office space, data centers and certain equipment. We also have finance leases for office space. Our leases have lease terms of 1 year to 33 years, some of which may include options to extend the leases for up to 5 years, and some of which may include options to terminate the leases within 1 year. Operating lease costs recognized in our Condensed Consolidated Statements of Operations for the three months ended September 30, 2025 and 2024 totaled $6.1 million and $5.4 million, respectively, including short-term lease costs of $1.6 million and $1.2 million, respectively. Year-to-date September 30, 2025 and 2024 operating lease costs totaled $17.6 million and $17.2 million, respectively, including short-term lease costs of $5.0 million and $3.9 million, respectively. Amortization of the right-of-use asset for our finance leases totaled $0.2 0.6 0.6 million and $0.5 million for the three months ended September 30, 2025 and 2024. Interest expense on the finance leases liability totaled $1.7 million and $1.6 million for the nine months ended September 30, 2025 and 2024.
Other information related to our leases was as follows:
| (in thousands, except lease term and discount rate) | As of September 30, 2025 | As of December 31, 2024 | ||||||||||||
| Balance Sheet Information | ||||||||||||||
| Operating Leases | ||||||||||||||
| Right-of-use assets | $ | $ | ||||||||||||
| Operating lease liabilities | ||||||||||||||
| Finance Leases | ||||||||||||||
| Property and equipment, at cost | ||||||||||||||
| Accumulated depreciation | ( | ( | ||||||||||||
| Property and equipment, net | ||||||||||||||
| Other liabilities | ||||||||||||||
| Weighted Average Remaining Lease Term | ||||||||||||||
| Operating leases | ||||||||||||||
| Finance leases | ||||||||||||||
| Weighted Average Discount Rate | ||||||||||||||
| Operating leases | % | % | ||||||||||||
| Finance leases | % | % | ||||||||||||
F-12
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||
| (in thousands) | 2025 | 2024 | 2025 | 2024 | ||||||||||||||||||||||
| Supplemental Cash Flows Information | ||||||||||||||||||||||||||
| Cash paid for amounts included in the measurement of lease liabilities | ||||||||||||||||||||||||||
| Operating cash flows from operating leases | $ | $ | $ | $ | ||||||||||||||||||||||
| Operating cash flows from finance leases | ||||||||||||||||||||||||||
| Financing cash flows from finance leases | ||||||||||||||||||||||||||
| Right-of-use assets obtained in exchange for operating lease obligations | ||||||||||||||||||||||||||
| Right-of-use assets obtained in exchange for finance lease obligations | ||||||||||||||||||||||||||
Future minimum lease payments under non-cancellable leases as of September 30, 2025 were as follows:
| (in thousands) | Operating Leases | Finance Leases | ||||||||||||
| Remainder of 2025 | $ | $ | ||||||||||||
| 2026 | ||||||||||||||
| 2027 | ||||||||||||||
| 2028 | ||||||||||||||
| 2029 | ||||||||||||||
| Thereafter | ||||||||||||||
| Total future minimum lease payments | ||||||||||||||
| Less: Imputed interest | ( | ( | ||||||||||||
| Total | $ | $ | ||||||||||||
6. Goodwill and Other Intangible Assets
Goodwill consisted of the following:
| (in thousands) | Local Media | Scripps Networks | Other | Total | ||||||||||||||||||||||
| Gross balance as of December 31, 2024 | $ | $ | $ | $ | ||||||||||||||||||||||
| Accumulated impairment losses | ( | ( | ( | |||||||||||||||||||||||
| Net balance as of December 31, 2024 | $ | $ | $ | $ | ||||||||||||||||||||||
| Gross balance as of September 30, 2025 | $ | $ | $ | $ | ||||||||||||||||||||||
| Accumulated impairment losses | ( | ( | ( | |||||||||||||||||||||||
| Net balance as of September 30, 2025 | $ | $ | $ | $ | ||||||||||||||||||||||
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Other intangible assets consisted of the following:
| (in thousands) | As of September 30, 2025 | As of December 31, 2024 | ||||||||||||
| Amortizable intangible assets: | ||||||||||||||
| Carrying amount: | ||||||||||||||
| Television affiliation relationships | $ | $ | ||||||||||||
| Customer lists and advertiser relationships | ||||||||||||||
| Other | ||||||||||||||
| Total carrying amount | ||||||||||||||
| Accumulated amortization: | ||||||||||||||
| Television affiliation relationships | ( | ( | ||||||||||||
| Customer lists and advertiser relationships | ( | ( | ||||||||||||
| Other | ( | ( | ||||||||||||
| Total accumulated amortization | ( | ( | ||||||||||||
| Net amortizable intangible assets | ||||||||||||||
| Indefinite-lived intangible assets — FCC licenses | ||||||||||||||
| Total other intangible assets | $ | $ | ||||||||||||
Estimated amortization expense of intangible assets for each of the next five years is $22.4 million for the remainder of 2025, $85.9 million in 2026, $82.8 million in 2027, $61.4 million in 2028, $61.2 million in 2029, $61.2 million in 2030 and $407.1 million in later years.
Goodwill and other indefinite-lived intangible assets are tested for impairment annually and any time events occur or changes in circumstances indicate it is more likely than not the fair value of a reporting unit, or respective indefinite-lived intangible asset, is below its carrying value. Such events or changes in circumstances include, but are not limited to, changes in business climate, sustained declines in the price of our stock, or other factors resulting in lower cash flow related to such assets. The reporting unit valuations used to test goodwill and intangible assets for impairment are dependent on a number of significant estimates and assumptions, including macroeconomic conditions, market growth rates, competitive activities, cost containment, margin expansion and strategic business plans (inputs of which are categorized as Level 3 under the fair value hierarchy). Additionally, future changes in these assumptions and estimates with respect to long-term growth rates and discount rates or future cash flow projections, could result in significantly different estimates of the fair values.
Our fourth quarter 2024 annual goodwill impairment test indicated that the fair value of our Local Media reporting unit exceeded its carrying value by more than 20 % and that the fair value of our Scripps Networks reporting unit exceeded its carrying value by 1.3 %. Given that the fair value of the Scripps Networks reporting unit currently approximates carrying value, this reporting unit is more sensitive to changes in assumptions regarding its fair value. While we believe the estimates and judgments used in determining the fair values were appropriate, these estimates of fair value assume certain levels of growth for the business, which, if not achieved, could impact the fair value and possibly result in an impairment of the goodwill in future periods. For example, a 50 basis point increase in the discount rate would reduce the fair value of the Scripps Networks reporting unit by approximately $110 million.
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7. Long-Term Debt
Long-term debt consisted of the following:
| (in thousands) | As of September 30, 2025 | As of December 31, 2024 | ||||||||||||
| Accounts receivable securitization facility | $ | $ | ||||||||||||
| Revolving credit facilities | ||||||||||||||
| Senior secured notes, due in January 2029 | ||||||||||||||
| Senior secured notes, due in August 2030 | ||||||||||||||
| Senior unsecured notes, due in July 2027 | ||||||||||||||
| Senior unsecured notes, due in January 2031 | ||||||||||||||
| Term loan, due in June 2028 | ||||||||||||||
| Term loan, due in November 2029 | ||||||||||||||
| Term loan, due in May 2026 | ||||||||||||||
| Term loan, due in January 2028 | ||||||||||||||
| Total outstanding principal | ||||||||||||||
| Less: Debt issuance costs and issuance discounts | ( | ( | ||||||||||||
| Less: Current portion | ( | ( | ||||||||||||
| Net carrying value of long-term debt | $ | $ | ||||||||||||
| Fair value of long-term debt * | $ | $ | ||||||||||||
* The fair values of debt are estimated based on either quoted private market transactions or observable estimates provided by third party financial professionals, and as such, are classified within Level 2 of the fair value hierarchy.
On April 10, 2025, we completed a series of previously announced refinancing transactions. On August 6, 2025, we issued new senior secured second lien notes and used the proceeds to pay off or paydown other outstanding debt balances. In connection with these refinancing transactions, we incurred $44.5 million of non-capitalized transaction costs that are reflected in the caption "Other financing transaction costs" in our Condensed Consolidated Statements of Operations. Following completion of these transactions, our long-term debt is summarized below.
Accounts Receivable Securitization Facility
On April 10, 2025, we entered into a new three-year accounts receivable securitization facility, scheduled to terminate April 10, 2028, with aggregate commitments of up to $450 million. Under the securitization facility, we sell eligible accounts receivable balances to our wholly owned special purpose entities, Scripps SPV Midco, LLC and Scripps SPV, LLC (the “Accounts Receivable Securitization Special Purpose Subsidiaries”). The Accounts Receivable Securitization Special Purpose Subsidiaries are consolidated subsidiaries of Scripps and use the accounts receivable balances to collateralize loans obtained from financial institutions. The facility is subject to interest charges, at the one-month term secured overnight financing rate ("SOFR"), subject to a 1.00 % floor with a blended spread of 3.46 % based on customary assumptions. We recognized approximately $6.0 million of deferred financing costs related to the securitization facility. The securitization facility is accounted for as a collateralized financing activity, rather than a sale of assets, and therefore: (i) accounts receivable balances pledged as collateral are presented as assets and borrowings are presented as liabilities on our Condensed Consolidated Balance Sheets, (ii) our Condensed Consolidated Statements of Operations reflect the associated charges for bad debt expense related to pledged accounts receivable, as well as interest expense associated with the collateralized borrowings and (iii) receipts from customers related to the underlying accounts receivable are reflected as operating cash flows and borrowings and repayments under the collateralized loans are reflected as financing cash flows within our Condensed Consolidated Statements of Cash Flows. Scripps retains the responsibility of servicing the accounts receivable balances pledged as collateral for the securitization facility and also provides a performance guaranty. The maximum availability allowed is limited by our eligible accounts receivable balances, as defined under the terms of the securitization facility. As of September 30, 2025, the maximum availability allowed and amount outstanding under the securitization facility was $360 million. The interest rate for the securitization facility was 7.60 % as of September 30, 2025.
Scripps Senior Secured Credit Agreement
On April 10, 2025, we replaced our $585 million revolving credit facility with a new revolving facility with aggregate commitments of up to $208 million due July 2027 and a new non-extended revolving credit facility with aggregate commitments of up to $70.0 million due January 2026. The previous revolving credit facility was due to mature on January 7, 2026. Commitment fees of 0.30 % to 0.50 % per annum, based on our leverage ratio, of the total unused commitment are payable under the revolving credit facility. For the new $208 million revolving credit facility, interest is payable at a rate based on plus a margin of 5.50 %. For the new non-extended revolving credit facility, interest is payable at a rate based on plus a margin based on our leverage ratio, ranging from 1.75 % to 2.75 %. We recognized approximately $19.6 million of deferred financing costs related to the new revolving credit facilities. As of September 30, 2025, we had no borrowings under our revolving credit facilities. The weighted-average interest rate during the periods in which we had a drawn revolver balance was 7.58 % and 8.17 % for the nine months ended September 30, 2025 and 2024, respectively. As of September 30, 2025 and December 31, 2024, we had outstanding letters of credit totaling $8.9 million and $6.9 million, respectively, under our revolving credit facilities.
With the April 10, 2025 refinancing transactions, we issued a new $545 million tranche B-2 term loan ("June 2028 term loan") that matures in June 2028. Interest is currently payable on the June 2028 term loan at a rate based on SOFR, plus a margin of 5.75 %. The June 2028 term loan requires annual principal payments of $5.5 million. Deferred financing costs and original issuance discount totaled approximately $14.3 million with this term loan, which are being amortized over the life of the loan. As of September 30, 2025, the interest rate on the June 2028 term loan was 10.01 %. For the period of April 10, 2025 through September 30, 2025, the weighted-average interest rate on the June 2028 term loan was 10.18 %. In connection with the August 6, 2025 issuance of new senior secured second lien notes, we pre-paid $205 million aggregate principal amount of the June 2028 term loan at a price equal to 102 % of the principal amount outstanding. With this partial paydown of the June 2028 term loan, we wrote-off $0.6 million of deferred financing costs to interest expense and also incurred a $5.4 million loss on the extinguishment of debt.
On April 10, 2025, we also issued a new $340 million tranche B-3 term loan ("November 2029 term loan") that matures in November 2029. Interest is currently payable on the November 2029 term loan at a rate based on SOFR, plus a margin of 3.35 %. The November 2029 term loan requires annual principal payments of $3.4 million. Deferred financing costs and original issuance discount totaled approximately $8.9 million with this term loan, which are being amortized over the life of the loan. As of September 30, 2025, the interest rate on the November 2029 term loan was 7.61 %. For the period of April 10, 2025 through September 30, 2025, the weighted-average interest rate on the November 2029 term loan was 7.78 %.
With the resulting debt proceeds generated from the April 10, 2025 refinancing transactions, we paid off the remaining $719 million balance for our term loan that was due to mature in May 2026 and paid off the remaining $541 million balance for our term loan that was due to mature in January 2028. In connection with the retirement of these term loans, we wrote-off $5.6 million of deferred financing costs to interest expense and also incurred a $3.0 million loss on the extinguishment of debt.
The weighted-average interest rate on the May 2026 term loan was 7.01 % for the period of January 1, 2025 through April 10, 2025, and 7.98 % for the nine months ended September 30, 2024. The weighted-average interest rate on the January 2028 term loan was 7.44 % for the period of January 1, 2025 through April 10, 2025, and 8.42 % for the nine months ended September 30, 2024.
The credit agreement contains covenants that, among other things, limit our ability to incur additional debt and provides for restrictions on certain payments (dividends and share repurchases). Additionally, we must be in compliance with certain leverage ratios in order to proceed with acquisitions. Our credit agreement also includes a provision that in certain circumstances we must use a portion of excess cash flow to repay debt. We granted the lenders pledges of our equity interests in our subsidiaries and security interests in substantially all other personal property, including cash and equipment. The credit agreement also contains covenants to comply with a maximum first lien net leverage ratio. For the new revolving credit facility, we must comply with a maximum first lien net leverage ratio of 3.50 to 1.0 through September 30, 2026, at which point it steps down to 3.25 times for the fiscal quarter ended December 31, 2026, and thereafter. For the non-extended revolving credit facility, we must comply with a maximum first lien net leverage ratio of 4.75 to 1.0 through September 30, 2025, at which point it stepped down to 4.50 times for the fiscal quarter ending December 31, 2025, and thereafter. As of September 30, 2025, we were in compliance with our financial covenants.
2029 Senior Secured Notes
On December 30, 2020, we issued $550 million of senior secured notes (the "2029 Senior Notes"), which bear interest at a rate of 3.875 % per annum and mature on January 15, 2029. The 2029 Senior Notes were priced at 100 % of par value and
interest is payable semi-annually on January 15 and July 15. Prior to January 15, 2026, we may redeem the notes, in whole or in part, at applicable redemption prices noted in the indenture agreement. If we sell certain of our assets or have a change of control, the holders of the 2029 Senior Notes may require us to repurchase some or all of the notes. Our credit agreement also includes a provision that in certain circumstances we must use a portion of excess cash flow to repay debt. The 2029 Senior Notes are guaranteed by us and the majority of our subsidiaries and are secured on equal footing with the obligations under the Senior Secured Credit Agreement. The notes are secured, on a first lien basis, from pledges of equity interests in our subsidiaries and by substantially all of the existing and future assets of Scripps. The 2029 Senior Notes contain covenants with which we must comply that are typical for borrowing transactions of this nature.
We incurred approximately $13.8 million of deferred financing costs in connection with the issuance of the 2029 Senior Notes, which are being amortized over the life of the notes.
2030 Senior Secured Notes
On August 6, 2025, we issued $750 million of senior secured second lien notes (the "2030 Senior Notes"), which bear interest at a rate of 9.875 % per annum and mature on August 15, 2030. The 2030 Senior Notes were priced at 99.509 % of par value and interest is payable semi-annually on August 15 and February 15. We may redeem some or all of the 2030 Senior Notes before August 15, 2027 at a redemption price of 100 % of the principal amount, plus accrued and unpaid interest, if any, to the redemption date plus a "make whole" premium. On and after August 15, 2027, we may redeem the notes, in whole or in part, at applicable redemption prices noted in the indenture agreement. The 2030 Senior Notes are guaranteed on a senior secured second lien basis by substantially all of our domestic subsidiaries and each existing and future material, wholly-owned domestic subsidiary, subject to certain exceptions (including with respect to permitted securitization facility related entities). The 2030 Senior Notes and the related guarantees are secured by a second priority lien on substantially all of the assets of the Company and the guarantors, subject to permitted liens and certain other exceptions. The Indenture contains covenants that, among other things and subject to certain exceptions, limit the Company’s ability and the ability of its restricted subsidiaries to incur certain additional debt, incur certain liens securing debt, pay certain dividends or make other restricted payments, make certain investments, make certain asset sales and enter into certain transactions with affiliates. The 2030 Senior Notes contain covenants with which we must comply that are typical for borrowing transactions of this nature.
We incurred approximately $27.8 million of deferred financing costs in connection with the issuance of the 2030 Senior Notes, which are being amortized over the life of the notes.
2027 Senior Unsecured Notes
On July 26, 2019, we issued $500 million of senior unsecured notes, which bear interest at a rate of 5.875 % per annum and mature on July 15, 2027 ("the 2027 Senior Notes"). The 2027 Senior Notes were priced at 100 % of par value and interest is payable semi-annually on July 15 and January 15. If we sell certain of our assets or have a change of control, the holders of the 2027 Senior Notes may require us to repurchase some or all of the notes. The 2027 Senior Notes are fully and unconditionally guaranteed on a senior unsecured basis by certain of our existing and future domestic restricted subsidiaries. The 2027 Senior Notes contain covenants with which we must comply that are typical for borrowing transactions of this nature.
We incurred approximately $10.7 million of deferred financing costs in connection with the issuance of the 2027 Senior Notes, which are being amortized over the life of the notes.
With the debt proceeds from the August 6, 2025 issuance of the 2030 Senior Notes, we redeemed the $426 million outstanding principal amount of the 2027 Senior Notes at a weighted-average redemption price equal to 100 % of the aggregate principal amount outstanding, plus accrued and unpaid interest. The redemption resulted in the write-off of $0.8 million of deferred financing costs to interest expense and a loss on extinguishment of debt of $2.2 million.
2031 Senior Unsecured Notes
On December 30, 2020, we issued $500 million of senior unsecured notes (the "2031 Senior Notes"), which bear interest at a rate of 5.375 % per annum and mature on January 15, 2031. The 2031 Senior Notes were priced at 100 % of par value and interest is payable semi-annually on January 15 and July 15. We may redeem some or all of the 2031 Senior Notes before January 15, 2026 at a redemption price of 100 % of the principal amount, plus accrued and unpaid interest, if any, to the redemption date plus a "make whole" premium. On or after January 15, 2026 and before January 15, 2029, we may redeem the notes, in whole or in part, at applicable redemption prices noted in the indenture agreement. If we sell certain of our assets or have a change of control, the holders of the 2031 Senior Notes may require us to repurchase some or all of the notes. The 2031 Senior Notes are also guaranteed by us and the majority our subsidiaries. The 2031 Senior Notes contain covenants with which we must comply that are typical for borrowing transactions of this nature.
We incurred approximately $12.5 million of deferred financing costs in connection with the issuance of the 2031 Senior Notes, which are being amortized over the life of the notes.
Debt Repurchase Authorization
8. Other Liabilities
Other liabilities consisted of the following:
| (in thousands) | As of September 30, 2025 | As of December 31, 2024 | ||||||||||||
| Employee compensation and benefits | $ | $ | ||||||||||||
| Deferred FCC repack income | ||||||||||||||
| Programming liability | ||||||||||||||
| Liability for pension benefits | ||||||||||||||
| Liabilities for uncertain tax positions | ||||||||||||||
| Finance leases | ||||||||||||||
| Other | ||||||||||||||
| Other liabilities (less current portion) | $ | $ | ||||||||||||
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9. Supplemental Cash Flow Information
The following table presents additional information about the change in certain working capital accounts:
| Nine Months Ended September 30, | ||||||||||||||
| (in thousands) | 2025 | 2024 | ||||||||||||
| Accounts receivable | $ | $ | ||||||||||||
| Other current assets | ( | ( | ||||||||||||
| Accounts payable | ( | ( | ||||||||||||
| Unearned revenue | ||||||||||||||
| Accrued employee compensation and benefits | ( | |||||||||||||
| Accrued income taxes | ( | |||||||||||||
| Accrued interest | ( | ( | ||||||||||||
| Other accrued liabilities | ||||||||||||||
| Other, net | ( | ( | ||||||||||||
| Total | $ | ( | $ | |||||||||||
10. Employee Benefit Plans
We sponsor a noncontributory defined benefit pension plan and non-qualified Supplemental Executive Retirement Plans ("SERPs"). The accrual for future benefits has been frozen in our defined benefit pension plan and SERPs.
We sponsor a defined contribution plan covering substantially all non-union and certain union employees. We match a portion of employees' voluntary contributions to this plan.
Other union-represented employees are covered by defined benefit pension plans jointly sponsored by us and the union, or by union-sponsored multi-employer plans.
The components of the employee benefit plan expense consisted of the following:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||
| (in thousands) | 2025 | 2024 | 2025 | 2024 | ||||||||||||||||||||||
| Interest cost | $ | $ | $ | $ | ||||||||||||||||||||||
| Expected return on plan assets, net of expenses | ( | ( | ( | ( | ||||||||||||||||||||||
| Amortization of actuarial loss and prior service cost | ||||||||||||||||||||||||||
| Total for defined benefit pension plan | ( | ( | ||||||||||||||||||||||||
| SERPs | ||||||||||||||||||||||||||
| Defined contribution plan | ||||||||||||||||||||||||||
| Net periodic benefit cost | $ | $ | $ | $ | ||||||||||||||||||||||
We contributed $1.0 million to fund current benefit payments for our SERPs during the nine months ended September 30, 2025. During the remainder of 2025, we anticipate contributing an additional $0.5 million to fund the SERPs' benefit payments. We have met regulatory funding requirements for our qualified benefit pension plan and do not have a mandatory contribution in 2025.
F-16
11. Segment Information
We determine our operating segments based upon our management and internal reporting structure, as well as the basis that our chief operating decision maker makes resource-allocation decisions.
Our Local Media segment includes more than 60 local television stations and their related digital operations. It is comprised of 18 ABC affiliates, 11 NBC affiliates, nine CBS affiliates and four FOX affiliates. We also have 11 independent stations and 10 additional low power stations. Our Local Media segment earns revenue primarily from the sale of advertising to local, national and political advertisers and retransmission fees received from cable operators, telecommunications companies, satellite carriers and over-the-top virtual MVPDs.
Our Scripps Networks segment includes national news outlets Scripps News and Court TV as well as popular entertainment brands ION, Bounce, Grit, ION Mystery, ION Plus and Laff. The Scripps Networks reach nearly every U.S. television home through free over-the-air broadcast, cable/satellite, connected TV and/or digital distribution. These operations earn revenue primarily through the sale of advertising.
Our segment results reflect the impact of intercompany carriage agreements between our local broadcast television stations and our national networks. The intercompany carriage fee revenue earned by our local broadcast television stations is equal to the carriage fee expense incurred by our national networks. We also allocate a portion of certain corporate costs and expenses, including accounting, human resources, employee benefit and information technology to our segments. These intercompany agreements and allocations are generally amounts agreed upon by management, which may differ from an arms-length amount.
The other segment caption aggregates our operating segments that are too small to report separately. Costs for centrally provided services and certain corporate costs that are not allocated to the segments are included in shared services and corporate costs. These unallocated corporate costs would also include the costs associated with being a public company. Corporate assets are primarily cash and cash equivalents, property and equipment primarily used for corporate purposes and deferred income taxes.
Our President and Chief Executive Officer is the Company's chief operating decision maker. He evaluates the monthly operating performance of our segments, including budget-to-actual variances, and makes decisions about the allocation of resources to our segments using a measure called segment profit. Segment profit excludes interest, defined benefit pension plan amounts, income taxes, depreciation and amortization, impairment charges, divested operating units, restructuring activities, investment results and certain other items that are included in net income (loss) determined in accordance with accounting principles generally accepted in the United States of America.
F-17
Information regarding our segments is as follows:
| Three Months Ended September 30, 2025 | ||||||||||||||||||||
| (in thousands) | Local Media | Scripps Networks | Total | |||||||||||||||||
| Revenues from external customers | $ | $ | $ | |||||||||||||||||
| Intersegment revenues | ||||||||||||||||||||
| Reportable segments revenues | ||||||||||||||||||||
Other revenues(a) | ||||||||||||||||||||
| Intersegment eliminations | ( | |||||||||||||||||||
| Total consolidated operating revenues | $ | |||||||||||||||||||
Less:(b) | ||||||||||||||||||||
| Employee compensation and benefits | ||||||||||||||||||||
Programming(c) | ||||||||||||||||||||
Other segment items(d) | ||||||||||||||||||||
| Segment profit for reportable segments | $ | |||||||||||||||||||
Other segment profit (loss)(a) | ( | |||||||||||||||||||
| Shared services and corporate | ( | |||||||||||||||||||
| Restructuring costs | ( | |||||||||||||||||||
| Depreciation and amortization of intangible assets | ( | |||||||||||||||||||
| Gains (losses), net on disposal of property and equipment | ||||||||||||||||||||
| Interest expense | ( | |||||||||||||||||||
| Loss on extinguishment of debt | ( | |||||||||||||||||||
| Other financing transaction costs | ( | |||||||||||||||||||
| Defined benefit pension plan income (expense) | ( | |||||||||||||||||||
| Miscellaneous, net | ( | |||||||||||||||||||
| Income (loss) from operations before income taxes | $ | ( | ||||||||||||||||||
(a) Reflects revenues and profit (loss) from operating segments below the reportable quantitative thresholds. These operating segments include our Tablo business, the Scripps National Spelling Bee and operational aspects of the Scripps News and Scripps Sports business units. None of these operating segments have ever met any of the quantitative thresholds for determining reportable segments.
(b) The significant expense categories and amounts align with the segment-level information that is regularly provided to the chief operating decision maker.
(c) Programming includes the cost of national television network programming, carriage agreements with local television broadcasters, programming produced by us or for us by independent production companies, rights acquired under multi-year sports programming agreements and programs licensed under agreements with independent producers.
(d) Other segment items for each reportable segment includes marketing and advertising expenses, research costs, certain occupancy costs and other administrative costs.
F-18
| Three Months Ended September 30, 2024 | ||||||||||||||||||||
| (in thousands) | Local Media | Scripps Networks | Total | |||||||||||||||||
| Revenues from external customers | $ | $ | $ | |||||||||||||||||
| Intersegment revenues | ||||||||||||||||||||
| Reportable segments revenues | ||||||||||||||||||||
Other revenues(a) | ||||||||||||||||||||
| Intersegment eliminations | ( | |||||||||||||||||||
| Total consolidated operating revenues | $ | |||||||||||||||||||
Less:(b) | ||||||||||||||||||||
| Employee compensation and benefits | ||||||||||||||||||||
Programming(c) | ||||||||||||||||||||
Other segment items(d) | ||||||||||||||||||||
| Segment profit for reportable segments | $ | |||||||||||||||||||
Other segment profit (loss)(a) | ( | |||||||||||||||||||
| Shared services and corporate | ( | |||||||||||||||||||
| Restructuring costs | ( | |||||||||||||||||||
| Depreciation and amortization of intangible assets | ( | |||||||||||||||||||
| Gains (losses), net on disposal of property and equipment | ( | |||||||||||||||||||
| Interest expense | ( | |||||||||||||||||||
| Defined benefit pension plan income (expense) | ||||||||||||||||||||
| Miscellaneous, net | ||||||||||||||||||||
| Income (loss) from operations before income taxes | $ | |||||||||||||||||||
(a) Reflects revenues and profit (loss) from operating segments below the reportable quantitative thresholds. These operating segments include our Tablo business, the Scripps National Spelling Bee and operational aspects of the Scripps News and Scripps Sports business units. None of these operating segments have ever met any of the quantitative thresholds for determining reportable segments.
(b) The significant expense categories and amounts align with the segment-level information that is regularly provided to the chief operating decision maker.
(c) Programming includes the cost of national television network programming, carriage agreements with local television broadcasters, programming produced by us or for us by independent production companies, rights acquired under multi-year sports programming agreements and programs licensed under agreements with independent producers.
(d) Other segment items for each reportable segment includes marketing and advertising expenses, research costs, certain occupancy costs and other administrative costs.
F-19
| Nine Months Ended September 30, 2025 | ||||||||||||||||||||
| (in thousands) | Local Media | Scripps Networks | Total | |||||||||||||||||
| Revenues from external customers | $ | $ | $ | |||||||||||||||||
| Intersegment revenues | ||||||||||||||||||||
| Reportable segments revenues | ||||||||||||||||||||
Other revenues(a) | ||||||||||||||||||||
| Intersegment eliminations | ( | |||||||||||||||||||
| Total consolidated operating revenues | $ | |||||||||||||||||||
Less:(b) | ||||||||||||||||||||
| Employee compensation and benefits | ||||||||||||||||||||
Programming(c) | ||||||||||||||||||||
Other segment items(d) | ||||||||||||||||||||
| Segment profit for reportable segments | $ | |||||||||||||||||||
Other segment profit (loss)(a) | ( | |||||||||||||||||||
| Shared services and corporate | ( | |||||||||||||||||||
| Restructuring costs | ( | |||||||||||||||||||
| Depreciation and amortization of intangible assets | ( | |||||||||||||||||||
| Gains (losses), net on disposal of property and equipment | ||||||||||||||||||||
| Interest expense | ( | |||||||||||||||||||
| Loss on extinguishment of debt | ( | |||||||||||||||||||
| Other financing transaction costs | ( | |||||||||||||||||||
| Defined benefit pension plan income (expense) | ( | |||||||||||||||||||
| Miscellaneous, net | ( | |||||||||||||||||||
| Income (loss) from operations before income taxes | $ | ( | ||||||||||||||||||
(b) The significant expense categories and amounts align with the segment-level information that is regularly provided to the chief operating decision maker.
(c) Programming includes the cost of national television network programming, carriage agreements with local television broadcasters, programming produced by us or for us by independent production companies, rights acquired under multi-year sports programming agreements and programs licensed under agreements with independent producers.
(d) Other segment items for each reportable segment includes marketing and advertising expenses, research costs, certain occupancy costs and other administrative costs.
F-20
| Nine Months Ended September 30, 2024 | ||||||||||||||||||||
| (in thousands) | Local Media | Scripps Networks | Total | |||||||||||||||||
| Revenues from external customers | $ | $ | $ | |||||||||||||||||
| Intersegment revenues | ||||||||||||||||||||
| Reportable segments revenues | ||||||||||||||||||||
Other revenues(a) | ||||||||||||||||||||
| Intersegment eliminations | ( | |||||||||||||||||||
| Total consolidated operating revenues | $ | |||||||||||||||||||
Less:(b) | ||||||||||||||||||||
| Employee compensation and benefits | ||||||||||||||||||||
Programming(c) | ||||||||||||||||||||
Other segment items(d) | ||||||||||||||||||||
| Segment profit for reportable segments | $ | |||||||||||||||||||
Other segment profit (loss)(a) | ( | |||||||||||||||||||
| Shared services and corporate | ( | |||||||||||||||||||
| Restructuring costs | ( | |||||||||||||||||||
| Depreciation and amortization of intangible assets | ( | |||||||||||||||||||
| Gains (losses), net on disposal of property and equipment | ( | |||||||||||||||||||
| Interest expense | ( | |||||||||||||||||||
| Defined benefit pension plan income (expense) | ||||||||||||||||||||
| Miscellaneous, net | ||||||||||||||||||||
| Income (loss) from operations before income taxes | $ | |||||||||||||||||||
(a) Reflects revenues and profit (loss) from operating segments below the reportable quantitative thresholds. These operating segments include our Tablo business, the Scripps National Spelling Bee and operational aspects of the Scripps News and Scripps Sports business units. None of these operating segments have ever met any of the quantitative thresholds for determining reportable segments.
(b) The significant expense categories and amounts align with the segment-level information that is regularly provided to the chief operating decision maker.
(c) Programming includes the cost of national television network programming, carriage agreements with local television broadcasters, programming produced by us or for us by independent production companies, rights acquired under multi-year sports programming agreements and programs licensed under agreements with independent producers.
(d) Other segment items for each reportable segment includes marketing and advertising expenses, research costs, certain occupancy costs and other administrative costs.
F-21
Other segment disclosures are as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||
| (in thousands) | 2025 | 2024 | 2025 | 2024 | ||||||||||||||||||||||
| Depreciation: | ||||||||||||||||||||||||||
| Local Media | $ | $ | $ | $ | ||||||||||||||||||||||
| Scripps Networks | ||||||||||||||||||||||||||
| Total depreciation for reportable segments | ||||||||||||||||||||||||||
| Other | ||||||||||||||||||||||||||
| Shared services and corporate | ||||||||||||||||||||||||||
| Total depreciation | $ | $ | $ | $ | ||||||||||||||||||||||
| Amortization of intangible assets: | ||||||||||||||||||||||||||
| Local Media | $ | $ | $ | $ | ||||||||||||||||||||||
| Scripps Networks | ||||||||||||||||||||||||||
| Total amortization of intangible assets for reportable segments | ||||||||||||||||||||||||||
| Other | ||||||||||||||||||||||||||
| Shared services and corporate | ||||||||||||||||||||||||||
| Total amortization of intangible assets | $ | $ | $ | $ | ||||||||||||||||||||||
| Additions to property and equipment: | ||||||||||||||||||||||||||
| Local Media | $ | $ | $ | $ | ||||||||||||||||||||||
| Scripps Networks | ||||||||||||||||||||||||||
| Total additions to property and equipment for reportable segments | ||||||||||||||||||||||||||
| Other | ||||||||||||||||||||||||||
| Shared services and corporate | ||||||||||||||||||||||||||
| Total additions to property and equipment | $ | $ | $ | $ | ||||||||||||||||||||||
A disaggregation of the principal activities from which we generate revenue is as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||
| (in thousands) | 2025 | 2024 | 2025 | 2024 | ||||||||||||||||||||||
| Operating revenues: | ||||||||||||||||||||||||||
| Core advertising | $ | $ | $ | $ | ||||||||||||||||||||||
| Political | ||||||||||||||||||||||||||
| Distribution | ||||||||||||||||||||||||||
| Other | ||||||||||||||||||||||||||
| Total operating revenues | $ | $ | $ | $ | ||||||||||||||||||||||
F-22
Total assets by segment were as follows :
| (in thousands) | As of September 30, 2025 | As of December 31, 2024 | ||||||||||||
| Assets: | ||||||||||||||
| Local Media | $ | $ | ||||||||||||
| Scripps Networks | ||||||||||||||
| Total assets by reportable segments | ||||||||||||||
Other(a) | ||||||||||||||
| Shared services and corporate | ||||||||||||||
| Total assets | $ | $ | ||||||||||||
(a) Reflects assets of operating segments below the reportable quantitative thresholds. These operating segments include our Tablo business, the Scripps National Spelling Bee and operational aspects of the Scripps News and Scripps Sports business units.
12. Capital Stock
Capital Stock — We have two classes of common shares, Common Voting shares and Class A Common shares. The Class A Common shares are only entitled to vote on the election of the greater of three or one-third of the directors and other matters as required by Ohio law.
On January 7, 2021, we issued 6,000 shares of series A preferred stock, having a face value of $100,000 per share. The preferred shares are perpetual and will be redeemable at the option of the Company beginning on the fifth anniversary of issuance, and redeemable at the option of the holders in the event of a Change of Control (as defined in the terms of the preferred shares), in each case at a redemption price of 105 % of the face value, plus accrued and unpaid dividends (whether or not declared). The 9 % per annum dividend rate on the preferred shares, which compounds quarterly, will be incurred at that rate for the remaining periods that the preferred shares are outstanding.
We did not declare or provide payment for the preferred stock dividend in any of the three quarters of 2025 or any of the 2024 quarters. At September 30, 2025, aggregated undeclared and unpaid cumulative dividends totaled $101 million and the redemption value of the preferred stock totaled $734 million.
Under the terms of the preferred shares, we are prohibited from paying dividends on and repurchasing our common shares until all preferred shares are redeemed.
Class A Common Shares Stock Warrant — In connection with the issuance of the preferred shares, Berkshire Hathaway, Inc. ("Berkshire Hathaway") also received a warrant to purchase up to 23.1 million Class A shares, at an exercise price of $13 per share. The warrant is exercisable at the holder's option at any time or from time to time, in whole or in part, until the first anniversary of the date on which no preferred shares remain outstanding.
F-23
13. Accumulated Other Comprehensive Income (Loss)
Changes in accumulated other comprehensive income (loss) ("AOCI") by component, including items reclassified out of AOCI, were as follows:
| Three Months Ended September 30, 2025 | ||||||||||||||||||||||||||
| (in thousands) | Defined Benefit Pension Items | Other | Total | |||||||||||||||||||||||
| Beginning balance, June 30, 2025 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Other comprehensive income (loss) before reclassifications | ||||||||||||||||||||||||||
Amounts reclassified from AOCI, net of tax of $ | ||||||||||||||||||||||||||
| Net current-period other comprehensive income (loss) | ||||||||||||||||||||||||||
| Ending balance, September 30, 2025 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Three Months Ended September 30, 2024 | ||||||||||||||||||||||||||
| (in thousands) | Defined Benefit Pension Items | Other | Total | |||||||||||||||||||||||
| Beginning balance, June 30, 2024 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Other comprehensive income (loss) before reclassifications | ||||||||||||||||||||||||||
Amounts reclassified from AOCI, net of tax of $ | ||||||||||||||||||||||||||
| Net current-period other comprehensive income (loss) | ||||||||||||||||||||||||||
| Ending balance, September 30, 2024 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Nine Months Ended September 30, 2025 | ||||||||||||||||||||||||||
| (in thousands) | Defined Benefit Pension Items | Other | Total | |||||||||||||||||||||||
| Beginning balance, December 31, 2024 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Other comprehensive income (loss) before reclassifications | ||||||||||||||||||||||||||
Amounts reclassified from AOCI, net of tax of $ | ||||||||||||||||||||||||||
| Net current-period other comprehensive income (loss) | ||||||||||||||||||||||||||
| Ending balance, September 30, 2025 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Nine Months Ended September 30, 2024 | ||||||||||||||||||||||||||
| (in thousands) | Defined Benefit Pension Items | Other | Total | |||||||||||||||||||||||
| Beginning balance, December 31, 2023 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
| Other comprehensive income (loss) before reclassifications | ||||||||||||||||||||||||||
Amounts reclassified from AOCI, net of tax of $ | ||||||||||||||||||||||||||
| Net current-period other comprehensive income (loss) | ||||||||||||||||||||||||||
| Ending balance, September 30, 2024 | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||
(a) Actuarial gain (loss) is included in defined benefit pension plan expense in the Condensed Consolidated Statements of Operations
F-24
14. Assets Held for Sale
On September 3, 2025, we reached an agreement to sell WFTX, our local Fox-affiliated station in Fort Myers, Florida, to Sun Broadcasting for $40.0 million. The transaction will close upon satisfaction of closing conditions and expected regulatory approval.
The following table presents a summary of the WFTX assets held for sale included in our Condensed Consolidated Balance Sheets.
| (in thousands) | As of September 30, 2025 | |||||||
| Assets: | ||||||||
| Total current assets | $ | |||||||
| Property and equipment | ||||||||
| Goodwill and intangible assets | ||||||||
| Operating lease right-of-use assets | ||||||||
| Other assets | ||||||||
| Total assets held for sale | $ | |||||||
On April 30, 2025, we completed the sale of our West Palm Beach television station building to 110 Banyan LLC for cash consideration of $40.0 million and recognized a pre-tax gain from disposition of $31.4 million. With the asset sale, we also entered into a 2.5 -year building lease with the buyer for cash consideration of $2.5 million annually.
Pending Transactions
On July 7, 2025, we entered into agreements with Gray Media, Inc. ("Gray"), to swap television stations across five markets. Upon completion of the transactions, we will acquire Gray's KKTV (CBS) in Colorado Springs, Colorado; KKCO (NBC) and low power station KJCT-LP (ABC) in Grand Junction, Colorado; and KMVT (CBS) and low power station KSVT-LD (Fox) in Twin Falls, Idaho. Gray will be acquiring WSYM (Fox) in Lansing, Michigan, and KATC (ABC) in Lafayette, Louisiana. The swap involves the even exchange of comparable assets. As a result, neither company will pay cash consideration to the other. The transaction will close upon satisfaction of closing conditions and necessary regulatory approvals.
F-25
Management’s Discussion and Analysis of Financial Condition and Results of Operations
This discussion and analysis of financial condition and results of operations is based upon the Condensed Consolidated Financial Statements and the Notes to Condensed Consolidated Financial Statements. You should read this discussion in conjunction with those financial statements.
Forward-Looking Statements
This document contains forward-looking statements within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by words such as: "believe," "anticipate," "intend," "expect," "estimate," "could," "should," "outlook," "guidance," and similar references to future periods. Examples of forward-looking statements include, among others, statements the Company makes regarding expected operating results and future financial condition. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on management’s current beliefs, expectations, and assumptions regarding the future of the industry and the economy, the Company’s plans and strategies, anticipated events and trends, and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent risks, uncertainties, and changes in circumstance that are difficult to predict and many of which are outside of the Company’s control. A detailed discussion of such risks and uncertainties is included in the section of this document titled "Risk Factors." The Company’s actual results and financial condition may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these forward-looking statements. Any forward-looking statement made in this document is based only on currently available information and speaks only as of the date on which it is made. The Company undertakes no obligation to publicly update any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future developments, or otherwise.
Executive Overview
The E.W. Scripps Company (“Scripps”) is a diverse media enterprise that serves audiences and businesses through a portfolio of more than 60 local television stations in more than 40 markets and national news and entertainment networks. Our local stations have programming agreements with ABC, NBC, CBS and FOX. The Scripps Networks reach nearly every American through national news outlets Scripps News and Court TV and popular entertainment brands ION, Bounce, Grit, ION Mystery, ION Plus and Laff. We also serve as the longtime steward of one of the nation's largest, most successful and longest-running educational programs, the Scripps National Spelling Bee. Additionally, we provide a television viewing device called Tablo that allows households to watch and record dozens of free, over-the-air and streaming channels anywhere in their home without a subscription.
Scripps is a leader in free, ad-supported television. All of our local stations and national entertainment networks reach consumers over the air, and all of our television brands can also be found on free streaming platforms. We have continued to expand in the fast-growing connected television marketplace, and we are leveraging our leadership position in the growing over-the-air marketplace. Currently, one in five non pay-TV homes is watching television over the air alongside their streaming subscription services, and as cord-cutting and streaming service price increases continue, over-the-air channels will be an important part of television viewers' choices. To that end, Scripps continues efforts to broaden antenna use even more, and is working with key partners in retail, manufacturing and antenna installation to help television owners understand the quality and quantity of programming available over the air and the ease of antenna use.
In January 2025, we announced the formation of a joint venture with Gray Media, Nexstar Media Group, Inc. and Sinclair, Inc. Leveraging broadcasters' uniquely efficient network architecture and the ATSC 3.0 transmission standard, EdgeBeam Wireless, LLC will provide expansive, reliable and secure data delivery services. This partnership creates a spectrum footprint that no individual broadcaster could achieve on its own, unlocking the potential of ATSC 3.0 to offer nationwide coverage for data delivery to billions of potential devices on market-disrupting terms. We have committed to total cash contributions of $12.8 million for our 25% ownership interest in the joint venture. During the first quarter of 2025, we made a cash contribution of $6.4 million, with the remaining due by the end of the year.
On March 13, 2025, we announced a multi-year agreement with the Las Vegas Aces, which began in May 2025. Under the agreement, we televise all non-nationally exclusive Aces games with distribution on cable, satellite and over-the-air television. In addition to game broadcasts, the Aces and our local station Vegas 34 partnered to produce and air "In the Paint," an award-winning weekly 30-minute show featuring highlights, interviews and behind-the-scenes access to the 2025 Las Vegas Aces.
On April 10, 2025, we completed a series of previously announced refinancing transactions. Following the completion of
F-26
the transactions, no amounts remain outstanding for our prior 2026 term loan, our prior 2028 term loan or our prior revolving credit facility. Additionally, we issued a $545 million tranche B-2 term loan that matures in June 2028 and a $340 million tranche B-3 term loan that matures in November 2029. We also replaced the prior revolving credit facility with a new $208 million revolving credit facility, maturing on July 7, 2027, and a $70.0 million non-extended revolving credit facility, maturing on January 7, 2026. Finally, we also entered into a new three-year accounts receivable securitization facility with aggregate commitments of up to $450 million that is scheduled to terminate on April 10, 2028. Additional information about the refinancing transactions is presented in Note 7. Long-Term Debt.
On May 14, 2025, we announced a multi-year media rights agreement which allows us to produce and distribute all preseason, regular season and first-round playoff Tampa Bay Lightning games that are not allocated exclusively to national broadcasts. This agreement began with the 2025-2026 National Hockey League season, which started with the preseason in late September 2025.
On June 13, 2025, we announced a new, multi-year agreement with the Women's National Basketball Association ("WNBA") to continue airing regular season Friday night matchups on ION as part of its WNBA Fright Night Spotlight series.
On July 7, 2025, we entered into agreements with Gray Media, Inc. (“Gray”), to swap television stations across five markets. Upon completion of the transactions, we will acquire Gray’s KKTV (CBS) in Colorado Springs, Colorado; KKCO (NBC) and low power station KJCT-LP (ABC) in Grand Junction, Colorado; and KMVT (CBS) and low power station KSVT-LD (Fox) in Twin Falls, Idaho. Gray will be acquiring WSYM (Fox) in Lansing, Michigan, and KATC (ABC) in Lafayette, Louisiana. The swap involves the even exchange of comparable assets. As a result, neither company will pay cash consideration to the other. The transaction will close upon satisfaction of closing conditions and necessary regulatory approvals.
On August 6, 2025, we issued $750 million of senior secured second lien notes (the "2030 Senior Notes"), which bear interest at a rate of 9.875% per annum and mature on August 15, 2030. The 2030 Senior Notes were priced at 99.509% of par value and interest is payable semi-annually on August 15 and February 15. The proceeds from the 2030 Senior Notes were used to repay the remaining $426 million principal amount of the 2027 Senior Notes, provide a $205 million principal prepayment toward the June 2028 term loan, pay $89.7 million toward outstanding borrowings under our revolving credit facilities and pay related issuance costs and prepayment premiums related to the transaction. Additional information about the transaction is presented in Note 7. Long-Term Debt.
On September 3, 2025, we reached an agreement to sell WFTX, our local Fox-affiliated station in Fort Myers, Florida, to Sun Broadcasting for $40.0 million. The transaction will close upon satisfaction of closing conditions and expected regulatory approval.
In October 2025, we received authorization from our Board of Directors and reached agreement to sell WRTV, our local ABC-affiliated station in Indianapolis, Indiana, to Circle City Broadcasting for $83.0 million. The transaction will close following completion of financing, satisfaction of customary closing conditions and expected regulatory approval.
We did not declare or provide payment for the preferred stock dividend in any of the three quarters of 2025 or any of the 2024 quarters. The 9% per annum dividend rate on the preferred shares, which compounds quarterly, will be incurred at that rate for the remaining periods that the preferred shares are outstanding. At September 30, 2025, aggregated undeclared and unpaid cumulative dividends totaled $101 million and the redemption value of the preferred stock totaled $734 million. Under the terms of the preferred shares, we are prohibited from paying dividends on and repurchasing our common shares until all preferred shares are redeemed.
F-27
Results of Operations
The trends and underlying economic conditions affecting the operating performance and future prospects differ for each of our operating segments. Accordingly, you should read the following discussion of our consolidated results of operations in conjunction with the discussion of the operating performance of our operating segments that follows.
Consolidated Results of Operations
Consolidated results of operations were as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||||||||||||||
| (in thousands) | 2025 | Change | 2024 | 2025 | Change | 2024 | ||||||||||||||||||||||||||||||||
| Operating revenues | $ | 525,854 | (18.6) | % | $ | 646,300 | $ | 1,590,327 | (10.7) | % | $ | 1,781,393 | ||||||||||||||||||||||||||
| Cost of revenues, excluding depreciation and amortization | (311,313) | (1.9) | % | (317,486) | (942,155) | (3.2) | % | (973,126) | ||||||||||||||||||||||||||||||
| Selling, general and administrative expenses, excluding depreciation and amortization | (137,426) | (11.2) | % | (154,781) | (418,051) | (7.5) | % | (452,006) | ||||||||||||||||||||||||||||||
| Restructuring costs | (2,718) | (12,665) | (7,475) | (18,653) | ||||||||||||||||||||||||||||||||||
| Depreciation and amortization of intangible assets | (37,208) | (38,861) | (112,866) | (116,017) | ||||||||||||||||||||||||||||||||||
| Gains (losses), net on disposal of property and equipment | 434 | (727) | 31,922 | (717) | ||||||||||||||||||||||||||||||||||
| Operating income | 37,623 | 121,780 | 141,702 | 220,874 | ||||||||||||||||||||||||||||||||||
| Interest expense | (59,219) | (54,442) | (161,622) | (161,482) | ||||||||||||||||||||||||||||||||||
| Loss on extinguishment of debt | (7,622) | — | (10,594) | — | ||||||||||||||||||||||||||||||||||
| Other financing transaction costs | (6,466) | — | (44,537) | — | ||||||||||||||||||||||||||||||||||
| Defined benefit pension plan income (expense) | (338) | 152 | (1,013) | 506 | ||||||||||||||||||||||||||||||||||
| Miscellaneous, net | (1,165) | 447 | (2,692) | 16,849 | ||||||||||||||||||||||||||||||||||
| Income (loss) from operations before income taxes | (37,187) | 67,937 | (78,756) | 76,747 | ||||||||||||||||||||||||||||||||||
| Benefit (provision) for income taxes | 4,228 | (20,161) | 6,380 | (25,916) | ||||||||||||||||||||||||||||||||||
| Net income (loss) | $ | (32,959) | $ | 47,776 | $ | (72,376) | $ | 50,831 | ||||||||||||||||||||||||||||||
Operating revenues decreased $120 million or 19% in the third quarter of 2025 and $191 million or 11% in the first nine months of 2025 when compared to prior periods. In this non-election year, political revenue decreased $126 million and $165 million in the quarter-to-date and year-to-date periods, respectively. Distribution revenue decreased $3.5 million and $21.3 million in the quarter-to-date and year-to-date periods, respectively. Core advertising revenue increased $7.6 million in the third quarter of 2025 and decreased $7.7 million in the first nine months of 2025 when compared to prior periods.
Cost of revenues, which is comprised of programming costs and costs associated with distributing our content, decreased $6.2 million or 1.9% in the third quarter of 2025 and $31.0 million or 3.2% in the first nine months of 2025 when compared to prior periods. Employee compensation costs decreased $4.5 million and $13.5 million in the quarter-to-date and year-to-date periods, respectively, reflecting the impact of our restructuring initiatives. Syndicated programming decreased $1.4 million and $15.7 million and in the quarter-to-date and year-to-date periods, respectively. Network programming decreased $2.5 million and $9.5 million in the quarter-to-date and year-to-date periods, respectively, mainly due to carriage affiliation fees. Additionally, news service coverage costs decreased $1.2 million and $5.7 million in the quarter-to-date and year-to-date periods, respectively, driven by the shut down of the over-the-air broadcast for Scripps News. These cost decreases were partially offset by an increase in sports rights fees of $2.7 million and $17.0 million in the quarter-to-date and year-to-date periods, respectively.
Selling, general and administrative expenses are primarily comprised of sales, marketing and advertising expenses, research costs and costs related to corporate administrative functions. Selling, general and administrative expenses decreased $17.4 million or 11% in the third quarter of 2025 and $34.0 million or 7.5% in the first nine months of 2025 when compared to prior periods. Employee compensation costs decreased $12.6 million and $17.6 million in the quarter-to-date and year-to-date periods, respectively, due to savings achieved through our restructuring efforts. Additionally, professional and miscellaneous services at Local Media decreased $2.7 million and $4.0 million in the quarter-to-date and year-to-date periods, respectively, primarily due to an absence of political sales activities in 2025 compared to 2024. The year-to-date decrease was also driven by a $5.4 million decrease in advertising and promotions costs and a $4.2 million decrease in our national sales commissions.
F-28
Restructuring costs in the third quarter of 2025 and 2024 totaled $2.7 million and $12.7 million, respectively. Year-to-date restructuring costs totaled $7.5 million and $18.7 million in 2025 and 2024, respectively. Restructuring costs in 2025 included severance charges of $4.2 million and operating lease exit costs of $2.1 million. Remaining restructuring costs in 2025 included outside consulting fees associated with the strategic reorganization efforts. In the third quarter of 2024, we incurred $10.9 million in severance charges related to the significant reduction of Scripps News' national news programming. Remaining restructuring costs in 2024 included severance charges and outside consulting fees associated with the strategic reorganization efforts.
Depreciation and amortization of intangible assets decreased $1.7 million or 4.3% in the third quarter of 2025 and $3.2 million or 2.7% in the first nine months of 2025 when compared to prior periods.
On April 30, 2025, we completed the sale of our West Palm Beach television station building to 110 Banyan LLC for cash consideration of $40.0 million and recognized a pre-tax gain from disposition of $31.4 million.
Interest expense increased $4.8 million in the third quarter of 2025 and $0.1 million in the first nine months of 2025 when compared to prior periods. As part of the April and August 2025 debt transactions discussed in Note 7. Long-Term Debt, interest expense included write-offs of deferred financing costs totaling $1.4 million in the three months ended September 30, 2025 and $7.0 million in the year-to-date period of 2025. While average outstanding debt balances were lower in the third quarter of 2025 compared to the same period in 2024, higher interest rates contributed to an increase in interest costs incurred on borrowings. In the year-to-date period of 2025 compared to 2024, interest costs incurred on borrowings decreased due to lower year-over-year outstanding debt balances.
For the three and nine month periods ended September 30, 2025, we incurred a loss on extinguishment of debt of $7.6 million and $10.6 million, respectively, as part of the April and August 2025 debt transactions discussed in Note 7. Long-Term Debt. Additionally, we incurred non-capitalized transaction costs related to these debt transactions. These costs are reflected in the caption "Other financing transaction costs" and totaled $6.5 million and $44.5 million for the three and nine months ended September 30, 2025, respectively.
On February 9, 2024, following the completed sale of Broadcast Music, Inc. ("BMI") to New Mountain Capital, we received $18.1 million in pre-tax cash proceeds for our equity ownership in BMI. We did not have any carrying value associated with our BMI investment. This gain was included in Miscellaneous, net for the nine months ended September 30, 2024.
The effective income tax rate was 8.1% and 34% for the nine months ended September 30, 2025 and 2024, respectively. Differences between our effective income tax rate and the U.S. federal statutory rate are the impact of state taxes, foreign taxes, non-deductible expenses, changes in reserves for uncertain tax positions, excess tax benefits or expense from the exercise and vesting of share-based compensation awards ($2.3 million expense in 2025 and $3.9 million expense in 2024), state deferred rate changes ($2.7 million expense in 2025 and $2.1 million expense in 2024) and state NOL valuation allowance changes.
F-29
Operating Performance — As discussed in the Notes to Condensed Consolidated Financial Statements, our chief operating decision maker evaluates operating performance using a measure called segment profit. Segment profit excludes interest, defined benefit pension plan amounts, income taxes, depreciation and amortization, impairment charges, divested operating units, restructuring activities, investment results and certain other items that are included in net income (loss) determined in accordance with accounting principles generally accepted in the United States of America.
For our operating segments, items excluded from segment profit generally result from decisions made in prior periods or from decisions made by corporate executives rather than the managers of the segments. Depreciation and amortization charges are the result of decisions made in prior periods regarding the allocation of resources and are, therefore, excluded from the measure. Generally, our corporate executives make financing, tax structure and divestiture decisions. Excluding these items from measurement of segment performance enables us to evaluate operating performance based upon current economic conditions and decisions made by the managers of those segments in the current period.
Our segment results reflect the impact of intercompany carriage agreements between our local broadcast television stations and our national networks. The intercompany carriage fee revenue earned by our local broadcast television stations is equal to the carriage fee expense incurred by our national networks. We also allocate a portion of certain corporate costs and expenses, including accounting, human resources, employee benefit and information technology to our segments. These intercompany agreements and allocations are generally amounts agreed upon by management, which may differ from an arms-length amount.
The other segment caption aggregates our operating segments that are too small to report separately. Costs for centrally provided services and certain corporate costs that are not allocated to the segments are included in shared services and corporate costs. These unallocated corporate costs would also include the costs associated with being a public company. Corporate assets are primarily cash and cash equivalents, property and equipment primarily used for corporate purposes and deferred income taxes.
Information regarding our operating performance and a reconciliation of such information to the condensed consolidated financial statements is as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||||||||||||||
| (in thousands) | 2025 | Change | 2024 | 2025 | Change | 2024 | ||||||||||||||||||||||||||||||||
| Segment operating revenues: | ||||||||||||||||||||||||||||||||||||||
Local Media | $ | 325,456 | (27.0) | % | $ | 445,553 | $ | 985,611 | (15.3) | % | $ | 1,163,315 | ||||||||||||||||||||||||||
| Scripps Networks | 200,956 | (0.4) | % | 201,672 | 604,728 | (2.4) | % | 619,670 | ||||||||||||||||||||||||||||||
Other | 4,262 | 10.9 | % | 3,843 | 14,185 | 11.7 | % | 12,702 | ||||||||||||||||||||||||||||||
| Intersegment eliminations | (4,820) | 1.1 | % | (4,768) | (14,197) | (0.7) | % | (14,294) | ||||||||||||||||||||||||||||||
| Total operating revenues | $ | 525,854 | (18.6) | % | $ | 646,300 | $ | 1,590,327 | (10.7) | % | $ | 1,781,393 | ||||||||||||||||||||||||||
| Segment profit (loss): | ||||||||||||||||||||||||||||||||||||||
Local Media | $ | 52,801 | (67.1) | % | $ | 160,685 | $ | 143,541 | (54.3) | % | $ | 314,371 | ||||||||||||||||||||||||||
| Scripps Networks | 53,299 | 26.7 | % | 42,061 | 173,340 | 33.9 | % | 129,462 | ||||||||||||||||||||||||||||||
Other | (7,598) | (1.9) | % | (7,744) | (20,982) | (10.2) | % | (23,377) | ||||||||||||||||||||||||||||||
Shared services and corporate | (21,387) | 2.0 | % | (20,969) | (65,778) | 2.5 | % | (64,195) | ||||||||||||||||||||||||||||||
| Restructuring costs | (2,718) | (12,665) | (7,475) | (18,653) | ||||||||||||||||||||||||||||||||||
| Depreciation and amortization of intangible assets | (37,208) | (38,861) | (112,866) | (116,017) | ||||||||||||||||||||||||||||||||||
| Gains (losses), net on disposal of property and equipment | 434 | (727) | 31,922 | (717) | ||||||||||||||||||||||||||||||||||
| Interest expense | (59,219) | (54,442) | (161,622) | (161,482) | ||||||||||||||||||||||||||||||||||
| Loss on extinguishment of debt | (7,622) | — | (10,594) | — | ||||||||||||||||||||||||||||||||||
| Other financing transaction costs | (6,466) | — | (44,537) | — | ||||||||||||||||||||||||||||||||||
| Defined benefit pension plan income (expense) | (338) | 152 | (1,013) | 506 | ||||||||||||||||||||||||||||||||||
| Miscellaneous, net | (1,165) | 447 | (2,692) | 16,849 | ||||||||||||||||||||||||||||||||||
| Income (loss) from operations before income taxes | $ | (37,187) | $ | 67,937 | $ | (78,756) | $ | 76,747 | ||||||||||||||||||||||||||||||
F-30
Local Media — Our Local Media segment includes more than 60 local television stations and their related digital operations. It is comprised of 18 ABC affiliates, 11 NBC affiliates, nine CBS affiliates and four FOX affiliates. We also have 11 independent stations and 10 additional low power stations. Our Local Media segment earns revenue primarily from the sale of advertising to local, national and political advertisers and retransmission fees received from cable operators, telecommunications companies, satellite carriers and over-the-top virtual MVPDs.
National television networks offer affiliates a variety of programming and sell the majority of advertising within those programs. In addition to network programs, we broadcast internally produced local and national programs, syndicated programs, sporting events and other programs of interest in each station's market. News is the primary focus of our locally produced programming.
The operating performance of our Local Media group is most affected by local and national economic conditions, particularly conditions within the automotive and services categories, and by the volume of advertising purchased by campaigns for elective office and political issues. The demand for political advertising is significantly higher in the third and fourth quarters of even-numbered years.
Operating results for our Local Media segment were as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||||||||||||||
| (in thousands) | 2025 | Change | 2024 | 2025 | Change | 2024 | ||||||||||||||||||||||||||||||||
| Segment operating revenues: | ||||||||||||||||||||||||||||||||||||||
| Core advertising | $ | 131,548 | 1.8 | % | $ | 129,256 | $ | 400,223 | (1.1) | % | $ | 404,805 | ||||||||||||||||||||||||||
| Political | 5,141 | (95.9) | % | 125,213 | 11,028 | (93.5) | % | 168,530 | ||||||||||||||||||||||||||||||
| Distribution | 185,768 | (0.4) | % | 186,480 | 565,572 | (2.2) | % | 578,170 | ||||||||||||||||||||||||||||||
| Other | 2,999 | (34.9) | % | 4,604 | 8,788 | (25.6) | % | 11,810 | ||||||||||||||||||||||||||||||
| Total operating revenues | 325,456 | (27.0) | % | 445,553 | 985,611 | (15.3) | % | 1,163,315 | ||||||||||||||||||||||||||||||
| Segment costs and expenses: | ||||||||||||||||||||||||||||||||||||||
| Employee compensation and benefits | 105,115 | (6.0) | % | 111,767 | 314,599 | (2.9) | % | 324,062 | ||||||||||||||||||||||||||||||
| Programming | 124,659 | (0.1) | % | 124,747 | 393,509 | 3.9 | % | 378,603 | ||||||||||||||||||||||||||||||
| Other expenses | 42,881 | (11.3) | % | 48,354 | 133,962 | (8.4) | % | 146,279 | ||||||||||||||||||||||||||||||
| Total costs and expenses | 272,655 | (4.3) | % | 284,868 | 842,070 | (0.8) | % | 848,944 | ||||||||||||||||||||||||||||||
| Segment profit | $ | 52,801 | (67.1) | % | $ | 160,685 | $ | 143,541 | (54.3) | % | $ | 314,371 | ||||||||||||||||||||||||||
Revenues
Total Local Media revenues decreased $120 million or 27% in the third quarter of 2025 and $178 million or 15% in the first nine months of 2025 when compared to prior periods. During this non-election year, political revenues decreased $120 million in the third quarter of 2025 and $158 million in the first nine months of 2025 when compared to prior periods. Distribution revenues decreased $0.7 million or 0.4% in the third quarter of 2025 and $12.6 million or 2.2% in the first nine months of 2025 when compared to prior periods. Distribution revenues were unfavorably impacted by high-single-digit subscriber declines. These subscriber declines were partially offset by rate increases which favorably impacted distribution revenues by 9.2% and 7.4% in the quarter-to-date and year-to-date periods, respectively. During the second quarter of 2025, we completed renewal negotiations on distribution agreements covering approximately 25% of our subscriber households. These renewal rates were effective as of March 31, 2025. Local Media revenues were also impacted by an increase in core advertising revenues of $2.3 million or 1.8% in the third quarter of 2025 and a decrease of $4.6 million or 1.1% in the first nine months of 2025 when compared to prior periods.
Costs and expenses
Employee compensation and benefits decreased $6.7 million or 6.0% in the third quarter of 2025 and $9.5 million or 2.9% in the first nine months of 2025 when compared to prior periods due to savings achieved through our restructuring efforts.
Programming expense decreased $0.1 million or 0.1% in the third quarter of 2025 and increased $14.9 million or 3.9% in the first nine months of 2025 when compared to prior periods. During 2025, we entered into sports rights contracts for the airing of games for the Women's National Basketball Association's Las Vegas Aces, which began with the start of the regular season in May 2025, and the National Hockey League's Tampa Bay Lightning, which began with the 2025-2026 National
F-31
Hockey League preseason in late September 2025. During 2024, we entered into a sports rights contract for the airing of games for the National Hockey League's Florida Panthers, which began with the 2024-2025 season in October 2024. Costs attributed to these sports rights agreements, as well as contractual rate increases for the Vegas Golden Knights and the Utah Mammoth (formerly the Utah Hockey Club/Arizona Coyotes) agreements increased programming expense by $0.6 million and $14.2 million in the quarter-to-date and year-to-date periods, respectively.
Other expenses decreased $5.5 million or 11% in the third quarter of 2025 and $12.3 million or 8.4% in the first nine months of 2025 when compared to prior periods. Professional and miscellaneous services decreased $2.7 million and $4.0 million in the quarter-to-date and year-to-date periods, respectively, primarily due to an absence of political sales activities in 2025 compared to 2024. Facility costs decreased $1.4 million and $4.9 million in the quarter-to-date and year-to-date periods, respectively. Additionally, for the year-to-date period, national sales commissions decreased $2.5 million.
Scripps Networks — Our Scripps Networks segment includes national news outlets Scripps News and Court TV and popular entertainment brands ION, Bounce, Grit, ION Mystery, ION Plus and Laff. The networks reach nearly every U.S. television home through free over-the-air broadcast, cable/satellite, connected TV and/or digital distribution. Our Scripps Networks segment earns revenue primarily through the sale of advertising. The advertising received by our national networks can be subject to seasonal and cyclical variations and is most impacted by national economic conditions.
Operating results for our Scripps Networks segment were as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||||||||||||||||||||||||||||
| (in thousands) | 2025 | Change | 2024 | 2025 | Change | 2024 | ||||||||||||||||||||||||||||||||
| Total operating revenues | $ | 200,956 | (0.4) | % | $ | 201,672 | $ | 604,728 | (2.4) | % | $ | 619,670 | ||||||||||||||||||||||||||
| Segment costs and expenses: | ||||||||||||||||||||||||||||||||||||||
| Employee compensation and benefits | 22,120 | (29.5) | % | 31,364 | 64,949 | (28.7) | % | 91,126 | ||||||||||||||||||||||||||||||
| Programming | 86,858 | (1.0) | % | 87,693 | 252,105 | (8.4) | % | 275,329 | ||||||||||||||||||||||||||||||
| Other expenses | 38,679 | (4.6) | % | 40,554 | 114,334 | (7.6) | % | 123,753 | ||||||||||||||||||||||||||||||
| Total costs and expenses | 147,657 | (7.5) | % | 159,611 | 431,388 | (12.0) | % | 490,208 | ||||||||||||||||||||||||||||||
| Segment profit | $ | 53,299 | 26.7 | % | $ | 42,061 | $ | 173,340 | 33.9 | % | $ | 129,462 | ||||||||||||||||||||||||||
Revenues
Scripps Networks revenues, which are primarily comprised of advertising revenues, decreased $0.7 million or 0.4% in the third quarter of 2025 and $14.9 million or 2.4% in the first nine months of 2025 when compared to prior periods. The amount of advertising revenue we earn is a function of the pricing negotiated with advertisers, the number of advertising spots sold and the audience impressions delivered. Lower ratings in our key monetized demographics unfavorably impacted Scripps Networks revenues by 6.8% and 7.4% in the quarter-to-date and year-to-date periods, respectively. Lower ratings were partially offset by an increase in connected TV ("CTV") revenue and an increase in advertising spots sold. CTV revenue increased revenues by 4.8% and 4.7% in the quarter-to-date and year-to-date periods, respectively. An increase in advertising spots sold increased revenues by 4.8% and 2.4% in the quarter-to-date and year-to-date periods, respectively.
Costs and expenses
Employee compensation and benefits decreased $9.2 million or 29% in the third quarter of 2025 and $26.2 million or 29% for the first nine months of 2025 when compared to prior periods. In the fourth quarter of 2024, we shut down the over-the-air broadcast for Scripps News. The savings achieved from this Scripps News action and other restructuring efforts were the primary contributor to the year-over-year decrease in employee compensation and benefits.
Programming expense decreased $0.8 million or 1.0% in the third quarter of 2025 and $23.2 million or 8.4% for the first nine months of 2025 when compared to prior periods. Carriage affiliation fees decreased $2.3 million and $10.5 million in the quarter-to-date and year-to-date periods, respectively. Syndicated programming costs decreased $1.3 million and $15.4 million in the quarter-to-date and year-to-date periods, respectively. These decreases were partially offset by an increase in sports rights fees of $2.5 million and $2.7 million in the quarter-to-date and year-to-date periods, respectively.
F-32
Other expenses decreased $1.9 million or 4.6% in the third quarter of 2025 and $9.4 million or 7.6% for the first nine months of 2025 when compared to prior periods. The shut down of the over-the-air broadcast for Scripps News accounted for $1.3 million and $4.3 million of the quarter-to-date and year-to-date decreases, respectively. For the year-to-date period, other expenses also decreased due to lower national sales commissions of $1.4 million.
Liquidity and Capital Resources
On April 10, 2025, we completed a series of previously announced refinancing transactions, which included replacing our $585 million revolving credit facility with a new $208 million revolving credit facility, maturing on July 7, 2027, and a new $70.0 million non-extended revolving credit facility, maturing on January 7, 2026. We also entered into an accounts receivable securitization facility, scheduled to terminate on April 10, 2028, with aggregate commitments of up to $450 million. The maximum availability allowed for the securitization facility is limited by our eligible accounts receivable balances.
Our primary source of liquidity is our available cash and borrowing capacity under our revolving credit facilities and securitization facility. Our primary source of cash is generated from our ongoing operations and can be affected by various risk and uncertainties. As of September 30, 2025, we had $54.7 million of cash on hand and $269 million of additional borrowing capacity under our revolving credit facilities and securitization facility. As of September 30, 2025, we had no borrowings outstanding under our credit facilities and the maximum availability allowed and amount outstanding under the securitization facility was $360 million. Based on our current business plan, we believe our cash flow from operations and availability under the revolving credit facilities will provide sufficient liquidity to meet the Company’s operating needs for the next 12 months.
Cash Flows
| Nine Months Ended September 30, | ||||||||||||||
| (in thousands) | 2025 | 2024 | ||||||||||||
| Net cash provided by operating activities | $ | 7,969 | $ | 212,389 | ||||||||||
| Net cash provided by (used in) investing activities | 1,532 | (41,676) | ||||||||||||
| Net cash provided by (used in) financing activities | 21,312 | (171,390) | ||||||||||||
| Increase (decrease) in cash and cash equivalents | $ | 30,813 | $ | (677) | ||||||||||
Cash flows from operating activities
Cash provided by operating activities decreased $204 million in 2025 compared to 2024. Cash provided by operating activities was reduced by $44.5 million of debt refinancing transaction costs in 2025. There was a year-over-year decrease in segment profit of $126 million and a $93.1 million decrease in cash provided by changes in certain working capital accounts. The decrease in cash provided by changes in working capital accounts was primarily driven by the lack of advertising for political campaigns in this non-election year, which are generally paid in advance. For the nine months ended September 30, 2024, there was an $111 million increase in cash provided by changes in certain working capital accounts driven by the advertising for political campaigns. The decreases to cash provided by operating activities were partially offset by a decrease of $23.9 million in cash interest paid and a decrease of $38.9 million in cash taxes paid.
Cash flows from investing activities
Cash provided by investing activities was $1.5 million in 2025 compared to cash used in investing activities of $41.7 million in 2024. Investing activities in 2025 reflect $40.0 million of cash proceeds from the sale of our West Palm television station building, $6.9 million in cash used for investment purchases and $32.7 million in capital expenditures. On February 9, 2024, following the completed sale of Broadcast Music, Inc. ("BMI") to New Mountain Capital, we received $18.1 million in pre-tax cash proceeds for our equity ownership in BMI. This increase in cash provided by investing activities in 2024 was more than offset by $58.9 million of capital expenditures.
Cash flows from financing activities
Cash provided by financing activities was $21.3 million in 2025 compared to cash used in financing activities of $171 million in 2024. As of September 30, 2025, we had no borrowings outstanding under our credit facilities. During the first nine months of 2025, we had $1.6 billion of proceeds from the issuance of new long-term debt while we made payments on long-term debt of $1.9 billion. Long-term debt payments included $1.3 billion to pay down our May 2026 and January 2028 term
F-33
loans, $426 million to redeem our outstanding principal amount of the 2027 Senior Notes and a $205 million pre-payment on our June 2028 term loan. On April 10, 2025, we entered into a three-year accounts receivable securitization facility. The net amount drawn and outstanding on the facility totaled $360 million at September 30, 2025. In connection with the April 2025 and August 2025 debt transactions, we paid $63.3 million in deferred financing costs and $6.7 million in debt extinguishment costs. During the first nine months of 2024, we had net debt payments of $155 million under our revolving credit facility.
Debt
On April 10, 2025, we entered into a new credit agreement and completed a series of previously announced refinancing transactions. Under the new credit agreement, we have a revolving credit facility with aggregate commitments of up to $208 million due July 2027 and a non-extended revolving credit facility with aggregate commitments of up to $70.0 million due January 2026. In connection with the new credit agreement, we have an outstanding balance of $676 million on our term loans as of September 30, 2025. The annual required principal payments on these term loans total $8.9 million.
On April 10, 2025, we entered into a new three-year accounts receivable securitization facility, scheduled to terminate April 10, 2028, with aggregate commitments of up to $450 million. The maximum availability allowed is limited by our eligible accounts receivable balances, as defined under the terms of the securitization facility. As of September 30, 2025, the maximum availability allowed and amount outstanding under the securitization facility was $360 million.
On August 6, 2025, we issued $750 million of senior secured second lien notes and paid the remaining $426 million principal amount of the senior unsecured notes that were due to mature on July 15, 2027. As of September 30, 2025, we have $1.7 billion of senior notes outstanding. Senior secured notes have a total outstanding principal balance of $1.3 billion. The senior secured notes that mature on January 15, 2029 bear interest at a rate of 3.875% per annum and the senior secured notes that mature on August 15, 2030 bear interest at a rate of 9.875% per annum. Senior unsecured notes totaling $392 million mature on January 15, 2031 and bear interest at a rate of 5.375% per annum.
Debt Covenants
Our notes do not have maintenance covenants. The credit agreement contains covenants to comply with a maximum first lien net leverage ratio. For the new revolving credit facility, we must comply with a maximum first lien net leverage ratio of 3.50 to 1.0 through September 30, 2026, at which point it steps down to 3.25 times for the fiscal quarter ended December 31, 2026, and thereafter. For the non-extended revolving credit facility, we must comply with a maximum first lien net leverage ratio of 4.75 to 1.0 through September 30, 2025, at which point it stepped down to 4.50 times for the fiscal quarter ending December 31, 2025, and thereafter. As of September 30, 2025, we were in compliance with our financial covenants.
Debt Repurchase Program
In February 2023, our Board of Directors provided a new repurchase authorization, pursuant to which we may reduce, through redemptions or open market purchases and retirement, a combination of the outstanding principal balance of our senior secured and senior unsecured notes. The authorization permits an aggregate principal amount reduction of up to $500 million and expires on March 1, 2026.
Equity
On January 7, 2021 we issued 6,000 shares of series A preferred stock, having a face value of $100,000 per share. The preferred shares are perpetual and will be redeemable at the option of the Company beginning on the fifth anniversary of issuance, and redeemable at the option of the holders in the event of a Change of Control (as defined in the terms of the preferred shares), in each case at a redemption price of 105% of the face value, plus accrued and unpaid dividends (whether or not declared). We did not declare or provide payment for the preferred stock dividend in any of the three quarters of 2025 or any of the 2024 quarters. At September 30, 2025, aggregated undeclared and unpaid cumulative dividends totaled $101 million and the redemption value of the preferred stock totaled $734 million. In connection with the issuance of the preferred shares, Berkshire Hathaway also received a warrant to purchase up to 23.1 million Class A shares, at an exercise price of $13 per share.
Under the terms of the preferred shares, we are prohibited from paying dividends on and repurchasing our common shares until all preferred shares are redeemed.
F-34
Other
During the remainder of 2025, we anticipate contributing an additional $0.5 million to fund the SERPs' benefit payments. We have met regulatory funding requirements for our qualified benefit pension plan and do not have a mandatory contribution in 2025.
Off-Balance Sheet Arrangements and Contractual Obligations
Off-Balance Sheet Arrangements
There have been no material changes to the off-balance sheet arrangements disclosed in our 2024 Annual Report on Form 10-K.
Critical Accounting Policies and Estimates
The preparation of financial statements in accordance with accounting principles generally accepted in the United States of America (“GAAP”) requires us to make a variety of decisions that affect reported amounts and related disclosures, including the selection of appropriate accounting principles and the assumptions on which to base accounting estimates. In reaching such decisions, we apply judgment based on our understanding and analysis of the relevant circumstances, including our historical experience, actuarial studies and other assumptions. We are committed to incorporating accounting principles, assumptions and estimates that promote the representational faithfulness, verifiability, neutrality and transparency of the accounting information included in the financial statements.
Note 1 to the Consolidated Financial Statements included in our 2024 Annual Report on Form 10-K describes the significant accounting policies we have selected for use in the preparation of our financial statements and related disclosures. An accounting policy is deemed to be critical if it requires an accounting estimate to be made based on assumptions about matters that are highly uncertain at the time the estimate is made and if different estimates that reasonably could have been used or changes in estimates that are likely to occur could materially change the financial statements. We believe the accounting for goodwill and indefinite-lived intangible assets and pension plans to be our most critical accounting policies and estimates. A detailed description of these accounting policies is included in the Critical Accounting Policies section of Management's Discussion and Analysis of Financial Condition and Results of Operations included in our 2024 Annual Report on Form 10-K.
Recent Accounting Guidance
Refer to Note 2. Recently Adopted and Issued Accounting Standards of the Notes to Condensed Consolidated Financial Statements (Part I, Item 1 of this Form 10-Q) for further discussion.
F-35
Quantitative and Qualitative Disclosures About Market Risk
Earnings and cash flow can be affected by, among other things, economic conditions and interest rate changes. We are also exposed to changes in the market value of our investments.
Our objectives in managing interest rate risk are to limit the impact of interest rate changes on our earnings and cash flows and to reduce overall borrowing costs. We may use derivative financial instruments to modify exposure to risks from fluctuations in interest rates. In accordance with our policy, we do not use derivative instruments unless there is an underlying exposure, and we do not hold or enter into financial instruments for speculative trading purposes.
We are subject to interest rate risk associated with our credit agreement, as borrowings bear interest at the secured overnight financing rate ("SOFR") plus respective fixed margin spreads or spreads determined relative to our Company’s leverage ratio. Accordingly, the interest we pay on our borrowings is dependent on interest rate conditions and the timing of our financing needs. A 100 basis point increase in SOFR would increase annual interest expense on our variable rate borrowings by approximately $10.4 million.
The following table presents additional information about market-risk-sensitive financial instruments:
| As of September 30, 2025 | As of December 31, 2024 | |||||||||||||||||||||||||
| (in thousands) | Cost Basis | Fair Value | Cost Basis | Fair Value | ||||||||||||||||||||||
| Financial instruments subject to interest rate risk: | ||||||||||||||||||||||||||
| Accounts receivable securitization facility | $ | 359,800 | $ | 359,800 | $ | — | $ | — | ||||||||||||||||||
| Revolving credit facilities | — | — | — | — | ||||||||||||||||||||||
| Senior secured notes, due in January 2029 | 523,356 | 461,207 | 523,356 | 384,667 | ||||||||||||||||||||||
| Senior secured notes, due in August 2030 | 750,000 | 701,250 | — | — | ||||||||||||||||||||||
| Senior unsecured notes, due in July 2027 | — | — | 425,667 | 343,726 | ||||||||||||||||||||||
| Senior unsecured notes, due in January 2031 | 392,071 | 274,450 | 392,071 | 199,956 | ||||||||||||||||||||||
| Term loan, due in June 2028 | 337,489 | 340,020 | — | — | ||||||||||||||||||||||
| Term loan, due in November 2029 | 338,453 | 323,223 | — | — | ||||||||||||||||||||||
| Term loan, due in May 2026 | — | — | 721,213 | 701,380 | ||||||||||||||||||||||
| Term loan, due in January 2028 | — | — | 543,000 | 483,270 | ||||||||||||||||||||||
| Long-term debt, including current portion | $ | 2,701,169 | $ | 2,459,950 | $ | 2,605,307 | $ | 2,112,999 | ||||||||||||||||||
| Financial instruments subject to market value risk: | ||||||||||||||||||||||||||
| Investments held at cost | $ | 6,457 | (a) | $ | 6,353 | (a) | ||||||||||||||||||||
| (a) Includes securities that do not trade in public markets, thus the securities do not have readily determinable fair values. We estimate the fair values of these investments approximate their carrying values at September 30, 2025 and December 31, 2024. | ||||||||||||||||||||||||||
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Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Scripps management is responsible for establishing and maintaining adequate internal controls designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America (“GAAP”). The Company’s internal control over financial reporting includes those policies and procedures that:
| 1. | pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company; | ||||
| 2. | provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and the directors of the Company; and | ||||
| 3. | provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements. | ||||
All internal control systems, no matter how well designed, have inherent limitations, including the possibility of human error, collusion and the improper overriding of controls by management. Accordingly, even effective internal control can only provide reasonable but not absolute assurance with respect to financial statement preparation. Further, because of changes in conditions, the effectiveness of internal control may vary over time.
The effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934) was evaluated as of the date of the financial statements. This evaluation was carried out under the supervision of and with the participation of management, including the Chief Executive Officer and the Chief Financial Officer. Based upon that evaluation, the Chief Executive Officer and the Chief Financial Officer concluded that the design and operation of these disclosure controls and procedures are effective.
There were no changes to the Company's internal controls over financial reporting (as defined in Exchange Act Rule 13a-15(f)) during the period covered by this report that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting.
F-37
EXHIBIT 10.01
KKTV/KKCO/KMVT
ASSET PURCHASE AGREEMENT
for
the SALE of TELEVISION STATIONS
LISTED ON APPENDIX I
by and among
GRAY LOCAL MEDIA, INC.,
GRAY TELEVISION LICENSEE, LLC
SCRIPPS MEDIA, INC.
and
ION TELEVISION LICENSE, LLC
Dated as of July 7, 2025
Table of Contents
| Page | |||||
ARTICLE I DEFINITIONS | 1 | ||||
Section 1.1. Definitions | 1 | ||||
ARTICLE II PURCHASE AND SALE OF PURCHASED ASSETS | 10 | ||||
Section 2.1. Purchase and Sale of Purchased Assets | 10 | ||||
Section 2.2. Excluded Assets | 12 | ||||
Section 2.3. Assumption of Liabilities; Excluded Liabilities | 13 | ||||
Section 2.4. Closing Date | 15 | ||||
Section 2.5. Purchase Price | 15 | ||||
Section 2.6. Prorations and Adjustments | 15 | ||||
Section 2.7. Closing Date Deliveries | 16 | ||||
Section 2.8. Further Assurances | 17 | ||||
Section 2.9. Allocation of Purchase Price | 19 | ||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER | 19 | ||||
Section 3.1. Organization | 19 | ||||
Section 3.2. Authority of the Seller | 19 | ||||
Section 3.3. Financial Statements | 20 | ||||
Section 3.4. Operations Since May 31, 2025 | 21 | ||||
Section 3.5. No Undisclosed Liabilities | 21 | ||||
Section 3.6. Taxes | 21 | ||||
Section 3.7. Sufficiency and Condition of Assets | 22 | ||||
Section 3.8. Governmental Permits; FCC Matters | 22 | ||||
Section 3.9. Real Property; Real Property Leases | 23 | ||||
Section 3.10. Intellectual Property | 24 | ||||
Section 3.11. Title to Tangible Personal Property | 24 | ||||
Section 3.12. Employees | 24 | ||||
Section 3.13. Employee Relations | 24 | ||||
Section 3.14. Contracts | 25 | ||||
Section 3.15. Status of Contracts | 26 | ||||
Section 3.16. No Violation, Litigation or Regulatory Action | 26 | ||||
Section 3.17. Insurance | 26 | ||||
Section 3.18. Employee Plans; ERISA | 27 | ||||
Section 3.19. Environmental Protection | 27 | ||||
Section 3.20. No Finder | 28 | ||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER | 28 | ||||
Section 4.1. Organization | 28 | ||||
Section 4.2. Authority of the Buyer | 28 | ||||
Section 4.3. Litigation | 29 | ||||
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| Page | |||||
Section 4.4. No Finder | 29 | ||||
Section 4.5. Qualifications as FCC Licensee | 29 | ||||
Section 4.6. Solvency | 29 | ||||
Section 4.7. Transaction Value | 30 | ||||
ARTICLE V ACTION PRIOR TO THE CLOSING DATE | 30 | ||||
Section 5.1. Access to the Business | 30 | ||||
Section 5.2. Notification of Certain Matters | 30 | ||||
Section 5.3. FCC Consent; Other Consents and Approvals | 31 | ||||
Section 5.4. Operations of the Stations Prior to the Closing Date | 32 | ||||
Section 5.5. Public Announcement | 34 | ||||
Section 5.6. Multi-Station Contracts | 34 | ||||
Section 5.7. Inspection of Owned Towers | 35 | ||||
ARTICLE VI ADDITIONAL AGREEMENTS | 35 | ||||
Section 6.1. Taxes | 35 | ||||
Section 6.2. Employees; Employee Benefit Plans | 36 | ||||
Section 6.3. Control of Operations Prior to Closing Date | 39 | ||||
Section 6.4. Use of Names | 39 | ||||
Section 6.5. Seller's A/R | 40 | ||||
Section 6.6. No Solicitation; Confidentiality | 40 | ||||
Section 6.7. Environmental Assessments | 41 | ||||
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER | 42 | ||||
Section 7.1. No Breach of Covenants and Warranties | 42 | ||||
Section 7.2. No Restraint | 42 | ||||
Section 7.3. Certain Governmental Approvals | 42 | ||||
Section 7.4. No Antitrust Proceedings | 42 | ||||
Section 7.5. Other Purchase Agreement | 42 | ||||
Section 7.6. Deliveries | 42 | ||||
ARTICLE VIII CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER | 43 | ||||
Section 8.1. No Breach of Covenants and Warranties | 43 | ||||
Section 8.2. No Restraint | 43 | ||||
Section 8.3. Certain Governmental Approvals | 43 | ||||
Section 8.4. No Antitrust Proceedings | 43 | ||||
Section 8.5. Other Purchase Agreement | 43 | ||||
Section 8.6. Closing Deliveries | 43 | ||||
Section 8.7. Material Adverse Effect | 43 | ||||
Section 8.8. Third Party Consents | 44 | ||||
ARTICLE IX INDEMNIFICATION | 44 | ||||
Section 9.1. Indemnification by the Seller | 44 | ||||
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| Page | |||||
Section 9.2. Indemnification by the Buyer | 44 | ||||
Section 9.3. Notice of Claims; Determination of Amount | 45 | ||||
Section 9.4. Third Person Claims | 45 | ||||
Section 9.5. Limitations; Subrogation; Exclusive Remedies | 47 | ||||
Section 9.6. No Special Damages; Mitigation | 48 | ||||
Section 9.7. Tax Treatment of Indemnification Payments | 48 | ||||
ARTICLE X TERMINATION | 48 | ||||
Section 10.1. Termination | 48 | ||||
Section 10.2. Withdrawal of Certain Filings | 50 | ||||
ARTICLE XI GENERAL PROVISIONS | 50 | ||||
Section 11.1. Survival | 50 | ||||
Section 11.2. Confidential Nature of Information | 50 | ||||
Section 11.3. Governing Law | 51 | ||||
Section 11.4. Exclusive Jurisdiction; Court Proceedings | 51 | ||||
Section 11.5. Notices | 51 | ||||
Section 11.6. Successors and Assigns; Third Party Beneficiaries | 52 | ||||
Section 11.7. Access to Records after Closing | 53 | ||||
Section 11.8. Entire Agreement; Amendments | 53 | ||||
Section 11.9. Interpretation | 53 | ||||
Section 11.10. Waivers | 54 | ||||
Section 11.11. Expenses | 54 | ||||
Section 11.12. Partial Invalidity | 54 | ||||
Section 11.13. Executive in Counterparts | 54 | ||||
Section 11.14. Disclaimer of Warranties | 54 | ||||
Section 11.15. Specific Performance | 55 | ||||
iii
EXHIBITS
Exhibit A - Form of Bill of Sale and Assignment and Assumption Agreement [OMITTED]
Exhibit B - Form of Assignment of Seller FCC Authorizations [OMITTED]
Exhibit C - Form of Transition Services Agreement [OMITTED]
SCHEDULES
[OMITTED]
iv
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of July 7, 2025 (this “Agreement”), by and among Gray Local Media, Inc., a Delaware corporation (“Gray”), Gray Television Licensee, LLC (“Seller Licensee”) and together with Gray, the “Seller”), on the one hand, and Scripps Media, Inc., a Delaware corporation (“Scripps”), and ION Television License, LLC, a Delaware limited liability company and Affiliate of Scripps (together with Scripps, the “Buyer”), on the other hand. For the purposes of this Agreement all references to the Seller shall mean the Seller and its Affiliates.
W I T N E S S E T H :
WHEREAS, on the date of this Agreement, the Seller, together with certain of its direct and indirect subsidiaries, owns and operates the television broadcast stations identified in Appendix I hereto (each, a “Station” and collectively, the “Stations”), pursuant to certain authorizations issued by the Federal Communications Commission (the “FCC”);
WHEREAS, the Buyer desires to purchase the Purchased Assets and assume the Assumed Liabilities, and the Seller desires to sell to the Buyer the Purchased Assets and transfer the Assumed Liabilities, on the terms and subject to the conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), it is hereby agreed among the parties as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1.Definitions. As used in this Agreement, the following terms have the meanings specified or referred to in this Section 1.1:
“Acquisition Proposal” has the meaning specified in Section 6.7.
“Active Employees” has the meaning specified in Section 6.2(a).
“Affiliate” means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person. As used in this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning specified in the introductory paragraph hereof.
“Ancillary Agreements” means any certificate, agreement, document or other instrument to be executed and delivered in connection with the transactions contemplated by this Agreement.
“Antitrust Law” means the HSR Act, the Federal Trade Commission Act, as amended, the Sherman Act, as amended, the Clayton Act, as amended, and any applicable foreign antitrust Laws
and all other applicable Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Appraisal” has the meaning specified in Section 2.9.
“Assigned Multi-Station Contract Rights” has the meaning specified in Section 5.6.
“Assignment of the Seller FCC Authorizations” has the meaning specified in Section 2.7.
“Assumed Liabilities” has the meaning specified in Section 2.3(a).
“Assumed Multi-Station Contract Obligations” has the meaning specified in Section 5.6.
“Bill of Sale and Assignment and Assumption Agreement” has the meaning specified in Section 2.7(a).
“Business” means the business of the Stations (and shall not include the Other Seller Stations or the other businesses or assets of the Seller).
“Business Day” means any day on which the principal offices of the Securities and Exchange Commission are open to accept filings and on which banks in the City of New York are not required or authorized to close.
“Buyer” has the meaning specified in the introductory paragraph hereof.
“Buyer’s 401(k) Plan” has the meaning specified in Section 6.2(c).
“Buyer Ancillary Agreements” has the meaning specified in Section 4.2(a).
“Buyer Group Members” means the Buyer, its Affiliates, and each of their successors and assigns, and their respective directors, officers, employees and agents.
“Cap” has the meaning specified in Section 9.5(c).
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., and any regulations promulgated thereunder.
“Claim Notice” has the meaning specified in Section 9.3(a).
“Closing” has the meaning specified in Section 2.4.
“Closing Date” has the meaning specified in Section 2.4.
“Closing Date Adjustments” has the meaning specified in Section 2.6(a).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collection Period” has the meaning specified in Section 6.5.
2
“Communications Act” means the Communications Act of 1934, as amended, and the rules and regulations of the FCC promulgated under the foregoing, in each case, as in effect from time to time.
“Compliance Showing” has the meaning specified in Section 5.3(a).
“Confidentiality Agreement” has the meaning specified in Section 5.1.
“Cutoff Time” means 11:59 P.M. (eastern time) on the date immediately prior to the Closing Date.
“DOJ” means the U.S. Department of Justice.
“Electing Party” has the meaning specified in Section 2.8(e).
“Employment Agreement” means any written contract or agreement of the Seller with any individual Employee pursuant to which the Seller has an actual or contingent liability to provide compensation and/or benefits in consideration for past, present or future services and which, for each Employment Agreement in effect as of the date hereof, is listed on Schedule 3.14.
“Employees” means the individuals employed by the Seller exclusively in connection with the Business, all of whom as of the date hereof are listed on Schedule 3.12, and any full-time, part-time and per diem employees who become employed by Seller exclusively in connection with the Business after the date hereof in accordance with Section 5.4; provided, however, that no such Person shall be considered an “Employee” if he or she is not employed by the Seller at the Closing. For purposes of the foregoing, an individual shall not be considered “not employed” by virtue of the fact that he or she is on authorized leave of absence, sick leave, short term disability leave or military leave. Notwithstanding the foregoing, individuals on long term disability leave will not be considered as “employed” for purposes of this Agreement.
“Employee Plan” means each (i) pension, retirement, profit sharing, deferred compensation, stock bonus or other similar plan, (ii) medical, vision, dental, disability, Code Section 125 cafeteria, life insurance or other employee welfare benefit plan (as defined in Section 3(1) of ERISA) and (iii) other similar plan, policy, program or arrangement (and any amendments thereto), in each case, whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to, by Seller under which (a) any Employee has any present or future right to benefits, (b) Seller has or would reasonably be expected to have any liability with respect to the Business, or (c) Buyer or any of its Affiliates would reasonably be expected to have any liability, contingent or otherwise, following the Closing.
“Employment Commencement Date” has the meaning specified in Section 6.2(a).
“Encumbrance” means any lien, claim, charge, security interest, mortgage, pledge, easement, conditional sale or other title retention agreement, defect in title, covenant or other restrictions of any kind, other than any license or option to license Intellectual Property.
3
“Environmental Law” means all applicable Laws relating to or addressing the prevention of pollution, the environment, human health, occupational health or safety, including but not limited to CERCLA, OSHA, RCRA, the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300(f) et seq.; the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; and any state equivalents thereof.
“Environmental Liabilities” has the meaning specified in Section 3.19(b).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Excluded Assets” has the meaning specified in Section 2.2.
“Excluded Liabilities” has the meaning specified in Section 2.3(b).
“Excluded Multi-Station Contracts” means those Multi-Station Contracts identified in Schedule 5.6 as the “Excluded Multi-Station Contracts” and which may be listed thereon by vendor or other counterparty thereto.
“Expense” means any and all expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter indemnified against hereunder (including court filing fees, court costs, arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals).
“FCC” has the meaning specified in the first recital hereof.
“FCC Applications” has the meaning specified in Section 5.3(a).
“FCC Consent” means action by the FCC (including action by staff acting on delegated authority) granting its consent to the FCC Applications.
“GAAP” means United States generally accepted accounting principles.
“Governmental Body” means any foreign, federal, state, local or other governmental authority, or judicial or regulatory body.
“Governmental Consents” means (i) the FCC Consent, and (ii) all authorizations, consents, Orders and approvals of all Governmental Bodies, including any State Attorney General, that are or may become necessary for the execution, delivery and consummation of the transactions contemplated hereby.
“Governmental Permits” has the meaning specified in Section 3.8(a).
“Gray” has the meaning specified in the introductory paragraph hereof.
“Hazardous Materials” means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, or special waste, which is regulated or defined as “hazardous,” “toxic” or words of
4
similar import pursuant to any Environmental Law, including asbestos, asbestos containing material, petroleum or petroleum-derived substance or waste, or any constituent of any such substance or waste.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Inactive Employees” has the meaning specified in Section 6.2(a).
“Included Multi-Station Contracts” means those Multi-Station Contracts identified in Schedule 5.6 as the “Included Multi-Station Contracts” and which may be listed thereon by vendor or other counterparty thereto.
“Indemnified Party” has the meaning specified in Section 9.3(a).
“Indemnitor” has the meaning specified in Section 9.3(a).
“Independent Accountant” has the meaning specified in Section 2.6(b).
“Intellectual Property” means (a) patents, (b) Trademarks, (c) copyrights, (d) registrations and applications for registration of any of the foregoing in (a)-(c), and (e) trade secrets, including advertising customer lists, mailing lists, processes, know-how and other proprietary or confidential information.
“Knowledge of the Seller” means, as to a particular matter, the actual knowledge, after reasonable inquiry, of the following persons: (a) Kevin Latek, Executive Vice President, Chief Legal and Development Officer of Seller, (b) Jeff Gignac, Executive Vice President, Chief Financial Officer of Seller, (c) Pat LaPlatney, President and Co-CEO of Seller, (d) Ellenann Yelverton, Senior Vice President, General Counsel of Seller, (e) Sandy Breland, Executive Vice President and Chief Operating Officer of Seller, (f) David Burke, Vice President, Chief Technology Officer of Seller, and (g) the individuals serving as general managers of each of the Stations.
“Laws” means any and all domestic (federal, state or local) or foreign or provincial laws, statutes, ordinances, rules, published regulations, Orders, awards, or agency policies, procedures, requirements or decrees promulgated by any Governmental Body.
“Leased Real Property” has the meaning specified in Section 3.9(b).
“Like-Kind Exchange” has the meaning specified in Section 2.8(e).
“Loss” means any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, expenses, deficiencies or other charges.
“Market” means, with respect to each of the Stations, the “Designated Market Area,” as determined by The Nielsen Company, of such Station.
“Material Adverse Effect” means a material adverse effect on (i) the ability of the Seller to perform its obligations under this Agreement, or (ii) the assets, results of operations or financial condition of the Business, taken as a whole; provided, however, that for purposes of determining whether there has been or is reasonably likely to be a “Material Adverse Effect” for purposes of
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clause (ii), the results and consequences of the following events, occurrences, facts, conditions, changes, developments or effects shall not be taken into account: (a) any changes that generally affect the broadcast television industry in the Markets of the Stations, (b) resulting from the announcement by the Seller of its intention to sell the Business, including the announcement or pendency of this Agreement or the transactions contemplated hereby, or the facts, circumstances or events relating to any of the Buyer or its Affiliates, or actions taken by any of them including the impact thereof on relationships, contractual or otherwise, with agents, customers, suppliers, vendors, licensees, licensors, lenders, partners, employees or regulators, including the FCC, (c) the taking of any action expressly required by, or the failure to take any action expressly prohibited by, this Agreement, or the taking of any action at the written request or with the prior written consent of the Buyer, (d) any failure of the Business to meet internal or external projections or forecasts or any estimates of earnings, revenues or other metrics for any period (provided, however, that any event, occurrence, fact, condition, change, development or effect giving rise to such failure or change may be taken into account in determining whether there has been, or is reasonably likely to be, a Material Adverse Effect, except to the extent otherwise excluded hereunder), (e) any changes in the economy or capital, financial or securities markets generally, including changes in interest or exchange rates, (f) changes in Laws or generally accepted accounting principles (or the interpretation thereof) or in legal, regulatory or political conditions, (g) the commencement, escalation or worsening of any war or armed hostilities or the occurrence of acts of terrorism or sabotage occurring after the date hereof and (h) earthquakes, hurricanes, floods or other natural disasters; provided, that with respect to (a), (e), (f), (g), or (h), such change shall not have a disproportionate effect on the Business compared to other participants in the broadcast television industry in the Markets of the Stations.
“Multi-Station Contract” has the meaning specified in Section 5.6.
“MVPD” means any multi-channel video programming distributor, including cable systems, telephone companies and direct broadcast satellite systems.
“Order” means any order, judgment, injunction, award, stipulation, decree or writ handed down, adopted or imposed by, including any consent decree, settlement agreement or similar written agreement with, any Governmental Body.
“OSHA” means the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq., and any regulations promulgated thereunder.
“Other Closing Date Adjustments” means the “Closing Date Adjustments” as defined in Section 2.6 of the Other Purchase Agreement.
“Other Purchase Agreement” means that certain Asset Purchase Agreement, dated as of the date hereof, as it may be amended from time to time, by and among Buyer, Scripps Broadcasting Holdings, LLC, a Nevada limited liability company and wholly-owned subsidiary of Scripps, and Seller.
“Other Purchase Agreement Closing” means the closing of the transactions contemplated by the Other Purchase Agreement.
“Other Purchase Agreement Market” means each “Market” as used and defined in the Other Purchase Agreement.
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“Other Seller Stations” has the meaning specified in Section 5.6.
“Owned Real Property” has the meaning specified in Section 3.9(a).
“Owned Tower” means any broadcast communications tower used for any of the Stations, and all of the following associated elements: tower foundation, supporting elements, bolts, tower structures (including tower steel), cabinets, shelters, fencing, pads and gates, signs, utility lines, communication lines, conduits and meter boards, pads, anchors, caissons, lighting, lightning rods, tower lighting systems, foundations, rock compounds and rock access roads, the tower and compound grounding systems and all other structures and related Tangible Personal Property and improvements.
“Payment Date” has the meaning specified in Section 2.6(b).
“Permitted Encumbrance” means (a) liens for Taxes, assessments or other governmental charges applicable to the Real Property which are not yet due and payable or Taxes being contested in good faith by appropriate proceedings; (b) the obligations assumed by the Buyer under any leases included in the Assumed Liabilities; (c) zoning laws and ordinances and similar Laws that are not violated in any material respect by any existing improvement, provided such matters do not, individually or collectively, materially interfere with the use of the Real Property as currently used in the operation of the Business or materially and adversely impact the commercial value of the Real Property; (d) any right reserved to any Governmental Body to regulate the affected property; (e) in the case of any leased asset, (i) the rights of any lessor under the applicable lease agreement or any Encumbrance granted by any lessor or any Encumbrance that the applicable lease is subject to (to the extent any Encumbrance that the applicable lease is subject to is contained within the lease itself), (ii) any lien for Taxes, assessments or other governmental charges that are not yet due and payable or are being contested in good faith, (iii) any subleases specifically identified as such in any Schedule hereto and (iv) the rights of the grantor of any easement or any Encumbrance granted by such grantor on such easement property, so long as none of the foregoing such matters affecting a leased asset, individually or collectively, materially interferes with the operation of the Business in a manner consistent with the current use by the Seller or materially and adversely impacts the commercial value of the tenancy at the Leased Real Property; (f) inchoate materialmens’, mechanics’, workmen’s, repairmen’s or other like Encumbrances arising in the ordinary course of business for amounts that are not yet due and payable or that are being contested in good faith by appropriate proceedings; (g) restrictive covenants, easements, rights of way, encroachments, restrictions, and any state of facts that an accurate survey or physical inspection would show, provided such facts do not, individually or collectively, interfere in any material respect with the use of the Real Property as currently used in the operation of the Business or materially and adversely impact the commercial value of the Real Property; (h) for periods prior to the Closing Date, Encumbrances that will be released prior to or as of the Closing Date, including all mortgages and security interests securing indebtedness of the Seller; and (i) any other Encumbrance disclosed on Schedule 1.1(ii).
“Person” means any individual, corporation, limited liability company, partnership, trust, or any other non-Governmental Body or any Governmental Body.
“Phase I Environmental Assessment” has the meaning specified in Section 6.7.
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“Program Rights” means all rights of the Stations to broadcast television programs or shows as part of the Stations’ programming, including all rights of the Stations under film and program barter agreements, sports rights agreements, news rights or service agreements, affiliation agreements and syndication agreements.
“Prorated Taxes” means all personal property, real property, intangible property and other ad valorem Taxes imposed on or with respect to the Business and/or the Purchased Assets for any Straddle Period.
“Purchased Assets” has the meaning specified in Section 2.1.
“Purchased Intellectual Property” has the meaning specified in Section 2.1(d).
“Purchase Price” has the meaning specified in Section 2.5.
“RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and any regulations promulgated thereunder.
“Real Property” has the meaning specified in Section 3.9(b).
“Real Property Leases” has the meaning specified in Section 3.9(b).
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater or property.
“Required Consents” has the meaning specified in Section 5.3(d).
“Restricted Acquisition Transaction” has the meaning specified in Section 6.6(a).
“Retained Multi-Station Contract Obligations” has the meaning specified in Section 5.6.
“Retained Multi-Station Contract Rights” has the meaning specified in Section 5.6.
“Retained Names and Marks” means all (a) Trademarks containing or incorporating the term “Gray”, (b) other Trademarks owned by the Seller (other than Trademarks included in the Purchased Intellectual Property), (c) variations or acronyms of any of the foregoing, and (d) Trademarks confusingly similar to or dilutive of any of the foregoing.
“Scripps” has the meaning specified in the introductory paragraph hereof.
“Seller’s 401(k) Plan” has the meaning specified in Section 6.2(c).
“Seller” has the meaning specified in the introductory paragraph hereof.
“Seller FCC Authorizations” means those Governmental Permits issued to Seller Licensee by the FCC with respect to the Stations.
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“Seller Group Members” means the Seller, its Affiliates, each of their successors and assigns, and their respective directors, officers, employees, agents and representatives.
“Seller Licensee” has the meaning specified in the introductory paragraph hereof.
“Seller’s A/R” has the meaning specified in Section 2.2(q).
“Solvent” when used with respect to any Person or group of Persons on a combined basis, means that, as of any date of determination, (A) the amount of the “fair saleable value” of the assets of such Person (or group of Persons on a combined basis) will, as of such date, exceed (1) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors, and (2) the amount that will be required to pay the probable liabilities of such Person (or group of Persons on a combined basis) on its existing debts (including contingent liabilities) as such debts become absolute and matured, (B) such Person (or group of Persons on a combined basis) will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date and (C) such Person (or group of Persons on a combined basis) will be able to pay its liabilities, including contingent and other liabilities, as they mature.
“Station” or “Stations” has the meaning specified in the first recital hereof.
“Station Agreements” has the meaning specified in Section 3.15.
“Straddle Period” means any taxable period beginning on or before and ending after the Closing Date.
“Tangible Personal Property” has the meaning specified in Section 2.1(c).
“Tax” means any federal, state, local or foreign net income, alternative or add-on minimum, gross income, gross receipts, property, sales, use, transfer, gains, license, employment, payroll, capital stock, escheat, environmental, franchise, social security, stamp, registration and value-added taxes, withholding or minimum tax, or other tax, together with any interest or any penalty, addition to tax or additional amount imposed by any Governmental Body.
“Tax Return” means any return, declaration, report, claim for refund or other document relating to Taxes, including any schedule or attachment thereto, and amendment thereof.
“Termination Date” has the meaning specified in Section 10.1(a)(v).
“Third Person Claim Notice” has the meaning specified in Section 9.4(a).
“Threshold” has the meaning specified in Section 9.5(b).
“Tower Indemnity” has the meaning specified in Section 5.7.
“Tower Remedial Costs” has the meaning specified in Section 5.7.
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“Trade Agreement” means any contract, agreement or commitment, oral or written, other than film and program barter agreements, pursuant to which a Station is obligated for commercial air time or commercial production services in consideration for any property or service in lieu of cash; provided, however, that Trade Agreements (and Assumed Liabilities with respect thereto) shall include only those agreements for which the obligation of a Station for commercial air time or commercial production services (a) was agreed upon in the ordinary course of business at the Station’s then-prevailing rates, and (b) does not extend for more than 52 weeks after the Closing Date.
“Trademarks” means trademarks, service marks, Internet domain names, trade dress, trade names, and corporate names, all applications and registrations for the foregoing, and all goodwill connected with the use thereof and symbolized thereby.
“Transfer Taxes” means all transfer, documentary, excise, sales, value added, goods and services, use, stamp, registration and other similar taxes, and all conveyance fees, recording charges and other similar fees and charges, incurred in connection with the consummation of the transactions contemplated by this Agreement.
“Transferred Employees” has the meaning specified in Section 6.2(a).
“Transition Services Agreement” has the meaning specified in Section 2.7(a).
“Treasury Regulations” means regulations promulgated by the United States Department of the Treasury under the Code.
“WARN Act” has the meaning specified in Section 6.2(h).
ARTICLE II
PURCHASE AND SALE OF PURCHASED ASSETS
PURCHASE AND SALE OF PURCHASED ASSETS
Section 2.1.Purchase and Sale of Purchased Assets. Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall, or shall cause its Affiliates to, sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase from the Seller, pursuant to this Agreement, free and clear of all Encumbrances (except for Permitted Encumbrances), all of the right, title and interest of the Seller to the assets and properties (excepting only the Excluded Assets) of every kind and description, real, personal or mixed, tangible or intangible, then owned or held by the Seller and used exclusively or necessary for use in the Business (herein collectively referred to as the “Purchased Assets”), including, all right, title and interest of the Seller as of Closing to the following:
(a)(i) The Seller FCC Authorizations and (ii) all other assignable Governmental Permits exclusively related to or necessary for the operation of the Stations, and including any applications therefor and renewals or modifications thereof between the date hereof and Closing;
(b)All Owned Real Property, together with all fixtures and improvements thereon, and appurtenances thereto;
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(c)All machinery, equipment (including cameras, computers and office equipment), auxiliary and translator facilities, transmitting towers, transmitters, broadcast equipment, antennae, supplies, inventory (including all films, programs, records, tapes, recordings, compact discs, cassettes, spare parts and equipment), vehicles, furniture and other tangible personal property owned by the Seller and used or held for use exclusively in or necessary for the operation of the Business, except for any retirements or dispositions thereof made between the date hereof and the Closing in accordance with Section 5.4 (“Tangible Personal Property”), including the Tangible Personal Property listed on Schedule 2.1(c);
(d)All Intellectual Property owned or licensed by the Seller and used or held for use exclusively in or necessary for the operation of the Business (the “Purchased Intellectual Property”), including the call signs of the Stations, but, for the avoidance of doubt, excluding any Intellectual Property used in connection with any Other Seller Stations;
(e)(i) all contracts and agreements of the Seller to the extent such contracts and agreements are for the sale or barter of broadcast time on the Stations for advertising purposes; (ii) all contracts and agreements of the Seller to the extent such contracts or agreements are for the purchase or lease, as applicable, of merchandise, supplies, equipment or other personal property, or for the receipt of services, in each case used exclusively in or necessary for the operation of the Business; (iii) the Assigned Multi-Station Contract Rights; (iv) all non-competition, non-solicitation, and/or confidentiality agreements solely pertaining to the Stations or the Business; (v) all contracts and agreements listed or described in Schedule 3.14; and (vi) any other contract or agreement entered into by the Seller exclusively for the Business which (A) was entered into prior to the date hereof and is of the type described in clauses (b), (c), (g), (h) or (k) of Section 3.14, but which, by virtue of the threshold amounts set forth in such subsections, is not required to be listed in Schedule 3.14 or (B) is entered into after the date hereof consistent with the provisions of Section 5.4 of this Agreement;
(f)All claims or causes of action of the Seller against third parties solely to the extent that any such claims or causes of action arise out of the Purchased Assets or the Assumed Liabilities;
(g)All management and other systems (including computers and peripheral equipment), databases, computer software, disks and similar assets owned by the Seller which are used or held for use exclusively in or necessary for the operation of the Business, and all licenses of the Seller to the extent relating thereto;
(h)All books and records of the Seller that relate exclusively to or are necessary for the operation of the Business, including all files, logs, programming information and studies, technical information and engineering data, news and advertising studies or consulting reports, client/advertiser lists, sales and audience data, credit and sales reports and sales correspondence exclusively relating to or necessary for the operation of the Business, and further including all personnel files with respect to all Transferred Employees, excluding records relating to Excluded Assets or the Other Seller Stations; and
(i)Websites, social media accounts and mobile apps used exclusively in or necessary for the operation of the Business.
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Section 2.2.Excluded Assets. Notwithstanding the foregoing, the Purchased Assets shall not include the following (herein referred to as the “Excluded Assets”):
(a)Any cash or cash equivalents (including any marketable securities or certificates of deposit) of the Seller, other than petty cash held at the Stations;
(b)All bank and other depository accounts of the Seller;
(c)(i) Any contract or agreement that, by its terms, terminates or expires (and is not renewed or extended by the Seller) prior to the Closing, and (ii) the Retained Multi-Station Contract Rights;
(d)All claims, rights and interests of the Seller in and to any refunds of Taxes of any nature whatsoever, including all items of loss, deduction or credit for Tax purposes, in each case, relating to the Business, the Purchased Assets or the Assumed Liabilities for, or applicable to, periods (or portions thereof) ending on or prior to the Closing Date;
(e)Any rights, claims or causes of action of the Seller against third parties relating to the operations of the Business prior to the Closing Date (including all amounts payable to the Seller, if any, from the United States Copyright Office or such arbitration panels as may be appointed by the United States Copyright Office that relate to the Business prior to the Closing that have not been paid as of the Closing);
(f)All bonds held, contracts or policies of insurance, and prepaid insurance with respect to such contracts or policies;
(g)The Seller’s minute books, stock transfer books, records relating to formation or incorporation, Tax Returns and related documents and supporting work papers and any other records and returns relating to Taxes, assessments and similar governmental levies (other than real and personal property Taxes, assessments and levies imposed on the Purchased Assets) and any books and records not exclusively relating to or necessary for the operation of the Business;
(h)Any rights under any non-transferable shrink-wrapped or click-wrapped licenses of computer software and any other non-transferable licenses of computer software;
(i)All records prepared in connection with or relating to the sale, swap or transfer of the Stations, including bids or offers received from others and analyses relating to the Stations and the Purchased Assets;
(j)The items designated in Schedule 2.2(j) as “Excluded Assets”;
(k)The Retained Names and Marks;
(l)All Intellectual Property of the Seller (other than the Purchased Intellectual Property);
(m)All real and personal, tangible and intangible assets of the Seller that are used or held for use in the operation of the Other Seller Stations (including, without limitation, any such
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assets that are used both in the operation of the Stations and in the operation of the Other Seller Stations);
(n)All records and documents relating to Excluded Assets or to liabilities other than Assumed Liabilities;
(o)All capital stock or other equity securities of the Seller or its Affiliates and all other equity interests in any entity that are owned beneficially or of record by the Seller or its Affiliates;
(p)All of the employee benefit agreements, plans or arrangements sponsored or maintained by the Seller or its Affiliates (including, without limitation, all Employee Plans) and any assets of any such agreement, plan or arrangement;
(q)Any intercompany receivables of the Business from the Seller;
(r)All accounts receivable outstanding at the Cutoff Time generated by the Business prior to the Closing (“Seller’s A/R”); and
(s)Any rights of or payment due to the Seller under or pursuant to this Agreement or the other agreements with the Buyer or any of its Affiliates contemplated hereby.
Section 2.3.Assumption of Liabilities; Excluded Liabilities.
(a)Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, as of the Closing, the Buyer shall assume and shall thereafter be obligated for, and shall agree to pay, perform and discharge in accordance with their terms, only the following obligations and liabilities of the Seller, whether direct or indirect, known or unknown (except to the extent such obligations and liabilities constitute Excluded Liabilities):
(i)the liabilities and obligations arising with, or relating to, the operation of the Stations, including the owning or holding of the Purchased Assets, on and after the Closing Date;
(ii)all liabilities and obligations arising on or after the Closing Date related to, associated with or arising out of (A) the occupancy, operation, use or control of any of the Real Property included in the Purchased Assets after the Closing Date or (B) the operation of the Station or the Business after the Closing Date, in each case with respect to foregoing clauses (A) and (B), (x) incurred or imposed as a requirement of any Environmental Law, including, without limitation, any Release or storage of any Hazardous Materials occurring after the Closing Date on, at or from (1) any real property owned, leased, or operated in connection with the Station or the Business after the Closing Date (including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder) (other than with respect to real property that is an Excluded Asset), (2) any real property or facility owned by a third Person to which Hazardous Materials generated by the Station or Business after the Closing Date were sent after the Closing Date or (3) any conditions on, under or in the Real
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Property that were created or which arose from the occupancy, operation, use or control of such Real Property after the Closing Date and which require remedial action under Environmental Laws and (y) excluding, for the avoidance of doubt, all Environmental Liabilities to the extent arising prior to the Closing Date;
(iii)(A) all liabilities and obligations under the Station Agreements and other contracts and agreements included as Purchased Assets and (B) the Assumed Multi-Station Contract Obligations, in each case only to the extent that such liabilities or obligations accrue on or after the Closing Date;
(iv)(x) all Taxes (other than any Prorated Taxes or Transfer Taxes) of the Buyer for any Tax period, (y) any Prorated Taxes for the portion of any Straddle Period beginning after the Closing Date (determined in accordance with Section 6.1) and (z) any Transfer Taxes that are the responsibility of the Buyer pursuant to Section 6.1; and
(v)all liabilities and obligations of the Buyer or its Affiliates pursuant to Section 6.2 hereof.
All of the foregoing to be assumed by the Buyer hereunder are referred to herein as the “Assumed Liabilities.”
(b)Excluded Liabilities. The Buyer shall not assume or be obligated for any of, and the Seller shall solely retain, pay, perform, defend and discharge all of, the liabilities or obligations of the Seller of any and every kind whatsoever, direct or indirect, known or unknown, absolute or contingent, not expressly assumed by the Buyer under Section 2.3(a) (herein referred to as “Excluded Liabilities”) and, notwithstanding anything to the contrary in Section 2.3(a), none of the following shall be “Assumed Liabilities” for purposes of this Agreement (and shall constitute Excluded Liabilities):
(i)(x) all Taxes (other than any Prorated Taxes or Transfer Taxes) of the Seller for any Tax period, (y) any Prorated Taxes for the portion of any Straddle Period prior to the Closing Date (determined in accordance with Section 6.1), and (z) any Transfer Taxes that are the responsibility of the Seller pursuant to Section 6.1;
(ii)other than as set forth in Section 6.2(e), any of the liabilities or obligations under the employee benefit agreements, plans or arrangements sponsored or maintained by the Seller (including, without limitation, all Employee Plans);
(iii)any intercompany payables of the Business owing to the Seller or any of the Affiliates of the Seller;
(iv)the Retained Multi-Station Contract Obligations;
(v)any liabilities or obligations of the Seller under this Agreement or the Ancillary Agreements; and
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(vi)the liabilities and obligations arising with, or relating to, the operation of the Stations, including the ownership or holding of the Purchased Assets, prior to the Closing Date, including all Environmental Liabilities arising prior to the Closing Date.
Section 2.4.Closing Date. Subject to any prior termination of this Agreement pursuant to Section 10.1, the purchase and sale of the Purchased Assets provided for in Section 2.1 (the “Closing”) shall be consummated on the first day of the month that is at least 5 Business Days after the conditions set forth in Articles VII and VIII are satisfied or, if legally permissible, waived (other than those conditions that by their nature are to be satisfied (or validly waived) at the Closing, but subject to such satisfaction or waiver), at the offices of Cooley LLP, 1299 Pennsylvania Avenue, N.W., Suite 700, Washington, DC 20004, or remotely via electronic exchange of required Closing documentation in lieu of an in-person Closing, unless such date is changed by mutual agreement of the Seller and the Buyer (the “Closing Date”). All transactions contemplated herein to occur on and as of the Closing Date shall be deemed to have occurred simultaneously and to be effective as of 12:01 a.m. Eastern Time on such date.
Section 2.5.Purchase Price. The purchase price for the Purchased Assets (the “Purchase Price”) shall be equal to the consummation by Buyer of its obligations under the Other Purchase Agreement at the Other Purchase Agreement Closing, and subject to adjustment as provided in this Agreement.
Section 2.6.Prorations and Adjustments.
(a)All income and expenses arising from the Business (other than Prorated Taxes, which shall be governed by Section 6.1, and excluding Seller’s A/R), including, without limitation, Assumed Liabilities, prepaid expenses, annual regulatory fees payable to the FCC, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between the Seller and the Buyer in accordance with GAAP to reflect the principle that the Seller shall be entitled to all income and be responsible for all expenses arising from the Business through the Cutoff Time and the Buyer shall be entitled to all income and be responsible for all expenses arising from the Business after the Cutoff Time. Notwithstanding anything in this Section 2.6 to the contrary, (i) except as set forth herein, with respect to Trade Agreements assumed by the Buyer, if at the Cutoff Time, the Trade Agreements have an aggregate negative balance (i.e., the amount by which the value of air time the Stations are obligated to provide after the Cutoff Time exceeds the fair market value of corresponding goods and services to be received by the Stations after such date), there shall be no proration or adjustment, unless the aggregate negative balance of the Stations’ Trade Agreements exceeds [REDACTED] , in which event only such excess shall be treated as prepaid time sales of the Stations, and adjusted for as a proration in the Buyer’s favor, (ii) there shall be no proration under this Section 2.6 to the extent there is an aggregate positive balance with respect to the Stations’ Trade Agreements and (iii) there shall be no proration under this Section 2.6 for Program Rights agreements except to the extent that any payments or performance due under such Program Rights agreements relate to a payment period that straddles the Cutoff Time, in which case the amount payable in the payment period will be prorated based on the number of days in such period. The prorations and adjustments to be made pursuant to this Section 2.6 are referred to as the “Closing Date Adjustments.”
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(b)The parties agree that the Closing Date Adjustments shall not be paid at the Closing. Within ninety (90) days after the Closing, the Buyer shall deliver to the Seller a statement of any adjustments to the aforesaid estimate of the Closing Date Adjustments, and no later than the close of business on the thirtieth (30th) day after the delivery of such statement (the “Payment Date”), the Buyer shall pay to the Seller, or the Seller shall pay to the Buyer, as the case may be, any amount due as a result of the adjustment (or, if there is any good faith dispute, the undisputed amount). Except with respect to items that the Seller notifies the Buyer that it objects to prior to the close of business on the date that is at least one (1) Business Day prior to the Payment Date, the adjustments set forth in the Buyer’s statement shall be final and binding on the parties effective at the close of business on the Payment Date. If the Seller disputes the Buyer’s determinations or the Buyer disputes the Seller’s determinations, the parties shall consult with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties within thirty (30) days after the Payment Date. If such thirty (30) day consultation period expires, and the dispute has not been resolved, then the parties shall select BDO USA, LLP or, if such firm is unable to serve in such capacity, a mutually acceptable, nationally recognized independent accounting firm that does not then have a relationship with the Seller or the Buyer (the “Independent Accountant”), to resolve the disagreement and make a determination with respect thereto as promptly as practicable. The determination by the Independent Accountant on the matter shall be binding. If an Independent Accountant is engaged pursuant to this Section 2.6, the fees and expenses of the Independent Accountant shall be borne by the Seller and the Buyer in inverse proportion as such parties may prevail on the resolution of the disagreement, which proportionate allocation also will be determined by the Independent Accountant and be included in the Independent Accountant’s written report, and an appropriate adjustment and payment shall be made within three (3) Business Days of the resolution by the Independent Accountant, which resolution shall be rendered within thirty (30) days after such submission.
(c)Promptly (but not later than five (5) Business Days) after the final and binding determination of the later of (x) the Closing Date Adjustments pursuant to this Section 2.6 and (y) the Other Closing Date Adjustments pursuant to Section 2.6 of the Other Purchase Agreement, the amount of the Closing Date Adjustments and the amount of the Other Closing Date Adjustments shall be netted against each other, and Buyer or Seller, as the case may be, shall pay to other party, by wire transfer of immediately available funds to such bank accounts of such person as such person shall designate in writing, the net amount in accordance with the proration principles set forth in Section 2.6(a) hereof and Section 2.6(a) of the Other Purchase Agreement.
(d)With regard to cable and/or satellite transmission royalties to which any Station may be entitled for 2025, the parties agree that each of them is entitled to its pro rata share of such royalty payments, with the pro rata share for each party calculated according to the number of days in 2025 that the respective party owned such Station. The parties further agree that, if any Station is eligible to file cable and/or satellite claim(s) with the Copyright Royalty Board for 2025, then the Seller shall be responsible for filing such claim(s) no later than [REDACTED]. The parties further agree to cooperate in instructing the Copyright Royalty Board and the National Association of Broadcasters to distribute any royalties for 2025 between the parties in accordance with the terms of this Agreement.
Section 2.7.Closing Date Deliveries.
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(a)Seller Closing Deliveries. At the Closing, the Seller shall deliver or cause to be delivered to the Buyer, in each case, duly executed by the Seller or Seller Licensee, as applicable, (i) a bill of sale and assignment and assumption agreement in substantially the form of Exhibit A (the “Bill of Sale and Assignment and Assumption Agreement”), providing for the conveyance of all of the Purchased Assets (other than the Owned Real Property and the Seller FCC Authorizations) and the assumption of all of the Assumed Liabilities, (ii) an assignment of the Seller FCC Authorizations, in substantially the form of Exhibit B (the “Assignment of the Seller FCC Authorizations”), assigning to the Buyer the Seller FCC Authorizations, (iii) a transition services agreement, substantially in the form of Exhibit C (the “Transition Services Agreement”), (iv) special or limited warranty deeds (in the customary and recordable form for the jurisdiction in which the applicable Owned Real Property is located) conveying to the Buyer the Owned Real Property, (v) all of the documents and instruments required to be delivered by the Seller pursuant to Article VIII, (vi) specific assignment and assumption agreements duly executed by the Seller relating to any agreements included as Purchased Assets that the Buyer and the Seller have determined to be reasonably necessary to assign such agreements to the Buyer and for the Buyer to assume the Assumed Liabilities thereunder and (vii) such other documents and instruments as the Buyer has determined to be reasonably necessary to consummate the transactions contemplated hereby, including, without limitation, a schedule listing all Purchased Assets that constitute current assets and a listing of all fixed assets included in the Purchased Assets of the Stations, in each case, as of the Closing Date.
(b)Buyer Closing Deliveries. At the Closing, the Buyer shall deliver to the Seller, duly executed by the Buyer, (i) the Bill of Sale and Assignment and Assumption Agreement, (ii) the Assignment of the Seller FCC Authorizations, (iii) the Transition Services Agreement, (iv) all of the documents and instruments required to be delivered by the Buyer pursuant to Article VII, (v) specific assignment and assumption agreements duly executed by the Buyer relating to any agreements included as Purchased Assets that the Buyer and the Seller have determined to be reasonably necessary to assign such agreements to the Buyer and for the Buyer to assume the Assumed Liabilities thereunder, and (vi) such other documents and instruments as the Seller has determined to be reasonably necessary to consummate the transactions contemplated hereby.
Section 2.8.Further Assurances.
(a)From time to time following the Closing, the Seller shall execute and deliver, or cause to be executed and delivered, to the Buyer such other instruments of conveyance and transfer as the Buyer may reasonably request or as may be otherwise necessary to effectively convey and transfer to, and vest in, the Buyer and put the Buyer in possession of, any part of the Purchased Assets.
(b)Without limiting Section 5.3(d), to the extent that any Station Agreement or other agreement or contract included as a Purchased Asset cannot be assigned without consent and such consent is not obtained prior to the Closing, (i) this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof, (ii) the Seller shall use all commercially reasonable efforts to provide the Buyer the benefits of any such agreement, (iii) to the extent that the Buyer actually receives the benefits of any such agreement, the Buyer shall perform or discharge on behalf of the Seller the obligations and liabilities under such agreement to the extent they would constitute Assumed Liabilities if such Station Agreement or other agreement or
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contract were effectively assigned to the Buyer and (iv) the Seller and the Buyer shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to obtain such consent (provided that the Seller, the Buyer and their respective Affiliates shall not have any obligation to offer or pay any consideration in order to obtain any such consent, nor shall the Buyer have any obligation to amend, modify or otherwise alter the terms of any such contract or agreement). In addition to the Buyer’s obligation pursuant to the foregoing sentence, as to any Station Agreement or other agreement or contract included as a Purchased Asset that is not effectively assigned to the Buyer as of the Closing Date but is thereafter effectively assigned to the Buyer, the Buyer shall, from and after the effective date of such assignment, assume, and shall thereafter pay, perform and discharge as and when due, all Assumed Liabilities of the Seller arising under such agreement to the extent accruing from and after the date of such assignment.
(c)The Buyer may obtain, at its sole option and expense, ALTA extended owner’s policies of title insurance for the Owned Real Property and lessee’s title insurance policies for the Leased Real Property to the extent permitted under the terms of the applicable Real Property Lease (or subject to the consent of any lessor required thereunder), in each case in form reasonably satisfactory to the Buyer, and, prior to or at the Closing, the Seller shall take commercially reasonable actions as reasonably requested by the Buyer to facilitate the Buyer’s procurement of such title insurance (including, if requested by the Buyer, by providing access to the Real Property (to the extent permitted under the terms of the applicable Real Property Lease in the case of Leased Real Property or subject to the consent of any lessor required thereunder) for survey and/or inspection, by providing an owner’s affidavit, a gap indemnity and other customary affidavits, certificates and documents as the title company may reasonably request). If the title commitments or surveys obtained by the Buyer in connection with securing such title insurance reveal any Encumbrance on the title or the Real Property other than Permitted Encumbrances, the Buyer shall notify the Seller in writing of such objectionable matter promptly after the Buyer becomes aware that such matter is not a Permitted Encumbrance, and the Seller agrees to use commercially reasonable efforts to remove such objectionable matter.
(d)From time to time following the Closing, the Buyer shall execute and deliver, or cause to be executed and delivered, to the Seller such other undertakings and assumptions as the Seller may reasonably request or as may be otherwise necessary to effectively evidence the Buyer’s assumption of and obligation to pay, perform and discharge the Assumed Liabilities.
(e)Each of the Seller and the Buyer shall have the right to assign its respective rights under this Agreement (but without release of its respective obligations herein and without release of the other party’s obligations herein) to a third party who may act as a “qualified intermediary” or an “exchange accommodation titleholder” with respect to this Agreement in accordance with the provisions of Section 1031 of the Code, the Treasury Regulations promulgated thereunder, and any corresponding state or local income Tax laws (such assignment and related transactions, a “Like-Kind Exchange”). If either party elects to engage in a Like-Kind Exchange, the party so electing (the “Electing Party”) shall notify the other party of its election in writing no later than five (5) days prior to the Closing, identifying those Purchased Assets that it intends to qualify as part of the Like-Kind Exchange. The Electing Party shall bear its own expenses in connection with any such election to engage in a Like-Kind Exchange. Each of the Seller and the Buyer, as the case may be, shall cooperate fully with the Electing Party, and take any action reasonably requested in writing by the Electing Party, in connection with enabling the transactions to qualify in whole or in
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part as a Like-Kind Exchange; provided, however, that such actions do not impose any liabilities, including any unreimbursed monetary obligations or costs, on the Seller or the Buyer and does not release the Buyer or the Seller from its obligations under this Agreement, as the case may be, and that the Electing Party shall promptly reimburse the other party for any third-party costs reasonably incurred in connection with such election, including as the result of any subsequent review of such election by any Governmental Body or any attendant Tax consequences.
Section 2.9.Allocation of Purchase Price. The Buyer and the Seller agree that the fair market value of the Purchased Assets will be appraised by Bond & Pecaro or another accounting or appraisal firm mutually agreed upon by the parties (the “Appraisal”). All costs and expenses of the accounting or appraisal firm in preparing the Appraisal shall be borne by the Buyer. Within ninety (90) days of the Closing Date, the Buyer shall deliver to the Seller a copy of the Appraisal and an allocation statement with its proposed allocations of the applicable portions of the Purchase Price in accordance with the Appraisal and Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provisions of state, local, or non-U.S. Law, as appropriate). From and after the date hereof and through such 90-day period, the Seller shall cooperate with the Buyer, as and to the extent reasonably requested by the Buyer, in connection with matters relating to the Appraisal and such allocations. If the Seller does not notify the Buyer prior to the close of business on the date that is thirty (30) days after the date of receipt by the Seller of the Appraisal and such allocation statement that it disputes any of the Buyer’s allocations, the allocations set forth in the Buyer’s allocation statement shall be final and binding on the parties and the parties shall complete and timely file any necessary Tax forms, and their respective income Tax Returns, in accordance with such allocations. If the Seller notifies the Buyer within such thirty (30) day period that it disputes any of the Buyer’s allocations, the parties shall negotiate in good faith to finalize such disputed allocation(s) no later than thirty (30) days after the date of receipt by the Buyer of such notice from the Seller. If the Buyer and the Seller are unable to agree on such allocation(s) within such thirty (30) day period, then the parties shall have no further obligation under this Section 2.9, and each party shall make its own determination of such allocation for tax reporting purposes, which determination, for the avoidance of doubt, shall not be binding on the other party.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby, the Seller represents and warrants to the Buyer as follows:
Section 3.1.Organization. The Seller is organized, validly existing and in good standing under the laws of its state of incorporation or formation, as applicable. The Seller has the requisite organizational power and authority to operate the Stations as now operated by it, to use the Purchased Assets as now used by it and to carry on the Business as now conducted by it.
Section 3.2.Authority of the Seller.
(a)The Seller has the requisite organizational power and authority to execute and deliver this Agreement and the Ancillary Agreements to be executed and delivered by it pursuant
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hereto, to consummate the transactions contemplated hereby and thereby and to comply with the terms, conditions and provisions hereof and thereof.
(b)The execution, delivery and performance of this Agreement and the Ancillary Agreements by the Seller (to the extent a party thereto) have been duly authorized and approved by all necessary organizational action on the part of the Seller and do not require any further authorization or consent on the part of the Seller or its Affiliates. This Agreement is, and each other Ancillary Agreement when executed and delivered by the Seller (to the extent a party thereto) will be, a legal, valid and binding agreement of the Seller, enforceable in accordance with its respective terms, except in each case as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar laws affecting or limiting the enforcement of creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c)Except for the FCC Consent and as set forth in Schedule 3.2(c), none of the execution, delivery and performance by the Seller of this Agreement or the Ancillary Agreements, the consummation by the Seller of the transactions contemplated hereby or thereby or compliance by the Seller with or fulfillment by the Seller of the terms, conditions and provisions hereof or thereof will:
(i)conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation or a loss of rights under, or result in the creation or imposition of any Encumbrance upon any of the Purchased Assets under, (A) the certificate of incorporation, bylaws or other organizational documents of the Seller, (B) any Station Agreement, (C) any Governmental Permit, (D) any Order to which the Seller is a party or any of the Purchased Assets is subject or by which the Seller is bound, or (E) any indenture, note, mortgage, lease, guaranty or material agreement to which the Seller is a party, except, in the case of each of the foregoing clauses (B), (C), (D) or (E), as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; or
(ii)require the approval, consent, authorization or act of, or the making by the Seller of any declaration, filing or registration with, (A) any third Person under any Station Agreement or (B) any Governmental Body, and except, in any case, as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.
Section 3.3.Financial Statements. Schedule 3.3 contains (a) the unaudited statements of income for the Business by Market for the years ended December 31, 2023 and December 31, 2024, and (b) the unaudited statement of income for the Business by Market for the five-month period ended May 31, 2025. Such statements of income (i) present fairly, in all material respects, the results of operations of the Business by Market for the respective periods covered thereby, and (ii) have been derived from the books and records of the Seller relating to the Business except for the adjustments expressly noted therein. The financial books and records of the Seller relating to the Business have been properly and accurately maintained in all material respects and have been maintained in accordance with sound business practices.
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Section 3.4.Operations Since May 31, 2025.
(a)Except as set forth in Schedule 3.4(a), from and after May 31, 2025, there has been no change in the financial condition or the results of operations of the Business which, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect.
(b)Except as set forth in Schedule 3.4(b), from and after May 31, 2025, through the date of this Agreement, the Business has been conducted in all material respects in the ordinary course.
Section 3.5.No Undisclosed Liabilities. Except as set forth in Schedule 3.5, the Seller is not subject, with respect to the Business, to any liability (including unasserted claims, whether known or unknown), whether absolute, contingent, accrued or otherwise, which would be required to be disclosed on a balance sheet of the Business prepared in accordance with GAAP, except for liabilities (a) incurred in the ordinary course of business and which, except to the extent constituting Assumed Liabilities pursuant to Section 2.3(a), will constitute Excluded Liabilities, (b) to be performed in the ordinary course of business pursuant to the Station Agreements and other agreements included in the Purchased Assets, or (c) which, individually or in the aggregate, are not material in amount.
Section 3.6.Taxes Except as set forth in Schedule 3.6:
(a)The Seller (i) has filed all income and other material Tax Returns with respect to the Business and the Purchased Assets required to be filed prior to the date hereof and all such Tax Returns were true, correct and complete in all material respects, and (ii) has paid all Taxes reflected on such Tax Returns.
(b)The Seller is in compliance in all material respects with the provisions of the Code relating to the withholding and payment of Taxes with respect to the Business and the Purchased Assets and has, within the time and in the manner prescribed by Law, withheld from employee wages and paid over to the proper Governmental Body all required amounts.
(c)There are no Encumbrances for Taxes on any of the Purchased Assets other than Permitted Encumbrances.
(d)(i) The Seller has not received any written notice from any Governmental Body that any Tax Return relating to the Business or the Purchased Assets is currently under audit or examination by any Governmental Body, and (ii) there are no suits, actions, proceedings or, to the Knowledge of the Seller, investigations pending with respect to any Taxes relating to the Business or the Purchased Assets.
(e)No extension or waiver of statutes of limitations has been given or requested with respect to any Taxes of the Seller in respect of the Business that is currently in effect.
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(f)The representations and warranties contained in this Section 3.6 and in Section 3.18(b) are the sole and exclusive representations and warranties of the Seller relating to Taxes.
Section 3.7.Sufficiency and Condition of Assets. Except for the Excluded Assets and the assets and services to be provided pursuant to the Transition Services Agreement, the Purchased Assets constitute all the assets and properties, whether tangible or intangible, whether personal, real or mixed, wherever located, that are reasonably necessary to operate the Stations following the Closing in all material respects as presently operated by the Seller. The buildings, structures, facilities, fixtures and other improvements included in the Purchased Assets (i) are in operating condition and good repair (ordinary wear and tear excepted) and (ii) are available for immediate use in the operations of the Stations as currently conducted.
Section 3.8.Governmental Permits; FCC Matters.
(a)Seller Licensee holds the Seller FCC Authorizations, each of which was validly issued by the FCC and is in full force and effect. Seller Licensee holds or possesses these and all other material registrations, licenses, permits, approvals and regulatory authorizations from a Governmental Body that are reasonably necessary to entitle it to own or lease, operate and use the assets of the Stations and to carry on and conduct the Business substantially as conducted immediately prior to the date of this Agreement (herein collectively called “Governmental Permits”). Schedule 3.8(a) sets forth a list of each of the Seller FCC Authorizations that are material to the operations of the Stations as of the date of this Agreement. The Seller FCC Authorizations constitute all registrations, licenses, franchises, permits, approvals and regulatory authorizations issued by the FCC to Seller Licensee in respect of the Stations and held by Seller Licensee, and constitute all FCC authorizations necessary for the operation of the Stations as of the date of this Agreement.
(b)Seller Licensee has fulfilled and performed its obligations in all material respects under each of the Governmental Permits. Each of the Governmental Permits is valid, subsisting and in full force and effect and has not been revoked, suspended, canceled, rescinded or terminated. To the Knowledge of the Seller, no Governmental Body has threatened in writing to revoke, suspend, cancel rescind or terminate, or commence any action to revoke, suspend, cancel rescind or terminate, any material Governmental Permit.
(c)Each of the Stations is being operated in accordance with the Seller FCC Authorizations and in compliance in all material respects with the Communications Act and all other Laws applicable to the Stations, including, with respect to all towers and antennas used in connection with the Business, all applicable rules, regulations and requirements of the Federal Aviation Administration. Except as disclosed in Schedule 3.8(c), there are no applications pending before the FCC relating to any of the Stations and there is not (i) pending, or, to the Knowledge of the Seller, threatened, any material action or legal proceeding, other than actions or proceedings affecting broadcast television stations generally, by or before the FCC to revoke, suspend, cancel, rescind, terminate, materially adversely modify or refuse to renew in the ordinary course any Seller FCC Authorization (other than, in the case of modifications, proceedings to amend the FCC rules of general applicability), or (ii) issued or outstanding, by or before the FCC, any (A) order to show cause, (B) notice of violation, (C) notice of apparent liability or (D) order of forfeiture, in each case, against the Stations or Seller Licensee with respect to the Stations that has resulted or would
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reasonably be expected to result in any action described in the foregoing clause (i) with respect to such Seller FCC Authorizations. Except as set forth in Schedule 3.8(c), neither Seller Licensee nor any Station has entered into a consent decree applicable to any Station, or entered into a tolling agreement or waived any statute of limitations relating to any Station pursuant to which the FCC may assess any fine or forfeiture or take any other action with respect to any FCC investigation or proceeding, that would be binding on the Buyer and any Station as of and after the Closing Date. The Seller FCC Authorizations have been issued by the FCC for full terms customarily issued by the FCC for each class of Station, and the Seller FCC Authorizations are not subject to any condition except for those conditions appearing on the face of the Seller FCC Authorizations and conditions applicable to broadcast licenses generally. Seller Licensee has (i) paid or caused to be paid all FCC regulatory fees due and payable by it in respect of the Stations, and (ii) timely filed all material registrations and reports required to have been filed by it with the FCC relating to the Seller FCC Authorizations. This Section 3.8 does not relate to Governmental Permits for environmental, health and safety matters, which are the subject solely of Section 3.19.
Section 3.9.Real Property; Real Property Leases.
(a)Schedule 3.9(a) contains a brief description of all real property owned by the Seller exclusively for use in or necessary for the operation of the Business (the “Owned Real Property”). With respect to each parcel of Owned Real Property:
(i)the Seller has good and valid fee simple title (free and clear of any Encumbrances other than Permitted Encumbrances) to the Owned Real Property;
(ii)except as set forth in Schedule 3.9(a)(ii), the Seller has not leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and
(iii)to the Knowledge of the Seller, there are no unrecorded outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein.
(b)Schedule 3.9(b) sets forth a list of each lease or similar contract or agreement under which the Seller is a lessee of, or occupies, exclusively for use in the Business, any real property owned by any third Person (each such lease, contract or agreement, a “Real Property Lease,” and the property leased under the Real Property Leases is referred to herein as “Leased Real Property” and together with the Owned Real Property, as the “Real Property”). Seller has a valid leasehold interest in, sub leasehold interest in, or other occupancy right with respect to, the Leased Real Property. With respect to each Real Property Lease:
(i)except as set forth in Schedule 3.9(b)(i), the Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and
(ii)the Seller has not pledged, mortgaged or otherwise granted an Encumbrance (other than Permitted Encumbrances) on its leasehold interest in any Leased Real Property.
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(c)To the Knowledge of the Seller, neither the whole nor any part of the Owned Real Property nor any Leased Real Property is subject to any pending or threatened suit for condemnation or other taking by any public authority. The Seller’s use and occupancy of the Real Property complies in all material respects with all regulations, codes, ordinances and statutes of all applicable Governmental Bodies.
Section 3.10.Intellectual Property.
(a)Schedule 3.10(a) contains a list of all patents and patent applications, trademark, service mark and copyright registrations and applications for registration, social media accounts, mobile apps, Websites and Internet domain name registrations, in each case, that are included in the Purchased Intellectual Property. To the Knowledge of the Seller, (i) each registration included in the Purchased Intellectual Property is valid and enforceable and (ii) each registration and pending application included in the Purchased Intellectual Property is subsisting.
(b)To the Knowledge of the Seller, the Business is not infringing, misappropriating or otherwise violating any Intellectual Property owned by any third party in any material respect. The Buyer acknowledges that the representations and warranties set forth in this Section 3.10(b) are the only representations and warranties the Seller makes in this Agreement with respect to any activity that constitutes, or otherwise with respect to, infringement, misappropriation or other violation of Intellectual Property.
(c)As of the date hereof, there are no actions, suits or proceedings by or before any court or any Governmental Body which are pending or, to the Knowledge of the Seller, threatened in writing regarding or disputing the ownership, registrability or enforceability, or use by the Seller, of any Purchased Intellectual Property, other than the review of pending patent and trademark applications by applicable Governmental Bodies. The Seller is not a party to any outstanding Order that restricts, in any material respect, the use or ownership of any Purchased Intellectual Property.
Section 3.11.Title to Tangible Personal Property. The Seller has good and valid title to or a valid leasehold or license interest in all of the Tangible Personal Property free and clear of all Encumbrances, except for Permitted Encumbrances.
Section 3.12.Employees. Schedule 3.12 contains: (a) a list of all full-time, part-time and per diem employees of the Seller as of June 1, 2025 whose employment relates exclusively to the Business; and (b) the following information as of the date hereof with respect to each such employee: (i) job title, (ii) date of hire, (iii) rate of compensation, including annual base salary or hourly wage rate (as applicable) and bonus opportunity, (iv) principal work location and employing entity, (v) leave status, and (vi) status as per diem, full-time or part-time. One (1) week prior to the Closing Date, the Seller will deliver to the Buyer an updated Schedule 3.12 containing the foregoing information as of a then-recent date, which shall include Employees hired following the date of this Agreement.
Section 3.13.Employee Relations.
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(a)The Seller is not a party to any labor agreement or collective bargaining agreement in respect of the Stations or covering any Employee.
(b)Except as disclosed on Schedule 3.13, no charge, suit or legal action against the Seller in respect of the Stations relating to Laws concerning employment, employees and/or the workplace is pending or, to the Knowledge of the Seller, threatened before the National Labor Relations Board, any state labor relations board or any court, tribunal or other Governmental Body. As of the date hereof, there is no strike or other material labor dispute pending or, to the Knowledge of the Seller, threatened in respect of the Stations.
Section 3.14.Contracts. Except as set forth in Schedule 3.14, Schedule 3.9(b) or Schedule 5.6, as of the date hereof, the Seller is not party to or bound by:
(a)any contract for the purchase, sale, license or lease of assets used or to be used in the Business under which it would reasonably be expected that the Business would make annual payments of [REDACTED] or more during any twelve (12) month period or the remaining term of such contract;
(b)any programming, film or syndication agreement relating to the Business under which it would reasonably be expected that the Business would make annual payments of [REDACTED] or more during any twelve (12) month period or the remaining term of such contract;
(c)any retransmission consent agreement with any MVPDs with more than [REDACTED] paid subscribers with respect to any Station or Stations;
(d)any contract or agreement that is a “local marketing agreement”, time brokerage agreement, joint sales agreement, shared services agreement, management services agreement, local news sharing agreement or similar contract applicable to the Business;
(e)any partnership, joint venture or other similar contract or agreement applicable to the Business;
(f)any affiliation agreement applicable to the Business;
(g)any contract or agreement for capital expenditures with respect to the Business for an amount in excess of [REDACTED] during any twelve (12) month period or the remaining term of such contract;
(h)any contract with on-air talent or any Employment Agreement that involves a commitment for annual consideration in excess of [REDACTED];
(i)any Real Property Lease;
(j)any national sales representation agreement applicable to the Business;
(k)all agreements regarding any Station’s ATSC 3.0 transition;
(l)any contract that limits or restricts the Business from (i) engaging in any business, (ii) competing with any Person, or (iii) owning, operating, selling, transferring, pledging or
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otherwise disposing of the Purchased Assets (excluding, for purposes of this clause (iii), non-assignment provisions of contracts);
(m)any contract granting to any Person (i) an option or a first refusal, first-offer or similar preferential right to purchase or acquire any of the Purchased Assets or (ii) pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers of the Business, including any contract relating to the Business which contains a “most favored nation” provision, in each case, that would be material to the Business or any Station; or
(n)any contract (other than any contract of the type described in clauses (a) through (m) above) that is applicable to the Business that is not terminable by the Seller without penalty on ninety (90) days’ notice or less and which is reasonably expected to involve the payment by the Seller after the date hereof of more than [REDACTED] during any twelve (12) month period or the remaining term of such contract.
Section 3.15.Status of Contracts. Except as set forth in Schedule 3.15, each of the leases, contracts and other agreements required to be listed in Schedule 3.9(b) or Schedule 3.14 (collectively, the “Station Agreements”) constitutes a valid and binding obligation of the Seller and, to the Knowledge of the Seller, the other parties thereto, and is in full force and effect (in each case, subject to bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)). The Seller is not in breach in any material respect of, or default in any material respect under, any Station Agreement and, to the Knowledge of the Seller, (i) no other party to any Station Agreement is in breach in any material respect of, or default in any material respect under, any Station Agreement, and (ii) no event has occurred which would result in such a breach of, or default under, any Station Agreement (in each case, with or without notice or lapse of time or both). True and complete copies of each of the Station Agreements, together with all amendments thereto, have heretofore been made available to the Buyer by the Seller.
Section 3.16.No Violation, Litigation or Regulatory Action. Except as set forth in Schedule 3.16:
(a)The Seller is in compliance in all material respects with all Laws and Orders applicable to the Purchased Assets, the Stations or the Business; and
(b)Since January 1, 2023 and through the date of this Agreement, the Seller has not received any written notice of violation of any applicable Laws; and
(c)As of the date hereof, there are no material actions, suits or proceedings by or before any court or other Governmental Body which are pending or, to the Knowledge of the Seller, threatened in writing against Seller, in respect of the Purchased Assets, any Station or the Business.
Section 3.17.Insurance. The Seller maintains, in respect of the Purchased Assets, the Stations and the Business, policies of fire and extended coverage and casualty, liability and other forms of insurance in such amounts and against such risks and losses as are in the judgment of the Seller prudent for the Business. Except as set forth in Schedule 3.17 with respect to the Business, (i)
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there is no outstanding claim as of the date hereof under any such insurance policy and (ii) Seller is not in default in any material respect under any such insurance policy.
Section 3.18.Employee Plans; ERISA.
(a)Schedule 3.18(a) sets forth a list of each Employee Plan in effect as of the date of this Agreement.
(b)All Employee Plans are in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws and the applicable rules and regulations promulgated thereunder.
(c)Except as set forth in Schedule 3.18(c), neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, either alone or in combination with another event (whether contingent or otherwise), will (i) entitle any current or former Employee to any payment or benefit; (ii) increase the amount of compensation or benefits due to any Employee; or (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit with respect to any Employee.
Section 3.19.Environmental Protection.
(a)Except as set forth in Schedule 3.19:
(i)The Business is in compliance in all material respects with all Environmental Laws;
(ii)The Seller has, in respect of the Business, obtained all Governmental Permits required under Environmental Law necessary for its operation. The Seller is in compliance in all material respects with all terms and conditions of such Governmental Permits;
(iii)The Seller is not, with respect to the Business, the subject of any pending or, to the Knowledge of the Seller, threatened in writing, action, claim, complaint, investigation or notice of noncompliance or potential responsibility or other proceedings alleging any failure of the Business to comply with, or liability of the Business under, any Environmental Law; and
(iv)To the Knowledge of the Seller, there has been no Release of Hazardous Materials at, under, about or from any Real Property reasonably expected to (A) require the Seller to conduct any investigation, remediation or other response action under any Environmental Law or (B) otherwise result in Losses.
(b)To the Knowledge of the Seller, the Seller has no Environmental Liabilities that would reasonably be expected to have a Material Adverse Effect. As used herein, “Environmental Liabilities” are any claims, demands, or liabilities relating to Environmental Law which (i) arise out of or in any way relate to the operations or activities of any of the Stations, or any real property at any time owned, operated or leased by the Seller with respect to the Business, whether contingent or fixed, actual or potential, and (ii) arise from or relate to actions occurring (including any failure to act) or conditions existing on or before the Closing Date.
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(c)The representations and warranties contained in this Section 3.19 are the sole and exclusive representations and warranties relating to Environmental Law or Hazardous Materials.
Section 3.20.No Finder. The Seller is not obligated to pay any fee or commission to any broker, finder or intermediary for or on account of the transactions contemplated by this Agreement for which the Buyer may become liable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
REPRESENTATIONS AND WARRANTIES OF THE BUYER
As an inducement to the Seller to enter into this Agreement and to consummate the transactions contemplated hereby, the Buyer represents and warrants to the Seller as follows:
Section 4.1.Organization. The Buyer is organized, validly existing and in good standing under the laws of the state of its organization. The Buyer has the requisite organizational power and authority to own, lease and operate the properties and assets used in connection with its business as currently being conducted or to be acquired pursuant hereto.
Section 4.2.Authority of the Buyer.
(a)The Buyer has the requisite organizational power and authority to execute and deliver this Agreement and all of the other agreements and instruments to be executed and delivered by the Buyer pursuant hereto (collectively, the “Buyer Ancillary Agreements”), to consummate the transactions contemplated hereby and thereby and to comply with the terms, conditions and provisions hereof and thereof.
(b)The execution, delivery and performance of this Agreement and the Buyer Ancillary Agreements by the Buyer have been duly authorized and approved by all necessary organizational action on the part of the Buyer and its Affiliates and do not require any further authorization or consent on the part of the Buyer or any of its Affiliates. This Agreement is, and each other Buyer Ancillary Agreement when executed and delivered by the Buyer or any of its Affiliates and the other parties thereto will be, a legal, valid and binding agreement of the Buyer or such Affiliates party thereto, enforceable in accordance with its respective terms, except in each case as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar laws affecting or limiting the enforcement of creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c)Except for the FCC Consent and as set forth in Schedule 4.2, none of the execution, delivery and performance by the Buyer of this Agreement, or by the Buyer or any of its Affiliates, as applicable, of the Buyer Ancillary Agreements to which it is a party, the consummation by the Buyer or its Affiliates, as applicable, of the transactions contemplated hereby or thereby or compliance by the Buyer or any of its Affiliates, as applicable, with or fulfillment by the Buyer or its Affiliates, as applicable, of the terms, conditions and provisions hereof or thereof will:
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(i)conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation or a loss of rights under, or result in the creation or imposition of any Encumbrance upon any assets of the Buyer under, (A) the certificate of incorporation, bylaws or other organizational documents of the Buyer, or (B) any indenture, note, mortgage, lease, guaranty or material agreement, or any Order, to which the Buyer or any of its Affiliates is a party; or
(ii)require the approval, consent, authorization or act of, or the making by the Buyer or any of its Affiliates of any declaration, filing or registration with, any third Person (including any Governmental Body), except, in any case, as would not, individually or in the aggregate, be reasonably likely to prevent or materially delay the consummation of the transactions contemplated by this Agreement.
Section 4.3.Litigation. None of the Buyer or any of its Affiliates is a party to any action, suit or proceeding pending or, to the knowledge of the Buyer, threatened which, if adversely determined, would reasonably be expected to restrict the ability of the Buyer to consummate promptly the transactions contemplated by this Agreement. There is no Order to which the Buyer or any of its Affiliates is subject which would reasonably be expected to restrict the ability of the Buyer to consummate promptly the transactions contemplated by this Agreement.
Section 4.4.No Finder. None of the Buyer or any of its Affiliates, or any party acting on any of their behalf, has paid or become obligated to pay any fee or commission to any broker, finder or intermediary for or on account of the transactions contemplated by this Agreement.
Section 4.5.Qualifications as FCC Licensee. Subject to the FCC’s approval of the Compliance Showing, the Buyer is legally, financially and otherwise qualified to be the licensee of, and to acquire, own, operate and control, the Stations under the Communications Act, including the provisions relating to media ownership and attribution, foreign ownership and control, and character qualifications. Subject to the FCC’s approval of the Compliance Showing, to Buyer’s knowledge, there are no facts or circumstances regarding the Buyer’s qualifications that would, under the Communications Act or any other applicable Laws, (i) disqualify the Buyer as the assignee of the Seller FCC Authorizations with respect to the Stations or as the owner and operator of the Stations, (ii) materially delay the FCC’s processing of the FCC Applications, or (iii) cause the FCC to impose a material condition or conditions on its granting of the FCC Consent, other than those of general applicability. Other than the FCC’s approval of the Compliance Showing, no waiver of or exemption from, whether temporary or permanent, any provision of the Communications Act, or any divestiture or other disposition by the Buyer or any of its Affiliates of any asset or property, is required to be obtained or effected by the Buyer in order for Buyer to hold the Seller FCC Authorizations under the Communications Act.
Section 4.6.Solvency. The Buyer is Solvent as of the date of this Agreement and will, immediately after giving effect to all of the transactions contemplated by this Agreement, be Solvent at and after the Closing Date.
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Section 4.7.Transaction Value. In accordance with the HSR Act and its rules and regulations, the Buyer has determined in good faith the fair market value of the Purchased Assets and determined that their value is less than the HSR Act’s $126.4 million size-of-transaction threshold for 2025.
ARTICLE V
ACTION PRIOR TO THE CLOSING DATE
ACTION PRIOR TO THE CLOSING DATE
The respective parties hereto covenant and agree to take the following actions between the date hereof and the Closing Date:
Section 5.1.Access to the Business. The Seller shall afford to the officers and authorized representatives of the Buyer and its Affiliates (including independent public accountants, attorneys and consultants) reasonable access during normal business hours, and upon reasonable prior notice, to the offices, properties, employees and business and financial records of the Business and the Purchased Assets, including the right to inspect such properties and make copies of such business and financial records, and shall furnish to the Buyer, its Affiliates, or their respective authorized representatives such additional information concerning the Business and the Purchased Assets as shall be reasonably requested; provided, however, that the Seller shall not be required to violate any obligation of confidentiality or other obligation under applicable Law to which the Seller is subject in discharging their obligations pursuant to this Section 5.1. The Buyer agrees that any such access shall be conducted in such a manner as not to interfere unreasonably with the operations of the Business or the Seller. Prior to the Closing, the Seller shall provide the Buyer with the statements of income of the Business by Market for any calendar quarterly period ended within 45 days following the end of such quarterly period and for any calendar annual period within 75 days following the end of such annual period. Notwithstanding the foregoing, the Seller shall not be required to (i) take any action which would constitute a waiver of attorney-client or other privilege or would compromise the confidential information of the Seller not related to the Business, (ii) supply the Buyer with any information which, in the reasonable judgment of the Seller, the Seller is under a contractual or legal obligation not to supply or (iii) except pursuant to Section 6.7 and subject to the terms thereof, permit the Buyer or any of its Affiliates to conduct any sampling of soil, water, sediment or building material. Any information disclosed to the Buyer by the Seller under this Section 5.1 shall be held in accordance with the Mutual Non-Disclosure Agreement, dated as of [REDACTED] (the “Confidentiality Agreement”), by and among the Seller and Scripps.
Section 5.2.Notification of Certain Matters.
(a)The Buyer, on the one hand, and the Seller, on the other hand, shall promptly notify the other upon becoming aware of any material breach of any representation or warranty of such party contained in this Agreement.
(b)Each party shall promptly notify the other of any action, suit or proceeding that shall be instituted or threatened against such party to restrain, prohibit or otherwise challenge the legality of any transaction contemplated by this Agreement. The Seller shall promptly notify the Buyer, and the Buyer shall promptly notify the Seller, of any lawsuit, claim, proceeding or investigation that may be threatened, brought, asserted or commenced against the other which would
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have been listed in Schedule 3.16 or would be an exception to Section 4.3 if such lawsuit, claim, proceeding or investigation had arisen prior to the date hereof.
Section 5.3.FCC Consent; Other Consents and Approvals.
(a)As promptly as practicable after the date hereof, but in any event no later than ten (10) Business Days hereafter, the Buyer and its Affiliates, as applicable, shall file, and the Seller and Seller Licensee shall file, with the FCC the necessary applications requesting its consent to the Assignment of the Seller FCC Authorizations to the Buyer, as contemplated by this Agreement (the “FCC Applications”). The Seller shall and the Buyer shall, or shall cause its Affiliates to, cooperate in the preparation of such applications and will diligently take, or cooperate in the taking of, all commercially reasonable steps, to provide any additional information required by the FCC, and shall use reasonable best efforts to obtain promptly the FCC Consent. The Seller, on the one hand, and the Buyer, on the other hand, shall bear the cost of FCC filing fees relating to the FCC Applications equally. The Buyer and the Seller shall oppose any petitions to deny or other objections filed with respect to the FCC Applications to the extent such petition or objection relates to any such party or its Affiliates. Neither the Seller nor the Buyer shall, and each shall cause its Affiliates not to, take any intentional action that would, or intentionally fail to take such action the failure of which to take would, reasonably be expected to have the effect of preventing or materially delaying the receipt of the FCC Consent. The parties agree that they will cooperate to amend the FCC Applications as may be necessary or required to obtain the timely grant of the FCC Consent. As may reasonably be necessary to facilitate the grant of the FCC Consent, in the event that in order to obtain the FCC Consent in an expeditious manner, it is necessary for the Seller or any of its Affiliates to enter into a customary assignment, assumption, tolling, or other similar arrangement with the FCC to resolve any complaints with the FCC relating to the Stations, the Seller shall enter, or cause its Affiliates, as applicable, to enter, into such a customary assignment, assumption, tolling or other arrangement with the FCC. If the Closing Date shall not have occurred for any reason within the original effective period of the FCC Consent, and neither party hereto shall have terminated this Agreement pursuant to Section 10.1, the Seller and the Buyer shall jointly request extensions of the effective period of the FCC Consent until the Closing Date occurs or this Agreement is otherwise terminated; provided, however, no such extension of the FCC Consent shall limit the right of either party hereto to exercise such party’s rights under Section 10.1. The Buyer and the Seller acknowledge that under the rules and policies announced by the FCC as of the date of this Agreement, the FCC’s local television ownership rule requires the parties to submit a showing demonstrating compliance with the FCC’s local television ownership rule (the “Compliance Showing”). The Buyer and the Seller shall cooperate fully in the preparation of the Compliance Showing and shall promptly respond to requests from the FCC to provide information concerning the Compliance Showing or the FCC Applications.
(b)[Intentionally Omitted.]
(c)Subject to the terms and conditions herein, the Seller and the Buyer shall use their respective reasonable best efforts to consummate and make effective the transactions contemplated hereby and to cause the conditions set forth in Article VII and Article VIII to be satisfied as promptly as reasonably practicable after the date hereof, including (i) using their respective reasonable best efforts to obtain all necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and making of all required filings and submissions with, any Governmental Body or any other third party required by such party in connection with the
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transactions contemplated by this Agreement or the Other Purchase Agreement, including any approval by the DOJ of the sale of the Stations to Buyer pursuant to this Agreement required by applicable Law as well as any other consents under any Antitrust Laws or communications or broadcast Laws that may be required by any U.S. federal, state or local antitrust or competition Governmental Body, or by the FCC or similar Governmental Body, in each case with competent jurisdiction, (ii) cooperating with each other in (A) determining which filings are required to be made prior to the Closing with, and which consents, approvals, permits, notices or authorizations are required to be obtained prior to Closing from, Governmental Bodies or other third parties in connection with the execution and delivery of this Agreement and related agreements, and consummation of the transactions contemplated hereby and thereby and (B) timely making all necessary filings and timely seeking all consents, approvals, permits, notices or authorizations, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Body vacated or reversed and (iv) taking, or causing to be taken all other reasonable actions and doing, or causing to be done, and cooperating with each other in order to do, all other things reasonably necessary or appropriate to consummate the transactions contemplated hereby as soon as practicable. Each party hereto agrees not to, and shall cause its Affiliates not to, take any action that would reasonably be expected to materially delay, materially impede or prevent receipt of the Governmental Consents. Notwithstanding any provision in this Agreement, this Section 5.3(c) shall not be deemed to require the Buyer, the Seller or any Affiliate of the Buyer or the Seller to divest or agree to divest any station, assets or other interests other than any stations, assets or other interests acquired after the date hereof in a Market in which any Station operates.
(d)The Seller and the Buyer shall, and shall cause their Affiliates to, reasonably cooperate with each other, to obtain all consents and amendments from the parties to the Station Agreements which are required by the terms thereof or this Agreement for the consummation of the transactions contemplated by this Agreement; provided, however, that neither the Seller, the Buyer, nor any of their respective Affiliates shall have any obligation to offer or pay any consideration in order to obtain any such consents or amendments, including any obligation to amend, modify or otherwise alter the terms of any contract or agreement with any such party that is not included in the Purchased Assets or, insofar as any Multi-Station Contract relates to Other Seller Stations, the terms thereof relating to Other Seller Stations; and provided, further, that the parties acknowledge and agree that such third party consents and amendments are not conditions to Closing, except for the third party consents applicable to the Stations set forth on Schedule 5.3(d) (the “Required Consents”).
Section 5.4.Operations of the Stations Prior to the Closing Date.
(a)Prior to the Closing Date, except as approved by the Buyer (which approval shall not be unreasonably withheld, delayed or conditioned), the Seller shall, and shall cause its Affiliates to, operate and carry on the Business in all material respects in the ordinary course of the Business, and to the extent consistent therewith use its commercially reasonable efforts to (i) continue to promote and conduct advertising on behalf of the Stations at levels substantially consistent with past practice, (ii) keep and maintain the Purchased Assets in good operating condition and repair (wear and tear in ordinary usage excepted), (iii) maintain the business organization of the Stations intact, (iv) preserve the goodwill of the suppliers, contractors, licensors, employees,
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customers, distributors and others having business relations with the Business, and (v) maintain current staffing levels in each Market.
(b)Without limiting Section 5.4(a) and subject to Section 6.3 regarding control of the Stations, except (w) as expressly contemplated by this Agreement, (x) as set forth in Schedule 5.4(b), (y) as required by applicable Laws or by any Governmental Body of competent jurisdiction, or (z) with the prior written consent of the Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), the Seller shall not, and shall cause each of its Affiliates not to, in respect of the Stations:
(i)except as permitted under subsection (vii) of this Section 5.4(b), enter into any contract or commitment that would be binding on the Buyer after the Closing Date and that involves the payment or potential payment of more than [REDACTED] per annum or that would otherwise have to be listed on Schedule 3.14 if such contract had been entered into prior to the date of this Agreement;
(ii)other than those capital expenditures listed in Schedule 5.4(b)(ii), make or authorize any new capital expenditures, other than capital expenditures to address exigent circumstances that do not exceed [REDACTED] individually or in the aggregate;
(iii)sell, lease (as lessor), transfer or otherwise dispose of or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Purchased Assets, other than the sale, lease (as lessor), transfer or other disposal of property in the ordinary course of the Business that is either obsolete or unnecessary for the continued operation of the Stations as currently operated or pursuant to existing contracts or commitments, and other than Permitted Encumbrances;
(iv)fail to maintain in full force and effect in accordance with their respective terms and conditions, any of the material Seller FCC Authorizations, or to not take or fail to take any action that could reasonably be expected to cause the FCC or any other Governmental Body to institute proceedings for the suspension, revocation or adverse modification of any of the material Seller FCC Authorizations in any material respect;
(v)other than in the ordinary course of the Business, enter into any new, or materially modify the terms of any existing, Employment Agreement with any Employee whose annual compensation would exceed [REDACTED] after giving effect to such action;
(vi)in respect of the Business, materially change any accounting period or change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, in each case, in effect on the date hereof, except as required by changes in applicable Law;
(vii)materially increase the annual cash compensation of the Employees, other than increases in compensation in accordance with normal compensation practices and consistent with past compensation practices after giving effect to any
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such increase and it being agreed that the granting of annual cash incentive bonus awards for periods prior to the Closing in the ordinary course shall not constitute an increase in compensation for purposes hereof; or
(viii)agree or commit to do any of the foregoing.
Section 5.5.Public Announcement. Neither the Seller, Buyer nor any of their Affiliates shall, without the approval of the other, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that any such party shall be so obligated by Laws or by the rules, regulations or policies of any national securities exchange or association. The Seller acknowledges that the parent of the Buyer is so obligated to announce publicly the transactions contemplated hereby.
Section 5.6.Multi-Station Contracts. Schedule 5.6 contains a list as of the date hereof of contracts and agreements used in the Business as to which one or more television stations of the Seller other than the Stations (the “Other Seller Stations”) is party to, or has rights or obligations thereunder (any such contract or agreement, a “Multi-Station Contract”). The rights and obligations under the Multi-Station Contracts that are to be assigned to and assumed by the Buyer (and included in the Purchased Assets and Assumed Liabilities, as the case may be) shall include only those rights and obligations applicable to the Stations under those Multi-Station Contracts that are the Included Multi-Station Contracts (such rights, the “Assigned Multi-Station Contract Rights”, and such obligations, the “Assumed Multi-Station Contract Obligations”). Neither the rights and obligations applicable to the Other Seller Stations under the Included Multi-Station Contracts nor any of the rights and obligations under the Excluded Multi-Station Contracts, including those applicable to the Stations, shall be assigned to or assumed by the Buyer (such rights, the “Retained Multi-Station Contract Rights”, shall be Excluded Assets and such obligations, the “Retained Multi-Station Contract Obligations”, shall be Excluded Liabilities, as applicable). For purposes of determining the scope of the rights and obligations under the Included Multi-Station Contracts, the rights and obligations under each Included Multi-Station Contract shall be equitably allocated among (1) the Stations, on the one hand, and (2) the Other Seller Stations, on the other hand, in accordance with the following equitable allocation principles:
(a)any allocation set forth in the Included Multi-Station Contract shall control; or
(b)if there is no allocation in the Included Multi-Station Contract as described in clause (a) hereof, then the reasonable accommodation determined by mutual good faith agreement of the Seller and the Buyer shall control based, to the extent possible, on the quantifiable proportionate benefit to be received by the parties after Closing.
Subject to any applicable third-party consents, such allocation and assignment with respect to each Included Multi-Station Contract shall be effectuated, as mutually agreed by the Seller and the Buyer, by termination of such Included Multi-Station Contract in its entirety with respect to the Stations and the execution of a new contract with respect to the Stations or by an assignment to and assumption by the Buyer of the rights and obligations related to the Stations under such Included Multi-Station Contract. The parties shall use commercially reasonable efforts to obtain any such new
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contracts or assignments to, and assumptions by, the Buyer in accordance with this Section 5.6; provided, that, completion of documentation of any such allocation under this Section 5.6 is not a condition to Closing.
Section 5.7.Inspection of Owned Towers. Within ninety (90) days from the date of this Agreement, the Buyer shall have the right, at its sole cost and expense, to inspect, and to engage the tower inspection service as has been mutually agreed between the Buyer and the Seller to inspect and conduct structural analyses with respect to, any Owned Tower; provided, that such inspection or analysis shall be conducted only (a) during regular business hours, (b) with no less than two (2) Business Days prior written notice to the Seller, and (c) in a manner which will not unduly interfere with the operation of the applicable Station or the use of access to or egress from the applicable Owned Tower. To the extent that the results of any such inspection or analysis identify (i) structural or other material defects with respect to any Owned Tower or (ii) non-compliance by Seller with any Law that is applicable to any Owned Tower in respect of any Owned Tower (including the requirements of the FCC and the Federal Aviation Administration), then the Buyer shall notify the Seller thereof promptly following any such inspection or analysis (which notice, for the sake of clarification but without limitation of such obligation to provide prompt notice, shall be provided prior to the Closing) and such notice shall include an estimate of any investigation, monitoring and/or remedial costs that Buyer may reasonably determine are necessary to remedy or monitor such defect or non-compliance (collectively, the “Tower Remedial Costs”), together with supporting documentation and detail (including all information used or relied on by the Buyer in the preparation of such estimate of the Tower Remedial Costs to enable the Seller to evaluate the accuracy thereof), and if such notice sets forth Tower Remedial Costs to be paid after Closing in excess of [REDACTED], then the amount of such excess shall be recoverable under Section 9.1(v) (such excess, the “Tower Indemnity”), provided that the Seller shall have the right to dispute the results of any such inspection or analysis and the amount of the Tower Remedial Costs. Notwithstanding anything herein to the contrary, (A) if such notice sets forth Tower Remedial Costs in excess of [REDACTED], then each party shall have the right to terminate this Agreement upon written notice to the other party and (B) the Tower Indemnity shall be the Buyer’s sole remedy following the Closing related to the condition of any Owned Tower.
ARTICLE VI
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
Section 6.1.Taxes.
(a)The Seller shall prepare and timely file or shall cause to be prepared and timely filed each Tax Return for Prorated Taxes that is due on or before the Closing. The Buyer shall pay to the Seller promptly upon demand at or after the Closing the amount of any Taxes paid by the Seller to the extent constituting an Assumed Liability. The Buyer shall prepare and timely file or shall cause to be prepared and timely filed each Tax Return for Prorated Taxes that is due on or after the Closing Date. The Seller shall pay to the Buyer promptly upon demand the amount of any Taxes shown as due thereon to the extent constituting an Excluded Liability.
(b)In the case of any Prorated Taxes for any Straddle Period, the portion of such Prorated Taxes that is allocable to the portion of such Straddle Period ending on the Closing Date and
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that constitutes an Excluded Liability shall be deemed to equal the amount of such Taxes for the entire Straddle Period multiplied by a fraction the numerator of which is the number of calendar days in the portion of the Straddle Period ending at the end of the day immediately preceding the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period, and the remaining portion of such Prorated Taxes shall be allocable to the portion of such Straddle Period beginning on the Closing Date and shall constitute an Assumed Liability.
(c)The Seller and the Buyer shall (i) provide assistance to each other as reasonably requested in preparing and filing Tax Returns with respect to the Business and the Purchased Assets; (ii) make available to each other as reasonably requested all information, records, and documents relating to Taxes concerning the Business or the Purchased Assets; (iii) retain any books and records that could reasonably be expected to be necessary or useful in connection with any preparation by any other party of any Tax Return, or for any audit relating to Taxes with respect to the Business or the Purchased Assets; and (iv) cooperate fully, as and to the extent reasonably requested by any other party, in connection with any audit with respect to Taxes relating to the Business or the Purchased Assets.
(d)Any Transfer Taxes shall be borne equally by the Buyer and the Seller. The Buyer, with the Seller’s cooperation, shall be responsible for the preparation, execution and filing of all Tax Returns, questionnaires, applications or other documents regarding any Transfer Taxes.
Section 6.2.Employees; Employee Benefit Plans.
(a)Employment. As of or before the Closing, except as set forth on Schedule 6.2(a), the Buyer or any of its Affiliates shall offer employment to each Employee who (i) is not then on authorized leave of absence, sick leave, short or long term disability leave, military leave or layoff with recall rights (“Active Employees”); or (ii) is then on authorized leave of absence, sick leave, short-term disability leave, military leave or layoff with recall rights and who returns to active employment immediately following such absence and within six (6) months of the Closing Date, or such later date as required under applicable Laws (“Inactive Employees”). For the purposes hereof, all Active Employees and Inactive Employees who accept an offer of employment from the Buyer or any of its Affiliates and commence employment on the applicable Employment Commencement Date are hereinafter referred to collectively as the “Transferred Employees,” and the “Employment Commencement Date” as referred to herein shall mean (x) as to those Transferred Employees who are Active Employees, the Closing Date, and (y) those Transferred Employees who are Inactive Employees, the date on which the Transferred Employee begins employment with the Buyer or any of its Affiliates. The Buyer shall, or shall cause its applicable Affiliates to, employ at-will those Transferred Employees who do not have Employment Agreements with the Seller and provide cash compensation (consisting of base salary, and, as applicable, cash commission rate and annual cash bonus opportunity), benefits and severance benefits substantially the same as similarly situated employees of the Buyer or its applicable Affiliate (in each case, excluding, for clarity, equity, equity-based or other long-term incentives and defined benefit pension benefits). The initial terms and conditions of employment for those Transferred Employees who have Employment Agreements with the Seller shall be as set forth in such Employment Agreements, which shall, to the extent permitted under the applicable agreements, be assigned to and assumed by the Buyer.
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(b)Service Credit. For purposes of determining eligibility to participate, vesting and benefit accrual (other than benefit accrual under a defined benefit pension plan and the Buyer’s discretionary match under Buyer’s 401(k) Plan) under any plan maintained by the Buyer or any of its Affiliates in which Transferred Employees are eligible to participate following the Closing, the Buyer shall, and shall cause its Affiliates to, recognize or cause to be recognized for purposes of eligibility, waiting periods, vesting and benefit accruals each Transferred Employee’s service with the Seller, and with any predecessor employer, to the same extent recognized by the Seller as service with the Buyer or any of its applicable Affiliates to the same extent such service was recognized immediately prior to the Closing, except that such service need not be recognized to the extent such recognition would result in the duplication of benefits for the same period of service.
(c)401(k) Plan. Effective as of the Closing Date or the payroll period ending immediately after the Closing Date, the Seller shall have contributed to the existing tax-qualified defined contribution plan established or designated by the Seller (“Seller’s 401(k) Plan”) all matching or other employer contributions, if any, with respect to the Transferred Employees’ employment service rendered prior to the Closing Date (irrespective of any end-of-year service requirements otherwise applicable to such contributions) and cause the matching and other employer contribution amounts of all Transferred Employees under the Seller’s 401(k) Plan to become fully vested as of the Closing Date. Following the Closing Date, the Seller shall take all actions necessary or appropriate to ensure that under the terms of the Seller’s 401(k) Plan, each Transferred Employee with an account balance is eligible to receive a distribution as a result of the Closing. From and after the Closing, the Buyer shall permit each Transferred Employee who participates in Seller’s 401(k) Plan to elect to make direct rollovers of their account balances (including any outstanding loan balances) into a tax-qualified defined contribution plan established or designated by the Buyer or any of its applicable Affiliates (“Buyer’s 401(k) Plan”) as of the Closing (or as soon as practicable thereafter when Buyer’s 401(k) Plan is capable of accepting such rollovers), subject to compliance with applicable Law and subject to the reasonable requirements of Buyer’s 401(k) Plan. Such rollovers will be permitted by the Buyer of its applicable Affiliate only if they consist of the total account balance of the Transferred Employee. Further, only rollovers of cash and outstanding loans may be transferred to Buyer’s 401(k) Plan; and provided, further, that with respect to any loan balance transferred, subject to applicable Law and any required consent of individuals, any such loans may be reamortized to reflect any differences in payroll periods.
(d)Welfare Plans. The Seller shall retain responsibility for and continue to pay all medical, life insurance, disability and other welfare plan expenses and benefits for each Transferred Employee with respect to claims incurred under the terms of the Employee Plans by such Employees and their covered dependents prior to the Employment Commencement Date. Expenses and benefits with respect to claims incurred by Transferred Employees and their covered dependents on or after the Employment Commencement Date shall be the responsibility of the Buyer and its Affiliates. With respect to any welfare benefit plans maintained by the Buyer or any of its Affiliates in which the Transferred Employees are eligible to participate on or after the Employment Commencement Date, to the extent permitted by Laws, the Buyer shall, and shall cause its Affiliates to (i) provide Transferred Employees with coverage immediately on the Employment Commencement Date, (ii) cause there to be waived any eligibility requirements or pre-existing condition limitations and (iii) give effect, in determining any deductible, co-insurance and maximum out-of-pocket limitations, to amounts paid by such Transferred Employees (and their covered dependents) under the Employee Plans.
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(e)Vacation/Sick Leave. The Buyer shall assume as of the Closing all liabilities for unpaid, accrued vacation and sick leave of each Transferred Employee as of the Employment Commencement Date, giving service credit under the PTO policy of Buyer for service with the Seller and any predecessors of Seller, and shall permit Transferred Employees to use their accrued, but unused vacation/sick leave entitlement as of Closing in accordance with the Buyer’s PTO policy; provided, however, that, notwithstanding the foregoing, Buyer shall not assume any liability or obligation for accrued but unpaid “holiday time off” (and all such liabilities and obligations shall constitute Excluded Liabilities) and, prior to or at the Closing, the Seller shall pay and satisfy in full the amount of accrued but unpaid paid “holiday time off” with respect to the Transferred Employees. Three (3) days prior to the Closing Date, the Seller shall deliver Schedule 6.2(e) to the Buyer, which shall set forth the Seller’s liabilities for unpaid, accrued vacation and sick leave relating to the Transferred Employees projected as of the Closing Date. The Buyer shall receive a credit in the Closing Date Adjustments pursuant to Section 2.6 for the amount of the liabilities for unpaid, accrued vacation and sick leave assumed by the Buyer pursuant to this Section 6.2(e).
(f)Flexible Spending Accounts. Effective as of the Closing, the Buyer shall, or shall cause its applicable Affiliate to, allow eligible Transferred Employees to participate in the Buyer’s or such Affiliate’s flexible spending accounts for medical and dependent care expenses.
(g)Payroll Matters.
(i)The Seller and the Buyer shall, and the Buyer shall cause its applicable Affiliates to, follow the “standard procedures” for preparing and filing Internal Revenue Service Forms W-2 (Wage and Tax Statements), as described in Revenue Procedure 2004-53 for Transferred Employees. Under this procedure, (A) the Seller shall provide all required Forms W-2 to (1) all Transferred Employees reflecting wages paid and taxes withheld by the Seller prior to the Employment Commencement Date, and (2) all other employees and former employees of the Seller who are not Transferred Employees reflecting all wages paid and taxes withheld by the Seller, and (B) the Buyer (or one of its Affiliates) shall provide all required Forms W-2 to all Transferred Employees reflecting all wages paid and taxes withheld by the Buyer (or one of its Affiliates) on and after the Employment Commencement Date.
(ii)With respect to garnishments, tax levies, child support orders, and wage assignments in effect with the Seller on the Employment Commencement Date for Transferred Employees and with respect to which the Seller has notified the Buyer in writing, the Buyer shall, and shall cause its Affiliates to, honor such payroll deduction authorizations with respect to Transferred Employees and shall, or shall cause its Affiliates to, continue to make payroll deductions and payments to the authorized payee, as specified by a court order which was filed with the Seller on or before the Employment Commencement Date, to the extent such payroll deductions and payments are in compliance with applicable Laws, and the Seller will continue to make such payroll deductions and payments to authorized payees as required by Laws with respect to all other employees of the Business who are not Transferred Employees. The Seller shall, as soon as practicable after the Employment Commencement Date, provide the Buyer with such information in the possession of the Seller as may be reasonably requested by the Buyer and necessary for the Buyer
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or its Affiliates to make the payroll deductions and payments to the authorized payee as required by this Section 6.2(g).
(h)WARN Act. The Buyer shall not, and shall cause its Affiliates not to, take any action on or after the Closing Date that would cause any termination of employment of any employees by the Seller that occurs before the Closing to constitute a “plant closing” or “mass layoff” under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”) or any similar state or local Laws, or to create any liability to the Seller for any employment terminations under applicable Laws. The Buyer shall be responsible for all liabilities with respect to any amounts (including any severance, fines or penalties) payable under or pursuant to the WARN Act or any similar state or local Laws with respect to any Employees who do not become Transferred Employees as a result of the failure of the Buyer to extend offers of employment or continued employment as required by Section 6.2 or in connection with events that occur from and after the Closing, and the Buyer shall reimburse the Seller for any such amounts.
(i)No Third-Party Beneficiary. Without limiting the generality of Section 11.6, nothing in this Section 6.2, express or implied, is intended to confer on any Person (including any Transferred Employees and any other current or former employees of the Seller) other than the parties hereto and their respective successors and assigns, any rights, benefits, remedies, obligations or liabilities (including any third-party beneficiary rights) under or by reason of this Section 6.2. Accordingly, notwithstanding anything to the contrary in this Section 6.2, the parties expressly acknowledge and agree that this Agreement is not intended to create a contract between the Buyer, the Seller or any of their respective Affiliates, on the one hand, and any employee of the Seller on the other hand, and no employee of the Seller may rely on this Agreement as the basis for any breach of contract claim against the Buyer, the Seller or any of their respective Affiliates. Nothing in this Section 6.2 shall constitute an amendment to or modification of any Employee Plan or other compensation or benefit plan, program, policy, agreement or arrangement.
Section 6.3.Control of Operations Prior to Closing Date. Notwithstanding anything contained herein to the contrary, the sale of the Purchased Assets contemplated hereby shall not be consummated prior to the grant by the FCC of the FCC Consent. The Seller and the Buyer acknowledge and agree that at all times commencing on the date hereof and ending on the Closing Date, (x) nothing in this Agreement, including Section 5.4, shall be construed to give the Buyer any right to control, direct or otherwise supervise, or attempt to control, direct or otherwise supervise, any of the management or operations of any Station and (y) the Seller shall have complete control and supervision of the programming, operations, policies and all other matters relating to the Stations.
Section 6.4.Use of Names. The Seller is not conveying ownership rights or granting the Buyer a license to use any of the Retained Names and Marks and, after the Closing, the Buyer shall not and shall not permit any of its Affiliates to use in any manner the Retained Names and Marks or any word that is similar in sound or appearance to such names or marks. The parties acknowledge that the Retained Names and Marks may be present on and within the Purchased Assets and the presence of the Retained Names and Marks shall be removed or deleted within the periods of time set forth in the Transition Services Agreement. In the event the Buyer violates any of its obligations under this Section 6.4, the Seller may proceed against the Buyer in law or in equity for such damages or other relief as a court may deem appropriate. The Buyer acknowledges that a violation of this Section 6.4 may cause the Seller irreparable harm, which may not be adequately
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compensated for by money damages. The Buyer therefore agrees that in the event of any actual or threatened violation of this Section 6.4, the Seller shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against the Buyer or any such Affiliate of the Buyer to prevent any violations of this Section 6.4, without the necessity of posting a bond.
Section 6.5.Seller’s A/R. For a period of [REDACTED] (the “Collection Period”), the Buyer shall, without charge to the Seller or cost or expense to the Buyer, use commercially reasonable efforts to collect the Seller’s A/R in the ordinary course of business and shall apply all amounts collected from the Seller’s account debtors to the oldest account first, unless the advertiser disputes in good faith in writing an older account and designates the payment to a newer account. The Buyer shall not be obligated to affirmatively seek collection of the Seller’s A/R by litigation or other extraordinary methods of collection. Any amounts relating to the Seller’s A/R that are paid directly to the Seller shall be retained by the Seller. The Buyer shall not discount, adjust or otherwise compromise any Seller’s A/R and the Buyer shall refer any disputed Seller’s A/R to Seller. Within ten calendar days after the end of each fiscal month in the Collection Period, the Buyer shall deliver to the Seller a report showing Seller’s A/R collections through the end of such month and the Buyer shall make a payment, without offset, to the Seller equal to the amount of all such collections. At the end of the Collection Period, collection of any remaining Seller’s A/R shall be returned to the Seller.
Section 6.6.No Solicitation; Confidentiality.
(a)Without limitation of the Seller’s obligations under Section 5.3, from the date hereof until the earlier of the Closing Date or the termination of this Agreement, the Seller shall not, and shall not permit any of its Affiliates to, consummate any Restricted Acquisition Transaction. For purposes hereof, “Restricted Acquisition Transaction” means any transaction with any Person (other than Buyer or any of its Affiliates) involving the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets, but specifically excludes (i) the transactions contemplated by the Other Purchase Agreement and (ii) any transaction the consummation of which (together with the consummation of any other disposition, sale, merger or other transaction associated therewith, relating thereto or arising therefrom) the Seller reasonably determines (A) would not preclude the consummation of the purchase of the Purchased Assets hereunder or the consummation of the transactions contemplated by the Other Purchase Agreement and (B) would not require the Seller or surviving entity in any such Restricted Acquisition Transaction to divest any assets or broadcast television stations in any Market or in any Other Purchase Agreement Market.
(b)From the Closing Date until [REDACTED], the Seller shall not solicit, hire or attempt to hire for employment any Transferred Employee, without the prior written consent of the Buyer, except with respect to any such Transferred Employee who has been terminated by the Buyer; provided that nothing in this sentence shall prohibit the Seller from engaging in general solicitation that is not directed specifically to any such Transferred Employees or hiring any person who responds to any such general solicitation.
(c)From and after the Closing, the Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their representatives to, hold in
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confidence any and all non-public or otherwise confidential information existing at the Closing, whether written or oral, concerning the Business and the Stations, except to the extent that such information (i) is or has been published or becomes part of the public domain or otherwise is generally available to and known by the public through no fault of the Seller, any of its Affiliates or their respective representatives or (ii) is lawfully acquired by the Seller, any of its Affiliates or their respective representatives from and after the Closing from sources other than the Buyer or any of its Affiliates which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If the Seller, any of its Affiliates or their respective representatives are compelled to disclose any such information by judicial or administrative process or by other requirements of Law, the Seller shall, to the extent permitted by Law, provide prior notice to the Buyer in writing, and in so far as is practicable, consult with the Buyer regarding the disclosure of such information, and shall disclose only that portion of such information which the Seller is advised by its counsel is legally required to be disclosed; provided, however, that the Seller shall use its reasonable best efforts to obtain any appropriate protective order or other reasonable assurance, at the Buyer’s sole expense, that confidential treatment will be accorded such information. Nothing in this Section 6.6(c) shall limit or otherwise prohibit the Seller or any of its Affiliates from disclosing any confidential information that may be required in connection with (A) the filing of a Tax Return, (B) any Tax-related action, examination, audit, suit or other proceeding involving a Governmental Body or (C) prosecuting or defending any suit, action or proceeding between the parties arising out of or relating to this Agreement or the transactions contemplated hereby or exercising its rights under Section 9.4.
Section 6.7.Environmental Assessments. Within ninety (90) days from the date of this Agreement, the Buyer shall have the right, at its sole cost and expense, to engage an environmental consulting firm to conduct (a) a Phase I Environmental Site Assessment and Compliance Review, as such terms are commonly understood (a “Phase I Environmental Assessment”), with respect to the Real Property (in the case of any Leased Real Property, to the extent permitted under the terms of the applicable Real Property Lease or subject to the consent of any lessor required thereunder), and (b) subject to the Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), a Phase II Environmental review or any other test, investigation or review reasonably recommended in the Phase I Environmental Assessment (in the case of any Leased Real Property, to the extent permitted under the terms of the applicable Real Property Lease or subject to the consent of any lessor required thereunder); provided, that such environmental assessment, test, investigation or review shall be conducted only (i) during regular business hours, (ii) with no less than two (2) Business Days prior written notice to the Seller, (iii) in a manner which will not unduly interfere with the operation of the applicable Station or the use of access to or egress from the applicable Real Property, and (iv) in a manner which will not involve any use or operation of equipment or any sampling or testing of environmental media without the Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). Any damage to the Real Property caused by the Buyer and its consultants in conducting any such environmental assessment, test, investigation or review shall be repaired by the Buyer at its sole cost and expense. If any such environmental assessment, test, investigation or review identifies any recognized environmental condition with respect to the Real Property, the Buyer shall notify the Seller in writing of such environmental condition promptly after such environmental assessment, test, investigation or review. Following its receipt of such notice and prior to the Closing, the Seller shall use commercially reasonable efforts to remediate any such recognized environmental condition at its sole cost and expense. Any such remediation shall only be
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required to meet the most cost-effective standard as reasonably determined by the Seller and executed in a reasonable manner, in each case to become compliant with any applicable Environmental Laws. Notwithstanding anything herein to the contrary, if the reasonably estimated cost to remedy any environmental condition in the aggregate exceeds [REDACTED], then each party shall have the right to terminate this Agreement upon written notice to the other party.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
The obligations of the Seller under this Agreement to consummate the sale of the Purchased Assets contemplated hereby shall be subject to the satisfaction, fulfillment or, where legally possible, waiver, on or prior to the Closing Date, of the following conditions:
Section 7.1.No Breach of Covenants and Warranties. (a) The Buyer shall have performed and complied in all material respects with its covenants and agreements contained herein required to be performed or complied with by it as of or prior to the Closing; and (b) each of the representations and warranties of the Buyer contained in this Agreement shall be true and correct on the Closing Date as though made on the Closing Date (except to the extent that they expressly speak as of a specific date or time other than the Closing Date, in which case they need only have been true and correct as of such specified date or time), except where the failure of such representations and warranties to be true and correct (without giving effect to any qualifiers or exceptions relating to “materiality” set forth in such representations and warranties), individually or in the aggregate, has not had and would not be reasonably likely to have a material adverse effect on the ability of the Buyer to perform its obligations under this Agreement. In addition, the Buyer shall have delivered to the Seller a certificate, dated as of the Closing Date, signed by an executive officer of the Buyer and certifying as to the satisfaction of the conditions specified in this Section 7.1.
Section 7.2.No Restraint. There shall not be in effect any Order (whether temporary, preliminary or permanent) issued by any Governmental Body of competent jurisdiction preventing or prohibiting the consummation of the transactions contemplated by this Agreement or the Other Purchase Agreement.
Section 7.3.Certain Governmental Approvals. The FCC Consent shall have been granted and shall be effective.
Section 7.4.No Antitrust Proceedings. There shall be no pending or threatened in writing inquiry, investigation or litigation by any Governmental Body into whether either the transactions contemplated by this Agreement or the Other Purchase Agreement comply with the Antitrust Laws.
Section 7.5.Other Purchase Agreement. The closing contemplated under the Other Purchase Agreement shall have been consummated or shall be consummated concurrently with the Closing hereunder.
Section 7.6.Deliveries. The Buyer shall have made, or stand ready at the Closing to make, the deliveries to the Seller contemplated by Section 2.7(b).
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ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
The obligations of the Buyer under this Agreement to consummate the purchase of the Purchased Assets contemplated hereby shall be subject to the satisfaction, fulfillment or, where legally possible, waiver on or prior to the Closing Date, of the following conditions:
Section 8.1.No Breach of Covenants and Warranties. (a) The Seller shall have performed and complied with in all material respects its covenants and agreements contained herein required to be performed or complied with by it as of or prior to the Closing; and (b) each of the representations and warranties of the Seller contained in this Agreement shall be true and correct on the Closing Date as though made on the Closing Date (except to the extent that they expressly speak as of a specific date or time other than the Closing Date, in which case they need only have been true and correct as of such specified date or time), except where the failure of such representations and warranties to be true and correct (without giving effect to any qualifiers or exceptions relating to “materiality” or “Material Adverse Effect” set forth in such representations and warranties), would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect. In addition, the Seller shall have delivered to the Buyer a certificate, dated as of the Closing Date, signed by an executive officer of the Seller and certifying as to the satisfaction of the conditions specified in this Section 8.1.
Section 8.2.No Restraint. There shall not be in effect any Order (whether temporary, preliminary or permanent) issued by any Governmental Body of competent jurisdiction preventing or prohibiting the consummation of the transactions contemplated by this Agreement or the Other Purchase Agreement.
Section 8.3.Certain Governmental Approvals. The FCC Consent shall have been granted and shall be effective.
Section 8.4.No Antitrust Proceedings. There shall be no pending or threatened in writing inquiry, investigation or litigation by any Governmental Body into whether either the transactions contemplated by this Agreement or the Other Purchase Agreement comply with the Antitrust Laws.
Section 8.5.Other Purchase Agreement. The closing contemplated under the Other Purchase Agreement shall have been consummated or shall be consummated concurrently with the Closing hereunder.
Section 8.6.Closing Deliveries. The Seller shall have made, or stand ready at the Closing to make, the deliveries to the Buyer contemplated by Section 2.7(a).
Section 8.7.Material Adverse Effect. Since the date of this Agreement, no Material Adverse Effect shall have occurred.
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Section 8.8.Third Party Consents. The Required Consents shall have been obtained.
ARTICLE IX
INDEMNIFICATION
INDEMNIFICATION
Section 9.1.Indemnification by the Seller. From and after the Closing and subject to Section 11.1, the Seller shall indemnify and hold harmless the Buyer Group Members from and against any and all Losses and Expenses imposed upon, or incurred or suffered by, any Buyer Group Member as a result of or arising out of:
(i)any breach or inaccuracy of any representation or warranty made by the Seller contained in this Agreement (in any such case, for purposes of determining the amount of Losses but not for whether there has been a breach or inaccuracy, as such representation or warranty would read if all materiality and “Material Adverse Effect” qualifiers were deleted therefrom, other than with respect to the reference to “Material Adverse Effect” contained in Section 3.4(a));
(ii)any breach by the Seller of, or any other failure of the Seller to perform, any of its covenants, agreements or obligations pursuant to this Agreement;
(iii)the failure of the Seller to perform any Excluded Liabilities;
(iv)the Seller’s operation of the Business and/or ownership and/or use of the Purchased Assets prior to the Closing Date; or
(v)the Tower Indemnity.
Section 9.2.Indemnification by the Buyer. From and after the Closing and subject to Section 11.1, the Buyer shall indemnify and hold harmless the Seller Group Members from and against any and all Losses and Expense imposed upon, or incurred or suffered by, any Seller Group Member as a result of or arising out of:
(i)any breach or inaccuracy of any representation or warranty made by the Buyer contained in this Agreement (in any such case, for purposes of determining the amount of Losses but not for whether there has been a breach or inaccuracy, as such representation or warranty would read if all materiality qualifiers were deleted therefrom);
(ii)any breach by the Buyer of, or any other failure of the Buyer to perform, any of its covenants, agreements or obligations in this Agreement;
(iii)the failure of the Buyer to perform any of the Assumed Liabilities; or
(iv)except for claims in respect of which the Seller is obligated to indemnify the Buyer Group Members pursuant to Section 9.1, the Buyer’s (or any successor’s or assignee’s) operation of the Business and/or the ownership and/or use of the Purchased Assets on or after the Closing Date.
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Section 9.3.Notice of Claims; Determination of Amount.
(a)Any party seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the party or parties, as applicable, obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any certificate delivered hereunder upon which such claim is based. Subject to Section 11.1, the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3 shall not affect such Indemnified Party’s rights under this Article IX except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b)In calculating any Loss or Expense there shall be deducted (i) any insurance recovery actually received in respect thereof (netted against any reasonable out-of-pocket expenses and any increased premium incurred by the Indemnified Party in connection with such recovery), (ii) any recovery in respect thereof which is obtained from any other third Person (and no right of subrogation shall accrue hereunder to any such insurer or other third Person) and (iii) any Tax benefit realized by the Indemnified Party arising from any such Loss or Expense.
(c)After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article IX shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Losses and Expenses suffered by it.
Section 9.4.Third Person Claims.
(a)Notwithstanding anything to the contrary contained in Section 9.3, in order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly, but in any event within ten (10) Business Days, after receipt by such Indemnified Party of written notice of the third Person claim, which notification must include a copy of the written notice of the third Person claim that was received by the Indemnified Party (the “Third Person Claim Notice”). Thereafter, the Indemnified Party shall deliver to the Indemnitor, promptly, but in any event within five (5) Business Days, after the Indemnified Party’s receipt thereof, copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly, but in any event within five (5) Business Days, after receipt thereof and shall deliver to the Indemnitor promptly, but in any event within seven (7) Business Days, after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Subject to Section 11.1,
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the failure of any Indemnified Party to promptly provide a Third Person Claim Notice as required by this Section 9.4 shall not affect such Indemnified Party’s rights under this ARTICLE IX except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b)In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of a Third Person Claim Notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense (provided further that, if a conflict of interest arises that, under applicable principles of legal ethics, in the reasonable judgment of counsel to the Indemnified Party, would prohibit a single counsel from representing both the Indemnitor and the Indemnified Party in connection with the defense of such third Person claim, then the reasonable fees and expenses of such separate counsel of the Indemnified Party shall be paid by the Indemnitor). The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such proceeding, claim or demand. Prior to the time the Indemnified Party is notified by the Indemnitor as to whether the Indemnitor will assume the defense of such proceeding, claim or demand, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the parties with respect to such proceeding, claim or demand, including responding timely to legal process. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to confirm its election) within fifteen (15) days after the giving by the Indemnified Party to the Indemnitor of a Third Person Claim Notice, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of, or otherwise deal with, such proceeding, claim or demand. Notwithstanding the foregoing, the Indemnitor will not be entitled to control, and the Indemnified Party will be entitled to have control over, the defense or settlement of any third Person claim if (i) the third Person claim involves a criminal or quasi-criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party, (ii) the third Person claim seeks material injunctive or nonmonetary equitable relief, (iii) the applicable claimant in the third Person claim is a Governmental Body, or (iv) the Indemnitor failed or is failing to diligently prosecute or defend such third Person claim. Regardless of which party assumes the defense of such proceeding, claim or demand, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information that are relevant to such proceeding, claim or demand, and making each parties’ employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of such proceeding, claim or demand, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such proceeding, claim or demand without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnitor shall not consent to a settlement of, or the entry of any judgment arising from, any such proceeding, claim or demand without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (i) relates solely to monetary damages for which the Indemnitor shall be responsible and (ii) includes as an unconditional term thereof the release of the Indemnified Party from all liability with respect to such proceeding, claim or demand, in which event no such consent shall be required. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of
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competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within fifteen (15) days after the date of such notice.
(c)The party that has assumed the control or defense of any such proceeding, claim or demand made by a third Person against the other party shall (i) provide the other party with the right to participate in any meetings or negotiations with any Governmental Body or other third Person and reasonable advance notice of any such meetings or negotiations, (ii) provide the other party with the right to review in advance and provide comments on any draft or final documents proposed to be submitted to any Governmental Body or other third Person, and (iii) keep the other party reasonably informed with respect to such proceeding, demand or claim, including providing copies of all documents provided to, or received from, any Governmental Body or any other third Person in connection with such proceeding, demand or claim. The Buyer Group Members, on the one hand, and the Seller Group Members, on the other hand, covenant and agree to maintain the confidence of all such drafts and comments provided by the other.
(d)To the extent of any inconsistency between this Section 9.4 and Section 6.1(c) with respect to Taxes, the provisions of Section 6.1(c) shall control.
Section 9.5.Limitations; Subrogation; Exclusive Remedies.
(a)In any case where the Indemnified Party recovers from third Persons any amount in respect of a matter with respect to which the Indemnitor has indemnified it pursuant to this ARTICLE IX, the Indemnified Party shall promptly pay over to the Indemnitor the amount so recovered (after deducting therefrom the full amount of the Expenses incurred by it in procuring such recovery), but not in excess of any amount previously so paid by the Indemnitor to or on behalf of the Indemnified Party in respect of such matter.
(b)The Seller shall have no liability to the Buyer Group Members under Section 9.1(i) unless and until the aggregate amount of the Loss and Expense thereunder exceeds an amount equal to [REDACTED] (the “Threshold”), after which the Seller will be liable for all Loss and Expense in excess of the Threshold under Section 9.1(i); provided, however, that (x) claims for common law fraud shall not be subject to the Threshold and (y) claims for any Loss or Expense incurred by the Buyer Group Members arising out of or resulting from the breach or inaccuracy of any of the Fundamental Representations shall not be subject to the Threshold.
(c)The maximum aggregate liability of the Seller for all Loss and Expense of the Buyer Group Members pursuant to Section 9.1(i) shall not exceed [REDACTED] (the “Cap”); provided, however, that (x) claims for common law fraud shall not be subject to the Cap and (y) claims for any Loss or Expense incurred by the Buyer Group Members arising out of or resulting from the breach or inaccuracy of any of the Fundamental Representations shall not be subject to the Cap.
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(d)In the case where the Indemnitor makes any payment to the Indemnified Party in respect of any Loss, the Indemnitor shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party against any third Person in respect of the Loss to which such payment relates. The Indemnified Party and the Indemnitor shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights.
(e)Except for remedies that cannot be waived as a matter of law, claims arising from common law fraud, and injunctive and provisional relief, if the Closing occurs, this ARTICLE IX shall be the exclusive remedy for breaches of this Agreement (including any covenant, obligation, representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement) or otherwise relating to the subject matter of this Agreement, including any claims arising under any Environmental Laws.
Section 9.6.No Special Damages; Mitigation. Notwithstanding anything to the contrary contained in this Agreement, none of the parties hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, special or indirect damages, including loss of future profits, revenue or income, losses arising solely from diminution in value or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, except to the extent such damages are payable to a third Person. Each of the parties agrees to take all reasonable steps to mitigate their respective Losses and Expenses upon and after becoming aware of any event or condition which could reasonably be expected to give rise to any Losses and Expenses that are indemnifiable hereunder, including using its commercially reasonable efforts to obtain insurance proceeds or other recoveries from third Persons in respect thereof.
Section 9.7.Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated for Tax purposes only as an adjustment to the Purchase Price.
ARTICLE X
TERMINATION
TERMINATION
Section 10.1.Termination.
(a)Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated at any time prior to the Closing:
(i)by the mutual written consent of the Seller and the Buyer;
(ii)by the Seller, if a breach or failure to perform any of the covenants or agreements of the Buyer contained in this Agreement shall have occurred, or there shall be any inaccuracy of any of the representations or warranties of the Buyer contained in this Agreement, and such breach, failure to perform or inaccuracy either individually or in the aggregate would, if occurring or continuing on the Closing Date, give rise to the failure of a condition set forth in Section 7.1, and such breach, failure to perform or inaccuracy if curable, is not cured by, on or before the earlier of (i) the Termination Date or (ii) thirty (30) days following receipt of written notice by
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Buyer, or which by its nature or timing cannot be cured prior to the Termination Date; provided, however, that the Seller shall not have the right to terminate this Agreement pursuant to this Section 10.1(a)(ii) if the Seller is then in breach of any of its covenants or agreements contained in this Agreement or any of the representations or warranties of the Seller contained in this Agreement shall be inaccurate and such breach or inaccuracy would give rise to the failure of a condition set forth in Section 8.1;
(iii)by the Buyer, if a breach or failure to perform any of the covenants or agreements of the Seller contained in this Agreement shall have occurred, or there shall be any inaccuracy of any of the representations or warranties of the Seller contained in this Agreement, and such breach, failure to perform or inaccuracy either individually or in the aggregate would, if occurring or continuing on the Closing Date, give rise to the failure of a condition set forth in Section 8.1, and such breach, failure to perform or inaccuracy if curable, is not cured by, on or before the earlier of (i) the Termination Date or (ii) thirty (30) days following receipt of written notice by the Seller, or which by its nature or timing cannot be cured prior to the Termination Date: provided, however, that the Buyer shall not have the right to terminate this Agreement pursuant to this Section 10.1(a)(iii) if Buyer is then in breach of any of its covenants or agreements contained in this Agreement or any of the representations or warranties of the Buyer contained in this Agreement shall be inaccurate, and such breach or inaccuracy would give rise to the failure of a condition set forth in Section 7.1;
(iv)by the Seller or the Buyer, if any U.S. federal or state court of competent jurisdiction shall have issued a final and nonappealable Order permanently enjoining or otherwise prohibiting the consummation of the sale of the Purchased Assets contemplated hereby;
(v)by the Seller or the Buyer if the Closing shall not have been consummated on or before [REDACTED] (the “Termination Date”). Notwithstanding the foregoing, the right to terminate this Agreement under this Section 10.1(a)(v) shall not be available to any party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or observe the covenants and agreements of such party set forth in this Agreement;
(vi)by either the Seller or the Buyer, upon the termination of the Other Purchase Agreement for any reason; or
(vii)by either the Seller or the Buyer, pursuant to Section 5.7 or Section 6.7.
(b)The party desiring to terminate this Agreement pursuant to Section 10.1(a) (other than pursuant to Section 10.1(a)(i)) shall give written notice of such termination to the other party, as applicable.
(c)In the event that this Agreement shall be terminated pursuant to Section 10.1(a), all further obligations of the parties under this Agreement (other than Section 5.5, this
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ARTICLE X and ARTICLE XI, and, for the avoidance of doubt, the Confidentiality Agreement, which, in each case, shall remain in full force and effect) shall be terminated without further liability of any party; provided that nothing herein shall relieve any party from liability for any breach of this Agreement.
Section 10.2.Withdrawal of Certain Filings. In the event of termination under the provisions of this ARTICLE X, all filings, applications and other submissions relating to the transactions contemplated by this Agreement as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Body or other Person to which made.
ARTICLE XI
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 11.1.Survival.
(a)The representations and warranties of the parties contained in this Agreement shall survive for [REDACTED] ; provided, however, that the representations and warranties of the Seller contained in Sections 3.1 (Organization) and 3.2 (Authority) (the “Fundamental Representations”), and of the Buyer contained in Sections 4.1 (Organization) and 4.2 (Authority), shall survive for [REDACTED] ; further provided, that claims for common law fraud shall not be subject to such limitations or any other limitations contained in this Agreement.
(b)None of the covenants, agreements or obligations of the parties contained in this Agreement shall survive the consummation of the Closing, except to the extent such covenants, agreements and obligations contemplate performance after the Closing, in which case each such covenant, agreement and obligation shall survive until performed.
(c)No claim may be brought under this Agreement unless written notice describing in reasonable detail the facts giving rise to the claim is given on or prior to the last day of the applicable survival period. In the event such notice is given, the right to indemnification with respect thereto shall survive the applicable survival period until such claim is finally resolved and any obligations with respect thereto are fully satisfied.
Section 11.2.Confidential Nature of Information. Each party agrees that it will treat in confidence all documents, materials and other information which it shall have obtained regarding the other party or parties during the course of the negotiations leading to the consummation of the transactions contemplated hereby (whether obtained before or after the date of this Agreement), the investigation provided for herein and the preparation of this Agreement and other related documents, and, in the event the transactions contemplated hereby shall not be consummated, each party will return to the other party or parties all copies of nonpublic documents and materials which have been furnished in connection therewith. Without limiting the right of either party to pursue all other legal and equitable rights available to it for violation of this Section 11.2 by the other party, it is agreed that other remedies cannot fully compensate the aggrieved party for such a violation of this Section 11.2 and that the aggrieved party shall be entitled to injunctive relief to prevent a violation or continuing violation hereof.
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Section 11.3.Governing Law. This Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) shall be governed and construed in accordance with the internal Laws of the State of Delaware applicable to contracts made and wholly performed within the State of Delaware, without regard to any applicable conflicts of law principles that would result in the application of the Laws of any other jurisdiction.
Section 11.4.Exclusive Jurisdiction; Court Proceedings. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought exclusively in the Chancery Court of the State of Delaware and any state appellate court therefrom or, if such court lacks subject matter jurisdiction, the United States District Court sitting in New Castle County in the State of Delaware, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 11.5 shall be deemed effective service of process on such party. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER IN CONTRACT OR TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM INVOLVING ANY FINANCING SOURCE AND THEIR RESPECTIVE NONPARTY AFFILIATES).
Section 11.5.Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) when delivered by hand, by registered mail, by courier or express delivery service or (b) upon confirmation of receipt (other than an automatically-generated confirmation) when sent by electronic mail to the address or email address, as applicable, set forth beneath the name of such party below (or to such other address or email address, as applicable, as such party shall have specified in a written notice given to the other party hereto):
If to the Seller:
Gray Local Media, Inc.
445 Dexter Avenue, Suite 7000
Montgomery, AL 36104
Attn: General Counsel
Telephone: (334)206-1400
Email: legalnotices@graymedia.com
with a copy (which shall not constitute notice) to:
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Cooley LLP
1299 Pennsylvania Ave., NW
Suite 700
Washington, DC 20004
Attention: Maureen Nagle
Email: mnagle@cooley.com
If to the Buyer, to:
Scripps Media, Inc.
312 Walnut Street, 28th Floor
Cincinnati, Ohio 45202
Attention: Robert Kalutkiewicz, Senior Vice President, Corporate Development, Strategic Investment and Ventures
Email: robert.kalutkiewicz@scripps.com
with a copy (which shall not constitute notice) to:
Scripps Media, Inc.
312 Walnut Street, 28th Floor
Cincinnati, Ohio 45202
Attention: David Giles, Chief Legal Officer, and Robert Oestreicher, Senior Vice President, Corporate Counsel
Email: dave.giles@scripps.com and robert.oestreicher@scripps.com
with a copy (which shall not constitute notice) to:
Baker & Hostetler LLP
312 Walnut Street, Suite 3200
312 Walnut Street, Suite 3200
Cincinnati, Ohio 45202
Attention: Robert F. Morwood
Email: rmorwood@bakerlaw.com
Attention: Robert F. Morwood
Email: rmorwood@bakerlaw.com
Section 11.6.Successors and Assigns; Third Party Beneficiaries.
(a)This Agreement and all of its terms shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns, including any successor by a merger or conversion. Except as provided in this Section 11.6(a), this Agreement shall not be assigned by any party hereto. Any party hereto may assign or transfer any of its rights and obligations under this Agreement to any of its Affiliates upon written notice to the other party, provided that no such assignment or transfer materially delays the grant of the FCC Consent or any approval by the DOJ as contemplated by this Agreement required by Antitrust Law or any other applicable Law, and, provided further, that no such assignment or transfer shall operate to relieve a party of any of its liabilities or obligations hereunder.
(b)Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any Person other than the parties, successors and assigns permitted by this
52
Section 11.6, and the Buyer Group Members and Seller Group Members pursuant to ARTICLE IX, any right, remedy or claim under or by reason of this Agreement.
Section 11.7.Access to Records after Closing.
(a)For a period of [REDACTED] , the Seller and its representatives shall have reasonable access to all of the books and records of the Business transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the operations of the Business prior to the Closing Date. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by it pursuant to this Section 11.7(a). If the Buyer shall desire to dispose of any of such books and records prior to the expiration of such [REDACTED] period, it shall, prior to such disposition, give the Seller a reasonable opportunity, at the Seller’s expense, to segregate and remove such books and records as the Seller may select.
(b)For a period of [REDACTED], the Buyer and its representatives shall have reasonable access to all of the books and records relating to the Business which the Seller may retain after the Closing Date. Such access shall be afforded by the Seller upon receipt of reasonable advance notice and during normal business hours. The Buyer shall be solely responsible for any costs and expenses incurred by it pursuant to this Section 11.7(b). If the Seller shall desire to dispose of any of such books and records prior to the expiration of such [REDACTED] period, it shall, prior to such disposition, give the Buyer a reasonable opportunity, at the Buyer’s expense, to segregate and remove such books and records as the Buyer may select.
Section 11.8.Entire Agreement; Amendments. This Agreement, the Exhibits and Schedules referred to herein and the other documents delivered pursuant hereto contain the entire understanding of the parties hereto with regard to the subject matter contained herein or therein, and supersede all prior agreements, understandings or intents between or among any of the parties hereto. The parties hereto, by mutual agreement in writing, may amend, modify and supplement this Agreement.
Section 11.9.Interpretation. Article titles and headings to Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. The Schedules and Exhibits referred to herein shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein. For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation,” (ii) the word “or” is not exclusive and (iii) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein (a) to Articles, Sections, Exhibits and Schedules mean the Articles and Sections of, and the Exhibits and Schedules attached to, this Agreement and (b) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement. This Agreement, the Buyer Ancillary Agreements and the Ancillary Agreements shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. References to a “party hereto” or the “parties hereto” or similar phrases shall refer to the Seller and the Buyer. An asset or right shall be deemed to be “exclusively related” to or “exclusively
53
used in” the Business if in the ordinary course of the Business such asset or right is used solely in the Business and is not used by the other businesses and operations of the Seller.
Section 11.10.Waivers. Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the party or parties entitled to the benefit thereof in writing and signed by such party or parties. The failure of any party hereto to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
Section 11.11.Expenses. Except as otherwise expressly provided herein, each of the Seller and the Buyer will pay all of its own respective costs and expenses incident to its negotiation and preparation of this Agreement and to its performance and compliance with all agreements and conditions contained herein on its part to be performed or complied with, including the fees, expenses and disbursements of its counsel and accountants.
Section 11.12.Partial Invalidity. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein.
Section 11.13.Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be considered an original instrument, but all of which shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed by each of the parties and delivered to each of the Seller and the Buyer.
Section 11.14.Disclaimer of Warranties. The Seller makes no representations or warranties with respect to any projections, forecasts or forward-looking information provided to the Buyer. There is no assurance that any projected or forecasted results will be achieved. EXCEPT AS TO THOSE MATTERS EXPRESSLY COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, THE ANCILLARY AGREEMENTS AND THE CERTIFICATES DELIVERED BY THE SELLER PURSUANT TO SECTION 8.1, THE SELLER IS SELLING THE BUSINESS AND THE PURCHASED ASSETS ON AN “AS IS, WHERE IS” BASIS AND SELLER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES WHETHER EXPRESS OR IMPLIED. THE SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO IMPLIED WARRANTIES WHATSOEVER. The Buyer acknowledges that neither the Seller nor any of its representatives or Affiliates nor any other Person has made any representation or warranty, express or implied, as to the accuracy or completeness of any memoranda, charts, summaries or schedules heretofore made available to the Buyer or its representatives or Affiliates or any other information which is not included in this Agreement or the Schedules hereto, and neither the Seller nor any of its
54
representatives or Affiliates nor any other Person will have or be subject to any liability to the Buyer, any Affiliate of the Buyer or any other Person resulting from the distribution of any such information to, or use of any such information by, the Buyer, any Affiliate of the Buyer or any of their agents, consultants, accountants, counsel or other representatives. In making its determination to proceed with the transactions contemplated by this Agreement the Buyer and its Affiliates have relied solely on (a) the results of their own independent investigation and (b) the representations and warranties of the Seller expressly and specifically set forth in this Agreement and the Ancillary Agreements. The Buyer and its Affiliates expressly and specifically disclaim that they are relying upon or have relied upon any representation or warranty of any kind or nature, whether express or implied, not included in this Agreement or any Ancillary Agreement that may have been made by any Person, and acknowledge and agree that the Seller expressly and specifically disclaims any such other representations and warranties.
Section 11.15.Specific Performance. The parties agree that irreparable damage would occur in the event that any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached or the Closing was not consummated, and that money damages would not be an adequate remedy, even if available. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions, or any other appropriate form of specific performance or equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including the parties’ obligations to consummate the Closing) in any court of competent jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to post any bond or other security in connection with any such order or injunction.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
SELLER
| GRAY LOCAL MEDIA, INC. | ||||||||
By: | ||||||||
| Name: Kevin P. Latek | ||||||||
| Title: Executive Vice President | ||||||||
| GRAY TELEVISION LICENSEE, LLC | ||||||||
By: | ||||||||
| Name: Kevin P. Latek | ||||||||
| Title: Secretary | ||||||||
BUYER
| SCRIPPS MEDIA, INC. | ||||||||
By: | ||||||||
| Name: David Giles | ||||||||
| Title: Chief Legal Officer | ||||||||
| ION TELEVISION LICENSE, LLC | ||||||||
By: | ||||||||
| Name: David Giles | ||||||||
| Title: Chief Legal Officer | ||||||||
[Signature Page to Asset Purchase Agreement]
APPENDIX I
LIST OF BROADCAST TELEVISION STATIONS
1.Colorado Springs, CO – KKTV(TV)
2.Grand Junction, CO – KKCO(TV), KJCT-LP
3.Twin Falls, Idaho – KMVT(TV), KSVT-LD
EXHIBIT 10.02
KATC/WSYM
ASSET PURCHASE AGREEMENT
for
the SALE of TELEVISION STATIONS
LISTED ON APPENDIX I
by and among
SCRIPPS MEDIA, INC.,
SCRIPPS BROADCASTING HOLDINGS LLC,
ION TELEVISION LICENSE, LLC,
GRAY LOCAL MEDIA, INC.,
and
GRAY TELEVISION LICENSEE, LLC
Dated as of July 7, 2025
Table of Contents
| Page | |||||
ARTICLE I DEFINITIONS | 1 | ||||
Section 1.1. Definitions | 1 | ||||
ARTICLE II PURCHASE AND SALE OF PURCHASED ASSETS | 10 | ||||
Section 2.1. Purchase and Sale of Purchased Assets | 10 | ||||
Section 2.2. Excluded Assets | 12 | ||||
Section 2.3. Assumption of Liabilities; Excluded Liabilities | 13 | ||||
Section 2.4. Closing Date | 15 | ||||
Section 2.5. Purchase Price | 15 | ||||
Section 2.6. Prorations and Adjustments | 15 | ||||
Section 2.7. Closing Date Deliveries | 17 | ||||
Section 2.8. Further Assurances | 17 | ||||
Section 2.9. Allocation of Purchase Price | 19 | ||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER | 19 | ||||
Section 3.1. Organization | 20 | ||||
Section 3.2. Authority of the Seller | 20 | ||||
Section 3.3. Financial Statements | 21 | ||||
Section 3.4. Operations Since May 31, 2025 | 21 | ||||
Section 3.5. No Undisclosed Liabilities | 21 | ||||
Section 3.6. Taxes | 21 | ||||
Section 3.7. Sufficiency and Condition of Assets | 22 | ||||
Section 3.8. Governmental Permits; FCC Matters | 22 | ||||
Section 3.9. Real Property; Real Property Leases | 23 | ||||
Section 3.10. Intellectual Property | 24 | ||||
Section 3.11. Title to Tangible Personal Property | 24 | ||||
Section 3.12. Employees | 24 | ||||
Section 3.13. Employee Relations | 25 | ||||
Section 3.14. Contracts | 25 | ||||
Section 3.15. Status of Contracts | 26 | ||||
Section 3.16. No Violation, Litigation or Regulatory Action | 26 | ||||
Section 3.17. Insurance | 27 | ||||
Section 3.18. Employee Plans; ERISA | 27 | ||||
Section 3.19. Environmental Protection | 27 | ||||
Section 3.20. No Finder | 28 | ||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER | 28 | ||||
Section 4.1. Organization | 28 | ||||
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| Page | |||||
Section 4.2. Authority of the Buyer | 28 | ||||
Section 4.3. Litigation | 29 | ||||
Section 4.4. No Finder | 29 | ||||
Section 4.5. Qualifications as FCC Licensee | 29 | ||||
Section 4.6. Solvency | 30 | ||||
Section 4.7. Transaction Value | 30 | ||||
ARTICLE V ACTION PRIOR TO THE CLOSING DATE | 30 | ||||
Section 5.1. Access to the Business | 30 | ||||
Section 5.2. Notification of Certain Matters | 31 | ||||
Section 5.3. FCC Consent; Other Consents and Approvals | 31 | ||||
Section 5.4. Operations of the Stations Prior to the Closing Date | 33 | ||||
Section 5.5. Public Announcement | 34 | ||||
Section 5.6. Multi-Station Contracts | 34 | ||||
Section 5.7. Inspection of Owned Towers | 35 | ||||
ARTICLE VI ADDITIONAL AGREEMENTS | 36 | ||||
Section 6.1. Taxes | 36 | ||||
Section 6.2. Employees; Employee Benefit Plans | 36 | ||||
Section 6.3. Control of Operations Prior to Closing Date | 40 | ||||
Section 6.4. Use of Names | 40 | ||||
Section 6.5. Seller's A/R | 40 | ||||
Section 6.6. No Solicitation; Confidentiality | 40 | ||||
Section 6.7. Environmental Assessments | 41 | ||||
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER | 42 | ||||
Section 7.1. No Breach of Covenants and Warranties | 42 | ||||
Section 7.2. No Restraint | 43 | ||||
Section 7.3. Certain Governmental Approvals | 43 | ||||
Section 7.4. No Antitrust Proceedings | 43 | ||||
Section 7.5. Other Purchase Agreement | 43 | ||||
Section 7.6. Deliveries | 43 | ||||
ARTICLE VIII CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER | 43 | ||||
Section 8.1. No Breach of Covenants and Warranties | 43 | ||||
Section 8.2. No Restraint | 43 | ||||
Section 8.3. Certain Governmental Approvals | 44 | ||||
Section 8.4. No Antitrust Proceedings | 44 | ||||
Section 8.5. Other Purchase Agreement | 44 | ||||
Section 8.6. Closing Deliveries | 44 | ||||
Section 8.7. Material Adverse Effect | 44 | ||||
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| Page | |||||
Section 8.8. Third Party Consents | 44 | ||||
ARTICLE IX INDEMNIFICATION | 44 | ||||
Section 9.1. Indemnification by the Seller | 44 | ||||
Section 9.2. Indemnification by the Buyer | 45 | ||||
Section 9.3. Notice of Claims; Determination of Amount | 45 | ||||
Section 9.4. Third Person Claims | 46 | ||||
Section 9.5. Limitations; Subrogation; Exclusive Remedies | 48 | ||||
Section 9.6. No Special Damages; Mitigation | 48 | ||||
Section 9.7. Tax Treatment of Indemnification Payments | 49 | ||||
ARTICLE X TERMINATION | 49 | ||||
Section 10.1. Termination | 49 | ||||
Section 10.2. Withdrawal of Certain Filings | 50 | ||||
ARTICLE XI GENERAL PROVISIONS | 50 | ||||
Section 11.1. Survival | 50 | ||||
Section 11.2. Confidential Nature of Information | 51 | ||||
Section 11.3. Governing Law | 51 | ||||
Section 11.4. Exclusive Jurisdiction; Court Proceedings | 51 | ||||
Section 11.5. Notices | 52 | ||||
Section 11.6. Successors and Assigns; Third Party Beneficiaries | 53 | ||||
Section 11.7. Access to Records after Closing | 53 | ||||
Section 11.8. Entire Agreement; Amendments | 54 | ||||
Section 11.9. Interpretation | 54 | ||||
Section 11.10. Waivers | 54 | ||||
Section 11.11. Expenses | 54 | ||||
Section 11.12. Partial Invalidity | 54 | ||||
Section 11.13. Executive in Counterparts | 55 | ||||
Section 11.14. Disclaimer of Warranties | 55 | ||||
Section 11.15. Specific Performance | 55 | ||||
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EXHIBITS
Exhibit A - Form of Bill of Sale and Assignment and Assumption Agreement [OMITTED]
Exhibit B - Form of Assignment of Seller FCC Authorizations [OMITTED]
Exhibit C - Form of Transition Services Agreement [OMITTED]
Exhibit D - Form of Acknowledgment of Applicability [OMITTED]
SCHEDULES
[OMITTED]
iv
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of July 7, 2025 (this “Agreement”), by and among Scripps Media, Inc., a Delaware corporation (“Scripps”), Scripps Broadcasting Holdings LLC, a Nevada limited liability company and Affiliate of Scripps (“Seller Licensee”), and ION Television License, LLC, a Delaware limited liability company and Affiliate of Scripps (“ION” and together with Scripps and Seller Licensee, the “Seller”), on the one hand, and Gray Local Media, Inc., a Delaware corporation (“Gray”), and Gray Television Licensee, LLC, a Delaware limited liability company and Affiliate of Gray (“Buyer Licensee” and together with Gray, the “Buyer”), on the other hand. For the purposes of this Agreement all references to the Seller shall mean the Seller and its Affiliates.
W I T N E S S E T H :
WHEREAS, on the date of this Agreement, the Seller, together with certain of its direct and indirect subsidiaries, owns and operates the television broadcast stations identified in Appendix I hereto (each, a “Station” and collectively, the “Stations”), pursuant to certain authorizations issued by the Federal Communications Commission (the “FCC”);
WHEREAS, the Buyer desires to purchase the Purchased Assets and assume the Assumed Liabilities, and the Seller desires to sell to the Buyer the Purchased Assets and transfer the Assumed Liabilities, on the terms and subject to the conditions hereinafter set forth;
WHEREAS, at the Closing, Seller Licensee will assign the Seller FCC Authorizations to ION, and immediately thereafter and essentially instantaneous therewith, ION will assign the Seller FCC Authorizations to Buyer Licensee (the “Concurrent FCC Authorizations Pass-Through”); and
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), it is hereby agreed among the parties as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1.Definitions. As used in this Agreement, the following terms have the meanings specified or referred to in this Section 1.1:
“Acknowledgment of Applicability” has the meaning specified in Section 2.7(b).
“Acquisition Proposal” has the meaning specified in Section 6.7.
“Active Employees” has the meaning specified in Section 6.2(a).
“Affiliate” means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person. As used in this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) shall mean the possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning specified in the introductory paragraph hereof.
“Ancillary Agreements” means any certificate, agreement, document or other instrument to be executed and delivered in connection with the transactions contemplated by this Agreement.
“Antitrust Law” means the HSR Act, the Federal Trade Commission Act, as amended, the Sherman Act, as amended, the Clayton Act, as amended, and any applicable foreign antitrust Laws and all other applicable Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Appraisal” has the meaning specified in Section 2.9.
“Assigned Multi-Station Contract Rights” has the meaning specified in Section 5.6.
“Assignment of the Seller FCC Authorizations” has the meaning specified in Section 2.7.
“Assumed Liabilities” has the meaning specified in Section 2.3(a).
“Assumed Multi-Station Contract Obligations” has the meaning specified in Section 5.6.
“Bill of Sale and Assignment and Assumption Agreement” has the meaning specified in Section 2.7(a).
“Business” means the business of the Stations (and shall not include the Other Seller Stations or the other businesses or assets of the Seller).
“Business Day” means any day on which the principal offices of the Securities and Exchange Commission are open to accept filings and on which banks in the City of New York are not required or authorized to close.
“Buyer” has the meaning specified in the introductory paragraph hereof.
“Buyer Licensee” has the meaning specified in the introductory paragraph hereof.
“Buyer’s 401(k) Plan” has the meaning specified in Section 6.2(c).
“Buyer Ancillary Agreements” has the meaning specified in Section 4.2(a).
“Buyer Group Members” means the Buyer, its Affiliates, and each of their successors and assigns, and their respective directors, officers, employees and agents.
“Cap” has the meaning specified in Section 9.5(c).
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., and any regulations promulgated thereunder.
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“Claim Notice” has the meaning specified in Section 9.3(a).
“Closing” has the meaning specified in Section 2.4.
“Closing Date” has the meaning specified in Section 2.4.
“Closing Date Adjustments” has the meaning specified in Section 2.6(a).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collection Period” has the meaning specified in Section 6.5.
“Communications Act” means the Communications Act of 1934, as amended, and the rules and regulations of the FCC promulgated under the foregoing, in each case, as in effect from time to time.
“Compliance Showing” has the meaning specified in Section 5.3(a).
“Concurrent FCC Authorizations Pass-Through” has the meaning specified in the third recital hereof.
“Confidentiality Agreement” has the meaning specified in Section 5.1.
“Cutoff Time” means 11:59 P.M. (eastern time) on the date immediately prior to the Closing Date.
“DOJ” means the U.S. Department of Justice.
“Electing Party” has the meaning specified in Section 2.8(e).
“Employment Agreement” means any written contract or agreement of the Seller with any individual Employee pursuant to which the Seller has an actual or contingent liability to provide compensation and/or benefits in consideration for past, present or future services and which, for each Employment Agreement in effect as of the date hereof, is listed on Schedule 3.14.
“Employees” means the individuals employed by the Seller exclusively in connection with the Business, all of whom as of the date hereof are listed on Schedule 3.12, and any full-time, part-time and per diem employees who become employed by Seller exclusively in connection with the Business after the date hereof in accordance with Section 5.4; provided, however, that no such Person shall be considered an “Employee” if he or she is not employed by the Seller at the Closing. For purposes of the foregoing, an individual shall not be considered “not employed” by virtue of the fact that he or she is on authorized leave of absence, sick leave, short term disability leave or military leave. Notwithstanding the foregoing, individuals on long term disability leave will not be considered as “employed” for purposes of this Agreement.
“Employee Plan” means each (i) pension, retirement, profit sharing, deferred compensation, stock bonus or other similar plan, (ii) medical, vision, dental, disability, Code Section 125 cafeteria, life insurance or other employee welfare benefit plan (as defined in Section 3(1) of ERISA) and (iii) other similar plan, policy, program or arrangement (and any amendments thereto), in each case,
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whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to, by Seller under which (a) any Employee has any present or future right to benefits, (b) Seller has or would reasonably be expected to have any liability with respect to the Business, or (c) Buyer or any of its Affiliates would reasonably be expected to have any liability, contingent or otherwise, following the Closing.
“Employment Commencement Date” has the meaning specified in Section 6.2(a).
“Encumbrance” means any lien, claim, charge, security interest, mortgage, pledge, easement, conditional sale or other title retention agreement, defect in title, covenant or other restrictions of any kind, other than any license or option to license Intellectual Property.
“Environmental Law” means all applicable Laws relating to or addressing the prevention of pollution, the environment, human health, occupational health or safety, including but not limited to CERCLA, OSHA, RCRA, the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300(f) et seq.; the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; and any state equivalents thereof.
“Environmental Liabilities” has the meaning specified in Section 3.19(b).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Excluded Assets” has the meaning specified in Section 2.2.
“Excluded Liabilities” has the meaning specified in Section 2.3(b).
“Excluded Multi-Station Contracts” means those Multi-Station Contracts identified in Schedule 5.6 as the “Excluded Multi-Station Contracts” and which may be listed thereon by vendor or other counterparty thereto.
“Expense” means any and all expenses incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding incident to any matter indemnified against hereunder (including court filing fees, court costs, arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, investigators, expert witnesses, consultants, accountants and other professionals).
“FCC” has the meaning specified in the first recital hereof.
“FCC Applications” has the meaning specified in Section 5.3(a).
“FCC Consent” means action by the FCC (including action by staff acting on delegated authority) granting its consent to the FCC Applications.
“GAAP” means United States generally accepted accounting principles.
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“Governmental Body” means any foreign, federal, state, local or other governmental authority, or judicial or regulatory body.
“Governmental Consents” means (i) the FCC Consent, and (ii) all authorizations, consents, Orders and approvals of all Governmental Bodies, including any State Attorney General, that are or may become necessary for the execution, delivery and consummation of the transactions contemplated hereby.
“Governmental Permits” has the meaning specified in Section 3.8(a).
“Gray” has the meaning specified in the introductory paragraph hereof.
“Hazardous Materials” means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, or special waste, which is regulated or defined as “hazardous,” “toxic” or words of similar import pursuant to any Environmental Law, including asbestos, asbestos containing material, petroleum or petroleum-derived substance or waste, or any constituent of any such substance or waste.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Inactive Employees” has the meaning specified in Section 6.2(a).
“Included Multi-Station Contracts” means those Multi-Station Contracts identified in Schedule 5.6 as the “Included Multi-Station Contracts” and which may be listed thereon by vendor or other counterparty thereto.
“Indemnified Party” has the meaning specified in Section 9.3(a).
“Indemnitor” has the meaning specified in Section 9.3(a).
“Independent Accountant” has the meaning specified in Section 2.6(b).
“Intellectual Property” means (a) patents, (b) Trademarks, (c) copyrights, (d) registrations and applications for registration of any of the foregoing in (a)-(c), and (e) trade secrets, including advertising customer lists, mailing lists, processes, know-how and other proprietary or confidential information.
“ION” has the meaning specified in the introductory paragraph hereof.
“Knowledge of the Seller” means, as to a particular matter, the actual knowledge, after reasonable inquiry, of the following persons: (a) Jason Combs, Chief Financial Officer of Seller, (b) Dean Littleton, Executive Vice President, Media Broadcast Operations, of Seller, (c) David Giles, Chief Legal Officer of Seller, (d) Daniel Perschke, Senior Vice President, Controller, of Seller and (e) Robert Kalutkiewicz, Senior Vice President, Corporate Development, Strategic Investments and Ventures, of Seller, and (f) the individuals serving as general managers of each of the Stations.
“Laws” means any and all domestic (federal, state or local) or foreign or provincial laws, statutes, ordinances, rules, published regulations, Orders, awards, or agency policies, procedures, requirements or decrees promulgated by any Governmental Body.
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“Leased Real Property” has the meaning specified in Section 3.9(b).
“Like-Kind Exchange” has the meaning specified in Section 2.8(e).
“Loss” means any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, expenses, deficiencies or other charges.
“Market” means, with respect to each of the Stations, the “Designated Market Area,” as determined by The Nielsen Company, of such Station.
“Material Adverse Effect” means a material adverse effect on (i) the ability of the Seller to perform its obligations under this Agreement, or (ii) the assets, results of operations or financial condition of the Business, taken as a whole; provided, however, that for purposes of determining whether there has been or is reasonably likely to be a “Material Adverse Effect” for purposes of clause (ii), the results and consequences of the following events, occurrences, facts, conditions, changes, developments or effects shall not be taken into account: (a) any changes that generally affect the broadcast television industry in the Markets of the Stations, (b) resulting from the announcement by the Seller of its intention to sell the Business, including the announcement or pendency of this Agreement or the transactions contemplated hereby, or the facts, circumstances or events relating to any of the Buyer or its Affiliates, or actions taken by any of them including the impact thereof on relationships, contractual or otherwise, with agents, customers, suppliers, vendors, licensees, licensors, lenders, partners, employees or regulators, including the FCC, (c) the taking of any action expressly required by, or the failure to take any action expressly prohibited by, this Agreement, or the taking of any action at the written request or with the prior written consent of the Buyer, (d) any failure of the Business to meet internal or external projections or forecasts or any estimates of earnings, revenues or other metrics for any period (provided, however, that any event, occurrence, fact, condition, change, development or effect giving rise to such failure or change may be taken into account in determining whether there has been, or is reasonably likely to be, a Material Adverse Effect, except to the extent otherwise excluded hereunder), (e) any changes in the economy or capital, financial or securities markets generally, including changes in interest or exchange rates, (f) changes in Laws or generally accepted accounting principles (or the interpretation thereof) or in legal, regulatory or political conditions, (g) the commencement, escalation or worsening of any war or armed hostilities or the occurrence of acts of terrorism or sabotage occurring after the date hereof and (h) earthquakes, hurricanes, floods or other natural disasters; provided, that with respect to (a), (e), (f), (g), or (h), such change shall not have a disproportionate effect on the Business compared to other participants in the broadcast television industry in the Markets of the Stations.
“Multi-Station Contract” has the meaning specified in Section 5.6.
“MVPD” means any multi-channel video programming distributor, including cable systems, telephone companies and direct broadcast satellite systems.
“Order” means any order, judgment, injunction, award, stipulation, decree or writ handed down, adopted or imposed by, including any consent decree, settlement agreement or similar written agreement with, any Governmental Body.
“OSHA” means the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq., and any regulations promulgated thereunder.
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“Other Closing Date Adjustments” means the “Closing Date Adjustments” as defined in Section 2.6 of the Other Purchase Agreement.
“Other Purchase Agreement” means that certain Asset Purchase Agreement, dated as of the date hereof, as it may be amended from time to time, by and among Buyer, Scripps and ION.
“Other Purchase Agreement Closing” means the closing of the transactions contemplated by the Other Purchase Agreement.
“Other Purchase Agreement Market” means each “Market” as used and defined in the Other Purchase Agreement.
“Other Seller Stations” has the meaning specified in Section 5.6.
“Owned Real Property” has the meaning specified in Section 3.9(a).
“Owned Tower” means any broadcast communications tower used for any of the Stations, and all of the following associated elements: tower foundation, supporting elements, bolts, tower structures (including tower steel), cabinets, shelters, fencing, pads and gates, signs, utility lines, communication lines, conduits and meter boards, pads, anchors, caissons, lighting, lightning rods, tower lighting systems, foundations, rock compounds and rock access roads, the tower and compound grounding systems and all other structures and related Tangible Personal Property and improvements.
“Payment Date” has the meaning specified in Section 2.6(b).
“Permitted Encumbrance” means (a) liens for Taxes, assessments or other governmental charges applicable to the Real Property which are not yet due and payable or Taxes being contested in good faith by appropriate proceedings; (b) the obligations assumed by the Buyer under any leases included in the Assumed Liabilities; (c) zoning laws and ordinances and similar Laws that are not violated in any material respect by any existing improvement, provided such matters do not, individually or collectively, materially interfere with the use of the Real Property as currently used in the operation of the Business or materially and adversely impact the commercial value of the Real Property; (d) any right reserved to any Governmental Body to regulate the affected property; (e) in the case of any leased asset, (i) the rights of any lessor under the applicable lease agreement or any Encumbrance granted by any lessor or any Encumbrance that the applicable lease is subject to (to the extent any Encumbrance that the applicable lease is subject to is contained within the lease itself), (ii) any lien for Taxes, assessments or other governmental charges that are not yet due and payable or are being contested in good faith, (iii) any subleases specifically identified as such in any Schedule hereto and (iv) the rights of the grantor of any easement or any Encumbrance granted by such grantor on such easement property, so long as none of the foregoing such matters affecting a leased asset, individually or collectively, materially interferes with the operation of the Business in a manner consistent with the current use by the Seller or materially and adversely impacts the commercial value of the tenancy at the Leased Real Property; (f) inchoate materialmens’, mechanics’, workmen’s, repairmen’s or other like Encumbrances arising in the ordinary course of business for amounts that are not yet due and payable or that are being contested in good faith by appropriate proceedings; (g) restrictive covenants, easements, rights of way, encroachments, restrictions, and any state of facts that an accurate survey or physical inspection would show, provided such facts do not,
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individually or collectively, interfere in any material respect with the use of the Real Property as currently used in the operation of the Business or materially and adversely impact the commercial value of the Real Property; (h) for periods prior to the Closing Date, Encumbrances that will be released prior to or as of the Closing Date, including all mortgages and security interests securing indebtedness of the Seller; and (i) any other Encumbrance disclosed on Schedule 1.1(ii).
“Person” means any individual, corporation, limited liability company, partnership, trust, or any other non-Governmental Body or any Governmental Body.
“Phase I Environmental Assessment” has the meaning specified in Section 6.7.
“Program Rights” means all rights of the Stations to broadcast television programs or shows as part of the Stations’ programming, including all rights of the Stations under film and program barter agreements, sports rights agreements, news rights or service agreements, affiliation agreements and syndication agreements.
“Prorated Taxes” means all personal property, real property, intangible property and other ad valorem Taxes imposed on or with respect to the Business and/or the Purchased Assets for any Straddle Period.
“Purchased Assets” has the meaning specified in Section 2.1.
“Purchased Intellectual Property” has the meaning specified in Section 2.1(d).
“Purchase Price” has the meaning specified in Section 2.5.
“Quincy Final Judgment” means the final judgment entered in United States v. Gray Television, Inc. & Quincy Media, Inc., Case No. 1:21-cv-02041 (D.D.C. Oct. 25, 2021) in connection with the acquisition of Quincy Media, Inc. by the Seller and its Affiliates.
“RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and any regulations promulgated thereunder.
“Real Property” has the meaning specified in Section 3.9(b).
“Real Property Leases” has the meaning specified in Section 3.9(b).
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater or property.
“Required Consents” has the meaning specified in Section 5.3(d).
“Restricted Acquisition Transaction” has the meaning specified in Section 6.6(a).
“Retained Multi-Station Contract Obligations” has the meaning specified in Section 5.6.
“Retained Multi-Station Contract Rights” has the meaning specified in Section 5.6.
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“Retained Names and Marks” means all (a) Trademarks containing or incorporating the terms “Scripps” or “ION”, (b) other Trademarks owned by the Seller (other than Trademarks included in the Purchased Intellectual Property), (c) variations or acronyms of any of the foregoing, and (d) Trademarks confusingly similar to or dilutive of any of the foregoing.
“Scripps” has the meaning specified in the introductory paragraph hereof.
“Seller’s 401(k) Plan” has the meaning specified in Section 6.2(c).
“Seller” has the meaning specified in the introductory paragraph hereof.
“Seller FCC Authorizations” means those Governmental Permits issued to Seller Licensee by the FCC with respect to the Stations.
“Seller Group Members” means the Seller, its Affiliates, each of their successors and assigns, and their respective directors, officers, employees, agents and representatives.
“Seller Licensee” has the meaning specified in the introductory paragraph hereof.
“Seller’s A/R” has the meaning specified in Section 2.2(q).
“Solvent” when used with respect to any Person or group of Persons on a combined basis, means that, as of any date of determination, (A) the amount of the “fair saleable value” of the assets of such Person (or group of Persons on a combined basis) will, as of such date, exceed (1) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors, and (2) the amount that will be required to pay the probable liabilities of such Person (or group of Persons on a combined basis) on its existing debts (including contingent liabilities) as such debts become absolute and matured, (B) such Person (or group of Persons on a combined basis) will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date and (C) such Person (or group of Persons on a combined basis) will be able to pay its liabilities, including contingent and other liabilities, as they mature.
“Station” or “Stations” has the meaning specified in the first recital hereof.
“Station Agreements” has the meaning specified in Section 3.15.
“Straddle Period” means any taxable period beginning on or before and ending after the Closing Date.
“Tangible Personal Property” has the meaning specified in Section 2.1(c).
“Tax” means any federal, state, local or foreign net income, alternative or add-on minimum, gross income, gross receipts, property, sales, use, transfer, gains, license, employment, payroll, capital stock, escheat, environmental, franchise, social security, stamp, registration and value-added taxes, withholding or minimum tax, or other tax, together with any interest or any penalty, addition to tax or additional amount imposed by any Governmental Body.
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“Tax Return” means any return, declaration, report, claim for refund or other document relating to Taxes, including any schedule or attachment thereto, and amendment thereof.
“Termination Date” has the meaning specified in Section 10.1(a)(v).
“Third Person Claim Notice” has the meaning specified in Section 9.4(a).
“Threshold” has the meaning specified in Section 9.5(b).
“Tower Indemnity” has the meaning specified in Section 5.7.
“Tower Remedial Costs” has the meaning specified in Section 5.7.
“Trade Agreement” means any contract, agreement or commitment, oral or written, other than film and program barter agreements, pursuant to which a Station is obligated for commercial air time or commercial production services in consideration for any property or service in lieu of cash; provided, however, that Trade Agreements (and Assumed Liabilities with respect thereto) shall include only those agreements for which the obligation of a Station for commercial air time or commercial production services (a) was agreed upon in the ordinary course of business at the Station’s then-prevailing rates, and (b) does not extend for more than 52 weeks after the Closing Date.
“Trademarks” means trademarks, service marks, Internet domain names, trade dress, trade names, and corporate names, all applications and registrations for the foregoing, and all goodwill connected with the use thereof and symbolized thereby.
“Transfer Taxes” means all transfer, documentary, excise, sales, value added, goods and services, use, stamp, registration and other similar taxes, and all conveyance fees, recording charges and other similar fees and charges, incurred in connection with the consummation of the transactions contemplated by this Agreement.
“Transferred Employees” has the meaning specified in Section 6.2(a).
“Transition Services Agreement” has the meaning specified in Section 2.7(a).
“Treasury Regulations” means regulations promulgated by the United States Department of the Treasury under the Code.
“WARN Act” has the meaning specified in Section 6.2(h).
ARTICLE II
PURCHASE AND SALE OF PURCHASED ASSETS
PURCHASE AND SALE OF PURCHASED ASSETS
Section 2.1.Purchase and Sale of Purchased Assets. Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall, or shall cause its Affiliates to, sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase from the Seller, pursuant to this Agreement, free and clear of all Encumbrances (except for Permitted
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Encumbrances), all of the right, title and interest of the Seller to the assets and properties (excepting only the Excluded Assets) of every kind and description, real, personal or mixed, tangible or intangible, then owned or held by the Seller and used exclusively or necessary for use in the Business (herein collectively referred to as the “Purchased Assets”), including, all right, title and interest of the Seller as of Closing to the following:
(a)(i) The Seller FCC Authorizations and (ii) all other assignable Governmental Permits exclusively related to or necessary for the operation of the Stations, and including any applications therefor and renewals or modifications thereof between the date hereof and Closing;
(b)All Owned Real Property, together with all fixtures and improvements thereon, and appurtenances thereto;
(c)All machinery, equipment (including cameras, computers and office equipment), auxiliary and translator facilities, transmitting towers, transmitters, broadcast equipment, antennae, supplies, inventory (including all films, programs, records, tapes, recordings, compact discs, cassettes, spare parts and equipment), vehicles, furniture and other tangible personal property owned by the Seller and used or held for use exclusively in or necessary for the operation of the Business, except for any retirements or dispositions thereof made between the date hereof and the Closing in accordance with Section 5.4 (“Tangible Personal Property”), including the Tangible Personal Property listed on Schedule 2.1(c);
(d)All Intellectual Property owned or licensed by the Seller and used or held for use exclusively in or necessary for the operation of the Business (the “Purchased Intellectual Property”), including the call signs of the Stations, but, for the avoidance of doubt, excluding any Intellectual Property used in connection with any Other Seller Stations;
(e)(i) all contracts and agreements of the Seller to the extent such contracts and agreements are for the sale or barter of broadcast time on the Stations for advertising purposes; (ii) all contracts and agreements of the Seller to the extent such contracts or agreements are for the purchase or lease, as applicable, of merchandise, supplies, equipment or other personal property, or for the receipt of services, in each case used exclusively in or necessary for the operation of the Business; (iii) the Assigned Multi-Station Contract Rights; (iv) all non-competition, non-solicitation, and/or confidentiality agreements solely pertaining to the Stations or the Business; (v) all contracts and agreements listed or described in Schedule 3.14; and (vi) any other contract or agreement entered into by the Seller exclusively for the Business which (A) was entered into prior to the date hereof and is of the type described in clauses (b), (c), (g), (h) or (k) of Section 3.14, but which, by virtue of the threshold amounts set forth in such subsections, is not required to be listed in Schedule 3.14 or (B) is entered into after the date hereof consistent with the provisions of Section 5.4 of this Agreement;
(f)All claims or causes of action of the Seller against third parties solely to the extent that any such claims or causes of action arise out of the Purchased Assets or the Assumed Liabilities;
(g)All management and other systems (including computers and peripheral equipment), databases, computer software, disks and similar assets owned by the Seller which are used or held for use exclusively in or necessary for the operation of the Business, and all licenses of the Seller to the extent relating thereto;
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(h)All books and records of the Seller that relate exclusively to or are necessary for the operation of the Business, including all files, logs, programming information and studies, technical information and engineering data, news and advertising studies or consulting reports, client/advertiser lists, sales and audience data, credit and sales reports and sales correspondence exclusively relating to or necessary for the operation of the Business, and further including all personnel files with respect to all Transferred Employees, excluding records relating to Excluded Assets or the Other Seller Stations; and
(i)Websites, social media accounts and mobile apps used exclusively in or necessary for the operation of the Business.
Section 2.2.Excluded Assets. Notwithstanding the foregoing, the Purchased Assets shall not include the following (herein referred to as the “Excluded Assets”):
(a)Any cash or cash equivalents (including any marketable securities or certificates of deposit) of the Seller, other than petty cash held at the Stations;
(b)All bank and other depository accounts of the Seller;
(c)(i) Any contract or agreement that, by its terms, terminates or expires (and is not renewed or extended by the Seller) prior to the Closing, and (ii) the Retained Multi-Station Contract Rights;
(d)All claims, rights and interests of the Seller in and to any refunds of Taxes of any nature whatsoever, including all items of loss, deduction or credit for Tax purposes, in each case, relating to the Business, the Purchased Assets or the Assumed Liabilities for, or applicable to, periods (or portions thereof) ending on or prior to the Closing Date;
(e)Any rights, claims or causes of action of the Seller against third parties relating to the operations of the Business prior to the Closing Date (including all amounts payable to the Seller, if any, from the United States Copyright Office or such arbitration panels as may be appointed by the United States Copyright Office that relate to the Business prior to the Closing that have not been paid as of the Closing);
(f)All bonds held, contracts or policies of insurance, and prepaid insurance with respect to such contracts or policies;
(g)The Seller’s minute books, stock transfer books, records relating to formation or incorporation, Tax Returns and related documents and supporting work papers and any other records and returns relating to Taxes, assessments and similar governmental levies (other than real and personal property Taxes, assessments and levies imposed on the Purchased Assets) and any books and records not exclusively relating to or necessary for the operation of the Business;
(h)Any rights under any non-transferable shrink-wrapped or click-wrapped licenses of computer software and any other non-transferable licenses of computer software;
(i)All records prepared in connection with or relating to the sale, swap or transfer of the Stations, including bids or offers received from others and analyses relating to the Stations and the Purchased Assets;
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(j)The items designated in Schedule 2.2(j) as “Excluded Assets”;
(k)The Retained Names and Marks;
(l)All Intellectual Property of the Seller (other than the Purchased Intellectual Property);
(m)All real and personal, tangible and intangible assets of the Seller that are used or held for use in the operation of the Other Seller Stations (including, without limitation, any such assets that are used both in the operation of the Stations and in the operation of the Other Seller Stations);
(n)All records and documents relating to Excluded Assets or to liabilities other than Assumed Liabilities;
(o)All capital stock or other equity securities of the Seller or its Affiliates and all other equity interests in any entity that are owned beneficially or of record by the Seller or its Affiliates;
(p)All of the employee benefit agreements, plans or arrangements sponsored or maintained by the Seller or its Affiliates (including, without limitation, all Employee Plans) and any assets of any such agreement, plan or arrangement;
(q)Any intercompany receivables of the Business from the Seller;
(r)All accounts receivable outstanding at the Cutoff Time generated by the Business prior to the Closing (“Seller’s A/R”); and
(s)Any rights of or payment due to the Seller under or pursuant to this Agreement or the other agreements with the Buyer or any of its Affiliates contemplated hereby.
Section 2.3.Assumption of Liabilities; Excluded Liabilities.
(a)Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, as of the Closing, the Buyer shall assume and shall thereafter be obligated for, and shall agree to pay, perform and discharge in accordance with their terms, only the following obligations and liabilities of the Seller, whether direct or indirect, known or unknown (except to the extent such obligations and liabilities constitute Excluded Liabilities):
(i)the liabilities and obligations arising with, or relating to, the operation of the Stations, including the owning or holding of the Purchased Assets, on and after the Closing Date;
(ii)all liabilities and obligations arising on or after the Closing Date related to, associated with or arising out of (A) the occupancy, operation, use or control of any of the Real Property included in the Purchased Assets after the Closing Date or (B) the operation of the Station or the Business after the Closing Date, in each case with respect to foregoing clauses (A) and (B), (x) incurred or imposed as a
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requirement of any Environmental Law, including, without limitation, any Release or storage of any Hazardous Materials occurring after the Closing Date on, at or from (1) any real property owned, leased, or operated in connection with the Station or the Business after the Closing Date (including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder) (other than with respect to real property that is an Excluded Asset), (2) any real property or facility owned by a third Person to which Hazardous Materials generated by the Station or Business after the Closing Date were sent after the Closing Date or (3) any conditions on, under or in the Real Property that were created or which arose from the occupancy, operation, use or control of such Real Property after the Closing Date and which require remedial action under Environmental Laws and (y) excluding, for the avoidance of doubt, all Environmental Liabilities to the extent arising prior to the Closing Date;
(iii)(A) all liabilities and obligations under the Station Agreements and other contracts and agreements included as Purchased Assets and (B) the Assumed Multi-Station Contract Obligations, in each case only to the extent that such liabilities or obligations accrue on or after the Closing Date;
(iv)(x) all Taxes (other than any Prorated Taxes or Transfer Taxes) of the Buyer for any Tax period, (y) any Prorated Taxes for the portion of any Straddle Period beginning after the Closing Date (determined in accordance with Section 6.1) and (z) any Transfer Taxes that are the responsibility of the Buyer pursuant to Section 6.1; and
(v)all liabilities and obligations of the Buyer or its Affiliates pursuant to Section 6.2 hereof.
All of the foregoing to be assumed by the Buyer hereunder are referred to herein as the “Assumed Liabilities.”
(b)Excluded Liabilities. The Buyer shall not assume or be obligated for any of, and the Seller shall solely retain, pay, perform, defend and discharge all of, the liabilities or obligations of the Seller of any and every kind whatsoever, direct or indirect, known or unknown, absolute or contingent, not expressly assumed by the Buyer under Section 2.3(a) (herein referred to as “Excluded Liabilities”) and, notwithstanding anything to the contrary in Section 2.3(a), none of the following shall be “Assumed Liabilities” for purposes of this Agreement (and shall constitute Excluded Liabilities):
(i)(x) all Taxes (other than any Prorated Taxes or Transfer Taxes) of the Seller for any Tax period, (y) any Prorated Taxes for the portion of any Straddle Period prior to the Closing Date (determined in accordance with Section 6.1), and (z) any Transfer Taxes that are the responsibility of the Seller pursuant to Section 6.1;
(ii)other than as set forth in Section 6.2(e), any of the liabilities or obligations under the employee benefit agreements, plans or arrangements sponsored or maintained by the Seller (including, without limitation, all Employee Plans);
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(iii)any intercompany payables of the Business owing to the Seller or any of the Affiliates of the Seller;
(iv)the Retained Multi-Station Contract Obligations;
(v)any liabilities or obligations of the Seller under this Agreement or the Ancillary Agreements; and
(vi)the liabilities and obligations arising with, or relating to, the operation of the Stations, including the ownership or holding of the Purchased Assets, prior to the Closing Date, including all Environmental Liabilities arising prior to the Closing Date.
Section 2.4.Closing Date. Subject to any prior termination of this Agreement pursuant to Section 10.1, the purchase and sale of the Purchased Assets provided for in Section 2.1 (including the Concurrent FCC Authorizations Pass-Through) (the “Closing”) shall be consummated on the first day of the month that is at least 5 Business Days after the conditions set forth in Articles VII and VIII are satisfied or, if legally permissible, waived (other than those conditions that by their nature are to be satisfied (or validly waived) at the Closing, but subject to such satisfaction or waiver), at the offices of Cooley LLP, 1299 Pennsylvania Avenue, N.W., Suite 700, Washington, DC 20004, or remotely via electronic exchange of required Closing documentation in lieu of an in-person Closing, unless such date is changed by mutual agreement of the Seller and the Buyer (the “Closing Date”). All transactions contemplated herein to occur on and as of the Closing Date shall be deemed to have occurred simultaneously and to be effective as of 12:01 a.m. Eastern Time on such date.
Section 2.5.Purchase Price. The purchase price for the Purchased Assets (the “Purchase Price”) shall be equal to the consummation by Buyer of its obligations under the Other Purchase Agreement at the Other Purchase Agreement Closing, and subject to adjustment as provided in this Agreement.
Section 2.6.Prorations and Adjustments.
(a)All income and expenses arising from the Business (other than Prorated Taxes, which shall be governed by Section 6.1, and excluding Seller’s A/R), including, without limitation, Assumed Liabilities, prepaid expenses, annual regulatory fees payable to the FCC, power and utilities charges, and rents and similar prepaid and deferred items shall be prorated between the Seller and the Buyer in accordance with GAAP to reflect the principle that the Seller shall be entitled to all income and be responsible for all expenses arising from the Business through the Cutoff Time and the Buyer shall be entitled to all income and be responsible for all expenses arising from the Business after the Cutoff Time. Notwithstanding anything in this Section 2.6 to the contrary, (i) except as set forth herein, with respect to Trade Agreements assumed by the Buyer, if at the Cutoff Time, the Trade Agreements have an aggregate negative balance (i.e., the amount by which the value of air time the Stations are obligated to provide after the Cutoff Time exceeds the fair market value of corresponding goods and services to be received by the Stations after such date), there shall be no proration or adjustment, unless the aggregate negative balance of the Stations’ Trade Agreements exceeds [REDACTED] in which event only such excess shall be treated as prepaid time sales of the Stations, and adjusted for as a proration in the Buyer’s favor, (ii) there shall be no
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proration under this Section 2.6 to the extent there is an aggregate positive balance with respect to the Stations’ Trade Agreements and (iii) there shall be no proration under this Section 2.6 for Program Rights agreements except to the extent that any payments or performance due under such Program Rights agreements relate to a payment period that straddles the Cutoff Time, in which case the amount payable in the payment period will be prorated based on the number of days in such period. The prorations and adjustments to be made pursuant to this Section 2.6 are referred to as the “Closing Date Adjustments.”
(b)The parties agree that the Closing Date Adjustments shall not be paid at the Closing. Within ninety (90) days after the Closing, the Buyer shall deliver to the Seller a statement of any adjustments to the aforesaid estimate of the Closing Date Adjustments, and no later than the close of business on the thirtieth (30th) day after the delivery of such statement (the “Payment Date”), the Buyer shall pay to the Seller, or the Seller shall pay to the Buyer, as the case may be, any amount due as a result of the adjustment (or, if there is any good faith dispute, the undisputed amount). Except with respect to items that the Seller notifies the Buyer that it objects to prior to the close of business on the date that is at least one (1) Business Day prior to the Payment Date, the adjustments set forth in the Buyer’s statement shall be final and binding on the parties effective at the close of business on the Payment Date. If the Seller disputes the Buyer’s determinations or the Buyer disputes the Seller’s determinations, the parties shall consult with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties within thirty (30) days after the Payment Date. If such thirty (30) day consultation period expires, and the dispute has not been resolved, then the parties shall select BDO USA, LLP or, if such firm is unable to serve in such capacity, a mutually acceptable, nationally recognized independent accounting firm that does not then have a relationship with the Seller or the Buyer (the “Independent Accountant”), to resolve the disagreement and make a determination with respect thereto as promptly as practicable. The determination by the Independent Accountant on the matter shall be binding. If an Independent Accountant is engaged pursuant to this Section 2.6, the fees and expenses of the Independent Accountant shall be borne by the Seller and the Buyer in inverse proportion as such parties may prevail on the resolution of the disagreement, which proportionate allocation also will be determined by the Independent Accountant and be included in the Independent Accountant’s written report, and an appropriate adjustment and payment shall be made within three (3) Business Days of the resolution by the Independent Accountant, which resolution shall be rendered within thirty (30) days after such submission.
(c)Promptly (but not later than five (5) Business Days) after the final and binding determination of the later of (x) the Closing Date Adjustments pursuant to this Section 2.6 and (y) the Other Closing Date Adjustments pursuant to Section 2.6 of the Other Purchase Agreement, the amount of the Closing Date Adjustments and the amount of the Other Closing Date Adjustments shall be netted against each other, and Buyer or Seller, as the case may be, shall pay to other party, by wire transfer of immediately available funds to such bank accounts of such person as such person shall designate in writing, the net amount in accordance with the proration principles set forth in Section 2.6(a) hereof and Section 2.6(a) of the Other Purchase Agreement.
(d)With regard to cable and/or satellite transmission royalties to which any Station may be entitled for 2025, the parties agree that each of them is entitled to its pro rata share of such royalty payments, with the pro rata share for each party calculated according to the number of days in 2025 that the respective party owned such Station. The parties further agree that, if any
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Station is eligible to file cable and/or satellite claim(s) with the Copyright Royalty Board for 2025, then the Seller shall be responsible for filing such claim(s) no later than [REDACTED]. The parties further agree to cooperate in instructing the Copyright Royalty Board and the National Association of Broadcasters to distribute any royalties for 2025 between the parties in accordance with the terms of this Agreement.
Section 2.7.Closing Date Deliveries.
(a)Seller Closing Deliveries. At the Closing, the Seller shall deliver or cause to be delivered to the Buyer, in each case, duly executed by the Seller or Seller Licensee, as applicable, (i) a bill of sale and assignment and assumption agreement in substantially the form of Exhibit A (the “Bill of Sale and Assignment and Assumption Agreement”), providing for the conveyance of all of the Purchased Assets (other than the Owned Real Property and the Seller FCC Authorizations) and the assumption of all of the Assumed Liabilities, (ii) an assignment of the Seller FCC Authorizations, in substantially the form of Exhibit B (the “Assignment of the Seller FCC Authorizations”), assigning to the Buyer the Seller FCC Authorizations, (iii) a transition services agreement, substantially in the form of Exhibit C (the “Transition Services Agreement”), (iv) special or limited warranty deeds (in the customary and recordable form for the jurisdiction in which the applicable Owned Real Property is located) conveying to the Buyer the Owned Real Property, (v) all of the documents and instruments required to be delivered by the Seller pursuant to Article VIII, (vi) specific assignment and assumption agreements duly executed by the Seller relating to any agreements included as Purchased Assets that the Buyer and the Seller have determined to be reasonably necessary to assign such agreements to the Buyer and for the Buyer to assume the Assumed Liabilities thereunder and (vii) such other documents and instruments as the Buyer has determined to be reasonably necessary to consummate the transactions contemplated hereby, including, without limitation, a schedule listing all Purchased Assets that constitute current assets and a listing of all fixed assets included in the Purchased Assets of the Stations, in each case, as of the Closing Date.
(b)Buyer Closing Deliveries. At the Closing, the Buyer shall deliver to the Seller, duly executed by the Buyer, (i) the Bill of Sale and Assignment and Assumption Agreement, (ii) Assignment of the Seller FCC Authorizations, (iii) the Transition Services Agreement, (iv) all of the documents and instruments required to be delivered by the Buyer pursuant to Article VII, (v) specific assignment and assumption agreements duly executed by the Buyer relating to any agreements included as Purchased Assets that the Buyer and the Seller have determined to be reasonably necessary to assign such agreements to the Buyer and for the Buyer to assume the Assumed Liabilities thereunder, (vi) an acknowledgment of applicability, substantially in the form of Exhibit D (the “Acknowledgment of Applicability”), with respect to the consent decree to which the Stations are subject as disclosed in Schedule 3.16 and (vii) such other documents and instruments as the Seller has determined to be reasonably necessary to consummate the transactions contemplated hereby.
Section 2.8.Further Assurances.
(a)From time to time following the Closing, the Seller shall execute and deliver, or cause to be executed and delivered, to the Buyer such other instruments of conveyance and transfer as the Buyer may reasonably request or as may be otherwise necessary to effectively convey
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and transfer to, and vest in, the Buyer and put the Buyer in possession of, any part of the Purchased Assets.
(b)Without limiting Section 5.3(d), to the extent that any Station Agreement or other agreement or contract included as a Purchased Asset cannot be assigned without consent and such consent is not obtained prior to the Closing, (i) this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof, (ii) the Seller shall use all commercially reasonable efforts to provide the Buyer the benefits of any such agreement, (iii) to the extent that the Buyer actually receives the benefits of any such agreement, the Buyer shall perform or discharge on behalf of the Seller the obligations and liabilities under such agreement to the extent they would constitute Assumed Liabilities if such Station Agreement or other agreement or contract were effectively assigned to the Buyer and (iv) the Seller and the Buyer shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to obtain such consent (provided that the Seller, the Buyer and their respective Affiliates shall not have any obligation to offer or pay any consideration in order to obtain any such consent, nor shall the Buyer have any obligation to amend, modify or otherwise alter the terms of any such contract or agreement). In addition to the Buyer’s obligation pursuant to the foregoing sentence, as to any Station Agreement or other agreement or contract included as a Purchased Asset that is not effectively assigned to the Buyer as of the Closing Date but is thereafter effectively assigned to the Buyer, the Buyer shall, from and after the effective date of such assignment, assume, and shall thereafter pay, perform and discharge as and when due, all Assumed Liabilities of the Seller arising under such agreement to the extent accruing from and after the date of such assignment.
(c)The Buyer may obtain, at its sole option and expense, ALTA extended owner’s policies of title insurance for the Owned Real Property and lessee’s title insurance policies for the Leased Real Property to the extent permitted under the terms of the applicable Real Property Lease (or subject to the consent of any lessor required thereunder), in each case in form reasonably satisfactory to the Buyer, and, prior to or at the Closing, the Seller shall take commercially reasonable actions as reasonably requested by the Buyer to facilitate the Buyer’s procurement of such title insurance (including, if requested by the Buyer, by providing access to the Real Property (to the extent permitted under the terms of the applicable Real Property Lease in the case of Leased Real Property or subject to the consent of any lessor required thereunder) for survey and/or inspection, by providing an owner’s affidavit, a gap indemnity and other customary affidavits, certificates and documents as the title company may reasonably request). If the title commitments or surveys obtained by the Buyer in connection with securing such title insurance reveal any Encumbrance on the title or the Real Property other than Permitted Encumbrances, the Buyer shall notify the Seller in writing of such objectionable matter promptly after the Buyer becomes aware that such matter is not a Permitted Encumbrance, and the Seller agrees to use commercially reasonable efforts to remove such objectionable matter.
(d)From time to time following the Closing, the Buyer shall execute and deliver, or cause to be executed and delivered, to the Seller such other undertakings and assumptions as the Seller may reasonably request or as may be otherwise necessary to effectively evidence the Buyer’s assumption of and obligation to pay, perform and discharge the Assumed Liabilities.
(e)Each of the Seller and the Buyer shall have the right to assign its respective rights under this Agreement (but without release of its respective obligations herein and without
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release of the other party’s obligations herein) to a third party who may act as a “qualified intermediary” or an “exchange accommodation titleholder” with respect to this Agreement in accordance with the provisions of Section 1031 of the Code, the Treasury Regulations promulgated thereunder, and any corresponding state or local income Tax laws (such assignment and related transactions, a “Like-Kind Exchange”). If either party elects to engage in a Like-Kind Exchange, the party so electing (the “Electing Party”) shall notify the other party of its election in writing no later than five (5) days prior to the Closing, identifying those Purchased Assets that it intends to qualify as part of the Like-Kind Exchange. The Electing Party shall bear its own expenses in connection with any such election to engage in a Like-Kind Exchange. Each of the Seller and the Buyer, as the case may be, shall cooperate fully with the Electing Party, and take any action reasonably requested in writing by the Electing Party, in connection with enabling the transactions to qualify in whole or in part as a Like-Kind Exchange; provided, however, that such actions do not impose any liabilities, including any unreimbursed monetary obligations or costs, on the Seller or the Buyer and does not release the Buyer or the Seller from its obligations under this Agreement, as the case may be, and that the Electing Party shall promptly reimburse the other party for any third-party costs reasonably incurred in connection with such election, including as the result of any subsequent review of such election by any Governmental Body or any attendant Tax consequences.
Section 2.9.Allocation of Purchase Price. The Buyer and the Seller agree that the fair market value of the Purchased Assets will be appraised by Bond & Pecaro or another accounting or appraisal firm mutually agreed upon by the parties (the “Appraisal”). All costs and expenses of the accounting or appraisal firm in preparing the Appraisal shall be borne by the Buyer. Within ninety (90) days of the Closing Date, the Buyer shall deliver to the Seller a copy of the Appraisal and an allocation statement with its proposed allocations of the applicable portions of the Purchase Price in accordance with the Appraisal and Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provisions of state, local, or non-U.S. Law, as appropriate). From and after the date hereof and through such 90-day period, the Seller shall cooperate with the Buyer, as and to the extent reasonably requested by the Buyer, in connection with matters relating to the Appraisal and such allocations. If the Seller does not notify the Buyer prior to the close of business on the date that is thirty (30) days after the date of receipt by the Seller of the Appraisal and such allocation statement that it disputes any of the Buyer’s allocations, the allocations set forth in the Buyer’s allocation statement shall be final and binding on the parties and the parties shall complete and timely file any necessary Tax forms, and their respective income Tax Returns, in accordance with such allocations. If the Seller notifies the Buyer within such thirty (30) day period that it disputes any of the Buyer’s allocations, the parties shall negotiate in good faith to finalize such disputed allocation(s) no later than thirty (30) days after the date of receipt by the Buyer of such notice from the Seller. If the Buyer and the Seller are unable to agree on such allocation(s) within such thirty (30) day period, then the parties shall have no further obligation under this Section 2.9, and each party shall make its own determination of such allocation for tax reporting purposes, which determination, for the avoidance of doubt, shall not be binding on the other party.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby, the Seller represents and warrants to the Buyer as follows:
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Section 3.1.Organization. The Seller is organized, validly existing and in good standing under the laws of its state of incorporation or formation, as applicable. The Seller has the requisite organizational power and authority to operate the Stations as now operated by it, to use the Purchased Assets as now used by it and to carry on the Business as now conducted by it.
Section 3.2.Authority of the Seller.
(a)The Seller has the requisite organizational power and authority to execute and deliver this Agreement and the Ancillary Agreements to be executed and delivered by it pursuant hereto, to consummate the transactions contemplated hereby and thereby and to comply with the terms, conditions and provisions hereof and thereof.
(b)The execution, delivery and performance of this Agreement and the Ancillary Agreements by the Seller (to the extent a party thereto) have been duly authorized and approved by all necessary organizational action on the part of the Seller and do not require any further authorization or consent on the part of the Seller or its Affiliates. This Agreement is, and each other Ancillary Agreement when executed and delivered by the Seller (to the extent a party thereto) will be, a legal, valid and binding agreement of the Seller, enforceable in accordance with its respective terms, except in each case as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar laws affecting or limiting the enforcement of creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c)Except for the FCC Consent and as set forth in Schedule 3.2(c), none of the execution, delivery and performance by the Seller of this Agreement or the Ancillary Agreements, the consummation by the Seller of the transactions contemplated hereby or thereby or compliance by the Seller with or fulfillment by the Seller of the terms, conditions and provisions hereof or thereof will:
(i)conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation or a loss of rights under, or result in the creation or imposition of any Encumbrance upon any of the Purchased Assets under, (A) the certificate of incorporation, bylaws or other organizational documents of the Seller, (B) any Station Agreement, (C) any Governmental Permit, (D) any Order to which the Seller is a party or any of the Purchased Assets is subject or by which the Seller is bound, or (E) any indenture, note, mortgage, lease, guaranty or material agreement to which the Seller is a party, except, in the case of each of the foregoing clauses (B), (C), (D) or (E), as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; or
(ii)require the approval, consent, authorization or act of, or the making by the Seller of any declaration, filing or registration with, (A) any third Person under any Station Agreement or (B) any Governmental Body, except for such of the foregoing as are necessary pursuant to Section XI of the Quincy Final Judgment, and except, in any case, as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.
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Section 3.3.Financial Statements. Schedule 3.3 contains (a) the unaudited statements of income for the Business by Market for the years ended December 31, 2023 and December 31, 2024, and (b) the unaudited statement of income for the Business by Market for the five-month period ended May 31, 2025. Such statements of income (i) present fairly, in all material respects, the results of operations of the Business by Market for the respective periods covered thereby, and (ii) have been derived from the books and records of the Seller relating to the Business except for the adjustments expressly noted therein. The financial books and records of the Seller relating to the Business have been properly and accurately maintained in all material respects and have been maintained in accordance with sound business practices.
Section 3.4.Operations Since May 31, 2025.
(a)Except as set forth in Schedule 3.4(a), from and after May 31, 2025, there has been no change in the financial condition or the results of operations of the Business which, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect.
(b)Except as set forth in Schedule 3.4(b), from and after May 31, 2025, through the date of this Agreement, the Business has been conducted in all material respects in the ordinary course.
Section 3.5.No Undisclosed Liabilities. Except as set forth in Schedule 3.5, the Seller is not subject, with respect to the Business, to any liability (including unasserted claims, whether known or unknown), whether absolute, contingent, accrued or otherwise, which would be required to be disclosed on a balance sheet of the Business prepared in accordance with GAAP, except for liabilities (a) incurred in the ordinary course of business and which, except to the extent constituting Assumed Liabilities pursuant to Section 2.3(a), will constitute Excluded Liabilities, (b) to be performed in the ordinary course of business pursuant to the Station Agreements and other agreements included in the Purchased Assets, or (c) which, individually or in the aggregate, are not material in amount.
Section 3.6.Taxes Except as set forth in Schedule 3.6:
(a)The Seller (i) has filed all income and other material Tax Returns with respect to the Business and the Purchased Assets required to be filed prior to the date hereof and all such Tax Returns were true, correct and complete in all material respects, and (ii) has paid all Taxes reflected on such Tax Returns.
(b)The Seller is in compliance in all material respects with the provisions of the Code relating to the withholding and payment of Taxes with respect to the Business and the Purchased Assets and has, within the time and in the manner prescribed by Law, withheld from employee wages and paid over to the proper Governmental Body all required amounts.
(c)There are no Encumbrances for Taxes on any of the Purchased Assets other than Permitted Encumbrances.
(d)(i) The Seller has not received any written notice from any Governmental Body that any Tax Return relating to the Business or the Purchased Assets is currently under audit or
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examination by any Governmental Body, and (ii) there are no suits, actions, proceedings or, to the Knowledge of the Seller, investigations pending with respect to any Taxes relating to the Business or the Purchased Assets.
(e)No extension or waiver of statutes of limitations has been given or requested with respect to any Taxes of the Seller in respect of the Business that is currently in effect.
(f)The representations and warranties contained in this Section 3.6 and in Section 3.18(b) are the sole and exclusive representations and warranties of the Seller relating to Taxes.
Section 3.7.Sufficiency and Condition of Assets. Except for the Excluded Assets and the assets and services to be provided pursuant to the Transition Services Agreement, the Purchased Assets constitute all the assets and properties, whether tangible or intangible, whether personal, real or mixed, wherever located, that are reasonably necessary to operate the Stations following the Closing in all material respects as presently operated by the Seller. The buildings, structures, facilities, fixtures and other improvements included in the Purchased Assets (i) are in operating condition and good repair (ordinary wear and tear excepted) and (ii) are available for immediate use in the operations of the Stations as currently conducted.
Section 3.8.Governmental Permits; FCC Matters.
(a)Seller Licensee holds the Seller FCC Authorizations, each of which was validly issued by the FCC and is in full force and effect. Seller Licensee holds or possesses these and all other material registrations, licenses, permits, approvals and regulatory authorizations from a Governmental Body that are reasonably necessary to entitle it to own or lease, operate and use the assets of the Stations and to carry on and conduct the Business substantially as conducted immediately prior to the date of this Agreement (herein collectively called “Governmental Permits”). Schedule 3.8(a) sets forth a list of each of the Seller FCC Authorizations that are material to the operations of the Stations as of the date of this Agreement. The Seller FCC Authorizations constitute all registrations, licenses, franchises, permits, approvals and regulatory authorizations issued by the FCC to Seller Licensee in respect of the Stations and held by Seller Licensee, and constitute all FCC authorizations necessary for the operation of the Stations as of the date of this Agreement.
(b)Seller Licensee has fulfilled and performed its obligations in all material respects under each of the Governmental Permits. Each of the Governmental Permits is valid, subsisting and in full force and effect and has not been revoked, suspended, canceled, rescinded or terminated. To the Knowledge of the Seller, no Governmental Body has threatened in writing to revoke, suspend, cancel rescind or terminate, or commence any action to revoke, suspend, cancel rescind or terminate, any material Governmental Permit.
(c)Each of the Stations is being operated in accordance with the Seller FCC Authorizations and in compliance in all material respects with the Communications Act and all other Laws applicable to the Stations, including, with respect to all towers and antennas used in connection with the Business, all applicable rules, regulations and requirements of the Federal Aviation Administration. Except as disclosed in Schedule 3.8(c), there are no applications pending before the FCC relating to any of the Stations and there is not (i) pending, or, to the Knowledge of the Seller,
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threatened, any material action or legal proceeding, other than actions or proceedings affecting broadcast television stations generally, by or before the FCC to revoke, suspend, cancel, rescind, terminate, materially adversely modify or refuse to renew in the ordinary course any Seller FCC Authorization (other than, in the case of modifications, proceedings to amend the FCC rules of general applicability), or (ii) issued or outstanding, by or before the FCC, any (A) order to show cause, (B) notice of violation, (C) notice of apparent liability or (D) order of forfeiture, in each case, against the Stations or Seller Licensee with respect to the Stations that has resulted or would reasonably be expected to result in any action described in the foregoing clause (i) with respect to such Seller FCC Authorizations. Except as set forth in Schedule 3.8(c), neither Seller Licensee nor any Station has entered into a consent decree applicable to any Station, or entered into a tolling agreement or waived any statute of limitations relating to any Station pursuant to which the FCC may assess any fine or forfeiture or take any other action with respect to any FCC investigation or proceeding, that would be binding on the Buyer and any Station as of and after the Closing Date. The Seller FCC Authorizations have been issued by the FCC for full terms customarily issued by the FCC for each class of Station, and the Seller FCC Authorizations are not subject to any condition except for those conditions appearing on the face of the Seller FCC Authorizations and conditions applicable to broadcast licenses generally. Seller Licensee has (i) paid or caused to be paid all FCC regulatory fees due and payable by it in respect of the Stations, and (ii) timely filed all material registrations and reports required to have been filed by it with the FCC relating to the Seller FCC Authorizations. This Section 3.8 does not relate to Governmental Permits for environmental, health and safety matters, which are the subject solely of Section 3.19.
Section 3.9.Real Property; Real Property Leases.
(a)Schedule 3.9(a) contains a brief description of all real property owned by the Seller exclusively for use in or necessary for the operation of the Business (the “Owned Real Property”). With respect to each parcel of Owned Real Property:
(i)the Seller has good and valid fee simple title (free and clear of any Encumbrances other than Permitted Encumbrances) to the Owned Real Property;
(ii)except as set forth in Schedule 3.9(a)(ii), the Seller has not leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and
(iii)to the Knowledge of the Seller, there are no unrecorded outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein.
(b)Schedule 3.9(b) sets forth a list of each lease or similar contract or agreement under which the Seller is a lessee of, or occupies, exclusively for use in the Business, any real property owned by any third Person (each such lease, contract or agreement, a “Real Property Lease,” and the property leased under the Real Property Leases is referred to herein as “Leased Real Property” and together with the Owned Real Property, as the “Real Property”). Seller has a valid leasehold interest in, sub leasehold interest in, or other occupancy right with respect to, the Leased Real Property. With respect to each Real Property Lease:
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(i)except as set forth in Schedule 3.9(b)(i), the Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and
(ii)the Seller has not pledged, mortgaged or otherwise granted an Encumbrance (other than Permitted Encumbrances) on its leasehold interest in any Leased Real Property.
(c)To the Knowledge of the Seller, neither the whole nor any part of the Owned Real Property nor any Leased Real Property is subject to any pending or threatened suit for condemnation or other taking by any public authority. The Seller’s use and occupancy of the Real Property complies in all material respects with all regulations, codes, ordinances and statutes of all applicable Governmental Bodies.
Section 3.10.Intellectual Property.
(a)Schedule 3.10(a) contains a list of all patents and patent applications, trademark, service mark and copyright registrations and applications for registration, social media accounts, mobile apps, Websites and Internet domain name registrations, in each case, that are included in the Purchased Intellectual Property. To the Knowledge of the Seller, (i) each registration included in the Purchased Intellectual Property is valid and enforceable and (ii) each registration and pending application included in the Purchased Intellectual Property is subsisting.
(b)To the Knowledge of the Seller, the Business is not infringing, misappropriating or otherwise violating any Intellectual Property owned by any third party in any material respect. The Buyer acknowledges that the representations and warranties set forth in this Section 3.10(b) are the only representations and warranties the Seller makes in this Agreement with respect to any activity that constitutes, or otherwise with respect to, infringement, misappropriation or other violation of Intellectual Property.
(c)As of the date hereof, there are no actions, suits or proceedings by or before any court or any Governmental Body which are pending or, to the Knowledge of the Seller, threatened in writing regarding or disputing the ownership, registrability or enforceability, or use by the Seller, of any Purchased Intellectual Property, other than the review of pending patent and trademark applications by applicable Governmental Bodies. The Seller is not a party to any outstanding Order that restricts, in any material respect, the use or ownership of any Purchased Intellectual Property.
Section 3.11.Title to Tangible Personal Property. The Seller has good and valid title to or a valid leasehold or license interest in all of the Tangible Personal Property free and clear of all Encumbrances, except for Permitted Encumbrances.
Section 3.12.Employees. Schedule 3.12 contains: (a) a list of all full-time, part-time and per diem employees of the Seller as of June 1, 2025 whose employment relates exclusively to the Business; and (b) the following information as of the date hereof with respect to each such employee: (i) job title, (ii) date of hire, (iii) rate of compensation, including annual base salary or hourly wage rate (as applicable) and bonus opportunity, (iv) principal work location and employing
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entity, (v) leave status, and (vi) status as per diem, full-time or part-time. One (1) week prior to the Closing Date, the Seller will deliver to the Buyer an updated Schedule 3.12 containing the foregoing information as of a then-recent date, which shall include Employees hired following the date of this Agreement.
Section 3.13.Employee Relations.
(a)The Seller is not a party to any labor agreement or collective bargaining agreement in respect of the Stations or covering any Employee.
(b)Except as disclosed on Schedule 3.13, no charge, suit or legal action against the Seller in respect of the Stations relating to Laws concerning employment, employees and/or the workplace is pending or, to the Knowledge of the Seller, threatened before the National Labor Relations Board, any state labor relations board or any court, tribunal or other Governmental Body. As of the date hereof, there is no strike or other material labor dispute pending or, to the Knowledge of the Seller, threatened in respect of the Stations.
Section 3.14.Contracts. Except as set forth in Schedule 3.14, Schedule 3.9(b) or Schedule 5.6, as of the date hereof, the Seller is not party to or bound by:
(a)any contract for the purchase, sale, license or lease of assets used or to be used in the Business under which it would reasonably be expected that the Business would make annual payments of [REDACTED] or more during any twelve (12) month period or the remaining term of such contract;
(b)any programming, film or syndication agreement relating to the Business under which it would reasonably be expected that the Business would make annual payments of [REDACTED] or more during any twelve (12) month period or the remaining term of such contract;
(c)any retransmission consent agreement with any MVPDs with more than [REDACTED] paid subscribers with respect to any Station or Stations;
(d)any contract or agreement that is a “local marketing agreement”, time brokerage agreement, joint sales agreement, shared services agreement, management services agreement, local news sharing agreement or similar contract applicable to the Business;
(e)any partnership, joint venture or other similar contract or agreement applicable to the Business;
(f)any affiliation agreement applicable to the Business;
(g)any contract or agreement for capital expenditures with respect to the Business for an amount in excess of [REDACTED] during any twelve (12) month period or the remaining term of such contract;
(h)any contract with on-air talent or any Employment Agreement that involves a commitment for annual consideration in excess of [REDACTED] ;
(i)any Real Property Lease;
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(j)any national sales representation agreement applicable to the Business;
(k)all agreements regarding any Station’s ATSC 3.0 transition;
(l)any contract that limits or restricts the Business from (i) engaging in any business, (ii) competing with any Person, or (iii) owning, operating, selling, transferring, pledging or otherwise disposing of the Purchased Assets (excluding, for purposes of this clause (iii), non-assignment provisions of contracts);
(m)any contract granting to any Person (i) an option or a first refusal, first-offer or similar preferential right to purchase or acquire any of the Purchased Assets or (ii) pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers of the Business, including any contract relating to the Business which contains a “most favored nation” provision, in each case, that would be material to the Business or any Station; or
(n)any contract (other than any contract of the type described in clauses (a) through (m) above) that is applicable to the Business that is not terminable by the Seller without penalty on ninety (90) days’ notice or less and which is reasonably expected to involve the payment by the Seller after the date hereof of more than [REDACTED] during any twelve (12) month period or the remaining term of such contract.
Section 3.15.Status of Contracts. Except as set forth in Schedule 3.15, each of the leases, contracts and other agreements required to be listed in Schedule 3.9(b) or Schedule 3.14 (collectively, the “Station Agreements”) constitutes a valid and binding obligation of the Seller and, to the Knowledge of the Seller, the other parties thereto, and is in full force and effect (in each case, subject to bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)). The Seller is not in breach in any material respect of, or default in any material respect under, any Station Agreement and, to the Knowledge of the Seller, (i) no other party to any Station Agreement is in breach in any material respect of, or default in any material respect under, any Station Agreement, and (ii) no event has occurred which would result in such a breach of, or default under, any Station Agreement (in each case, with or without notice or lapse of time or both). True and complete copies of each of the Station Agreements, together with all amendments thereto, have heretofore been made available to the Buyer by the Seller.
Section 3.16.No Violation, Litigation or Regulatory Action. Except as set forth in Schedule 3.16:
(a)The Seller is in compliance in all material respects with all Laws and Orders applicable to the Purchased Assets, the Stations or the Business; and
(b)Since January 1, 2023 and through the date of this Agreement, the Seller has not received any written notice of violation of any applicable Laws; and
(c)As of the date hereof, there are no material actions, suits or proceedings by or before any court or other Governmental Body which are pending or, to the Knowledge of the Seller, threatened in writing against Seller, in respect of the Purchased Assets, any Station or the Business.
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Section 3.17.Insurance. The Seller maintains, in respect of the Purchased Assets, the Stations and the Business, policies of fire and extended coverage and casualty, liability and other forms of insurance in such amounts and against such risks and losses as are in the judgment of the Seller prudent for the Business. Except as set forth in Schedule 3.17 with respect to the Business, (i) there is no outstanding claim as of the date hereof under any such insurance policy and (ii) Seller is not in default in any material respect under any such insurance policy.
Section 3.18.Employee Plans; ERISA.
(a)Schedule 3.18(a) sets forth a list of each Employee Plan in effect as of the date of this Agreement.
(b)All Employee Plans are in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws and the applicable rules and regulations promulgated thereunder.
(c)Except as set forth in Schedule 3.18(c), neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, either alone or in combination with another event (whether contingent or otherwise), will (i) entitle any current or former Employee to any payment or benefit; (ii) increase the amount of compensation or benefits due to any Employee; or (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefit with respect to any Employee.
Section 3.19.Environmental Protection.
(a)Except as set forth in Schedule 3.19:
(i)The Business is in compliance in all material respects with all Environmental Laws;
(ii)The Seller has, in respect of the Business, obtained all Governmental Permits required under Environmental Law necessary for its operation. The Seller is in compliance in all material respects with all terms and conditions of such Governmental Permits;
(iii)The Seller is not, with respect to the Business, the subject of any pending or, to the Knowledge of the Seller, threatened in writing, action, claim, complaint, investigation or notice of noncompliance or potential responsibility or other proceedings alleging any failure of the Business to comply with, or liability of the Business under, any Environmental Law; and
(iv)To the Knowledge of the Seller, there has been no Release of Hazardous Materials at, under, about or from any Real Property reasonably expected to (A) require the Seller to conduct any investigation, remediation or other response action under any Environmental Law or (B) otherwise result in Losses.
(b)To the Knowledge of the Seller, the Seller has no Environmental Liabilities that would reasonably be expected to have a Material Adverse Effect. As used herein,
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“Environmental Liabilities” are any claims, demands, or liabilities relating to Environmental Law which (i) arise out of or in any way relate to the operations or activities of any of the Stations, or any real property at any time owned, operated or leased by the Seller with respect to the Business, whether contingent or fixed, actual or potential, and (ii) arise from or relate to actions occurring (including any failure to act) or conditions existing on or before the Closing Date.
(c)The representations and warranties contained in this Section 3.19 are the sole and exclusive representations and warranties relating to Environmental Law or Hazardous Materials.
Section 3.20.No Finder. The Seller is not obligated to pay any fee or commission to any broker, finder or intermediary for or on account of the transactions contemplated by this Agreement for which the Buyer may become liable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
REPRESENTATIONS AND WARRANTIES OF THE BUYER
As an inducement to the Seller to enter into this Agreement and to consummate the transactions contemplated hereby, the Buyer represents and warrants to the Seller as follows:
Section 4.1.Organization. The Buyer is organized, validly existing and in good standing under the laws of the state of its organization or formation, as applicable. The Buyer has the requisite organizational power and authority to own, lease and operate the properties and assets used in connection with its business as currently being conducted or to be acquired pursuant hereto.
Section 4.2.Authority of the Buyer.
(a)The Buyer has the requisite organizational power and authority to execute and deliver this Agreement and all of the other agreements and instruments to be executed and delivered by the Buyer pursuant hereto (collectively, the “Buyer Ancillary Agreements”), to consummate the transactions contemplated hereby and thereby and to comply with the terms, conditions and provisions hereof and thereof.
(b)The execution, delivery and performance of this Agreement and the Buyer Ancillary Agreements by the Buyer have been duly authorized and approved by all necessary organizational action on the part of the Buyer and its Affiliates and do not require any further authorization or consent on the part of the Buyer or any of its Affiliates. This Agreement is, and each other Buyer Ancillary Agreement when executed and delivered by the Buyer or any of its Affiliates and the other parties thereto will be, a legal, valid and binding agreement of the Buyer or such Affiliates party thereto, enforceable in accordance with its respective terms, except in each case as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization or other similar laws affecting or limiting the enforcement of creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c)Except for the FCC Consent and as set forth in Schedule 4.2, none of the execution, delivery and performance by the Buyer of this Agreement, or by the Buyer or any of its
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Affiliates, as applicable, of the Buyer Ancillary Agreements to which it is a party, the consummation by the Buyer or its Affiliates, as applicable, of the transactions contemplated hereby or thereby or compliance by the Buyer or any of its Affiliates, as applicable, with or fulfillment by the Buyer or its Affiliates, as applicable, of the terms, conditions and provisions hereof or thereof will:
(i)conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation or a loss of rights under, or result in the creation or imposition of any Encumbrance upon any assets of the Buyer under, (A) the certificate of incorporation, bylaws or other organizational documents of the Buyer, or (B) any indenture, note, mortgage, lease, guaranty or material agreement, or any Order, to which the Buyer or any of its Affiliates is a party; or
(ii)require the approval, consent, authorization or act of, or the making by the Buyer or any of its Affiliates of any declaration, filing or registration with, any third Person (including any Governmental Body), except for such of the foregoing as are necessary pursuant Section XI of the Quincy Final Judgment, and except, in any case, as would not, individually or in the aggregate, be reasonably likely to prevent or materially delay the consummation of the transactions contemplated by this Agreement.
Section 4.3.Litigation. None of the Buyer or any of its Affiliates is a party to any action, suit or proceeding pending or, to the knowledge of the Buyer, threatened which, if adversely determined, would reasonably be expected to restrict the ability of the Buyer to consummate promptly the transactions contemplated by this Agreement. There is no Order to which the Buyer or any of its Affiliates is subject which would reasonably be expected to restrict the ability of the Buyer to consummate promptly the transactions contemplated by this Agreement.
Section 4.4.No Finder. None of the Buyer or any of its Affiliates, or any party acting on any of their behalf, has paid or become obligated to pay any fee or commission to any broker, finder or intermediary for or on account of the transactions contemplated by this Agreement.
Section 4.5.Qualifications as FCC Licensee. Subject to the FCC’s approval of the Compliance Showing, the Buyer is legally, financially and otherwise qualified to be the licensee of, and to acquire, own, operate and control, the Stations under the Communications Act, including the provisions relating to media ownership and attribution, foreign ownership and control, and character qualifications. Subject to the FCC’s approval of the Compliance Showing, to Buyer’s knowledge, there are no facts or circumstances regarding the Buyer’s qualifications that would, under the Communications Act or any other applicable Laws, (i) disqualify the Buyer as the assignee of the Seller FCC Authorizations with respect to the Stations or as the owner and operator of the Stations, (ii) materially delay the FCC’s processing of the FCC Applications, or (iii) cause the FCC to impose a material condition or conditions on its granting of the FCC Consent, other than those of general applicability. Other than the FCC’s approval of the Compliance Showing, no waiver of or exemption from, whether temporary or permanent, any provision of the Communications Act, or any divestiture or other disposition by the Buyer or any of its Affiliates of any asset or property, is required to be
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obtained or effected by the Buyer in order for Buyer to hold the Seller FCC Authorizations under the Communications Act.
Section 4.6.Solvency. The Buyer is Solvent as of the date of this Agreement and will, immediately after giving effect to all of the transactions contemplated by this Agreement, be Solvent at and after the Closing Date.
Section 4.7.Transaction Value. In accordance with the HSR Act and its rules and regulations, the Buyer has determined in good faith the fair market value of the Purchased Assets and determined that their value is less than the HSR Act’s $126.4 million size-of-transaction threshold for 2025.
ARTICLE V
ACTION PRIOR TO THE CLOSING DATE
ACTION PRIOR TO THE CLOSING DATE
The respective parties hereto covenant and agree to take the following actions between the date hereof and the Closing Date:
Section 5.1.Access to the Business. The Seller shall afford to the officers and authorized representatives of the Buyer and its Affiliates (including independent public accountants, attorneys and consultants) reasonable access during normal business hours, and upon reasonable prior notice, to the offices, properties, employees and business and financial records of the Business and the Purchased Assets, including the right to inspect such properties and make copies of such business and financial records, and shall furnish to the Buyer, its Affiliates, or their respective authorized representatives such additional information concerning the Business and the Purchased Assets as shall be reasonably requested; provided, however, that the Seller shall not be required to violate any obligation of confidentiality or other obligation under applicable Law to which the Seller is subject in discharging their obligations pursuant to this Section 5.1. The Buyer agrees that any such access shall be conducted in such a manner as not to interfere unreasonably with the operations of the Business or the Seller. Prior to the Closing, the Seller shall provide the Buyer with the statements of income of the Business by Market for any calendar quarterly period ended within 45 days following the end of such quarterly period and for any calendar annual period within 75 days following the end of such annual period. Notwithstanding the foregoing, the Seller shall not be required to (i) take any action which would constitute a waiver of attorney-client or other privilege or would compromise the confidential information of the Seller not related to the Business, (ii) supply the Buyer with any information which, in the reasonable judgment of the Seller, the Seller is under a contractual or legal obligation not to supply or (iii) except pursuant to Section 6.7 and subject to the terms thereof, permit the Buyer or any of its Affiliates to conduct any sampling of soil, water, sediment or building material. Any information disclosed to the Buyer by the Seller under this Section 5.1 shall be held in accordance with the Mutual Non-Disclosure Agreement, dated as of [REDACTED] (the “Confidentiality Agreement”), by and between Gray and Scripps.
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Section 5.2.Notification of Certain Matters.
(a)The Buyer, on the one hand, and the Seller, on the other hand, shall promptly notify the other upon becoming aware of any material breach of any representation or warranty of such party contained in this Agreement.
(b)Each party shall promptly notify the other of any action, suit or proceeding that shall be instituted or threatened against such party to restrain, prohibit or otherwise challenge the legality of any transaction contemplated by this Agreement. The Seller shall promptly notify the Buyer, and the Buyer shall promptly notify the Seller, of any lawsuit, claim, proceeding or investigation that may be threatened, brought, asserted or commenced against the other which would have been listed in Schedule 3.16 or would be an exception to Section 4.3 if such lawsuit, claim, proceeding or investigation had arisen prior to the date hereof.
Section 5.3.FCC Consent; Other Consents and Approvals.
(a)As promptly as practicable after the date hereof, but in any event no later than ten (10) Business Days hereafter, the Buyer and its Affiliates, as applicable, shall file, and the Seller and Seller Licensee shall file, with the FCC the necessary applications requesting its consent to the Assignment of the Seller FCC Authorizations to the Buyer, as contemplated by this Agreement (the “FCC Applications”). The Seller shall and the Buyer shall, or shall cause its Affiliates to, cooperate in the preparation of such applications and will diligently take, or cooperate in the taking of, all commercially reasonable steps, to provide any additional information required by the FCC, and shall use reasonable best efforts to obtain promptly the FCC Consent. The Seller, on the one hand, and the Buyer, on the other hand, shall bear the cost of FCC filing fees relating to the FCC Applications equally. The Buyer and the Seller shall oppose any petitions to deny or other objections filed with respect to the FCC Applications to the extent such petition or objection relates to any such party or its Affiliates. Neither the Seller nor the Buyer shall, and each shall cause its Affiliates not to, take any intentional action that would, or intentionally fail to take such action the failure of which to take would, reasonably be expected to have the effect of preventing or materially delaying the receipt of the FCC Consent. The parties agree that they will cooperate to amend the FCC Applications as may be necessary or required to obtain the timely grant of the FCC Consent. As may reasonably be necessary to facilitate the grant of the FCC Consent, in the event that in order to obtain the FCC Consent in an expeditious manner, it is necessary for the Seller or any of its Affiliates to enter into a customary assignment, assumption, tolling, or other similar arrangement with the FCC to resolve any complaints with the FCC relating to the Stations, the Seller shall enter, or cause its Affiliates, as applicable, to enter, into such a customary assignment, assumption, tolling or other arrangement with the FCC. If the Closing Date shall not have occurred for any reason within the original effective period of the FCC Consent, and neither party hereto shall have terminated this Agreement pursuant to Section 10.1, the Seller and the Buyer shall jointly request extensions of the effective period of the FCC Consent until the Closing Date occurs or this Agreement is otherwise terminated; provided, however, no such extension of the FCC Consent shall limit the right of either party hereto to exercise such party’s rights under Section 10.1. The Buyer and the Seller acknowledge that under the rules and policies announced by the FCC as of the date of this Agreement, the FCC’s local television ownership rule requires the parties to submit a showing demonstrating compliance with the FCC’s local television ownership rule (the “Compliance Showing”). The Buyer and the Seller shall
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cooperate fully in the preparation of the Compliance Showing and shall promptly respond to requests from the FCC to provide information concerning the Compliance Showing or the FCC Applications.
(b)As promptly as practicable after the date hereof, but in any event no later than ten (10) Business Days hereafter, the Buyer shall provide such notification to the United States as is required under the Quincy Final Judgment with respect to the transactions contemplated by this Agreement, and shall request early termination of the waiting periods set forth in Section XI of the Quincy Final Judgment. The Buyer, at its sole cost and expense, shall comply as promptly as reasonably practicable with any requests for additional information issued to the Buyer or any of its Affiliates under Section XI of the Quincy Final Judgment. The Buyer shall be responsible for the cost of any fees payable to the United States in connection with the notifications and information described in this Section 5.3(b).
(c)Subject to the terms and conditions herein, the Seller and the Buyer shall use their respective reasonable best efforts to consummate and make effective the transactions contemplated hereby and to cause the conditions set forth in Article VII and Article VIII to be satisfied as promptly as reasonably practicable after the date hereof, including (i) using their respective reasonable best efforts to obtain all necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and making of all required filings and submissions with, any Governmental Body or any other third party required by such party in connection with the transactions contemplated by this Agreement or the Other Purchase Agreement, including any approval by the DOJ of the sale of the Stations to Buyer pursuant to this Agreement required by applicable Law as well as any other consents under any Antitrust Laws or communications or broadcast Laws that may be required by any U.S. federal, state or local antitrust or competition Governmental Body, or by the FCC or similar Governmental Body, in each case with competent jurisdiction or by the Quincy Final Judgment, (ii) cooperating with each other in (A) determining which filings are required to be made prior to the Closing with, and which consents, approvals, permits, notices or authorizations are required to be obtained prior to Closing from, Governmental Bodies or other third parties in connection with the execution and delivery of this Agreement and related agreements, and consummation of the transactions contemplated hereby and thereby and (B) timely making all necessary filings and timely seeking all consents, approvals, permits, notices or authorizations, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Body vacated or reversed and (iv) taking, or causing to be taken all other reasonable actions and doing, or causing to be done, and cooperating with each other in order to do, all other things reasonably necessary or appropriate to consummate the transactions contemplated hereby as soon as practicable. Each party hereto agrees not to, and shall cause its Affiliates not to, take any action that would reasonably be expected to materially delay, materially impede or prevent receipt of the Governmental Consents. Notwithstanding any provision in this Agreement, this Section 5.3(c) shall not be deemed to require the Buyer, the Seller or any Affiliate of the Buyer or the Seller to divest or agree to divest any station, assets or other interests other than any stations, assets or other interests acquired after the date hereof in a Market in which any Station operates.
(d)The Seller and the Buyer shall, and shall cause their Affiliates to, reasonably cooperate with each other, to obtain all consents and amendments from the parties to the Station
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Agreements which are required by the terms thereof or this Agreement for the consummation of the transactions contemplated by this Agreement; provided, however, that neither the Seller, the Buyer, nor any of their respective Affiliates shall have any obligation to offer or pay any consideration in order to obtain any such consents or amendments, including any obligation to amend, modify or otherwise alter the terms of any contract or agreement with any such party that is not included in the Purchased Assets or, insofar as any Multi-Station Contract relates to Other Seller Stations, the terms thereof relating to Other Seller Stations; and provided, further, that the parties acknowledge and agree that such third party consents and amendments are not conditions to Closing, except for the third party consents applicable to the Stations set forth on Schedule 5.3(d) (the “Required Consents”).
Section 5.4.Operations of the Stations Prior to the Closing Date.
(a)Prior to the Closing Date, except as approved by the Buyer (which approval shall not be unreasonably withheld, delayed or conditioned), the Seller shall, and shall cause its Affiliates to, operate and carry on the Business in all material respects in the ordinary course of the Business, and to the extent consistent therewith use its commercially reasonable efforts to (i) continue to promote and conduct advertising on behalf of the Stations at levels substantially consistent with past practice, (ii) keep and maintain the Purchased Assets in good operating condition and repair (wear and tear in ordinary usage excepted), (iii) maintain the business organization of the Stations intact, (iv) preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Business, and (v) maintain current staffing levels in each Market.
(b)Without limiting Section 5.4(a) and subject to Section 6.3 regarding control of the Stations, except (w) as expressly contemplated by this Agreement, (x) as set forth in Schedule 5.4(b), (y) as required by applicable Laws or by any Governmental Body of competent jurisdiction, or (z) with the prior written consent of the Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), the Seller shall not, and shall cause each of its Affiliates not to, in respect of the Stations:
(i)except as permitted under subsection (vii) of this Section 5.4(b), enter into any contract or commitment that would be binding on the Buyer after the Closing Date and that involves the payment or potential payment of more than [REDACTED] per annum or that would otherwise have to be listed on Schedule 3.14 if such contract had been entered into prior to the date of this Agreement;
(ii)other than those capital expenditures listed in Schedule 5.4(b)(ii), make or authorize any new capital expenditures, other than capital expenditures to address exigent circumstances that do not exceed [REDACTED] individually or in the aggregate;
(iii)sell, lease (as lessor), transfer or otherwise dispose of or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Purchased Assets, other than the sale, lease (as lessor), transfer or other disposal of property in the ordinary course of the Business that is either obsolete or unnecessary for the continued operation of the Stations as currently operated or pursuant to existing contracts or commitments, and other than Permitted Encumbrances;
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(iv)fail to maintain in full force and effect in accordance with their respective terms and conditions, any of the material Seller FCC Authorizations, or to not take or fail to take any action that could reasonably be expected to cause the FCC or any other Governmental Body to institute proceedings for the suspension, revocation or adverse modification of any of the material Seller FCC Authorizations in any material respect;
(v)other than in the ordinary course of the Business, enter into any new, or materially modify the terms of any existing, Employment Agreement with any Employee whose annual compensation would exceed [REDACTED] after giving effect to such action;
(vi)in respect of the Business, materially change any accounting period or change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, in each case, in effect on the date hereof, except as required by changes in applicable Law;
(vii)materially increase the annual cash compensation of the Employees, other than increases in compensation in accordance with normal compensation practices and consistent with past compensation practices after giving effect to any such increase and it being agreed that the granting of annual cash incentive bonus awards for periods prior to the Closing in the ordinary course shall not constitute an increase in compensation for purposes hereof; or
(viii)agree or commit to do any of the foregoing.
Section 5.5.Public Announcement. Neither the Seller, Buyer nor any of their Affiliates shall, without the approval of the other, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that any such party shall be so obligated by Laws or by the rules, regulations or policies of any national securities exchange or association. The Seller acknowledges that the parent of the Buyer is so obligated to announce publicly the transactions contemplated hereby.
Section 5.6.Multi-Station Contracts. Schedule 5.6 contains a list as of the date hereof of contracts and agreements used in the Business as to which one or more television stations of the Seller other than the Stations (the “Other Seller Stations”) is party to, or has rights or obligations thereunder (any such contract or agreement, a “Multi-Station Contract”). The rights and obligations under the Multi-Station Contracts that are to be assigned to and assumed by the Buyer (and included in the Purchased Assets and Assumed Liabilities, as the case may be) shall include only those rights and obligations applicable to the Stations under those Multi-Station Contracts that are the Included Multi-Station Contracts (such rights, the “Assigned Multi-Station Contract Rights”, and such obligations, the “Assumed Multi-Station Contract Obligations”). Neither the rights and obligations applicable to the Other Seller Stations under the Included Multi-Station Contracts nor any of the rights and obligations under the Excluded Multi-Station Contracts, including those applicable to the Stations, shall be assigned to or assumed by the Buyer (such rights, the “Retained Multi-Station Contract Rights”, shall be Excluded Assets and such obligations, the “Retained Multi-Station Contract Obligations”, shall be Excluded Liabilities, as applicable). For purposes of determining the
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scope of the rights and obligations under the Included Multi-Station Contracts, the rights and obligations under each Included Multi-Station Contract shall be equitably allocated among (1) the Stations, on the one hand, and (2) the Other Seller Stations, on the other hand, in accordance with the following equitable allocation principles:
(a)any allocation set forth in the Included Multi-Station Contract shall control; or
(b)if there is no allocation in the Included Multi-Station Contract as described in clause (a) hereof, then the reasonable accommodation determined by mutual good faith agreement of the Seller and the Buyer shall control based, to the extent possible, on the quantifiable proportionate benefit to be received by the parties after Closing.
Subject to any applicable third-party consents, such allocation and assignment with respect to each Included Multi-Station Contract shall be effectuated, as mutually agreed by the Seller and the Buyer, by termination of such Included Multi-Station Contract in its entirety with respect to the Stations and the execution of a new contract with respect to the Stations or by an assignment to and assumption by the Buyer of the rights and obligations related to the Stations under such Included Multi-Station Contract. The parties shall use commercially reasonable efforts to obtain any such new contracts or assignments to, and assumptions by, the Buyer in accordance with this Section 5.6; provided, that, completion of documentation of any such allocation under this Section 5.6 is not a condition to Closing.
Section 5.7.Inspection of Owned Towers. Within ninety (90) days from the date of this Agreement, the Buyer shall have the right, at its sole cost and expense, to inspect, and to engage the tower inspection service as has been mutually agreed between the Buyer and the Seller to inspect and conduct structural analyses with respect to, any Owned Tower; provided, that such inspection or analysis shall be conducted only (a) during regular business hours, (b) with no less than two (2) Business Days prior written notice to the Seller, and (c) in a manner which will not unduly interfere with the operation of the applicable Station or the use of access to or egress from the applicable Owned Tower. To the extent that the results of any such inspection or analysis identify (i) structural or other material defects with respect to any Owned Tower or (ii) non-compliance by Seller with any Law that is applicable to any Owned Tower in respect of any Owned Tower (including the requirements of the FCC and the Federal Aviation Administration), then the Buyer shall notify the Seller thereof promptly following any such inspection or analysis (which notice, for the sake of clarification but without limitation of such obligation to provide prompt notice, shall be provided prior to the Closing) and such notice shall include an estimate of any investigation, monitoring and/or remedial costs that Buyer may reasonably determine are necessary to remedy or monitor such defect or non-compliance (collectively, the “Tower Remedial Costs”), together with supporting documentation and detail (including all information used or relied on by the Buyer in the preparation of such estimate of the Tower Remedial Costs to enable the Seller to evaluate the accuracy thereof), and if such notice sets forth Tower Remedial Costs to be paid after Closing in excess of [REDACTED], then the amount of such excess shall be recoverable under Section 9.1(v) (such excess, the “Tower Indemnity”), provided that the Seller shall have the right to dispute the results of any such inspection or analysis and the amount of the Tower Remedial Costs. Notwithstanding anything herein to the contrary, (A) if such notice sets forth Tower Remedial Costs in excess of [REDACTED] , then each party shall have the right to terminate this Agreement upon written notice
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to the other party and (B) the Tower Indemnity shall be the Buyer’s sole remedy following the Closing related to the condition of any Owned Tower.
ARTICLE VI
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
Section 6.1.Taxes.
(a)The Seller shall prepare and timely file or shall cause to be prepared and timely filed each Tax Return for Prorated Taxes that is due on or before the Closing. The Buyer shall pay to the Seller promptly upon demand at or after the Closing the amount of any Taxes paid by the Seller to the extent constituting an Assumed Liability. The Buyer shall prepare and timely file or shall cause to be prepared and timely filed each Tax Return for Prorated Taxes that is due on or after the Closing Date. The Seller shall pay to the Buyer promptly upon demand the amount of any Taxes shown as due thereon to the extent constituting an Excluded Liability.
(b)In the case of any Prorated Taxes for any Straddle Period, the portion of such Prorated Taxes that is allocable to the portion of such Straddle Period ending on the Closing Date and that constitutes an Excluded Liability shall be deemed to equal the amount of such Taxes for the entire Straddle Period multiplied by a fraction the numerator of which is the number of calendar days in the portion of the Straddle Period ending at the end of the day immediately preceding the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period, and the remaining portion of such Prorated Taxes shall be allocable to the portion of such Straddle Period beginning on the Closing Date and shall constitute an Assumed Liability.
(c)The Seller and the Buyer shall (i) provide assistance to each other as reasonably requested in preparing and filing Tax Returns with respect to the Business and the Purchased Assets; (ii) make available to each other as reasonably requested all information, records, and documents relating to Taxes concerning the Business or the Purchased Assets; (iii) retain any books and records that could reasonably be expected to be necessary or useful in connection with any preparation by any other party of any Tax Return, or for any audit relating to Taxes with respect to the Business or the Purchased Assets; and (iv) cooperate fully, as and to the extent reasonably requested by any other party, in connection with any audit with respect to Taxes relating to the Business or the Purchased Assets.
(d)Any Transfer Taxes shall be borne equally by the Buyer and the Seller. The Buyer, with the Seller’s cooperation, shall be responsible for the preparation, execution and filing of all Tax Returns, questionnaires, applications or other documents regarding any Transfer Taxes.
Section 6.2.Employees; Employee Benefit Plans.
(a)Employment. As of or before the Closing, except as set forth on Schedule 6.2(a), the Buyer or any of its Affiliates shall offer employment to each Employee who (i) is not then on authorized leave of absence, sick leave, short or long term disability leave, military leave or layoff with recall rights (“Active Employees”); or (ii) is then on authorized leave of absence, sick leave, short-term disability leave, military leave or layoff with recall rights and who returns to active
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employment immediately following such absence and within six (6) months of the Closing Date, or such later date as required under applicable Laws (“Inactive Employees”). For the purposes hereof, all Active Employees and Inactive Employees who accept an offer of employment from the Buyer or any of its Affiliates and commence employment on the applicable Employment Commencement Date are hereinafter referred to collectively as the “Transferred Employees,” and the “Employment Commencement Date” as referred to herein shall mean (x) as to those Transferred Employees who are Active Employees, the Closing Date, and (y) those Transferred Employees who are Inactive Employees, the date on which the Transferred Employee begins employment with the Buyer or any of its Affiliates. The Buyer shall, or shall cause its applicable Affiliates to, employ at-will those Transferred Employees who do not have Employment Agreements with the Seller and provide cash compensation (consisting of base salary, and, as applicable, cash commission rate and annual cash bonus opportunity), benefits and severance benefits substantially the same as similarly situated employees of the Buyer or its applicable Affiliate (in each case, excluding, for clarity, equity, equity-based or other long-term incentives and defined benefit pension benefits). The initial terms and conditions of employment for those Transferred Employees who have Employment Agreements with the Seller shall be as set forth in such Employment Agreements, which shall, to the extent permitted under the applicable agreements, be assigned to and assumed by the Buyer.
(b)Service Credit. For purposes of determining eligibility to participate, vesting and benefit accrual (other than benefit accrual under a defined benefit pension plan and the Buyer’s discretionary match under Buyer’s 401(k) Plan) under any plan maintained by the Buyer or any of its Affiliates in which Transferred Employees are eligible to participate following the Closing, the Buyer shall, and shall cause its Affiliates to, recognize or cause to be recognized for purposes of eligibility, waiting periods, vesting and benefit accruals each Transferred Employee’s service with the Seller, and with any predecessor employer, to the same extent recognized by the Seller as service with the Buyer or any of its applicable Affiliates to the same extent such service was recognized immediately prior to the Closing, except that such service need not be recognized to the extent such recognition would result in the duplication of benefits for the same period of service.
(c)401(k) Plan. Effective as of the Closing Date or the payroll period ending immediately after the Closing Date, the Seller shall have contributed to the existing tax-qualified defined contribution plan established or designated by the Seller (“Seller’s 401(k) Plan”) all matching or other employer contributions, if any, with respect to the Transferred Employees’ employment service rendered prior to the Closing Date (irrespective of any end-of-year service requirements otherwise applicable to such contributions) and cause the matching and other employer contribution amounts of all Transferred Employees under the Seller’s 401(k) Plan to become fully vested as of the Closing Date. Following the Closing Date, the Seller shall take all actions necessary or appropriate to ensure that under the terms of the Seller’s 401(k) Plan, each Transferred Employee with an account balance is eligible to receive a distribution as a result of the Closing. From and after the Closing, the Buyer shall permit each Transferred Employee who participates in Seller’s 401(k) Plan to elect to make direct rollovers of their account balances (including any outstanding loan balances) into a tax-qualified defined contribution plan established or designated by the Buyer or any of its applicable Affiliates (“Buyer’s 401(k) Plan”) as of the Closing (or as soon as practicable thereafter when Buyer’s 401(k) Plan is capable of accepting such rollovers), subject to compliance with applicable Law and subject to the reasonable requirements of Buyer’s 401(k) Plan. Such rollovers will be permitted by the Buyer of its applicable Affiliate only if they consist of the total account balance of the Transferred Employee. Further, only rollovers of cash and outstanding loans
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may be transferred to Buyer’s 401(k) Plan; and provided, further, that with respect to any loan balance transferred, subject to applicable Law and any required consent of individuals, any such loans may be reamortized to reflect any differences in payroll periods.
(d)Welfare Plans. The Seller shall retain responsibility for and continue to pay all medical, life insurance, disability and other welfare plan expenses and benefits for each Transferred Employee with respect to claims incurred under the terms of the Employee Plans by such Employees and their covered dependents prior to the Employment Commencement Date. Expenses and benefits with respect to claims incurred by Transferred Employees and their covered dependents on or after the Employment Commencement Date shall be the responsibility of the Buyer and its Affiliates. With respect to any welfare benefit plans maintained by the Buyer or any of its Affiliates in which the Transferred Employees are eligible to participate on or after the Employment Commencement Date, to the extent permitted by Laws, the Buyer shall, and shall cause its Affiliates to (i) provide Transferred Employees with coverage immediately on the Employment Commencement Date, (ii) cause there to be waived any eligibility requirements or pre-existing condition limitations and (iii) give effect, in determining any deductible, co-insurance and maximum out-of-pocket limitations, to amounts paid by such Transferred Employees (and their covered dependents) under the Employee Plans.
(e)Vacation/Sick Leave. The Buyer shall assume as of the Closing all liabilities for unpaid, accrued vacation and sick leave of each Transferred Employee as of the Employment Commencement Date, giving service credit under the PTO policy of Buyer for service with the Seller and any predecessors of Seller, and shall permit Transferred Employees to use their accrued, but unused vacation/sick leave entitlement as of Closing in accordance with the Buyer’s PTO policy; provided, that, for the avoidance of doubt, no negative leave balances shall be assumed for any Transferred Employee. Three (3) days prior to the Closing Date, the Seller shall deliver Schedule 6.2(e) to the Buyer, which shall set forth the Seller’s liabilities for unpaid, accrued vacation and sick leave relating to the Transferred Employees projected as of the Closing Date. The Buyer shall receive a credit in the Closing Date Adjustments pursuant to Section 2.6 for the amount of the liabilities for unpaid, accrued vacation and sick leave assumed by the Buyer pursuant to this Section 6.2(e); provided, however, for the avoidance of doubt, no downward adjustment shall be made to such credit with respect to any negative leave balance for any Transferred Employee.
(f)Flexible Spending Accounts. Effective as of the Closing, the Buyer shall, or shall cause its applicable Affiliate to, allow eligible Transferred Employees to participate in the Buyer’s or such Affiliate’s flexible spending accounts for medical and dependent care expenses.
(g)Payroll Matters.
(i)The Seller and the Buyer shall, and the Buyer shall cause its applicable Affiliates to, follow the “standard procedures” for preparing and filing Internal Revenue Service Forms W-2 (Wage and Tax Statements), as described in Revenue Procedure 2004-53 for Transferred Employees. Under this procedure, (A) the Seller shall provide all required Forms W-2 to (1) all Transferred Employees reflecting wages paid and taxes withheld by the Seller prior to the Employment Commencement Date, and (2) all other employees and former employees of the Seller who are not Transferred Employees reflecting all wages paid and taxes withheld by
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the Seller, and (B) the Buyer (or one of its Affiliates) shall provide all required Forms W-2 to all Transferred Employees reflecting all wages paid and taxes withheld by the Buyer (or one of its Affiliates) on and after the Employment Commencement Date.
(ii)With respect to garnishments, tax levies, child support orders, and wage assignments in effect with the Seller on the Employment Commencement Date for Transferred Employees and with respect to which the Seller has notified the Buyer in writing, the Buyer shall, and shall cause its Affiliates to, honor such payroll deduction authorizations with respect to Transferred Employees and shall, or shall cause its Affiliates to, continue to make payroll deductions and payments to the authorized payee, as specified by a court order which was filed with the Seller on or before the Employment Commencement Date, to the extent such payroll deductions and payments are in compliance with applicable Laws, and the Seller will continue to make such payroll deductions and payments to authorized payees as required by Laws with respect to all other employees of the Business who are not Transferred Employees. The Seller shall, as soon as practicable after the Employment Commencement Date, provide the Buyer with such information in the possession of the Seller as may be reasonably requested by the Buyer and necessary for the Buyer or its Affiliates to make the payroll deductions and payments to the authorized payee as required by this Section 6.2(g).
(h)WARN Act. The Buyer shall not, and shall cause its Affiliates not to, take any action on or after the Closing Date that would cause any termination of employment of any employees by the Seller that occurs before the Closing to constitute a “plant closing” or “mass layoff” under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”) or any similar state or local Laws, or to create any liability to the Seller for any employment terminations under applicable Laws. The Buyer shall be responsible for all liabilities with respect to any amounts (including any severance, fines or penalties) payable under or pursuant to the WARN Act or any similar state or local Laws with respect to any Employees who do not become Transferred Employees as a result of the failure of the Buyer to extend offers of employment or continued employment as required by Section 6.2 or in connection with events that occur from and after the Closing, and the Buyer shall reimburse the Seller for any such amounts.
(i)No Third-Party Beneficiary. Without limiting the generality of Section 11.6, nothing in this Section 6.2, express or implied, is intended to confer on any Person (including any Transferred Employees and any other current or former employees of the Seller) other than the parties hereto and their respective successors and assigns, any rights, benefits, remedies, obligations or liabilities (including any third-party beneficiary rights) under or by reason of this Section 6.2. Accordingly, notwithstanding anything to the contrary in this Section 6.2, the parties expressly acknowledge and agree that this Agreement is not intended to create a contract between the Buyer, the Seller or any of their respective Affiliates, on the one hand, and any employee of the Seller on the other hand, and no employee of the Seller may rely on this Agreement as the basis for any breach of contract claim against the Buyer, the Seller or any of their respective Affiliates. Nothing in this Section 6.2 shall constitute an amendment to or modification of any Employee Plan or other compensation or benefit plan, program, policy, agreement or arrangement.
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Section 6.3.Control of Operations Prior to Closing Date. Notwithstanding anything contained herein to the contrary, the sale of the Purchased Assets contemplated hereby shall not be consummated prior to the grant by the FCC of the FCC Consent. The Seller and the Buyer acknowledge and agree that at all times commencing on the date hereof and ending on the Closing Date, (x) nothing in this Agreement, including Section 5.4, shall be construed to give the Buyer any right to control, direct or otherwise supervise, or attempt to control, direct or otherwise supervise, any of the management or operations of any Station and (y) the Seller shall have complete control and supervision of the programming, operations, policies and all other matters relating to the Stations.
Section 6.4.Use of Names. The Seller is not conveying ownership rights or granting the Buyer a license to use any of the Retained Names and Marks and, after the Closing, the Buyer shall not and shall not permit any of its Affiliates to use in any manner the Retained Names and Marks or any word that is similar in sound or appearance to such names or marks. The parties acknowledge that the Retained Names and Marks may be present on and within the Purchased Assets and the presence of the Retained Names and Marks shall be removed or deleted within the periods of time set forth in the Transition Services Agreement. In the event the Buyer violates any of its obligations under this Section 6.4, the Seller may proceed against the Buyer in law or in equity for such damages or other relief as a court may deem appropriate. The Buyer acknowledges that a violation of this Section 6.4 may cause the Seller irreparable harm, which may not be adequately compensated for by money damages. The Buyer therefore agrees that in the event of any actual or threatened violation of this Section 6.4, the Seller shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against the Buyer or any such Affiliate of the Buyer to prevent any violations of this Section 6.4, without the necessity of posting a bond.
Section 6.5.Seller’s A/R. For a period of [REDACTED] (the “Collection Period”), the Buyer shall, without charge to the Seller or cost or expense to the Buyer, use commercially reasonable efforts to collect the Seller’s A/R in the ordinary course of business and shall apply all amounts collected from the Seller’s account debtors to the oldest account first, unless the advertiser disputes in good faith in writing an older account and designates the payment to a newer account. The Buyer shall not be obligated to affirmatively seek collection of the Seller’s A/R by litigation or other extraordinary methods of collection. Any amounts relating to the Seller’s A/R that are paid directly to the Seller shall be retained by the Seller. The Buyer shall not discount, adjust or otherwise compromise any Seller’s A/R and the Buyer shall refer any disputed Seller’s A/R to Seller. Within ten calendar days after the end of each fiscal month in the Collection Period, the Buyer shall deliver to the Seller a report showing Seller’s A/R collections through the end of such month and the Buyer shall make a payment, without offset, to the Seller equal to the amount of all such collections. At the end of the Collection Period, collection of any remaining Seller’s A/R shall be returned to the Seller.
Section 6.6.No Solicitation; Confidentiality.
(a)Without limitation of the Seller’s obligations under Section 5.3, from the date hereof until the earlier of the Closing Date or the termination of this Agreement, the Seller shall not, and shall not permit any of its Affiliates to, consummate any Restricted Acquisition Transaction. For purposes hereof, “Restricted Acquisition Transaction” means any transaction with any Person (other than Buyer or any of its Affiliates) involving the direct or indirect disposition, whether by sale,
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merger or otherwise, of all or any portion of the Business or the Purchased Assets, but specifically excludes (i) the transactions contemplated by the Other Purchase Agreement and (ii) any transaction the consummation of which (together with the consummation of any other disposition, sale, merger or other transaction associated therewith, relating thereto or arising therefrom) the Seller reasonably determines (A) would not preclude the consummation of the purchase of the Purchased Assets hereunder or the consummation of the transactions contemplated by the Other Purchase Agreement and (B) would not require the Seller or surviving entity in any such Restricted Acquisition Transaction to divest any assets or broadcast television stations in any Market or in any Other Purchase Agreement Market.
(b)From the Closing Date until [REDACTED], the Seller shall not solicit, hire or attempt to hire for employment any Transferred Employee, without the prior written consent of the Buyer, except with respect to any such Transferred Employee who has been terminated by the Buyer; provided that nothing in this sentence shall prohibit the Seller from engaging in general solicitation that is not directed specifically to any such Transferred Employees or hiring any person who responds to any such general solicitation.
(c)From and after the Closing, the Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their representatives to, hold in confidence any and all non-public or otherwise confidential information existing at the Closing, whether written or oral, concerning the Business and the Stations, except to the extent that such information (i) is or has been published or becomes part of the public domain or otherwise is generally available to and known by the public through no fault of the Seller, any of its Affiliates or their respective representatives or (ii) is lawfully acquired by the Seller, any of its Affiliates or their respective representatives from and after the Closing from sources other than the Buyer or any of its Affiliates which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If the Seller, any of its Affiliates or their respective representatives are compelled to disclose any such information by judicial or administrative process or by other requirements of Law, the Seller shall, to the extent permitted by Law, provide prior notice to the Buyer in writing, and in so far as is practicable, consult with the Buyer regarding the disclosure of such information, and shall disclose only that portion of such information which the Seller is advised by its counsel is legally required to be disclosed; provided, however, that the Seller shall use its reasonable best efforts to obtain any appropriate protective order or other reasonable assurance, at the Buyer’s sole expense, that confidential treatment will be accorded such information. Nothing in this Section 6.6(c) shall limit or otherwise prohibit the Seller or any of its Affiliates from disclosing any confidential information that may be required in connection with (A) the filing of a Tax Return, (B) any Tax-related action, examination, audit, suit or other proceeding involving a Governmental Body or (C) prosecuting or defending any suit, action or proceeding between the parties arising out of or relating to this Agreement or the transactions contemplated hereby or exercising its rights under Section 9.4.
Section 6.7.Environmental Assessments. Within ninety (90) days from the date of this Agreement, the Buyer shall have the right, at its sole cost and expense, to engage an environmental consulting firm to conduct (a) a Phase I Environmental Site Assessment and Compliance Review, as such terms are commonly understood (a “Phase I Environmental Assessment”), with respect to the Real Property (in the case of any Leased Real Property, to the extent permitted under the terms of the applicable Real Property Lease or subject to the consent of
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any lessor required thereunder), and (b) subject to the Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), a Phase II Environmental review or any other test, investigation or review reasonably recommended in the Phase I Environmental Assessment (in the case of any Leased Real Property, to the extent permitted under the terms of the applicable Real Property Lease or subject to the consent of any lessor required thereunder); provided, that such environmental assessment, test, investigation or review shall be conducted only (i) during regular business hours, (ii) with no less than two (2) Business Days prior written notice to the Seller, (iii) in a manner which will not unduly interfere with the operation of the applicable Station or the use of access to or egress from the applicable Real Property, and (iv) in a manner which will not involve any use or operation of equipment or any sampling or testing of environmental media without the Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). Any damage to the Real Property caused by the Buyer and its consultants in conducting any such environmental assessment, test, investigation or review shall be repaired by the Buyer at its sole cost and expense. If any such environmental assessment, test, investigation or review identifies any recognized environmental condition with respect to the Real Property, the Buyer shall notify the Seller in writing of such environmental condition promptly after such environmental assessment, test, investigation or review. Following its receipt of such notice and prior to the Closing, the Seller shall use commercially reasonable efforts to remediate any such recognized environmental condition at its sole cost and expense. Any such remediation shall only be required to meet the most cost-effective standard as reasonably determined by the Seller and executed in a reasonable manner, in each case to become compliant with any applicable Environmental Laws. Notwithstanding anything herein to the contrary, if the reasonably estimated cost to remedy any environmental condition in the aggregate exceeds [REDACTED], then each party shall have the right to terminate this Agreement upon written notice to the other party.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
The obligations of the Seller under this Agreement to consummate the sale of the Purchased Assets contemplated hereby shall be subject to the satisfaction, fulfillment or, where legally possible, waiver, on or prior to the Closing Date, of the following conditions:
Section 7.1.No Breach of Covenants and Warranties. (a) The Buyer shall have performed and complied in all material respects with its covenants and agreements contained herein required to be performed or complied with by it as of or prior to the Closing; and (b) each of the representations and warranties of the Buyer contained in this Agreement shall be true and correct on the Closing Date as though made on the Closing Date (except to the extent that they expressly speak as of a specific date or time other than the Closing Date, in which case they need only have been true and correct as of such specified date or time), except where the failure of such representations and warranties to be true and correct (without giving effect to any qualifiers or exceptions relating to “materiality” set forth in such representations and warranties), individually or in the aggregate, has not had and would not be reasonably likely to have a material adverse effect on the ability of the Buyer to perform its obligations under this Agreement. In addition, the Buyer shall have delivered to the Seller a certificate, dated as of the Closing Date, signed by an executive officer of the Buyer and certifying as to the satisfaction of the conditions specified in this Section 7.1.
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Section 7.2.No Restraint. There shall not be in effect any Order (whether temporary, preliminary or permanent) issued by any Governmental Body of competent jurisdiction preventing or prohibiting the consummation of the transactions contemplated by this Agreement or the Other Purchase Agreement.
Section 7.3.Certain Governmental Approvals. The FCC Consent shall have been granted and shall be effective, and any waiting period imposed by the Quincy Final Judgment relating to the transactions contemplated by this Agreement shall have been terminated or expired.
Section 7.4.No Antitrust Proceedings. There shall be no pending or threatened in writing inquiry, investigation or litigation by any Governmental Body into whether either the transactions contemplated by this Agreement or the Other Purchase Agreement comply with the Antitrust Laws.
Section 7.5.Other Purchase Agreement. The closing contemplated under the Other Purchase Agreement shall have been consummated or shall be consummated concurrently with the Closing hereunder.
Section 7.6.Deliveries. The Buyer shall have made, or stand ready at the Closing to make, the deliveries to the Seller contemplated by Section 2.7(b).
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
The obligations of the Buyer under this Agreement to consummate the purchase of the Purchased Assets contemplated hereby shall be subject to the satisfaction, fulfillment or, where legally possible, waiver on or prior to the Closing Date, of the following conditions:
Section 8.1.No Breach of Covenants and Warranties. (a) The Seller shall have performed and complied with in all material respects its covenants and agreements contained herein required to be performed or complied with by it as of or prior to the Closing; and (b) each of the representations and warranties of the Seller contained in this Agreement shall be true and correct on the Closing Date as though made on the Closing Date (except to the extent that they expressly speak as of a specific date or time other than the Closing Date, in which case they need only have been true and correct as of such specified date or time), except where the failure of such representations and warranties to be true and correct (without giving effect to any qualifiers or exceptions relating to “materiality” or “Material Adverse Effect” set forth in such representations and warranties), would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect. In addition, the Seller shall have delivered to the Buyer a certificate, dated as of the Closing Date, signed by an executive officer of the Seller and certifying as to the satisfaction of the conditions specified in this Section 8.1.
Section 8.2.No Restraint. There shall not be in effect any Order (whether temporary, preliminary or permanent) issued by any Governmental Body of competent jurisdiction preventing or prohibiting the consummation of the transactions contemplated by this Agreement or the Other Purchase Agreement.
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Section 8.3.Certain Governmental Approvals. The FCC Consent shall have been granted and shall be effective, and any waiting period imposed by the Quincy Final Judgment relating to the transactions contemplated by this Agreement shall have been terminated or expired.
Section 8.4.No Antitrust Proceedings. There shall be no pending or threatened in writing inquiry, investigation or litigation by any Governmental Body into whether either the transactions contemplated by this Agreement or the Other Purchase Agreement comply with the Antitrust Laws.
Section 8.5.Other Purchase Agreement. The closing contemplated under the Other Purchase Agreement shall have been consummated or shall be consummated concurrently with the Closing hereunder.
Section 8.6.Closing Deliveries. The Seller shall have made, or stand ready at the Closing to make, the deliveries to the Buyer contemplated by Section 2.7(a).
Section 8.7.Material Adverse Effect. Since the date of this Agreement, no Material Adverse Effect shall have occurred.
Section 8.8.Third Party Consents. The Required Consents shall have been obtained.
ARTICLE IX
INDEMNIFICATION
INDEMNIFICATION
Section 9.1.Indemnification by the Seller. From and after the Closing and subject to Section 11.1, the Seller shall indemnify and hold harmless the Buyer Group Members from and against any and all Losses and Expenses imposed upon, or incurred or suffered by, any Buyer Group Member as a result of or arising out of:
(i)any breach or inaccuracy of any representation or warranty made by the Seller contained in this Agreement (in any such case, for purposes of determining the amount of Losses but not for whether there has been a breach or inaccuracy, as such representation or warranty would read if all materiality and “Material Adverse Effect” qualifiers were deleted therefrom, other than with respect to the reference to “Material Adverse Effect” contained in Section 3.4(a));
(ii)any breach by the Seller of, or any other failure of the Seller to perform, any of its covenants, agreements or obligations pursuant to this Agreement;
(iii)the failure of the Seller to perform any Excluded Liabilities;
(iv)the Seller’s operation of the Business and/or ownership and/or use of the Purchased Assets prior to the Closing Date; or
(v)the Tower Indemnity.
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Section 9.2.Indemnification by the Buyer. From and after the Closing and subject to Section 11.1, the Buyer shall indemnify and hold harmless the Seller Group Members from and against any and all Losses and Expense imposed upon, or incurred or suffered by, any Seller Group Member as a result of or arising out of:
(i)any breach or inaccuracy of any representation or warranty made by the Buyer contained in this Agreement (in any such case, for purposes of determining the amount of Losses but not for whether there has been a breach or inaccuracy, as such representation or warranty would read if all materiality qualifiers were deleted therefrom);
(ii)any breach by the Buyer of, or any other failure of the Buyer to perform, any of its covenants, agreements or obligations in this Agreement;
(iii)the failure of the Buyer to perform any of the Assumed Liabilities; or
(iv)except for claims in respect of which the Seller is obligated to indemnify the Buyer Group Members pursuant to Section 9.1, the Buyer’s (or any successor’s or assignee’s) operation of the Business and/or the ownership and/or use of the Purchased Assets on or after the Closing Date.
Section 9.3.Notice of Claims; Determination of Amount.
(a)Any party seeking indemnification hereunder (the “Indemnified Party”) shall give promptly to the party or parties, as applicable, obligated to provide indemnification to such Indemnified Party (the “Indemnitor”) a written notice (a “Claim Notice”) describing in reasonable detail the facts giving rise to the claim for indemnification hereunder and shall include in such Claim Notice (if then known) the amount or the method of computation of the amount of such claim, and a reference to the provision of this Agreement or any certificate delivered hereunder upon which such claim is based. Subject to Section 11.1, the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.3 shall not affect such Indemnified Party’s rights under this Article IX except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b)In calculating any Loss or Expense there shall be deducted (i) any insurance recovery actually received in respect thereof (netted against any reasonable out-of-pocket expenses and any increased premium incurred by the Indemnified Party in connection with such recovery), (ii) any recovery in respect thereof which is obtained from any other third Person (and no right of subrogation shall accrue hereunder to any such insurer or other third Person) and (iii) any Tax benefit realized by the Indemnified Party arising from any such Loss or Expense.
(c)After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article IX shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken
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or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Losses and Expenses suffered by it.
Section 9.4.Third Person Claims.
(a)Notwithstanding anything to the contrary contained in Section 9.3, in order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly, but in any event within ten (10) Business Days, after receipt by such Indemnified Party of written notice of the third Person claim, which notification must include a copy of the written notice of the third Person claim that was received by the Indemnified Party (the “Third Person Claim Notice”). Thereafter, the Indemnified Party shall deliver to the Indemnitor, promptly, but in any event within five (5) Business Days, after the Indemnified Party’s receipt thereof, copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly, but in any event within five (5) Business Days, after receipt thereof and shall deliver to the Indemnitor promptly, but in any event within seven (7) Business Days, after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Subject to Section 11.1, the failure of any Indemnified Party to promptly provide a Third Person Claim Notice as required by this Section 9.4 shall not affect such Indemnified Party’s rights under this ARTICLE IX except to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b)In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of a Third Person Claim Notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense (provided further that, if a conflict of interest arises that, under applicable principles of legal ethics, in the reasonable judgment of counsel to the Indemnified Party, would prohibit a single counsel from representing both the Indemnitor and the Indemnified Party in connection with the defense of such third Person claim, then the reasonable fees and expenses of such separate counsel of the Indemnified Party shall be paid by the Indemnitor). The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such proceeding, claim or demand. Prior to the time the Indemnified Party is notified by the Indemnitor as to whether the Indemnitor will assume the defense of such proceeding, claim or demand, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the parties with respect to such proceeding, claim or demand, including responding timely to legal process. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to confirm its election) within fifteen (15) days after the giving by the Indemnified Party to the Indemnitor of a Third Person Claim Notice, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of, or otherwise deal with, such proceeding, claim or demand. Notwithstanding the foregoing, the Indemnitor will not be entitled to control, and the Indemnified Party will be
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entitled to have control over, the defense or settlement of any third Person claim if (i) the third Person claim involves a criminal or quasi-criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party, (ii) the third Person claim seeks material injunctive or nonmonetary equitable relief, (iii) the applicable claimant in the third Person claim is a Governmental Body, or (iv) the Indemnitor failed or is failing to diligently prosecute or defend such third Person claim. Regardless of which party assumes the defense of such proceeding, claim or demand, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information that are relevant to such proceeding, claim or demand, and making each parties’ employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of such proceeding, claim or demand, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such proceeding, claim or demand without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnitor shall not consent to a settlement of, or the entry of any judgment arising from, any such proceeding, claim or demand without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (i) relates solely to monetary damages for which the Indemnitor shall be responsible and (ii) includes as an unconditional term thereof the release of the Indemnified Party from all liability with respect to such proceeding, claim or demand, in which event no such consent shall be required. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within fifteen (15) days after the date of such notice.
(c)The party that has assumed the control or defense of any such proceeding, claim or demand made by a third Person against the other party shall (i) provide the other party with the right to participate in any meetings or negotiations with any Governmental Body or other third Person and reasonable advance notice of any such meetings or negotiations, (ii) provide the other party with the right to review in advance and provide comments on any draft or final documents proposed to be submitted to any Governmental Body or other third Person, and (iii) keep the other party reasonably informed with respect to such proceeding, demand or claim, including providing copies of all documents provided to, or received from, any Governmental Body or any other third Person in connection with such proceeding, demand or claim. The Buyer Group Members, on the one hand, and the Seller Group Members, on the other hand, covenant and agree to maintain the confidence of all such drafts and comments provided by the other.
(d)To the extent of any inconsistency between this Section 9.4 and Section 6.1(c) with respect to Taxes, the provisions of Section 6.1(c) shall control.
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Section 9.5.Limitations; Subrogation; Exclusive Remedies.
(a)In any case where the Indemnified Party recovers from third Persons any amount in respect of a matter with respect to which the Indemnitor has indemnified it pursuant to this ARTICLE IX, the Indemnified Party shall promptly pay over to the Indemnitor the amount so recovered (after deducting therefrom the full amount of the Expenses incurred by it in procuring such recovery), but not in excess of any amount previously so paid by the Indemnitor to or on behalf of the Indemnified Party in respect of such matter.
(b)The Seller shall have no liability to the Buyer Group Members under Section 9.1(i) unless and until the aggregate amount of the Loss and Expense thereunder exceeds an amount equal to [REDACTED] (the “Threshold”), after which the Seller will be liable for all Loss and Expense in excess of the Threshold under Section 9.1(i); provided, however, that (x) claims for common law fraud shall not be subject to the Threshold and (y) claims for any Loss or Expense incurred by the Buyer Group Members arising out of or resulting from the breach or inaccuracy of any of the Fundamental Representations shall not be subject to the Threshold.
(c)The maximum aggregate liability of the Seller for all Loss and Expense of the Buyer Group Members pursuant to Section 9.1(i) shall not exceed [REDACTED] (the “Cap”); provided, however, that (x) claims for common law fraud shall not be subject to the Cap and (y) claims for any Loss or Expense incurred by the Buyer Group Members arising out of or resulting from the breach or inaccuracy of any of the Fundamental Representations shall not be subject to the Cap.
(d)In the case where the Indemnitor makes any payment to the Indemnified Party in respect of any Loss, the Indemnitor shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party against any third Person in respect of the Loss to which such payment relates. The Indemnified Party and the Indemnitor shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights.
(e)Except for remedies that cannot be waived as a matter of law, claims arising from common law fraud, and injunctive and provisional relief, if the Closing occurs, this ARTICLE IX shall be the exclusive remedy for breaches of this Agreement (including any covenant, obligation, representation or warranty contained in this Agreement or in any certificate delivered pursuant to this Agreement) or otherwise relating to the subject matter of this Agreement, including any claims arising under any Environmental Laws.
Section 9.6.No Special Damages; Mitigation. Notwithstanding anything to the contrary contained in this Agreement, none of the parties hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, special or indirect damages, including loss of future profits, revenue or income, losses arising solely from diminution in value or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, except to the extent such damages are payable to a third Person. Each of the parties agrees to take all reasonable steps to mitigate their respective Losses and Expenses upon and after becoming aware of any event or condition which could reasonably be expected to give rise to any Losses and Expenses that are indemnifiable hereunder, including using its commercially reasonable efforts to obtain insurance proceeds or other recoveries from third Persons in respect thereof.
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Section 9.7.Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated for Tax purposes only as an adjustment to the Purchase Price.
ARTICLE X
TERMINATION
TERMINATION
Section 10.1.Termination.
(a)Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated at any time prior to the Closing:
(i)by the mutual written consent of the Seller and the Buyer;
(ii)by the Seller, if a breach or failure to perform any of the covenants or agreements of the Buyer contained in this Agreement shall have occurred, or there shall be any inaccuracy of any of the representations or warranties of the Buyer contained in this Agreement, and such breach, failure to perform or inaccuracy either individually or in the aggregate would, if occurring or continuing on the Closing Date, give rise to the failure of a condition set forth in Section 7.1, and such breach, failure to perform or inaccuracy if curable, is not cured by, on or before the earlier of (i) the Termination Date or (ii) thirty (30) days following receipt of written notice by Buyer, or which by its nature or timing cannot be cured prior to the Termination Date; provided, however, that the Seller shall not have the right to terminate this Agreement pursuant to this Section 10.1(a)(ii) if the Seller is then in breach of any of its covenants or agreements contained in this Agreement or any of the representations or warranties of the Seller contained in this Agreement shall be inaccurate and such breach or inaccuracy would give rise to the failure of a condition set forth in Section 8.1;
(iii)by the Buyer, if a breach or failure to perform any of the covenants or agreements of the Seller contained in this Agreement shall have occurred, or there shall be any inaccuracy of any of the representations or warranties of the Seller contained in this Agreement, and such breach, failure to perform or inaccuracy either individually or in the aggregate would, if occurring or continuing on the Closing Date, give rise to the failure of a condition set forth in Section 8.1, and such breach, failure to perform or inaccuracy if curable, is not cured by, on or before the earlier of (i) the Termination Date or (ii) thirty (30) days following receipt of written notice by the Seller, or which by its nature or timing cannot be cured prior to the Termination Date: provided, however, that the Buyer shall not have the right to terminate this Agreement pursuant to this Section 10.1(a)(iii) if Buyer is then in breach of any of its covenants or agreements contained in this Agreement or any of the representations or warranties of the Buyer contained in this Agreement shall be inaccurate, and such breach or inaccuracy would give rise to the failure of a condition set forth in Section 7.1;
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(iv)by the Seller or the Buyer, if any U.S. federal or state court of competent jurisdiction shall have issued a final and nonappealable Order permanently enjoining or otherwise prohibiting the consummation of the sale of the Purchased Assets contemplated hereby;
(v)by the Seller or the Buyer if the Closing shall not have been consummated on or before [REDACTED] (the “Termination Date”). Notwithstanding the foregoing, the right to terminate this Agreement under this Section 10.1(a)(v) shall not be available to any party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or observe the covenants and agreements of such party set forth in this Agreement;
(vi)by either the Seller or the Buyer, upon the termination of the Other Purchase Agreement for any reason; or
(vii)by either the Seller or the Buyer, pursuant to Section 5.7 or Section 6.7.
(b)The party desiring to terminate this Agreement pursuant to Section 10.1(a) (other than pursuant to Section 10.1(a)(i)) shall give written notice of such termination to the other party, as applicable.
(c)In the event that this Agreement shall be terminated pursuant to Section 10.1(a), all further obligations of the parties under this Agreement (other than Section 5.5, this ARTICLE X and ARTICLE XI, and, for the avoidance of doubt, the Confidentiality Agreement, which, in each case, shall remain in full force and effect) shall be terminated without further liability of any party; provided that nothing herein shall relieve any party from liability for any breach of this Agreement.
Section 10.2.Withdrawal of Certain Filings. In the event of termination under the provisions of this ARTICLE X, all filings, applications and other submissions relating to the transactions contemplated by this Agreement as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Body or other Person to which made.
ARTICLE XI
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 11.1.Survival.
(a)The representations and warranties of the parties contained in this Agreement shall survive for [REDACTED]; provided, however, that the representations and warranties of the Seller contained in Sections 3.1 (Organization) and 3.2 (Authority) (the “Fundamental Representations”), and of the Buyer contained in Sections 4.1 (Organization) and 4.2 (Authority), shall survive for [REDACTED] ; further provided, that claims for common law fraud shall not be subject to such limitations or any other limitations contained in this Agreement.
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(b)None of the covenants, agreements or obligations of the parties contained in this Agreement shall survive the consummation of the Closing, except to the extent such covenants, agreements and obligations contemplate performance after the Closing, in which case each such covenant, agreement and obligation shall survive until performed.
(c)No claim may be brought under this Agreement unless written notice describing in reasonable detail the facts giving rise to the claim is given on or prior to the last day of the applicable survival period. In the event such notice is given, the right to indemnification with respect thereto shall survive the applicable survival period until such claim is finally resolved and any obligations with respect thereto are fully satisfied.
Section 11.2.Confidential Nature of Information. Each party agrees that it will treat in confidence all documents, materials and other information which it shall have obtained regarding the other party or parties during the course of the negotiations leading to the consummation of the transactions contemplated hereby (whether obtained before or after the date of this Agreement), the investigation provided for herein and the preparation of this Agreement and other related documents, and, in the event the transactions contemplated hereby shall not be consummated, each party will return to the other party or parties all copies of nonpublic documents and materials which have been furnished in connection therewith. Without limiting the right of either party to pursue all other legal and equitable rights available to it for violation of this Section 11.2 by the other party, it is agreed that other remedies cannot fully compensate the aggrieved party for such a violation of this Section 11.2 and that the aggrieved party shall be entitled to injunctive relief to prevent a violation or continuing violation hereof.
Section 11.3.Governing Law. This Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) shall be governed and construed in accordance with the internal Laws of the State of Delaware applicable to contracts made and wholly performed within the State of Delaware, without regard to any applicable conflicts of law principles that would result in the application of the Laws of any other jurisdiction.
Section 11.4.Exclusive Jurisdiction; Court Proceedings. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought exclusively in the Chancery Court of the State of Delaware and any state appellate court therefrom or, if such court lacks subject matter jurisdiction, the United States District Court sitting in New Castle County in the State of Delaware, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in
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Section 11.5 shall be deemed effective service of process on such party. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER IN CONTRACT OR TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM INVOLVING ANY FINANCING SOURCE AND THEIR RESPECTIVE NONPARTY AFFILIATES).
Section 11.5.Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) when delivered by hand, by registered mail, by courier or express delivery service or (b) upon confirmation of receipt (other than an automatically-generated confirmation) when sent by electronic mail to the address or email address, as applicable, set forth beneath the name of such party below (or to such other address or email address, as applicable, as such party shall have specified in a written notice given to the other party hereto):
If to the Buyer:
Gray Local Media, Inc.
445 Dexter Avenue, Suite 7000
Montgomery, AL 36104
Attn: General Counsel
Telephone: (334)206-1400
Email: legalnotices@graymedia.com
with a copy (which shall not constitute notice) to:
Cooley LLP
1299 Pennsylvania Ave., NW
Suite 700
Washington, DC 20004
Attention: Maureen Nagle
Email: mnagle@cooley.com
If to the Seller, to:
Scripps Media, Inc.
312 Walnut Street, 28th Floor
Cincinnati, Ohio 45202
Attention: Robert Kalutkiewicz, Senior Vice President, Corporate Development, Strategic Investment and Ventures
Email: robert.kalutkiewicz@scripps.com
with a copy (which shall not constitute notice) to:
Scripps Media, Inc.
312 Walnut Street, 28th Floor
Cincinnati, Ohio 45202
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Attention: David Giles, Chief Legal Officer, and Robert Oestreicher, Senior Vice President, Corporate Counsel
Email: dave.giles@scripps.com and robert.oestreicher@scripps.com
with a copy (which shall not constitute notice) to:
Baker & Hostetler LLP
312 Walnut Street, Suite 3200
312 Walnut Street, Suite 3200
Cincinnati, Ohio 45202
Attention: Robert F. Morwood
Email: rmorwood@bakerlaw.com
Attention: Robert F. Morwood
Email: rmorwood@bakerlaw.com
Section 11.6.Successors and Assigns; Third Party Beneficiaries.
(a)This Agreement and all of its terms shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns, including any successor by a merger or conversion. Except as provided in this Section 11.6(a), this Agreement shall not be assigned by any party hereto. Any party hereto may assign or transfer any of its rights and obligations under this Agreement to any of its Affiliates upon written notice to the other party, provided that no such assignment or transfer materially delays the grant of the FCC Consent or any approval by the DOJ as contemplated by this Agreement required by Antitrust Law or any other applicable Law, and, provided further, that no such assignment or transfer shall operate to relieve a party of any of its liabilities or obligations hereunder.
(b)Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any Person other than the parties, successors and assigns permitted by this Section 11.6, and the Buyer Group Members and Seller Group Members pursuant to ARTICLE IX, any right, remedy or claim under or by reason of this Agreement.
Section 11.7.Access to Records after Closing.
(a)For a period of [REDACTED] , the Seller and its representatives shall have reasonable access to all of the books and records of the Business transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the operations of the Business prior to the Closing Date. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by it pursuant to this Section 11.7(a). If the Buyer shall desire to dispose of any of such books and records prior to the expiration of such [REDACTED] period, it shall, prior to such disposition, give the Seller a reasonable opportunity, at the Seller’s expense, to segregate and remove such books and records as the Seller may select.
(b)For a period of [REDACTED] , the Buyer and its representatives shall have reasonable access to all of the books and records relating to the Business which the Seller may retain after the Closing Date. Such access shall be afforded by the Seller upon receipt of reasonable advance notice and during normal business hours. The Buyer shall be solely responsible for any costs and expenses incurred by it pursuant to this Section 11.7(b). If the Seller shall desire to dispose of
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any of such books and records prior to the expiration of such [REDACTED] period, it shall, prior to such disposition, give the Buyer a reasonable opportunity, at the Buyer’s expense, to segregate and remove such books and records as the Buyer may select.
Section 11.8.Entire Agreement; Amendments. This Agreement, the Exhibits and Schedules referred to herein and the other documents delivered pursuant hereto contain the entire understanding of the parties hereto with regard to the subject matter contained herein or therein, and supersede all prior agreements, understandings or intents between or among any of the parties hereto. The parties hereto, by mutual agreement in writing, may amend, modify and supplement this Agreement.
Section 11.9.Interpretation. Article titles and headings to Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. The Schedules and Exhibits referred to herein shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein. For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation,” (ii) the word “or” is not exclusive and (iii) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein (a) to Articles, Sections, Exhibits and Schedules mean the Articles and Sections of, and the Exhibits and Schedules attached to, this Agreement and (b) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement. This Agreement, the Buyer Ancillary Agreements and the Ancillary Agreements shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. References to a “party hereto” or the “parties hereto” or similar phrases shall refer to the Seller and the Buyer. An asset or right shall be deemed to be “exclusively related” to or “exclusively used in” the Business if in the ordinary course of the Business such asset or right is used solely in the Business and is not used by the other businesses and operations of the Seller.
Section 11.10.Waivers. Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the party or parties entitled to the benefit thereof in writing and signed by such party or parties. The failure of any party hereto to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
Section 11.11.Expenses. Except as otherwise expressly provided herein, each of the Seller and the Buyer will pay all of its own respective costs and expenses incident to its negotiation and preparation of this Agreement and to its performance and compliance with all agreements and conditions contained herein on its part to be performed or complied with, including the fees, expenses and disbursements of its counsel and accountants.
Section 11.12.Partial Invalidity. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or
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unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein.
Section 11.13.Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be considered an original instrument, but all of which shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed by each of the parties and delivered to each of the Seller and the Buyer.
Section 11.14.Disclaimer of Warranties. The Seller makes no representations or warranties with respect to any projections, forecasts or forward-looking information provided to the Buyer. There is no assurance that any projected or forecasted results will be achieved. EXCEPT AS TO THOSE MATTERS EXPRESSLY COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, THE ANCILLARY AGREEMENTS AND THE CERTIFICATES DELIVERED BY THE SELLER PURSUANT TO SECTION 8.1, THE SELLER IS SELLING THE BUSINESS AND THE PURCHASED ASSETS ON AN “AS IS, WHERE IS” BASIS AND SELLER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES WHETHER EXPRESS OR IMPLIED. THE SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO IMPLIED WARRANTIES WHATSOEVER. The Buyer acknowledges that neither the Seller nor any of its representatives or Affiliates nor any other Person has made any representation or warranty, express or implied, as to the accuracy or completeness of any memoranda, charts, summaries or schedules heretofore made available to the Buyer or its representatives or Affiliates or any other information which is not included in this Agreement or the Schedules hereto, and neither the Seller nor any of its representatives or Affiliates nor any other Person will have or be subject to any liability to the Buyer, any Affiliate of the Buyer or any other Person resulting from the distribution of any such information to, or use of any such information by, the Buyer, any Affiliate of the Buyer or any of their agents, consultants, accountants, counsel or other representatives. In making its determination to proceed with the transactions contemplated by this Agreement the Buyer and its Affiliates have relied solely on (a) the results of their own independent investigation and (b) the representations and warranties of the Seller expressly and specifically set forth in this Agreement and the Ancillary Agreements. The Buyer and its Affiliates expressly and specifically disclaim that they are relying upon or have relied upon any representation or warranty of any kind or nature, whether express or implied, not included in this Agreement or any Ancillary Agreement that may have been made by any Person, and acknowledge and agree that the Seller expressly and specifically disclaims any such other representations and warranties.
Section 11.15.Specific Performance. The parties agree that irreparable damage would occur in the event that any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached or the Closing was not consummated, and that money damages would not be an adequate remedy, even if available. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions, or any other appropriate form of specific performance or equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including the parties’ obligations to consummate the Closing) in any court of competent jurisdiction, this being in addition to any other remedy to which they are entitled at law or
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in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to post any bond or other security in connection with any such order or injunction.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
SELLER
| SCRIPPS MEDIA, INC. | ||||||||
By: | ||||||||
| Name: David Giles | ||||||||
| Title: Chief Legal Officer | ||||||||
| SCRIPPS BROADCASTING HOLDINGS LLC | ||||||||
By: | ||||||||
| Name: David Giles | ||||||||
| Title: Chief Legal Officer | ||||||||
| ION TELEVISION LICENSE, LLC | ||||||||
By: | ||||||||
| Name: David Giles | ||||||||
| Title: Chief Legal Officer | ||||||||
[Signature Page to Asset Purchase Agreement]
BUYER
| GRAY LOCAL MEDIA, INC. | ||||||||
By: | ||||||||
| Name: Kevin P. Latek | ||||||||
| Title: Executive Vice President | ||||||||
| GRAY TELEVISION LICENSEE, LLC | ||||||||
By: | ||||||||
| Name: Kevin P. Latek | ||||||||
| Title: Secretary | ||||||||
2
APPENDIX I
LIST OF BROADCAST TELEVISION STATIONS
1.Lafayette, Louisiana – KATC(TV)
2.Lansing, Michigan – WSYM(TV)
Exhibit 31.A
Section 302 Certifications
Certification
I, Adam P. Symson, certify that:
1.I have reviewed this report on Form 10-Q of The E.W. Scripps Company;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions):
a.all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: November 7, 2025
BY: /s/ Adam P. Symson
Adam P. Symson
President and Chief Executive Officer
Exhibit 31.B
Section 302 Certifications
Certification
I, Jason Combs, certify that:
1.I have reviewed this report on Form 10-Q of The E.W. Scripps Company;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions):
a.all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: November 7, 2025
BY: /s/ Jason Combs
Jason Combs
Executive Vice President and Chief Financial Officer
Exhibit 32.A
Section 906 Certifications
Certification Pursuant to Section 906 of the Sarbanes-Oxley Act Of 2002
I, Adam P. Symson, President and Chief Executive Officer of The E.W. Scripps Company (the “Company”), hereby certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Quarterly Report on Form 10-Q of the Company for the period ended September 30, 2025 (the “Report”), which this certification accompanies, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
BY: /s/ Adam P. Symson
Adam P. Symson
President and Chief Executive Officer
November 7, 2025
Exhibit 32.B
Section 906 Certifications
Certification Pursuant to Section 906 of the Sarbanes-Oxley Act Of 2002
I, Jason Combs, Executive Vice President and Chief Financial Officer of The E.W. Scripps Company (the “Company”), hereby certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Quarterly Report on Form 10-Q of the Company for the period ended September 30, 2025 (the “Report”), which this certification accompanies, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
BY: /s/ Jason Combs
Jason Combs
Executive Vice President and Chief Financial Officer
November 7, 2025