It’s a great day in broadcasting, or as great as things can get in this day and age. There will be no merger between Sinclair Broadcast Group and Tribune Media.
Today, according to Axios, Tribune announced it
â€œterminated its $3.9 billion merger agreement with Sinclair Broadcasting and that it has filed a lawsuit for breach of contract.â€
— UPDATE: Sinclair counter-suing Tribune, accusing its onetime takeover target of a â€œdeliberate effort to exploit and capitalize on an unfavorable and unexpected reaction from the FCC to capture a windfall.â€ —
Tribune sued in Delaware Chancery Court. Itâ€™s asking for â€œapproximately $1 billion of lost premium to Tribuneâ€™s stockholders and additional damages in an amount to be proven at trial,â€ according to TVNewsCheck.
The Wall Street Journal reported Tribune alleges Sinclair â€œfailed to make sufficient efforts to get their $3.9 billion deal approved by regulators.â€
The first sign of trouble from the Federal Communications Commission, other than delays, came last month. It was a surprise, considering how the FCC greased the wheels for the takeover, whether on purpose or not. (That’s under investigation.)
— UPDATE: The FCC inspector general cleared Chairman Ajit Pai of being unfairly biased in favor of the Sinclair Broadcast Groupâ€“Tribune Media merger. —
â€œTribune claimed that Sinclair used â€˜unnecessarily aggressive and protracted negotiationsâ€™ with the Department of Justice and the FCC over regulatory requirements and that it refused to sell the stations it needed to in order for regulatory approval.â€
In the filing, Tribune said:
â€œBeginning in November 2017, DOJ repeatedly told Sinclair that it would clear the merger if Sinclair simply agreed to sell stations in the 10 markets the parties had identified in the merger agreement. DOJâ€™s message to Sinclair could not have been clearer: if Sinclair agreed to sales in those 10 markets, â€˜We would be done.â€™â€
Thatâ€™s what happens when you get into business with a company like Sinclair. Iâ€™ve written plenty about it and its top officials, including those who inherited the company.
Personally, it proves what I wrote here on July 25,
â€œEven better, it looks like one of the seven deadly sins â€“ greediness â€“ may have killed the deal!â€
The deal, while complex and controversial, should not have been a problem.
The biggest hurdle was supposed to be national ownership rules, but ironically, the FCC took care of that just weeks before the dealâ€™s May 2017 announcement.
â€œBroadcasters may own stations that reach 39 percent of U.S. households â€“ but how that audience is measured has been in dispute. Last year, the FCCâ€™s Republican majority reinstated a measure that treats ultra-high-frequency or UHF band stations as counting for just half of their lower-frequency counterparts, enabling broadcasters to own more stations and enjoy greater reach.â€
Democrats had gotten rid of the so-called UHF discount the year before, since it started way back at a time when there where major reception differences between VHF and UHF stations on your television dial.
â€œFCC Chairman Ajit Pai, a Republican appointed by President Donald Trump,â€ is even under investigation by his own agencyâ€™s inspector general because of the timing of the reinstatement and whether it was done for Sinclair.
But still, the deal wouldâ€™ve been so big that some stations would have to go, and thatâ€™s what led to problems. Specifically, it was which stations the combined Sinclair-Tribune would own, would have to go.
Sinclair and Tribune are two of the country’s largest broadcasters.
Sinclair, the largest, claims it â€œowns, operates and/or provides services to 191 television stations in 89 markets.â€
According to TVSpy,
â€œSinclair was proposing to control 233 stations in 108 markets, adding 42 Tribune stations to their current roster.â€
That wouldâ€™ve included the nationâ€™s biggest TV markets where Sinclair has no presence, like New York, Los Angeles, Chicago and Philadelphia.
But there was a lot of pushback from public interest groups fighting for smaller companies and localism, and againstÂ micromanaging the largest group of stations in the country.
They were joined by Democrats concerned Sinclair would give even more stations its conservative bent. Sinclair requires so-called must-runs, including airing commentaries by one of President Trump’s former communications spokespersons, Boris Epshteyn.Â The company also forced anchors at their stations to read a message that parroted President Trump’s talking points about the media.
AndÂ President Trumpâ€™s son-in-law and advisor Jared Kushner said Sinclair executives worked with the campaign to spread pro-Trump messages in Sinclair newscasts when he was running against Hillary Clinton, which Sinclair vehemently denied.
Plus, conservative media outlets were afraid Sinclair would get in the game and interfere with their efforts to compete with Fox News. And all the time passing didn’t help Sinclair’s case.
Meanwhile, SinclairÂ defended the merger as necessary consolidation in the face of competition from cable and tech, according to NBC News.
The network also reported it came â€œin the face of opposition from the FCC andÂ questions about whether Sinclair tried to misleadÂ the government with its divestiture plan, in which it sought to sell some stationsÂ to parties close to Sinclair.â€ (Iâ€™ve written about these so-called sidecar agreements time and time again.)
The first sign of trouble, other than delays, came last month.
TVNewsCheck wrote Pai, perhaps the deal’s biggest cheerleader after President Trump, decided he had â€œserious concernsâ€ about the Tribune stations Sinclair would get in Chicago, Dallas and Houston â€“ that Sinclair might still be able to operate them â€œin practice, even if not in name.â€
â€œPai suggested Sinclair would sell but still operate those stations, which is illegal. The FCC then sent the deal for review by an administrative law judge.â€
Sinclair has been known to use shell corporations, local marketing agreements and joint sales agreements to operate stations it doesn’t own. (See Cunningham Broadcasting, for example. Click here for Baltimore and here for mid-Michigan.)
There were also concerns about spinning off stations for unreasonably low prices.
Tribuneâ€™s complaint alleges
â€œSinclairâ€™s material breaches were willful breaches of the merger agreement, because they were deliberate acts and deliberate failures to act that were taken with the actual knowledge that they would or would reasonably be expected to result in or constitute a material breach.
â€œAs a result of Sinclairâ€™s breaches, Tribune has sustained financial harm and has lost the expected benefits of the merger agreement.â€
â€œTribune Media Company today announced that it has terminated its merger agreement (the â€˜Merger Agreementâ€™) with Sinclair Broadcast Group, Inc. (â€˜Sinclairâ€™), and that it has filed a lawsuit in the Delaware Chancery Court against Sinclair for breach of contract. The lawsuit seeks compensation for all losses incurred as a result of Sinclairâ€™s material breaches of the Merger Agreement.
â€œIn the Merger Agreement, Sinclair committed to use its reasonable best efforts to obtain regulatory approval as promptly as possible, including agreeing in advance to divest stations in certain markets as necessary or advisable for regulatory approval. Instead, in an effort to maintain control over stations it was obligated to sell, Sinclair engaged in unnecessarily aggressive and protracted negotiations with the Department of Justice and the Federal Communications Commission (the â€˜FCCâ€™) over regulatory requirements, refused to sell stations in the markets as required to obtain approval, and proposed aggressive divestment structures and related-party sales that were either rejected outright or posed a high risk of rejection and delayâ€”all in derogation of Sinclairâ€™s contractual obligations. Ultimately, the FCC concluded unanimously that Sinclair may have misrepresented or omitted material facts in its applications in order to circumvent the FCCâ€™s ownership rules and, accordingly, put the merger on indefinite hold while an administrative law judge determines whether Sinclair misled the FCC or acted with a lack of candor. As elaborated in the complaint we filed earlier today, Sinclairâ€™s entire course of conduct has been in blatant violation of the Merger Agreement and, but for Sinclairâ€™s actions, the transaction could have closed long ago. (I highlighted that last sentence. â€”Lenny)
â€œâ€˜In light of the FCCâ€™s unanimous decision, referring the issue of Sinclairâ€™s conduct for a hearing before an administrative law judge, our merger cannot be completed within an acceptable timeframe, if ever,â€™â€ said Peter Kern, Tribune Mediaâ€™s Chief Executive Officer. â€˜This uncertainty and delay would be detrimental to our company and our shareholders. Accordingly, we have exercised our right to terminate the Merger Agreement, and, by way of our lawsuit, intend to hold Sinclair accountable.â€™â€
(Tribune’s statement continued with earnings information and then returned to the Sinclair situation. See that at the bottom of this post, along with its CEO’s memo to employees.)
Thatâ€™s a big change from exactly three weeks ago, July 19, when Tribune responded to the FCC issuing its Hearing Designation Order with this statement:
â€œTribune Media has now had the opportunity to review the FCCâ€™s troubling Hearing Designation Order.Â We are currently evaluating its implications and assessing all of our options in light of todayâ€™s developments.
â€œWe will be greatly disappointed if the transaction cannot be completed, but will rededicate our efforts to running our businesses and optimizing assets.Â Thanks to the great work of our employees, we are having a strong year despite the significant distraction caused by our work on the transaction and, thus, are well-positioned to continue maximizing value for our shareholders going forward.â€
Click here for the 62-page complaint.
In case you don’t plan to read it all,Â The Washington Post reported Tribune accused Sinclair of
â€œengaging in â€˜belligerent and unnecessarily protracted negotiationsâ€™ with the FCC as well as the Justice Department.â€ Also, it argued â€œin its lawsuit that Sinclair had been â€˜confrontational with and belittling of DOJ staff.â€™ During negotiations, for example, Sinclairâ€™s general counsel, Barry Faber, challenged the Justice Departmentâ€™s top antitrust official, Makan Delrahim, telling him at one point, â€˜sue me,â€™ Tribune alleged. In another meeting, Faber accused Delrahim of â€˜misunderstand[ing] the industry,â€™ the suit said.â€
Also new, The Post reported Tribune alleged it threatened to sue Sinclair in February if it didnâ€™t divest stations to secure the DOJâ€™s support, prompting Sinclair to revise its offer.
Click here for 176 pages of exhibits.
Sinclair, for its part, put out this response:
â€œSinclair Broadcast Group, Inc. announced today that it received a termination notice of its Merger Agreement from Tribune Media Company. In response, the Company subsequently has withdrawn with prejudice its FCC applications to acquire Tribune and filed with the Administrative Law Judge a notice of withdrawal of the applications and motion to terminate the hearing.â€ â€˜â€™
â€œâ€˜We are extremely disappointed that after 15 months of trying to close the Tribune transaction, we are instead announcing its termination,â€™ commented Chris Ripley, President & Chief Executive Officer. â€˜We unequivocally stand by our position that we did not mislead the FCC with respect to the transaction or act in any way other than with complete candor and transparency. As Tribune, however commented, in their belief, the FCCâ€™s recent designation of the deal for a hearing in front of an Administrative Law Judge would have resulted in a potentially long and burdensome process and, therefore, pursuing the transaction was not in the best interest of their company and shareholders. As for Tribuneâ€™s lawsuit, we fully complied with our obligations under the merger agreement and tirelessly worked to close this transaction. The lawsuit described in Tribuneâ€™s public filings today is entirely without merit, and we intend to defend against it vigorously.
â€œâ€˜Nonetheless, we wish to thank both our and Tribuneâ€™s employees and our many advisers who have committed a tremendous amount of time and effort over the past 15 months towards the acquisition of Tribune. It is unfortunate that those efforts have not been realized. The combined company would have benefited the entire broadcast industry and the public through the advancement of ATSC 3.0, increased local news and enhanced programming.â€™â€
FTVLive’s Scott Jones brought more from Ripley.
Despite Sinclair stock starting lower today, the company announced itâ€™s buying back up to $1 billion of its Class A common shares.
â€œWe strongly believe in the long term outlook of our company and disagree with theÂ marketâ€™s current discounted view on our share price,â€ Ripley said. â€œThe $1 billion authorization does not use ourÂ future free cash flow generation, but simply the excess cash currently on our balance sheet.â€
Sinclair stock ended the day 2.58 percent higher, but fell in after-hours trading.
The FCC did not comment today.
The Sinclair-Tribune deal wouldâ€™ve led to several others. Stations that put the combination above the legal ownership limit were supposed to be spun off to several different companies. Now they wonâ€™t.
One of those companies is 21st Century Fox, which The Hollywood Reporter described as partially merging with Disney/ABC. Disney still plans to buy â€œthe Fox film and TV studio, Nat Geo, FX Networks, Star India, 39 percent of Sky and 30 percent of Hulu â€¦ along with 22 regional sports networks (RSNs).â€
Disney is selling those regional sports networks because the Justice Department was worried they â€œcoupled with ESPN would create a sports monopoly.â€
Yahoo! Finance reports Disney will haveÂ 90 days from the deal closing to sell, andÂ CEO Bob Iger said on Tuesday’s earnings call,
â€œThe RSNs will be sold, and the process of selling them is actually already beginning. Conversations are starting, interest is being expressed. And itâ€™s likely that weâ€™ll negotiate a deal to sell them but the deal will not be fully executed or close until after the overall deal for 21st Century Fox closes.â€
It added, Iger said Disney â€œassumed the responsibility of divestitureâ€ in December 2017 when it first made an offer to Fox, â€œif the regulatory process demanded that we do that.â€
There was never a possibility Fox would keep the networks or buy them back.
Yahoo! suggests potential buyers are Comcast, which has its own RSNs and lost the bidding war for Foxâ€™s assets; Discovery Communications;Â AT&T, owner of DirecTV and now also Time Warner, but the Justice Department is appealing that; Verizon, owner of Fios; and another cable company, Charter Communications.
So Fox will be left with â€œthe Fox broadcast network, FS1, FS2, Fox Business Network and the Fox News Channel, which, collectively, is known for now as New Fox,â€ according toÂ The Hollywood Reporter.
It planned to buy some of those stations that had to be spun off from the Sinclair-Tribune deal, probably insisting on the number and places (NFL football markets), or threatening to pull the stationsâ€™ affiliations and put Fox programming on a competitor.
â€œLive sports is clearly the most valuable content in our industry,â€ executive chairman Lachlan Murdoch said during a conference call, yesterday. His company is now paying a fortune for rights to Thursday Night Football.
But now, with no merger, the station sales to Fox and others are in jeopardy, and decisions whether to sell or not return to Sinclair and Tribune.
However, new deals may already be in the works.Â Just Monday, Tribune announced it
â€œreached a comprehensive agreement with Fox Broadcasting Company to renew the existing Fox affiliations of eight Tribune Media television stations, including KCPQ-TV (Seattle), KDVR-TV (Denver), WJW-TV (Cleveland), KTVI-TV (St. Louis), WDAF-TV (Kansas City), KSTU-TV (Salt Lake City), WITI-TV (Milwaukee), WGHP-TV (Greensboro, NC). Terms of the agreement were not disclosed.â€
So we can expect those stations to keep airing Fox programming unless thereâ€™s something in the â€œterms of the agreementâ€ that mentions the merger not happening.
On top of that, last week, FTVLive’s Scott Jones reported, â€œFox is very interested in a number of the Tribune stationsâ€ â€“ still â€“ and, â€œthe suits from Fox have been spotted inside (those) Tribune stations looking aroundâ€ as if to buy. So weâ€™ll see if it ends up with more Tribune stations than it was expected to buy under the deal.
Not mentioned is Miami/Fort Lauderdale Tribune station WSFL. That CW affiliate was going to be sold to Fox, even though Fox has an affiliation agreement with Sunbeamâ€™s WSVN in South Florida. What wouldâ€™ve happened if Fox bought a competitor was anyoneâ€™s guess, but thatâ€™s now a moot point.
Of course, the big question is whether Tribune will still sell at all. TVNewsCheckâ€™s Harry Jessell reported Tribune CEO Peter Kern cast some doubt on that today, telling analysts the company may want to â€œenhanceâ€ its TV station portfolio.
We know Cox Media Group is exploring selling. Others will if the price is right, and prices should rise if there are fewer, bigger companies in the business â€“ especially if theyâ€™re allowed to buy more after the FCC takes another look at raising ownership caps.
Despite uncertainty, thereâ€™s probably a lot of relief at Tribune stations they won’t have bosses from Sinclair.
TVNewsCheckâ€™s Harry Jessell â€“ who I quote a lot â€“ recently wrote
â€œhow Sinclairâ€™s aggressive approach in its dealing with the Justice Department and the FCC with regard to its merger with Tribune has been polluting the best regulatory atmosphere in Washington since the Reagan administration.â€
Jessell ended his column by writing,
â€œSo, letâ€™s recap. Sinclairâ€™s attempt to win regulatory approval of its Tribune merger has so far severely damaged Sinclairâ€™s standing at the FCC, aggravated the most broadcast-friendly FCC chairman in decades, subjected its own and several other broadcast groupsâ€™ basic business dealings to intense Justice Department scrutiny and exposed those same groups to (an antitrust) lawsuit that, no matter how frivolous, needs to be answered.â€
As promised earlier, this is the rest of today’s Tribune statement:
On May 8, 2017, the Company entered into the Merger Agreement with Sinclair, providing for the acquisition by Sinclair of all of the outstanding shares of the Companyâ€™s Class A common stock and Class B common stock by means of a merger of Samson Merger Sub Inc., a wholly owned subsidiary of Sinclair, with and into Tribune Media Company (the â€œMergerâ€), with the Company surviving the Merger as a wholly owned subsidiary of Sinclair.
In the Merger, each share of the Companyâ€™s common stock would have been converted into the right to receive (i) $35.00 in cash, without interest and less any required withholding taxes, and (ii) 0.2300 of a share of Class A common stock of Sinclair.
The consummation of the Merger was subject to the satisfaction or waiver of certain important conditions, including, among others: (i) the approval of the Merger by the Companyâ€™s stockholders, (ii) the receipt of approval from the FCC and the expiration or termination of the waiting period applicable to the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the â€œHSR Actâ€) and (iii) the effectiveness of a registration statement on Form S-4 registering the Sinclair Common Stock to be issued in connection with the Merger and no stop order or proceedings seeking the same having been initiated by the Securities and Exchange Commission (the â€œSECâ€).
Pursuant to Section 7.1(e) of the Merger Agreement, Sinclair was â€œentitled to direct, in consultation with the Company, the timing for making, and approve (such approval not to be unreasonably withheld) the content of, any filings with or presentations or submissions to any Governmental Authority relating to this Agreement or the transactions contemplated hereby and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of negotiations with, Governmental Authorities relating to this Agreement or the transactions contemplated hereby.â€ Applications to regulatory authorities made jointly by Sinclair and Tribune in connection with the Merger were made at the direction of Sinclair pursuant to its authority under this provision of the Merger Agreement.
On September 6, 2017, Sinclairâ€™s registration statement on Form S-4 registering the Sinclair Common Stock to be issued in the Merger was declared effective by the SEC.
On October 19, 2017, holders of a majority of the outstanding shares of the Companyâ€™s Class A Common Stock and Class B Common Stock, voting as a single class, voted on and approved the Merger Agreement and the transactions contemplated by the Merger Agreement at a duly called special meeting of Tribune Media Company shareholders.
The applications seeking FCC approval of the transactions contemplated by the Merger Agreement (the â€œApplicationsâ€) were filed on June 26, 2017, and the FCC issued a public notice of the filing of the Applications and established a comment cycle on July 6, 2017. Several petitions to deny the Applications, and numerous other comments, both opposing and supporting the transaction, were filed in response to the public notice. Sinclair and the Company jointly filed an opposition to the petitions to deny on August 22, 2017 (the â€œJoint Oppositionâ€). Petitioners and others filed replies to the Joint Opposition on AugustÂ 29, 2017. On September 14, 2017, the FCCâ€™s Media Bureau issued a Request for Information (â€œRFIâ€) seeking additional information regarding certain matters discussed in the Applications. Sinclair submitted a response to the RFI on OctoberÂ 5, 2017. On October 18, 2017, the FCCâ€™s Media Bureau issued a public notice pausing the FCCâ€™s 180-day transaction review â€œshot-clockâ€ for 15 days to afford interested parties an opportunity to comment on the response to the RFI. On January 11, 2018, the FCCâ€™s Media Bureau issued a public notice pausing the FCCâ€™s shot-clock as of January 4, 2018 until Sinclair has filed amendments to the Applications along with divestiture applications and the FCC staff has had an opportunity to review any such submissions. On February 20, 2018, the parties filed an amendment to the Applications (the â€œFebruary 20 Amendmentâ€) that, among other things, (1) requested authority under the FCCâ€™s â€œLocal Television Multiple Ownership Ruleâ€ (the â€œDuopoly Ruleâ€) for Sinclair to own two top four rated stations in each of three television markets (the â€œTop-4 Requestsâ€) and (2) identified stations (the â€œDivestiture Stationsâ€) in 11 television markets that Sinclair proposed to divest in order for the Merger to comply with the Duopoly Rule and the National Television Multiple Ownership Rule. Concurrently, Sinclair filed applications (the â€œDivestiture Trust Applicationsâ€) proposing to place certain of the Divestiture Stations in an FCC-approved divestiture trust, if and as necessary, in order to facilitate the orderly divestiture of those stations following the consummation of the Merger. On February 27, 2018, in furtherance of certain undertakings made in the Applications and the February 20 Amendment, the parties filed separate applications seeking FCC approval of the sale of Tribuneâ€™s stations WPIX-TV, New York, New York, and WGN-TV, Chicago, Illinois, to third-party purchasers. On March 6, 2018, the parties filed an amendment to the Applications that, among other things, eliminated one of the Top-4 Requests and modified the remaining two Top-4 Requests. Also on March 6, 2018, the parties modified certain of the Divestiture Trust Applications. On April 24, 2018, the parties jointly filed (1) an amendment to the Applications (the â€œApril 24 Amendmentâ€) that superseded all prior amendments and, among other things, updated the pending Top-4 Requests and provided additional information regarding station divestitures proposed to be made by Sinclair in 15 television markets in order to comply with the Duopoly Rule or the National Television Multiple Ownership Rule, (2) a letter withdrawing the Divestiture Trust Applications and (3)Â a letter withdrawing the application for approval of the sale of WPIX-TV to a third-party purchaser. In order to facilitate certain of the compliance divestitures described in the April 24 Amendment, between April 24, 2018 and AprilÂ 30, 2018, Sinclair filed applications seeking FCC consent to the assignment of license or transfer of control of certain stations in 11 television markets.
On May 8, 2018, the Company, Sinclair Television Group, Inc. (â€œSinclair Televisionâ€) and Fox Television Stations, LLC (â€œFoxâ€) entered into an asset purchase agreement (the â€œFox Purchase Agreementâ€) to sell the assets of seven network affiliates of Tribune for $910.0 million in cash, subject to post-closing adjustments. The network affiliates subject to the Fox Purchase Agreement are: KCPQ (Tacoma, WA); KDVR (Denver, CO); KSTU (Salt Lake City, UT); KSWB-TV (San Diego, CA); KTXL (Sacramento, CA); WJW (Cleveland, OH); and WSFL-TV (Miami, FL). The closing of the sale pursuant to the Fox Purchase Agreement (the â€œClosingâ€) was subject to approval of the FCC and clearance under the HSR Act, as well as the satisfaction or waiver of all conditions of the consummation of the Merger, which was scheduled to occur immediately following the Closing.
On May 14, 2018, Sinclair and Tribune filed applications for FCC approval of additional station divestitures to Fox pursuant to the Fox Purchase Agreement. On May 21, 2018, the FCC issued a consolidated public notice accepting the divestiture applications filed between April 24, 2018 and May 14, 2018, for filing and seeking comment on those applications and on the April 24 Amendment, and establishing a comment cycle ending on July 12, 2018.
On July 16, 2018, the Chairman of the FCC issued a statement that he had â€œserious concerns about the Sinclair/Tribune transactionâ€ because of evidence suggesting â€œthat certain station divestitures that have been proposed to the FCC would allow Sinclair to control [the divested] stations in practice, even if not in name, in violation of the law,â€ and that he had circulated to the other Commissioners â€œa draft order that would designate issues involving certain proposed divestitures for a hearing in front of an administrative law judge.â€
On July 18, 2018, at the direction of Sinclair pursuant to its authority under the Merger Agreement, Sinclair and Tribune jointly filed an amendment to the Applications reflecting that the applications for divestiture of WGN-TV (Chicago), KDAF (Dallas), and KIAH (Houston) filed in connection with the April 24 Amendment were being withdrawn, that WGN-TV would not be divested, and that KDAF and KIAH would be placed in a divestiture trust pending sales to one or more new third parties. The applications for divestiture of WGN-TV, KDAF and KIAH were withdrawn by concurrent letter filings. On July 19, 2018, the FCC released a Hearing Designation Order (â€œHDOâ€) referring the Applications to an FCC Administrative Law Judge (â€œALJâ€) for an evidentiary hearing to resolve what the FCC concluded are â€œsubstantial and material questions of factâ€ regarding (1) whether Sinclair was the real party-in-interest to the divestiture applications for WGN-TV, KDAF, and KIAH, and, if so, whether Sinclair engaged in misrepresentation and/or lack of candor in its applications with the FCC; (2) whether consummation of the merger would violate the FCCâ€™s broadcast ownership rules; (3) whether grant of the Applications would serve the public interest, convenience, and/or necessity; and (4) whether the Applications should be granted or denied. The HDO designated as parties to the proceeding the FCCâ€™s Enforcement Bureau and persons who had filed formal petitions to deny the Applications, and directed the ALJ to establish a procedural schedule by Friday, August 24, 2018.
On August 2, 2017, the Company received a request for additional information and documentary material, often referred to as a â€œsecond requestâ€, from the United States Department of Justice (the â€œDOJâ€) in connection with the Merger Agreement. The second request was issued under the HSR Act. Sinclair received a substantively identical request for additional information and documentary material from the DOJ in connection with the transactions contemplated by the Merger Agreement. The parties entered into an agreement with the DOJ on September 15, 2017 by which they agreed not to consummate the Merger Agreement before certain dates related to their certification of substantial compliance with the second request (which occurred in November 2017) and to provide the DOJ with 10 calendar daysâ€™ notice prior to consummating the Merger Agreement. Although Sinclair and DOJ reached agreement on a term sheet identifying the markets in which stations would have to be divested, they did not reach a definitive settlement and their discussions on significant provisions remained ongoing as of August 2018.
Pursuant to the Merger Agreement, the Company had the right to terminate the Merger Agreement if Sinclair failed to perform in all material respects its covenants, and such failure was not cured by the end date of August 8, 2018. Additionally, either party may terminate the Merger Agreement if the Merger is not consummated on or before August 8, 2018 (and the failure for the Merger to have been consummated by such date was not primarily due to a breach of the Merger Agreement by the party terminating the Merger Agreement). On August 9, 2018, the Company provided notification to Sinclair that it had terminated the Merger Agreement, effective immediately, on the basis of Sinclairâ€™s willful and material breaches of its covenants and the expiration of the second end date thereunder. In connection with the termination of the Merger Agreement, on August 9, 2018, the Company provided notification to Fox that it has terminated the Fox Purchase Agreement, effective immediately. Under the terms of each of the Merger Agreement and the Fox Purchase Agreement, no termination fees are payable by any party.
On August 9, 2018, the Company filed a complaint in the Chancery Court of the State of Delaware against Sinclair, alleging breach of contract under the Merger Agreement. The complaint alleges that Sinclair willfully and materially breached its obligations under the Merger Agreement to use its reasonable best efforts to promptly obtain regulatory approval of the Merger so as to enable the Merger to close as soon as reasonably practicable. The lawsuit seeks damages for all losses incurred as a result of Sinclairâ€™s breach of contract under the Merger Agreement.
This is Tribune CEO Kern’s memo to employees, thanks again to FTVLive’s Scott Jones:
Earlier this morning we announced the termination of our proposed merger with Sinclair and that we have filed a lawsuit against Sinclair for breach of contractâ€”attached (above â€”Lenny) is the press release we issued a short time ago.
Given the developments of the last few weeks, and the decision by the Federal Communications Commission to refer certain issues to an administrative law judge in light of Sinclairâ€™s conduct, itâ€™s highly unlikely that this transaction could ever receive FCC approval and be completed, and certainly not within an acceptable timeframe. This delay and uncertainty would be detrimental to our company, to our business partners, to our employees and to our shareholders. Accordingly, our Board made the decision to terminate the merger agreement with Sinclair to enable us to refocus on our many opportunities to drive the company forward and enhance shareholder value.
As for the lawsuit, we are confident that Sinclair did not live up to its obligations under the merger agreement and we intend to hold them accountable. A suit like this does not get resolved overnight and it is the last thing you should be thinking about, but I want you to know that Tribune did everything it was supposed to do, and we will make sure we are treated fairly.
Right now, I am sure many of you are still absorbing the news and wondering what it means for our company, for our future, and most especially for each of you. I want to take a moment to answer these questions and address some of your concerns as we now re-adjust to the old normal of running our great and storied Tribune Media Company.
So, letâ€™s begin thereâ€”Tribune Media remains as strong as ever, with great TV stations, important local news and sports programming, a re-energized and financially powerful cable network, and a terrific history of serving our viewers, our advertisers, and our MVPD and network partners. You need look no further than the exceptional financial results we released today for proof of that. Our consistent success is directly related to your talent, your experience, your innovation, and your willingness to give your best every day.
As for the future, we continue to live in complex times in the media world. New consumer habits, new entrants to the space, new competitors every day, and consolidation going on all around us. Rapid change has become the normâ€”itâ€™s impossible to predict the next big thing. What I do know, though, is that weâ€™ve got valuable assets, great people running them, and we remain one of the preeminent broadcasting companies in America.
No doubt the rumor mill will begin anew with speculation about who might buy us or who we might buy or whether the regulatory landscape still favors consolidation. We canâ€™t do anything about such speculation. What we can do is rededicate ourselves to our own performance. Letâ€™s shake off the cobwebs of deal distraction, ignore the outside noise, and continue delivering on our commitment to each other, to our customers, to our partners and to the communities we serve. If we do that, the rest will take care of itself.
Letâ€™s get together for a companywide town hall meeting tomorrow at Noon ET. Weâ€™ll broadcast the meeting live to our business units, talk more about all these issues and take your questionsâ€”you can submit questions in advance of the meeting to: email@example.com. Â In the meantime, if you have any concerns, our HR team is ready to help; and Gary Weitman can handle any media inquiries you might get.
Thank you, again,
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