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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K

☒

Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year ended December 31, 2019

  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 1-13796

________________________________________

GRAY TELEVISION, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Georgia

(State or Other Jurisdiction of

Incorporation or Organization)

58-0285030

(I.R.S. Employer

Identification No.)
   

4370 Peachtree Road, NE Atlanta, GA

(Address of Principal Executive Offices)

30319

(Zip Code)

 

Registrant’s telephone number, including area code: (404) 504-9828

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered

Class A Common Stock (no par value)

 GTN.A

New York Stock Exchange
Common Stock (no par value) GTN New York Stock Exchange

 

Securities registered pursuant to Section 12(g) of the Act: NONE

_________________________________________

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒

 

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 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 ☒   Accelerated filer ☐
Non-accelerated filer ☐    Smaller reporting company ☐
Emerging growth company ☐    

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒

 

The aggregate market value of the voting stock (based upon the closing sales prices quoted on the New York Stock Exchange) held by non-affiliates of the registrant (solely for purposes of this calculation, all directors, executive officers and 10% or greater stockholders of the registrant are considered to be “affiliates”) as of June 30, 2019: Class A Common Stock and Common Stock; no par value –$1,500,331,986.

 

Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date.

 

Common Stock (No Par Value)

  

Class A Common Stock (No Par Value)

92,819,689 shares outstanding as of February 21, 2020

  

7,048,006 shares outstanding as of February 21, 2020

 

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the registrant’s definitive proxy statement for the 2020 annual meeting of stockholders, to be filed within 120 days of the registrant’s fiscal year end, pursuant to Regulation 14A are incorporated by reference into Part III, Items 10, 11, 12, 13 and 14 hereof.

 
 
 
 

 

 

Gray Television Inc.

  
     
     
 

INDEX

  
     
     

PART OR ITEM

DESCRIPTION

PAGE
     
 

PART I

  

Item 1.

Business.

3

Item 1A.

Risk Factors.

17

Item 1B.

Unresolved Staff Comments.

31

Item 2.

Properties.

31

Item 3.

Legal Proceedings.

31

Item 4.

Mine Safety Disclosures.

31
 

Information about our Executive Officers.

31
     
 

PART II

  

Item 5.

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

33

Item 6.

Selected Financial Data.

37

Item 7.

Management’s Discussion and Analysis of Financial Condition and Results of Operations.

38

Item 7A.

Quantitative and Qualitative Disclosures about Market Risk.

51

Item 8.

Financial Statements and Supplementary Data.

52

Item 9.

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

104

Item 9A.

Controls and Procedures.

104

Item 9B.

Other Information.

105
     
 

PART III

  

Item 10.

Directors, Executive Officers and Corporate Governance.

105

Item 11.

Executive Compensation.

106

Item 12.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

106

Item 13.

Certain Relationships and Related Transactions, and Director Independence.

107

Item 14.

Principal Accountant Fees and Services.

107
     
 

PART IV

  

Item 15.

Exhibits, Financial Statement Schedules.

107

Item 16.

Form 10-K Summary.

111
     

SIGNATURES

  

112

 

2
 
 

 

PART 1

 

Item 1. Business.

 

In this annual report on Form 10-K (the “Annual Report”), unless otherwise indicated or the context otherwise requires, the words “Gray,” the “Company,” “we,” “us,” and “our” refer to Gray Television, Inc. and its consolidated subsidiaries.

 

Our common stock and our Class A common stock are listed on The New York Stock Exchange (the “NYSE”) under the symbols “GTN” and “GTN.A.”

 

Unless otherwise indicated, all station rank, in-market share and television household data herein are derived from reports prepared by Comscore, Inc. (“Comscore”). While we believe this data to be accurate and reliable, we have not independently verified such data nor have we ascertained the underlying economic assumptions relied upon therein, and cannot guarantee the accuracy or completeness of such data.

 

General

 

We are a television broadcast company headquartered in Atlanta, Georgia, that is the largest owner of top-rated local television (“television” or “TV”) stations and digital assets in the United States. We currently own and/or operate television stations and leading digital properties in 93 television markets that collectively reach approximately 24% of US television households. Over calendar year 2019, our stations were ranked first in 68 markets, and first and/or second in 86 markets, as calculated by Comscore’s audience measurement service. We also own video program production, marketing, and digital businesses including Raycom Sports, Tupelo-Raycom, and RTM Studios, the producer of PowerNation programs and content, which we refer to collectively as our “production companies.”

 

Our operating revenues are derived primarily from broadcast and internet advertising and from retransmission consent fees. For the years ended December 31, 2019, 2018 and 2017 our total revenues were $2.1 billion, $1.1 billion and $883 million, respectively.

 

Markets and Stations

 

We believe a key driver for our strong market position both in the past and in the future is our focus on strong local news and information programming. We believe that our market position and our strong local teams have enabled us to maintain more stable revenues compared to many of our peers.

 

We are diversified across our markets and network affiliations. In 2019 and 2018, our largest market by revenue was Cleveland, Ohio, which contributed approximately 4% of our revenue in 2019. Our top 10 markets by revenue contributed approximately 24% and 32% of our revenue for the years ended December 31, 2019 and 2018, respectively. For the year ended December 31, 2019, our CBS-affiliated channels accounted for approximately 34% of our revenue; our NBC-affiliated channels accounted for approximately 32% of our revenue; our ABC-affiliated channels accounted for approximately 15% of our revenue; and our FOX-affiliated channels accounted for approximately 11% of our revenue. We refer to CBS, NBC, ABC and FOX collectively as the “Big Four.” 

 

In each of our markets, we own and operate at least one television station broadcasting a primary channel affiliated with one of the Big Four networks. We also own additional stations in some markets, some of which also broadcast primary channels affiliated with one of the Big Four networks. Nearly all of our stations also broadcast secondary digital channels that are affiliated with various networks, or are independent of any network. The terms of our affiliations with broadcast networks are governed by network affiliation agreements. Each network affiliation agreement provides the affiliated station with the right to broadcast all programs transmitted by the affiliated network. Our network affiliation agreements with the Big Four broadcast networks currently expire at various dates through December 2023.

 

3
 

 

Television Industry Background

 

The Federal Communications Commission (“FCC”) grants broadcast licenses to television stations. There are only a limited number of broadcast licenses available in any one geographic area. Each commercial television station in the United States is assigned to one of 210 designated market areas (“DMAs”). These markets are ranked in size according to their number of television households, with the market having the largest number of television households ranked number one (New York City). Each DMA is an exclusive geographic area consisting of all counties (and in some cases, portions of counties) in which the home-market commercial television stations receive the greatest percentage of total viewing hours.

 

Television station revenue is derived primarily from local, regional and national advertising revenue and retransmission consent fees. Television station revenue is also derived to a much lesser extent from studio and tower space rental fees and production activities. “Advertising” refers primarily to advertisements broadcast by television stations, but it also includes advertisements placed on a television station’s website and sponsorships of television programming and off-line content (such as email messages, mobile applications, and other electronic content distributed by stations). Advertising rates are generally based upon: (i) the size of a station’s market, (ii) a station’s overall ratings, (iii) a program’s popularity among targeted viewers, (iv) the number of advertisers competing for available time, (v) the demographic makeup of the station’s market, (vi) the availability of alternative advertising media in the market, (vii) the presence of effective sales forces and (viii) the development of projects, features and programs that tie advertiser messages to programming and/or digital content on a station’s website or mobile applications.

 

Advertising rates can also be determined in part by the station’s ratings and market share among particular demographic groups that an advertiser may be targeting. Because broadcast stations rely on advertising revenues, they are sensitive to cyclical changes in the economy. The sizes of advertisers’ budgets, which can be affected by broad economic trends, can affect the broadcast industry in general and the revenues of individual broadcast television stations.

 

Strategy

 

Our success is based on the following strategies:

 

Grow by Leveraging our Diverse National Footprint. We serve a diverse and national footprint of television stations. We currently operate in DMAs ranked between 12 and 209. We operate in many markets that we believe have the potential for significant political advertising revenue in periods leading up to elections. We are also diversified across our broadcast programming.

 

Maintain and Grow our Market Leadership Position. According to Comscore, Inc., during calendar year 2019, our owned and operated television stations achieved the #1 ranking in overall audience in 68 of our 93 markets. In addition, our stations achieved the #1 and/or #2 ranking in overall audience in 86 of our 93 markets.

 

We believe there are significant advantages in operating the #1 or #2 television broadcasting stations in a local market. Strong audience and market share allow us to enhance our advertising revenue through price discipline and leadership. We believe a top-rated news platform is critical to capturing incremental sponsorship and political advertising revenue. Our high-quality station group allows us to generate higher operating margins, which allows us additional opportunities to reinvest in our business to further strengthen our network and news ratings. Furthermore, we believe operating the top ranked stations in our various markets allows us to attract and retain top talent.

 

4
 

 

We also believe that our local market leadership positions help us in negotiating more beneficial terms in our major network affiliation agreements, which expire at various dates through December 2023, and in our syndicated programming agreements. These leadership positions also give us additional leverage to negotiate retransmission contracts with cable system operators, telephone video distributors, direct broadcast satellite (or “DBS”) operators, and other multichannel video programming distributors (or “MVPDs”).

 

We intend to maintain our market leadership position through continued prudent investment in our news and syndicated programs, as well as continued technological advances and workflow improvements. We expect to continue to invest in technological upgrades in the future. We believe the foregoing will help us maintain and grow our market leadership; thereby enhancing our ability to grow and further diversify our revenues and cash flows.

 

Continue to Pursue Strategic Growth and Accretive Acquisition Opportunities. Over the last several years, the television broadcasting industry has been characterized by a high level of acquisition activity. We believe that there are a number of television stations, and a few station groups, that have attractive operating profiles and characteristics, and that share our commitment to local news coverage in the communities in which they operate and to creating high-quality and locally-driven content. On a highly selective basis, we may pursue opportunities for the acquisition of additional television stations or station groups that fit our strategic and operational objectives, and where we believe that we can improve revenue, efficiencies and cash flow through active management and cost controls. As we consider potential acquisitions, we primarily evaluate potential station audience and revenue shares and the extent to which the acquisition target would positively impact our existing station operations. Consistent with this strategy, from October 31, 2013 through December 31, 2019, we completed several acquisition and divestiture transactions, including some that had a material impact on our results of operations. For more information on these transactions, see Note 3 “Acquisitions and Divestitures” of our audited consolidated financial statements included elsewhere herein. This note also describes the stations we acquired in each of 2019 and 2017, which we may also refer to collectively as our “acquisitions,” our “recent acquisitions” or “the acquisitions.”

 

Continue to Monetize Digital Spectrum. In addition to each of our stations’ primary channel, we also broadcast a number of secondary channels. Certain of our secondary channels are affiliated with more than one network simultaneously. Our strategy includes expanding upon our digital offerings and sales. We also evaluate opportunities to use spectrum for future delivery of data to mobile devices using a new transmission standard.

 

Continue to Maintain Prudent Cost Management. Historically, we have closely managed our costs to maintain and improve our margins. We believe that our market leadership position provides us additional negotiating leverage to enable us to lower, on a relative basis, our syndicated programming costs. We have increased the efficiency of our stations by automating video production and back office processes. We believe that we will be able to further benefit from our cost and operational efficiencies as we continue to grow.

 

Further Strengthen our Balance Sheet. During the last several years, we have leveraged our strong cash flow and efficient operating model to grow our diverse national footprint. In recent years, we acted to improve the terms of our debt by amending or replacing our long-term debt in order to lock in more attractive terms while interest rates are at historically low levels. During 2017, we completed an underwritten public offering of 17.25 million shares of our common stock at a price to the public of $14.50 per share. The net proceeds of the offering were $239 million, after deducting underwriting discounts and expenses. During 2019 we completed the acquisition of all the equity interests of Raycom Media, Inc. (“Raycom”) and other related transactions (the “Raycom Merger”) using a financing plan composed of our cash on hand, common stock, preferred stock, attractively priced fixed rate debt and an amended term loan facility. We continually evaluate opportunities to improve our balance sheet. For more information regarding the Raycom Merger, see Note 3 “Acquisitions and Divestitures” of our audited consolidated financial statements included elsewhere herein.

 

5
 

 

Stations

 

The following table provides information about our television stations as of February 21, 2020:

 

 

  

 

  

 

 

  

 

  

 

 

  

 

  

 

  

 

  

 

 

  

 

  

Primary

  

Primary

  

 

  

 

  

 

 

  

 

  

Broadcast

  

Channel

  

 

  

 

  

Station

  

 Network 

  

License

  

Station

  

 DMA 

  

Designated Market Area

  

Call

  

 Affiliation 

  

 Expiration 

  

Rank in

  

 Rank (a) 

  

 ("DMA") 

  

 Letters 

  

 (b) 

  

 Date (c) 

  

 DMA (d) 

  

 

  

 

  

 

 

  

 

  

 

 

  

 

  

12

  

Tampa-St. Petersburg (Sarasota), FL

  

WWSB

 

  

ABC

  

2/1/2021

 

  

12

  

19

  

Cleveland-Akron (Canton)

  

WOIO

 

  

CBS

  

10/1/2021

 

  

3

  

19

  

Cleveland-Akron (Canton)

  

WUAB

 

  

CW

  

10/1/2021

 

  

6

  

21

  

Charlotte, NC

  

WBTV

 

  

CBS

  

12/1/2020

 

  

1

  

36

  

West Palm Beach-Ft. Pierce, FL

  

WFLX

 

  

FOX

  

2/1/2021

 

  

4

  

37

  

Cincinnati, OH

  

WXIX

 

  

FOX

  

8/1/2021

 

  

4

  

44

  

Birmingham (Ann and Tusc)

  

WBRC

 

  

FOX

  

4/1/2021

 

  

1

  

48

  

Louisville, KY

  

WAVE

 

  

NBC

  

8/1/2021

 

  

2

  

50

  

New Orleans, LA

  

WVUE

 

  

FOX

  

6/1/2021

 

  

1

  

51

  

Memphis, TN

  

WMC

 

  

NBC

  

8/1/2021

 

  

2

  

54

  

Richmond- Petersburg, VA

  

WWBT

 

  

NBC

  

10/1/2020

 

  

2

  

54

  

Richmond- Petersburg, VA

  

WUPV

 

  

CW

  

10/1/2020

 

  

5

  

61

  

Knoxville, TN

  

WVLT

 

  

CBS

  

8/1/2021

 

  

2

  

61

  

Knoxville, TN

  

WBXX

 

  

CW

  

8/1/2021

 

  

6

  

64

  

Lexington, KY

  

WKYT

 

  

CBS

  

8/1/2021

 

  

1

  

64

  

(Hazard, KY)

  

WYMT

(e)

  

CBS

  

8/1/2021

 

  

 

  

65

  

Tucson (Nogales), AZ

  

KOLD

 

  

CBS

  

10/1/2022

 

  

1

  

66

  

Honolulu, HI

  

KHNL

 

  

NBC

  

2/1/2023

 

  

4

  

66

  

Honolulu, HI

  

KGMB

 

  

CBS

  

2/1/2023

 

  

1

  

66

  

Honolulu, HI

  

KHBC

(e)

  

NBC/CBS

  

2/1/2023

 

  

 

  

66

  

Honolulu, HI

  

KOGG

(e)

  

NBC/CBS

  

2/1/2023

 

  

 

  

67

  

Green Bay/Appleton

  

WBAY

 

  

ABC

  

12/1/2021

 

  

1

  

69

  

Roanoke/Lynchburg, VA

  

WDBJ

 

  

CBS

  

10/1/2020

 

  

1

  

69

  

Roanoke/Lynchburg, VA

  

WZBJ

 

  

MY

  

10/1/2020

 

  

6

  

69

  

Roanoke/Lynchburg, VA

  

WZBJ-CD

 

  

MY

  

10/1/2020

 

  

 

  

71

  

Omaha, NE

  

WOWT

 

  

NBC

  

6/1/2022

 

  

2

  

72

  

Wichita/Hutchinson, KS

  

KWCH

 

  

CBS

  

6/1/2022

 

  

1

  

72

  

Wichita/Hutchinson, KS

  

KSCW

 

  

CW

  

6/1/2022

 

  

5

  

72

  

(Ensign, KS)

  

KBSD

(e)

  

CBS

  

6/1/2022

 

  

 

  

72

  

(Goodland, KS)

  

KBSL

(e)

  

CBS

  

6/1/2022

 

  

 

  

72

  

(Hays, KS)

  

KBSH

(e)

  

CBS

  

6/1/2022

 

  

 

  

73

  

Springfield, MO

  

KYTV

 

  

NBC

  

2/1/2022

 

  

1

  

73

  

Springfield, MO

  

KYCW

 

  

CW

  

2/1/2022

 

  

4

  

73

  

Springfield, MO

  

KSPR

 

  

ABC

  

2/1/2022

 

  

3

  

74

  

Charleston/Huntington, WV

  

WSAZ

 

  

NBC

  

10/1/2020

 

  

1

  

74

  

Charleston/Huntington, WV

  

WQCW

 

  

CW

  

10/1/2021

 

  

6

  

75

  

Columbia, SC

  

WIS

 

  

NBC

  

12/1/2020

 

  

1

  

77

  

Flint/Saginaw/Bay City, MI

  

WJRT

 

  

ABC

  

10/1/2021

 

  

2

  

78

  

Huntsville- Decatur (Florence), AL

  

WAFF

 

  

NBC

  

4/1/2021

 

  

2

  

80

  

Toledo, OH

  

WTVG

 

  

ABC

  

10/1/2021

 

  

1

  

81

  

Madison, WI

  

WMTV

 

  

NBC

  

12/1/2021

 

  

1

  

 

6
 

 

Our television stations (continued):

 

 

  

 

  

 

 

  

 

  

Primary

  

Primary

  

 

  

 

  

 

 

  

 

  

Broadcast

  

Channel

  

 

  

 

  

Station

  

 Network 

  

License

  

Station

  

 DMA 

  

Designated Market Area

  

Call

  

 Affiliation 

  

 Expiration 

  

Rank in

  

 Rank (a) 

  

 ("DMA") 

  

 Letters 

  

 (b) 

  

 Date (c) 

  

 DMA (d) 

  

 

  

 

  

 

 

  

 

  

 

 

  

 

  

82

  

Waco/Temple/Bryan, TX

  

KWTX

 

  

CBS

  

8/1/2022

 

  

1

  

82

  

Waco/Temple/Bryan, TX

  

KBTX

(e)

  

CBS

  

8/1/2022

 

  

4

  

82

  

Waco/Temple/Bryan, TX

  

KNCT

 

  

CW

  

8/1/2022

 

  

 

  

84

   Paducah, KY/Cape Girardeau, MO/Harrisburg, IL  

KFVS

 

  

CBS

  

2/1/2022

 

  

1

  

84

  

Paducah, KY/Cape Girardeau, MO/Harrisburg, IL

  

WQWQ

 

  

CW/ME

  

8/1/2021

 

  

5

  

85

  

Colorado Springs/Pueblo, CO

  

KKTV

 

  

CBS

  

4/1/2022

 

  

1

  

86

  

Shreveport, LA

  

KSLA

 

  

CBS

  

6/1/2021

 

  

2

  

89

  

Savannah, GA

  

WTOC

 

  

CBS

  

4/1/2021

 

  

1

  

90

  

Cedar Rapids, IA

  

KCRG

 

  

ABC

  

2/1/2022

 

  

1

  

91

  

Charleston, SC

  

WCSC

 

  

CBS

  

12/1/2020

 

  

1

  

94

  

Baton Rouge, LA

  

WAFB

 

  

CBS

  

6/1/2021

 

  

1

  

94

  

Baton Rouge, LA

  

WBXH

 

  

MY

  

6/1/2021

 

  

8

  

95

  

Jackson, MS

  

WLBT

 

  

NBC

  

6/1/2021

 

  

1

  

96

  

Burlington, VT - Plattsburgh, NY

  

WCAX

 

  

CBS

  

4/1/2023

 

  

1

  

96

  

Burlington, VT - Plattsburgh, NY

  

WYCI

 

  

H&I

  

6/1/2023

 

  

 

  

97

  

Myrtle Beach-Florence

  

WMBF

 

  

NBC

  

12/1/2020

 

  

3

  

98

  

South Bend/Elkhart, IN

  

WNDU

 

  

NBC

  

8/1/2021

 

  

2

  

100

  

Greenville/New Bern/Washington, NC

  

WITN

 

  

NBC

  

12/1/2020

 

  

1

  

102

  

Boise, ID

  

KNIN

 

  

FOX

  

10/1/2022

 

  

4

  

103

  

Davenport, IA (Quad Cities)

  

KWQC

 

  

NBC

  

2/1/2022

 

  

1

  

104

  

Reno, NV

  

KOLO

 

  

ABC

  

10/1/2022

 

  

2

  

105

  

Evansville, IN

  

WFIE

 

  

NBC

  

8/1/2021

 

  

1

  

107

  

Lincoln/Hastings/Kearney, NE

  

KOLN

 

  

CBS

  

6/1/2022

 

  

1

  

107

  

(Grand Island, NE)

  

KGIN

(e)

  

CBS

  

6/1/2022

 

  

 

  

107

  

Lincoln/Hastings/Kearney, NE

  

KSNB

 

  

NBC

  

6/1/2022

 

  

4

  

107

  

Lincoln/Hastings/Kearney, NE

  

KCWH

 

  

CW

  

6/1/2022

 

  

 

  

107

  

(Hastings, NE)

  

KNHL

 

  

ME/MY

  

6/1/2022

 

  

 

  

108

  

Augusta, GA/Aiken, SC

  

WRDW

 

  

CBS

  

4/1/2021

 

  

2

  

108

  

Augusta, GA/Aiken, SC

  

WAGT

 

  

NBC

  

4/1/2021

 

  

4

  

109

  

Tallahassee, FL/Thomasville, GA

  

WCTV

 

  

CBS

  

4/1/2021

 

  

1

  

109

  

Tallahassee, FL/Thomasville, GA

  

WFXU

 

  

MY

  

2/1/2021

 

  

 

  

112

  

Lansing, MI

  

WILX

 

  

NBC

  

10/1/2021

 

  

2

  

113

  

Sioux Falls, SD

  

KSFY

 

  

ABC

  

4/1/2022

 

  

2

  

113

  

(Pierre, SD)

  

KPRY

(e)

  

ABC

  

4/1/2022

 

  

 

  

113

  

Sioux Falls, SD

  

KDLT

 

  

NBC

  

4/1/2022

 

  

3

  

113

  

(Sioux Falls, SD)

  

KDLV

(e)

  

NBC

  

4/1/2022

 

  

 

  

114

  

Tyler-Longview, TX

  

KLTV

 

  

ABC

  

8/1/2022

 

  

1

  

114

  

Tyler-Longview, TX

  

KTRE

(e)

  

ABC

  

8/1/2022

 

  

4

  

116

  

Fargo/Valley City, ND

  

KVLY

 

  

NBC

  

4/1/2022

 

  

1

  

116

  

Fargo/Valley City, ND

  

KXJB

 

  

CBS

  

4/1/2022

 

  

2

  

122

  

Montgomery, AL

  

WSFA

 

  

NBC

  

4/1/2021

 

  

1

  

127

  

Wilmington, NC

  

WECT

 

  

NBC

  

12/1/2020

 

  

1

  

129

  

La Crosse/Eau Claire, WI

  

WEAU

 

  

NBC

  

12/1/2021

 

  

2

  

130

  

Columbus, GA (Opelika, AL)

  

WTVM

 

  

ABC

  

4/1/2021

 

  

1

  

132

  

Amarillo, TX

  

KFDA

 

  

CBS

  

8/1/2022

 

  

1

  

132

  

(Amarillo, TX)

  

KZBZ

(e)

  

CBS

  

10/1/2022

 

  

 

  

132

  

Amarillo, TX

  

KEYU

 

  

TEL

  

8/1/2022

 

  

7

  

134

  

Wausau/Rhinelander, WI

  

WSAW

 

  

CBS

  

12/1/2021

 

  

2

  

134

  

Wausau/Rhinelander, WI

  

WZAW

 

  

FOX

  

12/1/2021

 

  

4

  

138

  

Rockford, IL

  

WIFR

 

  

CBS

  

12/1/2021

 

  

1

  

140

  

Monroe/El Dorado, LA

  

KNOE

 

  

CBS/ABC

  

6/1/2021

 

  

1

  

142

  

Lubbock, TX

  

KCBD

 

  

NBC

  

8/1/2022

 

  

1

  

 

7
 

 

Our television stations (continued):

 

 

  

 

  

 

 

  

 

  

Primary

  

Primary

  

 

  

 

  

 

 

  

 

  

Broadcast

  

Channel

  

 

  

 

  

Station

  

 Network 

  

License

  

Station

  

 DMA 

  

Designated Market Area

  

Call

  

 Affiliation 

  

 Expiration 

  

Rank in

  

 Rank (a) 

  

 ("DMA") 

  

 Letters 

  

 (b) 

  

 Date (c) 

  

 DMA (d) 

  

 

  

 

  

 

 

  

 

  

 

 

  

 

  

144

  

Topeka, KS

  

WIBW

 

  

CBS

  

6/1/2022

 

  

1

  

145

  

Odessa/Midland, TX

  

KOSA

 

  

CBS

  

8/1/2022

 

  

1

  

145

  

(Big Springs)

  

KCWO

(e)

  

CW

  

8/1/2022

 

  

 

  

145

  

Odessa/Midland, TX

  

KTLE

 

  

TEL

  

8/1/2022

 

  

 

  

146

  

Minot/Bismarck/Dickinson, ND

  

KFYR

 

  

NBC/FOX

  

4/1/2022

 

  

1

  

146

  

(Minot, ND)

  

KMOT

(e)

  

NBC/FOX

  

4/1/2022

 

  

 

  

146

  

(Williston, ND)

  

KUMV

(e)

  

NBC/FOX

  

4/1/2022

 

  

 

  

146

  

(Dickinson, ND)

  

KQCD

(e)

  

NBC/FOX

  

4/1/2022

 

  

 

  

147

  

Wichita Falls, TX & Lawton, OK

  

KSWO

 

  

ABC

  

6/1/2022

 

  

2

  

147

  

Wichita Falls, TX & Lawton, OK

  

KKTM

 

  

TEL

  

6/1/2022

 

  

7

  

149

  

Panama City, FL

  

WJHG

 

  

NBC

  

2/1/2021

 

  

1

  

149

  

Panama City, FL

  

WECP

 

  

CBS

  

2/1/2021

 

  

3

  

151

  

Anchorage, AK

  

KTUU

 

  

NBC

  

2/1/2023

 

  

1

  

151

  

Anchorage, AK

  

KYES

 

  

MY

  

2/1/2023

 

  

6

  

154

  

Albany, GA

  

WALB

 

  

NBC/ABC

  

4/1/2021

 

  

1

  

154

  

Albany, GA

  

WGCW

 

  

CW

  

4/1/2021

 

  

6

  

155

  

Biloxi-Gulfport, MS

  

WLOX

 

  

ABC/CBS

  

6/1/2021

 

  

1

  

156

  

Gainesville, FL

  

WCJB

 

  

ABC

  

2/1/2021

 

  

1

  

158

  

Sherman, TX/Ada, OK

  

KXII

 

  

CBS/FOX

  

8/1/2022

 

  

1

  

158

  

(Paris, TX)

  

KXIP

(e)

  

CBS

  

8/1/2022

 

  

 

  

159

  

Bangor, ME

  

WABI

 

  

CBS

  

4/1/2023

 

  

1

  

167

  

Hattiesburg/Laurel, MS

  

WDAM

 

  

NBC/ABC

  

6/1/2021

 

  

1

  

169

  

Rapid City, SD

  

KOTA

 

  

ABC

  

4/1/2022

 

  

1

  

169

  

Rapid City, SD

  

KEVN

 

  

FOX

  

4/1/2022

 

  

4

  

169

  

(Lead, SD)

  

KHSD

(e)

  

ABC/FOX

  

4/1/2022

 

  

 

  

169

  

(Sheridan, WY)

  

KSGW

(e)

  

ABC

  

10/1/2022

 

  

 

  

170

  

Lake Charles, LA

  

KPLC

 

  

NBC

  

6/1/2021

 

  

1

  

171

  

Dothan, AL

  

WTVY

 

  

CBS

  

4/1/2021

 

  

1

  

171

  

Dothan, AL

  

WRGX

 

  

NBC

  

4/1/2021

 

  

3

  

173

  

Clarksburg/Weston, WV

  

WDTV

 

  

CBS

  

10/1/2020

 

  

2

  

173

  

Clarksburg/Weston, WV

  

WVFX

 

  

FOX

  

10/1/2020

 

  

4

  

175

  

Harrisonburg, VA

  

WHSV

 

  

ABC

  

10/1/2020

 

  

1

  

175

  

Harrisonburg, VA

  

WSVF

 

  

FOX/CBS

  

10/1/2020

 

  

3

  

175

  

Harrisonburg, VA

  

WSVW

 

  

NBC

  

 

 

  

 

  

177

  

Bowling Green, KY

  

WBKO

 

  

ABC/FOX

  

8/1/2021

 

  

1

  

178

  

Alexandria, LA

  

KALB

 

  

NBC/CBS

  

6/1/2021

 

  

1

  

180

  

Marquette, MI

  

WLUC

 

  

NBC/FOX

  

10/1/2021

 

  

1

  

181

  

Watertown, NY

  

WWNY

 

  

CBS

  

6/1/2023

 

  

1

  

181

  

Watertown, NY

  

WNYF

 

  

FOX

  

6/1/2023

 

  

2

  

182

  

Charlottesville, VA

  

WVIR

 

  

NBC

  

10/1/2020

 

  

1

  

183

  

Jonesboro, AR

  

KAIT

 

  

ABC/NBC

  

6/1/2021

 

  

1

  

 

8
 

 

Our television stations (continued):

 

 

  

 

  

 

 

  

 

  

Primary

  

Primary

  

 

  

 

  

 

 

  

 

  

Broadcast

  

Channel

  

 

  

 

  

Station

  

 Network 

  

License

  

Station

  

 DMA 

  

Designated Market Area

  

Call

  

 Affiliation 

  

 Expiration 

  

Rank in

  

 Rank (a) 

  

 ("DMA") 

  

 Letters 

  

 (b) 

  

 Date (c) 

  

 DMA (d) 

  

 

  

 

  

 

 

  

 

  

 

 

  

 

  

184

  

Laredo, TX

  

KGNS

 

  

NBC/ABC

  

8/1/2022

 

  

2

  

184

  

Laredo, TX

  

KYLX

 

  

CBS

  

8/1/2022

 

  

4

  

184

  

Laredo, TX

  

KXNU

 

  

TEL

  

8/1/2022

 

  

5

  

188

  

Grand Junction/Montrose, CO

  

KKCO

 

  

NBC

  

4/1/2022

 

  

1

  

188

  

Grand Junction/Montrose, CO

  

KJCT

 

  

ABC

  

4/1/2022

 

  

3

  

190

  

Meridian, MS

  

WTOK

 

  

ABC

  

6/1/2021

 

  

1

  

191

  

Twin Falls, ID

  

KMVT

 

  

CBS

  

10/1/2022

 

  

1

  

191

  

Twin Falls, ID

  

KSVT

 

  

FOX

  

10/1/2022

 

  

4

  

193

  

Parkersburg, WV

  

WTAP

 

  

NBC

  

10/1/2020

 

  

1

  

193

  

Parkersburg, WV

  

WIYE

 

  

CBS

  

10/1/2020

 

  

2

  

193

  

Parkersburg, WV

  

WOVA

 

  

FOX

  

10/1/2020

 

  

3

  

196

  

Cheyenne, WY/Scottsbluff, NE

  

KGWN

 

  

CBS

  

10/1/2022

 

  

1

  

196

  

(Scottsbluff, NE)

  

KSTF

(e)

  

CBS

  

6/1/2022

 

  

 

  

196

  

(Cheyenne, WY/Scottsbluff, NE)

  

KCHY

(e)

  

NBC

  

10/1/2022

 

  

 

  

198

  

Mankato, MN

  

KEYC

 

  

CBS/FOX

  

4/1/2022

 

  

1

  

198

  

Mankato, MN

  

KMNF

 

  

NBC

  

4/1/2022

 

  

 

  

199

  

Casper/Riverton, WY

  

KCWY

 

  

NBC

  

10/1/2022

 

  

1

  

201

  

Ottumwa, IA/Kirksville, MO

  

KYOU

 

  

FOX/NBC

  

2/1/2022

 

  

3

  

203

  

Fairbanks, AK

  

KXDF

 

  

CBS

  

2/1/2023

 

  

2

  

203

  

Fairbanks, AK

  

KTVF

 

  

NBC

  

2/1/2023

 

  

1

  

203

  

Fairbanks, AK

  

KFXF

 

  

MY

  

2/1/2023

 

  

5

  

206

  

Presque Isle, ME

  

WAGM

 

  

CBS/FOX

  

4/1/2023

 

  

1

  

206

  

Presque Isle, ME

  

WWPI

 

  

NBC

  

 

 

  

 

  

209

  

North Platte, NE

  

KNOP

 

  

NBC

  

6/1/2022

 

  

1

  

209

  

(Scottsbluff, NE)

  

KNEP

(e)

  

NBC

  

6/1/2022

 

  

 

  

209

  

North Platte, NE

  

KNPL

 

  

CBS

  

6/1/2022

 

  

2

  

209

  

North Platte, NE

  

KIIT

 

  

FOX

  

6/1/2022

 

  

3

  

 

(a)

DMA rank for the 2019-2020 television season based on information published by Comscore.

 

(b)

Indicates primary network affiliations. All primary channels and nearly all of our secondary channels broadcast by the stations are affiliated with at least one broadcast network.

 

(c)

Indicates expiration dates of primary FCC broadcast licenses.

 

(d)

Based on Comscore data for 2019.

 

(e)

This station is a satellite station under FCC rules and simulcasts the programming of our primary channel in its market. This station may offer some locally originated programming, such as local news.

 

9
 

 

Cyclicality, Seasonality and Revenue Concentrations

 

Broadcast stations like ours rely on advertising revenue and are therefore sensitive to cyclical changes in the economy. Our political advertising revenue is generally not as significantly affected by economic slowdowns or recessions as our non-political advertising revenue.

 

Broadcast advertising revenue is generally highest in the second and fourth quarters each year. This seasonality results partly from increases in consumer advertising in the spring and retail advertising in the period leading up to and including the Christmas holiday season. Broadcast advertising revenue is also typically higher in even-numbered years due to spending by political candidates, political parties and special interest groups during the “on year” of the two-year election cycle. This political advertising spending typically is heaviest during the fourth quarter. In addition, the broadcast of Olympic Games by our NBC-affiliated stations during even-numbered years generally leads to increased viewership and revenue during those years.

 

Our broadcast advertising revenue is earned from the sale of advertisements broadcast by our stations. Although no single customer represented more than 5% of our broadcast advertising revenue for the years ended December 31, 2019, 2018 or 2017, we derived a material portion of our non-political broadcast advertising revenue from advertisers in a limited number of industries, particularly the automotive industry. For the years ended December 31, 2019, 2018 and 2017, we derived approximately 25%, of our total broadcast advertising revenue from our customers in the automotive industry. Revenue from this industry may represent a higher percentage of total revenue in odd-numbered years due to, among other things, the increased availability of advertising time, as a result of such years being the “off year” of the two-year election cycle.

 

Station Network Affiliations. In addition to affiliations with ABC, CBS, NBC and FOX, our secondary channels are affiliated with numerous smaller networks and program services including, among others, the CW Network or the CW Plus Network (collectively, “CW”), MY Network (“MY” or “My Network”), the MeTV Network, Justice, Circle, This TV Network, Antenna TV, Telemundo (“Tel.”), Cozi, Heroes and Icons (“H&I”) and MOVIES! Network. Certain of our secondary digital channels are affiliated with more than one network simultaneously. We also broadcast independent and local news/weather channels in some markets.

 

On January 1, 2020, Circle Media, LLC (“Circle”), a Nashville, Tennessee based joint venture between Opry Entertainment Group, a subsidiary of Ryman Hospitality Properties, and Gray launched a new country music and lifestyle television network on the secondary channels of numerous television stations. Circle offers various content including entertainment news, documentaries, movies, archival, new and licensed programming, Grand Ole Opry performances, and more. Circle has now launched on Gray Television stations in 56 markets as well as on stations in markets such as New York, Los Angeles, Philadelphia, Dallas-Ft. Worth, Atlanta, Nashville, and many others through separate distribution agreements with CBS television stations and other broadcasters.

 

The Big Four major broadcast networks dominate broadcast television in terms of the amount of viewership that their original programming attracts. The “Big Three” major broadcast networks of CBS, NBC, and ABC provide their respective network affiliates with a majority of the programming broadcast each day. FOX and CW provide their affiliates with a smaller portion of each day’s programming compared to the Big Three networks. The CW Plus Network generally provides programming for the entire broadcast day for CW affiliates in markets smaller than the top 100 DMAs.

 

10
 

 

We believe most successful commercial television stations obtain their brand identity from locally produced news programs. Notwithstanding this, however, the affiliation of a station’s channels with one of the Big Four major networks can have a significant impact on the station’s programming, revenues, expenses and operations. A typical network provides an affiliate with network programming in exchange for a substantial majority of the advertising time available for sale during the airing of the network programs. The network then sells this advertising time and retains the revenue. The affiliate sells the remaining advertising time available within the network programming and non-network programming, and the affiliate retains most or all of such revenue from these sales. In seeking to acquire programming to supplement network-supplied programming, which we believe is critical to maximizing affiliate revenue, affiliates compete primarily with other affiliates and independent stations in their markets as well as, in certain cases, various national non-broadcast networks (“cable networks”) and various video streaming services that present competitive programming. The Big Four networks and CW charge fees to their affiliates for receiving network programming.

 

A television station may also acquire programming through barter arrangements. Under a programming barter arrangement, a national program distributor retains a fixed amount of advertising time within the program in exchange for the programming it supplies. The television station may pay a fixed fee for such programming.

 

We record revenue and expense for trade transactions involving the exchange of tangible goods or services with our customers. The revenue is recorded at the time the advertisement is broadcast and the expense is recorded at the time the goods or services are used. The revenue and expense associated with these transactions are based on the fair value of the assets or services received.

 

We do not account for barter revenue and related barter expense generated from syndicated programming as such amounts are not material. Furthermore, any such barter revenue recognized would then require the recognition of an equal amount of barter expense. The recognition of these amounts would not have a material effect upon net income.

 

Affiliates of FOX and CW must purchase or produce a greater amount of programming for their non-network time periods, generally resulting in higher programming costs. However, affiliates of FOX and CW retain a larger portion of their advertising time inventory and the related revenues compared to Big Three affiliates.

 

Competition

 

Television stations compete for audiences, certain programming (including news) and advertisers. Cable network programming is a significant competitor of broadcast television programming. No single cable network regularly attains audience levels of those of any major broadcast network. Cable networks’ advertising share has increased due to the growth in the number of homes that subscribe to a pay-TV service from MVPDs. Despite increasing competition from cable channels, digital platforms, social media, and internet-delivered video channels, television broadcasting remains the dominant distribution system for mass-market television advertising. Signal coverage and carriage on MVPD systems also materially affect a television station’s competitive position.

 

Audience. Stations compete for audience based on broadcast program popularity, which has a direct effect on advertising rates. Networks supply a substantial portion of our affiliated stations’ daily programming. Affiliated stations depend on the performance of the network programs to attract viewers. There can be no assurance that any such current or future programming created by our affiliated networks will achieve or maintain satisfactory viewership levels. Stations program non-network time periods with a combination of locally produced news, public affairs and entertainment programming, including national news or syndicated programs purchased for cash, cash and barter, or barter only.

 

11
 

 

MVPD systems have significantly altered the competitive landscape for audience in the television industry. Specifically, MVPD systems can increase a broadcasting station’s competition for viewers by bringing into the market both cable networks and distant television station signals not otherwise available to the station’s audience.

 

Other sources of competition for audiences, programming and advertisers include internet websites, mobile applications and wireless carriers, direct-to-consumer video distribution systems, and home entertainment systems.

 

Recent developments by many companies, including internet service providers and internet website operators have expanded, and are continuing to expand, the variety and quality of broadcast and non-broadcast video programming available to consumers via the internet. Internet companies have developed business relationships with companies that have traditionally provided syndicated programming, network television and other content. As a result, additional programming has, and is expected to further become, available through non-traditional methods, which can directly impact the number of TV viewers, and thus indirectly impact station rankings, popularity and revenue possibilities of our stations.

 

Programming. Competition for non-network programming involves negotiating with national program distributors, or syndicators, that sell “first run” and “off network” or rerun programming packages. Each station competes against the other broadcast stations in its market for exclusive access to first run programming (such as Wheel of Fortune) and off network reruns (such as Seinfeld). Broadcast stations also compete for exclusive news stories and features. Cable networks and internet service providers compete with local stations for programming.

 

Advertising. Advertising revenues comprise the primary source of revenues for our stations. Our stations compete for advertising revenues in their respective markets with other television stations, digital platforms including Google and Facebook, local cable and other MVPD systems, as well as local newspapers, radio stations, magazines, outdoor advertising, transit advertising, yellow page directories and direct mail.

 

Federal Regulation of the Television Broadcast Industry 

 

General. Under the Communications Act of 1934 (the “Communications Act”), television broadcast operations such as ours are subject to the jurisdiction of the FCC. Among other things, the Communications Act empowers the FCC to: (i) issue, revoke and modify broadcasting licenses; (ii) regulate stations’ operations and equipment; and (iii) impose penalties for violations of the Communications Act or FCC regulations. The Communications Act prohibits the assignment of a license or the transfer of control of a licensee without prior FCC approval.

 

License Grant and Renewal. The FCC grants broadcast licenses to television stations for terms of up to eight years. Broadcast licenses are of paramount importance to the operations of television stations. The Communications Act requires the FCC to renew a licensee’s broadcast license if the FCC finds that: (i) the station has served the public interest, convenience and necessity; (ii) there have been no serious violations of either the Communications Act or the FCC’s rules and regulations; and (iii) there have been no other violations which, taken together, would constitute a pattern of abuse. Historically the FCC has renewed broadcast licenses in substantially all cases. While we are not currently aware of any facts or circumstances that might prevent the renewal of our stations’ licenses at the end of their respective license terms, we cannot provide any assurances that any license will be renewed. Our failure to renew any licenses upon the expiration of any license term could have a material adverse effect on our business. Under the Communications Act, the term of a broadcast license is automatically extended pending the FCC’s processing of a renewal application. For further information regarding the expiration dates of our stations’ current licenses and renewal application status, see the table under the heading “Markets and Stations.”

 

Media Ownership Restrictions and FCC Proceedings. The FCC’s broadcast ownership rules affect the number, type and location of broadcast properties that we may hold or acquire. The FCC adopted significant changes to its ownership rules, which took effect in February 2018. However, in November 2019, the U.S. Court of Appeals for the Third Circuit issued a mandate that vacated the FCC’s changes and reinstated the prior ownership rules.  The reinstated rules limit the common ownership, operation or control of, and “attributable” interests or voting power in: (i) television stations serving the same area; (ii) television stations and radio stations serving the same area, and (iii) daily newspapers and television or radio stations serving the same area. The rules also limit the aggregate national audience reach of television stations that may be under common ownership, operation and control, or in which a single person or entity may hold an official position or have more than a specified interest or percentage of voting power. The FCC’s rules also define the types of positions and interests that are considered attributable for purposes of the ownership limits, and thus also apply to our principals and certain investors.

 

The FCC is required by statute to review all of its broadcast ownership rules every four years to determine if such rules remain necessary in the public interest. In December 2018, the FCC began the new quadrennial review of its ownership rules.  In its Notice of Proposed Rulemaking (“NPRM”), the FCC is seeking comments on competition in the local television marketplace, including: (i) whether its current two-stations to a market limit should be relaxed or tightened, (ii) whether it should modify its general prohibition on owning two stations ranked among the top-four in a market, (iii) if the FCC’s television market analysis should consider the factors the DOJ applies to local television issues, and (iv) how the FCC should evaluate competition among television stations.

 

12
 

 

Local TV Ownership Rules. The FCC’s current television ownership rules allow one entity to own two commercial television stations in a DMA as long as the specified service contours of the stations do not overlap or, if they do, at least one of the stations is not ranked among the top four stations in the DMA and eight independently owned, full-power stations will remain in the DMA.  Waivers of this rule may be available if at least one of the stations in a proposed combination qualifies, pursuant to specific criteria set forth in the FCC’s rules, as failed, failing, or unbuilt.

 

Cross-Media Limits. The newspaper/broadcast cross-ownership rule generally prohibits one entity from owning both a commercial broadcast station and a daily newspaper in the same community. The radio/television cross-ownership rule allows a party to own one or two TV stations and a varying number of radio stations within a single market.

 

National Television Station Ownership Rule. The maximum percentage of U.S. households that a single owner can reach through commonly owned television stations is 39 percent. This limit was specified by Congress in 2004. The FCC applies a 50 percent “discount” for ultra-high frequency (“UHF”) stations. In December 2017, the Commission issued an NPRM seeking comment on whether it should modify or eliminate the national cap, including the UHF discount.

 

Conclusion. The FCC’s media ownership proceedings are on-going and, in many cases, are or will be subject to further judicial and potentially Congressional review. We cannot predict the outcome of any of these current or potential proceedings.

 

Attribution Rules. Under the FCC’s ownership rules, a direct or indirect purchaser of certain types of our securities could violate FCC regulations if that purchaser owned or acquired an “attributable” interest in other broadcast and daily newspaper properties in the same areas as one or more of our stations. Pursuant to FCC rules, the following relationships and interests are generally considered attributable for purposes of media ownership restrictions: (i) all officers and directors of a corporate licensee and its direct or indirect parent(s); (ii) voting stock interests of at least five percent; (iii) voting stock interests of at least 20 percent, if the holder is a passive institutional investor (such as an investment company, as defined in 15 U.S.C. 80a-3, bank, or insurance company); (iv) any equity interest in a limited partnership or limited liability company, unless properly “insulated” from management activities; (v) equity and/or debt interests that in the aggregate exceed 33 percent of a licensee’s total assets, if the interest holder supplies more than 15 percent of the station’s total weekly programming or is a same-market television broadcast company; and (vi) time brokerage of a television broadcast station by a same-market television broadcast company providing more than 15 percent of the station’s weekly programming.

 

Management services agreements and other types of shared services arrangements between same-market stations that do not include attributable time brokerage components generally are not deemed attributable under the FCC’s current rules and policies. However, the FCC previously requested comment on whether local news service agreements and/or shared services agreements should be considered attributable for purposes of applying the media ownership rules. The Department of Justice has taken steps under the antitrust laws to block certain transactions involving joint sales or other services agreements.

 

To our knowledge, no officer, director or five percent or greater shareholder currently holds an attributable interest in another television station that is inconsistent with the FCC’s ownership rules and policies or with our ownership of our stations.

 

Alien Ownership Restrictions. The Communications Act restricts the ability of foreign entities or individuals to own or hold interests in broadcast licenses. The Communications Act bars the following from holding broadcast licenses: foreign governments, representatives of foreign governments, non-citizens, representatives of non-citizens, and corporations or partnerships organized under the laws of a foreign nation. Foreign individuals or entities, collectively, may directly or indirectly own or vote no more than 20 percent of the capital stock of a licensee or 25 percent of the capital stock of a corporation that directly or indirectly controls a licensee. The 20 percent limit on foreign ownership of a licensee may not be waived. In September 2016, the Commission adopted an Order that allows broadcast licensees to use streamlined procedures when filing a petition for declaratory ruling seeking FCC approval to exceed the 25 percent foreign ownership benchmark for a parent company. The Commission also clarified the methodology for publicly traded broadcasters to assess compliance with the foreign ownership limits.

 

13
 

 

We serve as a holding company for our subsidiaries, including subsidiaries that hold station licenses. Therefore, absent a grant of a declaratory ruling, we may be restricted from having more than one-fourth of our stock owned or voted directly or indirectly by non-citizens, foreign governments, representatives of non-citizens or foreign governments, or foreign corporations.

 

Programming and Operations. Rules and policies of the FCC and other federal agencies regulate certain programming practices and other areas affecting the business or operations of broadcast stations.

 

The Children’s Television Act of 1990 limits commercial matter in children’s television programs and requires stations to present educational and informational children’s programming. Broadcasters are effectively required through license renewal processing guidelines to provide a certain amount of children’s educational programming per week on their primary channels. In July 2019, the FCC issued an Order that adopted sweeping changes to the current children’s programming rules giving broadcasters increased flexibility in how they choose to serve the educational and informational needs of children.

 

Over the past several years, the FCC has increased its enforcement efforts regarding broadcast indecency and profanity and the statutory maximum fine for broadcasting indecent material is currently $414,454 per incident. The FCC has sought comment on whether it should modify its indecency policies, but has not yet issued a decision in this proceeding. The outcome of this proceeding could affect future FCC policies in this area, which could have a material adverse effect on our business.

 

EEO Rules. The FCC’s Equal Employment Opportunity (“EEO”) rules impose job information dissemination, recruitment, documentation and reporting requirements on broadcast station licensees. Broadcasters are subject to random audits to ensure compliance with the EEO rules and may be sanctioned for noncompliance.

 

MVPD Retransmission of Local Television Signals. Under the Communications Act and FCC regulations, each television station generally has a so-called “must-carry” right to carriage of its primary channels on all MVPD systems serving their market. Each commercial television station may elect between invoking its “must carry” right or invoking a right to prevent an MVPD system from retransmitting the station’s signal without its consent (“retransmission consent”). Stations must make this election by October 1 every three years. Such elections are binding throughout the three-year cycle that commences on the subsequent January 1. The current election cycle commenced on January 1, 2018 and ends on December 31, 2020. Our stations have elected retransmission consent and have entered into retransmission consent contracts with virtually all MVPD systems serving their markets.Elections for the three-year cycle beginning January 1, 2021 need to be made by October 1, 2020.

 

In accordance with STELAR, the FCC has promulgated rules that (i) grant DBS providers the right to seek market modifications based on factors similar to those used in the cable industry, (ii) broadened the FCC’s prohibition against joint retransmission negotiations by prohibiting joint retransmission negotiations by any stations in the same DMA not under common control, (iii) prohibit a television station from limiting the ability of an MVPD to carry into its local market television signals that are deemed significantly viewed, and (iv) eliminated the “sweeps prohibition,” which had precluded cable operators from deleting or repositioning local commercial television stations during “sweeps” ratings periods.

 

14
 

 

We currently are not a party to any agreements that delegate our authority to negotiate retransmission consent for any of our television stations or grant us authority to negotiate retransmission consent for any other television station. Nevertheless, we cannot predict how the FCC’s restriction on joint negotiation might impact future opportunities.

 

The FCC has sought comment on whether it should modify or eliminate the network non-duplication and syndicated exclusivity rules. We cannot predict the outcome of this proceeding. If, however, the FCC eliminates or relaxes its rules enforcing our program exclusivity rights, it could affect our ability to negotiate future retransmission consent agreements, and it could harm our ratings and advertising revenue if cable and satellite operators import duplicative programming.

 

Certain online video distributors (“OVDs”) have explored streaming broadcast programming over the internet without the consent of the copyright owner of the programming. The majority of federal courts have sided with broadcasters and enjoined OVDs from streaming broadcast programming. Recently, a new OVD, organized as a non-profit, began offering free access to broadcast programming in select cities over the Internet. This OVD argues that its retransmission of broadcast signals via the Internet is covered by an exemption from copyright liability applicable to non-profit entities.  In July 2019, the major broadcast networks and certain affiliated entities filed a copyright suit in the United States District Court for the Southern District of New York challenging this OVD’s operations.  That suit remains pending and the OVD has continued its operations.

 

On December 19, 2014, the FCC issued an NPRM seeking comment on its proposal to modernize the term “MVPD” to be technology neutral. If the NPRM proposal is adopted, an entity that uses the internet to distribute multiple streams of linear programming would be considered an MVPD and would have the same retransmission consent rights and obligations as other MVPDs, including the right to negotiate with television stations to carry their broadcast signals. The FCC also asked about the possible copyright implications of this proposal. We cannot predict the outcome of the FCC’s interpretive proceedings.

 

In December 2019, the Satellite Television Community Protection and Promotion Act of 2019 and the Television Viewer Protection Act of 2019 (the “TVPA of 2019”) were signed into law. Among other things, these acts (i) made permanent the copyright license set out in Section 119 of the Copyright Act; (ii) limited eligibility for use of the Section 119 license to retransmit the signals of network television broadcast stations to unserved households to those satellite operators who provide local-into-local service to all DMAs; and (iii) modified the definition of unserved households to those households located in a “short market” (which, in turn, was defined as a local market in which programming of one or more of the top four networks is not offered on either the primary or multicast stream by any network station in that market).  The TVPA of 2019 also made permanent the requirement that broadcasters and MVPDs negotiate in good faith and adds a provision that will (i) allow MVPDs to designate a buying group to negotiate retransmission consent agreements on their behalf and (ii) require large stations groups, such as the Company, to negotiate in good faith with a qualified MVPD buying group.

 

15
 

 

The Incentive Auction concluded in 2017 requiring the FCC to reallocate  84 MHz of spectrum to new users. As part of this reallocation process, certain television stations that did not sell their spectrum in the reverse auction were required to change channels and modify their transmission facilities (the “Repack”). The FCC was required to use “reasonable efforts” to preserve a station’s coverage area and population served and cannot require that a station involuntarily move from the UHF band to the VHF band or from the high VHF band to the low VHF band. These changes may constrain our ability to provide high definition programming and additional program streams, including mobile video services. The underlying legislation authorizes the FCC to reimburse stations for reasonable relocation costs.  In March 2018, Congress adopted the Reimbursement Expansion Act (“REA”) to expand the list of entities eligible to be reimbursed for Repack expenses to include LPTV and TV translator stations. The REA also increased the funds available to reimbursement full power and Class A stations.

 

The FCC protected  only full power and Class A television stations during the Repack. In certain markets, our low power television stations were displaced by this process requiring us to locate alternate channels for ongoing operations. In an NPRM released on June 16, 2015, the FCC proposed to reserve one vacant channel in each market (and up to two channels in certain markets) for use by unlicensed “white spaces” devices and wireless microphones. If the FCC adopts this proposal, it could limit the ability of our low power stations to locate an alternate channel if displaced in the future.

 

We cannot predict the likelihood, timing or outcome of any court, Congressional or FCC regulatory action with respect to the repacking of broadcast television spectrum, nor the impact of any such changes upon our business.

 

The foregoing does not purport to be a complete summary of the Communications Act, other applicable statutes, or the FCC’s rules, regulations or policies. Proposals for additional or revised regulations and requirements are pending before, are being considered by, and may in the future be considered by, Congress and federal regulatory agencies from time to time. We cannot predict the effect of any existing or proposed federal legislation, regulations or policies on our business. Also, several of the foregoing matters are now, or may become, the subject of litigation, and we cannot predict the outcome of any such litigation or the effect on our business.

 

Employees

 

As of February 21, 2020, we had 6,912 full-time employees and 1,106 part-time employees, of which 217 full-time and seven part-time employees at four stations were represented by various unions. We consider our relations with our employees to be good.

 

16
 

 

Corporate Information

 

Gray Television, Inc. is a Georgia corporation, incorporated in 1897 initially to publish the Albany Herald in Albany, Georgia. We entered the broadcast industry in 1953. Our executive offices are located at 4370 Peachtree Road, NE, Atlanta, Georgia 30319, and our telephone number at that location is (404) 504-9828. Our website address is http://www.gray.tv. The information on our website is not incorporated by reference or part of this or any other report we file with or furnish to the Securities and Exchange Commission (the “SEC”). We make the following reports filed or furnished, as applicable, with the SEC available, free of charge, on our website under the heading “SEC Filings” as soon as practicable after they are filed with, or furnished to, the SEC: our annual reports on Form 10-K, our quarterly reports on Form 10-Q, our current reports on Form 8-K, and amendments to any of the foregoing.

 

We have adopted a Code of Ethics (the “Code”) that applies to all of our directors, executive officers and employees. The Code is available on our website in the Investor Relations section under the subheading Governance Documents. If any waivers of the Code are granted to an executive officer or director, the waivers will be disclosed in an SEC filing on Form 8-K.

 

Item 1A.

Risk Factors.

 

In addition to the other information contained in, incorporated by reference into or otherwise referred to in this annual report on Form 10-K, you should consider carefully the following factors when evaluating our business. Any of these risks, or the occurrence of any of the events described in these risk factors, could materially adversely affect our business, financial condition or results of operations. In addition, other risks or uncertainties not presently known to us or that we currently do not deem material could arise, any of which could also materially adversely affect us. This annual report on Form 10-K also contains and incorporates by reference forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in forward-looking statements as a result of certain factors, including the occurrence of one or more of the following risk factors.

 

 

RisksRelatedtoOurIndebtedness

 

We have substantial debt and have the ability to incur significant additional debt. The principal and interest payment obligations on such debt may restrict our future operations and impair our ability to meet our long-term obligations.

 

Currently we have approximately $3.8 billion in aggregate principal amount of outstanding indebtedness, excluding intercompany debt and deferred financing costs. Subject to our ability to meet certain borrowing conditions under our senior credit facility (the “2019 Senior Credit Facility”), we have the ability to incur significant additional debt, including secured debt under our un-drawn $200 million revolving credit facility. The terms of the indenture (the “2027 Notes Indenture”) governing our outstanding 7.0% senior notes due 2027 (the “2027 Notes”), the indenture (the “2026 Notes Indenture”) governing our outstanding 5.875% senior notes due 2026 (the “2026 Notes”) and the indenture (the “2024 Notes Indenture”) governing our 5.125% senior notes due 2024 (the “2024 Notes”) also permit us to incur additional indebtedness, subject to our ability to meet certain borrowing conditions.

 

Our substantial debt may have important consequences. For instance, it could:

 

 

●

require us to dedicate a substantial portion of any cash flow from operations to the payment of interest and principal due under our debt, which would reduce funds available for other business purposes, including capital expenditures and acquisitions;

 

17
 

 

 

●

place us at a competitive disadvantage compared to some of our competitors that may have less debt and better access to capital resources;

 

 

●

limit our ability to obtain additional financing to fund acquisitions, working capital and capital expenditures and for other general corporate purposes; and

 

 

●

make it more difficult for us to satisfy our financial obligations.

 

Our ability to service our significant financial obligations depends on our ability to generate significant cash flow. This is partially subject to general economic, financial, competitive, legislative, regulatory, and other factors that are beyond our control. We cannot assure you that our business will generate cash flow from operations, that future borrowings will be available to us under our 2019 Senior Credit Facility or any other credit facilities, or that we will be able to complete any necessary financings, in amounts sufficient to enable us to fund our operations or pay our debts and other obligations, or to fund other liquidity needs. If we are not able to generate sufficient cash flow to service our obligations, we may need to refinance or restructure our debt, sell assets, reduce or delay capital investments, or seek to raise additional capital. Additional debt or equity financing may not be available in sufficient amounts, at times or on terms acceptable to us, or at all. Specifically, volatility in the capital markets may also impact our ability to obtain additional financing, or to refinance our existing debt, on terms or at times favorable to us. If we are unable to implement one or more of these alternatives, we may not be able to service our debt or other obligations, which could result in us being in default thereon, in which circumstances our lenders could cease making loans to us, and lenders or other holders of our debt could accelerate and declare due all outstanding obligations due under the respective agreements, which could have a material adverse effect on us.

 

The agreements governing our various debt obligations impose restrictions on our operations and limit our ability to undertake certain corporate actions.

 

The agreements governing our various debt obligations, including our 2019 Senior Credit Facility, the 2027 Notes Indenture, the 2026 Notes Indenture and the 2024 Notes Indenture (together, the “existing indentures” or the “indentures”), include covenants imposing significant restrictions on our operations. These restrictions may affect our ability to operate our business and may limit our ability to take advantage of potential business opportunities as they arise. These covenants place, or will place, restrictions on our ability to, among other things:

 

 

●

incur additional debt, subject to certain limitations;

 

 

●

declare or pay dividends, redeem stock or make other distributions to stockholders;

 

 

●

make investments or acquisitions;

 

 

●

create liens or use assets as security in other transactions;

 

 

●

issue guarantees;

 

 

●

merge or consolidate, or sell, transfer, lease or dispose of substantially all of our assets;

 

 

●

amend our articles of incorporation or bylaws;

 

 

●

engage in transactions with affiliates; and

 

18
 

 

 

●

purchase, sell or transfer certain assets.

 

Any of these restrictions and limitations could make it more difficult for us to execute our business strategy.

 

The existing indentures and our 2019 Senior Credit Facility requires us to comply with certain financial ratios or other covenants; our failure to do so would result in a default thereunder, which would have a material adverse effect on us.

 

We are required to comply with certain financial or other covenants under the existing indentures and our 2019 Senior Credit Facility. Our ability to comply with these requirements may be affected by events affecting our business, but beyond our control, including prevailing general economic, financial and industry conditions. These covenants could have an adverse effect on us by limiting our ability to take advantage of financing, investment, acquisition or other corporate opportunities. The breach of any of these covenants or restrictions could result in a default under the existing indentures or our 2019 Senior Credit Facility.

 

Upon a default under any of our debt agreements, the lenders or debtholders thereunder could have the right to declare all amounts outstanding, together with accrued and unpaid interest, to be immediately due and payable, which could, in turn, trigger defaults under other debt obligations and could result in the termination of commitments of the lenders to make further extensions of credit under our 2019 Senior Credit Facility. If we were unable to repay our secured debt to our lenders, or were otherwise in default under any provision governing our outstanding secured debt obligations, our secured lenders could proceed against us and our subsidiary guarantors and against the collateral securing that debt. Any default resulting in an acceleration of outstanding indebtedness, a termination of commitments under our financing arrangements or lenders proceeding against the collateral securing such indebtedness would likely result in a material adverse effect on our business, financial condition and results of operations.

 

Our variable rate indebtedness subjects us to interest rate risk, which could cause our annual debt service obligations to increase significantly.

 

Borrowings under our 2019 Senior Credit Facility are at variable rates of interest and expose us to interest rate risk. If the rates on which our borrowings are based were to increase from current levels, our debt service obligations on our variable rate indebtedness would increase even though the amount borrowed remained the same, and our net income and cash available to service our other obligations would decrease.

 

RisksRelatedtoOurBusiness

 

The success of our business is dependent upon advertising revenues, which are seasonal and cyclical, and also fluctuate as a result of a number of factors, some of which are beyond our control.

 

Our main source of revenue is the sale of advertising time and space. Our ability to sell advertising time and space depends on, among other things:

 

 

●

economic conditions in the areas where our stations are located and in the nation as a whole;

 

 

●

the popularity of the programming offered by our television stations;

 

 

●

changes in the population demographics in the areas where our stations are located;

 

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●

local and national advertising price fluctuations, which can be affected by the availability of programming, the popularity of programming, and the relative supply of and demand for commercial advertising;

 

 

●

our competitors’ activities, including increased competition from other advertising-based mediums, particularly digital platforms, cable networks, MVPDs and other internet companies;

 

 

●

the duration and extent of any network preemption of regularly scheduled programming for any reason;

 

 

●

decisions by advertisers to withdraw or delay planned advertising expenditures for any reason;

 

  ● labor disputes or other disruptions at major national advertisers, programming providers or networks; and

 

 

●

other factors beyond our control.

 

Our results are also subject to seasonal and cyclical fluctuations. Seasonal fluctuations typically result in higher revenue and broadcast operating income in the second and fourth quarters rather than in the first and third quarters of each year. This seasonality is primarily attributable to advertisers’ increased expenditures in the spring and in anticipation of holiday season spending in the fourth quarter and an increase in television viewership during this period. In addition, we typically experience fluctuations in our revenue and broadcast operating income between even-numbered and odd- numbered years. In years in which there are impending elections for various state and national offices, which primarily occur in even-numbered years, political advertising revenue tends to increase, often significantly, and particularly during presidential election years. We consider political broadcast advertising revenue to be revenue earned from the sale of advertising to political candidates, political parties and special interest groups of advertisements broadcast by our stations that contain messages primarily focused on elections and/or public policy issues. In even-numbered years, we typically derive a material portion of our broadcast advertising revenue from political broadcast advertisers. For the years ended December 31, 2019 and 2018, we derived approximately 3% and 14%, respectively, of our total revenue from political broadcast advertisers. If political broadcast advertising revenues declined, especially in an even-numbered year, our results of operations and financial condition could also be materially adversely affected. Also, our stations affiliated with the NBC Network broadcast Olympic Games and typically experience increased viewership and revenue during those broadcasts, which also occur in even-numbered years. As a result of the seasonality and cyclicality of our revenue and broadcast operating income, and the historically significant increase in our revenue and broadcast operating income during even-numbered years, it has been, and is expected to remain, difficult to engage in period-over-period comparisons of our revenue and results of operations.

 

Continued uncertain financial and economic conditions may have an adverse impact on our business, results of operations or financial condition.

 

Financial and economic conditions continue to be uncertain over the longer term and the continuation or worsening of such conditions could reduce consumer confidence and have an adverse effect on our business, results of operations and/or financial condition. If consumer confidence were to decline, this decline could negatively affect our advertising customers’ businesses and their advertising budgets. In addition, volatile economic conditions could have a negative impact on our industry or the industries of our customers who advertise on our stations, resulting in reduced advertising sales. Furthermore, it may be possible that actions taken by any governmental or regulatory body for the purpose of stabilizing the economy or financial markets will not achieve their intended effect. In addition to any negative direct consequences to our business or results of operations arising from these financial and economic developments, some of these actions may adversely affect financial institutions, capital providers, advertisers or other consumers on whom we rely, including for access to future capital or financing arrangements necessary to support our business. Our inability to obtain financing in amounts and at times necessary could make it more difficult or impossible to meet our obligations or otherwise take actions in our best interests.

 

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Our dependence upon a limited number of advertising categories could adversely affect our business.

 

We consider broadcast advertising revenue to be revenue earned primarily from the sale of advertisements broadcast by our stations. Although no single customer represented more than 5% of our broadcast advertising revenue for the years ended December 31, 2019 or 2018, we derived a material portion of non-political broadcast advertising revenue from advertisers in a limited number of industries, particularly the automotive industry. During the years ended December 31, 2019 and 2018 we derived approximately 25% of our total broadcast advertising revenue from our advertisers in the automotive industry. Our results of operations and financial condition could be materially adversely affected if broadcast advertising revenue from the automotive, or certain other industries, such as the medical, restaurant, communications, or furniture and appliances industries, declined.

 

We intend to continue to evaluate growth opportunities through strategic acquisitions, and there are significant risks associated with an acquisition strategy.

 

We intend to continue to evaluate opportunities for growth through selective acquisitions of television stations or station groups. There can be no assurances that we will be able to identify any suitable acquisition candidates, and we cannot predict whether we will be successful in pursuing or completing any acquisitions, or what the consequences of not completing any acquisitions would be. Consummation of any proposed acquisition at any time may also be subject to various conditions such as compliance with FCC rules and policies. Consummation of acquisitions may also be subject to antitrust or other regulatory requirements. In addition, as we operate in a highly regulated industry, we could be subject to litigation, government investigations and enforcement actions on a variety of matters, the result of which could limit our acquisition strategy.

 

An acquisition strategy involves numerous other risks, including risks associated with:

 

 

●

identifying suitable acquisition candidates and negotiating definitive purchase agreements on satisfactory terms;

 

 

●

integrating operations and systems and managing a large and geographically diverse group of stations;

 

 

●

obtaining financing to complete acquisitions, which financing may not be available to us at times, in amounts, or at rates acceptable to us, if at all, and potentially the related risks associated with increased debt;

 

 

●

diverting our management’s attention from other business concerns;

 

 

●

potentially losing key employees; and

 

 

●

potential changes in the regulatory approval process that may make it materially more expensive, or materially delay our ability, to consummate any proposed acquisitions.

 

Our failure to identify suitable acquisition candidates, or to complete any acquisitions and integrate any acquired business, or to obtain the expected benefits therefrom, could materially adversely affect our business, financial condition and results of operations.

 

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We may fail to realize any benefits and incur unanticipated losses related to any acquisition.

 

The success of any strategic acquisition depends, in part, on our ability to successfully combine the acquired business and assets with our business and our ability to successfully manage the assets so acquired. It is possible that the integration process could result in the loss of key employees, the disruption of ongoing business or inconsistencies in standards, controls, procedures and policies that adversely affect our ability to maintain relationships with clients, customers and employees or to achieve the anticipated benefits of an acquisition. Successful integration may also be hampered by any differences between the operations and corporate culture of the two organizations. Additionally, general market and economic conditions may inhibit our successful integration of any business. If we experience difficulties with the integration process, the anticipated benefits of an acquisition may not be realized fully, or at all, or may take longer to realize than expected. Finally, any cost savings that are realized may be offset by losses in revenues from the acquired business, any assets or operations disposed of in connection therewith or otherwise, or charges to earnings in connection with such acquisitions.

 

We must purchase television programming in advance of knowing whether a particular show will be popular enough for us to recoup our costs.

 

One of our most significant costs is for the purchase of television programming. If a particular program is not sufficiently popular among audiences in relation to the cost we pay for such program, we may not be able to sell enough related advertising time for us to recover the costs we pay to broadcast the program. We also must usually purchase programming several years in advance, and we may have to commit to purchase more than one year’s worth of programming, resulting in the incurrence of significant costs in advance of our receipt of any related revenue. We may also replace programs that are performing poorly before we have recaptured any significant portion of the costs we incurred in obtaining such programming or fully expensed the costs for financial reporting purposes. Any of these factors could reduce our revenues, result in the incurrence of impairment charges or otherwise cause our costs to escalate relative to revenues.

 

We are highly dependent upon our network affiliations, and our business and results of operations may be materially affected if a network (i) terminates its affiliation with us, (ii) significantly changes the economic terms and conditions of any future affiliation agreements with us or (iii) significantly changes the type, quality or quantity of programming provided to us under an affiliation agreement.

 

Our business depends in large part on the success of our network affiliations. Nearly all of our stations are directly or indirectly affiliated with at least one of the four major broadcast networks pursuant to a separate affiliation agreement. Each affiliation agreement provides the affiliated station with the right to broadcast all programs transmitted by the affiliated network during the term of the related agreement. Our affiliation agreements generally expire at various dates through December 2023.

 

If we cannot enter into affiliation agreements to replace any agreements in advance of their expiration, we would no longer be able to carry the affiliated network’s programming. This loss of programming would require us to seek to obtain replacement programming. Such replacement programming may involve higher costs and may not be as attractive to our target audiences, thereby reducing our ability to generate advertising revenue. Furthermore, our concentration of CBS and/or NBC affiliates makes us particularly sensitive to adverse changes in our business relationship with, and the general success of, CBS and/or NBC.

 

We can give no assurance that any future affiliation agreements will have economic terms or conditions equivalent to or more advantageous to us than our current agreements. If in the future a network or networks impose more adverse economic terms upon us, such event or events could have a material adverse effect on our business and results of operations.

 

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In addition, if we are unable to renew or replace any existing affiliation agreements, we may be unable to satisfy certain obligations under our existing or any future retransmission consent agreements with MVPDs and/or secure payment of retransmission consent fees under such agreements. Furthermore, if in the future a network limited or removed our ability to retransmit network programming to MVPDs, we may be unable to satisfy certain obligations or criteria for fees under any existing or any future retransmission consent agreements. In either case, such an event could have a material adverse effect on our business and results of operations.

 

We are also dependent upon our retransmission consent agreements with MVPDs, and we cannot predict the outcome of potential regulatory changes to the retransmission consent regime.

 

We are also dependent, in significant part, on our retransmission consent agreements. Our current retransmission consent agreements expire at various times over the next several years. No assurances can be provided that we will be able to renegotiate all of such agreements on favorable terms, on a timely basis, or at all. The failure to renegotiate such agreements could have a material adverse effect on our business and results of operations.

 

Our ability to successfully negotiate future retransmission consent agreements may be hindered by potential legislative or regulatory charges to the framework under which these agreements are negotiated.

 

The FCC has taken  actions to implement various provisions of STELAR affecting the carriage of television stations, including (i) adopting rules that allow for the modification of satellite television markets in order to ensure that satellite operators carry the broadcast stations of most interest to their communities, (ii) tightening its rules on joint retransmission consent negotiations to prohibit joint negotiations by stations in the same market unless those stations are commonly controlled, (iii) prohibiting a television station from limiting the ability of an MVPD to carry into its local market television signals that are deemed significantly viewed; and (iv) eliminating the “sweeps prohibition,” which had precluded cable operators from deleting or repositioning local commercial television stations during “sweeps” ratings periods.

 

We currently are not a party to any agreements that delegate our authority to negotiate retransmission consent for any of our television stations or grant us authority to negotiate retransmission consent for any other television station. Nevertheless, we cannot predict how the FCC’s restrictions on joint negotiations might impact future opportunities.

 

The FCC also has sought comment on whether it should modify or eliminate the network non- duplication and syndicated exclusivity rules. We cannot predict the outcome of this proceeding. If, however, the FCC eliminates or relaxes its rules enforcing our program exclusivity rights, it could affect our ability to negotiate future retransmission consent agreements, and it could harm our ratings and advertising revenue if cable and satellite operators import duplicative programming.

 

In addition, certain online video distributors (“OVDs”) have explored streaming broadcast programming over the internet without approval from or payments to the broadcaster. The majority of federal courts have issued preliminary injunctions enjoining these OVDs from streaming broadcast programming. Recently, a new OVD, organized as a non- profit began operating, claiming that its operations are exempt from copyright liability because of its non- profit status.  In July 2019, the major broadcast networks and certain affiliated entities filed a copyright lawsuit against this OVD.  The OVD continues to operate while the lawsuit is pending.  We cannot predict the outcome of this lawsuit. Separately, on December 19, 2014, the FCC issued an NPRM proposing to classify certain OVDs as MVPDs for purposes of certain FCC carriage rules. If the FCC adopts its proposal, OVDs would need to negotiate for consent from broadcasters before they retransmit broadcast signals. We cannot predict whether the FCC will adopt its proposal or other modified rules that might weaken our rights to negotiate with OVDs.

 

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In December 2019, Congress adopted the Satellite Television Community Protection and Promotion Act of 2019 and the Television Viewer Protection Act of 2019 (the “TVPA of 2019”). Among other things, these acts (i) made permanent the copyright license set out in Section 119 of the Copyright Act; (ii) limited eligibility for use of the Section 119 license to retransmit the signals of network television broadcast stations to unserved households to those satellite operators who provide local-into-local service to all DMAs; and (iii) modified the definition of unserved households to those households located in a “short market” (which, in turn, was defined as a local market in which programming of one or more of the top four networks is not offered on either the primary or multicast stream by any network station in that market).  The TVPA of 2019 also made permanent the requirement that broadcasters and MVPDs negotiate in good faith and adds a provision that will (i) allow MVPDs to designate a buying group to negotiate retransmission consent agreements on their behalf and (ii) require large stations groups, including ours, to negotiate in good faith with a qualified MVPD buying group.

 

Congress continues to consider various changes to the statutory scheme governing retransmission of broadcast programming. Some of the proposed bills would make it more difficult to negotiate retransmission consent agreements with large MVPDs and would weaken our leverage to seek market-based compensation for our programming. We cannot predict whether any of these proposals will become law, and, if any do, we cannot determine the effect that any statutory changes would have on our business.

 

We operate in a highly competitive environment. Competition occurs on multiple levels (for audiences, programming and advertisers) and is based on a variety of factors. If we are not able to successfully compete in all relevant aspects, our revenues will be materially adversely affected.

 

Television stations compete for audiences, certain programming (including news) and advertisers. Signal coverage and carriage on MVPD systems also materially affect a television station’s competitive position. With respect to audiences, stations compete primarily based on broadcast program popularity. We cannot provide any assurances as to the acceptability by audiences of any of the programs we broadcast. Further, because we compete with other broadcast stations for certain programming, we cannot provide any assurances that we will be able to obtain any desired programming at costs that we believe are reasonable. Cable-network programming, combined with increased access to cable, satellite TV, and internet video streaming services, has become a significant competitor for broadcast television programming viewers. Cable networks’ viewership and advertising share have increased due to the growth in MVPD and internet video streaming services, penetration (the percentage of television households that are connected to an MVPD or internet video system) and increased investments in programming by cable networks or internet video. Further increases in the advertising share of cable networks and internet video streaming services could materially adversely affect the advertising revenue of our television stations.

 

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In addition, technological innovation and the resulting proliferation of programming alternatives, such as internet websites, mobile apps and wireless carriers, direct-to-consumer video distribution systems, and home entertainment systems have further fractionalized television viewing audiences and resulted in additional challenges to revenue generation. New technologies and methods of buying advertising also present an additional competitive challenge, as competitors may offer products and services such as the ability to purchase advertising programmatically or bundled offline and online advertising, aimed at more efficiently capturing advertising spend.

 

Our inability or failure to broadcast popular programs, or otherwise maintain viewership for any reason, including as a result of increases in programming alternatives, or our loss of advertising due to technological changes, could result in a lack of advertisers, or a reduction in the amount advertisers are willing to pay us to advertise, which could have a material adverse effect on our business, financial condition and results of operations.

 

Our defined benefit pension plan obligation is currently underfunded, and, if certain factors worsen, we may have to make significant cash payments, which could reduce the cash available for our business.

 

We have underfunded obligations under our defined benefit pension plan. Notwithstanding that our pension plan is frozen with regard to any future benefit accruals, the funded status of our pension plan is dependent upon many factors, including returns on invested assets, the level of certain market interest rates and the discount rate used to determine pension obligations. Unfavorable returns on the plan’s assets or unfavorable changes in applicable laws or regulations may materially change the timing and amount of required plan funding, which could reduce the cash available for our business. In addition, any future decreases in the discount rate used to determine pension obligations could result in an increase in the valuation of pension obligations, which could affect the reported funding status of our pension plan and future contributions.

 

We may be unable to maintain or increase our digital advertising revenue, which could have a material adverse effect on our business and operating results.

 

We generate a portion of our advertising revenue from the sale of advertisements on our digital sites. Our ability to maintain and increase this advertising revenue is largely dependent upon the number of users actively visiting our internet sites and using our digital apps. As a result, we must increase user engagement with our internet sites in order to increase our advertising revenue. Because digital advertising techniques are evolving, if our content, technology and advertisement serving techniques do not evolve to meet the changing needs of advertisers, our advertising revenue could also decline. Changes in our business model, advertising inventory or initiatives could also cause a decrease in our internet advertising revenue.

 

We do not have long-term agreements with most of our digital advertisers. Any termination, change or decrease in our relationships with our largest digital advertising clients could have a material adverse effect on our revenue and profitability. If we do not maintain or increase our digital advertising revenue, our business, results of operations and financial condition could be materially adversely affected.

 

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We have, in the past, incurred impairment charges on our goodwill and/or broadcast licenses, and any such future charges may have a material effect on the value of our total assets.

 

As of December 31, 2019, the book value of our broadcast licenses was $3.6 billion and the book value of our goodwill was $1.4 billion, in comparison to total assets of $7.0 billion. Not less than annually, and more frequently if necessary, we are required to evaluate our goodwill and broadcast licenses to determine if the estimated fair value of these intangible assets is less than book value. If the estimated fair value of these intangible assets is less than book value, we will be required to record a non-cash expense to write down the book value of the intangible asset to the estimated fair value. We cannot make any assurances that any required impairment charges will not have a material adverse effect on our total assets.

 

Recently enacted changes to the United States tax laws may have a material impact on our business or financial condition.

 

On December 22, 2017, United States tax reform legislation known as the Tax Cuts and Jobs Act (the “TCJA”) was signed into law. The TCJA made substantial changes to United States tax law, including a reduction in the corporate tax rate, a limitation on deductibility of interest expense, a limitation on the use of net operating losses to offset future taxable income and the allowance of immediate expensing of capital expenditures. The TCJA will continue to have, significant effects on us, some of which may be adverse. The extent of the impact remains uncertain at this time and is subject to any other regulatory or administrative developments, including any further regulations or other guidance yet to be promulgated by the United States Internal Revenue Service. The TCJA contains numerous, complex provisions that could affect us.

 

Cybersecurity risks could affect our operating effectiveness.

 

We use computers in substantially all aspects of our business operations. Our revenues are increasingly dependent on digital products. Such use exposes us to potential cyber incidents resulting from deliberate attacks or unintentional events. These incidents could include, but are not limited to, unauthorized access to digital systems for purposes of misappropriating assets or sensitive information, data corruption or operational disruption. The results of these incidents could include, but are not limited to, business interruption, disclosure of nonpublic information, decreased advertising revenues, misstated financial data, liability for stolen assets or information, increased cybersecurity protection costs, litigation, financial consequences and reputational damage adversely affecting customer or investor confidence, any or all of which could adversely affect our business. Although we have systems and processes in place to protect against risks associated with cyber incidents, depending on the nature of an incident, these protections may not be fully sufficient.

 

Certain stockholders or groups of stockholders have the ability to exert significant influence over us.

 

Hilton H. Howell, Jr., our Executive Chairman and Chief Executive Officer, is the husband of Robin R. Howell, a member of our Board of Directors (collectively with other members of their family, the “Howell-Robinson Family”).

 

As a result of their significant stockholdings and positions on the Board of Directors, the Howell-Robinson Family is able to exert significant influence over our policies and management, potentially in a manner which may not be consistent with the interests of our other stockholders.

 

We are a holding company with no material independent assets or operations and we depend on our subsidiaries for cash.

 

We are a holding company with no material independent assets or operations, other than our investments in our subsidiaries. Because we are a holding company, we are dependent upon the payment of dividends, distributions, loans or advances to us by our subsidiaries to fund our obligations. These payments could be or become subject to dividend or other restrictions under applicable laws in the jurisdictions in which our subsidiaries operate. Payments by our subsidiaries are also contingent upon the subsidiaries’ earnings. If we are unable to obtain sufficient funds from our subsidiaries to fund our obligations, our financial condition and ability to meet our obligations may be adversely affected.

 

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RisksRelatedtoRegulatoryMatters

 

Federal broadcasting industry regulations limit our operating flexibility.

 

The FCC regulates all television broadcasters, including us. We must obtain FCC approval whenever we (i) apply for a new license, (ii) seek to renew, modify or assign a license, (iii) purchase a broadcast station and/or (iv) transfer the control of one of our subsidiaries that holds a license. Our FCC licenses are critical to our operations, and we cannot operate without them. We cannot be certain that the FCC will renew these licenses in the future or approve new acquisitions, mergers, divestitures or other business activities. Our failure to renew any licenses upon the expiration of any license term could have a material adverse effect on our business.

 

Federal legislation and FCC rules have changed significantly in recent years and may continue to change. These changes may limit our ability to conduct our business in ways that we believe would be advantageous and may affect our operating results.

 

The FCC can sanction us for programming broadcast on our stations that it finds to be indecent.

 

Over the past several years, the FCC has increased its enforcement efforts regarding broadcast indecency and profanity and the statutory maximum fine for broadcasting indecent material is currently $414,454 per incident. In June 2012, the Supreme Court decided a challenge to the FCC’s indecency enforcement policies without resolving the scope of the FCC’s ability to regulate broadcast content. In August 2013, the FCC issued a Public Notice seeking comment on whether it should modify its indecency policies. The FCC has not yet issued a decision in this proceeding and the courts remain free to review the FCC’s current policy or any modifications thereto. The outcomes of these proceedings could affect future FCC policies in this area, and we are unable to predict the outcome of any such judicial proceeding, which could have a material adverse effect on our business.

 

The FCC’s duopoly restrictions limit our ability to own and operate multiple television stations in the same market.

 

The FCC’s ownership rules generally prohibit us from owning or having “attributable interests” in two television stations that are located in the same market when one of the stations is ranked among the top-four stations in the market unless eight independently owned, full-power stations will remain in the market”). In November 2017, the FCC released an order that eliminated or relaxed several long-standing media ownership rules. However, in November 2019, the United States Court of Appeals for the Third Circuit vacated these rule changes and reinstated the prior, more restrictive, ownership rules. In December 2018, the FCC launched a new proceeding to consider whether further changes in the media ownership rules were necessary. The FCC also considers television Local Marketing Agreements (“LMAs”) (which are agreements under which a television station sells or provides more than 15% of the programming on another same-market television station) as “attributable interests.” With the previous ownership rules in effect, our ability to expand in our present markets through additional station acquisitions or LMAs may be constrained.

 

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The FCC’s National Television Station Ownership Rule limits the maximum number of households we can reach.

 

Under the FCC’s National Television Station Ownership Rule, a single television station owner may not reach more than 39% of United States households through commonly owned television stations, subject to a 50% discount of the number of television households attributable to UHF stations (the “UHF Discount”). In December 2017, the Commission issued an NPRM seeking comment on whether it should modify or eliminate the national cap, including the UHF Discount. This rule may constrain our ability to expand through additional station acquisitions. Currently our station portfolio reaches approximately 24% of total United States television households, or approximately 17% of total United States television households, after applying the UHF discount.

 

The Company is subject to governmental oversight regarding compliance with antitrust law as well as related civil litigation.

 

Various governmental agencies, including the DOJ, have authority to enforce the antitrust laws of the United States in the broadcast television industry. The DOJ has increased its enforcement activities within the industry. For example, in November 2018, the DOJ filed a lawsuit in the United States District Court for the District of Columbia against six broadcasters, including Raycom, alleging an agreement to exchange competitively sensitive information. The broadcasters and the DOJ entered into a settlement agreement, which, among other things, prohibits the defendant broadcasters from exchanging competitively sensitive information and impose certain compliance requirements. No party to the settlement agreement, including Raycom, admitted to any wrongdoing. In addition, following the public disclosure of the DOJ’s investigation, several putative class action lawsuits were filed against various broadcasters, including Gray, asserting claims related to those reflected in the DOJ settlement. These lawsuits have been consolidated in the United States District Court for the Northern District of Illinois for the purpose of coordinated and consolidated pretrial proceedings. We are unable to predict the outcome of these proceedings.

 

Risks Related to the Ownership of Our Equity Securities

 

The price and trading volume of our equity securities may be volatile.

 

The price and trading volume of our equity securities may be volatile and subject to fluctuations. Some of the factors that could cause fluctuation in the stock price or trading volume of our equity securities include:

 

 

●

general market and economic conditions and market trends, including in the television broadcast industry and the financial markets generally;

 

 

●

the political, economic and social situation in the United States;

 

 

●

actual or anticipated variations in operating results, including audience share ratings and financial results;

 

 

●

inability to meet projections in revenue;

 

 

●

announcements by us or our competitors of significant acquisitions, strategic partnerships, joint ventures, capital commitments or other business developments;

 

 

●

technological innovations in the television broadcast industry;

 

 

●

adoption of new accounting standards affecting our industry;

 

 

●

operations of competitors and the performance of competitors’ common stock;

 

 

●

litigation or governmental action involving or affecting us or our subsidiaries;

 

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●

changes in financial estimates and recommendations by securities analysts;

 

 

●

recruitment or departure of key personnel;

 

 

●

purchases or sales of blocks of our common stock; and

 

 

●

operating and stock performance of the companies that investors may consider to be comparable.

 

There can be no assurance that the price of our equity securities will not fluctuate or decline significantly. The stock market in recent years has experienced considerable price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of individual companies and that could adversely affect the price of our equity securities, regardless of our operating performance. Stock price volatility might be worse if the trading volume of shares of our equity securities is low. Furthermore, stockholders may initiate securities class action lawsuits if the market price of our equity securities were to decline significantly, which may cause us to incur substantial costs and could divert the time and attention of our management.

 

We do not currently pay cash dividends on our common stock or Class A common stock. To the extent a potential investor ascribes value to a dividend paying stock, the value of our stock may be correspondingly reduced.

 

Our Board of Directors has not declared a cash or stock dividend on either class of our common stock since 2008. The timing and amount of any future dividend is at the discretion of our Board of Directors, and they may be subject to limitations or restrictions in our 2019 Senior Credit Facility and other financing agreements we may be, or become, party to. We can provide no assurance when or if any future dividends will be declared on our common stock or Class A common stock.

 

As a result, if and to the extent an investor ascribes value to a dividend-paying stock, the value of our common stock or Class A common stock may be correspondingly reduced.

 

Additional issuances of equity securities would dilute the ownership of our existing stockholders and could reduce our earnings per share.

 

We may issue additional equity securities in the future in connection with capital raises, acquisitions, strategic transactions or for other purposes. To the extent we issue substantial additional equity securities, the ownership of our existing stockholders would be diluted and our earnings per share could be reduced.

 

Anti-takeover provisions contained in our Restated Articles of Incorporation (“Articles”) and our Bylaws, as amended (“Bylaws”), as well as provisions of Georgia law, could impair a takeover attempt.

 

Our Articles and Bylaws may have the effect of delaying, deferring or discouraging a prospective acquirer from making a tender offer for our shares of common stock or otherwise attempting to obtain control of us. To the extent that these provisions discourage takeover attempts, they could deprive stockholders of opportunities to realize takeover premiums for their shares. Moreover, these provisions could discourage accumulations of large blocks of common stock, thus depriving stockholders of any advantages which large accumulations of stock might provide.

 

As a Georgia corporation, we are also subject to provisions of Georgia law, including Section 14-2-1132 of the Georgia Business Corporation Code. Section 14-2-1132 prevents some stockholders holding more than 10% of our outstanding common stock from engaging in certain business combinations unless the business combination was approved in advance by our Board of Directors or results in the stockholder holding more than 90% of our outstanding common stock.

 

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Any provision of our Articles, our Bylaws or Georgia law that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock and could also affect the price that some investors are willing to pay for our common stock.

 

We have the ability to issue additional preferred stock, which could affect the rights of holders of our common stock and Class A common stock.

 

Including the shares of preferred stock issued in the Raycom Merger, our Articles allow our Board of Directors to issue up to 20 million shares of preferred stock and set forth the terms of such preferred stock. The terms of any such preferred stock, if issued, may adversely affect the dividend and liquidation rights of holders of our common stock.

 

Holders of our Class A common stock have the right to 10 votes per share on all matters to be voted on by our stockholders and, consequently, the ability to exert significant influence over us.

 

As a result of the 10 to 1 voting rights of holders of our Class A common stock, these stockholders are expected to be able to exert significant influence over all matters requiring stockholder approval, including mergers and other material transactions, and may be able to cause or prevent a change in the composition of our Board of Directors or a change in control of our Company that could deprive our stockholders of an opportunity to receive a premium for their common stock as part of a sale of the Company and might ultimately affect the market price of our common stock.

 

If securities analysts do not continue to publish research or reports about our business, or if they publish negative evaluations of our stock, the price of our stock could decline.

 

We expect that the trading price of our equity securities may be affected by research or reports that industry or financial analysts publish about our business. If one or more of the analysts who cover us downgrade their evaluations, the price of our equity securities could decline. If one or more of these analysts cease coverage of our Company, we could lose visibility in the market for our equity securities, which in turn could cause our stock prices to decline.

 

Future sales of our Common Stock by the selling stockholders in connection with the Raycom Merger, or the perception in the public markets that such sales may occur, could cause the trading price of our Common Stock to decline.

 

The issuance of our Common Stock to the selling stockholders in connection with the Raycom Merger could have the effect of depressing the market price for our Common Stock. The Company has filed a registration statement to register all of the shares of Common Stock issued to the selling stockholders in connection with the Raycom Merger. Sales of substantial amounts of our Common Stock, including sales by the selling stockholders from time to time, or the perception that these sales could occur, could adversely affect the price of our Common Stock.

 

30
 

 

Item 1B. Unresolved Staff Comments.

 

None.

 

Item 2. Properties.

 

We lease our principal executive offices in a building located at 4370 Peachtree Road, NE, Atlanta, Georgia, 30319. We also lease various other offices that support our operations. See “Business – Stations” elsewhere in this Annual Report on Form 10-K for a listing of our significant television stations and their locations.

 

The types of properties required to support television stations include offices, studios, transmitter sites and antenna sites. A station’s studios are generally housed within its offices in each respective market. The transmitter sites and antenna sites are generally located in elevated areas to provide optimal signal strength and coverage. We own or lease land, offices, studios, transmitters and antennas in each of our markets necessary to support our operations in that market area. In some market areas, we also own or lease multiple properties, such as towers and/or signal repeaters (translators), to optimize our broadcast capabilities. To the extent that our properties are leased and those leases contain expiration dates, we believe that those leases can be renewed, or that alternative facilities can be leased or acquired, on terms that are comparable, in all material respects, to our existing properties.

 

We generally believe all of our owned and leased properties are in good condition, and suitable for the conduct of our present business.

 

Item 3. Legal Proceedings.

 

We are, from time to time, subject to legal proceedings and claims in the normal course of our business. Based on our current knowledge, we do not believe that any known legal proceedings or claims are likely to have a material adverse effect on our financial position, results of operations or cash flows.

 

Item 4. Mine Safety Disclosures.

 

Not applicable.

 

Information about our Executive Officers.

 

Set forth below is certain information with respect to our executive officers as of February 22, 2019:

 

Hilton H. Howell, Jr., age 57, has served as our Executive Chairman and Chief Executive Officer since January 2, 2019. Prior to that, Mr. Howell served as our Chairman, Chief Executive Officer and President since June 2013. Mr. Howell is a member of the Executive Committee of the Board, has been a director since 1993 and served as the Vice Chairman of the Board from 2002 until April 2016 when he was appointed as Chairman. He served as our Executive Vice President from September 2002 to August 2008. He has served as President and Chief Executive Officer of Atlantic American Corporation, an insurance holding company, since 1995, and as Chairman of that company since February 2009. He has been Executive Vice President and General Counsel of Delta Life Insurance Company and Delta Fire & Casualty Insurance Company since 1991. Mr. Howell also serves as a director of Atlantic American Corporation and of each of its subsidiaries, American Southern Insurance Company, American Safety Insurance Company and Bankers Fidelity Life Insurance Company, as well as a director of Delta Life Insurance Company and Delta Fire & Casualty Insurance Company. He is the husband of Mrs. Robin R. Howell, who is a member of our Board of Directors. Additionally, Mr. Howell has, until recently, served as a board member of the National Association of Broadcasters and the NBC Affiliate Board.

 

31
 

 

Donald P. (“Pat”) LaPlatney. Mr. LaPlatney, age 60, has served as our President and Co-Chief Executive Officer since January 2, 2019. Before that he had been Chief Executive Officer and President of Raycom, from July 2016, and as a member of the board of directors of Raycom from July 2016, until the closing of the Raycom Merger. Before that, he served as Chief Operating Officer of Raycom from April 2014 to July 2016, as Senior Vice President from April 2012 until April 2014 and as Vice President, Digital Media from August 2007 to April 2012. Before joining Raycom in 2007, Mr. LaPlatney held various executive positions at The Tube Media Corp., Westwood One and Raycom Sports. Additionally, Mr. LaPlatney currently serves as a board member of Circle, the National Association of Broadcasters and Chairman of the NBC Affiliate Board.

 

James C. (“Jim”) Ryan, age 59, has served as our Chief Financial Officer since October 1998 and as Executive Vice President since February 2016. Before that, he had been our Senior Vice President since September 2002 and our Vice President since October 1998.

 

Kevin P. Latek, age 49, has served as our Executive Vice President and Chief Legal and Development Officer since February 2016. Before that, he served as our Senior Vice President, Business Affairs, since July 2013 and as our Vice President for Law and Development since March 2012. Prior to joining us, Mr. Latek represented television and radio broadcasters as well as financial institutions in FCC regulatory and transactional matters in Washington, DC. He is a member of the Board of Directors of the National Association of Broadcasters Educational Foundation and, the CBS Affiliates Board. He is a past member of the FOX Affiliates Board of Governors.

 

Robert L. (“Bob”) Smith, age 57, has served as our Chief Operating Officer since January 2019. Before that, he served as our Co-Chief Operating Officer since February 2016 and as our Senior Vice President since July 2013. He is a past member of the Wisconsin Broadcaster’s Board, the Madison Chamber of Commerce and the Rockford Chamber of Commerce.

 

32
 

 

PART II

 

Item5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

 

Our common stock, no par value, and our Class A common stock, no par value, have been listed and traded on the NYSE since September 24, 1996 and June 30, 1995, respectively, under the symbols “GTN” and “GTN.A,” respectively.

 

As of February 21, 2020, we had 92,819,689 outstanding shares of common stock held by approximately 25,986 stockholders and 7,048,006 outstanding shares of Class A common stock held by approximately 357 stockholders. The number of stockholders consists of stockholders of record and individual participants in security position listings as furnished to us pursuant to Rule 17Ad-8 under the Securities Exchange Act of 1934 (the “Exchange Act”).

 

Our restated articles of incorporation provide that each share of common stock is entitled to one vote, and each share of Class A common stock is entitled to 10 votes, on each matter submitted to a vote of stockholders. Our restated articles of incorporation require that our common stock and our Class A common stock receive dividends on a pari passu basis when declared.

 

We have not paid dividends on either class of our common stock since October 15, 2008. The 2019 Senior Credit Facility and our indentures contain covenants that restrict our ability to pay cash dividends on our capital stock.

 

In addition, the declaration and payment of any dividends on our common stock or Class A common stock are subject to the discretion of our Board of Directors. Any future payments of dividends will depend on our earnings and financial position and such other factors as our Board of Directors deems relevant. See Note 4 “Long-term Debt” of our audited consolidated financial statements included elsewhere herein for a further discussion of restrictions on our ability to pay dividends.

 

On January 2, 2019, we issued 650,000 shares of Series A Perpetual Preferred Stock (the “Preferred Stock”), with a stated face value of $1,000 per share, as a portion of the consideration paid in the Raycom Merger. No placement or underwriting fees were paid in connection with the issuance of the Preferred Stock. The Preferred Stock was issued to legacy Raycom shareholders in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act, as specified by the Rule 144A safe harbor, as the Preferred Stock was issued to Raycom shareholders in a privately negotiated transaction not involving any public offering or solicitation. Shares of the Preferred Stock accrue dividends on the face value of such shares (A) in cash at a rate of 8% per annum or, (B) at the Company’s option, in-kind at a rate of 8.5% per annum. The holders of the Preferred Stock do not have any right to exchange or convert such shares into any of our other securities. In addition, on January 2, 2019, we issued 11.5 million shares of our common stock at a price of $14.74 per share, the closing price of our common stock on the last trading day preceding the Raycom Merger. No placement or underwriting fees were paid in connection with the issuance of these shares of common stock. These shares were issued to legacy Raycom shareholders in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act as specified by the Rule 144A safe harbor, as the common stock was issued to Raycom shareholders in a privately negotiated transaction not involving any public offering or solicitation. The shares of our common stock issued to certain legacy Raycom shareholders, upon the exemption from registration provided by Section 4(a)(2) of the Securities Act, have been registered for resale with the SEC on a selling stockholder shelf registration statement on Form S-3, file no. 333-229162.

 

33
 

 

Stock Performance Graph

 

The following stock performance graphs and related disclosures do not constitute soliciting material and should not be deemed filed or incorporated by reference into any other filing by us under the Securities Act of 1933 or the Exchange Act, except to the extent we specifically incorporate them by reference therein.

 

The following graphs compare the cumulative total return of the common stock and the Class A common stock from January 1, 2015 to December 31, 2019, as compared to the stock market total return indexes for (i) The New York Stock Exchange Composite Index (the “NYSE Composite Index”) and (ii) The New York Stock Exchange Television Broadcasting Stations Index (the “TV Broadcasting Stations Index”).

 

The graphs assume the investment of $100 in each of our common stock and the Class A common stock, respectively, the NYSE Composite Index and the TV Broadcasting Stations Index on January 1, 2015. Any dividends are assumed to have been reinvested as paid.

 

 

* $100 invested on 1/1/2015 in stock index, including reinvestment of dividends. Year ending December 31.

 

   

As of

 

Company/Index/Market

 

1/1/2015

    

12/31/2015

    

12/31/2016

    

12/31/2017

    

12/31/2018

    

12/31/2019

  

Gray Television, Inc. common stock

   $ 100     $ 146     $ 97     $ 150     $ 132     $ 191  

NYSE Composite Index

   $ 100     $ 96     $ 107     $ 127     $ 116     $ 146  

TV Broadcasting Stations Index

   $ 100     $ 110     $ 115     $ 120     $ 119     $ 157  

 

34
 

 

 

* $100 invested on 1/1/2015 in stock index, including reinvestment of dividends. Year ending December 31.

 

   

As of

 

Company/Index/Market

 

1/1/2015

    

12/31/2015

    

12/31/2016

    

12/31/2017

    

12/31/2018

    

12/31/2019

  

Gray Television, Inc. Class A common stock

   $ 100     $ 149     $ 114     $ 157     $ 145     $ 217  

NYSE Composite Index

   $ 100     $ 96     $ 107     $ 127     $ 116     $ 146  

TV Broadcasting Stations Index

   $ 100     $ 109     $ 115     $ 120     $ 119     $ 157  

 

Issuer Purchases of Common Stock and Class A Common Stock

 

On November 5, 2019, our Board of Directors authorized the repurchase of up to $150 million of our outstanding common stock and/or our Class A common stock prior to December 31, 2022 (the “2019 Repurchase Authorization”). The 2019 Repurchase Authorization superseded all prior repurchase authorizations. The 2019 Repurchase Authorization prohibits the Company from purchasing shares directly from the Company’s officers, directors, or the Gray Television, Inc. Capital Accumulation Plan (the “401k Plan”).

 

On December 15, 2019, we entered into an Issuer Repurchase Plan (the “2019 IRP”), under Rules 10B-18 and 10b5-1 of the Exchange Act. The 2019 IRP facilitates the orderly repurchase of our common stock through the establishment of the parameters for repurchases of our shares. The number of shares and the timing of repurchases will depend on the market price of our common stock and certain other limits established in the 2019 IRP, none of which we have disclosed. We are required to fund repurchases under the 2019 IRP from the remaining balance of the 2019 Repurchase Authorization.

 

35
 

 

The following table summarizes repurchases of our common stock in the three-months ended December 31, 2019, all of which were pursuant to the 2019 Repurchase Authorization:

 

Period

  

Total Number of

Shares

Purchased (1)

    

Average Price

Paid per

Share (2)

    

Total Number of

Shares

Purchased as

Part of Publicly

Announced Plans

    

Maximum Number

of Shares (or

Approximate

Dollar Value) that

May Yet Be

Purchased Under

the Plans or

Programs (3)

  
                                 

October 1, 2019 through October 31, 2019:

     -     $ -       -     $ 43,460,633  
                                 

November 1, 2019 through November 30, 2019:

     -     $ -       -     $ 150,000,000  
                                 

December 1, 2019 through December 31, 2019:

     1,008,091     $ 20.86       1,008,091     $ 129,002,327  
                                 

Total

     1,008,091     $ 20.86       1,008,091          

 

(1)

All shares purchased were shares of common stock.

 

(2)

Amount excludes standard brokerage commissions.

 

(3)

The amounts presented at each respective month-end include the remaining dollar value available to purchase common stock and/or our Class A common stock under the 2019 Repurchase Authorization or the preceding repurchase authorizations, all of which were superseded by the 2019 Repurchase Authorization on November 6, 2019.

 

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Item 6. Selected Financial Data.

 

Set forth below is selected historical consolidated financial information for Gray for, and as of the end of, each of the years ended December 31, 2019, 2018, 2017, 2016 and 2015. The selected historical consolidated financial information presented below does not contain all of the information you should consider when evaluating Gray, and should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our audited consolidated financial statements and related notes included elsewhere herein. Various factors are expected to have an effect on our financial condition and results of operations in the future, including the ongoing integration of any acquired businesses. You should also read this selected historical consolidated financial information in conjunction with the information under “Risk Factors” included elsewhere in this Annual Report on Form 10-K.

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

    

2016

    

2015

  
   

(in millions, except net income per share data)

  

Statements of Operations Data (1):

                                        

Revenue (less agency commissions)

   $ 2,122     $ 1,084     $ 883     $ 812     $ 597  

Operating income (2)

     478       389       290       234       141  

Loss from early extinguishment of debt (3)

     -       -       (3 )     (32 )     -  

Net income available to common stockholders (4)

     127       211       262       62       39  

Net income available to common stockholders (4), per common share:

                                        

Basic

     1.28       2.39       3.59       0.87       0.58  

Diluted

     1.27       2.37       3.55       0.86       0.57  
                                         

Balance Sheet Data (at end of period):

                                        

Total assets (5)

   $ 6,972     $ 4,213     $ 3,261     $ 2,753     $ 2,078  

Long-term debt, including current portion (5)

     3,697       2,549       1,837       1,757       1,220  

Total stockholders’ equity

     1,464       1,187       993       493       429  

 

(1)

Our operating results fluctuate significantly between years, as a result of, among other things, our acquisition activity, and increased political advertising revenue in even-numbered years.

 

(2)

Amounts in 2017, 2016 and 2015 have been reclassified to give effect to the implementation of Financial Accounting Standards Board (“FASB”) Accounting Standards Update (“ASU”) 2017-07, Compensation—Retirement Benefits (Topic 715) - Improving the Presentation of Net Periodic Pension Cost and Net Periodic Postretirement Benefit Cost. We adopted these standards as of January 1, 2018. Upon the adoption of this standard, except for service costs of $3 million in 2015, we reclassified our net pension expense (benefit) from our operating expenses to our miscellaneous income, net. The amount was not material.

 

(3)

In 2017, we recorded a loss from early extinguishment of debt related to the amendment and restatement of our 2017 Credit Facility. In 2016, we recorded a loss on early extinguishment of debt related to the repurchase and redemption of our then-outstanding 7½% senior notes due 2020.

 

(4)

On January 2, 2019, we issued the Preferred Stock. Net income available to common stockholders and net income per common share, available to common stockholders, are net of dividends on our Preferred Stock that totaled $52 million in 2019.

 

(5)

Amounts in 2015 have been reclassified to give effect to the implementation of ASU 2015-03, Interest - Imputation of Interest (Subtopic 835-30) - Simplifying the Presentation of Debt Issuance Costs and ASU 2015-15, Interest - Imputation of Interest (Subtopic 835-30) - Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements- Amendments to SEC Paragraphs Pursuant to Staff Announcement at June 18, 2015 EITF Meeting. We adopted these standards as of January 1, 2016. In accordance with these standards, we have reclassified our deferred loan costs as a reduction in the balance of our long-term debt in our balance sheets. Our deferred loan costs were previously presented as a non-current asset.

 

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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

Executive Overview

 

Introduction. The following discussion and analysis of the financial condition and results of operations of Gray Television, Inc. and its consolidated subsidiaries (except as the context otherwise provides, “Gray,” the “Company,” “we,” “us” or “our”) should be read in conjunction with our audited consolidated financial statements and notes thereto included elsewhere herein.

 

This section of this Annual Report on Form 10-K generally discusses 2019 and 2018 items and year-over-year comparisons between 2019 and 2018. A detailed discussion of 2017 items and year-over-year comparisons between 2018 and 2017 that are not included in this Annual Report on Form 10-K can be found in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part II, Item 7 of our Annual Report on Form 10-K for the year ended December 31, 2018.

 

Business Overview. We are a television broadcast company headquartered in Atlanta, Georgia, that is the largest owner of top-rated local television stations and digital assets in the United States. We currently own and/or operate television stations and leading digital properties in 93 television markets that collectively reach approximately 24% of US television households. Over calendar year 2019, our stations were ranked first in 68 markets, and first and/or second in 86 markets, as calculated by Comscore’s audience measurement service. We also own video program production, marketing, and digital businesses including Raycom Sports, Tupelo-Raycom, and RTM Studios, the producer of PowerNation programs and content, which we refer to collectively as our “production companies.”

 

Our operating revenues are derived primarily from broadcast and internet advertising, retransmission consent fees and, to a lesser extent, other sources such as production of television and event programming, television commercials, tower rentals and management fees. For the years ended December 31, 2019, 2018 and 2017 we generated revenue of $2.1 billion, $1.1 billion and $883 million, respectively.

 

Recent Acquisitions and Divestitures. On January 2, 2019, we completed the Raycom Merger. Net of station divestitures due to market overlaps, this transaction added television stations in 34 new markets. In addition to the high-quality television stations acquired as part of the Raycom Merger, we also acquired businesses that provide sports marketing and production services that we believe have resulted in us becoming a more diversified media company. The Raycom Merger completed our transformation from a small, regional broadcaster to a leading media company with nationwide scale based on high-quality stations with exceptional talent in attractive markets. By combining these two companies, we now own and operate television stations and leading digital properties in television markets from Alaska and Hawaii to Maine and Florida.

 

Upon consummation of the Raycom Merger, all outstanding shares of Raycom capital stock, and options and warrants to purchase Raycom capital stock, were cancelled, and all outstanding indebtedness was repaid, in exchange for aggregate consideration consisting of: (i) 11.5 million shares of the Company’s common stock then valued at $170 million, for which we filed a registration statement in January 2019, covering the resale of the shares issued; (ii) $2.84 billion in cash; and (iii) 650,000 shares of Series A Preferred Stock of the Company, with a stated face value of $1,000 per share or $650 million, issued to holders of warrants to purchase shares of Raycom. The Series A Preferred Stock accrues dividends at 8% per annum payable in cash or 8.5% per annum payable in the form of additional Series A Preferred Stock, at the election of Gray. The holders of Series A Preferred Stock are not entitled to vote on any matter submitted to the stockholders of the Company for a vote, except as required by Georgia law. Upon a liquidation of the Company, holders of the Series A Preferred Stock will be entitled to receive a liquidation preference equal to $1,000 per share plus all accrued and unpaid dividends.

 

38
 

 

On May 1, 2019, we acquired the assets of WWNY-TV (CBS) and WNYF-CD (FOX) in Watertown, New York (DMA 181) and KEYC-TV (CBS/FOX) in Mankato, Minnesota (DMA 198) from United Communications Corporation (the “United Acquisition”) for an adjusted purchase price of $48 million. We began operating those stations on March 1, 2019 under a local programming and marketing agreement and increased the total number of our markets to 93.

 

On September 25, 2019, we acquired the assets of KDLT-TV (NBC), in the Sioux Falls, South Dakota market (DMA 113), for $33 million, using cash on hand (the “Sioux Falls Acquisition”). 

 

On October 1, 2019, we acquired the assets of WVIR-TV (NBC) in the Charlottesville, Virginia market (DMA 182) from Waterman Broadcasting Corporation for $13 million using cash on hand (the “Charlottesville Acquisition”). Also, on October 1, 2019, in order to meet regulatory requirements, we divested our legacy stations in that market, WCAV-TV (CBS/FOX) and WVAW-TV (ABC). The divestiture resulted in a gain of approximately $20 million.

 

Collectively we refer to the Raycom Merger, the United Acquisition, the Sioux Falls Acquisition and the Charlottesville Acquisition as the “2019 Acquisitions”. The 2019 Acquisitions have materially affected our operations, liquidity and capital expenditures. In addition to the effects on our balance sheet from the financing transactions described below, our results of operations and cash flows have increased substantially. We also expect that the 2019 Acquisitions will create opportunities to reduce or eliminate redundancies in our combined operations, and that these synergies will be implemented in phases over several years. Please see Note 3 “Acquisitions and Divestitures” and Note 4 “Long-term Debt” of our audited consolidated financial statements included elsewhere herein for additional information on the Raycom Merger including on the financing transaction completed in connection therewith.

 

Transaction Related Expenses.  We incur incremental expenses to complete acquisition and divestiture transactions that we refer to collectively as “Transaction Related Expenses.” These incremental expenses include but are not limited to: legal, consulting, other professional fees, incentive compensation, severance costs and termination costs of sales representation and other contractual relationships.

 

Revenues, Operations, Cyclicality and Seasonality.  Broadcast advertising is sold for placement generally preceding or following a television station’s network programming and within local and syndicated programming. Broadcast advertising is sold in time increments and is priced primarily on the basis of a program’s popularity among the specific audience an advertiser desires to reach. In addition, broadcast advertising rates are affected by the number of advertisers competing for the available time, the size and demographic makeup of the market served by the station and the availability of alternative advertising media in the market area. Broadcast advertising rates are generally the highest during the most desirable viewing hours, with corresponding reductions during other hours. The ratings of a local station affiliated with a major network can be affected by ratings of network programming. Most advertising contracts are short-term, and generally run only for a few weeks.

 

We also sell internet advertising on our stations’ websites and mobile apps. These advertisements may be sold as banner advertisements, video advertisements and other types of advertisements or sponsorships.

 

Our broadcast and internet advertising revenues are affected by several factors that we consider to be seasonal in nature. These factors include:

 

 

●

Spending by political candidates, political parties and special interest groups increases during the even-numbered “on-year” of the two-year election cycle. This political spending typically is heaviest during the fourth quarter of such years;

 

 

●

Broadcast advertising revenue is generally highest in the second and fourth quarters each year. This seasonality results partly from increases in advertising in the spring and in the period leading up to and including the holiday season;

 

39
 

 

 

●

Local and national advertising revenue on our NBC-affiliated stations increases in even numbered years as a result of broadcasts of the Olympic Games; and

 

 

●

Because our stations and markets are not evenly divided among the Big Four broadcast networks, our local and national advertising revenue can fluctuate between years related to which network broadcasts the Super Bowl.

 

Automotive advertisers have traditionally accounted for a significant portion of our revenue. During the years ended December 31, 2019 and 2018, we derived approximately 25% of our total broadcast advertising revenue from customers in the automotive industry. Strong demand for our advertising inventory from political advertisers can require significant use of available inventory, which in turn can lower our advertising revenue from our non-political advertising revenue categories in the even numbered “on-year” of the two-year election cycle. These temporary declines are expected to reverse in the following “off-year” of the two-year election cycle.

 

While our total revenues have increased in recent years as a result of our acquisitions, they have also experienced a gradual improvement as a result of improvements in general economic conditions. However, revenue remains under pressure from the internet as a competitor for advertising spending. We continue to enhance and market our internet websites in an effort to generate additional revenue. Our aggregate internet revenue is derived from both advertising and sponsorship opportunities directly on our websites.

 

Our primary broadcasting operating expenses are employee compensation, related benefits and programming costs. In addition, the broadcasting operations incur overhead expenses, such as maintenance, supplies, insurance, rent and utilities. A large portion of the operating expenses of our broadcasting operations is fixed. We continue to monitor our operating expenses and seek opportunities to reduce them where possible.

 

Please see our “Results of Operations” and “Liquidity and Capital Resources” sections below for further discussion of our operating results.

 

Risk Factors. The broadcast television industry relies primarily on advertising revenue and faces significant competition. For a discussion of certain other presently known, significant factors that may affect our business, see “Item 1A. Risk Factors” included elsewhere herein.

  

40
 

 

Revenue

 

Set forth below are the principal types of revenue, less agency commissions, earned by us for the periods indicated and the percentage contribution of each to our total revenue (dollars in millions):

 

   

Year Ended December 31,

    
   

2019

      

2018

      

2017

    
           

Percent

            

Percent

            

Percent

  
   

Amount

   

of Total

    

Amount

   

of Total

    

Amount

   

of Total

  

Revenue:

                                                      

Local (including internet /digital/mobile)

   $ 898       42.3 %     $ 443       40.9 %     $ 451       51.1 %  

National

     229       10.8 %       114       10.5 %       119       13.5 %  

Political

     68       3.2 %       155       14.3 %       16       1.8 %  

Retransmission consent

     796       37.5 %       355       32.7 %       277       31.4 %  

Production companies

     87       4.1 %       -       0.0 %       -       0.0 %  

Other

     44       2.1 %       17       1.6 %       20       2.2 %  

Total

   $ 2,122       100.0 %     $ 1,084       100.0 %     $ 883       100.0 %  

 

Results of Operations

 

Year Ended December 31, 2019 (“2019”) Compared to Year Ended December 31, 2018 (“2018”)

 

Revenue. Total revenue increased approximately $1.0 billion, or 96%, to $2.1 billion for 2019 compared to 2018 primarily due to the 2019 Acquisitions offset in-part by decreased political advertising revenue. Local advertising revenue increased approximately $455 million, or 103%, to $898 million. National advertising revenue increased approximately $115 million, or 101%, to $229 million. Political advertising revenue decreased approximately $87 million, or 56% to $68 million due to 2019 being the “off-year” of the two-year election cycle. Retransmission consent revenue increased by approximately $441 million or 124% to $796 million primarily due to the 2019 Acquisitions but also due to higher retransmission consent rates. The stations and production companies acquired in the 2019 Acquisitions accounted for $1.1 billion of the increase in our total revenue during 2019. Excluding the revenue attributable to the 2019 Acquisitions, revenue decreased by $95 million due primarily to decreases in political advertising revenue, resulting primarily from 2019 being an “off-year” of the two-year political advertising cycle, partially offset by increases in retransmission consent revenue resulting from increases in rates.

 

Broadcast operating expenses. Broadcast operating expenses (before depreciation, amortization and gain on disposal of assets) increased $729 million, or 122%, to $1.3 billion for 2019 compared to 2018 primarily due to the 2019 Acquisitions. Broadcast operating expenses included $45 million of Transaction Related Expenses in 2019, compared to $3 million in 2018. The 2019 Acquisitions accounted for $713 million of the increase in broadcast operating expenses in 2019. Excluding the broadcast operating expenses of the stations included in the 2019 Acquisitions, payroll costs decreased by approximately $17 million, primarily as a result of decreases in incentive compensation costs and benefit costs. Non-cash stock-based compensation expenses were $5 million in 2019 and $2 million in 2018.

 

Production Company Operating Expenses. Production company operating expenses (before depreciation, amortization and gain on disposal of assets) were $74 million in 2019, and represent the video and event production costs related to the production companies acquired in the 2019 Acquisitions.

 

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Corporate and administrative expenses. Corporate and administrative expenses (before depreciation, amortization and gain on disposal of assets) increased $63 million, or 154%, to $104 million for 2019 compared to 2018. The increase was due primarily to $34 million of Transaction Related Expenses associated with the 2019 Acquisitions such as legal and other professional fees and $11 million of severance and incentive compensation. Excluding the 2019 Acquisitions and the related transaction expenses, corporate and administrative expenses increased by approximately $16 million due to increases in non-cash stock-based compensation, corporate staffing and base compensation. Non-cash stock-based compensation expenses were $11 million in 2019 and $5 million in 2018.

 

Depreciation. Depreciation of property and equipment totaled $80 million and $54 million for 2019 and 2018, respectively. Depreciation expense increased due to the 2019 Acquisitions and purchases of property and equipment at our existing stations.

 

Amortization of intangible assets. Amortization of intangible assets totaled $115 million and $21 million for 2019 and 2018, respectively. Amortization expense increased primarily due to the finite-lived intangible assets acquired in the 2019 Acquisitions.

 

Gain or loss on disposal of assets, net. We reported gains on disposals of assets of $54 million in 2019 and $17 million in 2018. During 2019, we recorded a gain of $19 million related to the divestiture of television stations, primarily WCAV-TV and WVAW-TV in the Charlottesville, Virginia market, to facilitate regulatory approval of the acquisition of WVIR-TV. Also in 2019, we reported gains of $38 million related to assets disposed as required by the FCC’s Repack process. During 2018, we recorded a gain of $5 million related to the divestiture of WSWG-TV to facilitate regulatory approval of the Raycom Merger. Also in 2018, we reported gains of $14 million related to assets disposed as required by the FCC’s Repack process.

 

Interest expense. Interest expense increased $120 million, or 112%, to $227 million for 2019 compared to 2018 due to additional debt used to fund the Raycom Merger. Interest expense increased by $53 million resulting from our 2027 Notes and by $67 million related to additional term loan borrowing under our 2019 Senior Credit Facility. During 2019 the average interest rate on our senior credit facility increased slightly to 4.7% from 4.2%.

 

Income tax expense. Our effective income tax rate increased to a net provision of 30% for 2019 from 27% for 2018. Our effective income tax rates differed from the statutory rate due to the following items:

 

   

Year Ended December 31,

  
   

2019

    

2018

  

Statutory federal income tax rate

     21 %       21 %  

Current year permanent items

     5 %       1 %  

State and local taxes, net of federal taxes

     5 %       5 %  

Change in valuation allowance

     (1 )%       0 %  

Effective income tax expense rate

     30 %       27 %  

 

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Liquidity and Capital Resources

 

General. The following tables present data that we believe is helpful in evaluating our liquidity and capital resources (dollars in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Net cash provided by operating activities

   $ 385     $ 323     $ 180  

Net cash used in investing activities

     (2,656 )     (47 )     (350 )

Net cash provided by financing activities

     1,064       681       307  

Net increase in cash and restricted cash

   $ (1,207 )   $ 957     $ 137  

 

   

December 31,

    
   

2019

    

2018

    

Cash

   $ 212     $ 667    

Restricted cash

   $ -     $ 752    

Long-term debt, including current portion

   $ 3,697     $ 2,549    

Borrowing availability under senior credit facility

   $ 200     $ 100    

 

Financing Transactions. In connection with the consummation of our recent acquisitions and our efforts to strengthen our balance sheet, we undertook several financing transactions between 2017 and early 2019. These transactions have included an underwritten offering of our common stock in December 2017; the issuance of senior notes in 2018; the issuance of the Preferred Stock in 2019 and the refinancing of our senior credit facilities in 2017 and 2019. For a detailed description of these transactions please see Note 4 “Long-term Debt,” Note 6 “Stockholders’ Equity” and Note 7 “Preferred Stock” of our audited consolidated financial statements included elsewhere herein.

 

In connection with the Raycom Merger, on January 2, 2019, we completed the following debt transactions: (1) replaced our existing $100 million revolving credit facility with the 2019 Revolving Credit Facility, the terms of which provide for up to $200 million in available borrowings and a maturity date extended until January 1, 2024; (2) incurred the $1.4 billion 2019 Term Loan, which has a maturity date of January 1, 2026; (3) because the Raycom Merger was not completed by December 15, 2018, we incured a ticking fee of $1 million at a rate of 1.25% of the 2019 Term Loan commitment amount, from December 16, 2018 to January 1, 2019; and (4) we assumed $750 million of the 7.0% 2027 Notes, which were issued on November 16, 2018 by Gray Escrow, Inc., a wholly owned subsidiary. The proceeds of the 2019 Term Loan and 2027 Notes were used to fund a portion of the cash consideration payable in the Raycom Merger.

 

In connection with the Raycom Merger, on January 2, 2019, we completed the following equity transactions: (1) a portion of the consideration to complete the Raycom Merger included 11.5 million shares of our common stock valued at $170 million based upon our closing stock price on December 31, 2018; (2) filed a registration statement, following the effective time of the Raycom Merger, covering the resale of the shares of the common stock issuable in the Raycom Merger; and (3) issued 650,000 shares of our Preferred Stock to holders of warrants to purchase the shares of Raycom’s capital stock outstanding immediately prior to the Raycom Merger. The Preferred Stock accrues dividends at 8% per annum payable in cash or 8.5% per annum payable in the form of additional Preferred Stock, at the election of Gray. The holders of Preferred Stock are not entitled to vote on any matter submitted to the stockholders of the Company for a vote, except as required by Georgia law. Upon a liquidation of the Company, holders of the Preferred Stock will be entitled to receive a liquidation preference equal to $1,000 per share plus all accrued and unpaid dividends.

 

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Income Taxes. We file a consolidated federal income tax return and such state or local tax returns as are required based on our current forecasts. We estimate that these income tax payments will be within a range of approximately $79 million to $81 million in 2020.

 

Net Cash Provided By (Used In) Operating, Investing and Financing Activities – 2019 Compared to 2018

 

Net cash provided by operating activities increased $62 million to $385 million in 2019 compared to net cash provided by operating activities of $323 million in 2018. The increase in cash provided by operating activities was due primarily to the net impact of several factors including: a decrease in net income of $32 million; a net increase of $155 million in non-cash expenses and a decrease of $61 million due to changes in working capital balances. The primary changes in our non-cash expenses were an increase in our depreciation expense of $26 million and amortization of intangible assets of $94 million, each as a result of increases in the underlying assets related to the 2019 Acquisitions. Our deferred income taxes also increased by approximately $43 million related to the 2019 Acquisitions. These increases in non-cash expenses were partially offset by an increase in gain on disposal of assets of approximately $37 million primarily as a result of divestitures required to meet regulatory requirements to complete the 2019 Acquisitions.

 

Net cash used in investing activities increased $2.6 billion to $2.7 billion for 2019 compared to $47 million for 2018. The net increase was due primarily to $2.8 billion of cash used for the 2019 Acquisitions. In 2018, we did not complete any acquisition transactions. Other significant changes in 2019 compared to 2018 included the receipt in 2019 of $253 million in proceeds from the divestiture of television stations to facilitate regulatory approval of the 2019 Acquisitions and the receipt in 2019 of $41 million in proceeds from the FCC’s Repack process; an increase of $27 million compared to 2018.

 

Net cash provided by financing activities was $1.1 billion in 2019 compared to $681 million in 2018. This increase of $383 million was due primarily to the borrowings of $1.4 billion in term loan financing to finance a portion of the cash consideration of the Raycom Merger in 2019, compared to issuance of $750 million of our 7% 2027 Notes, also to finance a portion of the cash consideration of the Raycom Merger in 2018. During 2019, we paid $50 million of deferred loan costs related to the 2019 Senior Credit Facility and the 2027 Notes. During 2019, we made total payments of $211 million to reduce the balance outstanding of our 2019 Term Loan. Also during 2019, we used $32 million of cash to repurchase shares of our common stock, paid $39 million of dividends on our preferred stock and $4 million in payments for taxes related to net share settlements of equity awards. During 2018, we paid $5 million of deferred loan costs related to the 2027 Notes. During 2018, we made total payments of $40 million to reduce the balance outstanding of our 2017 Term Loan. Also during 2018, we used $19 million of cash to repurchase shares of our common stock and $5 million in payments for taxes related to net share settlements of equity awards.

 

Retirement Plans

 

We sponsor and contribute to defined benefit and defined contribution retirement plans. Our defined benefit pension plan is the Gray Television, Inc. Retirement Plan (the “Gray Pension Plan”). Monthly plan benefits under the Gray Pension Plan are frozen and can no longer increase, and no new participants can be added to the Gray Pension Plan.

 

Our funding policy is consistent with the funding requirements of existing federal laws and regulations under the Employee Retirement Income Security Act of 1974. A discount rate is selected annually to measure the present value of the benefit obligations. In determining the selection of a discount rate, we estimated the timing and amounts of expected future benefit payments and applied a yield curve developed to reflect yields available on high-quality bonds. The yield curve is based on an externally published index specifically designed to meet the criteria of United States Generally Accepted Accounting Principles (“U.S. GAAP”). The discount rate selected for determining benefit obligations as of December 31, 2019 was 3.14%, which reflects the results of this yield curve analysis. The discount rate used for determining benefit obligations as of December 31, 2018 was 4.16%. Our assumptions regarding expected return on plan assets reflects asset allocations, the investment strategy and the views of investment managers, as well as historical experience. We use an assumed rate of return of 6.50% for our assets invested in the Gray Pension Plan. The estimated asset returns for this plan, calculated on a mean market value assuming mid-year contributions and benefit payments, were a gain of 17.6% for the year ended December 31, 2019, and a loss of 6.3% for the year ended December 31, 2018. Other significant assumptions relate to inflation, retirement and mortality rates. Our inflation assumption is based on an evaluation of external market indicators. Retirement rates are based on actual plan experience and mortality rates are based on the Pri-2012 mortality table and the MP-2019 projection scale published by the Society of Actuaries.

 

During each of the years ended December 31, 2019 and 2018, we contributed an aggregate of $3 million to the Gray Pension Plan, and we anticipate making an aggregate contribution of approximately $3 million to the Gray Pension Plan in 2020. The use of significantly different assumptions, or if actual experienced results differ significantly from those assumed, could result in our funding obligations being materially different.

 

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The Gray Television, Inc. Capital Accumulation Plan (the “Capital Accumulation Plan”) is a defined contribution plan intended to meet the requirements of section 401(k) of the Internal Revenue Code. Beginning in 2019, employer contributions under the Capital Accumulation Plan include matching cash contributions at a rate of 100% of the first 1% of each employee’s salary deferral, and 50% of the next 5% of each employee’s salary deferral. In addition, the Company, at its discretion, may make an additional profit sharing contribution, based on annual Company performance, to those employees who meet certain criteria. During the years ended December 31, 2019 and 2018, we contributed an aggregate of $16 million and $11 million, respectively, to the Capital Accumulation Plan.

 

See Note 11 “Retirement Plans” of our audited consolidated financial statements included elsewhere herein for further information concerning the retirement plans.

 

Capital Expenditures

 

In April 2017, the FCC began the process of requiring certain television stations to change channels and/or modify their transmission facilities (“Repack”). Congress passed legislation which provides the FCC with a $1.7 billion fund to reimburse all reasonable costs incurred by stations operating under a full power license and a portion of the costs incurred by stations operating under a low power license that are reassigned to new channels. Subsequent legislation in March 2018 appropriated an additional $1.0 billion for the Repack fund, of which up to $750 million may be made available to reimburse the Repack costs of full power and Class A television stations and multichannel video programming distributors. Other funds are earmarked to assist low power television stations and for other transition costs. The sufficiency of the FCC’s fund to reimburse for Repack costs is dependent upon a number of factors including the amounts to be reimbursed to other industry participants for Repack costs. Therefore, we cannot predict whether the fund will be sufficient to reimburse our Repack costs to the extent authorized under the legislation. The Repack affects 48 of our full power stations and 39 of our current low power stations. The Repack process should be substantially completed in 2020. We anticipate that the majority of our costs associated with Repack will qualify for capitalization, rather than expense. Upon receipt of funds reimbursing us for our Repack costs, we record those proceeds as a component of our (gain) loss on disposal of assets, net.

 

Capital expenditures, including Repack, for the years ended December 31, 2019 and 2018 were $110 million and $70 million, respectively. Excluding Repack, our capital expenditures were $89 million and $41 million, respectively. Our capitalized Repack costs and associated reimbursements for the years ended December 31, 2019 and 2018 were $20 million and $27 million, respectively. As of December 31, 2019, the amount requested from the FCC for Repack, but not yet received, was approximately $9 million. Excluding Repack, but including Repack related expenditures, we expect that our capital expenditures will be approximately $80 million during 2020. In addition, capital expenditures for Repack during 2020 are expected to range between approximately $27 million and $32 million and we anticipate being reimbursed for the majority of these Repack costs. However, reimbursement may be received in periods subsequent to those in which they were expended.

 

Off-Balance Sheet Arrangements

 

Operating Commitments. We have various commitments for syndicated television programs.

 

We have two types of syndicated television program contracts: first run programs and off network reruns. First run programs are programs such as Wheel of Fortune and off network reruns are programs such as Seinfeld. First run programs have not been produced at the time the contract to air such programming is signed, and off network reruns have already been produced. For all syndicated television contracts, we record an asset and corresponding liability for payments to be made only for the current year of the first run programming and for the entire contract period for off network programming. Only an estimate of the payments anticipated to be made in the year following the balance sheet date of the first run contracts are recorded on the current balance sheet, because the programs for the later years of the contract period have not been produced or delivered.

 

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The total license fee payable under a program license agreement allowing us to broadcast programs is recorded at the beginning of the license period and is charged to operating expense over the period that the programs are broadcast. The portion of the unamortized balance expected to be charged to operating expense in the succeeding year is classified as a current asset, with the remainder classified as a non-current asset. The liability for license fees payable under program license agreements is classified as current or long-term, in accordance with the payment terms of the various license agreements.

 

Tabular Disclosure of Contractual Obligations as of December 31, 2019. The following table aggregates our material expected contractual obligations and commitments as of December 31, 2019 (in millions):

 

   

Payment Due By Period

  
           

Less than

                    

More than

  

Contractual Obligations

  

Total

    

1 Year

    

1-3 Years

    

3-5 Years

    

5 Years

  
                                         

Contractual obligations recorded on our balance sheet as of December 31, 2019:

                                        

Long-term debt obligations (1)

   $ 3,760     $ -     $ -     $ 1,120     $ 2,640  

Accrued interest (2)

     37       37       -       -       -  

Accrued Preferred Stock dividends (3)

     13       13       -       -       -  

Programming obligations currently accrued (4)

     35       28       7       -       -  

Operating lease obligations (5)

     69       9       17       14       29  
                                         

Off-balance sheet arrangements as of December 31, 2019:

                                        

Cash interest on long term debt obligations (6):

                                        

Cash interest on 2019 Senior Credit Facility

     397       73       147       127       50  

Cash interest on 2027 Notes

     388       53       105       105       125  

Cash interest on 2026 Notes

     268       41       82       82       63  

Cash interest on 2024 Notes

     129       27       54       48       -  

Preferred Stock dividends (7)

     260       52       104       104       -  

Programming obligations not currently accrued (8)

     84       10       55       19       -  

Network affiliation agreements (9)

     1,147       366       655       126       -  

Service and other agreements (10)

     3       2       1       -       -  

Total

   $ 6,590     $ 711     $ 1,227     $ 1,745     $ 2,907  

 

(1)

“Long-term debt obligations” represent current and long-term principal payment obligations under the 2019 Senior Credit Facility, 2027 Notes, 2026 Notes and 2024 Notes at December 31, 2019. These amounts are recorded as liabilities as of the balance sheet date net of the $62 million of unamortized deferred loan costs and unamortized original issue premium on the 2026 Notes. As of December 31, 2019, the interest rate on the balance outstanding under the 2019 Senior Credit Facility was 4.1%. As of December 31, 2019, the coupon interest rate and the yield on the 2027 Notes were each 7%. As of December 31, 2019, the coupon interest rate and the yield on the 2026 Notes were 5.875% and 5.398%, respectively. As of December 31, 2019, the coupon interest rate and the yield on the 2024 Notes were each 5.125%. At December 31, 2018, under the 2017 Credit Facility, the maturity date of the revolving credit facility was February 7, 2022 and the maturity date of the term loan facility is February 7, 2024. See Note 4 “Long-term Debt” to our audited consolidated financial statements included elsewhere herein for more information on the 2019 Senior Credit Facility.

 

46
 

 

(2)

“Accrued interest” represents interest on long-term debt obligations accrued as of December 31, 2019.

 

(3)

“Accrued Preferred Stock dividends” represents accrued dividends as of December 31, 2019, that were paid according to their terms on January 15, 2020. Please refer to Note 7 “Preferred Stock” of our audited consolidated financial statements included elsewhere herein for further information.

 

(4)

“Programming obligations currently accrued” represents obligations for syndicated television programming whose license period has begun and the product is available. These amounts are recorded as liabilities as of the current balance sheet date.

 

(5)

“Operating lease obligations” represents the gross accrued current and long-term lease payment obligations due under non-cancellable leases, including amounts representing imputed interest. Please refer to Note 9 “Leases” of our audited consolidated financial statements included elsewhere herein for further information.

  

(6) “Cash interest on long-term debt obligations” consists of estimated interest expense on long-term debt excluding interest expense accrued as of December 31, 2019 described in note (2) above. The estimate is based upon debt balances as of December 31, 2019 and required future principal repayments under those obligations. The 2027 Notes, 2026 Notes and 2024 Notes mature on May 15, 2027, July 15, 2026 and October 15, 2024, respectively. The maturity date of the term loan under the 2019 Senior Credit Facility is February 7, 2024. This estimate of cash interest on long-term debt obligations assumes that current interest rates will remain consistent and the principal obligations underlying these interest estimates will not be replaced by other long-term obligations prior to or upon their maturity.

 

(7)

“Preferred Stock dividends” represents estimated future dividends payable on our Preferred Stock, that will be payable in future periods. For the column headed “More than 5 Years” we cannot estimate an amount, due to the perpetual nature of the preferred stock. Please refer to Note 7 “Preferred Stock” for further information.

 

(8) “Programming obligations not currently accrued” represent obligations for syndicated television programming whose license period has not yet begun or the product is not yet available. These amounts are not recorded as liabilities as of the current balance sheet date.

 

(9) “Network affiliation agreements” represent the fixed obligations under our current agreements with broadcast networks. Our network affiliation agreements expire at various dates primarily through December 2023.
   
(10) “Service and other agreements” represents minimum amounts payable for various non-cancelable contractual agreements for maintenance services and other professional services.

 

Estimates of the amount, timing and future funding obligations under our pension plan include assumptions concerning, among other things, actual and projected market performance of plan assets, investment yields, statutory requirements and demographic data for pension plan participants. Pension plan funding estimates are therefore not included in the table above because the timing and amounts of funding obligations for all future periods cannot be reasonably determined. We expect to contribute approximately $3 million in total to our defined benefit pension plan during 2020.

 

47
 

 

Inflation

 

The impact of inflation on operations has not been significant to date. However, there can be no assurance that a high rate of inflation in the future would not have an adverse effect on operating results, particularly since amounts outstanding under the 2019 Senior Credit Facility incur interest at a variable rate.

 

Critical Accounting Policies

 

The preparation of financial statements in conformity with U.S. GAAP requires us to make judgments and estimations that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ materially from those reported amounts. We consider our accounting policies relating to intangible assets and income taxes to be critical policies that require judgments or estimations in their application where variances in those judgments or estimations could make a significant difference to future reported results. Our policies concerning intangible assets and income taxes are disclosed below.

 

Annual Impairment Testing of Broadcast Licenses and Goodwill. We evaluate broadcast licenses and goodwill for impairment on an annual basis, or more often when certain triggering events occur. Goodwill is evaluated at the reporting unit level.

 

In the performance of our annual broadcast license and reporting unit impairment assessments, we have the option of performing a qualitative assessment to determine if it is more likely than not that the respective asset has been impaired. In 2019, we performed a qualitative assessment for 55 of our 93 broadcast licenses and 51 of our 96 reporting units. In 2018, we performed a qualitative assessment for 49 of our 55 broadcast licenses and 34 of our 47 reporting units. We performed a quantitative assessment for all broadcast licenses and reporting units in our annual tests in 2017.

 

As part of this qualitative assessment we evaluate the relative impact of factors that are specific to the reporting units as well as industry, regulatory, and macroeconomic factors that could affect the significant inputs used to determine the fair value of the assets. We also consider the significance of the excess fair value over the carrying value reflected in prior quantitative assessments and the changes to the reporting units’ carrying value since the last impairment test.

 

If we conclude that it is more likely than not that a broadcast license or reporting unit is impaired, or if we elect not to perform the optional qualitative assessment, we perform the quantitative assessment which involves comparing the estimated fair value of the broadcast license or reporting unit to its respective carrying value.

 

For our annual broadcast licenses impairment test in 2019, we concluded that it was more likely than not that all 55 of our broadcast licenses that were evaluated were not impaired based upon our qualitative assessments. We elected to perform a quantitative assessment for our remaining broadcast licenses and concluded that their fair values significantly exceeded their carrying values. To estimate the fair value of our broadcast licenses, we utilize a discounted cash flow model assuming an initial hypothetical start-up operation maturing into an average performing station in a specific television market and giving consideration to other relevant factors such as the technical qualities of the broadcast license and the number of competing broadcast licenses within that market.

 

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For our annual goodwill impairment test in 2019, we concluded that it was more likely than not that goodwill was not impaired based upon our qualitative assessments for 51 of our reporting units. We elected to perform a quantitative assessment for our remaining 45 reporting units and concluded that their fair values exceeded their carrying values. To estimate the fair value of our reporting units, we utilize a discounted cash flow model supported by a market multiple approach. We believe that a discounted cash flow analysis is the most appropriate methodology to test the recorded value of long-term assets with a demonstrated long-lived/enduring franchise value. We believe the results of the discounted cash flow and market multiple approaches provide reasonable estimates of the fair value of our reporting units because these approaches are based on our actual results and reasonable estimates of future performance, and also take into consideration a number of other factors deemed relevant by us including, but not limited to, expected future market revenue growth, market revenue shares and operating profit margins. We have historically used these approaches in determining the value of our reporting units. We also consider a market multiple approach to corroborate our discounted cash flow analysis. We believe that this methodology is consistent with the approach that a strategic market participant would utilize if they were to value one of our television stations.

 

We believe we have made reasonable estimates and utilized appropriate assumptions to evaluate whether the fair values of our broadcast licenses and reporting units were less than their carrying values. If future results are not consistent with our assumptions and estimates, including future events such as a deterioration of market conditions or significant increases in discount rates, we could be exposed to impairment charges in the future. Any resulting impairment loss could have a material adverse impact on our consolidated balance sheets, consolidated statements of operations and consolidated statements of cash flows.

 

As of December 31, 2019 and 2018, the recorded value of our broadcast licenses was $3.6 billion and $1.5 billion, respectively. As of December 31, 2019 and 2018, the recorded value of our goodwill was $1.4 billion and $612 million, respectively. See Note 13 “Goodwill and Intangible Assets” of our audited consolidated financial statements included elsewhere herein, for the results of our annual impairment tests for the years ended December 31, 2019, 2018 and 2017.

 

Valuation of Network Affiliation Agreements. We believe that the value of a television station is derived primarily from the attributes of its broadcast license rather than its network affiliation agreement. These attributes have a significant impact on the audience for network programming in a local television market compared to the national viewing patterns of the same network programming.

 

Certain other broadcasting companies have valued their stations on the basis that it is the network affiliation and not the other attributes of the station, including its broadcast license, which contributes to the operational performance of that station. As a result, we believe that these broadcasting companies allocate a significant portion of the purchase price for any station that they may acquire to the network affiliation relationship and include in their network affiliation valuation amounts related to attributes which we believe are more appropriately reflected in the value of the broadcast license or reporting units.

 

The methodology we used to value these stations was based on our evaluation of the broadcast licenses acquired and the characteristics of the markets in which they operated. Given our assumptions and the specific attributes of the stations we acquired from 2002 through December 31, 2019, we generally ascribe no incremental value to the incumbent network affiliation relationship in each market beyond the cost of negotiating a new agreement with another network and the value of any terms of the affiliation agreement that were more favorable or unfavorable than those generally prevailing in the market. Due to certain characteristics of a small number of the stations acquired in the Raycom Merger, we ascribed approximately $50 million of the value of that transaction to network affiliations in 2019.

 

Some broadcast companies may use methods to value acquired network affiliations different than those that we use. These different methods may result in significant variances in the amount of purchase price allocated to these assets among broadcast companies.

 

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If we were to assign higher values to all of our network affiliations and less value to our broadcast licenses or goodwill and if it is further assumed that such higher values of the network affiliations are finite-lived intangible assets, this reallocation of value might have a significant impact on our operating results. There is diversity of practice within the industry, and some broadcast companies have considered such network affiliation intangible assets to have a life ranging from 15 to 40 years depending on the specific assumptions utilized by those broadcast companies.

 

The following table reflects the hypothetical impact of the reassignment of value from broadcast licenses to network affiliations for our historical acquisitions (the first acquisition being in 1994) and the resulting increase in amortization expense assuming a hypothetical 15-year amortization period as of our most recent impairment testing date of December 31, 2019 (in millions, except per share data):

 

           

Percentage of Total

 
           

Value Reassigned to

 
           

Network

 
   

As

   

Affiliation Agreements

 
   

Reported

    50%     25%  

Balance Sheet (As of December 31, 2019):

                       

Broadcast licenses

   $ 3,573     $ 1,837     $ 2,705  

Other intangible assets, net (including network affiliation agreements)

     460       1,644       1,052  
                         

Statement of Operations (For the year ended December 31, 2019):

                       

Amortization of intangible assets

     115       208       161  

Operating income

     478       385       432  

Net income attributable to common stockholders

     127       58       93  

per share - basic

   $ 1.28     $ 0.59     $ 0.94  

per share - diluted

   $ 1.27     $ 0.58     $ 0.93  

 

For future acquisitions, if any, the valuation of the network affiliations may differ from the values of previous acquisitions due to the different characteristics of each station and the market in which it operates.

 

Income Taxes. As of December 31, 2019, we have an aggregate of approximately $438 million of federal operating loss carryforwards. We project to have federal taxable income in the carryforward periods. Therefore, we believe that it is more likely than not that all of the federal operating loss carryforwards will be utilized. We have an aggregate of approximately $677 million of various state operating loss carryforwards. We project to have state taxable income in the carryforward periods. Therefore, we believe that it is more likely than not that approximately half of the state operating loss carryforwards will be utilized.

 

The TCJA reduced the value of our deferred tax liabilities resulting in the recognition of a tax benefit of approximately $146 million in the fourth quarter of 2017 with a credit to earnings for a reduction of those liabilities. In addition, the TCJA contains significant changes to corporate taxes that materially affected the taxes owed by us in 2019, 2018 and subsequent years. Among other things, the new law reduced the maximum federal corporate income tax rate from 35% to 21%, which should have a positive effect on our net earnings and earnings per share. It also includes an option to claim accelerated depreciation deductions on qualified property but limits or eliminates certain deductions to which we have been entitled in past years.

 

50
 

 

Recent Accounting Pronouncements. See Note 1 “Description of Business and Summary of Significant Accounting Policies” of our audited consolidated financial statements included elsewhere herein for more information.

 

Cautionary Statements for Purposes of the “Safe Harbor” Provisions of the Federal Securities Laws

 

This annual report on Form 10-K contains and incorporates by reference “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933 and Section 21E of the Exchange Act. Forward-looking statements are all statements other than those of historical fact. When used in this annual report, the words “believes,” “expects,” “anticipates,” “estimates,” “will,” “may,” “should” and similar words and expressions are generally intended to identify forward-looking statements. These forward-looking statements reflect our then-current expectations and are based upon data available to us at the time the statements are made. Forward-looking statements may relate to, among other things, statements about our strategies, expected results of operations, general and industry-specific economic conditions, future pension plan contributions, future capital expenditures, future income tax payments, future payments of interest and principal on our long-term debt, assumptions underlying various estimates and estimates of future obligations and commitments and should be considered in context with the various other disclosures made by us about our business. Readers are cautioned that any forward-looking statements, including those regarding the intent, belief or current expectations of our management, are not guarantees of future performance, results or events and involve significant risks and uncertainties, and that actual results and events may differ materially from those contained in the forward-looking statements as a result of various factors including, but not limited to, those listed in Item 1A. of this Annual Report and the other factors described from time to time in our SEC filings. The forward-looking statements included in this Annual Report are made only as of the date hereof. We undertake no obligation to update such forward-looking statements to reflect subsequent events or circumstances.

 

Item 7A. Quantitative and Qualitative Disclosures about Market Risk.

 

We are exposed to certain risks arising from business operations and economic conditions. We attempt to manage our exposure to a wide variety of business and operational risks principally through management of our core business activities. We attempt to manage economic risk, including interest rate, liquidity, and credit risk, primarily by managing the amount, sources and duration of our debt funding and, at times, the use of interest rate swap agreements. From time to time, we may enter into interest rate swap agreements to manage interest rate exposure with the following objectives:

 

 

●

managing current and forecasted interest rate risk while maintaining financial flexibility and solvency;

 

 

●

proactively managing our cost of capital to ensure that we can effectively manage operations and execute our business strategy, thereby maintaining a competitive advantage and enhancing shareholder value; and

 

 

●

complying with covenant requirements in our financing agreements.

 

Under the 2019 Senior Credit Facility, we pay interest based on a floating interest rate on balances outstanding. We pay a fixed rate of interest on the 2027 Notes, 2026 Notes and 2024 Notes. As of December 31, 2019, the majority of our outstanding debt bore interest at a fixed interest rate, which reduces our risk of potential increases in interest rates, but would not allow us to benefit from any reduction in market interest rates such as LIBOR or the prime rate. Also, as of that date, we were not a party to any interest rate swap agreements. See Note 4 “Long-term Debt” to our audited consolidated financial statements included elsewhere herein for more information on our long-term debt and associated interest rates.

 

Based on our floating rate debt outstanding at December 31, 2019, a 100 basis point increase or decrease in market interest rates would have increased or decreased our interest expense and decreased or increased our income before income taxes for the year ended December 31, 2019 by approximately $18 million.

 

At December 31, 2019 and 2018, the recorded amount of our long-term debt, including current portion, was $3.7 billion and $2.5 billion, respectively, and the fair value of our long-term debt, including current portion, was $3.9 billion and $2.4 billion, respectively, as of December 31, 2019 and 2018. Fair value of our long-term debt is based on estimates provided by third-party financial professionals as of the respective dates.

 

51
 

 

Item 8. Financial Statements and Supplementary Data.

 

 

Page
   

Management’s Report on Internal Control Over Financial Reporting

53
   

Report of Independent Registered Public Accounting Firm

54
   

Consolidated Balance Sheets at December 31, 2019 and 2018

58
   

Consolidated Statements of Operations for the years ended December 31, 2019, 2018 and 2017

60
   

Consolidated Statements of Comprehensive Income for the years ended December 31, 2019, 2018 and 2017

61
   

Consolidated Statements of Stockholders’ Equity for the years ended December 31, 2019, 2018 and 2017

62
   

Consolidated Statements of Cash Flows for the years ended December 31, 2019, 2018 and 2017

64
   

Notes to Consolidated Financial Statements

65

 

52
 

 

Management’s Report on Internal Control Over Financial Reporting

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting and for the assessment of the effectiveness of internal control over financial reporting. As defined by the United States Securities and Exchange Commission (the “SEC”), internal control over financial reporting is a process designed by, or under the supervision of, our principal executive and principal financial officers and effected by our Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the consolidated financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.

 

Our internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect our transactions and dispositions of our assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of the consolidated financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the consolidated financial statements.

 

In connection with the preparation of our annual consolidated financial statements, management has undertaken an assessment of the effectiveness of our internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO 2013 framework”). Management’s assessment included an evaluation of the design of our internal control over financial reporting and testing of the operational effectiveness of those controls. Based on this evaluation, management has concluded that our internal control over financial reporting was effective as of December 31, 2019.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect all misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

Management excluded the operations of all of the television stations, production companies and related general and administrative operations acquired in the Raycom Merger, the United Acquisition, the Sioux Falls Acquisition and the Charlottesville Acquisition (together the “2019 Acquisitions”) from the assessment of internal control over financial reporting as of December 31, 2019. These operations were excluded in accordance with the SEC’s general guidance because they and the related entities were acquired in purchase business combinations in 2019. Collectively, these operations accounted for approximately 60% of our total assets and 53% of our total revenues, as reported in our consolidated financial statements as of and for the year ended December 31, 2019.

 

The effectiveness of our internal control over financial reporting as of December 31, 2019 has been audited by RSM US LLP, an independent registered public accounting firm, as stated in their report, which is included herein.

 

53
 

 

Report of Independent Registered Public Accounting Firm

 

 

To the Stockholders and the Board of Directors of Gray Television, Inc.

 

 

Opinions on the Financial Statements and Internal Control Over Financial Reporting

We have audited the accompanying consolidated balance sheets of Gray Television, Inc. and subsidiaries (the Company) as of December 31, 2019 and 2018, and the related consolidated statements of operations, comprehensive income, stockholders' equity and cash flows for each of the three years in the period ended December 31, 2019, and the related notes and schedule (collectively, the financial statements). We also have audited the Company’s internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013.

 

In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2019 and 2018, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2019, in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013.

 

As described in Management’s Report on Internal Control Over Financial Reporting, management excluded the operations of the television stations, production companies and related general and administrative operations acquired in the Raycom Merger, the United Acquisition, the Sioux Falls Acquisition, and the Charlottesville Acquisition (collectively, the “2019 Acquisitions” as defined in Note 3), from its assessment of internal control over financial reporting as of December 31, 2019, because they were acquired by the Company in a purchase business combinations in 2019. We have also excluded the Acquired Stations from our audit of internal control over financial reporting. The Acquired Stations total assets and revenues represent approximately 60% and 53%, respectively, of the related consolidated financial statement amounts as of and for the year ended December 31, 2019.

 

Change in Accounting Principle

As discussed in Note 1 to the financial statements, the Company has changed its method of accounting for leases in fiscal year 2019 due to the adoption of the new lease standard.

 

Basis for Opinions

The Company's management is responsible for these financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Company's financial statements and an opinion on the Company's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

54
 

 

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.

 

Our audits of the financial statements included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

 

Definition and Limitations of Internal Control Over Financial Reporting

A company's internal control over financial reporting is a process designed 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. A 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 generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and 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.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

Critical Audit Matters

The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.

 

Indefinite-Lived Intangible Asset and Goodwill Impairment Assessment

As described in Notes 1 and 13 to the consolidated financial statements, the Company’s consolidated broadcast licenses and goodwill balances were $3.6 billion and $1.4 billion as of December 31, 2019, respectively. Goodwill is allocated to the Company’s reporting units, which the Company identifies as each of its individual television markets and production companies. Goodwill, at the reporting unit level, and each broadcast license is tested for impairment at least annually. In the Company’s assessment of impairment, management identified those broadcast licenses and reporting units for which a qualitative assessment would be performed to determine whether it is more likely than not that the broadcast license or reporting unit is impaired.  For those broadcast licenses and reporting units for which the Company did not elect to perform a qualitative analysis, the Company performed a quantitative analysis. To estimate the fair value of the reporting units using a quantitative assessment, the Company used a discounted cash flow model supported by a market multiple approach. The impairment assessment of each broadcast license and reporting unit requires management to make significant estimates and assumptions related to a number of factors under both the qualitative and quantitative assessments. The Company considered the relative impact of factors that are specific to the broadcast license and reporting unit such as industry, regulatory and macroeconomic factors as well as forecasts of future revenues, operating margins and discount rates. Management also utilized industry data such as third party market reports which project trends related to the growth of the industry.  The Company has grown significantly through acquisition and as a result, many broadcast licenses and reporting units lack substantial historical operating performance data upon which to evaluate management’s forecasts.

 

55
 

 

We identified the broadcast license and goodwill impairment assessment as a critical audit matter because of the significant assumptions management used in the impairment analysis.  Auditing management’s judgments used in the impairment assessment regarding industry, regulatory, and microeconomic factors as well as forecasts of future revenue, operating margin, discount rate and its application of third party data related to industry growth involved a high degree of auditor judgment and increased audit effort, including the use of our valuation specialist.

 

Our audit procedures related to the Company’s broadcast license and goodwill impairment assessment included the following, among others:

 

 

●

We obtained an understanding of the relevant controls related to the Company’s goodwill and broadcast license impairment assessments, and tested such controls for design and operating effectiveness, including controls related to management’s review of the significant assumptions noted above.

 

 

●

We tested management’s determination of which broadcast licenses and reporting units were subject to the qualitative impairment assessment versus those subject to a quantitative impairment assessment, including comparison of actual results to management’s historical forecasts.

 

 

●

We tested management’s process for evaluating factors specific to the broadcast licenses and reporting units subject to qualitative goodwill impairment assessment.  This included comparing the third party industry data utilized by management to other sources of independently obtained industry data.

 

 

●

We tested management’s process for determining the fair value of the broadcast licenses and reporting units. Due to the lack of historical experience available for broadcast licenses and reporting units acquired in the current year, we compared management’s forecasts of future revenue and operating margin to historical operating results for the Company’s similar existing reporting units, as well as third party, market specific industry data.

 

 

●

We utilized our valuation specialist to assist in testing the discount rates for broadcast licenses and reporting units subject to a quantitative impairment assessment.

 

Valuation of Broadcast Licenses Acquired in a Business Combination

As described in Note 3 to the consolidated financial statements, the Company completed a significant business combination that added $2.0 billion in broadcast licenses, which management considers to be indefinite-lived intangible assets, for the year ended December 31, 2019. Management used an income approach when valuing the broadcast licenses. Under this approach, a broadcast license is recorded based on the estimated fair value, which is based on the estimated after-tax discounted future cash flows of the acquired station, assuming an initial hypothetical start-up operation maturing into an average performing station in a specific television market and giving consideration to other relevant factors such as the technical qualities of the broadcast license and the number of competing broadcast licenses within that market. The assumptions considered by management in the analysis reflect historical market and station growth trends, third party, market specific, industry data, as well as the anticipated performance of the stations. The valuation technique used by management included theoretical assumptions of the costs that would be incurred to construct a station when the only owned asset is the broadcast license and the associated revenues, operating margins and capital expenditures expected to be incurred in the start-up years, which are inherently judgmental.

 

56
 

 

We identified the valuation of broadcast licenses acquired in a business combination as a critical audit matter because of the significant estimates and assumptions used by management in estimating the fair value of the acquired licenses. Auditing management’s judgments regarding forecasts of future revenue, operating margins, capital expenditures, and the discount rate to be applied involved a high degree auditor judgment and increased audit effort, including the use of our valuation specialist.

 

Our audit procedures related to the Company’s broadcast license and goodwill impairment assessment included the following, among others:

 

 

●

We obtained an understanding of the relevant controls related to the Company’s valuation of the broadcast license and tested such controls for design and operating effectiveness, including controls relating to management’s review and approval of the assumptions included in the valuation specialist’s report.

 

 

●

We compared management’s forecasts of future revenue and operating margin to historical operating results for the Company’s similar existing owned broadcast licenses, as well as third-party market specific, industry data. We tested the assumptions related to the start-up years in the discounted cash flow model where there is no historical or third-party market data available to support those assumptions by comparing estimated capital expenditures to acquired capital assets of the acquired station, as well as ensuring that management’s build-up of revenues and operating margins were reasonable over the start-up period.

 

 

●

We utilized our valuation specialist to assist in testing the Company’s discounted cash flow models and certain significant assumptions, including the discount rate. We evaluated whether the assumptions used were reasonable by considering the past performance of similar assets and third party, market specific, industry data, and whether such assumptions were consistent with evidence obtained in other areas of the audit.

 

/s/ RSM US LLP

 

We have served as the Company's auditor since 2006.

 

Atlanta, Georgia

February 27, 2020

 

57
 
 

 

GRAY TELEVISION, INC.

CONSOLIDATED BALANCE SHEETS

(in millions)

 

   

December 31,

  
   

2019

    

2018

  

Assets:

                

Current assets:

                

Cash

   $ 212     $ 667  

Accounts receivable, less allowance for doubtful accounts of $11 and $5, respectively

     411       184  

Current portion of program broadcast rights, net

     25       15  

Prepaid and other current assets

     24       7  

Total current assets

     672       873  
                 

Property and equipment, net

     725       363  

Operating leases right of use asset

     50       -  

Broadcast licenses

     3,573       1,530  

Goodwill

     1,446       612  

Other intangible assets, net

     460       53  

Investments in broadcasting and technology companies

     17       17  

Restricted cash

     -       752  

Other

     29       13  

Total assets

   $ 6,972     $ 4,213  

 

See accompanying notes.

 

58
 

 

GRAY TELEVISION, INC.

CONSOLIDATED BALANCE SHEETS

(in millions, except for share data)

 

   

December 31,

  
   

2019

    

2018

  

Liabilities and stockholders’ equity:

                

Current liabilities:

                

Accounts payable

   $ 11     $ 8  

Employee compensation and benefits

     67       35  

Accrued interest

     37       34  

Accrued network programming fees

     30       22  

Other accrued expenses

     32       18  

Federal and state income taxes

     13       14  

Current portion of program broadcast obligations

     28       15  

Deferred revenue

     9       4  

Dividends payable

     13       -  

Current portion of operating lease liabilities

     6       -  

Total current liabilities

     246       150  
                 

Long-term debt, less current portion and deferred financing costs

     3,697       2,549  

Program broadcast obligations, less current portion

     7       5  

Deferred income taxes

     810       285  

Accrued pension costs

     38       33  

Operating lease liabilities, less current portion

     45       -  

Other

     15       4  

Total liabilities

     4,858       3,026  
                 

Commitments and contingencies (Note 12)

            
                 

Series A Perpetual Preferred Stock, no par value; cumulative; redeemable; designated 1,500,000 shares, issued and outstanding 650,000 shares and 0 shares, ($650 and $0 aggregate liquidation value, respectively)

     650       -  
                 
                 

Stockholders’ equity:

                

Common stock, no par value; authorized 200,000,000 shares issued 101,746,860 shares and 89,298,943 shares, respectively outstanding 92,658,362 shares and 82,022,500 shares, respectively

     1,093       907  

Class A common stock, no par value; authorized 25,000,000 shares, issued 8,768,959 shares and 8,569,149 shares, respectively outstanding 6,881,192 shares and 6,729,035 shares, respectively

     31       27  

Retained earnings

     504       372  

Accumulated other comprehensive loss, net of income tax benefit

     (31 )     (21 )
      1,597       1,285  

Treasury stock at cost, common stock, 9,088,498 shares and 7,276,443 shares, respectively

     (107 )     (72 )

Treasury stock at cost, Class A common stock, 1,887,767 shares and 1,840,114 shares, respectively

     (26 )     (26 )

Total stockholders’ equity

     1,464       1,187  

Total liabilities and stockholders’ equity

   $ 6,972     $ 4,213  

 

See accompanying notes.

 

59
 
 

 

GRAY TELEVISION, INC.

CONSOLIDATED STATEMENTS OF OPERATIONS

(in millions, except for net income per share data)

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  
                         

Revenue (less agency commissions):

                        

Broadcasting

   $ 2,035     $ 1,084     $ 883  

Production companies

     87       -       -  

Total revenue (less agency commissions)

     2,122       1,084       883  

Operating expenses before depreciation, amortization, and gain on disposals of assets, net:

                        

Broadcast

     1,325       596       558  

Production companies

     74       -       -  

Corporate and administrative

     104       41       32  

Depreciation

     80       54       52  

Amortization of intangible assets

     115       21       25  

Gain on disposals of assets, net

     (54 )     (17 )     (74 )

Operating expenses

     1,644       695       593  

Operating income

     478       389       290  

Other income (expense):

                        

Miscellaneous income, net

     4       6       1  

Interest expense

     (227 )     (107 )     (95 )

Loss from early extinguishment of debt

     -       -       (3 )

Income before income taxes

     255       288       193  

Income tax expense (benefit)

     76       77       (69 )

Net income

     179       211       262  

Preferred stock dividends

     52       -       -  

Net income attributable to common stockholders

   $ 127     $ 211     $ 262  
                         

Basic per share information:

                        

Net income attributable to common stockholders

   $ 1.28     $ 2.39     $ 3.59  

Weighted average shares outstanding

     99       88       73  
                         

Diluted per share information:

                        

Net income attributable to common stockholders

   $ 1.27     $ 2.37     $ 3.55  

Weighted average shares outstanding

     100       89       74  
                         

Dividends declared per common share

   $ -     $ -     $ -  

 

See accompanying notes.

 

60
 
 

 

GRAY TELEVISION, INC.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(in millions)

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  
                         

Net income

   $ 179     $ 211     $ 262  
                         

Other comprehensive (loss) income :

                        

Adjustment to pension liability

     (7 )     1       (7 )

Income tax (benefit) expense

     (2 )     -       (3 )

Adoption of ASU 2018-02

     (5 )     -       -  

Other comprehensive (loss) income

     (10 )     1       (4 )
                         

Comprehensive income

   $ 169     $ 212     $ 258  

 

See accompanying notes.

 

61
 
 

 

GRAY TELEVISION, INC.

CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY

(in millions, except for number of shares)

 

                                                                           

Accumulated

          
   

Class A

                    

Retained

    

Class A

    

Common

    

Other

          
   

Common Stock

    

Common Stock

    

Earnings

    

Treasury Stock

    

Treasury Stock

    

Comprehensive

          
   

Shares

    

Amount

    

Shares

    

Amount

    

(Deficit)

    

Shares

    

Amount

    

Shares

    

Amount

    

(Loss) Income

    

Total

  
                                                                                         

Balance at December 31, 2016

     8,073,993     $ 22       71,229,497     $ 658     $ (101 )     (1,669,131 )   $ (23 )     (5,135,406 )   $ (45 )   $ (18 )   $ 493  
                                                                                         

Adoption of ASU 2016-09 excess tax benefit for stock-based compensation

     -       -       -       -       1       -       -       -       -       -       1  
                                                                                         

Net income

     -       -       -       -       262       -       -       -       -       -       262  
                                                                                         

Adjustment to pension liability, net of income tax

     -       -       -       -       -       -       -       -       -       (4 )     (4 )
                                                                                         

Issuance of common stock:

                                                                                        

Underwritten public offering

     -       -       17,250,000       239       -       -       -       -       -       -       239  

401(k) plan

     -       -       1,224       -       -       -       -       -       -       -       -  

2007 Long Term Incentive Plan - restricted stock awards

     198,220       -       307,943       -       -       (81,561 )     (1 )     (77,632 )     (1 )     -       (2 )

2017 Equity and Incentive Compensation Plan - restricted stock awards

     76,856       -       -       -       -       -       -       -       -       -       -  
                                                                                         

Repurchase of common stock

     -       -       -       -       -       -       -       (322,038 )     (4 )     -       (4 )
                                                                                         

Stock-based compensation

     -       3       -       6       -       -       -       -       -       -       9  
                                                                                         

Balance at December 31, 2017

     8,349,069     $ 25       88,788,664     $ 903     $ 162       (1,750,692 )   $ (24 )     (5,535,076 )   $ (50 )   $ (22 )   $ 994  
                                                                                         

Net income

     -       -       -       -       210       -       -       -       -       -       210  
                                                                                         

Adjustment to pension liability, net of income tax

     -       -       -       -       -       -       -       -       -       1       1  
                                                                                         

Issuance of common stock:

                                                                                        

Restricted stock awards

     220,080       -       391,836       -       -       (89,422 )     (2 )     (107,456 )     (2 )     -       (4 )

Restricted stock unit awards

     -       -       209,500       -       -       -       -       (82,201 )     (1 )     -       (1 )
                                                                                         

Forfeiture of restricted stock awards

     -       -       (91,057 )     (1 )     -       -       -       -       -       -       (1 )
                                                                                         

Repurchase of common stock

     -       -       -       -       -       -       -       (1,551,710 )     (19 )     -       (19 )
                                                                                         

Stock-based compensation

     -       2       -       5       -       -       -       -       -       -       7  
                                                                                         

Balance at December 31, 2018

     8,569,149     $ 27       89,298,943     $ 907     $ 372       (1,840,114 )   $ (26 )     (7,276,443 )   $ (72 )   $ (21 )   $ 1,187  

 

See accompanying notes.

 

62
 

 

GRAY TELEVISION, INC.

CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY

(in millions, except for number of shares)

 

                                                                           

Accumulated

          
   

Class A

                    

Retained

    

Class A

    

Common

    

Other

          
   

Common Stock

    

Common Stock

    

Earnings

    

Treasury Stock

    

Treasury Stock

    

Comprehensive

          
   

Shares

    

Amount

    

Shares

    

Amount

    

(Deficit)

    

Shares

    

Amount

    

Shares

    

Amount

    

(Loss) Income

    

Total

  
                                                                                         

Balance at December 31, 2018

     8,569,149     $ 27       89,298,943     $ 907     $ 372       (1,840,114 )   $ (26 )     (7,276,443 )   $ (72 )   $ (21 )     1,187  
                                                                                         

Net income

     -       -       -       -       179       -       -       -       -       -       179  
                                                                                         

Preferred stock dividends

     -       -       -       -       (52 )     -       -       -       -       -       (52 )
                                                                                         

Adjustment to pension liability, net of income tax

     -       -       -       -       -       -       -       -       -       (5 )     (5 )
                                                                                         

Issuance of common stock:

                                                                                        

Acquisitions of television businesses and licenses

     -       -       11,499,945       170       -       -       -       -       -       -       170  

401(k) Plan

     -       -       196,509       4       -       -       -       -       -       -       4  

2017 Equity and Incentive Compensation Plan:

                                                                                        

Restricted stock awards

     199,810       -       751,463       -       -       (47,653 )     -       (152,371 )     (3 )     -       (3 )
                                                                                         

Repurchase of common stock

     -       -       -       -       -       -       -       (1,659,684 )     (32 )     -       (32 )
                                                                                         

Stock-based compensation

     -       4       -       12       -       -       -       -       -       -       16  
                                                                                         

Adoption of ASU 2018-02

     -       -       -       -       5       -       -       -       -       (5 )     -  
                                                                                         

Balance at December 31, 2019

     8,768,959     $ 31       101,746,860     $ 1,093     $ 504       (1,887,767 )   $ (26 )     (9,088,498 )   $ (107 )   $ (31 )   $ 1,464  

 

See accompanying notes.

 

63
 
 

 

GRAY TELEVISION, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(in millions)

 

   

Year Ended December 31,

  
   

2019

   

2018

   

2017

 

Operating activities

                       

Net income

   $ 179     $ 211     $ 262  

Adjustments to reconcile net income to net cash provided by operating activities:

                        

Depreciation

     80       54       52  

Amortization of intangible assets

     115       21       25  

Amortization of deferred loan costs

     12       5       5  

Accretion of original issue discount and premium related to long-term debt, net

     (1 )     (1 )     (1 )

Amortization of restricted stock and stock option awards

     16       7       9  

Amortization of program broadcast rights

     39       21       21  

Payments on program broadcast obligations

     (43 )     (22 )     (21 )

Deferred income taxes

     55       23       (78 )

Gain on disposals of assets, net

     (54 )     (17 )     (74 )

Loss from early extinguishment of debt

     -       -       3  

Other

     11       (5 )     (3 )

Changes in operating assets and liabilities:

                        

Accounts receivable

     22       (12 )     (24 )

Prepaid income taxes

     -       14       1  

Other current assets

     (7 )     (3 )     1  

Accounts payable

     (1 )     1       2  

Employee compensation, benefits and pension costs

     3       5       (2 )

Accrued network fees and other expenses

     (41 )     7       3  

Accrued interest

     3       8       (6 )

Income taxes payable

     (6 )     6       6  

Deferred revenue

     3       -       (1 )

Net cash provided by operating activities

     385       323       180  

Investing activities

                       

Acquisitions of television businesses and licenses

     (2,837 )     -       (416 )

Proceeds from sale of television stations

     253       9       -  

Proceeds from FCC spectrum auction

     -       -       91  

Purchases of property and equipment

     (110 )     (70 )     (35 )

Proceeds from Repack (Note 1)

     41       14       -  

Proceeds from other asset sales

     3       -       -  

Net (increase) decrease in acquisition prepayments and other

     (6 )     -       10  

Net cash used in investing activities

     (2,656 )     (47 )     (350 )

Financing activities

                       

Proceeds from borrowings on long-term debt

     1,400       750       642  

Repayments of borrowings on long-term debt

     (211 )     (40 )     (563 )

Payments for the repurchase of common stock

     (32 )     (19 )     (4 )

Proceeds from issuance of common stock

     -       -       239  

Payment of preferred stock dividends

     (39 )     -       -  

Deferred and other loan costs

     (50 )     (5 )     (5 )

Payments for taxes related to net share settlement of equity awards

     (4 )     (5 )     (2 )

Net cash provided by financing activities

     1,064       681       307  

Net (decrease) increase in cash

     (1,207 )     205       137  

Net increase in restricted cash, included in non-current assets

     -       752       -  

Cash and restricted cash at beginning of period

     1,419       462       325  

Cash and restricted cash at end of period

   $ 212     $ 1,419     $ 462  

 

See accompanying notes.

 

64
 

 

GRAY TELEVISION, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

 

1.

Description of Business and Summary of Significant Accounting Policies

 

Description of Business. We are a television broadcast company headquartered in Atlanta, Georgia, that is the largest owner of top-rated local television (“television” or “TV”) stations and digital assets in the United States. Gray currently owns and/or operates television stations and leading digital properties in 93 television markets that collectively reach approximately 24% of US television households. Over calendar year 2019, Gray’s stations were ranked first in 68 markets, and first and/or second in 86 markets, as calculated by Comscore’s audience measurement service. We also own video program production, marketing, and digital businesses including Raycom Sports, Tupelo-Raycom, and RTM Studios, the producer of PowerNation programs and content, which we refer to collectively as our “production companies.”

 

Restricted Cash. As of December 31, 2018 our wholly owned subsidiary, Gray Escrow, Inc., held the cash proceeds from and interest earned on the proceeds of our 2027 Notes offering in escrow. We presented this escrow account as restricted cash on our balance sheet. On January 2, 2019, these proceeds were released from escrow and used to fund a portion of the cash consideration paid to complete the Raycom Merger.

 

Investments in Broadcasting, Production and Technology Companies. We have investments in several television, production and technology companies. Each of these equity investments do not have readily determinable fair values. We have applied the measurement alternative as defined in the FASB’s ASU 2016-01 – Financial Instruments - Overall (Subtopic 825-10), Recognition and Measurement of Financial Assets and Financial Liabilities. These investments are reported together as a non-current asset on our balance sheets.

 

Trade and Barter Transactions. We account for trade transactions involving the exchange of tangible goods or services with our customers as revenue. The revenue is recorded at the time the advertisement is broadcast and the expense is recorded at the time the goods or services are used. The revenue and expense associated with these transactions is based on the fair value of the assets or services involved in the transaction. Trade revenue and expense recognized for each of the years ended December 31, 2019, 2018 and 2017 were as follows (amounts in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Trade revenue

   $ 8     $ 3     $ 2  

Trade expense

     (8 )     (3 )     (2 )

Net trade (loss) income

   $ -     $ -     $ -  

 

We do not account for barter revenue and related barter expense generated from network or syndicated programming as such amounts are not material. Furthermore, any such barter revenue recognized would then require the recognition of an equal amount of barter expense. The recognition of these amounts would not have a material effect upon net income.

 

Advertising Expense. Our advertising expense was $2 million, $1 million and $2 million for the years ended December 31, 2019, 2018 and 2017, respectively. We record as expense all advertising expenditures as they are incurred.

 

65
 

 

Use of Estimates. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“UNITED STATES GAAP”) requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Our actual results could differ materially from these estimated amounts. Our most significant estimates are our allowance for doubtful accounts in receivables, valuation of goodwill and intangible assets, amortization of program rights and intangible assets, pension costs, income taxes, employee medical insurance claims, useful lives of property and equipment and contingencies.

 

Allowance for Doubtful Accounts. Our allowance for doubtful accounts is equal to a portion of our receivable balances that are 120 days old or older. We may provide allowances for certain receivable balances that are less than 120 days old when warranted by specific facts and circumstances. We recorded expenses for this allowance of $11 million, $2 million and $2 million for the years ended December 31, 2019, 2018 and 2017, respectively. We generally write off accounts receivable balances when the customer files for bankruptcy or when all commonly used methods of collection have been exhausted.

 

Program Broadcast Rights. We have two types of syndicated television program contracts: first run programs and off network reruns. First run programs are programs such as Wheel of Fortune and off network reruns are programs such as Seinfeld. First run programs have not been produced at the time the contract to air such programming is signed, and off network rerun programs have already been produced. We record an asset and corresponding liability for payments to be made only for the current year of first run programming and for the entire contract period for off network programming. Only an estimate of the payments anticipated to be made in the year following the balance sheet date of first run program contracts are recorded on the current balance sheet, because the programs for the later years of the contract period have not been produced or delivered.

 

The total license fee payable under a program license agreement allowing us to broadcast programs is recorded at the beginning of the license period and is charged to operating expense over the period that the programs are broadcast. The portion of the unamortized balance expected to be charged to operating expense in the succeeding year is classified as a current asset, with the remainder classified as a non-current asset. The liability for license fees payable under program license agreements is classified as current or long-term, in accordance with the payment terms of the various license agreements.

 

Property and Equipment. Property and equipment are carried at cost. Depreciation is computed principally by the straight-line method. The following table lists the components of property and equipment by major category (dollars in millions):

 

                   

Estimated
   

December 31,

    

Useful Lives
   

2019

    

2018

    

(in years)

Property and equipment:

                        

Land

   $ 119     $ 52          

Buildings and improvements

     291       166     7 to 40

Equipment

     776       548     3 to 20
      1,186       766          

Accumulated depreciation

     (461 )     (403 )        

Total property and equipment, net

   $ 725     $ 363          

 

Maintenance, repairs and minor replacements are charged to operations as incurred; major replacements and betterments are capitalized. The cost of any assets divested, sold or retired and the related accumulated depreciation are removed from the accounts at the time of disposition, and any resulting gain or loss is reflected in income or expense for the period.

 

66
 

 

In April 2017, the Federal Communications Commission (“FCC”) began the process of requiring certain television stations to change channels and/or modify their transmission facilities (“Repack”). Congress passed legislation which provided the FCC with a $1.7 billion fund to reimburse all reasonable costs incurred by stations operating under a full power license and a portion of the costs incurred by stations operating under a low power license that are reassigned to new channels. Subsequent legislation in March 2018 appropriated an additional $1.0 billion for the Repack fund, of which up to $750 million may be made available to reimburse the Repack costs of full power and Class A television stations and multichannel video programming distributors. Other funds are earmarked to assist low power television stations and for other transition costs. The sufficiency of the FCC’s fund to reimburse for Repack costs is dependent upon a number of factors including the amounts to be reimbursed to other industry participants for Repack costs. Therefore, we cannot predict whether the fund will be sufficient to reimburse our Repack costs to the extent authorized under the legislation. The Repack affects 48 of our full power stations and 39 of our current low power stations. The Repack process should be substantially completed in 2020. We anticipate that the majority of our costs associated with Repack will qualify for capitalization, rather than expense. Upon receipt of funds reimbursing us for our Repack costs, we record those proceeds as a component of our (gain) loss on disposal of assets, net.

 

The following tables provide additional information related to gain on disposal of assets, net included in our consolidated statements of operations and purchases of property and equipment included in our consolidated statements of cash flows (in millions):

 

   

Year ended December 31,

  
   

2019

    

2018

    

2017

  

Gain (loss) on disposal of assets, net:

                        

Proceeds from sale of assets

   $ 253     $ 9     $ 91  

Proceeds from Repack

     41       14       -  

Net book value of assets disposed

     (240 )     (6 )     (17 )

Total

   $ 54     $ 17     $ 74  
                         

Purchase of property and equipment:

                        

Recurring purchases - operations

   $ 89     $ 41     $ 32  

Repack

     20       27       3  

Repack related

     1       2       -  

Total

   $ 110     $ 70     $ 35  

 

Deferred Loan Costs. Loan acquisition costs are amortized over the life of the applicable indebtedness using a straight-line method that approximates the effective interest method. These debt issuance costs related to a recognized debt liability are presented in our balance sheets as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. Debt issuance costs associated with line-of-credit arrangements are presented as an asset, and amortized over the life of the line-of-credit arrangement.

 

67
 

 

Asset Retirement Obligations. We own office equipment, broadcasting equipment, leasehold improvements and transmission towers, some of which are located on, or are housed in, leased property or facilities. At the conclusion of several of these leases we are obligated to dismantle, remove and otherwise properly dispose of and remediate the facility or property. We estimate our asset retirement obligations based upon the net present value of the cash flows of the costs expected to be incurred. Asset retirement obligations are recognized as a non-current liability and as a component of the cost of the related asset. Changes to our asset retirement obligations resulting from revisions to the timing or the amount of the original undiscounted cash flow estimates are recognized as an increase or decrease in the carrying amount of the asset retirement obligation and the related asset retirement cost is capitalized as part of the related property, plant or equipment. Changes in asset retirement obligations resulting from accretion of the net present value of the estimated cash flows are recognized as operating expenses. We recognize depreciation expense of the capitalized cost over the estimated life of the lease. Our estimated obligations are due at varying times through 2062. The liability recognized for our asset retirement obligations was approximately $2 million and $1 million as of December 31, 2019 and 2018, respectively. During the years ended December 31, 2019, 2018 and 2017, expenses related to our asset retirement obligations were not material.

 

Concentration of Credit Risk. We sell advertising air-time on our broadcasts and advertising space on our websites to national and local advertisers within the geographic areas in which we operate. Credit is extended based on an evaluation of the customer’s financial condition, and generally advance payment is not required, except for political advertising. Credit losses are provided for in the financial statements and consistently have been within our expectations that are based upon our prior experience.

 

Excluding political advertising revenue, which is cyclical based on election cycles, our most significant category of customer is automotive. During the years ended December 31, 2019, 2018 and 2017 approximately 25% of our broadcast advertising revenue was obtained from advertising sales to automotive customers. Although our revenues can be affected by changes within our customer base, we believe this risk is in part mitigated due to the fact that no one customer accounted for in excess of 5% of our broadcast advertising revenue in any of these periods. Furthermore, we believe that our large geographic operating area partially mitigates the potential effect of regional economic impacts.

 

Earnings Per Share. We compute basic earnings per share by dividing net income available to common stockholders by the weighted-average number of common shares outstanding during the relevant period. The weighted-average number of common shares outstanding does not include restricted shares. These shares, although classified as issued and outstanding, are considered contingently returnable until the restrictions lapse and, in accordance with United States GAAP, are not included in the basic earnings per share calculation until the shares vest. Diluted earnings per share is computed by including all potentially dilutive common shares, including restricted shares and shares underlying stock options, in the diluted weighted-average shares outstanding calculation, unless their inclusion would be antidilutive.

 

The following table reconciles basic weighted-average shares outstanding to diluted weighted-average shares outstanding for the years ended December 31, 2019, 2018 and 2017 (in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Weighted-average shares outstanding, basic

     99       88       73  

Weighted-average shares underlying stock options and restricted shares

     1       1       1  

Weighted-average shares outstanding, diluted

     100       89       74  

 

68
 

 

Valuation of Broadcast Licenses, Goodwill and Other Intangible Assets. We have acquired a significant portion of our assets in acquisition transactions. Among the assets acquired in these transactions were broadcast licenses issued by the FCC, goodwill and other intangible assets.

 

For broadcast licenses acquired prior to January 1, 2002, we recorded their respective values using a residual method (analogous to “goodwill”) where the excess of the purchase price paid in the acquisition over the fair value of all identified tangible and intangible assets acquired was attributed to the broadcast license. This residual basis approach generally produces higher valuations of broadcast licenses when compared to applying an income method as discussed below.

 

For broadcast licenses acquired after December 31, 2001, we record their respective values using an income approach. Under this approach, a broadcast license is valued based on analyzing the estimated after-tax discounted future cash flows of the acquired station, assuming an initial hypothetical start-up operation maturing into an average performing station in a specific television market and giving consideration to other relevant factors such as the technical qualities of the broadcast license and the number of competing broadcast licenses within that market. For television stations acquired after December 31, 2001, we allocate the residual value of the station to goodwill.

 

When renewing broadcast licenses, we incur regulatory filing fees and legal fees. We expense these fees as they are incurred.

 

Goodwill represents the excess of acquisition cost over the fair value of assets acquired, identifiable intangible assets, less liabilities assumed. Goodwill is tested for impairment on an annual basis (at year end) or between annual tests if events or changes in circumstances indicate that the fair value of a reporting unit may be below its carrying amount.

 

Other intangible assets that we have acquired include network affiliation agreements, retransmission agreements, advertising contracts, client lists, talent contracts and leases. Although each of our stations is affiliated with at least one broadcast network, we believe that the value of a television station is derived primarily from the attributes of its broadcast license rather than its network affiliation agreement. As a result, we allocate only minimal values to our network affiliation agreements. We classify our other intangible assets as finite-lived intangible assets. The amortization period of our other intangible assets is equal to the shorter of their estimated useful life or contract period, including expected extensions thereof. When renewing other intangible asset contracts, we incur legal fees that are expensed as incurred.

 

Impairment Testing of Indefinite-Lived Intangible Assets. We test for impairment of our indefinite-lived intangible assets on an annual basis on December 31. However, if certain triggering events occur, we test for impairment when such events occur.

 

For purposes of testing goodwill for impairment, each of our individual television markets or production companies is considered a separate reporting unit. In the performance of our annual assessment of goodwill for impairment, we have the option to qualitatively assess whether it is more likely than not a reporting unit has been impaired. As part of this qualitative assessment we evaluate the relative impact of factors that are specific to the reporting units as well as industry, regulatory, and macroeconomic factors that could affect the significant inputs used to determine the fair value of the assets. We also consider the significance of the excess fair value over the carrying value reflected in prior quantitative assessments and the changes to the reporting units’ carrying value since the last impairment test.

 

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If we conclude that it is more likely than not that a reporting unit is impaired, or if we elect not to perform the optional qualitative assessment, we will determine the fair value of the reporting unit and compare to the net book value of the reporting unit. If the fair value is less than the net book value, we will record an impairment to goodwill for the amount of the difference.

 

To estimate the fair value of our reporting units for a quantitative assessment, we utilize a discounted cash flow model supported by a market multiple approach. We believe that a discounted cash flow analysis is the most appropriate methodology to test the recorded value of long-term assets with a demonstrated long-lived/enduring franchise value. We believe the results of the discounted cash flow and market multiple approaches provide reasonable estimates of the fair value of our reporting units because these approaches are based on our actual results and reasonable estimates of future performance, and also take into consideration a number of other factors deemed relevant by us including, but not limited to, expected future market revenue growth, market revenue shares and operating profit margins. We have historically used these approaches in determining the value of our reporting units. We also consider a market multiple approach to corroborate our discounted cash flow analysis. We believe that this methodology is consistent with the approach that a strategic market participant would utilize if they were to value one of our reporting units.

 

In the performance of our annual assessment of broadcast licenses for impairment we have the option to qualitatively assess whether it is more likely than not that these assets are impaired. When evaluating our broadcast licenses for impairment, the qualitative assessment is done at the individual television station level. If we conclude that it is more likely than not that one of our broadcast licenses is impaired, we will perform a quantitative assessment by comparing the fair value of the broadcast license to its carrying value. If the fair value is greater than the asset’s recorded value, no impairment expense is recorded. If the fair value does not exceed the asset’s recorded value, we record an impairment expense equal to the amount that the asset’s recorded value exceeded the asset’s fair value. We use the income method to estimate the fair value of all broadcast licenses irrespective of whether they were initially recorded using the residual or income methods.

 

For further discussion of our goodwill, broadcast licenses and other intangible assets, see Note 13 “Goodwill and Intangible Assets.”

 

Accumulated Other Comprehensive Loss. Our accumulated other comprehensive loss balances as of December 31, 2019 and 2018 consist of adjustments to our pension liabilities net of related income tax benefits as follows (in millions):

 

   

December 31,

  
   

2019

    

2018

  

Accumulated balances of items included in accumulated other comprehensive loss:

                

Increase in pension liability

   $ (42 )   $ (35 )

Income tax benefit

     (11 )     (14 )

Accumulated other comprehensive loss

   $ (31 )   $ (21 )

 

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Recent Accounting Pronouncements. In June 2016, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2016-13, Financial Instruments - Credit Losses (Topic 326). The standard requires entities to estimate loss of financial assets measured at amortized cost, including trade receivables, debt securities and loans, using an expected credit loss model. The expected credit loss model differs from the previous incurred losses model primarily in that the loss recognition threshold of “probable” has been eliminated and that expected loss should consider reasonable and supportable forecasts in addition to the previously considered past events and current conditions. Additionally, the guidance requires additional disclosures related to the further disaggregation of information related to the credit quality of financial assets by year of the asset’s origination for as many as five years. In November 2018, the FASB issued ASU No. 2018-19 to clarify the scope of the guidance in the amendments in ASU 2016-13. Entities must apply the standard provision as a cumulative-effect adjustment to retained earnings as of the beginning of the first reporting period in which the guidance is effective. The standard is effective for fiscal years beginning after December 15, 2019, and interim periods within those fiscal years. Early adoption is permitted for annual periods beginning after December 15, 2018, and interim periods within those fiscal years. The adoption of this guidance requires a change in disclosures related to our accounts receivable and allowance for doubtful accounts only and is not expected to have a material impact on our financial statements.

 

In August 2018, the FASB issued ASU 2018-14, Compensation Retirement Benefits Defined Benefit Plans General (Subtopic 715-20) - Disclosure Framework Changes to the Disclosure Requirements for Defined Benefit Plans, ASU 2018-14 adds, removes, and modifies disclosure requirements related to defined benefit pension and other postretirement plans. The update amends only annual disclosure requirements. The standard is effective for fiscal years ending after December 15, 2020. The standard allows for early adoption, but we have not yet made a determination as to whether to early-adopt this standard. The adoption of this guidance requires a change in disclosures only and is not expected to have a material impact on our financial statements.

 

Adoption of Accounting Standards and Reclassifications. In February 2016, the FASB issued ASU 2016-02 – Leases (Topic 842). ASU 2016-02 superseded Topic 840, Leases, and thus superseded nearly all existing lease guidance by requiring the reclassification of lease assets and lease liabilities on the balance sheet and requiring disclosure of key information about leasing arrangements. In July 2018, the FASB issued ASU 2018-11, Leases (Topic 842) – Targeted Improvements, which provided the option of applying the requirements of the new lease standard in the period of adoption using the modified retrospective approach with no restatement of comparative periods. We adopted the standard effective January 1, 2019, using the modified retrospective approach provided in ASU 2018-11. The transition guidance allowed for the election of a number of practical expedients. We elected the package of practical expedients and the short-term lease practical expedient. The package of practical expedients allowed us to carryforward our classification of existing leases. With the election of the short-term practical expedient, we are not required to recognize on our consolidated balance sheet, the present value of leases with an initial term of twelve months or less. We also implemented internal controls and key system functionality to enable the preparation of financial information on adoption. The standard had a material impact on our consolidated balance sheets but did not have an impact on our consolidated income statements. Upon the adoption of this standard, we recorded a right of use (“ROU”) asset and a lease obligation liability of approximately $21 million. In addition, upon the completion of the Raycom Merger on January 2, 2019, we implemented these standards to the leases acquired in the Raycom Merger and recorded a ROU asset and a lease obligation liability of approximately $52 million for each. Please refer to Note 3 “Acquisitions and Divestitures” and Note 9 “Leases” for further information.

 

In January 2017, the FASB issued ASU 2017-01, Business Combinations (Topic 805) – Clarifying the Definition of a Business. ASU 2017-01 adds guidance to assist entities in the determination of whether an acquisition (or disposal) represents assets or a business. The update provides a test to determine whether or not an acquisition is a business. If substantially all of the fair value of the assets acquired is concentrated in a single asset or a group of similar identifiable assets, the acquired assets do not represent a business. If this test is not met, the update provides further guidance to evaluate if the acquisition represents a business. The Company adopted the guidance on January 1, 2019. The adoption did not have an impact on our financial statements.

 

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In January 2017, the FASB issued ASU 2017-04, Intangibles – Goodwill and Other (Topic 350) – Simplifying the Test for Goodwill Impairment. ASU 2017-04 amends the guidance of United States GAAP with the intent of simplifying how an entity is required to test goodwill for impairment by eliminating Step 2 from the goodwill impairment test. Step 2 measures a goodwill impairment loss by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. After adoption of the standard, the annual, or interim, goodwill impairment test will be performed by comparing the fair value of a reporting unit with its carrying amount. An impairment charge would be recognized for the amount by which the carrying amount exceeds the reporting unit’s fair value; however, the loss recognized will not exceed the total amount of goodwill allocated to that reporting unit. The Company adopted the guidance on January 1, 2019. The adoption did not have an impact on our financial statements.

 

In February 2018, the FASB issued ASU 2018-02, Income Statement - Reporting Comprehensive Income (Topic 220) – Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income. ASU 2018-02 allows a reclassification from accumulated other comprehensive income to retained earnings for stranded tax effects resulting from the Tax Cuts and Jobs Act of 2017 (“TCJA”). Consequently, the amendments eliminate the stranded tax effects resulting from the TCJA and will improve the usefulness of information reported to financial statement users. However, because the amendments only relate to the reclassification of the income tax effects of the TCJA, the underlying guidance that requires that the effect of a change in tax laws or rates be included in income from continuing operations is not affected. We have adopted this standard effective on January 1, 2019 and have recorded an adjustment of $5 million to increase our retained earnings and accumulated other comprehensive loss.

 

In addition to the reclassification of our net pension expense (benefit) in our consolidated statement of operations as described above, certain amounts in the condensed consolidated statement of cash flows have also been reclassified to conform to the current presentation.

 

 

2.

Revenue

 

Revenue Recognition. We recognize revenue when we have completed a specified service and effectively transferred the control of that service to a customer in return for an amount of consideration we expect to be entitled to receive. The amount of revenue recognized is determined by the amount of consideration specified in a contract with our customers. We have elected to exclude taxes assessed by a governmental authority on transactions with our customers from our revenue. Any unremitted balance is included in current liabilities on our balance sheet.

 

Advertising Revenue. Broadcast advertising revenue is generated primarily from the broadcast of television advertising time to local, national and political advertisers. Most advertising contracts are short-term, and generally run only for a few weeks. Our performance obligation is satisfied when the advertisement is broadcast or appears on our stations’ websites or mobile applications. Advertising revenue is recognized when the performance obligation is satisfied and then billed to the customer in the period the revenue is recognized. We have an unconditional right to receive payment of the amount billed generally within 30 days of the invoice date. Payment terms are expressly stated in our standard terms and conditions. The invoiced amount to be received is recorded in accounts receivable on our balance sheet.

 

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We broadcast the customer’s advertisement either preceding or following a television station’s network programming and within local and syndicated programming. Broadcast advertising is sold in time increments and is priced primarily on the basis of a program’s popularity among the specific audience an advertiser desires to reach. In addition, broadcast advertising rates are affected by the number of advertisers competing for the available time, the size and demographic makeup of the market served by the station and the availability of alternative advertising media in the market area. Broadcast advertising rates are generally the highest during the most desirable viewing hours, with corresponding reductions during other hours. The ratings of a local station affiliated with a major network can be affected by ratings of network programming. Internet advertising is placed on our stations’ websites and mobile applications. These advertisements may be in the form of banner advertisements, pre-roll advertisements or video and other types of advertisements or sponsorships.

 

We generate advertising revenue either by the efforts of our direct sales employees or through third party advertising agency intermediaries. Third party advertising intermediaries represent the customer and contract with us to deliver broadcast or internet advertising for the customer.

 

Retransmission Consent Revenue. We enter into license agreements with cable, satellite, multichannel video programming distributors and digital delivery system (or “OTT”) customers (collectively “MVPD”) that provide them the right to use our broadcast signal for retransmission across the MVPD system for an agreed period of time. These agreements represent a sales and usage based functional intellectual property license based on the number of subscribers to the licensee’s delivery systems. Our performance obligation is to provide the licensee with access to our intellectual property when it is broadcast. The duration of the typical retransmission consent contract is three years. Retransmission consent revenue is recognized continuously during the period of the contract as we transmit our broadcast signal to the MVPD. The amount of revenue recognized is determined based upon a fixed rate per subscriber multiplied by the number of active subscribers to our MVPD customer systems for the given month. We bill our MVPD customers monthly over the life of the retransmission consent contract. We have an unconditional right to receive payment of the amount billed generally within 30 days from the invoice date. Payment terms are expressly stated in our retransmission consent contracts as well as in the standard terms and conditions. The invoiced amount to be received is recorded in accounts receivable on our balance sheets.

 

Subscriber data necessary to calculate the amount of retransmission consent revenue to be recognized for the current month is not received until subsequent to that month. We estimate the current month retransmission consent revenue based upon the subscriber data from the most recent subscriber report by the MVPD. We record the estimate in the current month as retransmission consent revenue and then adjust the amount recorded in that month when we receive the actual subscriber data. We typically have monthly adjustments to our revenue to account for changes in MVPD subscribers on a monthly basis, however, the number of MVPD subscribers does not change materially on a monthly basis and this adjustment does not materially impact our recorded retransmission consent revenue on a quarterly or annual basis.

 

Production Company Revenue. Our production company revenues include sports marketing, production and event management, sports and entertainment production services and automotive programming production and marketing solutions. We recognize revenue of marketing, production and events at the time the events are aired or delivered. We recognize advertising revenues related to the events when the advertisements are aired. Sponsorship revenue is recognized ratably over the contractual period of the sponsorship.

 

Other Revenues. Other revenues consist of production, tower rental and other miscellaneous items. Production revenue is derived from the production of programming. Production revenue is recognized as the programming is produced. Tower rental income is recognized monthly over the life of the lease. All of our leases under which we are lessor are considered operating leases. Other revenue is comprised of one-time or infrequently occurring special projects, dubbing, fees and other miscellaneous items. Other revenue is recognized as the services are performed. Other revenue is generated by our direct sales employees.

 

Expedients. We expense direct and agency commissions when incurred because our advertising contracts are one year or less in duration and the amortization period for capitalized expenses would be less than one year. Direct commissions are included in broadcast operating expense and agency commissions are netted against gross revenue in our consolidated statements of operations.

 

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The nature of our contracts with advertising customers is such that our performance obligations arise and are satisfied concurrent with the broadcast or web placement of the advertisement. We did not have incomplete or unsatisfied performance obligations at the end of any period presented.

 

We record a deposit liability for cash deposits received from our customers that are to be applied as payment once the performance obligation arises and is satisfied in the manner stated above. These deposits are recorded as deposit liabilities on our balance sheet. When we invoice our customers for completed performance obligations, we are unconditionally entitled to receive payment of the invoiced amounts. Therefore, we record invoiced amounts in accounts receivable on our balance sheet. We require amounts payable under advertising contracts with our political advertising customers to be paid for in advance. We record the receipt of this cash as a deposit liability. Once the advertisement has been broadcast, the revenue is earned, and we record the revenue and reduce the balance in this deposit liability account. We recorded $3 million of revenue in the year ended December 31, 2019 that was included in the deposit liability balance as of December 31, 2018. The deposit liability balance is included in deferred revenue on our consolidated balance sheets. The deposit liability balance was $9 million and $3 million as of December 31, 2019 and 2018, respectively.

 

Disaggregation of Revenue. Revenue from our broadcast and other segment is generated through both our direct and advertising agency intermediary sales channels. Revenue from our production companies segment is generated through our direct sales channel. The following table presents our revenue from contracts with customers disaggregated by type of service and sales channel (in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Market and service type:

                        

Advertising:

                        

Local

   $ 898     $ 443     $ 451  

National

     229       114       119  

Political

     68       155       16  

Total advertising

     1,195       712       586  

Retransmission consent

     796       355       277  

Production companies

     87       -       -  

Other

     44       17       20  

Total revenue

   $ 2,122     $ 1,084     $ 883  
                         

Sales channel:

                        

Direct

   $ 1,270     $ 552     $ 474  

Advertising agency intermediary

     852       532       409  

Total revenue

   $ 2,122     $ 1,084     $ 883  

 

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3.

Acquisitions and Divestitures

 

During 2019, 2018 and 2017, we completed a number of acquisition and divestiture transactions. The acquisition transactions were and are expected to, among other things, increase our revenues and cash flows from operating activities, and allow us to operate more efficiently and effectively by increasing our scale and providing us, among other things, with the ability to negotiate more favorable terms in our agreements with third parties.

 

2019 Acquisitions and Divestitures.

 

Raycom Merger. On January 2, 2019, we completed an acquisition of all the equity interests of Raycom Media, Inc. (“Raycom”). In connection with the acquisition of Raycom and on the same date, Gray assumed and completed Raycom’s pending acquisitions of WUPV-DT in the Richmond, Virginia market and KYOU-TV in the Ottumwa, Iowa market. To facilitate regulatory approval of the acquisition of Raycom and to satisfy the conditions placed on the acquisition by the Antitrust Division of the United States Department of Justice (the “DOJ”) and the FCC, we completed the divestiture of nine television stations in overlapping markets. We refer to the acquisition of Raycom, WUPV-DT and KYOU-TV and the divestiture of the stations in the nine overlapping markets collectively as the “Raycom Merger.”

 

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The Raycom Merger completed our transformation from a small, regional broadcaster to a leading media company with nationwide scale based on high-quality stations with exceptional talent in attractive markets. The following table lists the stations acquired and retained, net of divestitures:

 

       

Station

    

DMA

  

Designated Market Area

  

Call

  

Network

Rank

  

("DMA")

  

Letters

  

Affiliation
             
12  

Tampa-St. Petersburg (Sarasota), FL

  

WWSB

  

ABC
19  

Cleveland-Akron (Canton)

  

WOIO

  

CBS
19  

Cleveland-Akron (Canton)

  

WUAB

  

CW
21  

Charlotte, NC

  

WBTV

  

CBS
36  

West Palm Beach-Ft. Pierce, FL

  

WFLX

  

FOX
37  

Cincinnati, OH

  

WXIX

  

FOX
44  

Birmingham (Ann and Tusc)

  

WBRC

  

FOX
48  

Louisville, KY

  

WAVE

  

NBC
50  

New Orleans, LA

  

WVUE

  

FOX
51  

Memphis, TN

  

WMC

  

NBC
54  

Richmond- Petersburg, VA

  

WWBT

  

NBC
54  

Richmond- Petersburg, VA

  

WUPV

  

CW
65  

Tucson (Nogales), AZ

  

KOLD

  

CBS
66  

Honolulu, HI

  

KHNL

  

NBC
66  

Honolulu, HI

  

KGMB

  

CBS
66  

Honolulu, HI

  

KHBC

  

NBC/CBS
66  

Honolulu, HI

  

KOGG

  

NBC/CBS
75  

Columbia, SC

  

WIS

  

NBC
78  

Huntsville- Decatur (Florence), AL

  

WAFF

  

NBC
84  

Paducah, KY/Cape Girardeau, MO/ Harrisburg, IL

  

KFVS

  

CBS
86  

Shreveport, LA

  

KSLA

  

CBS
89  

Savannah, GA

  

WTOC

  

CBS
91  

Charleston, SC

  

WCSC

  

CBS
94  

Baton Rouge, LA

  

WAFB

  

CBS
94  

Baton Rouge, LA

  

WBXH

  

MY
95  

Jackson, MS

  

WLBT

  

NBC
97  

Myrtle Beach-Florence

  

WMBF

  

NBC
102  

Boise, ID

  

KNIN

  

FOX
105  

Evansville, IN

  

WFIE

  

NBC
114  

Tyler-Longview, TX

  

KLTV

  

ABC
114  

Tyler-Longview, TX

  

KTRE

  

ABC
122  

Montgomery, AL

  

WSFA

  

NBC
127  

Wilmington, NC

  

WECT

  

NBC
130  

Columbus, GA (Opelika, AL)

  

WTVM

  

ABC
132  

Amarillo, TX

  

KFDA

  

CBS
132  

Amarillo, TX

  

KEYU

  

TEL
142  

Lubbock, TX

  

KCBD

  

NBC
145  

Odessa/Midland, TX

  

KWAB

  

CW
145  

Odessa/Midland, TX

  

KTLE

  

TEL
147  

Wichita Falls, TX & Lawton, OK

  

KSWO

  

ABC
147  

Wichita Falls, TX & Lawton, OK

  

KKTM

  

TEL
154  

Albany, GA

  

WALB

  

NBC/ABC
155  

Biloxi-Gulfport, MS

  

WLOX

  

ABC/CBS
167  

Hattiesburg/Laurel, MS

  

WDAM

  

NBC/ABC
183  

Jonesboro, AR

  

KAIT

  

ABC/NBC
201  

Ottumwa, IA/Kirksville, MO

  

KYOU

  

FOX/NBC

 

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On January 2, 2019, the following stations were acquired from Raycom and their assets were immediately divested in eight markets as follows (dollars in millions):

 

   

Total

             
   

Cash

              
   

Consideration

  

Television

          

Purchaser

  

Received

  

Station

  

Location

  

DMA

  
                     

Lockwood Broadcasting, Inc.

   $ 67  

WTNZ

  

Knoxville, TN

   61  
         

WFXG

  

Augusta, GA

   108  
         

WPGX

  

Panama City, FL

   149  
         

WDFX

  

Dothan, AL

   171  
                     

Scripps Media, Inc.

     55  

KXXV

  

Waco-Temple-Bryan, TX

   82  
         

KRHD

  

Waco-Temple-Bryan, TX

   82  
         

WTXL

  

Tallahassee, FL

   109  
                     

TEGNA, Inc.

     109  

WTOL

  

Toledo, OH

   80  
         

KWES

  

Odessa - Midland, TX

   145  

Total

   $ 231              

 

The allocated portion of net consideration paid for the assets and liabilities divested for the stations in these eight overlap markets was approximately $234 million.

 

The net consideration paid to acquire Raycom consisted of $2.84 billion of cash, 11.5 million shares of our common stock, valued at $170 million (a non-cash financing transaction), and $650 million of a new series of preferred stock (a non-cash financing transaction), for a total of $3.66 billion. Please refer to Note 6 “Stockholders Equity” and Note 7 “Preferred Stock” for further information. The cash consideration paid to acquire the two stations that Raycom had previously agreed to acquire (KYOU-TV and WUPV-TV listed above) was $17 million. The following table summarizes the consideration paid related to the Raycom Merger and the amount representing the net assets acquired and liabilities assumed (in millions):

 

           

KYOU

          
           

and

   

Net

  
   

Raycom

    

WUPV

    

Consideration

  
                         

Purchase Price

   $ 3,660     $ 17     $ 3,677  

Less - consideration allocated to all assets acquired and net of liabilites assumed for the Raycom overlap market stations which were also divested on January 2, 2019

     (234 )     -       (234 )

Purchase consideration for assets acquired and liabilities assumed net of divestitures

   $ 3,426     $ 17     $ 3,443  

 

United Acquisition. On May 1, 2019, we acquired the assets of WWNY-TV (CBS) and WNYF-CD (FOX) in Watertown, New York (DMA 181) and KEYC-TV (CBS/FOX) in Mankato, Minnesota (DMA 198) from United Communications Corporation (the “United Acquisition”) for an adjusted purchase price of $48 million of cash, excluding Transaction Related Expenses. We began operating those stations on March 1, 2019 under a local programming and marketing agreement, which increased the total number of our markets from 91 to 93.

 

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 Sioux Falls Acquisition. On September 25, 2019, we acquired KDLT-TV (NBC), in the Sioux Falls, South Dakota market (DMA 113), for $33 million, using cash on hand (the “Sioux Falls Acquisition”).

 

Charlottesville Acquisition and Divestiture. On October 1, 2019, we acquired the assets of WVIR-TV (NBC) in the Charlottesville, Virginia market (DMA 182) from Waterman Broadcasting Corporation for $13 million using cash on hand (the “Charlottesville Acquisition”). Also, on October 1, 2019, in order to meet regulatory requirements, we divested our legacy stations in that market, WCAV-TV (CBS/FOX) and WVAW-TV (ABC). The divestitures resulted in a gain of approximately $19 million.

 

The following table summarizes the values of the assets acquired, liabilities assumed and resulting goodwill of the Raycom Merger, the United Acquisition, The Sioux Falls Acquisition and the Charlottesville Acquisition (together, the “2019 Acquisitions”) (in millions):

 

   

2019 Acquisitions

  
   

Raycom

    

United

    

Sioux Falls

    

Charlottesville

    

Total

  

Cash

   $ 115     $ -     $ -     $ -     $ 115  

Accounts receivable, net

     243       3       1       1       248  

Program broadcast rights

     12       -       -       -       12  

Other current assets

     10       -       -       -       10  

Property and equipment

     311       10       10       7       338  

Operating lease right of use asset

     52       -       -       -       52  

Goodwill

     829       3       2       -       834  

Broadcast licenses

     2,004       24       14       2       2,044  

Other intangible assets

     504       8       7       3       522  

Other non-current assets

     20       -       -       -       20  

Accrued compensation and benefits

     (29 )     -       -       -       (29 )

Program broadcast obligations

     (16 )     -       -       -       (16 )

Other current liabilities

     (60 )     -       (1 )     -       (61 )

Income taxes payable

     (3 )     -       -       -       (3 )

Deferred income taxes

     (472 )     -       -       -       (472 )

Operating lease liabilities

     (52 )     -       -       -       (52 )

Other long-term liabilities

     (25 )     -       -       -       (25 )

Total

   $ 3,443     $ 48     $ 33     $ 13     $ 3,537  

 

Because of the magnitude and complexity of the calculations involved and the inherent issues related to the integration of our operations, the valuation of the assets acquired, liabilities assumed and resulting goodwill of the United Acquisition, Sioux Falls Acquisition and the Charlottesville Acquisition are not yet final. However, we expect that any adjustments to these amounts reported in subsequent periods will not be material to our financial statements as a whole. These amounts are based upon management’s estimate of the fair values using valuation techniques including income, cost and market approaches. In determining the fair value of the acquired assets and assumed liabilities, the fair values were determined based on, among other factors, expected future revenue and cash flows, expected future growth rates, and estimated discount rates.

 

Accounts receivable are recorded at their fair value representing the amount we expect to collect. Gross contractual amounts receivable are approximately $2 million more than their recorded fair value.

 

Property and equipment are recorded at their fair value and are being depreciated over their estimated useful lives ranging from three years to 40 years.

 

Amounts related to other intangible assets represent primarily the estimated fair values of retransmission agreements of $322 million, shared services agreements of $98 million, and network affiliation agreements of $50 million. These intangible assets are being amortized over their estimated useful lives of approximately 4.1 years for retransmission agreements, approximately 7.7 years for shared services agreements, and approximately 3.7 years for network affiliation agreements.

 

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Goodwill is calculated as the excess of the consideration transferred over the fair value of the identifiable net assets acquired and liabilities assumed, and represents the future economic benefits expected to arise from other intangible assets acquired that do not qualify for separate recognition, including assembled workforce, as well as future synergies that we expect to generate from each acquisition. We recorded $829 million of goodwill related to stations acquired and retained in the Raycom Merger: $3 million of goodwill related to the stations acquired in the United Acquisition; $2 million of goodwill related to the stations acquired in the Sioux Falls Acquisition; and goodwill related to the stations acquired in the Charlottesville Acquisition was not material. A portion of the goodwill acquired in the Raycom Merger, in the amount of approximately $150 million, will be deductible by us for income tax purposes.

 

The Company’s consolidated results of operations for year ended December 31, 2019 includes the results of the Raycom Merger beginning on January 2, 2019, the United Acquisition beginning on March 1, 2019, the Sioux Falls Acquisition beginning on September 25, 2019, and the Charlottesville Acquisition beginning on October 1, 2019. Revenues attributable to the 2019 Acquisitions and included in our consolidated statement of operations for the year ended December 31, 2019 was $1.1 billion. Operating income attributable to the 2019 Acquisitions and included in our consolidated statement of operations for the year ended December 31, 2019 was $198 million.

 

The following table summarizes the approximate Transaction Related Expenses incurred in connection with the 2019 Acquisitions, during the years ended December 31, 2019 and 2018, by type and by financial statement line item (in millions):

 

   

Year Ended

  
   

December 31,

  
   

2019

    

2018

  

Transaction Related Expenses by type:

                

Legal, consulting and other professional fees

   $ 24     $ 8  

Incentive compensation and other severance costs

     21       3  

Termination of sales representation and other agreements

     34       -  

Total Transaction Related Expenses

   $ 79     $ 11  
                 

Transaction Related Expenses by financial statement line item:

                

Operating expenses before depreciation, amortization and loss (gain) on disposal of assets, net:

                

Broadcast

   $ 45     $ 3  

Corporate and administrative

     34       8  

Total Transaction Related Expenses

   $ 79     $ 11  

 

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 Unaudited Pro Forma Financial Information – 2019 Acquisitions. The following table sets forth certain unaudited pro forma information for the years ended December 31, 2019 and 2018 assuming that the 2019 Acquistions occurred on January 1, 2018 (in millions, except per share data):

 

   

Year Ended

  
   

December 31,

  
   

2019

    

2018

  
                 

Revenue (less agency commissions)

   $ 2,139     $ 2,212  
                 

Net income

   $ 241     $ 286  
                 

Net income attributable to common stockholders

   $ 189     $ 234  
                 

Basic net income per share

   $ 2.43     $ 3.25  
                 

Diluted net income per share

   $ 2.41     $ 3.21  

 

This pro forma financial information is based on Gray’s historical results of operations and the historical results of operations of the television stations acquired, net of divestitures, included in the 2019 Acquisitions, adjusted for the effect of fair value estimates and other acquisition accounting adjustments, and is not necessarily indicative of what our results would have been had we completed the 2019 Acquisitions on January 1, 2018 or on any other historical date, nor is it reflective of our expected results of operations for any future period. The pro forma adjustments for the years ended December 31, 2019 and 2018 reflect depreciation expense and amortization of finite-lived intangible assets related to the fair value of the assets acquired, Transaction Related Expenses and related tax effects of the adjustments. This pro forma financial information has been prepared based on estimates and assumptions that we believe are reasonable as of the date hereof, and are subject to change based on, among other things, changes in the fair value estimates or underlying assumptions.

 

2018 Divestiture. On December 31, 2018, in order to facilitate regulatory approval of the Raycom Merger, we sold the assets of WSWG-TV (DMA 154) in the Albany, Georgia television market for $9 million, excluding Transaction Related Expenses, to Marquee Broadcasting, Inc. and Marquee Broadcasting Georgia, Inc. In connection with the divestiture of the assets of WSWG-TV, we recorded a gain of approximately $5 million in the fourth quarter of 2018.

 

2017 Acquisitions. On January 13, 2017, we acquired the assets of KTVF-TV (NBC), KXDF-TV (CBS), and KFXF-TV (FOX) in the Fairbanks, Alaska television market (DMA 203), from Tanana Valley Television Company and Tanana Valley Holdings, LLC for an adjusted purchase price of $8 million (the “Fairbanks Acquisition”), using cash on hand.

 

On January 17, 2017, we acquired the assets of two television stations that were divested by Nexstar Broadcasting, Inc. upon its merger with Media General, Inc. (“Media General”): WBAY-TV (ABC), in the Green Bay, Wisconsin television market (DMA 67), and KWQC-TV (NBC), in the Davenport, Iowa, Rock Island, Illinois, and Moline, Illinois or “Quad Cities” television market (DMA 103), for an adjusted purchase price of $270 million (the “Media General Acquisition”) using cash on hand. The Media General Acquisition was completed, in part, through a transaction with a VIE known as Gray Midwest EAT, LLC (“GME”), pursuant to which GME acquired the broadcast licenses of the stations. On May 30, 2017, we exercised an option to acquire the licenses held by GME pending receipt of proceeds from the FCC’s reverse auction for broadcast spectrum (the “FCC Spectrum Auction”). Upon receipt of the auction proceeds from the FCC on August 7, 2017, we completed the acquisition of the broadcast licenses from GME.

 

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During the period that GME held those broadcast licenses we believe we were the primary beneficiary of GME because, subject to the ultimate control of the licensees, we had the power to direct the activities that significantly impact the economic performance of GME through the services we provided, and our obligation to absorb losses and right to earn returns that would be considered significant to GME. As a result, we included the assets, liabilities and results of operations of GME in our consolidated financial statements beginning on January 17, 2017 and continuing through August 7, 2017, the date that we were no longer deemed to be the primary beneficiary of GME.

 

On May 1, 2017, we acquired the assets of WDTV-TV (CBS) and WVFX-TV (FOX/CW) in the Clarksburg-Weston, West Virginia television market (DMA 173) from Withers Broadcasting Company of West Virginia (the “Clarksburg Acquisition”) for a total purchase price of $26 million with cash on hand. On May 13, 2016, we announced that we agreed to enter into the Clarksburg Acquisition. On June 1, 2016, we made a partial payment of $16 million and acquired the non-license assets of these stations. Also, on that date we began operating these stations, subject to the control of the seller, under a local marketing agreement (“LMA”) that terminated upon completion of the acquisition.

 

On May 1, 2017, we acquired the assets of WABI-TV (CBS/CW) in the Bangor, Maine television market (DMA 159) and WCJB-TV (ABC/CW) in the Gainesville, Florida television market (DMA 156) from Community Broadcasting Service and Diversified Broadcasting, Inc. (collectively, the “Diversified Acquisition”) for a total purchase price of $85 million with cash on hand. On April 1, 2017, we began operating these stations, subject to the control of the seller, under an LMA that terminated upon completion of the acquisition.

 

On August 1, 2017, we acquired the assets of WCAX-TV (CBS) in the Burlington, Vermont – Plattsburgh, New York television markets (DMA 96) from Mt. Mansfield Television, Inc., for an adjusted purchase price of $29 million in cash (the “Vermont Acquisition”). On June 1, 2017, we advanced $23 million of the purchase price to the seller and began to operate the station under an LMA, subject to the control of the seller. At closing, we paid the remaining $6 million of the purchase price with cash on hand and the LMA was terminated.

 

We refer to the eight stations that we began operating and acquired (excluding the stations acquired in the Clarksburg Acquisition, which we began operating under an LMA in 2016) during 2017 as the “2017 Acquisitions.” The following table summarizes fair value estimates of the assets acquired, liabilities assumed and resulting goodwill of the 2017 Acquisitions and the Clarksburg Acquisition (in millions):

 

   

2017 Acquisitions

          
   

Fairbanks

    

Media General

    

Clarksburg

    

Diversified

    

Vermont

    

Total

 
                                                 

Current assets

   $ -     $ 1     $ 1     $ -     $ -     $ 2  

Property and equipment

     3       20       4       12       10       49  

Goodwill

     -       86       3       36       3       128  

Broadcast licenses

     2       150       17       26       8       203  

Other intangible assets

     3       13       2       11       5       34  

Other non-current assets

     -       1       -       -       3       4  

Current liabilities

     -       (1 )     (1 )     -       -       (2 )

Total

   $ 8     $ 270     $ 26     $ 85     $ 29     $ 418  

 

These amounts are based upon management’s determination of the fair values using valuation techniques including income, cost and market approaches. In determining the fair value of the acquired assets and assumed liabilities, the fair values were determined based on, among other factors, expected future revenue and cash flows, expected future growth rates, and estimated discount rates.

 

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Property and equipment are recorded at their fair value and are being depreciated over their estimated useful lives ranging from three years to 40 years.

 

Amounts related to other intangible assets represent primarily the estimated fair values of retransmission agreements of $28 million; advertising client relationships of $5 million; and favorable income leases of $3 million. These intangible assets are being amortized over their estimated useful lives of approximately 5.1 years for retransmission agreements: approximately 10.7 years for advertising client relationships and approximately 11.9 years for favorable income leases.

 

Goodwill is calculated as the excess of the consideration transferred over the fair value of the identifiable net assets acquired and liabilities assumed, and represents the future economic benefits expected to arise from other intangible assets acquired that do not qualify for separate recognition, including assembled workforce, as well as future synergies that we expect to generate from each acquisition. We recorded $128 million of goodwill related to stations acquired in 2017. The goodwill recognized related to these acquisitions is deductible for income tax purposes.

 

The Company’s consolidated results of operations for year ended December 31, 2017 include the results of the 2017 Acquisitions from the date of each transaction. Revenues attributable thereto and included in our consolidated statement of operations for the year ended December 31, 2017 were $80 million. Operating income attributable thereto and included in our consolidated statement of operations for year ended December 31, 2017 was $34 million.

 

In connection with acquiring the 2017 Acquisitions, we incurred $1 million of Transaction Related Expenses during the year ended December 31, 2017, primarily related to legal, consulting and other professional services.

 

Unaudited Pro Forma Financial Information – 2017 Acquisitions. The following table sets forth certain unaudited pro forma information for the year ended December 31, 2017 assuming that the acquisitions completed in 2017 occurred on January 1, 2017 (in millions, except per share data):

 

   

Years Ended

  
   

December 31,

  
   

2017

  
         

Revenue (less agency commissions)

   $ 895  

Net income

   $ 261  
         

Basic net income per share

   $ 3.57  

Diluted net income per share

   $ 3.53  

 

This pro forma financial information is based on Gray’s historical results of operations and the historical results of operations of the acquisitions completed in 2017, adjusted for the effect of fair value estimates and other acquisition accounting adjustments, and is not necessarily indicative of what our results would have been had we acquired each of the stations acquired in 2017 on January 1, 2017 or on any other historical date, nor is it reflective of our expected results of operations for any future period. The pro forma adjustments for the year ended December 31, 2017 reflect depreciation expense and amortization of finite-lived intangible assets related to the fair value of the assets acquired, and the related tax effects of the adjustments. This pro forma financial information has been prepared based on estimates and assumptions that we believe are reasonable as of the date hereof, and are subject to change based on, among other things, changes in the fair value estimates or underlying assumptions.

 

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4.

Long-term Debt

 

As of December 31, 2019, long-term debt consisted of obligations under our 2019 Senior Credit Facility (as defined below), our 5.125% senior notes due 2024 (the “2024 Notes”) and our 5.875% senior notes due 2026 (the “2026 Notes”) and our 7.0% senior notes due 2027 (the “2027 Notes”). As of December 31, 2018, long-term debt primarily consisted of obligations under our 2017 Senior Credit Facility (as defined below), our 2024 Notes, our 2026 Notes and our 2027 Notes as follows (in millions):

 

   

December 31,

 
   

2019

    

2018

  

Long-term debt including current portion:

                

2017 Term Loan

   $ 595     $ 595  

2019 Term Loan

     1,190       -  

2024 Notes

     525       525  

2026 Notes

     700       700  

2027 Notes

     750       750  

Total outstanding principal

     3,760       2,570  

Unamortized deferred loan costs - 2017 Term Loan

     -       (9 )

Unamortized deferred loan costs - 2019 Term Loan

     (44 )     -  

Unamortized deferred loan costs - 2024 Notes

     (5 )     (6 )

Unamortized deferred loan costs - 2026 Notes

     (7 )     (8 )

Unamortized deferred loan costs - 2027 Notes

     (11 )     (2 )

Unamortized premium - 2026 Notes

     4       4  

Long-term debt, less deferred financing costs

     3,697       2,549  

Less current portion

     -       -  

Net carrying value

   $ 3,697     $ 2,549  
                 

Borrowing availability under Revolving Credit Facility

   $ 200     $ 100  

 

In connection with the Raycom Merger, on January 2, 2019, we amended our senior credit facility (the “2017 Credit Facility” and, as amended, the “2019 Senior Credit Facility”) as follows: (1) we replaced our existing $100 million revolving credit facility under our prior senior credit facility with a new five year revolving credit facility (the “2019 Revolving Credit Facility”), the terms of which provide for up to $200 million in available borrowings and a maturity date of January 2, 2024; (2) we incurred a $1.4 billion term loan (the “2019 Term Loan”), which matures on January 2, 2026; and (3) assumed the outstanding $556 million term loan facility (the “2017 Initial Term Loan”) and $85 million incremental term loan (the “2017 Incremental Term Loan” and, together with the 2017 Initial Term Loan, the “2017 Term Loan”) which mature on February 7, 2024. Since the Raycom Merger was not completed by December 15, 2018, we incurred a ticking fee of $1 million at a rate of 1.25% of the 2019 Term Loan amount, from December 16, 2018 to January 2, 2019. In addition, we assumed $750 million of the 2027 Notes, which were issued by our special purpose, wholly-owned subsidiary on November 16, 2018. The proceeds of the 2019 Term Loan and the 2027 Notes were used to fund a portion of the cash consideration payable in the Raycom Merger.

 

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Borrowings under the 2019 Term Loan bear interest, at our option, at either the London Interbank Offered Rate (“LIBOR”) or the Base Rate, in each case, plus an applicable margin of 2.5% for LIBOR borrowings and 1.5% for Base Rate borrowings. As of December 31, 2019, the interest rate on the balance outstanding under the 2019 Term Loan was 4.2%. The 2019 Term Loan matures on January 2, 2026.

 

Borrowings under the 2017 Term Loan bear interest, at our option, at either the LIBOR or the Base Rate (as defined below), in each case, plus an applicable margin. Currently, the applicable margin is 2.25% for LIBOR borrowings and 1.25% for Base Rate borrowings. The applicable margin is determined quarterly based on our leverage ratio as set forth in the 2019 Senior Credit Facility (the “Leverage Ratio”). If our Leverage Ratio is less than or equal to 5.25 to 1.00, the applicable margin is 2.25% for all LIBOR borrowings and 1.25% for all Base Rate borrowings, and if the Leverage Ratio is greater than 5.25 to 1.00, the applicable margin is 2.5% for all LIBOR borrowings and 1.5% for all Base Rate borrowings. As of December 31, 2019, the interest rate on the balance outstanding under the 2017 Term Loan was 3.95%. The 2017 Term Loan matures on February 7, 2024.

 

Borrowings under the 2019 Revolving Credit Facility currently bear interest, at our option, at either LIBOR plus the applicable margin or Base Rate plus the applicable margin, in each case based on a first lien leverage ratio test as set forth in the 2019 Senior Credit Facility (the “First Lien Leverage Ratio”). Base Rate is defined as the greatest of (i) the administrative agent’s prime rate, (ii) the overnight federal funds rate plus 0.50% or (iii) LIBOR plus 1.50%. We are required to pay a commitment fee on the average daily unused portion of the 2019 Revolving Credit Facility, which may range from 0.375% to 0.50% on an annual basis, based on the First Lien Leverage Ratio. The 2019 Revolving Credit Facility matures on January 2, 2024.

 

We incurred $43 million of transaction fees and expenses related to the 2019 Senior Credit Facility. At December 31, 2019, these were recorded as a reduction of the balance of the outstanding debt and are amortized over the life of the 2019 Senior Credit Facility. The amortization of these fees is included in our interest expense.

 

As of December 31, 2019, the aggregate minimum principal maturities of our long term debt were as follows (in millions):

 

   

Minimum Principal Maturities

  
   

2019 Senior

    

2024

    

2026

    

2027

          

Year

  

Credit Facility

    

Notes

    

Notes

    

Notes

    

Total

 

2020

   $ -     $ -     $ -     $ -     $ -  

2021

     -       -       -       -       -  

2022

     -       -       -       -       -  

2023

     -       -       -       -       -  

2024

     595       525       -       -       1,120  

Thereafter

     1,190       -       700       750       2,640  

Total

   $ 1,785     $ 525     $ 700     $ 750     $ 3,760  

 

Collateral, Covenants and Restrictions. Our obligations under the 2019 Senior Credit Facility are secured by substantially all of our consolidated assets, excluding real estate. In addition, substantially all of our subsidiaries are joint and several guarantors of, and our ownership interests in those subsidiaries are pledged to collateralize, our obligations under the 2019 Senior Credit Facility. Gray Television, Inc. is a holding company, and has no material independent assets or operations. For all applicable periods, the 2024 Notes, 2026 Notes and 2027 Notes have been fully and unconditionally guaranteed, on a joint and several, senior unsecured basis, by substantially all of Gray Television, Inc.’s subsidiaries. Any subsidiaries of Gray Television, Inc. that do not guarantee the 2024 Notes, 2026 Notes and 2027 Notes are minor. As of December 31, 2019, there were no significant restrictions on the ability of Gray Television, Inc.'s subsidiaries to distribute cash to Gray or to the guarantor subsidiaries.

 

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The 2019 Senior Credit Facility contains affirmative and restrictive covenants with which we must comply, including: (a) limitations on additional indebtedness, (b) limitations on liens, (c) limitations on the sale of assets, (d) limitations on guarantees, (e) limitations on investments and acquisitions, (f) limitations on the payment of dividends and share repurchases, (g) limitations on mergers and (h) maintenance of the First Lien Leverage Ratio while any amount is outstanding under the revolving credit facility, as well as other customary covenants for credit facilities of this type. The 2024 Notes, 2026 Notes and 2027 Notes include covenants with which we must comply which are typical for borrowing transactions of their nature. As of December 31, 2019 and 2018, we were in compliance with all required covenants under all our debt obligations.

 

Interest Payments. For all of our interest-bearing obligations, we made interest payments of approximately $212 million, $95 million and $97 million during 2019, 2018 and 2017, respectively. We did not capitalize any interest payments during the years ended December 31, 2019, 2018 or 2017.

 

 

5.

Fair Value Measurement

 

For purposes of determining a fair value measurement, we utilize market data or assumptions that market participants would use in pricing an asset or liability, including assumptions about risk and the risks inherent in the inputs to the valuation technique. These inputs can be readily observable, market corroborated or generally unobservable. We utilize valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs. These inputs are prioritized into a hierarchy that gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (“Level 1”) and the lowest priority to unobservable inputs that require assumptions to measure fair value (“Level 3”). Level 2 inputs are those that are other than quoted prices on national exchanges included within Level 1 that are observable for the asset or liability either directly or indirectly (“Level 2”).

 

Fair Value of Financial Instruments. The estimated fair value of financial instruments is determined using market information and appropriate valuation methodologies. Interpreting market data to develop fair value estimates involves considerable judgment. The use of different market assumptions or methodologies could have a material effect on the estimated fair value amounts. Accordingly, the estimates presented are not necessarily indicative of the amounts that we could realize in a current market exchange, or the value that ultimately will be realized upon maturity or disposition.

 

The carrying amounts of the following instruments approximate fair value due to their short term to maturity: (i) accounts receivable, (ii) prepaid and other current assets, (iii) accounts payable, (iv) accrued employee compensation and benefits, (v) accrued interest, (vi) other accrued expenses and (vii) deferred revenue.

 

As of December 31, 2019, the carrying amount of our long-term debt was $3.7 billion and the fair value was $3.9 billion. As of December 31, 2018, the carrying amount of our long-term debt was $2.5 billion and the fair value was $2.4 billion. Fair value of our long-term debt is based on observable estimates provided by third-party financial professionals and as such is classified within Level 2 of the fair value hierarchy.

 

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6.

Stockholders’ Equity

 

We are authorized to issue 245 million shares of all classes of stock, of which 25 million shares are designated Class A common stock, 200 million shares are designated common stock, and 20 million shares are designated “blank check” preferred stock for which our Board of Directors has the authority to determine the rights, powers, limitations and restrictions. The rights of our common stock and Class A common stock are identical, except that our Class A common stock has 10 votes per share and our common stock has one vote per share. Our common stock and Class A common stock are entitled to receive cash dividends if declared, on an equal per-share basis. For the years ended December 31, 2019, 2018 and 2017, we did not declare or pay any common stock or Class A common stock dividends.

 

In December 2017, we completed an underwritten public offering of 17.25 million shares of our common stock at a price to the public of $14.50 per share. The net proceeds from the offering were $239 million, after deducting underwriting discounts of $11 million and expenses of $1 million.

 

On January 2, 2019, we issued 11.5 million shares of our common stock at a price of $14.74 per share, the closing price for our common stock on the last trading day preceding the transaction, to certain former shareholders of Raycom as part of the total consideration paid for the Raycom Merger.

 

On November 5, 2019, our Board of Directors authorized the 2019 Repurchase Authorization. The 2019 Repurchase Authorization superseded all prior repurchase authorizations. The 2019 Repurchase Authorization also prohibits the Company from purchasing shares directly from the Company’s officers, directors, or the Gray Television, Inc. Capital Accumulation Plan (the “401k Plan”). During the year ended December 31, 2019, we purchased 1,659,684 shares of our common stock at an average purchase price of $19.10 per share under the 2019 Repurchase Authorization and our prior repurchase authorizations, for a total cost of approximately $32 million. As of December 31, 2019, approximately $129 million remains available to repurchase shares of our common stock and/or Class A common stock under the 2019 Repurchase Authorization.

 

On December 15, 2019, we entered into an Issuer Repurchase Plan (the “2019 IRP”), under Rules 10B-18 and 10b5-1 of the Securities Exchange Act of 1934. The purpose of the 2019 IRP is to facilitate the orderly repurchase of our common stock through the establishment of the parameters for repurchases of our shares. The number of shares and the timing of repurchases will depend on the market price of our common stock and certain other limits established in the 2019 IRP. The Company is required to fund the repurchases under the 2019 IRP from the remaining balance of the 2019 Repurchase Authorization.

 

Under our various employee benefit plans, we may, at our discretion, issue authorized and unissued shares, or previously issued shares held in treasury, of our Class A common stock or common stock. As of December 31, 2019, we had reserved 6,130,944 shares and 1,503,254 shares of our common stock and Class A common stock, respectively, for future issuance under various employee benefit plans. As of December 31, 2018, we had reserved 7,078,916 shares and 1,703,064 shares of our common stock and Class A common stock, respectively, for future issuance under various employee benefit plans.

 

 

7.

Preferred Stock

 

In connection with the Raycom Merger, on January 2, 2019, we issued 650,000 shares of our Series A Perpetual Preferred Stock, with a stated face value and liquidation value of $1,000 per share (the “Series A Preferred Stock”). Holders of shares of the Series A Preferred Stock are entitled to receive mandatory and cumulative dividends paid quarterly in cash or, at the Company’s option, paid quarterly in kind by issuance of additional shares of Series A Preferred Stock. The per-share amount of such quarterly mandatory and cumulative dividends will be calculated by multiplying the face value by 8% per annum if the dividends are to be paid in cash or 8.5% per annum if such dividends are to be paid in additional shares of Series A Preferred Stock (“PIK Election Dividends”). If the Company elects to pay any portion of accrued dividends with PIK Election Dividends, it will be prohibited from repurchasing, redeeming or paying dividends on any stock that is junior to the Series A Preferred Stock through the end of that quarter and the subsequent two quarters, subject to certain exceptions.

 

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With respect to the payment of dividends, the Series A Preferred Stock will rank senior to all classes and series of our common stock and all other equity securities designated as ranking junior to the Series A Preferred Stock, and no new issuances of common or preferred stock will rank on a parity with, nor senior to, the Series A Preferred Stock.

 

All or any portion of the outstanding Series A Preferred Stock may be redeemed at the Company’s option at any time, upon written notice to the holders of Series A Preferred Stock at least 30 and not more than 60 days prior to the date of such optional redemption. The per-share redemption price for Series A Preferred Stock will be equal to the sum of the liquidation value and the per-share amount of any unpaid dividends for the current quarterly dividend period, up to and including the date of redemption. Holders of shares of Series A Preferred Stock redeemed will be paid in cash.

 

The Series A Preferred Stock is also subject to mandatory redemption upon the occurrence of certain change of control transactions or upon the sale or other disposition of all or substantially all of our assets. The holders of Series A Preferred Stock do not have any right to exchange or convert the shares into any other securities.

 

In general, the holders of the Series A Preferred Stock do not have any voting rights except as set forth in the terms of the Series A Preferred Stock or as otherwise required by law, in which case, each share of Series A Preferred Stock will be entitled to one vote.

 

The approval of the holders of the Series A Preferred Stock, voting separately as a class, is required in order to authorize, create or issue new shares of Series A Perpetual Preferred stock (other than to pay dividends), or alter the rights of any other shares that are or would be equal to or senior to the Series A Preferred Stock, or to amend, alter or repeal the Company’s Restated Articles of Incorporation as amended from time to time if such amendment, alteration or repeal adversely affects the powers, preferences or special rights of the Series A Preferred Stock.

 

The Series A Preferred Stock does not have preemptive rights as to any of our other securities, or any warrants, rights, or options to acquire any of our securities.

 

In the event that the Company voluntarily or involuntarily liquidates, dissolves or winds up its affairs, holders of Series A Preferred Stock will be entitled to receive for each share of Series A Preferred Stock, out of the Company’s assets or proceeds thereof available for distribution to shareholders, subject to the rights of any creditors, payment in full in an amount equal to the liquidation value and the per-share amount of any unpaid dividends for the current quarterly dividend period. Holders of Series A Preferred Stock would be entitled to receive this amount before any distribution of assets or proceeds to holders of our common stock and any other stock whose rights are junior to the Series A Preferred Stock. If in any distribution described above, our assets are not sufficient to pay in full the amounts payable with respect to the outstanding shares of Series A Preferred Stock or any stock whose rights are equal to the Series A Preferred Stock, holders of the Series A Preferred Stock would share ratably in any such distribution in proportion to the full respective distributions to which they are entitled. Shareholders are not subject to further assessments on their shares of the New Preferred Stock.

 

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8.

Stock-Based Compensation

 

We recognize compensation expense for stock-based payment awards made to our employees, consultants and directors. Our active stock-based compensation plans include our 2017 Equity and Incentive Compensation Plan (the “2017 EICP”); our 2007 Long-Term Incentive Plan, as amended (the “2007 Incentive Plan”); and our Directors’ Restricted Stock Plan. The following table presents our stock-based compensation expense and related income tax benefits for the years ended December 31, 2019, 2018 and 2017 (in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Stock-based compensation expense, gross

   $ 16     $ 7     $ 8  

Income tax benefit at our statutory rate associated with stock-based compensation

     (4 )     (2 )     (3 )

Stock-based compensation expense, net

   $ 12     $ 5     $ 5  

 

Currently, the 2017 EICP provides for, and, while awards were available for grant thereunder the 2007 Incentive Plan provided for, the grant of incentive stock options, nonqualified stock options, restricted stock awards, restricted stock unit awards, stock appreciation rights, and performance awards to acquire shares of our Class A common stock or common stock, or other awards based on our performance. Under the Directors’ Restricted Stock Plan, each director can be awarded up to 10,000 shares of restricted common stock or Class A common stock each calendar year. During the years ended December 31, 2019, 2018 and 2017, we did not grant any awards under the Directors’ Restricted Stock Plan. All shares of common stock and Class A common stock underlying outstanding options, restricted stock units and performance awards are counted as issued under the 2017 EICP, the 2007 Incentive Plan and the Directors’ Restricted Stock Plan for purposes of determining the number of shares available for future issuance.

 

During 2019, we granted under the 2017 EICP:

 

 

●

99,905 shares of restricted Class A common stock with a grant date fair value per share of $15.36 to an employee, of which 33,302 shares will vest on each of January 31, 2020 and 2021 and 33,301 shares will vest on January 31, 2022;

 

 

●

99,905 shares of restricted Class A common stock with a grant date fair value per share of $15.36 to an employee, subject to the achievement of certain performance measures, which will vest on January 31, 2022;

 

 

●

340,993 shares of restricted common stock with a grant date fair value per share of $14.85 to certain employees that will vest on January 2, 2021;

 

 

●

277,048 shares of restricted common stock with a grant date fair value of $16.55 to certain employees, of which 92,349 shares will vest on each of January 31, 2020 and 2021, and 92,350 shares will vest on January 31, 2022;

 

 

●

48,338 shares of restricted common stock with a grant date fair value per share of $16.55 to an employee, subject to the achievement of certain performance measures, which will vest on January 31, 2022;

 

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●

11,223 shares of restricted common stock with a grant date fair value per share of $17.83 to an employee that will vest on February 15, 2020;

 

 

●

32,680 shares of restricted common stock with a grant date fair value per share of $15.92 to an employee that will vest on September 1, 2020;

 

 

●

41,181 shares of restricted common stock with a grant date fair value per share of $22.10 to our non-employee directors that will vest on April 30, 2020; and

 

 

●

Restricted stock units representing 398,000 shares of our common stock with a grant date fair value per share of $18.21 that will vest on June 1, 2020.

 

During 2018, we granted under the 2017 EICP:

 

 

●

110,040 shares of restricted Class A common stock with a grant date fair value per share of $12.65 to an employee, of which 36,680 shares vested on February 28, 2019, and 36,680 shares will vest on each of February 28, 2020 and 2021;

 

 

●

110,040 shares of restricted Class A common stock with a grant date fair value per share of $12.65 to an employee, subject to the achievement of certain performance measures, which will vest on February 28, 2021;

 

 

●

318,196 shares of restricted common stock with a grant date fair value per share of $15.25 to certain employees; net of forfeitures, 131,106 shares vested on February 28, 2019; 69,651 shares will vest on February 28, 2020; and 69,652 shares will vest on February 28, 2021; and

 

 

●

73,640 shares of restricted common stock to our non-employee directors, all of which will vest on May 31, 2019.

 

During 2017, we granted:

 

 

●

Under the 2007 Incentive Plan, 307,943 shares of restricted common stock to certain employees, of which 102,648 shares vested on January 31, 2018; 102,648 shares vested on January 31, 2019; and 102,647 shares vested on January 31, 2020;

 

 

●

Under the 2007 Incentive Plan, 198,220 shares of restricted Class A common stock to an employee, of which 66,073 shares vested on January 31, 2018; 66,073 shares vested on of January 31, 2019; and 66,074 shares vested on January 31, 2020;

 

 

●

Under the 2017 EICP, 76,856 shares of restricted Class A common stock to our non-employee directors, all of which vested on January 31, 2018; and

 

 

●

Under the 2017 EICP, restricted stock units representing 215,500 shares of our common stock, of which 209,500 shares vested on January 31, 2018.

 

As of December 31, 2019, we had 3.7 million shares of our common stock and 1.5 million shares of our Class A common stock available for issuance under the 2017 EICP.

 

89
 

 

As of December 31, 2019 and 2018, we had outstanding options to acquire 274,746 shares of our common stock, all of which were vested and exercisable under the 2007 Incentive Plan. All outstanding options were granted with exercise prices equal to the market value of the underlying stock at the close of business on the date of the grant. The exercise price of all our outstanding stock options is $1.99 per share. All of our outstanding options expire on April 1, 2021. The aggregate intrinsic value of outstanding stock options was approximately $5 million based on the closing market price of our common stock on December 31, 2019. There are no shares available for future awards under this plan.

 

As of December 31, 2019, under the Directors Restricted Stock Plan there were 770,000 shares available for future award.

 

As of December 31, 2019, we had $11 million of total unrecognized compensation expense related to all non-vested share based compensation arrangements. This expense is expected to be recognized over a period of 1.6 years.

 

A summary of activity for the years ended December 31, 2019, 2018 and 2017 under our stock based compensation plans is as follows:

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  
           

Weighted-

            

Weighted-

            

Weighted-

  
           

Average

            

Average

            

Average

  
   

Number

    

Grant Date

    

Number

    

Grant Date

    

Number

    

Grant Date

  
   

of

    

Fair Value

    

of

    

Fair Value

    

of

    

Fair Value

  
   

Shares

    

Per Share

    

Shares

    

Per Share

    

Shares

    

Per Share

  
                                                 

Restricted stock - common:

                                                

Outstanding - beginning of period

     578,894     $ 13.14       503,685     $ 11.14       396,033     $ 12.06  

Granted

     751,463       16.07       391,836       14.63       307,943       10.40  

Vested

     (352,810 )     12.98       (225,570 )     11.21       (200,291 )     11.82  

Forfeited

     -       -       (91,057 )     13.27       -       -  

Outstanding - end of period

     977,547     $ 15.45       578,894     $ 13.14       503,685     $ 11.14  
                                                 

Restricted stock - Class A common:

                                                

Outstanding - beginning of period

     407,786     $ 11.82       462,632     $ 10.63       415,082     $ 10.15  

Granted

     199,810       15.36       220,080       12.65       275,076       10.84  

Vested

     (158,312 )     11.38       (274,926 )     10.48       (227,526 )     10.00  

Outstanding - end of period

     449,284     $ 13.55       407,786     $ 11.82       462,632     $ 10.63  
                                                 

Restricted stock units - common:

                                                

Outstanding - beginning of period

     -     $ -       209,500     $ 15.70       -     $ -  

Granted

     398,000       18.21       -       -       215,500       15.70  

Vested

     -       -       (209,500 )     15.70       -       -  

Forfeited

     -       -       -       -       (6,000 )     15.70  

Outstanding - end of period

     398,000     $ 18.21       -     $ -       209,500     $ 15.70  

 

90
 

 
 

9.

Leases

 

Operating Leases. We lease various assets with non-cancellable lease terms that range between one and 99 years. Many of these leases have optional renewal periods ranging between one and 20 years. We define the lease term as the original lease base period plus optional renewal periods that we reasonably expect to be exercised. We do not include renewal periods exercisable more than 10 years from the commencement date in the lease term as we cannot reasonably expect to exercise an option that far into the future. Some of our leases have free rent periods, tenant allowances and/or fixed or variable rent escalators. We record operating lease expense on a straight-line basis over the lease term. Operating lease expense is included in operating expenses in our statements of operations.

 

We lease land, buildings, transmission towers, right of way easements, and equipment through operating leases. We generally lease land for the purpose of erecting transmission towers for our broadcast operations. Our building leases consist of office space and broadcast studios. For transmission towers we do not own, we lease space for our transmission equipment on third-party towers. We lease right of ways for various purposes, including ingress and egress for tower locations and guyed wire space. Our equipment leases consist of office, transmission and production equipment.

 

We allocate consideration paid in the contract to lease and non-lease components based upon the contract or associated invoice received if applicable. Lease components include base rent, fixed rate escalators and in-substance fixed payments associated with the leased asset. Non-lease components include common area maintenance and operating expenses associated with the leased asset. We have not elected the practical expedient to combine lease and non-lease components. As such, we only include the lease component in the calculation of ROU asset and lease liability. The incremental borrowing rate we use for the calculation is the rate of interest that we would have to pay to borrow on a collateralized basis over a similar term based upon our borrower risk profile.

 

Variable lease payments are not significant and are included in operating lease expense as a component of operating expense in our statement of operations. Variable lease payments are generally associated with usage-based leases and variable payment escalators such as consumer price index increases (CPI) incurred after the date of the adoption of ASC 842. Some of our land leases require us to pay a percentage of the revenue earned from leasing space on the towers we erect on the leased land. We included the payment level of CPI and percentage rent amounts at the time of the adoption of ASC 842 in the base rent for calculating the ROU asset and lease liability. CPI adjustments and percentage rent amounts that differ from the amount included in ASC 842 calculation are included in variable lease payments.

 

We recognize leases with an initial term of 12 months or less as short-term leases. Lease payments associated with short-term leases are expensed as incurred in our operating lease expense and are not included in our calculation of ROU assets or lease liabilities. Short-term leases generally consist of rentals of production or broadcast equipment for short periods of time.

 

Our operating lease costs, including variable lease costs, for the year ended December 31, 2019 were $11 million. Our short-term lease costs for the year ended December 31, 2019 were $3 million. Cash flows from operations included cash paid for operating leases of $14 million for the year ended December 31, 2019. Additional ROU assets recognized in the year ended December 31, 2019 were not material. As of December 31, 2019, the weighted average remaining term of our operating leases was 8.9 years. The weighted average discount rate used to calculate the values associated with our operating leases was 6.7%.

 

91
 

 

The maturities of operating lease liabilities as of December 31, 2019, for the succeeding five years were as follows (in millions):

 

Year ending December 31,

 

Operating Leases

  

2020

   $ 9  

2021

     9  

2022

     8  

2023

     7  

2024

     7  

Thereafter

     29  

Total lease payments

     69  

Less: Imputed interest

     (18 )

Present value of lease liabilties

   $ 51  

 

We had no material capital leases as of December 31, 2018. Our aggregate minimum lease payments under operating leases as of December 31, 2018 were as follows (in millions):

 

Year ending December 31,

 

Operating Leases

  

2019

   $ 3  

2020

     3  

2021

     3  

2022

     3  

2023

     2  

Thereafter

     12  

Total

   $ 26  

 

Our aggregate lease payments under operating leases as of December 31, 2018 are based on ASC 840 that was superseded upon the adoption of ASC 842 on January 1, 2019. Our maturities of operating lease liabilities as of December 31, 2019 was significantly higher than our aggregate lease payments under operating leases as of December 31, 2018 due primarily to our completion of the Raycom Merger on January 2, 2019.

 

Financing Leases. We lease certain vehicles through a financing master lease. The weighted average remaining lease term of the vehicles under this lease is 2.0 years. The interest rate for each vehicle leased is 3.5%. We recorded a ROU asset and lease liability of $2 million, respectively, upon the adoption of ASC 842 related to these financing leases. The ROU asset is recorded in other noncurrent assets in our balance sheets. The current portion of the lease liability is recorded in the balance of other accrued expenses in current liabilities and the long-term portion is recorded in the balance of other liabilities in non-current liabilities in our balance sheets.

 

Amortization expense associated with this lease is included in amortization expense as a component of operating expense, and interest expense is included in interest expense in our statement of operations. Amortization and interest expenses were not material for the year ended December 31, 2019. Cash paid for financing leases is included in our cash flows from financing activities and cash paid for interest on financing leases is included in our cash flow from operating activities.

 

92
 

 

For the year ended December 31, 2019, cash paid for amounts included in the measurement of liabilities for operating cash flows from finance leases and financing cash flows from finance leases, as well as ROU assets obtained in exchange for lease liabilities was not material.

 

 

10.

Income Taxes

 

We recognize deferred tax assets and liabilities for future tax consequences attributable to differences between our financial statement carrying amounts of existing assets and liabilities and their respective tax bases. We measure deferred tax assets and liabilities using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to reverse. We recognize the effect on deferred tax assets and liabilities resulting from a change in tax rates in income in the period that includes the date of the change.

 

Under certain circumstances, we recognize liabilities in our financial statements for positions taken on uncertain tax issues. When tax returns are filed, it is highly certain that some positions taken would be sustained upon examination by the taxing authorities, while others may be subject to uncertainty about the merits of the position taken or the amount of the position that would be ultimately sustained. The benefit of a tax position is recognized in the financial statements in the period during which, based on all available evidence, we believe it is more likely than not that the position will be sustained upon examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated with other positions. Tax positions that meet the more-likely-than-not recognition threshold are measured as the largest amount of tax benefit that is more than 50% likely of being realized upon settlement with the applicable taxing authority. The portion of the benefits associated with tax positions taken that exceeds the amount measured as described above is reflected as a liability for unrecognized tax benefits on the balance sheets along with any associated interest and penalties that would be payable to the taxing authorities upon examination. Interest and penalties associated with unrecognized tax benefits are classified as income tax expense in the statement of operations.

 

Federal and state and local income tax expense (benefit) is summarized as follows (in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Current:

                        

Federal

   $ 8     $ 43     $ 5  

State and local

     13       11       3  

State and local - reserve for uncertain tax positions

     -       -       1  

Current income tax expense

     21       54       9  

Deferred:

                        

Federal(1)

    54       17       (82 )

State and local

     1       6       4  

Deferred income tax expense (benefit)

     55       23       (78 )

Total income tax expense (benefit)

   $ 76     $ 77     $ (69 )

 

 

(1)

Includes a federal tax benefit of $146.0 million in 2017 from the restatement of deferred taxes resulting from the reduction of the corporate tax rate due to the enactment of the TCJA.

 

93
 

 

Significant components of our deferred tax liabilities and assets are as follows (in millions):

 

   

December 31,

  
   

2019

    

2018

  

Deferred tax liabilities:

                

Net book value of property and equipment

   $ 83     $ 21  

Broadcast licenses, goodwill and other intangibles

     869       286  

Total deferred tax liabilities

     952       307  
                 

Deferred tax assets:

                

Liability for accrued vacation

     3       2  

Liability for accrued bonus

     7       4  

Allowance for doubtful accounts

     3       1  

Liability under health and welfare plan

     -       1  

Liability for pension plan

     10       8  

Federal operating loss carryforwards

     87       -  

State and local operating loss carryforwards

     31       2  

Acquisition costs

     2       2  

Restricted stock

     4       2  

Investments

     4       -  

Interest expense limitation

     4       -  

Other

     1       -  

Total deferred tax assets

     156       22  

Valuation allowance for deferred tax assets

     (14 )     -  

Net deferred tax assets

     142       22  
                 

Deferred tax liabilities, net of deferred tax assets

   $ 810     $ 285  

 

As of December 31, 2019, we have approximately $438 million of federal operating loss carryforwards, which expire during the years 2023 through 2037. We expect to have federal taxable income in the carryforward periods, therefore we believe that it is more likely than not that these federal operating loss carryforwards will be fully utilized. Additionally, we have an aggregate of approximately $677 million of various state operating loss carryforwards, of which we expect that approximately half will be utilized.

 

94
 

 

A reconciliation of income tax expense at the statutory federal income tax rate and income taxes as reflected in the consolidated financial statements for the years ended December 31, 2019, 2018 and 2017 is as follows (in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Statutory federal rate applied to income before income tax expense

   $ 53     $ 60     $ 68  

Current year permanent items

     13       3       2  

State and local taxes, net of federal tax benefit

     13       14       8  

Change in valuation allowance

     (2 )     -       (2 )

Reserve for uncertain tax positions

     -       -       1  

Rate change due to enactment of tax reform

     -       -       (146 )

Other items, net

     (1 )     -       -  

Income tax expense (benefit) as recorded

   $ 76     $ 77     $ (69 )
                         

Effective income tax rate

     30 %     27 %     (36 )%

 

As of each year end, we are required to adjust our pension liability to an amount equal to the funded status of our pension plans with a corresponding adjustment to other comprehensive income on a net of tax basis. During 2019, we increased our recorded non-current pension liability by $7 million and recognized other comprehensive income of $5 million, net of a $2 million tax expense. During 2018, we decreased our recorded non-current pension liability by $1 million and recognized other comprehensive income of $1 million. During 2017, we increased our recorded non-current pension liability by $7 million and recognized other comprehensive loss of $4 million, net of a $3 million tax benefit.

 

In 2019, 2018 and 2017, we made income tax payments (net of refunds) of $23 million, $34 million and $2 million, respectively.

 

We prescribe a recognition threshold and measurement attribution for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. For benefits to be recognized, a tax position must be more likely than not to be sustained upon examination by taxing authorities.

 

As of December 31, 2019, we had approximately $15 million of unrecognized tax benefits. These unrecognized tax benefits would impact our effective tax rate if recognized. The liability for unrecognized tax benefits is recorded net of any federal tax benefit that would result from payment. We have accrued estimates of interest and penalties related to unrecognized tax benefits in income tax expense. As of December 31, 2019, we had recorded a liability for potential penalties and interest of approximately $1 million related to uncertain tax positions. While it is difficult to calculate with any certainty, we estimate no change, exclusive of interest and penalties, will be recorded for uncertain tax positions over the next twelve months.

 

We file income tax returns in the United States federal and multiple state jurisdictions. We have net operating losses (historic and acquired, through recent business combinations) that extend our open adjustment period related to federal and state tax audits from 2000 through 2018. The open years vary by entity and jurisdiction.

 

95
 

 
 

11.

Retirement Plans

 

We sponsor and contribute to defined benefit and defined contribution retirement plans. Our defined benefit pension plan is the Gray Television, Inc. Retirement Plan (the “Gray Pension Plan”). Monthly plan benefits under the Gray Pension Plan are frozen and can no longer increase, and no new participants can be added to the Gray Pension Plan.

 

The Gray Pension Plan’s funding policy is consistent with the funding requirements of existing federal laws and regulations under the Employee Retirement Income Security Act of 1974. The measurement dates used to determine the benefit information for the Gray Pension Plan were December 31, 2019 and 2018, respectively. The following summarizes the Gray Pension Plan’s funded status and amounts recognized on our consolidated balance sheets at December 31, 2019 and 2018, respectively (dollars in millions):

 

   

December 31,

  
   

2019

    

2018

  

Change in projected benefit obligation:

                

Projected benefit obligation at beginning of year

   $ 117     $ 126  

Interest cost

     5       5  

Actuarial loss (gain)

     17       (11 )

Benefits paid

     (4 )     (3 )

Projected benefit obligation at end of year

   $ 135     $ 117  
                 

Change in plan assets:

                

Fair value of pension plan assets at beginning of year

   $ 84     $ 88  

Actual return on plan assets

     14       (4 )

Company contributions

     3       3  

Benefits paid

     (4 )     (3 )

Fair value of pension plan assets at end of year

     97       84  

Funded status of pension plan

   $ (38 )   $ (33 )
                 

Amounts recognized on our balance sheets consist of:

                

Accrued benefit cost

   $ 5     $ 2  

Accumulated other comprehensive loss

     (43 )     (35 )

Net liability recognized

   $ (38 )   $ (33 )

 

96
 

 

Because the Gray Pension Plan is a frozen plan, the projected benefit obligation and the accumulated benefit obligation are the same. The accumulated benefit obligation was $135 million and $117 million at December 31, 2019 and 2018, respectively. The long-term rate of return on assets assumption was chosen from a best estimate range based upon the anticipated long-term returns for asset categories in which the Gray Pension Plan is invested. An estimate of the rate of increase in compensation levels used to calculate the net periodic benefit cost is not required because of the Plan’s frozen status:

 

   

Year Ended December 31,

    
   

2019

    

2018

  

Weighted-average assumptions used to determine net periodic benefit cost for the Gray Pension Plan:

                    

Discount rate

     4.16 %       3.55 %  

Expected long-term rate of return on pension plan assets

     6.50 %       7.00 %  

Estimated rate of increase in compensation levels

     N/A         N/A    

 

   

As of December 31,

    
   

2019

    

2018

  

Weighted-average assumptions used to determine benefit obligations:

                    

Discount rate

     3.14 %       4.16 %  

 

Pension expense is computed using the projected unit credit actuarial cost method. The net periodic pension cost for the Gray Pension Plan includes the following components (in millions):

 

   

Year Ended December 31,

  
   

2019

    

2018

    

2017

  

Components of net periodic pension cost:

                        

Interest cost

     5       5       5  

Expected return on plan assets

     (5 )     (6 )     (6 )

Recognized net actuarial loss

     -       -       1  

Net periodic pension benefit

   $ -     $ (1 )   $ -  

 

For the Gray Pension Plan, the estimated future benefit payments are as follows (in thousands):

 

Years

    

Amount

  
  2020         4  
  2021         4  
  2022         4  
  2023         5  
  2024         5  

2025

 - 2029       30  

 

97
 

 

The Gray Pension Plan’s weighted-average asset allocations by asset category were as follows

 

   

As of December 31,

  
   

2019

    

2018

  

Asset category:

            

Insurance general account

   17%     19%  

Cash management accounts

   2%     1%  

Equity accounts

   47%     47%  

Fixed income accounts

   32%     31%  

Real estate accounts

   2%     2%  

Total

   100%     100%  

 

The investment objective is to achieve a consistent total rate of return (income, appreciation, and reinvested funds) that will equal or exceed the actuarial assumption with aversion to significant volatility. The following is the target asset allocation:

 

   

Target Range

  

 

  

Strategic Allocation

    

Lower Limit

    

Upper Limit

  
Asset class:                  

Equities:

                  

Large cap value

   5%     0%     50%  

Large cap blend

   5%     0%     50%  

Large cap growth

   5%     0%     50%  

Mid cap blend

   15%     0%     40%  

Small cap core

   5%     0%     25%  

Foreign large blend

   10%     0%     40%  

Emerging markets

   10%     0%     25%  

Real estate

   5%     0%     20%  

Fixed Income:

                  

U.S. Treasury inflation protected

   5%     0%     25%  

Intermediate term bond

   10%     0%     50%  

Long term government bond

   5%     0%     40%  

High yield bond

   10%     0%     25%  

Emerging markets bond

   10%     0%     20%  

Money market taxable

   0%     0%     100%  

 

Our equity portfolio contains securities of companies necessary to build a diversified portfolio, and that we believe are financially sound. Our fixed income portfolio contains obligations generally rated A or better with no maturity restrictions and an actively managed duration. The cash equivalents strategy uses securities of the highest credit quality.

 

Fair Value of Gray Pension Plan Assets. We calculate the fair value of the Gray Pension Plan’s assets based upon the observable and unobservable net asset value of its underlying investments. We utilize valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs. These inputs are prioritized by the fair value hierarchy proscribed by ASU Topic 820, described in Note 5 “Fair Value Measurement.”

 

98
 

 

The following table presents the fair value of the Gray Pension Plan’s assets and classifies them by level within the fair value hierarchy as of December 31, 2019 and 2018, respectively (in millions):

 

Gray Pension Plan Fair Value Measurements

 

   

As of December 31, 2019

  
   

Level 1

    

Level 2

    

Level 3

    

Total

  

Assets:

                                

Insurance general account

   $ -     $ 16     $ -     $ 16  

Cash management accounts

     2       -       -       2  

Equity accounts

     46       -       -       46  

Fixed income accounts

     31       -       -       31  

Real estate accounts

     2       -       -       2  

Total

   $ 81     $ 16     $ -     $ 97  

 

   

As of December 31, 2018

  
   

Level 1

    

Level 2

    

Level 3

    

Total

  

Assets:

                                

Insurance general account

   $ -     $ 17     $ -     $ 17  

Cash management accounts

     1       -       -       1  

Equity accounts

     39       -       -       39  

Fixed income account

     26       -       -       26  

Real estate accounts

     1       -       -       1  

Total

   $ 67     $ 17     $ -     $ 84  

 

Expected Pension Contributions. We expect to contribute a combined total of approximately $3 million to our frozen defined benefit pension plan during the year ending December 31, 2020.

 

Capital Accumulation Plan. The Gray Television, Inc. Capital Accumulation Plan (the “Capital Accumulation Plan”) is a defined contribution plan intended to meet the requirements of Section 401(k) of the Internal Revenue Code. In 2019, employer contributions under the Capital Accumulation Plan include matching cash contributions at a rate of 100% of the first 1% of each employee’s salary deferral, and 50% of the next 5% of each employee’s salary deferral. For the years ended December 31, 2019, 2018 and 2017, our matching contributions to our Capital Accumulation Plan were approximately $11 million, $6 million and $7 million, respectively. We estimate that our matching cash contributions to the Capital Accumulation Plan for year ending December 31, 2020 will be approximately $12 million.

 

In addition, the Company, at its discretion, may make an additional profit-sharing contribution, based on annual Company performance, to those employees who meet certain criteria. For the years ended December 31, 2019, 2018 and 2017, the Company accrued contributions of approximately $5 million, $4 million and $4 million, respectively, as discretionary profit sharing contributions.

 

We may also make matching and discretionary contributions of our common stock under the Capital Accumulation Plan. As of December 31, 2019, we had 1,391,210 shares of common stock reserved for issuance under this plan.

 

99
 

 
 

12.

Commitments and Contingencies

 

From time to time we may have various contractual and other commitments requiring future payments. These commitments may include amounts required to be paid for: the acquisition of television stations; the purchase of property and equipment; service and other agreements; operating lease commitments for equipment, land and office space; commitments for various syndicated television programs; and commitments under affiliation agreements with networks. Future minimum payments for these commitments, in addition to the liabilities accrued for on our consolidated balance sheets as of December 31, 2019, were as follows (in millions):

 

   

Service and

    

Syndicated

    

Network

          
   

Other

    

Television

    

Affiliation

          

Year

  

Agreements

    

Programming

    

Agreements

    

Total

  

2020

   $ 2     $ 10     $ 366     $ 378  

2021

     1       29       431       461  

2022

     -       26       224       250  

2023

     -       18       126       144  

2024

     -       1       -       1  

Thereafter

     -       -       -       -  

Total

   $ 3     $ 84     $ 1,147     $ 1,234  

 

Legal Proceedings and Claims. We are and expect to continue to be subject to legal actions, proceedings and claims that arise in the normal course of our business. In the opinion of management, the amount of ultimate liability, if any, with respect to these known actions, proceedings and claims will not materially affect our financial position, results of operations or cash flows, although legal proceedings are subject to inherent uncertainties, and unfavorable rulings or events could occur that could negatively affect us, possibly materially.

  

100
 

 
 

13.

Goodwill and Intangible Assets

 

During the years ended December 31, 2019 and 2018, we acquired, adjusted and disposed of various television broadcast stations and broadcast licenses. As a result of these transactions, our goodwill and intangible balances changed during each of these years. See Note 3 “Acquisitions and Divestitures” for more information regarding these transactions. A summary of changes in our goodwill and other intangible assets, on a net basis, for the years ended December 31, 2019 and 2018 is as follows (in millions):

 

   

Net Balance at

    

Acquisitions

                    

Net Balance at

  
   

December 31,

    

And

                    

December 31,

  
   

2018

    

Adjustments

    

Impairment

    

Amortization

    

2019

  

Goodwill

   $ 612     $ 834     $ -     $ -     $ 1,446  

Broadcast licenses

     1,530     $ 2,043       -       -       3,573  

Finite-lived intangible assets

     53       522       -       (115 )     460  

Total intangible assets net of accumulated amortization

   $ 2,195     $ 3,399     $ -     $ (115 )   $ 5,479  

 

   

Net Balance at

    

Acquisitions

                    

Net Balance at

  
   

December 31,

    

And

                    

December 31,

  
   

2017

    

Adjustments

    

Impairment

    

Amortization

    

2018

  

Goodwill

   $ 611     $ 1     $ -     $ -     $ 612  

Broadcast licenses

     1,531     $ (1 )     -       -       1,530  

Finite-lived intangible assets

     74       -       -       (21 )     53  

Total intangible assets net of accumulated amortization

   $ 2,216     $ -     $ -     $ (21 )   $ 2,195  

 

A summary of changes in our goodwill, on a gross basis, for the years ended December 31, 2019 and 2018 is as follows (in millions):

 

           

Acquisitions

                  
   

As of

    

And

            

As of

  
   

December 31, 2018

    

Adjustments

    

Impairment

    

December 31, 2019

  

Goodwill, gross

   $ 711     $ 834     $ -     $ 1,545  

Accumulated goodwill impairment

     (99 )     -       -       (99 )

Goodwill, net

   $ 612     $ 834     $ -     $ 1,446  

 

           

Acquisitions

                  
   

As of

    

And

            

As of

  
   

December 31, 2017

    

Adjustments

    

Impairment

    

December 31, 2018

  

Goodwill, gross

   $ 710     $ 1     $ -     $ 711  

Accumulated goodwill impairment

     (99 )     -       -       (99 )

Goodwill, net

   $ 611     $ 1     $ -     $ 612  

 

101
 

 

As of December 31, 2019 and 2018, our intangible assets and related accumulated amortization consisted of the following (in millions):

 

   

As of December 31, 2019

    

As of December 31, 2018

  
           

Accumulated

                    

Accumulated

          
   

Gross

   

Amortization

    

Net

   

Gross

   

Amortization

    

Net

 

Intangible assets not currently subject to amortization:

                                                

Broadcast licenses

   $ 3,627     $ (54 )   $ 3,573     $ 1,583     $ (53 )   $ 1,530  

Goodwill

     1,446       -       1,446       612       -       612  
    $ 5,073     $ (54 )   $ 5,019     $ 2,195     $ (53 )   $ 2,142  
                                                 

Intangible assets subject to amortization:

                                                

Network affiliation agreements

   $ 56     $ (17 )   $ 39     $ 6     $ (6 )   $ -  

Other finite-lived intangible assets

     615       (194 )     421       143       (90 )     53  
    $ 671     $ (211 )   $ 460     $ 149     $ (96 )   $ 53  
                                                 

Total intangibles

   $ 5,744     $ (265 )   $ 5,479     $ 2,344     $ (149 )   $ 2,195  

 

Amortization expense for the years ended December 31, 2019, 2018 and 2017 was approximately $115 million, $21 million and $25 million, respectively. Based on our intangible assets subject to amortization as of December 31, 2019, we expect that amortization expense for the succeeding five years will be as follows: 2020, $103 million; 2021, $98 million; 2022, $94 million; 2023, $88 million; and 2024, $24 million. If and when acquisitions and dispositions occur in the future, actual amounts may vary from these estimates.

 

Impairment of goodwill and broadcast license. As of December 31, 2019 and 2018, we tested our goodwill, broadcast licenses and other intangible asset recorded values for potential impairment and concluded that the balances were reasonably stated. As a result, we did not record an impairment expense for our goodwill, broadcast licenses or other intangible assets during 2019, 2018 or 2017.

 

Completion of FCC Spectrum Auction. On August 7, 2017, we received approximately $91 million resulting from our relinquishment of two licenses in the FCC’s Spectrum Auction. In connection with this transaction we tendered two of our broadcast licenses and made other modifications to our broadcast spectrum related to our participation in the FCC Spectrum Auction. The cost of the assets disposed of was approximately $13 million. The income tax obligations related to this gain have been deferred on a long-term basis.

 

See Note 1 “Description of Business and Summary of Significant Accounting Policies” for further discussion of our accounting policies regarding goodwill, broadcast licenses and other intangible assets.

 

102
 

 

 

14.

Segment Information

 

The Company operates in two business segments: broadcasting and production companies. The broadcasting segment operates television stations located across 93 local markets in the United States. The production companies segment includes the production of television and event content. Costs identified as other are primarily corporate and administrative expenses. The following tables present certain financial information concerning the Company’s operating segments (in millions):

 

           

Production

                  

As of and for the Year ended December 31, 2019:

  

Broadcast

    

Companies

    

Other

    

Consolidated

  
                                 

Revenue (less agency commissions)

   $ 2,035     $ 87     $ -     $ 2,122  

Operating expenses before depreciation, amortization and (gain) loss on disposal of assets, net:

     1,325       74       104       1,503  

Depreciation and amortization

     180       13       2       195  

(Gain) loss on disposal of assets, net

     (54 )     -       -       (54 )

Operating expenses

     1,451       87       106       1,644  

Operating income

   $ 584     $ -     $ (106 )   $ 478  
                                 

Interest expense

   $ -     $ -     $ 227     $ 227  

Capital expenditures (excluding business combinations)

   $ 104     $ 1     $ 5     $ 110  

Goodwill

   $ 1,405     $ 41     $ -     $ 1,446  

Total Assets

   $ 6,530     $ 153     $ 289     $ 6,972  
                                 

As of and for the Year ended December 31, 2018:

                                
                                 

Revenue (less agency commissions)

   $ 1,084     $ -     $ -     $ 1,084  

Operating expenses before depreciation, amortization and (gain) loss on disposal of assets, net:

     596       -       41       637  

Depreciation and amortization

     74       -       1       75  

(Gain) loss on disposal of assets, net

     (17 )     -       -       (17 )

Operating expenses

     653       -       42       695  

Operating income

   $ 431     $ -     $ (42 )   $ 389  
                                 

Interest expense

   $ -     $ -     $ 107     $ 107  

Capital expenditures (excluding business combinations)

   $ 68     $ -     $ 2     $ 70  

Goodwill

   $ 612     $ -     $ -     $ 612  

Total Assets

   $ 2,763     $ -     $ 1,450     $ 4,213  

 

103
 

 
 

15.

Selected Quarterly Financial Data (Unaudited)

 

   

Fiscal Quarter

  
   

First

    

Second

    

Third

    

Fourth

  
   

(In millions, except for per share data)

  

Year Ended December 31, 2019:

                                

Revenue (less agency commissions)

   $ 518     $ 508     $ 517     $ 579  

Operating income

     40       119       139       180  

Net (loss) income available to common stockholders

     (31 )     31       46       81  
                                 

Basic net (loss) income available to common stockholders per share

   $ (0.31 )   $ 0.31     $ 0.46     $ 0.82  

Diluted net (loss) income available to common stockholders per share

   $ (0.31 )   $ 0.31     $ 0.46     $ 0.81  
                                 

Year Ended December 31, 2018:

                                

Revenue (less agency commissions)

   $ 226     $ 250     $ 279     $ 329  

Operating income

     50       80       108       151  

Net income

     20       41       62       88  
                                 

Basic net income per share

   $ 0.22     $ 0.46     $ 0.71     $ 1.01  

Diluted net income per share

   $ 0.22     $ 0.46     $ 0.70     $ 1.00  

 

Because of the method used in calculating per share data, the sum of the quarterly per share data will not necessarily equal the per share data as computed for the year.
 

 

Item9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

 

None.

 

Item 9A. Controls and Procedures.

 

Evaluation of Disclosure Controls and Procedures

 

As of the end of the period covered by this Annual Report on Form 10-K, an evaluation was carried out under the supervision and with the participation of management, including the Chief Executive Officer (“CEO”) and the Chief Financial Officer (“CFO”), of the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act). Based on that evaluation, the CEO and the CFO have concluded that as of the end of such period our disclosure controls and procedures were effective to ensure that information required to be disclosed in reports that we file or furnish under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and to ensure that such information is accumulated and communicated to our management, including the CEO and CFO, as appropriate, to allow timely decisions regarding required disclosures.

 

104
 

 

Management necessarily applies its judgment in assessing the costs and benefits of such controls and procedures, which, by their nature, can provide only reasonable assurance regarding management’s control objectives. The Company’s management, including the CEO and the CFO, does not expect that our disclosure controls and procedures can prevent all possible errors or fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, within the company have been detected. Judgments in decision-making can be faulty and breakdowns can occur because of simple errors or mistakes. Additionally, controls can be circumvented by the individual acts of one or more persons. The design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and while our disclosure controls and procedures are designed to be effective under circumstances where they should reasonably be expected to operate effectively, there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Because of the inherent limitations in any control system, misstatements due to possible errors or fraud may occur and not be detected.

 

During the year ended December 31, 2019, we implemented changes in our internal control over financial reporting in connection with the adoption of ASU 2016-02 – Leases (Topic 842). These changes included controls related to the collection of data for the amounts that we disclose in the footnotes to our financial statements. Our evaluation included controls that may have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

During the year ended December 31, 2019, we began implementing changes in our internal control over financial reporting in connection with the Raycom Merger.

 

Changes in Internal Control Over Financial Reporting

 

There were no changes in our internal control over financial reporting (as such term is defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act) during the quarter ended December 31, 2019 identified in connection with this evaluation that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Report on Internal Control Over Financial Reporting

 

Our report, “Management’s Report on Internal Control Over Financial Reporting” and the attestation report of our independent registered public accounting firm, included in “Report of Independent Registered Public Accounting Firm,” are set forth in Item 8 of this Annual Report on Form 10-K.

 

Item 9B. Other Information.

 

None.

 

PART III

 

Item10. Directors, Executive Officers and Corporate Governance.

 

The information to be set forth under the headings “Election of Directors,” “Corporate Governance - Board Committees and Membership,” and “Section 16(a) Beneficial Ownership Reporting Compliance” in our definitive Proxy Statement for the 2020 Annual Meeting of Stockholders (to be filed within 120 days after December 31, 2019) is incorporated herein by reference. In addition, the information set forth under "Information about our Executive Officers" in Part I of this Report is incorporated herein by reference.

 

105
 

 

Item 11. Executive Compensation.

 

The information to be set forth under the headings “Executive Compensation,” “Report of Compensation Committee” and “Compensation Committee Interlocks and Insider Participation” in our definitive Proxy Statement for the 2020 Annual Meeting of Stockholders is incorporated herein by reference.

 

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

 

The information to be set forth under the heading “Stock Ownership” in our definitive Proxy Statement for the 2020 Annual Meeting of Stockholders is incorporated herein by reference.

 

Equity Compensation Plan Information

 

The following table gives information about the common stock and Class A common stock that may be issued upon the exercise of options, warrants and rights under all existing equity compensation plans as of December 31, 2019:

 

Equity Compensation Plan Information

 

                     

Number of securities remaining
   

Number of securities to

    

Weighted-average

    

available for future issuance
   

be issued upon exercise

    

exercise price of

    

under equity compensation
   

of outstanding options,

    

outstanding options,

    

plans (excluding securities

Plan Category

  

warrants and rights

    

warrants and rights

    

reflected in 1st column)
                           

Common Stock:

                          

Equity compensation plans approved by security holders

     274,746 (1)     $ 1.99       4,464,988 (2)
                           

Equity compensation plans not approved by security holders

     -       $ -       -  

Total

     274,746                 4,464,988  
                           

Class A Common Stock:

                          

Equity compensation plans approved by security holders

     -       $ -       1,503,254 (3)
                           

Equity compensation plans not approved by security holders

     -       $ -       -  

Total

     -                 1,503,254  

 

(1)

Consists of shares of common stock that are issuable under our 2007 Incentive Plan upon exercise of outstanding stock options.

(2)

Consists of 3,694,988 shares of common stock issuable under our 2017 EICP and 770,000 shares of common stock that are issuable under our Directors’ Restricted Stock Plan.

(3)

Consists of shares of our Class A common stock that are issuable under our 2017 EICP.

 

106
 

 

Item 13. Certain Relationships and Related Transactions, and Director Independence.

 

The information to be set forth under the headings “Certain Relationships and Related Party Transactions” and “Corporate Governance” in our definitive Proxy Statement for the 2020 Annual Meeting of Shareholders is incorporated herein by reference.

 

Item 14. Principal Accountant Fees and Services.

 

The information to be set forth under the heading “Ratification of the Company’s Independent Registered Public Accounting Firm for 2020” in our definitive Proxy Statement for the 2020 Annual Meeting of Shareholders concerning principal accountant fees and services is incorporated herein by reference.

 

PART IV

 

Item 15. Exhibits, Financial Statement Schedules.

 

(a)

List of Financial Statements and Financial Statement Schedules:

 

 

(1)

Financial Statements. See Part II, Item 8 for the index to financial statements.

 

 

(2)

Financial statement schedules: The following financial statement schedule of Gray Television, Inc. is included in Item 15(c): Schedule II – Valuation and qualifying accounts.

 

All other schedules for which provision is made in the applicable accounting regulation of the SEC are not required under the related instructions or are inapplicable and therefore have been omitted.

 

(b)

Exhibits:

 

 

Exhibit

Number

Description of Documents
     
 

3.1

Amended and Restated Articles of Incorporation of Gray Television, Inc. 
     
 

3.2

Bylaws of Gray Television, Inc. as amended through June 5, 2013 (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed with the SEC on June 6, 2013)
     
 

4.1

Indenture, dated as of June 14, 2016, by and among Gray Television, Inc., the guarantors signatory thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed with the SEC on June 15, 2016)

 

107
 

 

 

Exhibit

Number

 Description of Documents
     
 

4.2

First Supplemental Indenture, dated as of September 14, 2016, by and among Gray Television, Inc., the guarantors signatory thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K filed with the SEC on September 14, 2016)
     
 

4.3

Second Supplemental Indenture, dated as of January 2, 2019, by and among Gray Television, Inc., the guarantors signatory thereto and U.S. Bank National Association, as Trustee to the Indenture dated as of June 14, 2016 (incorporated by reference to Exhibit 4.3 to our Current Report on Form 8-K filed with the SEC on January 3, 2019)
     
 

4.4

Form of 5.875% Senior Note due 2026 (incorporated by reference to Exhibit A to Exhibit 4.1 to our Current Report on Form 8-K filed with the SEC on June 15, 2016)
     
 

4.5

Indenture, dated as of September 14, 2016, by and among Gray Television, Inc., the guarantors signatory thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed with the SEC on September 14, 2016)
     
 

4.6

First Supplemental Indenture, dated as of January 2, 2019, by and among Gray Television, Inc., the guarantors signatory thereto and U.S. Bank National Association, as Trustee to the Indenture dated as of September 14, 2016 (incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K filed with the SEC on January 3, 2019)
     
 

4.7

Form of 5.125% Senior Note due 2024 (incorporated by reference to Exhibit A to Exhibit 4.1 to our current report on form 8-K filed with the SEC on September 14, 2016)
     
 

4.8

Indenture, dated as of November 16, 2018, by and among Gray Escrow, Inc., Gray Television, Inc. and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit Exhibit 4.1 to our Current Report on Form 8-K filed with the SEC on November 16, 2018)
     
 

4.9

First Supplemental Indenture, dated as of January 2, 2019, by and among Gray Television, Inc., the guarantors signatory thereto and U.S. Bank National Association, as Trustee to the Indenture dated as of November 16, 2018 (incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed with the SEC on January 3, 2019)
     
 

4.10

Form of 7.000% Senior Note due 2027 (incorporated by reference to Exhibit A to Exhibit 4.1 to our Current Report on form 8-K filed with the SEC on November 16, 2018)
     
  4.11 Description of securities registered under Section 12 of the Exchange Act

 

108
 

 

 

Exhibit

Number

 Description of Documents
     
 

10.1

Second Restatement, dated as of January 2, 2019, by and among Gray Television, Inc., the guarantors party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other lenders and agents party thereto (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed with the SEC on January 3, 2019)
     
 

10.2

Fourth Amended and Restated Credit Agreement, dated as of January 2, 2019, by and among Gray Television, Inc., the guarantors party thereto, Wells Fargo Bank, National Association, as administrative agent, and the other agents and lenders party thereto (incorporated by reference to Exhibit 10.3 to our Current Report on Form 8-K filed with the SEC on January 3, 2019)
     
 

10.3

Director Restricted Stock Plan (incorporated by reference to Exhibit 10.12 to our Annual Report on Form 10-K (File No. 001-13796) for the year ended December 31, 2002)*
     
 

10.4

Form of Nonqualified Stock Option Award Agreement Pursuant to 2007 Long Term Incentive Plan (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2012)*
     
 

10.5

Form of Restricted Stock Award Agreement Pursuant to 2007 Long Term Incentive Plan (incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2012)*
     
 

10.6

2007 Long Term Incentive Plan, as amended (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2012)*
     
 

10.7

Gray Television, Inc. 2017 Equity and Incentive Compensation Plan (incorporated by reference to Exhibit 99.1 to our Registration Statement on Form S-8 filed with the SEC on May 3, 2017)*
     
 

10.8

Form of Director Restricted Stock Award Agreement pursuant to the Gray Television, Inc. 2017 Equity and Incentive Compensation Plan (incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended June 30, 2017)*
     
 

10.9

Executive and Key Employee Change in Control Severance Plan (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2017)*
     
 

10.10

Form of Employee Restricted Stock Award Agreement pursuant to the Gray Television, Inc. 2017 Equity and Incentive Compensation Plan (incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2017)*

 

109
 

 

 

Exhibit

Number

 Description of Documents
     
 

10.11

Form of Employee Restricted Stock Units Award Agreement pursuant to the Gray Television, Inc. 2017 Equity and Incentive Compensation Plan (incorporated by reference to Exhibit 10.3 to our Quarterly Report on Form 10-Q for the quarter ended September 30, 2017)*
     
 

10.12

Offer letter, dated June 22, 2018 (incorporated by reference to Exhibit 10.4 to our Current Report on Form 8-K filed with the SEC on January 3, 2019)*
     
 

21.1

Subsidiaries of the Registrant
     
 

23.1

Consent of RSM US LLP
     
 

31.1

Rule 13a-14(a) Certificate of Chief Executive Officer
     
 

31.2

Rule 13a-14(a) Certificate of Chief Financial Officer
     
 

32.1

Section 1350 Certificate of Chief Executive Officer
     
 

32.2

Section 1350 Certificate of Chief Financial Officer
     
 

101.INS

Inline XBRL Instance Document
     
 

101.SCH

Inline XBRL Taxonomy Extension Schema Document
     
 

101.CAL

Inline XBRL Taxonomy Extension Calculation Linkbase Document
     
 

101.DEF

Inline XBRL Taxonomy Extension Definition Linkbase Document
     
 

101.LAB

Inline XBRL Taxonomy Extension Label Linkbase Document
     
 

101.PRE

Inline XBRL Taxonomy Extension Presentation Linkbase Document
     
 

104

The cover page from Gray Television, Inc.’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 has been formatted in Inline XBRL.
     
 

*

Management contract or compensatory plan or arrangement.

 

(c)

Financial Statement Schedules – The response to this section is submitted as a part of Item 15 (a) (1) and (2).

 

110
 

 

 

GRAY TELEVISION, INC.

 

SCHEDULE II – VALUATION AND QUALIFYING ACCOUNTS

 

(in millions)

 

Col. A

  

Col. B

    

Col. C

    

Col. D

    

Col. E

  
           

Additions

                  
            (1)     (2)                  
   

Balance at

    

Charged to

    

Charged to

            

Balance at

  
   

Beginning

    

Costs and

    

Other

    

Deductions

    

End of

  

Description

  

of Period

    

Expenses

    

Accounts

    

(a)

    

Period

  
                                         

Year Ended December 31, 2019:

                                        

Allowance for doubtful accounts

   $ 5     $ 11     $ -     $ (5 )   $ 11  

Valuation allowance for deferred tax assets

   $ -     $ 14     $ -     $ -     $ 14  
                                         

Year Ended December 31, 2018:

                                        

Allowance for doubtful accounts

   $ 5     $ 2     $ -     $ (2 )   $ 5  

Valuation allowance for deferred tax assets

   $ -     $ -     $ -     $ -     $ -  
                                         

Year Ended December 31, 2017:

                                        

Allowance for doubtful accounts

   $ 3     $ 3     $ -     $ (1 )   $ 5  

Valuation allowance for deferred tax assets

   $ 1     $ (1 )   $ -     $ -     $ -  

 

 

(a)

Deductions from allowance for doubtful accounts represent write-offs of receivable balances not considered collectible. The deduction from the valuation allowance for deferred tax assets represents changes in estimates of our future taxable income and our estimated future usage of certain net operating loss carryforwards, as well as expiration of certain net operating loss carryforwards.
 

 

Item 16. Form 10-K Summary.

 

None

 

111
 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

   

Gray Television, Inc.
     

Date: February 27, 2020

By:

/s/ Hilton H. Howell, Jr.
   

Hilton H. Howell, Jr.,
   

Chief Executive Officer

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

 

Date: February 27, 2020

By:

/s/ Hilton H. Howell, Jr.
   

Hilton H. Howell, Jr., Executive Chairman and

Chief Executive Officer
     

Date: February 27, 2020

By

/s/ Donald P. LaPlatney
   

Donald P. LaPlatney, Director and

Co-Chief Executive Officer
     

Date: February 27, 2020

By:

/s/ Richard L. Boger
   

Richard L. Boger, Director
     

Date: February 27, 2020

By:

/s/ T. L. Elder
   

T. L. Elder, Director
     

Date: February 27, 2020

By:

/s/ Luis A. Garcia
   

Luis A. Garcia, Director
     

Date: February 27, 2020

By:

/s/ Richard B. Hare
   

Richard B. Hare, Director
     

Date: February 27, 2020

By:

/s/ Robin R. Howell
   

Robin R. Howell, Director
     

Date: February 27, 2020

By:

/s/ Paul H. McTear
   

Paul H. McTear, Director
     

Date: February 27, 2020

By:

/s/ Howell W. Newton
   

Howell W. Newton, Director
     
Date: February 27, 2020

By:

/s/ James C. Ryan

 

  

James C. Ryan, Executive Vice President and

   

Chief Financial Officer
     
Date: February 27, 2020

By:

/s/ Jackson S. Cowart, IV

 

  

Jackson S. Cowart, IV, Vice President and 

Chief Accounting Officer

 

 

  112  
ex_174267.htm

 

Exhibit 3.1 

 

RESTATED ARTICLES OF INCORPORATION
OF
GRAY TELEVISION, INC.

(As amended through January 3, 2019)

 

1.

 

The name of the Corporation is Gray Television, Inc.

 

2.

 

The object of said Corporation shall be pecuniary gain and profit.

 

3.

 

(a) The general nature of the business to be engaged in by the Corporation shall be to publish a daily and weekly newspaper, to do a general publishing and printing business, to buy and sell paper and all types of stationery, and to acquire, own, lease, rent and operate television and radio broadcasting stations and community antenna cable television systems and other forms of communication services, utilizing any and all types of transmission facilities. The Corporation shall further have the right to apply for, receive and hold all licenses that may be necessary or required from any licensing agency, federal, state, local or foreign; to do any and all things incident to the operation of such facilities, including, but not limited to, contracting for transmission of programs and entering into such other contracts as the Board of Directors of the Corporation may from time to time deem proper and expedient. Further, the Corporation shall have the right of buying, taking, exchanging, leasing and otherwise acquiring real and personal property, and any interest or right therein, including the right to hold, own, operate, control, maintain, manage, develop, construct, alter and promote both real property, personal property, securities and evidences of indebtedness, including the right to sell, exchange, or hypothecate all forms of real and personal property, chattels, rights, choses in action, mortgages, bonds, and securities of all forms and kinds and wherever located.

 

(b) Without in any way limiting the foregoing, petitioner desires that said Corporation be vested with all the rights, powers, and privileges now or hereafter given to do any and all things which may be needful or proper in the operation of the above described business, and that said Corporation have all the powers enumerated in Sections 9 and 10 of the Act of the General Assembly of Georgia approved January 28, 1938 (Georgia Laws 1937-38, Ex. Sess., page 214), and codified as Sections 22-1827 and 22-1828 of the Code of Georgia Annotated, and such powers as are now, or may be hereafter, given by law.

 

(c) Without in any way limiting the above enumerating powers, the Corporation shall have the power to guarantee, become surety upon, or endorse the contracts or obligations of other corporations, firms, or individuals; including the right to become a purely accommodation guaranty, endorser or surety upon the contracts or obligations of any other corporation, firm or individual, and the further power to buy, sell, trade or purchase the contracts, negotiable instruments or obligations of any other corporation, firm or individual, or any part thereof, all of the foregoing powers to be granted this Corporation regardless of the fact that this Corporation may or may not have a direct interest in the subject matter of such contracts, negotiable instruments or obligations.

 

4.

 

The total number of shares of all classes which the Corporation shall have authority to issue is 245,000,000 shares, consisting of 25,000,000 shares of Class A Common Stock, no par value per share (“Class A Common Stock”); 200,000,000 shares of Common Stock, no par value per share (“Common Stock”); and 20,000,000 shares of Preferred Stock (“Preferred Stock”).

 

The designations and the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualification, and terms and conditions of redemptions of the shares of each class of stock are as follows:

 

 
 

 

PREFERRED STOCK

 

The Preferred Stock may be issued from time to time by the Board of Directors as shares of one or more series. The description of shares of each series of Preferred Stock, including any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption shall be as set forth in resolutions adopted by the Board of Directors, and articles of amendment shall be filed with the Georgia Secretary of State as required by law to be filed with respect to issuance of such Preferred Stock, prior to the issuance of any shares of such series.

 

The Board of Directors is expressly authorized, at any time, by adopting resolutions providing for the issuance of or providing for a change in the number of shares of any particular series of Preferred Stock and, if and to the extent from time to time as required by law, by filing articles of amendment which are effective without Shareholder action to increase or decrease the number of shares included in each series of Preferred Stock, but not below the number of shares then issued, and to set or change in any one or more respects the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications, or terms and conditions of redemption relating to the shares of each such series. Notwithstanding the foregoing, the Board of Directors shall not be authorized to change the right of holders of the Class A Common Stock of the Corporation to vote one vote per share on all matters submitted for shareholder action. The authority of the Board of Directors with respect to each series of Preferred Stock shall include, but not be limited to, setting or changing the following:

 

(a) the annual dividend rate, if any, on shares of such series, the times of payment and the date from which dividends shall be accumulated, if dividends are to be cumulative;

 

(b) whether the shares of such series shall be redeemable and, if so, the redemption price and the terms and conditions of such redemption;

 

(c) the obligation, if any, of the Corporation to redeem shares of such series pursuant to a sinking fund;

 

(d) whether the shares of such series shall be convertible into, or exchangeable for, shares of stock of any other class or classes and, if so, the terms and conditions of such conversion or exchange, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any;

 

(e) whether the shares of such series shall have voting rights, in addition to the voting rights provided by law, and, if so, the extent of such voting rights;

 

(f) the rights of the shares of such series in the event of voluntary or involuntary liquidation, dissolution or winding-up of the Corporation; and

 

(g) any other relative rights, powers, preferences, qualifications, limitations or restrictions thereof relating to such series.

 

The shares of Preferred Stock of any one series shall be identical with each other in all respects except as to the dates from and after which dividends thereon shall cumulate, if cumulative.

 

SERIES A PERPETUAL PREFERRED STOCK

 

1.

Amount and Designation.

 

A total of 1.5 million shares of the authorized and unissued Preferred Stock of the Corporation are hereby designated as Series A Perpetual Preferred Stock, without par value (the “Series A Preferred Stock “). The Series A Preferred Stock shall have a liquidation preference of $1,000.00 per share (the “Liquidation Preference”). The Corporation may issue fractional interests in and/or fractional shares of Series A Preferred Stock. Each Holder of a fractional interest in and/or a fractional share of a share of Series A Preferred Stock shall be entitled, proportionately, to all the rights, preferences and privileges of a Holder of the Series A Preferred Stock. At all times the Corporation will have sufficient shares authorized and will take all actions necessary to authorize additional shares if required, in each case, to meet its obligations hereunder.

 

 
 

 

2.

Rank.

 

The Series A Preferred Stock shall, with respect to dividends, redemption and distributions upon liquidation, winding-up and dissolution of the Corporation, rank senior to all classes and series of common stock of the Corporation whether voting or non-voting, including without limitation the Class A Common Stock, no par value (the “Class A Common Stock”) and the Common Stock, no par value (the “Common Stock”), whether now or hereafter issued, and to each other class or series of Stock of the Corporation hereafter created (collectively referred to as “Junior Stock”). The Corporation may not issue any shares of, or any securities convertible into shares of, any class or series of Stock that ranks on a parity with the Series A Preferred Stock as to dividends, redemption or as to distributions upon liquidation, winding-up and dissolution (collectively referred to as “Parity Stock”), or senior to the Series A Preferred Stock as to dividends, redemption or as to distributions upon liquidation, winding-up and dissolution of the Corporation (collectively referred to as “Senior Stock”).

 

3.

Dividends.

 

(a) The Holders of shares of Series A Preferred Stock shall be entitled to receive, to the fullest extent permitted by law, mandatory and cumulative dividends in an amount per quarter equal to the Dividend Rate or the PIK Dividend Rate, as applicable, multiplied by the Liquidation Preference for each of the then outstanding shares of Series A Preferred Stock, calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

(b) Dividends on each share of Series A Preferred Stock shall accrue on a daily basis from the original issue date of such share. To the extent any quarterly dividend is not paid in cash or by issuance of additional shares of Series A Preferred Stock as set forth in this Section 3, such dividend amount shall accumulate and compound on a quarterly basis, whether or not the Corporation has earnings and/or profits, whether or not payment of dividends is then permitted by law, and whether or not declared.

 

(c) Dividends shall be paid in full, in cash (“Cash Dividends”) for each Dividend Period; provided, that, at the Corporation’s option and by notice to all Holders mailed no later than five Business Days prior to the applicable Dividend Record Date (the “PIK Election Notice”), the dividends due for any Dividend Period, in whole or in part, may be paid in kind by issuance of additional shares of Series A Preferred Stock (“PIK Election Dividends”), subject to Section 3(d). PIK Election Dividends shall be paid at the PIK Dividend Rate. Dividends shall be payable quarterly with respect to each Dividend Period in arrears on the first Dividend Payment Date after such Dividend Period.

 

(d) If and to the extent that the Corporation does not for any reason pay the entire dividend payable for a particular Dividend Period either as Cash Dividends, PIK Election Dividends or a combination of Cash Dividends and PIK Election Dividends, on the applicable Dividend Payment Date for such period (whether or not the payment of dividends is permitted under applicable law or such dividends are declared by the Board of Directors of the Corporation), such unpaid dividends shall be paid in kind by issuance of additional Series A Preferred Stock (the “Additional PIK Dividends”) to the Holders of the Series A Preferred Stock as of the applicable Dividend Record Date, on the first date on which such Additional PIK Dividend can be paid in accordance with applicable law. Additional PIK Dividends shall be paid at the PIK Dividend Rate, subject to compounding pursuant to Section 3(b).

 

(e) When a dividend or part thereof is paid in additional shares of Series A Preferred Stock, such number of additional shares shall be calculated by dividing the amount of such dividend or part thereof that would otherwise be paid in cash by the Liquidation Preference of a share of Series A Preferred Stock.

 

(f) Dividends that are payable on the Series A Preferred Stock on any Dividend Payment Date will be payable to Holders of record on the applicable record date, which shall be the last day of the applicable Dividend Period (each such record date, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day. All dividends paid pursuant to this Section 3 shall be paid ratably to the Holders of the Series A Preferred Stock.

 

(g) The quarterly dividend periods with respect to dividends shall commence on and include January 1, April 1, July 1 and October 1 (other than the initial Dividend Period, which shall commence on and include the Closing Date) and shall end on and include the last calendar day of the calendar quarter ending March 31, June 30, September 30 and December 31 preceding the next Dividend Payment Date (each such period, a “Dividend Period”).

 

 
 

 

(h) For purposes of determining whether funds are legally available for any dividends pursuant to this Section 3, the assets of the Corporation shall, to the fullest extent permitted by law, be valued at the highest amount permissible under applicable law.

 

(i) In the event that the Corporation makes payment of any portion of the Dividends due pursuant to this Section 3 for any Dividend Period in the form of PIK Election Dividends, then effective for such Dividend Period for which any PIK Election Dividends are paid, from the date of the PIK Election Notice and continuing through the end of the next two succeeding Dividend Periods, the Corporation shall be prohibited from repurchasing, redeeming or paying dividends on any shares of Junior Stock other than Permitted Deemed Stock Repurchases (as defined below). Additionally, in the event that the Corporation does not make payment, pursuant to Section 3(d), of any portion of the dividends due pursuant to this Section 3 for any Dividend Period on the applicable Dividend Payment Date, then effective for such Dividend Period in which all or a portion of such dividends are not paid on the applicable Dividend Payment Date, from the Dividend Payment Date for such Dividend Period and continuing through the end of the two succeeding Dividend Periods following the payment in full of the Additional PIK Dividends, the Corporation shall be prohibited from repurchasing, redeeming or paying dividends on any shares of Junior Stock other than Permitted Deemed Stock Repurchases. As used herein, “Permitted Deemed Stock Repurchases” shall mean solely (i) the repurchase of any shares of Junior Stock deemed to occur in connection with satisfying the exercise or conversion price payable upon the exercise or conversion of outstanding stock options, warrants or other convertible securities or that are surrendered in connection with satisfying any income tax withholding obligation related to the exercise or vesting of outstanding equity awards under the Corporation’s shareholder approved compensation plans, and (ii) the payment of cash in lieu of the issuance of fractional shares of Junior Stock upon the exercise or conversion of securities exercisable or convertible into Junior Stock or arising out of stock dividends, splits or combinations or business combinations.

 

4.

Liquidation, Dissolution or Winding Up.

 

(a) In the event of the liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary (each a “Liquidation Event”), the Holders at the time shall be entitled to receive liquidating distributions with respect to each share of Series A Preferred Stock in an amount equal to the Liquidation Preference plus an amount equal to any accrued but unpaid dividends thereon up to and including the date of such liquidation to the fullest extent permitted by law, before any distribution of assets is made to the holders of the Class A Common Stock, Common Stock or any other Junior Stock. After payment of the full amount of such liquidating distribution, the Series A Preferred Stock shall be deemed retired and Holders shall not be entitled to any further participation in any distribution of assets by the Corporation.

 

(b) On the occurrence of a Liquidation Event, the Corporation shall make a liquidating distribution to the Holders of Series A Preferred Stock. In the event the assets of the Corporation available for distribution to stockholders upon any Liquidation Event shall be insufficient to pay in full the amounts payable with respect to all outstanding shares of the Series A Preferred Stock and the corresponding amounts payable on any Parity Stock, if any, Holders and the holders of such Parity Stock, if any, shall share ratably in any distribution of assets of the Corporation in proportion to the full respective liquidating distributions to which they would otherwise be respectively entitled.

 

(c) To the maximum extent that any liquidating distribution is made in a combination of cash and property other than cash, the liquidating distributions to the Holders of the Series A Preferred Stock shall be made in cash to the maximum extent possible, in preference and priority to the liquidating distribution payable to any other Stock, other than Parity Stock, if any, (in which case, such distribution in cash shall be made pro rata) or Senior Stock, if any. Whenever the distribution provided for in this Section 4 shall be payable in property other than cash, the value of such distribution shall be the fair market value of such property as determined in good faith by the Board of Directors.

 

 
 

 

5.

Voting.

 

(a) The Holders of Series A Preferred Stock will not have any voting rights, except as set forth in this Section 5 or as otherwise from time to time required under Georgia law, on any matter required or permitted to be voted upon by the stockholders of the Corporation.

 

(b) Without the consent or affirmative vote of the Holders of at least a majority of the outstanding shares of Series A Preferred Stock, voting separately as a class, the Corporation will not (i) authorize, create or issue any shares of Senior Stock, (ii) reclassify any Junior Stock into shares of Parity Stock or Senior Stock, (iii) reclassify any Parity Stock into shares of Senior Stock, or (iv) authorize, create or issue any shares of Parity Stock, including, without limitation, any additional shares of Series A Preferred Stock other than for issuance as PIK Election Dividends and Additional PIK Dividends.

 

(c) The affirmative vote or consent of the Holders of at least a majority of the outstanding shares of the Series A Preferred Stock, voting separately as a class, will be required for any amendment, alteration or repeal, whether by merger or consolidation or otherwise, of the Corporation’s Restated Articles of Incorporation, as amended from time to time, if the amendment, alteration or repeal adversely affects the powers, preferences or special rights of the Series A Preferred Stock (for the avoidance of doubt, any matters approved in accordance with Section 5(b) shall not be deemed to adversely affect the powers, preferences or special rights of the Series A Preferred Stock).

 

(d) In any case in which the Holders of Series A Preferred Stock shall be entitled to vote or consent pursuant to this Section 5 or pursuant to Georgia law, each Holder of Series A Preferred Stock entitled to vote or consent with respect to such matter shall be entitled to one vote for each share of Series A Preferred Stock held.

 

(e) Any action as to which a vote of the Holders of Series A Preferred Stock is required pursuant to the terms herein may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the Holders of outstanding Stock of Series A Preferred Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of Series A Preferred Stock entitled to vote thereon were present and voted and shall be delivered to the Corporation.

 

6.

Maturity.

 

The Series A Preferred Stock shall be perpetual unless redeemed in accordance with Section 7 or 8 hereof.

 

7.

Mandatory Redemption.

 

(a) In connection with a Change of Control Transaction (a “Mandatory Redemption Event”), the Corporation shall, to the extent practicable at least 10 Business Days prior to, and in any event within five (5) Business Days of the Corporation obtaining knowledge of the occurrence of a Mandatory Redemption Event, provide written notice thereof (the “Redemption Notice”) to each Holder, and each Holder shall have the right, by the giving of a written notice delivered to the Corporation within five (5) Business Days of receipt of the Redemption Notice (an “Election Notice”), to the fullest extent permitted by law, to require the Corporation to redeem all or any portion of the then outstanding shares of Series A Preferred Stock held by such Holder at the Redemption Price on the date specified by the Corporation in the Redemption Notice, which date shall be not less than thirty (30) nor more than ninety (90) days following the date of the Mandatory Redemption Event (any such date, a “Mandatory Redemption Date”). The Redemption Price shall be payable in cash.

 

(b) Upon each Mandatory Redemption Date, cash in an amount equal to the aggregate Redemption Price for all such shares of Series A Preferred Stock to be redeemed as a result of such Mandatory Redemption Event shall be segregated in a deposit account of the Corporation created and used solely for such purpose. Following the Mandatory Redemption Date, any remaining proceeds attributable to shares of Series A Preferred Stock that Holders have not elected to redeem shall be released from such account and shall be used for such purposes as the Corporation may determine.

 

(c) Notwithstanding the foregoing or anything else herein to the contrary, the Corporation shall be required to redeem shares of Series A Preferred Stock pursuant to this Section 7 only to the extent such redemption is permitted by the Financing Documentation (including, without limitation, Section 4.05 of each of the 2024 Indenture and the 2026 Indenture, and Section 7.6 of the Credit Agreement).

 

8.

Mechanics of Mandatory Redemption.

 

(a) Within five Business Days of the Corporation’s receipt of an Election Notice, the Corporation shall give written notice, first class postage prepaid and by electronic mail or transmission with receipt confirmed, to the Holder acknowledging the Mandatory Redemption Date and specifying the Redemption Price, the place at which payment may be obtained for redeemed shares and such other information as the Corporation may deem advisable to provide.

 

 
 

 

(b) If the Corporation is able to redeem only part of the Series A Preferred Stock requested to be redeemed (the “Redemption Shares”), under applicable law or the Financing Documentation, then the Corporation shall redeem the maximum number of Redemption Shares that it is permitted to redeem on the Mandatory Redemption Date and shall redeem the remaining Redemption Shares on the first day it may do so unless the Holder thereof otherwise determines not to have such shares redeemed and provides the Corporation with written notice of such determination.

 

(c) On or after the Mandatory Redemption Date, the Holder shall surrender the certificate or certificates evidencing such shares to the Corporation at the place designated in such notice and shall thereupon be entitled to receive payment of the Redemption Price and thereupon the Corporation shall pay, or cause to be paid, the full Redemption Price for the shares so surrendered in cash, provided that if a certificate is not surrendered by a Holder of shares of Series A Preferred Stock represented by such certificate but such Holder delivers an affidavit to the Corporation stating that the certificate or certificates representing its shares of Series A Preferred Stock have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to the Corporation to indemnify the Corporation for any loss incurred by it in connection with such lost, stolen or destroyed certificate(s), payment of the full Redemption Price shall be made to such Holder. If fewer than all the shares represented by any such surrendered certificate or certificates are redeemed, a new certificate shall be issued representing the unredeemed shares.

 

9.

Optional Redemption.

 

(a) The Corporation shall have the right, but not the obligation, at any time and from time to time, to redeem, to the fullest extent permitted by law, all or any portion of the outstanding Series A Preferred Stock at the Redemption Price in cash only. The date of any such optional redemption elected by the Board of Directors is referred to herein as an “Optional Redemption Date.”

 

10.

Mechanics of Optional Redemption.

 

(a) At least 30 and not more than 60 days prior to an Optional Redemption Date, the Corporation shall give written notice, first class postage prepaid and by electronic mail or transmission with receipt confirmed, to the Holders of the Series A Preferred Stock to be redeemed, addressed to such shareholders at their last addresses as shown on the books of the Corporation. Each such notice of redemption shall specify the Optional Redemption Date, the Redemption Price, the place or places of payment, that payment will be made upon presentation and surrender of the Series A Preferred Stock, and that on and after the redemption date, dividends will cease to accrue on such shares.

 

(b) Any notice which is sent to a Holder as herein provided shall be conclusively presumed to have been duly given, whether or not the Holder of the Series A Preferred Stock receives such notice; and failure to give such notice, or any defect in such notice, to the Holders of any shares designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series A Preferred Stock.

 

(c) On or after the Optional Redemption Date as stated in such notice, each Holder of the shares called for redemption shall surrender the certificate (or certificates) evidencing such shares to the Corporation at the place designated in such notice and shall thereupon be entitled to receive payment of the Redemption Price and thereupon the Corporation shall pay, or cause to be paid, the full Redemption Price for the shares so surrendered in cash, provided that if a certificate representing shares of Series A Preferred Stock is not surrendered by a Holder of record, but such Holder delivers an affidavit to the Corporation stating that the certificate or certificates representing its shares of Series A Preferred Stock have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to the Corporation to indemnify the Corporation for any loss incurred by it in connection with such lost, stolen or destroyed certificate or certificates, payment of the full Redemption Price shall be made to such Holder. If fewer than all the shares represented by any such surrendered certificate or certificates are redeemed, a new certificate shall be issued representing the unredeemed shares.

 

(d) Notwithstanding the foregoing or anything else herein to the contrary, any notice of redemption delivered pursuant to this Section 10 shall be deemed to be conditioned upon such redemption being permitted under the Financing Documentation on the Optional Redemption Date, and the Corporation shall have no obligation to make payment of the Redemption Price to the extent such payment is not then permitted under the Financing Documentation.

 

 
 

 

11.

Transfer.

 

(a) Subject to the restrictions set forth in this Section 11 and under applicable Law, shares of Series A Preferred Stock shall be freely transferable only upon the prior written consent of the Corporation, with such approval not to be unreasonably conditioned, delayed or withheld; provided that (i) any conditioning, delaying or withholding of consent to a proposed Transfer to an Activist Fund or any transferee that is primarily engaged in television broadcasting or digital media publishing will not be deemed to be unreasonable and (ii) no prior written consent would be required with respect to a Transfer to an Affiliate of the transferring Holder so long as such Affiliate is not primarily engaged in television broadcasting or digital media publishing (except that the requirements with respect to such businesses will not apply to the extent the Corporation and its Subsidiaries, taken as a whole, are not engaged in such businesses as of the time of the Transfer) and such Affiliate is not an Activist Fund. Transfers and assignments of shares of the Series A Preferred Stock may include Transfer or assignment of fractional interests in and fractional shares of Series A Preferred Stock.

 

(b) The Initial Holders must at all times collectively maintain ownership of at least a majority of the outstanding shares of Series A Preferred Stock.

 

12.

Certain Definitions.

 

(a) As used herein, the following terms shall have the following meanings (with terms defined in the singular having comparable meanings when used in the plural and vice versa), unless the context otherwise requires:

 

 

(i)

“2024 Indenture” means the Indenture, dated as of September 14, 2016 among the Corporation, the Subsidiaries of the Corporation party thereto, and U.S. Bank National Association, as trustee with respect to the 5.125% Senior Notes issued by the Corporation and due 2024, together with any amendments, amendments and restatements, replacements, supplements, extensions, refinancings or other modifications thereof.
 

(ii)

“2026 Indenture” means the Indenture, dated as of June 14, 2016 among the Corporation, the Subsidiaries of the Corporation party thereto, and U.S. Bank National Association, as trustee with respect to the 5.875% Senior Notes issued by the Corporation and due 2026, together with any amendments, amendments and restatements, replacements, supplements, extensions, refinancings or other modifications thereof.
 

(iii)

“2028 Indenture” means the Indenture, dated as of November 16, 2018 among Gray Escrow, Inc. (“Escrow Issuer”), the Corporation and U.S. Bank National Association, as trustee with respect to the 7.000% Senior Notes issued by Escrow Issuer and due 2027, together with any amendments, amendments and restatements, replacements, supplements, extensions, refinancings or other modifications thereof.
 

(iv)

“Activist Fund” means any Person identified on the most-recently available “SharkWatch 50” list or any publicly-disclosed Affiliate of any such Person.
 

(v)

“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract or otherwise. Without limitation, any director, executive officer or beneficial owner of five percent (5%) or more of the Stock (either directly or through ownership of Stock Equivalents) of a Person shall be deemed to control the other Person.
 

(vi)

“Agreement and Plan of Merger” means that Agreement and Plan of Merger, dated as of June 23, 2018, by and among the Corporation, East Future Group, Inc., Raycom Media, Inc., and Tara Advisors, LLC, solely in its capacity as the Stockholders’ Representative (as defined in the Agreement and Plan of Merger), as it may be amended from time to time.
 

(vii)

“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in Atlanta, Georgia are authorized or obligated to close.
 

(viii)

“Change of Control Transaction” means (a) the occurrence of a “Change of Control” or similar event under any of the Financing Documentation (as in effect on the Closing Date) if the effect of such occurrence is to cause, or (with the giving of notice or passage of time or both) to permit the holder or holders of such indebtedness (or a trustee or agent on behalf of such holder or holders) under any such Financing Documentation to cause, either alone or together with the occurrence of one or more additional events, such indebtedness to become due prior to its stated maturity or to permit the termination of the commitments to lend pursuant to any such Financing Documentation, or to cause the Corporation to make an offer to such holder or holders to prepay, repurchase or redeem such indebtedness prior to its stated maturity or (b) the sale or other disposition of all or substantially all of the assets of the Corporation and the Subsidiaries of the Corporation taken as a whole (whether directly or indirectly through the sale or other disposition of the equity interests in, or the assets of, the Corporation and the Subsidiaries of the Corporation, taken as a whole).

 

 
 

 

 

(ix)

“Closing” means the closing of the transactions contemplated by the Agreement and Plan of Merger.
 

(x)

“Closing Date” has the meaning given to such term in the Agreement and Plan of Merger.
 

(xi)

“Credit Agreement” means the Third Amended and Restated Credit Agreement dated as of February 7, 2017 among the Corporation, the lenders party thereto, and Wells Fargo Bank, National Association, as the administrative agent, together with any amendments, amendments and restatements, replacements, supplements, extensions, refinancings or other modifications thereof.
 

(xii)

“Dividend Payment Date” means January 15, April 15, July 15 and October 15 of each year, commencing on the first such date immediately following the Closing Date; provided that, if any such Dividend Payment Date would otherwise occur on a day that is not a Business Day, such Dividend Payment Date shall instead be the immediately succeeding Business Day.
 

(xiii)

“Dividend Rate” means 8% per annum;
 

(xiv)

“Financing Documentation” means the agreements, notes, bonds, debentures, indentures, credit agreements or similar instruments evidencing any indebtedness of the Corporation, including, without limitation, documentation governing the terms of the 2024 Indenture, the 2026 Indenture, the 2028 Indenture and the Credit Agreement, together with any amendments, amendments and restatements, replacements, extensions, refinancings or other modifications thereof.
 

(xv)

“Holder” means the Person in whose name the shares of the Series A Preferred Stock are registered, which may be treated by the Corporation as the absolute owner of the shares of Series A Preferred Stock for the purpose of making payment and for all other purposes.
 

(xvi)

“Governmental Authority” means any U.S. or foreign, federal, state, provincial, municipal, local or similar government or any agency, authority, board, body, bureau, commission, court, department, entity, official, political subdivision, tribunal or other instrumentality of any such government and will include any regulatory or trade body or organization and any arbitrator or arbitral body.
 

(xvii)

“Initial Holders” means The Employees’ Retirement System of Alabama, an instrumentality of the State of Alabama, The Teachers’ Retirement System of Alabama, an instrumentality of the State of Alabama, and the Judicial Retirement Fund, a retirement fund for members of the judiciary of the State of Alabama.
  (xviii) “Law” means any U.S. or foreign, federal, state, provincial, municipal or local law (including common law), statute, ordinate, rule, regulation, code, policy, directive, standard, treaty, judgment, order, injunction, decree or agency requirement of or undertaking to or agreement with any Governmental Authority.
 

(xix)

“Liquidation Event” has the meaning set forth in Section 4(a).
 

(xx)

“Liquidation Preference” has the meaning set forth in Section 1.
 

(xxi)

“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
 

(xxii)

“PIK Dividend Rate” means 8.5% per annum;
  (xxiii) “Redemption Price” means a price equal to the Liquidation Preference plus an amount equal to any accrued but unpaid dividends thereon up to and including the applicable date of redemption.
  (xxiv) “Stock” means all shares of capital stock (whether denominated as common stock, preferred stock or other stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting.
  (xxv) “Stock Equivalents” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.
 

(xxvi)

“Subsidiary” means, with respect to any Person:
 

(1)

any corporation, association or other business entity of which more than 50% of the total voting power of shares of Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

 
 

 

 

(2)

any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or of one or more Subsidiaries of such Person (or any combination thereof).
 

(xxvii)

“Transfer” means a sale, assignment, conveyance, license, transfer or other disposition to, or any exchange with, any Person, in one transaction or a series of transactions.
 

(xxviii)

“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Stock of which is owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.

 

13.

Miscellaneous.

 

(a) Share Certificates. If any certificates representing shares of Series A Preferred Stock shall be mutilated, lost, stolen or destroyed, the Corporation shall issue, in exchange and in substitution for and upon cancellation of the mutilated certificate, or in lieu of and substitution for the lost, stolen or destroyed certificate, a new Series A Preferred Stock certificate of like tenor and representing an equivalent number of shares of Series A Preferred Stock, but only upon receipt of evidence of such loss, theft or destruction of such certificate and indemnity by the Holder thereof, if requested, reasonably satisfactory to the Corporation.

 

(b) Severability. If any right, preference, power or limitation of the Series A Preferred Stock set forth herein is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other rights, preferences, powers and limitations set forth herein which can be given effect without the invalid, unlawful or unenforceable right, preference, power or limitation shall, nevertheless, remain in full force and effect, and no right, preference, power or limitation herein set forth shall be deemed dependent upon any other such right, preference, power or limitation unless so expressed herein.

 

(c) Headings. The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.

 

(d) Notices. Except as otherwise expressly provided in Section 8 and Section 10, all notices or communications in respect of Series A Preferred Stock shall be in writing and shall be deemed delivered (a) three Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (b) one Business Day after being sent via a reputable nationwide overnight courier service guaranteeing next Business Day delivery, (c) on the date of delivery if delivered personally, or (d) if by electronic mail or transmission, upon written confirmation of receipt by electronic mail or transmission.

 

(e) Other Rights. The shares of Series A Preferred Stock shall not have any rights, preferences, privileges or voting powers or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Certificate of Incorporation or as provided by applicable law and regulation.

 

(f) Waivers. Any term or provision herein may be waived, with the written consent of the Corporation and the vote or written consent of Holders of a majority of the shares of Series A Preferred Stock at the time outstanding (other than any shares of Series A Preferred Stock held by the Corporation); provided that, without the consent of all Holders of Series A Preferred Stock directly affected thereby, no such waiver shall (i) reduce the Liquidation Preference for or the amount of any dividend or other amount payable on or redemption of any Series A Preferred Stock, or (ii) postpone any date fixed herein for the payment of any Liquidation Preference, dividend or other amount payable on or redemption of Series A Preferred Stock. Any such waiver shall be binding upon all Holders of outstanding shares of Series A Preferred Stock (other than as set forth in the proviso in the immediately preceding sentence).

 

 
 

 

GRAY COMMON STOCK

 

The powers, preferences and rights of the Class A Common Stock and the Common Stock, and the qualifications, limitations and restrictions thereof, shall be as follows:

 

(a) Voting. Holders of Class A Common Stock are entitled to ten (10) votes per share. Holders of Common Stock are entitled to one (1) vote per share. All actions submitted to a vote of shareholders are voted on by holders of Class A Common Stock and Common Stock voting together as a single class, except as otherwise provided herein or by law.

 

(b) Dividends and Other Distributions. Holders of Class A Common Stock and holders of Common Stock are entitled to receive dividends and other distributions in cash, stock or property of the Corporation as may be declared thereon by the Board of Directors out of funds legally available therefore. Each share of Class A Common Stock and each share of Common Stock shall have identical rights with respect to dividends and distributions (including distributions in connection with any recapitalization, and upon liquidation, dissolution or winding up, either partial or complete, of the Corporation).

 

(c) Common Stock Rights.

 

(1) If, after the date the Articles of Amendment adding this provision to the Articles are filed with the Secretary of State of Georgia (the “Effective Date”), any person or group acquires beneficial ownership of 100% of the then issued and outstanding shares of Class A Common Stock (such acquisition making such person or group a “Significant Shareholder”), and such person or group does not immediately after such acquisition beneficially own an equal percentage of the then issued and outstanding Common Stock, such Significant Shareholder must, within a 90-day period beginning the day after becoming a Significant Shareholder, commence a public tender offer in compliance with all applicable laws and regulations to acquire additional shares of Common Stock (a “Common Stock Protection Transaction”) as provided in this subsection (c) of the section entitled “Gray Common Stock” of this Article 4.

 

(2) In a Common Stock Protection Transaction, the Significant Shareholder must offer to acquire from all other holders of the Common Stock all of the issued and outstanding shares of Common Stock beneficially owned by them. The Significant Shareholder must acquire all shares validly tendered.

 

(3) The offer price for any shares of Common Stock required to be purchased by a Significant Shareholder pursuant to a Common Stock Protection Transaction shall be the greater of (i) the highest price per share paid by the Significant Shareholder for any share of Class A Common Stock or Common Stock (whichever is higher) in the six month period ending on the date such person or group became a Significant Shareholder and (ii) the highest closing price of a share of Class A Common Stock or Common Stock (whichever is higher) on The New York Stock Exchange (or such other quotation system or securities exchange constituting the principal trading market for either class of Gray Common Stock) during the 30 calendar days preceding the date such person or group became a Significant Shareholder. If the Significant Shareholder has acquired Class A Common Stock or Common Stock in the six-month period ending on the date such person or group becomes a Significant Shareholder for consideration other than cash, the value of such consideration per share of Class A Common Stock or Common Stock shall be as determined in good faith by the Board of Directors.

 

(4) The requirement to engage in a Common Stock Protection Transaction is satisfied by making the requisite offer and purchasing validly tendered shares, even if the number of shares tendered is less than the number of shares for which tender was sought in the required offer.

 

(5) If a Significant Shareholder fails to make an offer required by this such section (c) of the section entitled “Gray Common Stock” of this Article 4, or to purchase shares validly tendered and not withdrawn, such Significant Shareholder shall not be entitled to vote any shares of Class A Common Stock beneficially owned by such Significant Shareholder and acquired by such Significant Shareholder after the Effective Date that exceeded such Significant Shareholder’s comparable percentage of Common Stock unless and until such requirements are complied with or unless and until all shares of Class A Common Stock which would require an offer to be made are, no longer owned by such Significant Shareholder. To the extent that the voting power of any shares of Class A Common Stock is so suspended, such shares will not be included in the determination of aggregate voting shares for any purpose under these Articles of Incorporation or the Georgia Business Corporation Code.

 

 
 

 

(6) All calculations with respect to percentage ownership of issued and outstanding shares of either class of “Gray Common Stock” will be based upon the numbers of issued and outstanding shares reported by the Corporation on the last filed of (i) the Corporation’s most recent Annual Report on Form-10-K, (ii) its most recent definitive proxy statement, (iii) its most recent Quarterly Report on Form 10-Q, or (iv) if any, its most recent Current Report on Form 8-K.

 

(7) For purposes of this subsection (c) of the section entitled “Gray Common Stock” of this Article 4, the term “person” means a natural person, company, government, or political subdivision, agency or instrumentality of a government, or other entity. The terms “beneficial ownership” and “group” have the same meanings as used in Regulation 13D promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subject to the following qualifications: (i) relationships by blood or marriage between or among any persons will not constitute any of such persons a member of a group with any other such persons, absent affirmative attributes of concerted action; (ii) any person acting in his official capacity as a director or officer of the Corporation shall not be deemed to beneficially own shares of Gray Common Stock where such beneficial ownership exists solely by virtue of such person’s status as a trustee (or similar position) with respect to shares of Gray Common Stock held by plans or trusts for the general benefit of employees or retirees of the Corporation, and actions taken or agreed to be taken by him in such official capacity or in any other official capacity will not be deemed to constitute such a person a member of a group with any other person; and (iii) formation of a group will not be deemed to be an acquisition by the group (or any member thereof) of beneficial ownership of any shares of Class A Common Stock then owned by a group member and acquired by such member from the Corporation, by operation of law, by will or the laws of descent or distribution, by charitable contribution or gift, or by foreclosure of a bona fide loan. Furthermore, for the purposes of calculating the number of shares of Common Stock beneficially owned by such shareholder or member of such group only if such gift is made in good faith and not for the purpose of circumventing the Common Stock Rights; (b) only shares of Common Stock owned of record by such shareholder or member of such group, or held by others as nominees of such shareholder or member and identified as such to the Corporation, shall be deemed to be beneficially owned by such shareholder or group (provided that shares with respect to which such shareholder or member has sole investment and voting power shall be deemed to be beneficially owned thereby); and (c) only shares of Common Stock acquired by such shareholder or member of such group for an “equitable price” shall be treated as being beneficially owned by such shareholder or group. An “equitable price” will be deemed to have been paid only when shares of Common Stock have been acquired at a price at least equal to the great of (i) the highest price per share paid by the Significant Shareholder in cash or in non-cash consideration for any shares of Class A Common Stock or Common Stock (whichever is higher) in the six-month period ending on the date such person or group became a Significant Shareholder and (ii) the highest closing price of a share of Class A Common Stock or Common Stock (whichever is higher) on The New York Stock Exchange (or such other quotation system or securities exchange constituting the principal trading market for either class of Common Stock) during the 30 calendar days preceding the date such person or group became a Significant Shareholder with the value of any non-cash consideration in either case being determined by the Board of Directors acting in good faith.

 

(d) Preemptive Rights. The holders of the Class A Common Stock and Common Stock do not have preemptive rights enabling them to subscribe for or receive shares of any class of stock of the Corporation or any other securities convertible into shares of any class of stock of the Corporation.

 

(e) Merger and Consolidation. In the event of a merger or consolidation of the Corporation with or into another entity (whether or not the Corporation is the surviving entity), or a statutory share exchange involving the Common Stock, the holders of Common Stock shall be entitled to receive the same amount and form of consideration per share as the per share consideration, if any, received by any holder of the Class A Common Stock in such merger or consolidation.

 

(f) Subdivision of Shares. If the Corporation shall in any manner split, subdivide or combine the outstanding shares of Class A Common Stock or Common Stock, the outstanding shares of the other such class of Gray Common Stock shall be proportionally split, subdivided or combined in the same manner and on the same basis as the outstanding shares of the other class of Gray Common Stock have been split, subdivided, or combined.

 

(g) Power to Sell and Purchase Shares. The Board of Directors shall have the power to cause the Corporation to issue and sell all or any part of any class of stock herein or hereafter authorized to such persons, firms, associations, or corporations, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine whether or not greater consideration could be received upon the issue or sale of the same number of shares of another class, and as otherwise permitted by law. The Board of Directors shall have the power to cause the Corporation to purchase any class of stock herein or hereafter authorized from such persons, firms, associations, or corporations, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine, whether or not less consideration could be paid upon the purchase of the same number of shares of another class, and as otherwise permitted by law.

 

 
 

 

(h) Amendments. In addition to any other vote provided for by law, by these Articles or by the By-Laws of the Corporation or by the Board of Directors, the affirmative vote of at least a majority of the vote cast by the holder of shares of Common Stock, voting as a separate group, at any meeting of shareholders shall be required to amend, alter, or repeal any provision of Article 4(e).

 

5.

 

The location of the principal office of the Corporation shall be in Dougherty County, Georgia, but the Corporation shall have the privilege of establishing branch offices and places of business both within and without the State of Georgia.

 

6.

 

The bylaws of the Corporation shall be adopted by the stockholders and such bylaws shall provide for the officers of the Corporation, the manner of their selection and such other rules appropriate to bylaws which have as their purpose the control and management of the Corporation, including provisions whereby the bylaws may be amended.

 

7.

 

No director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for breach of duty of care or other duty as a director; provided, however, that to the extent required by applicable law, this Paragraph 7 shall not eliminate or limit the liability of a director (i) for any appropriation, in violation of his duties, of any business opportunity of the Corporation; (ii) for acts or omissions which involve intentional misconduct or a knowing violation of law; (iii) for the types of liability set forth in Section 14-2-832 of the Georgia Business Corporation Code; or (iv) for any transaction from which the director derived an improper personal benefit. If applicable law is amended to authorize corporate action further eliminating or limiting the liability of directors, then the liability of each director of the Corporation shall be eliminated or limited to the fullest extent permitted by applicable law, as amended. Neither the amendment nor repeal of this Paragraph 7 nor the adoption of any provision of these Articles of incorporation inconsistent with the Paragraph 7 shall eliminate or reduce the effect of this Paragraph 9 in respect of any acts or omissions occurring prior to such amendment, repeal or adoption of an inconsistent provision.

 

8.

 

The Corporation may acquire its own shares and any such shares that are reacquired shall become treasury shares.

 

ex_174268.htm

 

Exhibit 4.11

 

DESCRIPTION OF CAPITAL STOCK

 

As of February 27, 2020, Gray Television, Inc. (the “Company”) has two classes of voting securities, our Class A common stock, no par value per share (“Class A Common Stock”), and our common stock, no par value per share (“Common Stock”), registered under Section 12 of the Securities Exchange Act of 1934, as amended. Our authorized capital stock consists of 25,000,000 shares of Class A Common Stock, 200,000,000 shares of Common Stock, and 20,000,000 shares of “blank check” preferred stock for which our board of directors (our “Board”) has the authority to determine the rights, powers, limitations and restrictions, all as set forth more fully below.

 

The following description of our capital stock is a summary. This summary is subject to the Georgia Business Corporation Code and the complete text of the Company’s Restated Articles of Incorporation (as subsequently supplemented and amended, the “Articles of Incorporation”) and amended bylaws (the “Bylaws”), which are filed as exhibits 3.1 and 3.3, respectively, to our Annual Report on Form 10-K. We encourage you to read that law and those documents carefully.

 

Common Stock and Class A Common Stock

 

Rights Generally; Voting Rights

 

The rights of our Common Stock and Class A Common Stock are identical, except that our Class A Common Stock entitles the holder to ten votes on all matters on which shareholders are permitted to vote and our Common Stock entitles the holder to one vote on all matters on which shareholders are permitted to vote. Under our Bylaws, a majority of the shares outstanding and entitled to vote constitute a quorum at a meeting of shareholders. Under our Articles of Incorporation and Bylaws, unless otherwise required by Georgia law, action by our shareholders is taken by the affirmative vote of the holders of a majority of votes cast, except for elections of directors, which are determined by a plurality of the votes cast, at a meeting of the shareholders at which a quorum is present. Holders of Common Stock and Class A Common Stock may not cumulate their votes in the election of directors.

 

Dividends and Liquidation

 

The holders of Common Stock and Class A Common Stock are entitled to dividends when and as may be declared by our Board out of funds legally available therefore and, upon liquidation, to a pro rata share in any distribution to shareholders. As discussed below, holders of the outstanding Series A Perpetual Preferred Stock are entitled to a dividend preference over holders of Common Stock and Class A Common Stock. Additionally, the outstanding Series A Perpetual Preferred Stock carries a liquidation preference. The rights of holders of Common Stock and Class A Common Stock are further subject to, and may be adversely affected by, the preferential rights granted to any other class or series of our stock.

 

Other Rights

 

Neither holders of Common Stock nor Class A Common Stock have any preemptive rights or conversion rights or other subscription rights. Neither our shares of Common Stock nor Class A Common Stock are subject to any redemption or sinking fund provisions, nor are they convertible into any of our other securities. All issued and outstanding shares of Common Stock and Class A Common Stock are fully paid and non-assessable.

 

Pursuant to our Articles of Incorporation, if any person or group acquires beneficial ownership of 100% of the then issued and outstanding shares of Class A Common Stock (such acquisition making such person or group a “Significant Shareholder”), and such Significant Shareholder does not immediately after such acquisition beneficially own an equal percentage of the then issued and outstanding Common Stock, such Significant Shareholder must, within a 90-day period, commence a public tender offer to acquire from all other holders of Common Stock all of the issued and outstanding shares of Common Stock beneficially owned by them, and must acquire all shares validly tendered. The offer price for any shares of Common Stock required to be purchased by a Significant Shareholder under our Articles of Incorporation is the greater of (i) the highest price per share paid by the Significant Shareholder for any share of Class A Common Stock or Common Stock (whichever is higher) in the six month period prior to becoming a Significant Shareholder and (ii) the highest closing price of a share of Class A Common Stock or Common Stock (whichever is higher) on the New York Stock Exchange (or such other quotation system or securities exchange constituting the principal trading market for either class of common stock) during the 30 calendar days prior to becoming a Significant Shareholder.

 

 

1
 

 

If a Significant Shareholder fails to make an offer as required to purchase shares validly tendered and not withdrawn, such Significant Shareholder shall not be entitled to vote any shares of Class A Common Stock beneficially owned and acquired by such Significant Shareholder after the date that exceeded such Significant Shareholder’s comparable percentage of Common Stock unless and until the requirements above are complied with or unless and until all shares of Class A Common Stock which would require an offer to be made, are no longer owned by such Significant Shareholder.

 

Transfer Agent and Registrar

 

Computershare Trust Company, N.A. is the transfer agent and registrar for our Common Stock and Class A Common Stock.

 

Preferred Stock

 

Our Board is authorized, without shareholder approval, to establish out of our authorized 20,000,000 shares of preferred stock, one to more series of preferred stock, having such relative rights, preferences, privileges and restrictions thereof, including dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, redemption prices, liquidation preferences and the number of shares constituting any series of the designation of such series, as our Board shall determine without further vote or action by the shareholders.

 

Pursuant to such authority, our Board has previously designated 1,500,000 shares of preferred stock as Series A Perpetual Preferred Stock. As of December 31, 2019, there were 650,000 shares of Series A Perpetual Preferred Stock outstanding and the remaining balance of designated shares are available for future issuance as shares of one or more series preferred stock.

 

Series A Perpetual Preferred Stock

 

The Series A Perpetual Preferred Stock accrues dividends at 8% per annum payable in cash or 8.5% per annum payable in the form of additional Series A Perpetual Preferred Stock, at the election of the Company. The holders of Series A Perpetual Preferred Stock are not entitled to vote on any matter submitted to the stockholders of the Company for a vote, except as required by Georgia law. Upon a liquidation of the Company, holders of the Series A Perpetual Preferred Stock are entitled to receive a liquidation preference equal to $1,000 per share plus all accrued and unpaid dividends.

 

The Series A Perpetual Preferred Stock does not have preemptive rights as to any of our other securities, or any warrants, rights, or options to acquire any of our securities.

 

In the event that the Company voluntarily or involuntarily liquidates, dissolves or winds up its affairs, holders of Series A Perpetual Preferred Stock will be entitled to receive for each share of Series A Perpetual Preferred Stock, out of the Company’s assets or proceeds thereof available for distribution to shareholders, subject to the rights of any creditors, payment in full in an amount equal to the liquidation value and the per-share amount of any unpaid dividends for the current quarterly dividend period. Holders of Series A Perpetual Preferred Stock would be entitled to receive this amount before any distribution of assets or proceeds to holders of our common stock and any other stock whose rights are junior to the Series A Perpetual Preferred Stock. If in any distribution described above, our assets are not sufficient to pay in full the amounts payable with respect to the outstanding shares of Series A Perpetual Preferred Stock or any stock whose rights are equal to the Series A Perpetual Preferred Stock, holders of the Series A Perpetual Preferred Stock would share ratably in any such distribution in proportion to the full respective distributions to which they are entitled. Shareholders are not subject to further assessments on their shares of the New Preferred Stock.

 

2
 

 

New York Stock Exchange Listing

 

Our Common Stock is listed on the New York Stock Exchange under the symbol “GTN.” Our Class A Common stock is listed on the New York Stock Exchange under the symbol “GTN.A.”

 

Certain Anti-Takeover Provisions That Could Have The Effect of Delaying, Deferring or Preventing a Change in Control

 

Certain provisions in our Articles of Incorporation and Bylaws and Georgia law may encourage persons considering unsolicited tender offers or other unilateral takeover provisions to negotiate with our Board rather than pursue non-negotiated takeover attempts. These provisions could delay or discourage certain types of transactions involving an actual or potential change in control of us or our management (including transactions in which shareholders might otherwise receive a premium for their shares over the then current prices) and may limit the ability of shareholders to remove current management or approve transactions that shareholders may deem to be in their best interests and, therefore, could adversely affect the value of our securities.

 

Board of Directors

 

Our Bylaws provide that the number of directors shall be between 3 and 15, and shall be fixed by our Board from time to time. Under our Bylaws, shareholders have the power by majority vote at any meeting to remove a director. Our Bylaws also provide that any vacancy occurring on our Board may be filled by an affirmative vote of a majority of the remaining directors though less than a quorum of our Board, and that any vacancy on the board by reason of an increase in the size of our Board shall be filled by an affirmative vote of a majority of our Board. These provisions may deter a shareholder from seeking to remove incumbent directors and simultaneously attempting to gain control of our Board by filling the vacancies created by this removal with its own nominees.

 

Shareholder Action Without a Meeting

 

Under the Georgia Business Corporation Code, unless a company’s articles of incorporation specify otherwise, any action that could be taken by shareholders at a meeting may be taken, instead, without a meeting if a consent in writing is signed by all the holders of outstanding shares entitled to vote on the action or, if so provided in the articles of incorporation, by the holders of outstanding shares entitled to vote on the action having voting power to cast not less than the minimum number of votes that would be necessary to authorize the action at a meeting at which all shareholders entitled to vote were present and voted. As our Articles of Incorporation do not expressly provide for shareholder action by less than unanimous written consent, our shareholders may not act upon a matter except at a duly called meeting or by unanimous written consent, thereby limiting the ability of our shareholders to take actions which may be opposed by our Board.

 

Advance Notice of Requirement for Shareholder Proposals and Director Nominees

 

Shareholders seeking to have a proposal included in a Company proxy statement for an annual meeting of shareholders, or otherwise considered at such meeting, including a proposal for the election of a director nominee, must comply with certain advance notice requirements under the rules and regulations of the SEC. These requirements are generally contained in our proxy statement for our most recent annual meeting of shareholders, and relate to the timing by which we must be notified of such proposal. These limitations may have the effect of precluding shareholder business at an annual meeting if the proper procedures are not followed and may discourage or deter a third party from otherwise attempting to recommend individuals to our Board or obtain control of us.

 

3
 

 

Preferred Stock

 

As discussed above, our Articles of Incorporation authorize the issuance of preferred stock in one or more series. Undesignated preferred stock may enable our Board to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer or other takeover attempt, and to thereby protect the continuity of our management. The issuance of shares of preferred stock may adversely affect the rights of the holders of our common stock. For example, any preferred stock issued may rank prior to our common stock as to dividend rights, liquidation preference or both, may have full or limited voting rights and may be convertible into shares of common stock. As a result, the issuance of shares of preferred stock may discourage bids for our common stock or may otherwise adversely affect the market price of our common stock or any existing preferred stock. In some instances the preferred stock could be issued and have the effect of preventing a merger, tender offer or other takeover attempt that our Board opposes.

 

Amendments to the Articles of Incorporation and Bylaws

 

Under Georgia law, our Board may amend or repeal any provision of our Articles of Incorporation, except any provision declared to be amendable only by the shareholders. Our Bylaws expressly authorize the alteration, amendment, repeal or adoption of new bylaws by a majority vote of the shareholders at any regular or special shareholder meeting. Our Board is also authorized to amend or repeal any provision of our Bylaws under Georgia law.

 

4

ex_172448.htm

 

EXHIBIT 21.1

 

 

 

Subsidiaries of the Registrant

As of December 31, 2019

 

  

 

Name of Subsidiary

  

Jurisdiction of Incorporation

 

  

 

WVLT-TV, Inc.

  

Georgia

Gray Media Group, Inc.

  

Delaware

Gray Television Licensee, LLC

  

Delaware

Raycom Sports Network, Inc.

  

North Carolina

Tupelo Honey Raycom, LLC

  

Delaware

 

ex_172449.htm

 

EXHIBIT 23.1

 

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statements on Form S-8 (Nos. 333-217639, 333-160362, 333-156012, 333-143493, 333-117248, 333-17773, 333-106753 and 333-106751) and on Form S-3 (Nos. 333-217987 and 333-229162) of Gray Television, Inc. of our report dated February 27, 2020 relating the consolidated financial statements, financial statement schedule and the effectiveness of internal control over financial reporting of Gray Television, Inc., appearing in this Annual Report on Form 10-K of Gray Television, Inc. for the year ended December 31, 2019.

 

/s/ RSM US LLP

 

Atlanta, Georgia

February 27, 2020

 

ex_172450.htm

 

EXHIBIT 31.1

 

I, Hilton H. Howell, Jr., certify that:

 

 

1.

I have reviewed this annual report on Form 10-K of Gray Television, Inc.;

 

 

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(s) 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(s) 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 the 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 which 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: February 27, 2020

By:

   /s/ Hilton H. Howell, Jr.
 

 

 

Executive Chairman and Chief

Executive Officer 

 

 

 

ex_172451.htm

 

EXHIBIT 31.2

 

I, James C. Ryan, certify that:

 

 

1.

I have reviewed this annual report on Form 10-K of Gray Television, Inc.;

 

 

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(s) 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(s) 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 the 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 which 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: February 27, 2020 By:    /s/ James C. Ryan
      Executive Vice President and Chief
      Financial Officer

 

ex_172452.htm

 

EXHIBIT 32.1

 

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350

 

In connection with the accompanying annual report on Form 10-K of Gray Television, Inc. (the “Company”) for the year ended December 31, 2019 (the “Periodic Report”), the undersigned Chief Executive Officer of the Company, hereby certifies pursuant to Title 18, Section 1350 United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of his individual knowledge and belief, that the Periodic Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: February 27, 2020

 

/s/ Hilton H. Howell, Jr.  
Hilton H. Howell, Jr.  
Executive Chairman and Chief Executive Officer  

 

A signed original of this written statement required by Section 906 has been provided to Gray Television, Inc. and will be retained by Gray Television, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

 

The foregoing certification is being furnished pursuant to 18 U.S.C. Section 1350. It is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and it is not to be incorporated by reference into any filing of the Company, regardless of any general incorporation language in such filing.

 

ex_172453.htm

 

EXHIBIT 32.2

  

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350

 

In connection with the accompanying annual report on Form 10-K of Gray Television, Inc. (the “Company”) for the year ended December 31, 2019 (the “Periodic Report”), the undersigned Chief Financial Officer of the Company, hereby certifies pursuant to Title 18, Section 1350 United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of his individual knowledge and belief, that the Periodic Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: February 27, 2020

 

/s/ James C. Ryan  
James C. Ryan  
Executive Vice President and Chief Financial Officer  

 

A signed original of this written statement required by Section 906 has been provided to Gray Television, Inc. and will be retained by Gray Television, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

 

The foregoing certification is being furnished pursuant to 18 U.S.C. Section 1350. It is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and it is not to be incorporated by reference into any filing of the Company, regardless of any general incorporation language in such filing.