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Exhibit 10.8
AMENDED AND RESTATED RETRANSMISSION RIGHTS AGENCY AGREEMENT
January 29, 2006
Hearst-Argyle Television, Inc.
888 Seventh Avenue, 27th Floor
New York, New York 10106
Re: Retransmission Rights Agency Agreement
Ladies/Gentlemen:
This agreement (the “Agreement”) sets forth the mutual agreements between Lifetime Entertainment Services (“Lifetime”) and Hearst-Argyle Television Inc. (“Hearst” or “HTV”) regarding the negotiation and grant of retransmission consent under the 1992 Cable Act, as amended (the “Cable Act”) to certain cable systems and certain other television distribution facilities as set forth in Appendix A with respect to the broadcast television station(s) set forth in Paragraph 1(b) below hereto (the “Stations”) in connection with carriage agreements for Lifetime’s satellite-delivered programming services. Upon execution by Hearst and Lifetime this Agreement shall replace the Retransmission Rights Agency Agreement dated June 30, 2004 between the parties.
1.
GRANT OF AUTHORITY.
(a)
Except as otherwise
provided for herein, Hearst hereby authorizes Lifetime, during the Term, to
conduct negotiations for agreements on Hearst’s behalf and as its agent
on an exclusive basis in connection with the grant of retransmission consent
rights for the free, over-the-air, video and audio analog and digital broadcast
signals of the Stations (but not for any video or audio program or other
services offered on an encrypted paid subscription basis or for reuse on a
video on demand basis nor any data services other than program-related material
as approved by Hearst, which rights shall be retained by Hearst).
Retransmission consent rights for the Stations may be offered by Lifetime to
the following multichannel video programming distributors (“MVPDs”)
listed on Appendix A: (i) cable television system operators (“Cable
Operators”), (ii) satellite distributors (“DBS Operators”),
and (iii) SMATV, MDS and MMDS operators (collectively, “Other
MVPDs”). Retransmission consent rights for distribution of the Stations
by alternate technologies (such as VDSL) may be offered by Lifetime to those
MVPDs which are expressly identified on Appendix A as distributing programming
by such alternate technologies as of the date of this Agreement (“Current
Alternate Technology MVPDs”).
(b)
The right to negotiate
retransmission consent agreements shall be with MVPDs which own or manage
systems or other facilities serving customers located either (i) within the
applicable Designated Market Area (as defined by Nielsen Media Research)
(“DMA”) of the applicable Station, (ii) to the extent it is within
the limits of the MVPD’s compulsory copyright license and authorized by the
Station’s program supplier’s rights agreement, outside the DMA, in
each community where the applicable Station is “significantly
viewed” (as such term may be defined in the rules and regulations of the
Federal Communications Commission (“FCC”)) and (iii) to the extent
it is within the limits of the MVPD’s compulsory copyright license and
authorized by the Station’s program supplier’s rights agreement,
outside of such DMA, where
the Station has been
historically carried. Lifetime hereby agrees to use commercially reasonable
efforts to secure on Hearst’s behalf retransmission agreements with MVPDs
in accordance with the provisions hereof.
(c)
The parties agree that
Appendix A shall be deemed amended to include additional Cable Operators and
Other MVPDs that: (i) build or acquire systems that meet the criteria set
forth in clauses (b)(i), (b)(ii) and (b)(iii) above subsequent to the date of
this Agreement; and (ii) new legal entities resulting from the merger, consolidation
or sale of a MVPD. New MVPDs other than Cable Operators that meet the criteria
set forth in (b)(i), (b)(ii) and (b)(iii) above will be deemed added to
Appendix A unless Hearst notifies Lifetime of its objection to such addition
within fifteen days after notice to Hearst from Lifetime of such MVPD’s
request for retransmission rights. Notwithstanding anything herein to the
contrary, except with respect to those Current Alternate Technology MVPDs
expressly identified on Appendix A or otherwise agreed by Hearst pursuant to
the procedure set forth in this subsection (c), Lifetime’s authority
hereunder shall not include authority to negotiate the retransmission of the
Stations on or by the Internet, the worldwide web, telephone or DSL Lines or
any other means or methods of distribution other than cable, SMATV, MDS and
MMDS.
(d)
Notwithstanding
anything herein to the contrary, it is agreed that (i) the terms and conditions
of a MVPD’s retransmission consent rights agreement for each Station
shall be as contained in the Will Carry Agreement executed by Hearst for that
Station, and to the extent the terms and conditions of that Will Carry
Agreement may be inconsistent with any provision herein, the Will Carry
Agreement will control and (ii) if, by September 1, 2005, Lifetime shall not
have negotiated a Will Carry Agreement acceptable to Hearst with respect to any
Station which, as of the date of this Agreement, is being carried by a MVPD
pursuant to an existing election by Hearst for carriage on a “must
carry” basis, Hearst may, at its option, elect “must carry”
for that Station and that MVPD, and Hearst will give notice thereof to
Lifetime.
(e)
*
*
This Paragraph has been redacted pursuant
to a request for confidential treatment submitted to the SEC on February 27,
2006. We have filed the redacted material separately with the SEC.
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(f)
Except as otherwise
set forth in or contemplated by this Agreement, and without limiting the
generality of the exclusive grant of authority to Lifetime as set forth in
Paragraphs 1(a) through (1)(e) above during the Term (as defined below),
Hearst shall not grant to any other person or entity any right to negotiate any
retransmission consent right of Hearst with respect to the Stations for the
MVPDs and, subject to its licensee responsibilities under law to control at all
times the operation of its Stations, neither Hearst nor any Station shall enter
into any retransmission consent agreement with any MVPD, except as otherwise
provided for herein.
2.
TERM OF AGREEMENT.
(a)
Subject to Paragraph 5, the term
(“Term”) of Lifetime’s rights to represent Hearst in
accordance with the terms of this Agreement in connection with
Hearst’s retransmission consent rights shall expire as of the following
dates: With respect to * ;
with respect to
* ,
with respect to
* ;
with respect to all other Cable Operators and Other MVPDs, *
years after the expiration of the term of the current Will Carry Agreement with
the applicable MVPD, but in no event beyond
* .
(“* ” is defined, for
purposes of this Agreement, as
*
or any cable television system, MVPD or other entity owned, managed,
controlling or controlled by or under common control with
* , including but not limited to
* )
(b)
Notwithstanding the foregoing, the
expiration of the Term shall not affect the parties’ respective rights
and obligations hereunder with respect to any Will Carry Agreement entered into
during the Term to the extent that such Will Carry Agreement expires or
terminates subsequent to the expiration or termination of the Term. Expiration
of the Term shall not relieve Lifetime of its obligations to make all payments
otherwise due to be made to Hearst herein.
(c)
Notwithstanding any provision of this
Agreement to the contrary, except as otherwise agreed by the parties, Lifetime
shall have no rights to represent Hearst with respect to any extension or
renewal of the term of any Will Carry Agreement with any MVPD entered into by
Hearst hereunder or with respect to any replacement or successor Will Carry
Agreement with any MVPD. Lifetime’s rights to represent Hearst in accordance
with the terms of this Agreement in connection with Hearst’s
retransmission consent rights with respect to any MVPD shall terminate upon the
commencement of the original term of a Will Carry Agreement entered into by
Hearst hereunder with that MVPD; provided, however, that Lifetime may represent
Hearst with the extension or renewal of the Will Carry Agreement with
*
and
*
for a term which will expire no later than
* .
3.
RETRANSMISSION CONSENT AND
NETWORK AGREEMENTS
(a)
Retransmission consent
for the applicable Station will be granted by Hearst pursuant to the Will Carry
Agreement referred to in subsection (b) below to MVPDs who agree to carriage of
one or more Networks (which may be pursuant to extensions or renewals of
existing Network agreements). Each agreement, extension or renewal between a
MVPD and Lifetime for carriage of one or more of the Networks is referred to
herein as a “Network Agreement”.
*
Portions of this agreement have been
redacted pursuant to a request for confidential treatment submitted to the SEC
February 27, 2006. We have filed the redacted material separately with
the SEC.
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(b)
In connection with the
retransmission consent provisions relating to the Stations to be negotiated by
Lifetime, Lifetime will utilize a “Will Carry Agreement” as
approved by Hearst for each Cable Operator, each DBS Operator, and each other
MVPD. All Will Carry Agreements must be satisfactory to Hearst, including, but
not limited to, the extent of analog and digital bandwidth retransmitted,
channel carriage, tier placement, restrictions, if any, on program or other
content. * Lifetime acknowledges that, unless Hearst agrees otherwise, all Will
Carry Agreements will contain provisions regarding channel position, subscriber
penetration and manner of carriage rights no less favorable for the Station(s)
than the rights such Station(s) would have if it were carried by such Systems
pursuant to the “must carry” rules of the FCC. *
(c)
*
*
Portions of this agreement have been
redacted pursuant to a request for confidential treatment submitted to the SEC
February 27, 2006. We have filed the redacted material separately with
the SEC.
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4.
COMPENSATION TO HEARST.
(a)
Subject to Paragraph 5, for conducting
retransmission consent negotiations for the Stations, Hearst will pay Lifetime
an annual fee (the “Negotiation Fee”) in the amount of
* on
* ;
a like amount on
* ;
and a like amount on * .
(b)
In consideration of Hearst’s grant
of authority to negotiate retransmission consent rights in connection with one
or more executed Network Agreements, Lifetime will pay Hearst:
(i)
*
(ii)
*
*
Portions of this agreement have been
redacted pursuant to a request for confidential treatment submitted to the SEC
February 27, 2006. We have filed the redacted material separately with
the SEC.
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(iii)
*
(iv)
*
(c)
*
5.
TERMINATION/EXTENSION OF
AUTHORIZATION.
(a)
If a Will Carry Agreement with a DBS
Operator has not been successfully negotiated within
* following the expiration date of
the DBS Operator’s agreement, as in effect on the date of this
Agreement, then the right to negotiate that Will Carry Agreement may revert to
Hearst at Hearst’s election and Lifetime shall have no payment obligation
as to such DBS Operator, nor shall Hearst have any obligation to Lifetime with
respect to such DBS Operator.
(b)
If a Will Carry Agreement with a Cable
Operator or Other MVPD has not been successfully negotiated within
* following the expiration of
the Cable Operator’s or such
*
Portions of this agreement have been
redacted pursuant to a request for confidential treatment submitted to the SEC
February 27, 2006. We have filed the redacted material separately with
the SEC.
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Other MVPD’s agreement, as in effect on the date of this Agreement, then the right to negotiate that Will Carry Agreement may revert to Hearst at Hearst’s election and Lifetime shall have no payment obligation as to such Cable Operator or such Other MVPD, nor shall Hearst have any obligation to Lifetime with respect thereto.
6.
NO LIABILITY; INDEMNIFICATION.
Neither party shall have any responsibility or liability to the other party in the event that any negotiations authorized hereunder do not result in an agreement, or with respect to the terms or provisions of any agreement with a MVPD entered into in accordance with the terms provided herein. Neither party shall have any liability to the other party in the event of a breach, default or termination of any Network Agreement (including any retransmission consent provisions relating thereto). Each party shall indemnify and hold the other party harmless from and against any and all claims by third parties, and any liabilities, costs and expenses relating thereto, arising from such party’s actions in the performance of this Agreement. The provisions of this Section 6 shall survive termination of this Agreement and/or termination or rescission of the agency authorizations granted herein.
7.
NOTICES.
All notices required to be given hereunder shall be given in writing and sent by mail, electronic facsimile device, courier service, express mail service or personally delivered to the respective addresses of Lifetime and Hearst as set forth below (or such other address as such party may designate from time to time by notice to the other):
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If to Lifetime: |
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Lifetime Entertainment Services |
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2049 Century Park East |
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Suite 840 |
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Los Angeles, California 90067 |
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Attention: Executive Vice Pres., Distribution and Business Development |
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with a copy to: |
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Lifetime Television |
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309 West 49th Street, 16th Floor |
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New York, New York 10019 |
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Attention: Senior Vice Pres., Business and Legal Affairs |
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If to Hearst: |
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Hearst-Argyle Television, Inc. |
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888 Seventh Avenue |
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New York, New York 10106 |
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Attention: Chief Legal Officer |
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with a copy to: |
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Hearst-Argyle Television, Inc. |
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888 Seventh Avenue |
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New York, New York 10106 |
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Attention: General Counsel |
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Notice given by mail shall be effective five (5) days after the date of mailing, postage prepaid certified or registered mail; notice by electronic facsimile device shall be effective upon confirmation of receipt; notice by personal delivery, courier service or express mail service shall be effective upon delivery.
8.
ASSIGNMENT.
(a)
In the event of a transfer of all or
substantially all of a party’s assets, this Agreement shall be assigned
to the transferee and consent of the other party shall not be required. In all
other circumstances, neither party may assign or transfer this Agreement
without the prior written consent of the other. An assignment or transfer in
violation of this provision shall be null and void ab initio.
(b)
Transfer Of Station(s). In the event that Hearst proposes to sell or
transfer ownership or control of one or more Stations, Hearst shall notify
Lifetime in writing within thirty (30) days after entering into an agreement
for such sale or transfer. Upon the consummation of such assignment or
transfer, Lifetime’s authority to negotiate retransmission consent rights
for that Station(s) shall terminate.
(i)
*
(ii)
*
9.
CONFIDENTIALITY.
Each party agrees not to disclose to any person or entity the existence or terms of this Agreement unless the other party consents to that disclosure in advance except as may be required by law or by the rules of any exchange or market on which Hearst securities are listed. The parties will cooperate in the preparation of any press release regarding this Agreement. Additionally, Lifetime hereby agrees to be bound by any confidentiality provisions of any Will Carry Agreement. Notwithstanding anything to the contrary contained in this Section 9,
*
Portions of this agreement have been
redacted pursuant to a request for confidential treatment submitted to the SEC
February 27, 2006. We have filed the redacted material separately with
the SEC.
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Lifetime agrees that: (i) all past public disclosures by Hearst of the terms of this Agreement were made in compliance with the provisions of this Section 9 (and any future disclosures which contain substantially the same information, with adjustments of the dollar amounts to reflect actual payments made by Lifetime to Hearst, will also be deemed to be in compliance with the provisions of this Section 9); (ii) any public disclosures of the terms of this Agreement made on and after the date hereof, substantially in the form attached hereto as Appendix G, comply with the provisions of this Section 9 (it being agreed that such disclosures may contain some or all of the information contained in Appendix G); and (iii) Hearst will file a copy of this Agreement as part of its public reports filed with the Securities and Exchange Commission (“SEC”) and, although Hearst will request confidential treatment for the names of the various MVPDs contained herein and the dollar amounts referred to herein, there can be no assurance that the SEC will not require Hearst to disclose publicly such matters and any such disclosure will be deemed to comply with the provisions of this Section 9.
10.
GENERAL.
This Agreement shall constitute a valid and binding agreement with respect to all of the matters set forth herein. This Agreement shall be construed in accordance with the internal laws of the State of New York and, where applicable, the rules and regulations of the Federal Communications Commission. Should any part of this Agreement become inconsistent with the rules of the FCC or agreed upon governing law and the parties are not the beneficiaries of an appropriate waiver, that part of the Agreement shall terminate as of the date that such an inconsistency exists, but all other parts of the Agreement shall remain in full force and effect. In such event, the parties shall use their good faith efforts to modify this Agreement so as to conform it with the applicable FCC rule, policy, or law, if possible, while achieving their respective objectives under this Agreement. Lifetime further agrees that the retransmission consent negotiations for each Station will be conducted in accord with all applicable federal and state laws, including 47 C.F.R. §76.64 and §76.65 of the rules of the FCC, a copy of which is attached as Appendix D.
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11.
2000 AGREEMENT; MODIFICATIONS.
All of the obligations of the parties under the March 8, 2000 agreement as extended between the parties (the “2000 Agreement”) are not superseded by this Agreement and shall continue in full force and effect including Lifetime’s obligation to pay Hearst all fees provided for under the 2000 Agreement. Except as otherwise provided for herein, any grant of retransmission consent rights to a MVPD after the date of this Agreement shall be governed by the terms of this Agreement, except that grants of such rights for MVPDs listed on Appendix E through December 31, 2005, shall continue to be governed by the terms of the 2000 Agreement. This Agreement may not be amended or modified except by a writing executed by the parties hereto.
If the foregoing comports with your understanding, please sign and return the enclosed duplicate copy of this letter.
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LIFETIME ENTERTAINMENT SERVICES |
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By: |
/s/ LOUISE HENRY BRYSON |
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Acknowledged and agreed to |
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This 31st day of January, 2006 |
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HEARST-ARGYLE TELEVISION, INC. |
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By: |
/s/ STEVEN A. HOBBS |
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Name: |
STEVEN A. HOBBS |
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Title: |
EXECUTIVE VICE PRESIDENT, |
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CHIEF LEGAL AND DEVELOPMENT OFFICER |
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APPENDIX A
CABLE OPERATORS
THIS SCHEDULE HAS BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT SUBMITTED TO THE SEC FEBRUARY 27, 2006. WE HAVE FILED THE REDACTED MATERIAL SEPARATELY WITH THE SEC.
APPENDIX B
HEARST STATIONS
As of 01/01/06
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Channel |
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City of License |
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Licensee |
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KCCI(TV) |
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8 |
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Des Moines, Iowa |
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Des Moines Hearst-Argyle Television, Inc. |
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KCRA-TV |
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3 |
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Sacramento, California |
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Hearst-Argyle Stations, Inc. |
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KCWE-TV |
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29 |
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Kansas City, Missouri |
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KCWE-TV, Inc. |
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KETV(TV) |
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7 |
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Omaha, Nebraska |
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KETV Hearst-Argyle Television, Inc. |
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KHBS(TV) |
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40 |
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Fort Smith, Arkansas |
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KHBS Hearst-Argyle Television, Inc. |
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KHOG-TV |
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29 |
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Fayetteville, Arkansas |
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KHBS Hearst-Argyle Television, Inc. |
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KHVO(TV) |
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13 |
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Hilo, Hawaii |
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Hearst-Argyle Stations, Inc. |
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