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.
2
(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.
3
(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.
4
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.
5
(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.
6
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 49 th Street, 16
th 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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7
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.
8
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.
9
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:
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/s/ LOUISE HENRY BRYSON
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Acknowledged and agreed
to
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This 31 st day of
January, 2006
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HEARST-ARGYLE TELEVISION,
INC.
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By:
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/s/ STEVEN A. HOBBS
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Name:
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STEVEN A. HOBBS
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Title:
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EXECUTIVE VICE PRESIDENT,
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CHIEF LEGAL AND DEVELOPMENT
OFFICER
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10
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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Call
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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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KITV(TV)
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4
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Honolulu, Hawaii
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Hearst-Argyle Stations,
Inc.
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KMAU(TV)
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12
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Wailuku, Hawaii
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Hearst-Argyle Stations,
Inc.
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KMBC-TV
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9
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Kansas City, Missouri
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KMBC Hearst-Argyle Television,
Inc.
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KOAT-TV
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7
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Albuquerque, New Mexico
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KOAT Hearst-Argyle Television,
Inc.
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KOCO-TV
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5
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Oklahoma City, Oklahoma
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Ohio/Oklahoma Hearst-Argyle
Television, Inc.
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KOCT(TV)
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6
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Carlsbad, New Mexico
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KOAT Hearst-Argyle Television,
Inc.
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KOFT-DT
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8
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Farmington, New Mexico
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KOAT Hearst-Argyle Television,
Inc.
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KOVT(TV)
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10
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Silver City, New Mexico
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KOAT Hearst-Argyle Television,
Inc.
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KQCA(TV)
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58
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Stockton, California
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Hearst-Argyle Stations,
Inc.
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KSBW(TV)
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8
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Salinas, California
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Hearst-Argyle Stations,
Inc.
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WAPT(TV)
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16
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Jackson, Mississippi
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WAPT Hearst-Argyle Television,
Inc.
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WBAL-TV
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11
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Baltimore, Maryland
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WBAL-TV Hearst-Argyle Television,
Inc.
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WCVB-TV
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5
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Boston, Massachusetts
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WCVB Hearst-Argyle Television,
Inc.
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WDSU(TV)
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6
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New Orleans, Louisiana
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New Orleans Hearst-Argyle
Television, Inc.
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WESH(TV)
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2
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Daytona Beach, Florida
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Orlando Hearst-Argyle Television,
Inc.
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WGAL(TV)
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8
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Lancaster, Pennsylvania
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WGAL Hearst-Argyle Television,
Inc.
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WISN-TV
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12
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Milwaukee, Wisconsin
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WISN Hearst-Argyle Television,
Inc.
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WLKY-TV
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32
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Louisville, Kentucky
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WLKY Hearst-Argyle Television,
Inc.
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WLWT(TV)
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5
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Cincinnati, Ohio
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Ohio/Oklahoma Hearst-Argyle
Television, Inc.
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WMOR-TV
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32
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Lakeland, Florida
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WMOR-TV Company
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WMTW-TV
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8
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Poland Spring, Maine
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Hearst-Argyle Properties,
Inc.
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WMUR-TV
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9
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Manchester, New Hampshire
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Hearst-Argyle Properties,
Inc.
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WNNE-TV
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31
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Hartford, Vermont
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Hearst-Argyle Stations,
Inc.
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WPBF(TV)
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25
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Tequesta, Florida
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WPBF-TV Company
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WPTZ(TV)
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5
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North Pole, New York
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Hearst-Argyle Stations,
Inc.
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WTAE-TV
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4
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Pittsburgh, Pennsylvania
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WTAE Hearst-Argyle Television,
Inc.
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WXII-TV
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12
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Winston-Salem, North
Carolina
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WXII Hearst-Argyle Television,
Inc.
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WYFF(TV)
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4
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Greenville, South
Carolina
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WYFF Hearst-Argyle Television,
Inc.
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APPENDIX C
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 C-I
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 D
FCC RULES
§ 76.64 Retransmission
consent.
(a) After 12:01 a.m. on October 6,
1993, no multichannel video programming distributor shall
retransmit the signal of any commercial broadcasting station
without the express authority of the originating station, except as
provided in paragraph (b) of this section.
(b) A commercial broadcast signal
may be retransmitted without express authority of the originating
station if—
(1) The distributor is a cable
system and the signal is that of a commercial television
station (including a low-power television station) that is being
carried pursuant to the Commission’s must-carry rules set
forth in § 76.56;
(2) The multichannel video
programming distributor obtains the signal of a superstation that
is distributed by a satellite carrier and the originating station
was a superstation on May 1, 1991, and the distribution is made
only to areas outside the local market of the originating station;
or
(3) The distributor is a satellite
carrier and the signal is transmitted directly to a home satellite
antenna, provided that:
(i) The broadcast station is not
owned or operated by, or affiliated with, a broadcasting network
and its signal was retransmitted by a satellite carrier on May 1,
1991, or
(ii) The broadcast station is owned
or operated by, or affiliated with a broadcasting network, and the
household receiving the signal is an unserved household.
(c) For purposes of this section,
the following definitions apply:
(1) A satellite carrier is an entity
that uses the facilities of a satellite or satellite service
licensed by the Federal Communications Commission, to establish and
operate a channel of communications for point-to-multipoint
distribution of television station signals, and that owns or leases
a capacity or service on a satellite in order to provide such
point-to-multipoint distribution, except to the extent that such
entity provides such distribution pursuant to tariff under the
Communications Act of 1934, other than for private home
viewing;
(2) A superstation is a television
broadcast station other than a network station, licensed by the
Federal Communications Commission that is secondarily transmitted
by a satellite carrier;
(3) An unserved household with
respect to a television network is a household that
(i) Cannot receive, through the use
of a conventional outdoor rooftop receiving antenna, an
over-the-air signal of grade B intensity of a primary network
station affiliated with that network, and
(ii) Has not, within 90 days before
the date on which that household subscribes, either initially or on
renewal, received secondary transmissions by a satellite carrier of
a network station affiliated with that network, subscribed to a
cable system that provides the signal of a primary network station
affiliated with the network.
(4) A primary network station is a
network s
