Exhibit 10.33


 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


VIDEO ON
DEMAND

LICENSE AGREEMENT


 


This
VIDEO ON DEMAND LICENSE AGREEMENT (this “Agreement”), dated as of March 13,
2000 between New Frontier Media, Inc. a Colorado corporation (“Licensor”),
and TIME WARNER CABLE, a division of Time Warner Entertainment Company, L.P., a
Delaware partnership (“TWC”).


 


WHEREAS, TWC owns or manages certain cable television systems and
wishes to make motion pictures available to its subscribers on a “video on
demand” basis; and


 


WHEREAS, Licensor owns the rights to distribute certain motion pictures
and wishes to grant TWC a license to make them available to its subscribers on
such a basis.


 


NOW, WHEREFORE, in light of the foregoing and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
agree as follows:


 


1.                                       Definitions.


 


(a)                                  “Buy”.  Has the meaning set forth in Section 3(a).


 


(b)                                 “Concurrent
Compatible”.  Meeting the
MPEG-2 encoding specifications set forth in Exhibit A.


 


(c)                                  “Program”.  Each motion picture listed on a Schedule
delivered to TWC in accordance with Section 4(a).  Unless the context requires otherwise,
references to Programs in this Agreement shall be deemed also to refer to any
Supplemental Program Material relating thereto.


 


(d)                                 “Satellite
Delivery”.  Has the
meaning set forth in Section 2(e).


 


(e)                                  “SeaChange
Compatible”.  Meeting the
MPEG-2 encoding specifications set forth in Exhibit A.


 


(f)                                    “Subscriber”.  A residential location or other private
dwelling unit (including, without limitation, any hotel or motel room, hospital
room, nursing home room or dormitory room) within the Territory that receives
cable television service from any TWC Cable System.  Subscribers shall not include prisons,
military bases or mining camps, public places (including common areas of
hotels, motels, hospitals, nursing homes or dormitories) or commercial
establishment (including restaurants, bars or theatres).


 


(g)                                 “Supplemental
Program Material”.  Has the
meaning set forth in Section 4(f).


 


(h)                                 “Term”.  Has the meaning set forth in Section 2.


 


(i)                                     “Territory”.  The United States of America (including its
territories and possessions).


 


1

















 


Portions of this Exhibit have been redacted
pursuant to a request for confidential treatment under Rule 24b-2 of the
General Rules and Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in this Exhibit, has been filed with the
Securities and Exchange Commission together with such request for confidential
treatment.


 


(j)                                     “TWC Cable
System”.  A cable television system (i) which
is managed by a Time Warner Company or (ii) of which TWC, Time Warner Inc.
(“TWI”), Time Warner Entertainment Company, L.P. (“TWE”), Time Warner
Entertainment-Advance/Newhouse, L.P. (“TWEAN”), TWI Cable Inc. (“TWIC”), or
Paragon Communications directly or indirectly owns at least 25% of the equity,
and that in either case provides Video on Demand to its subscribers.


 


(k)                                  “Time Warner
Company”.  TWC, TWI,
TWE, TWEAN, TWIC or Paragon Communications, or any other corporation,
partnership, joint venture, trust, joint stock company, association,
unincorporated organization (including a group acting in concert) or other
entity of which TWC, TWI, TWE, TWEAN, TWIC or Paragon Communications, directly
or indirectly own at least 25% of the equity.


 


(l)                                     “Video on
Demand”.  The cable transmission of a
Program to, and the exhibition of a Program on the television set or other
receiving equipment of, a Subscriber, at such Subscriber’s request in a manner
such that the transmission may occur immediately or almost immediately upon
such Subscriber’s request.


 


2.                                       Term.  The term of this Agreement shall be [***]
commencing as of the date hereof.  This
Agreement shall automatically renew for successive [***] periods unless either
party provides the other with at least [***] prior written notice of such party’s
intention to terminate the Agreement at the end of the initial term or
then-current renewal term.  The initial
term and any renewal terms are herein referred to as the “Term.”


 


3.                                       Rights Granted.


 


(a)                                  Licensor hereby
grants TWC the non-exclusive right (but not the obligation) to offer each
Program to TWC’s Subscribers on a Video on Demand basis and, upon the request
of a Subscriber to view a Program, to transmit and exhibit the video and
accompanying audio portion of such Program to such Subscriber (such request and
delivery, a “Buy”).  The license granted
hereby shall permit TWC to deliver multiple feeds of a Program from a single
copy thereof.


 


(b)                                 The license
granted hereby in respect of each Buy shall permit the Subscriber to view such
Program at least [***] and, at TWC’s sole discretion, to view the Program more
than [***] up to [***] number of times within a [***] period.  The license granted hereby shall permit TWC,
in its sole discretion, to make available to its Subscribers, either through
equipment located at TWC’s transmission facilities or through the Subscriber’s
set-top box, the ability to “pause,” “rewind,” “fast forward” or use similar
VCR-like features while viewing the Program.


 


(c)                                  Licensor hereby
grants TWC the non-exclusive right to compress or otherwise technologically
manipulate the Programs as required (in TWC’s sole judgment) to make such
Programs available to requesting Subscribers. 
TWC’s compression or other technological manipulation of a Program shall
not have a material adverse impact on a viewer’s perception of such
Program.  Programs compressed in a manner
such that they are SeaChange Compatible or Concurrent Compatible (or 


 


2

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


compatible with any similar
MPEG-2 profile) shall be deemed not to result in a material adverse impact on a
viewer’s perception of such Program.


 


(d)                                 Licensor hereby
grants TWC the non-exclusive right to copy and store the Programs in digital
form on any medium now or hereafter available (including on one or more sever
hard drives) as required (in TWC’s sole judgment) to make such Programs
available to requesting Subscribers.  TWC
agrees, within a reasonable period of time after it ceases to make a Program
available on a VOD basis or the expiration or termination of this Agreement,
whichever date is sooner, to return or destroy all copies of Programs made or
stored by it hereunder.


 


(e)                                  Licensor hereby
grants TWC the non-exclusive right to transmit the Programs via an uplink
facility to one or more satellites for distribution to the TWC Cable Systems (“Satellite
Delivery”).


 


4.                                       Programs.


 


(a)                                  At least [***]
prior to the commencement of each [***] during the Term, Licensor shall provide
TWC with a schedule containing at least [***] adult feature films that will be
available to the TWC Cable Systems during such [***] for distribution on a
Video on Demand basis (each a “Schedule”). 
Licensor shall notify TWC as promptly as practicable of any changes in
any Schedule.  The Schedule for the first
[***] of the Term is attached hereto as Exhibit B.  TWC may, on [***] notice, require that
Licensor increase the number of films included on each Schedule delivered
thereafter, subject to a limit of [***] films.


 


(b)                                 Within [***] of
receipt of each Schedule, TWC will notify Licensor of the Programs TWC intends
to make available on a Video on Demand basis in the TWC Cable Systems, and for
which TWC requires delivery as contemplated by Section 7(a).  If TWC provides no such notice, Licensor
shall deliver all such films.  TWC shall
not be obligated to offer any Program in any TWC Cable System(s).


 


(c)                                  Each Program
provided by Licensor hereunder shall depict [***] and [***] situations, and
shall not depict [***].  The Programs
shall be [***] edited (sometimes known as “[***] edited”) adult films that are
[***] (or “[***]”) in the degree of explicitness of programming currently
featured on adult cable television services such as [***] (“[***] Standards”).  Upon [***] notice to Licensor by TWC,
Licensor shall provide TWC with [***] versions of each Program to be delivered
hereunder, [***] edited pursuant to “[***] Standards” and [***] edited for a
degree of explicitness similar to that currently featured on adult services
such as [***] (“[***] Standards”).


 


5.                                       Fees.


 


(a)                                  TWC shall pay
Licensor a license fee (the “License Fee”) for each Buy of a Program, such
License Fee to equal [***].


 


3

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


TWC shall, in its sole
discretion, determine the [***] to subscribers.


 


(b)                                 TWC shall pay
the License Fee in respect of each Buy even if the exhibition is treated as a
[***] or [***].  Notwithstanding the
foregoing, TWC shall be entitled to a credit in respect of any Buy if TWC, in
good faith, issues the relevant Subscriber a credit due to such Subscriber’s
inability to receive such Program (e.g., as a result of reception or other
technical difficulties) or due to such Subscriber having received such Program
in error.


 


6.                                       Payments;
Reports.


 


(a)                                  License Fees
shall be payable on a [***] basis and shall be due [***] after the end of each
[***].  In the event of a good faith
dispute regarding any fees, no such disputed fees shall be due or payable by
TWC to Licensor nor subject to the recovery of prejudgment interest unless and
until such dispute has been resolved to the satisfaction of TWC and Licensor;
provided that Licensor and TWC shall use [***] to resolve such dispute within a
[***] period, and, if the parties are unable to resolve such dispute within
such [***] period, the parties may pursue all available rights and remedies
hereunder.


 


(b)                                 A statement of
the number of Buys during the relevant [***] shall accompany each payment of
License Fees, together with any other information necessary for the computation
of the License Fees due to Licensor in respect of such [***].


 


(c)                                  If any amount
due hereunder is not paid when due or within [***] thereafter, the payor shall
pay, in addition to such amount, interest on such amount at a rate of [***]
percent ([***]%) per [***] (or, if lower, the maximum rate permitted by law)
from the date on which such amount was due through the date on which payment of
such amount is made.


 


(d)                                 During the
Term, and for [***] thereafter, TWC shall maintain accurate and complete books
and records, in accordance with generally accepted accounting principles and
practices which contain information sufficient to verify the Fees due Licensor
hereunder.  Upon not less than [***]
prior written notice, Licensor shall have the right, during the Term, [***], to
examine during normal business hours at a location within the 48 contiguous
United States without unreasonably interfering with the operation of TWC’s
business, the books and records of TWC which are related directly to the Video
on Demand offering of the Programs to the extent necessary to verify the
License Fees due; provided, however, that such examinations shall not be
conducted more frequently than [***] and that such examinations shall be
limited to License Fees payable during the [***] and the [***] (not to include
any period in respect of which an examination has been concluded).  If any such examination reveals a discrepancy
in the amount paid to Licensor, TWC shall pay Licensor an amount equal to the
amount of such discrepancy, plus interest on the amount of such discrepancy at
the rate of [***]% per [***] (or, if lower, the maximum rate permitted by law)
from the date on 


 


4

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


which such amount was paid
by or should have been paid to Licensor through the date on which payment is
made to Licensor.  Licensor will be
deemed to have waived any and all claims which it may have with respect to an
underpayment of fees due unless it gives written notice of such claims to TWC
upon the earlier of [***] after the date on which payment of such fees was due
or, within [***] after the conclusion of such examination.


 


7.                                       Delivery of
Programs; Content.


 


(a)                                  No later than
[***] prior to the first date of the [***] to which a particular Schedule
applies, Licensor shall deliver to TWC’s agent (as listed on Exhibit C, as
same may be amended from time to time by TWC upon reasonable notice to
Licensor) a single high-resolution digital format “source file” (i.e., a
Digital Beta or “DigiBeta” file) of each Program listed on such Schedule.


 


(b)                                 Licensor shall
not insert any [***] or [***] before, during or after any Program.  TWC shall be entitled to delete any material
that violates the foregoing restriction.


 


(c)                                  Without
limiting Section 7(b), Licensor represents, warrants and covenants that
each copy of a Program delivered to TWC hereunder shall contain no material
other than the video and principal audio portion of such Program (including
titles, credits, etc.); provided that such Program may contain closed
captioning and second language audio, in each case relating to such Program
(collectively, “Supplemental Program Material”).  Licensor shall not [***] on, or [***] by,
TWC, any TWC Cable System or any Subscriber in connection with the provision of
Supplemental Program Material.  TWC may
block any data or material included in any Program that does not comport with
the preceding.


 


(d)                                 Each Program
delivered to a requesting Subscriber by TWC shall be in the form received by
TWC (except as compressed or otherwise technologically manipulated in
accordance with this Agreement), and TWC shall not edit or alter such Program
in any way.  Licensor acknowledges that
the Subscriber’s use of TWC’s electronic program guide, remote control device
or navigator may cause certain information to be super-imposed over the Program
from time to time.


 


(e)                                  Except as otherwise
permitted hereunder, TWC shall not, and shall not authorize other persons to,
copy, tape or otherwise reproduce any part of any Program without Licensor’s
prior written authorization.  Neither TWC
nor any TWC Cable System shall be responsible or liable for any Subscriber’s
home recording of all or any portion of any Program.  This Section 7(e) shall not
restrict TWC’s practice of connecting distribution cables to Subscribers’
videotape recorders or other devices intended for home duplication of audio or
video programming, including TWC set-top boxes with recordable hard-drives.


 


5

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


8.                                       Promotion.


 


(a)                                  TWC will cause
the TWC Cable Systems to use [***] to promote the sale of the Programs on a
Video on Demand basis.  Licensor will
provide to TWC, upon request, at [***] cost, reasonable quantities of Licensor’s
then available promotional, marketing and sales material for the Programs.


 


(b)                                 TWC
acknowledges that, as between TWC and Licensor, certain names and marks
included in the Programs, as well as the names of certain of the Programs, are
the exclusive property of Licensor (or its suppliers) and that TWC has not and
will not acquire any proprietary rights therein by reason of this
Agreement.  Subject to compliance with
the terms of Exhibit D hereto, use of such names and marks in the form
supplied by Licensor in routine promotional materials (such as print or electronic
(including interactive) program guides, web sites, program listings and bill
stuffers), on-screen promotions and billing statements shall be deemed approved
unless Licensor specifically gives written notice to TWC to the contrary.  Nothing contained herein shall limit or
restrict the right of TWC to use such names and marks in connection with the
exercise of its rights hereunder.


 


(c)                                  Licensor shall
not use, and no right or license is herein granted to Licensor to use, any of
the trade names, trademarks, copyrights, styles, slogans, titles, logos or
service marks of TWC, any TWC cable television system or any affiliate of TWC.


 


9.                                       Representations
and Warranties.


 


(a)                                  Licensor
represents and warrants that:  (i) Licensor
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Colorado; (ii) Licensor has the requisite power
and authority to execute and deliver this Agreement and to fully perform its
obligations hereunder; (iii) the execution, delivery and performance of
this Agreement has been duly authorized by all actions necessary on the part of
Licensor; (iv) Licensor is not subject to any contractual or other legal
obligation which will in any way interfere with its full performance of this
Agreement; and (v) the individual executing this Agreement on behalf of
Licensor has the authority to do so.


 


(b)                                 Licensor
represents and warrants that it has and will have the right to grant the
licenses granted herein, free and clear of all liens, restrictions, charges,
claims and encumbrances, that it has obtained and will maintain all licenses,
permits, exemptions, authorizations and consents necessary to fully perform
this Agreement and that no Program (i) is or will be obscene or defamatory
(unless privileged) or (ii) violates or infringes or will violate or
infringe the civil or property rights, copyrights, music synchronization
rights, trademark rights, patent rights or rights of privacy or publicity or
any other rights of any person. 
Notwithstanding anything else in this Agreement, TWC shall have the
right to cease offering any Program if the representations contained in this Section 9(b) are
breached in respect thereof.


 


(c)                                  TWC represents
and warrants that:  (i) TWC is a
division of a limited partnership duly organized, validly existing and in good
standing under the laws of the State 


 


6

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


of Delaware; (ii) TWC
has the requisite power and authority to execute and deliver this Agreement and
to fully perform its obligations hereunder; (iii) the execution, delivery
and performance of this Agreement has been duly authorized by all action
necessary on the part of TWC; (iv) TWC is not subject to any contractual
or other legal obligation which will in any way interfere with its full
performance of this Agreement; and (v) the individual executing this
Agreement on behalf of TWC has the authority to do so.


 


(d)                                 The terms and
conditions, other than the existence and duration, of this Agreement, as well
as any technical data (including MPEG-2 encoding specifications) that are
exchanged by the parties (“Confidential Information”), shall be kept
confidential by the parties hereto and shall not be disclosed by either party
to any third party, without the prior written consent of the other party
except: (i) as may be required by any court of competent jurisdiction,
governmental agency, law or regulation (in such event, the disclosing party shall
notify the other party before disclosing the Agreement) (ii) as may be
required or necessary in any SEC or regulatory filings (redacted to the
greatest extent permitted under SEC “confidential treatment” regulations); (iii) as
part of the normal reporting or review procedure to a party’s accountants,
auditors, agents, legal counsel, partners and employees of parent and
subsidiary companies, provided such accountants, auditors, agents, legal
counsel, partners and employees of parent and subsidiary companies agree to be
bound by this Paragraph; (iv) to enforce any of a party’s rights pursuant
to this Agreement; (v) in connection with due diligence conducted in
connection with a merger, consolidation or acquisition provided that any person
to whom Confidential Information is so disclosed shall have executed, prior to
receiving any Confidential Information, written non-disclosure agreements which
include confidentiality provisions at least as strict as those set forth in
this Agreement; and (vi) to any prospective or existing lender provided
that any such lender shall have executed (prior to their review of any
Confidential Information) a written confidentiality agreement which includes
provisions at least as strict as the provisions set forth in this Agreement
regarding the confidentiality of information reviewed.


 


10.                                 Force Majeure. Neither party
shall have any liability to the other party for any failure to perform
hereunder, if such failure is due to an act of God, inevitable accident, fire,
lockout, strike or other labor dispute, riot or civil commotion, act of
government or governmental instrumentality (whether federal, state or local),
act of terrorism, failure of performance by a common carrier, failure in whole
or in part of technical facilities, or other cause (excluding financial
inability or difficulty of any kind) beyond such party’s reasonable control.


 


11.                                 Indemnification
and Other Remedies.


 


(a)                                  Licensor shall
indemnify TWC, the TWC Cable Systems, the persons who directly own the TWC
Cable Systems and each of their respective affiliates 


 


7

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


(including controlling
persons and related companies), officers, directors, shareholders, employees
and agents (“TWC Indemnitees”) for, and shall hold them harmless from and
against, any and all losses, settlements, claims, actions, suits, proceedings,
investigations, judgments, awards, damages and liabilities (collectively, “Losses”
and, individually, a “Loss”) which are sustained or incurred by or asserted
against any of them and which arise out of (i) any breach of this
Agreement by Licensor or (ii) the Programs (including, without limitation,
any Loss arising out of libel, slander, defamation, indecency, obscenity,
invasion of right of privacy or publicity, or infringement or violation of
copyrights, music synchronization rights, trademark rights or patent rights) ),
to the extent that such Losses do not arise directly from the TWC lndemnitees’
gross negligence or willful misconduct, and shall reimburse them for any and
all legal, accounting and other fees, costs and expenses (collectively, “Expenses”)
reasonably incurred by any of them in connection with investigating, mitigating
or defending any such Loss; provided, however, that Licensor will not have any
obligation or liability under this Section 11(a) to the extent that (A) TWC
has an obligation or liability with respect to the same Loss under Section 11(b) or
(B) the relevant Loss relates to violation of obscenity laws and would not
have arisen but for TWC delivering Programs that Licensor identified as having
been edited for Partial Editing Cable Standards to subscribers in states listed
on Exhibit E (as such Exhibit may be amended from time to time by
Licensor upon reasonable advance written notice to TWC).  Licensor shall not be required to indemnify
TWC hereunder to the extent that TWC is in breach of this Agreement, provided that
Licensor is not in breach of this Agreement.


 


(b)                                 TWC shall
indemnify Licensor and its affiliates (including controlling persons and
related companies), officers, directors, shareholders, employees and agents
(the “Licensor Indemnitees”) for, and shall hold them harmless from and
against, any and all Losses which are sustained or incurred by or asserted
against any of them and which arise out of any breach of this Agreement by TWC,
to the extent that such Losses do not arise directly from the Licensor
Indemniteers’ gross negligence or willful misconduct, and shall reimburse them
for any and all Expenses reasonably incurred by any of them in connection with
investigating, mitigating or defending any such Loss.  TWC shall not be required to indemnify Licensor
hereunder to the extent that Licensor is in breach of this Agreement, provided
that TWC is not in breach of this Agreement.


 


(c)                                  Promptly after
receipt by a party of notice of the commencement of any action, suit,
proceeding or investigation in respect of which a claim for indemnification may
be made hereunder by it or its affiliates, officers, directors, shareholders,
employees or agents, such party will give written notice thereof to the other
party; but the failure to so notify the other party will not relieve the other
party from any liability or obligation which the other party may have to any
indemnified person (i) otherwise than under this Agreement or (ii) under
this Agreement except to the extent of any material prejudice to the other
party resulting from such failure.  If
any such action, suit, proceeding or investigation is brought against an 


 


8

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


indemnified person, the
indemnifying party will be entitled to participate therein and, if it wishes to
assume the defense thereof with counsel satisfactory to the indemnified person
(who shall not, except with the consent of the indemnified person, be counsel
to the indemnified person) and gives written notice to the indemnified person
of its election so to assume the defense thereof within fifteen (15) days after
notice shall have been given to it by the indemnified person pursuant to the
preceding sentence, will be entitled to assume the defense thereof.  Each indemnified person will be obligated to
cooperate reasonably with the indemnifying party, at the expense of the
indemnifying party, in connection with such defense and the compromise or
settlement of any such action, suit, proceeding or investigation.


 


(d)                                 Neither party
shall, for any reason or under any legal theory, be liable to the other for any
special, indirect, incidental or consequential damages or for loss of profits,
revenues, data or services, regardless of whether such damages or loss was
foreseeable and regardless of whether it was informed or had direct or imputed
knowledge of the possibility of such damages or loss in advance.


 


(e)                                  All rights,
powers and remedies afforded to a party hereunder, by law, in equity or
otherwise shall be cumulative (and not alternative) and shall not preclude
assertion or seeking by a party of any other rights or remedies.


 


12.                                 Termination.


 


(a)                                  If a party (i) becomes
bankrupt or insolvent, however evidenced, (ii) admits in writing its
inability to pay its debts when due, (iii) makes a general assignment for
the benefit of creditors, (iv) has appointed, voluntarily or
involuntarily, any trustee, receiver, custodian or conservator with respect to
it or a substantial part of its property, (v) files, or has filed against
it, a voluntary or involuntary petition in bankruptcy or (vi) makes any
arrangement or otherwise becomes subject to any proceedings under the
bankruptcy, insolvency, reorganization or similar laws of the United States or
any state, then the other party shall have the right at any time thereafter to
terminate this Agreement by giving written notice to such party.


 


(b)                                 Either party
shall have the right to terminate this Agreement by giving written notice to
the other party if the other party has materially breached this Agreement and
such breach shall not have been fully cured; provided, however, that, if such
breach is fully curable, such party shall not have the right to terminate this
Agreement unless such party shall have given written notice to the other party
of such breach and the other party shall have failed to fully cure such breach
within thirty (30) days after such notice shall have been given.


 


(c)                                  This Section 12(c) and
Sections 5, 6, 9(a), 9(b), 9(d), 11, 14(b) and 14(c) shall survive
the expiration or termination of this Agreement for any reason.


 


13.                                 Notices.  All notices required or permitted to be given
pursuant to this Agreement shall be given in writing, shall be transmitted by
personal delivery, by registered or certified 


 


9

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


mail, return receipt
requested, postage prepaid, by an overnight delivery service or by telecopier
or other electronic means and shall be addressed as follows:


 


When Licensor is the intended recipient:


 


New Frontier Media, Inc


5435 Airport Blvd., Suite 100


Boulder, CO 80301


Attention: Senior Vice President, Sales


Telecopy No.: (303) 938-8388


 


with a copy to:


 


New Frontier Media, Inc


5435 Airport Blvd., Suite 100


Boulder, CO 80301


Attention: Director, Legal Affairs


Telecopy No.: (303) 413-1553


 


When TWC is the intended recipient:


 


Time Warner Cable


290 Harbor Drive


Stamford, Connecticut 06902


Attention: Senior Vice President, Programming


Telecopy No.: (203) 328-4040


 


with a copy to:


 


Time Warner Cable


290 Harbor Drive


Stamford, Connecticut 06902


Attention: Senior Vice President and General Counsel


Telecopy No.: (203) 328-0692


 


A
party may designate a new address to which notices shall thereafter be
transmitted by giving written notice to the other party.  Each notice transmitted in the manner
described in this Section 13 shall be deemed to have been given, received
and become effective for all purposes at the time it shall have been (i) delivered
to the addressee as indicated by the return receipt (if transmitted by mail),
the affidavit of the messenger (if transmitted by personal delivery), the
records of the overnight delivery service (if transmitted by such service) or
the answer back or call back (if transmitted by telecopier or other electronic
means) and printing of the transmission confirmation report by the sending
machine or (ii) presented for delivery to the addressee as so indicated
during normal business hours, if such delivery shall have been refused for any
reason.


 


10














 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


14.                                 Miscellaneous.


 


(a)                                  Neither party
shall be or hold itself out as the agent of the other party under this
Agreement.  Nothing contained herein
shall be deemed to create, and the parties do not intend to create, any
relationship of partners or joint venturers as between TWC and Licensor, and
neither party is authorized to or shall act toward third parties or the public
in any mariner which would indicate any such relationship.


 


(b)                                 The validity,
interpretation, performance and enforcement of this Agreement shall be governed
by the law of the State of New York (without giving effect to the laws, rules or
principles of the State of New York regarding conflicts of laws).  The respective obligations of the parties
under this Agreement are subject to all applicable federal, state and local
laws, rules and regulations (including, without limitation, the
Communications Act of 1934, as amended, the Cable Communications Policy Act of
1984, as amended, and the rules and regulations of the Federal
Communications Commission thereunder).


 


(c)                                  Each party
agrees that any proceeding arising out of or relating to this Agreement or the
breach or threatened breach of this Agreement may be commenced and prosecuted
in a court in the State of New York. 
Each party consents and submits to the non-exclusive personal
jurisdiction of any court in the State of New York in respect of any such
proceeding.  Each party consents to
service of process upon it with respect to any such proceeding by registered
mail, return receipt requested, and by any other means permitted by applicable
laws and rules.  Each party waives any
objection that it may now or hereafter have to the laying of venue of any such
proceeding in any court in the State of New York and any claim that it may now
or hereafter have that any such proceeding in any court in the State of New
York has been brought in an inconvenient forum. 
Each party waives trial by jury in any such proceeding.


 


(d)                                 This Agreement
together with the Exhibits attached hereto constitute the entire contract
between the parties with respect to the subject matter hereof and cancels and
supersedes all of the previous or contemporaneous contracts, representations,
warranties and understandings (whether oral or written) between the parties
with respect to the subject matter hereof.


 


(e)                                  This Agreement
shall be binding upon the parties and their respective successors and assigns
and shall inure to the benefit of the parties and their respective successors
and permitted assigns.  Neither party
shall assign any of its rights or delegate any of its duties under this
Agreement (by operation of law or otherwise) without the prior written consent
of the other party.  Notwithstanding the
foregoing, no such consent shall be required in connection with any such
assignment or delegation by (i) TWC to any Time Warner Company or any
person which controls, is controlled by or is under common control with TWC or
any Time Warner Company or any partner of Paragon Communications; (ii) Licensor
to any affiliate of Licensor; or (iii) Licensor to any other entity in
connection with a merger, consolidation or sale by Licensor of all or
substantially all of its assets, provided however, that upon an assignment by
Licensor pursuant 


 


11

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


to
the foregoing (iii), TWC shall have the right to terminate this Agreement
immediately upon written notice to Licensor without any further liability or
obligation of any kind under this Agreement. 
Any assignment of rights or delegation of duties under this Agreement by
a party without the prior written consent of the other party, if such consent
is required hereby, shall be void. 
Except as otherwise provided herein, no person shall be a third party
beneficiary of this Agreement.


 


(f)                                    The headings
set forth in this Agreement have been inserted for convenience of reference
only, shall not be considered a part of this Agreement and shall not limit,
modify or affect in any way the meaning or interpretation of this Agreement.


 


(g)                                 Except as
otherwise contemplated herein no amendment of this Agreement shall be binding upon
a party unless in writing and executed and delivered on behalf of each party
by, in the case of Licensor, an officer of Licensor and, in the case of TWC, by
its Senior Vice President, Programming, Senior Executive Vice President,
President or Chairman (each an “Authorized Person”); provided, however, that
any Authorized Person may, by written authorization, designate another person
to execute and deliver such an instrument. 
Unless authorized in writing pursuant to the preceding proviso, the
employees and officers of TWC’s regional divisions and the cable systems are
not Authorized Persons.


 


(h)                                 No waiver of
any provision of this Agreement shall be binding upon a party unless in writing
and executed and delivered on behalf of such party by, in the case of Licensor,
an officer of Licensor and, in the case of TWC, by an Authorized Person.  Such waiver shall be effective only to the
extent specifically set forth in such written instrument and no waiver of any
breach or provision hereunder shall be deemed to be a waiver of a preceding or
subsequent breach of the same or any other provision of this Agreement.


 


(i)                                     This Agreement
may be signed in any number of counterparts, each of which (when executed and
delivered) shall constitute an original instrument, but all of which together
shall constitute one and the same instrument.


 


12

















 


Portions of
this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


IN WITNESS WHEREOF, the parties have duly
executed and delivered this Agreement as of the date first above written.


 


	
   

  	
  TIME WARNER CABLE, a
  division of

  
	
   

  	
  TIME WARNER ENTERTAINMENT
  COMPANY, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  [Illegible]

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEW FRONTIER MEDIA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Weiner

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael Weiner

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  VP

  



 


13

















 


Portions
of this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


EXHIBIT A


 


MPEG Encoding
Specifications


 


[Technical
Specifications Omitted]


 


[***]


 


14

















 


Portions of this Exhibit have been
redacted pursuant to a request for confidential treatment under Rule 24b-2
of the General Rules and Regulations under the Securities Exchange
Act.  Omitted information, marked “[***]” in this Exhibit, has been filed
with the Securities and Exchange Commission together with such request for
confidential treatment.


 


Exhibit B


 


Movie
Schedule


 


[Movie
Schedule by Date and Title Omitted]


 


[***]


 

















 


Portions
of this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


EXHIBIT C


 


iN Demand LLC

345 Hudson Street

17th Floor

New York NY 10014


 


16

















 


Portions
of this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


EXHIBIT D


 


Use of
Network Names and Marks


 


Affiliate’s use of the Marks shall be limited to the
advertising and promotion of its carriage of the Service over the Cable Systems
pursuant to this Agreement.  Network
shall provide Affiliate with samples of each of the Marks which Affiliate shall
use in their entirety (including all service mark and trademark notices)
whenever a Mark is used by Affiliate.


 


17

















 


Portions
of this Exhibit have been redacted pursuant to a request for confidential
treatment under Rule 24b-2 of the General Rules and Regulations under
the Securities Exchange Act.  Omitted information, marked “[***]” in this
Exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.


 


EXHIBIT E


 


[***]
Standard States


 


[States Requiring [***]
Standard Omitted]


 


18














 


Portions of this Exhibit have been redacted
pursuant to a request for confidential treatment under Rule 24b-2 of the
General Rules and Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in this Exhibit, has been filed with the
Securities and Exchange Commission together with such request for confidential
treatment.


 


AMENDMENT TO THE
VIDEO ON DEMAND LICENSE AGREEMENT


 


This Amendment, effective as of April 30, 2007
(“Effective Date”) hereby amends the Video on Demand License Agreement
regarding carriage of motion pictures on a “video on demand” basis that was
entered into by and between NEW FRONTIER MEDIA, INC. a Colorado Corporation (“Licensor”)
and TIME WARNER CABLE, a division of Time Warner Entertainment Company, L.P., a
Delaware partnership (“TWC”) as of the 13th day of March, 2000 (the “Agreement”).  Licensor and TWC hereby agree as follows:


 


1.                                       Amendments to Agreement.  The following provisions amend certain
provisions set forth in the Agreement and such provisions shall govern the
parties’ relationship with respect to the Programs provided to TWC by Licensor
under the Agreement and this Amendment.


 


A.                                   Programs.  Section 4(a) of the Agreement is
hereby modified by adding “(each, an “Adult Feature Film”) and at [***] Events”
after the phrase “[***] adult feature films” in the first sentence of such
Section.


 


B.                                     Programs.  The following shall be added as a new Section 4(d) to
the Agreement: “Without limiting the generality or applicability of Section 4(c),
an “Event” shall mean a [***] program which focuses on [***] in [***] or [***]
situations licensed by Licensor.  The
depiction of [***] in these episodes may be [***] or [***]; however, the level
of depicted explicitness shall be [***] (or “[***]” than) movies shown on premium
channels as [***] and [***].


 


C.                                     Fees.  Section 5(a) of the Agreement is
hereby modified by replacing the word “Program” with the phrase “Adult Feature
Film” and by adding to the end of such first sentence the phrase “and a License
Fee for each Buy of an Event equal to [***].”


 


D.                                    Payments;
Reports.  Section 6(b) of the
Agreement is hereby modified by adding the following at the end of such
Section, “Such statement shall include, without limitation, the number of Buys
during the relevant [***] of all Events and Adult Feature Films licensed to TWC
pursuant to this Amendment.”


 


E.                                      Definitions.  Section 1(c) of the Agreement (the
definition of “Program”) is hereby modified by replacing the phrase “motion
picture” with the phrase “Adult Feature Film and Event.”


 


2.                                       All of the terms and
conditions set forth in the Agreement shall remain in full force and effect,
except to the extent that such terms and conditions are modified by or in
conflict with the provisions of this Amendment, in which case the provisions of
this Amendment shall prevail.  Subject to
the foregoing, this Amendment and the Agreement (including all other
amendments, addenda, schedules and exhibits thereto) shall be deemed one and
the same document, and references in the Agreement to the “Agreement” shall be
deemed to refer to the Agreement as amended by this Amendment.


 

















 


Portions of this Exhibit have been redacted
pursuant to a request for confidential treatment under Rule 24b-2 of the
General Rules and Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in this Exhibit, has been filed with the
Securities and Exchange Commission together with such request for confidential
treatment.


 


Signature
Page to Follow


 


2





















 


Portions of this Exhibit have been redacted pursuant to
a request for confidential treatment under Rule 24b-2 of the General
Rules and Regulations under the Securities Exchange Act.  Omitted
information, marked “[***]” in this Exhibit, has been filed with the Securities
and Exchange Commission together with such request for confidential treatment.


 


ACCEPTED AND AGREED:


 


	
  Time Warner Cable

  	
  New Frontier Media, Inc.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Melinda C. Witmer

  	
   

  	
  By:

  	
  /s/ Ken Boenish

  
	
  Name:

  	
  Melinda C. Witmer

  	
   

  	
  Name: Ken Boenish

  
	
  Title:

  	
  SVP and Chief Programming
  Officer

  	
   

  	
  Title: President

  



 


3














 


Portions of this Exhibit have
been redacted pursuant to a request for confidential treatment under Rule 24b-2
of the General Rules and Regulations under the Securities Exchange
Act.  Omitted information, marked “[***]” in this Exhibit, has been filed
with the Securities and Exchange Commission together with such request for
confidential treatment.


 


SECOND AMENDMENT TO
THE

VIDEO ON DEMAND LICENSE AGREEMENT


 


This Second Amendment,
effective as of May 17, 2007 (“Effective Date”) hereby amends the
Video on Demand License Agreement regarding carriage of motion pictures on a “video
on demand” basis that was entered into by and between NEW FRONTIER MEDIA, INC.
a Colorado corporation (“Licensor”) and TIME WARNER CABLE, a division of
Time Warner Entertainment Company, L.P., a Delaware partnership (“TWC”)
as of the 13th day of March, 2000 (as amended, the “Agreement”).  Licensor and TWC hereby agree as follows:


 


1.             Amendments to Agreement.  The following provisions amend certain
provisions set forth in the Agreement and such provisions shall govern the
parties’ relationship with respect to the Programs provided to TWC by Licensor
under the Agreement and this Amendment.


 


A.            Programs.  Section 4(a) of the Agreement is
hereby modified by adding “and [***] or more [***]” after the phrase “[***]
Events” in the first sentence of such Section.


 


B.            Programs.  The following shall be added as a new Section 4(e) to
the Agreement:  “Without limiting the
generality or applicability of Sections 4(c) and 4(d), a “[***]” shall
mean a feature length film, which is at least [***] in length, which contains
[***] and which may depict [***] situations containing [***]; provided
that any depiction of [***] is [***] and [***] occurs, and the level of
depicted [***] explicitness shall be [***] (or “[***]” than) movies shown on
premium channels such as [***] and [***].”


 


C.            Fees.  Section 5(a) of the Agreement is
hereby modified by adding to the end of such first sentence the phrase “and a
License Fee for each Buy of a [***] equal to [***].”


 


D.            Payments; Reports.  Section 6(b) of the Agreement is
hereby modified by adding “,[***],” after the phrase “Such statement shall
include, without limitation, the number of Buys during the relevant [***] of
all Events.”


 


E.             Definitions.  Section 1(c) of the Agreement (the
definition of “Program”) is hereby modified by adding “, [***]” after the
phrase “Adult Feature Film.”


 


2.             All of the terms and
conditions set forth in the Agreement shall remain in full force and effect,
except to the extent that such terms and conditions are modified by or in
conflict with the provisions of this Second Amendment, in which case the
provisions of this Second Amendment shall prevail.  Subject to the foregoing, this Second
Amendment and the Agreement (including all other amendments, addenda, schedules
and exhibits thereto) shall be deemed one and the same document, and references
in the Agreement to the “Agreement” shall be deemed to refer to the Agreement
as amended by this Second Amendment.


 


Signature
Page to Follow


 






 













 


Portions of this Exhibit have been redacted
pursuant to a request for confidential treatment under Rule 24b-2 of the
General Rules and Regulations under the Securities Exchange Act. 
Omitted information, marked “[***]” in this Exhibit, has been filed with the Securities
and Exchange Commission together with such request for confidential treatment.


 


ACCEPTED AND AGREED:


 


	
  Time Warner Cable

  	
   

  	
  New Frontier Media, Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
  /s/ Karyn L.Miller

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
  Karyn Miller

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer