exv10w12



 






Exhibit 10.12




NOTE AND WARRANT PURCHASE AGREEMENT




     This Note and Warrant Purchase Agreement (this “Agreement”) is dated as of July 15,
2005, among NGTV, a California corporation (the “Company”), and the purchasers identified
on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).



     WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”) and Rule 506
promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each
Purchaser, severally and not jointly, desires to purchase from the Company, up to an aggregate of
$4,000,000 in Notes and Warrants of the Company as more fully described in this Agreement.



     NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration the receipt and adequacy of which are hereby acknowledged,
the Company and each Purchaser agree as follows:



ARTICLE I

DEFINITIONS




     1.1 Definitions. In addition to the terms defined elsewhere in this Agreement: (a)
capitalized terms that are not otherwise defined herein have the meanings given to such terms in
the Convertible Notes (as defined herein), and (b) the following terms have the meanings indicated
in this Section 1.1:



          “Affiliate” means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 under the Securities Act.




          “Closing” means the closing of the purchase and sale of the Securities pursuant to
Section 2.1.




          “Closing Date” means the Trading Day when all of the Transaction Documents have been
executed and delivered by the applicable parties thereto, and all conditions precedent to (i) each
Purchaser’s obligations to pay the Subscription Amount have been satisfied or waived (ii) and the
Company’s obligations to deliver the Securities have been satisfied or waived.




          “Common Stock” means the common stock of the Company, and any securities into which
such common stock shall hereinafter have been reclassified into.




          “Common Stock Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock, including without
limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any
time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.




 









 








          “ Notes” means the Notes, issued by the Company to the Purchasers hereunder, in the
substantially the form attached .




          “Escrow Agent” shall mean Richardson & Patel LLP as set forth in the Escrow Agreement.




          “Escrow Agreement” shall mean the Escrow Agreement in substantially the form of
Exhibit A hereto executed and delivered contemporaneously with this Agreement.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          “Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.




          “Securities” means the Notes, the Warrants and the Warrant Shares.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for
Notes and Warrants purchased hereunder as specified below such Purchaser’s name on the signature
page of this Agreement and next to the heading “Subscription Amount”, in United States Dollars and
in immediately available funds.




          “Trading Day” means any day during which the Trading Market shall be open for
business.




          “Transaction Documents” means this Agreement, the Notes, the Warrants, the Escrow
Agreement and any other documents or agreements executed in connection with the transactions
contemplated hereunder.




          “Warrants” means collectively the Common Stock purchase warrants delivered to the
Purchasers at the Closing in accordance with Section 2.2 hereof, which Warrants shall be
exercisable immediately and for a term of three years.




          “Warrant Shares” means the shares of Common Stock issuable upon exercise of the
Warrants.




ARTICLE II

PURCHASE AND SALE




     2.1 Closing. Individual closings shall take place for each Purchaser (each, a
“Closing”) from the date hereof and for a period of six months hereafter. Upon the terms and
subject to the conditions set forth herein, concurrent with the execution and delivery of this
Agreement by the parties hereto, the Company agrees to sell, and each Purchaser agrees to purchase
in the aggregate, severally and not jointly, the Subscription Amount of the Notes. Each Purchaser
shall deliver to the Escrow Agent via wire transfer or a certified check for immediately



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available funds equal to their respective Subscription Amount and the Company shall deliver to
each Purchaser their respective Note and Warrants as determined pursuant to Section 2.2(a)
and the other items set forth in Section 2.2 issuable at the Closing. Upon satisfaction of
the conditions set forth in Section 2.2, the Closing shall occur at the offices of the
Escrow Agent or such other location as the Company and Purchaser shall mutually agree.



     2.2 Conditions to Closing. The Closing shall be subject to the following conditions
and deliveries being met on the Closing Date:



          (a) At or prior to the Closing, unless otherwise indicated below, the Company shall deliver or
cause to be delivered to the Escrow Agent with respect to each Purchaser the following:





     (i) a Note with a principal amount equal to such Purchaser’s Subscription
Amount, registered in the name of such Purchaser;




     (ii) a Warrant registered in the name of such Purchaser to purchase up to a
number of shares of Common Stock equal to the Subscription Amount divided by $1.00,
with an exercise price equal to $0.001 per share, subject to adjustment therein; and




     (iii) this Agreement, duly executed by the Company.



          (b) At or prior to the Closing, each Purchaser shall deliver or cause to be delivered to the
Escrow Agent the following:





     (i) such Purchaser’s Subscription Amount;




     (ii) this Agreement, duly executed by such Purchaser; and




     (iii) the Warrant, duly executed by such Purchaser.



ARTICLE III

REPRESENTATIONS AND WARRANTIES




     3.1 Representations and Warranties of the Company. The Company hereby makes the
representations and warranties set forth below to each Purchaser.



          (a) Organization and Qualification. The Company is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws of the jurisdiction of
its incorporation, with the requisite power and authority to own and use its properties and assets
and to carry on its business as currently conducted. The Company is not in violation of any of the
provisions of its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. The Company is duly qualified to do business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary,


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except where the failure to be so qualified or in good standing, as the case may be, could
not, individually or in the aggregate: (i) adversely affect the legality, validity or
enforceability of any Transaction Document, (ii) have or result in or be reasonably likely to have
or result in a material adverse effect on the results of operations, assets, prospects, business or
condition (financial or otherwise) of the Company taken as a whole, or (iii) adversely impair the
Company’s ability to perform fully on a timely basis its obligations under any of the Transaction
Documents.




          (b) Authorization; Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each of the Transaction
Documents and otherwise to carry out its obligations hereunder or thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby or thereby have been duly authorized by all necessary action on
the part of the Company and no further consent or action is required by the Company. Each of the
Transaction Documents has been (or upon delivery will be) duly executed by the Company and, when
delivered in accordance with the terms hereof, will constitute the valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally and general principles of equity.




          (c) No Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company and the consummation by the Company of the transactions contemplated
thereby do not and will not: (i) conflict with or violate any provision of the Company’s
certificate or articles of incorporation, bylaws or other organizational or charter documents, or
(ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company debt or otherwise) or other understanding to which
the Company is a party or by which any property or asset of the Company is bound or affected, or
(iii) result, in a violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or asset of the
Company is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not, individually or in the aggregate, have or result in a material adverse effect on the Company.




     3.2 Representations and Warranties of the Purchasers. Each Purchaser hereby, for
itself and for no other Purchaser, represents and warrants to the Company as follows:



          (a) Organization; Authority. If such Purchaser is an entity, it is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization with
the requisite corporate or partnership power and authority to enter into and to consummate the
transactions contemplated by the Transaction Documents and otherwise to carry out its obligations
thereunder. The purchase by such Purchaser of the Securities hereunder has been duly authorized by
all necessary action on the part of such Purchaser. This Agreement has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with


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the terms hereof, will constitute the valid and legally binding obligation of such Purchaser,
enforceable against it in accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.




          (b) Investment Representation. Such Purchaser is acquiring the Securities as
principal for its own account and not with a view to or for distributing or reselling such
Securities or any part thereof, without prejudice, however, to such Purchaser’s right, subject to
the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of
such Securities pursuant to an effective registration statement under the Securities Act or under
an exemption from such registration and in compliance with applicable Federal and state securities
laws. Nothing contained herein shall be deemed a representation or warranty by such Purchaser to
hold Securities for any period of time or limit such Purchaser’s right to sell the Securities
pursuant to the Registration Statement or otherwise in compliance with applicable federal and state
securities laws. Such Purchaser is acquiring the Securities hereunder in the ordinary course of
its business. Such Purchaser does not have any agreement or understanding, directly or indirectly,
with any Person to distribute any of the Securities. All of the representations, warranties and
information of Purchaser provided in the Subscription Application are incorporated herein, and made
a part hereof by this reference.




          (c) Purchaser Status. At the time such Purchaser was offered the Securities, it was,
and at the date hereof it is, and on each date on which it exercises any Warrants or converts any
Notes it will be, an “accredited investor” as defined in Rule 501(a) under the Securities Act. Such
Purchaser has not been formed solely for the purpose of acquiring the Securities. Such Purchaser
is not a registered broker-dealer under Section 15 of the Exchange Act.




          (d) Experience of such Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able
to bear the economic risk of an investment in the Securities and, at the present time, is able to
afford a complete loss of such investment.




          (e) General Solicitation. Such Purchaser is not purchasing the Securities as a result
of any advertisement, article, notice or other communication regarding the Securities published in
any newspaper, magazine or similar media or broadcast over television or radio or presented at any
seminar or any other general solicitation or general advertisement.




          (f) Due Diligence. Purchaser (i) has been provided with sufficient information with
respect to the business of the Company for the Purchaser to determine the suitability of making an
investment in the Company and such documents relating to the Company as the Purchaser has requested
and the Purchaser has carefully reviewed the same, (ii) has been provided with such additional
information with respect to the Company and its business and financial condition as the Purchaser,
or the Purchaser’s agent or attorney, has requested, (iii) has had access to management of the
Company and the opportunity to discuss the


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information provided by management of the Company and any questions that the Purchaser had
with respect thereto have been answered to the full satisfaction of the Purchaser, and has reviewed
the Company’s public reports filed with the Securities and Exchange Commission under the Securities
Act and the Exchange Act.




3.3 U.S.A. Patriot Act Representations




     (a) Purchaser represents, warrants and covenants that Purchaser:



     (i)(a) is subscribing for the Securities for Purchaser’s own account, own risk and own
beneficial interest, (b) is not acting as an agent, representative, intermediary, nominee or in a
similar capacity for any other person or entity, nominee account or beneficial owner, whether a
natural person or entity (each such natural person or entity, an “Underlying Beneficial Owner”) and
no Underlying Beneficial Owner will have a beneficial or economic interest in the Securities being
purchased by Purchaser (whether directly or indirectly, including without limitation, through any
option, swap, forward or any other hedging or derivative transaction), (c) if it is an entity,
including, without limitation, a fund-of-funds, trust, pension plan or any other entity that is not
a natural person (each, an “Entity”), has carried out thorough due diligence as to and established
the identities of such Entity’s investors, directors, officers, trustees, beneficiaries and
grantors (to the extent applicable, each a “Related Person” of such Entity), holds the evidence of
such identities, will maintain all such evidence for at least five years from the date of
Purchaser’s resale or other disposition of all the Securities, will request such additional
information as the Company may require to verify such identities as may be required by applicable
law, and will make such information available to the Company upon its request, and (d) does not
have the intention or obligation to sell, pledge, distribute, assign or transfer all or a portion
of the Securities to any Underlying Beneficial Owner or any other person; or



     (ii)(a) is subscribing for the Securities as a record owner and will not have a beneficial
ownership interest in the Securities, (b) is acting as an agent, representative, intermediary,
nominee or in a similar capacity for one or more Underlying Beneficial Owners (as defined in
(A)(i)(a) above), and understands and acknowledges that the representations, warranties and
agreements made in the Financing Documents are made by Purchaser with respect to both Purchaser and
the Underlying Beneficial Owner(s), (c) has all requisite power and authority from the Underlying
Beneficial Owner(s) to execute and perform the obligations under the Subscription Agreement, (d)
has carried out thorough due diligence as to and established the identities of all Underlying
Beneficial Owners (and, if an Underlying Beneficial Owner is not a natural person, the identities
of such Underlying Beneficial Owner’s Related Persons (to the extent applicable)), holds the
evidence of such identities, will maintain all such evidence for at least five years from the date
of Purchaser’s resale or other disposition of all the Securities, and will make such information
available to the Company upon its request and (e) does not have the intention or obligation to
sell, pledge, distribute, assign or transfer all or a portion of the Securities to any person other
than the Underlying Beneficial Owner(s).



     (b) Purchaser hereby represents and warrants that the proposed investment in the Company that
is being made on its own behalf or, if applicable, on behalf of any Underlying Beneficial Owners
does not directly or indirectly contravene United States federal, state, local or



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international laws or regulations applicable to Purchaser, including anti-money laundering
laws (a “Prohibited Investment”).



     (c) Federal regulations and Executive Orders administered by the U.S. Treasury Department’s
Office of Foreign Assets Control (“OFAC”) prohibit, among other things, the engagement in
transactions with, and the provision of services to, certain foreign countries, territories,
entities and individuals. The lists of OFAC prohibited countries, territories, persons and
entities can be found on the OFAC website at <www.treas.gov/ofac>. Purchaser hereby
represents and warrants that neither Purchaser nor, if applicable, any Underlying Beneficial Owner
or Related Person, is a country, territory, person or entity named on an OFAC list, nor is
Purchaser nor, if applicable, any Underlying Beneficial Owner or Related Person, a natural person
or entity with whom dealings are prohibited under any OFAC regulations.



     (d) Purchaser represents and warrants that neither Purchaser nor, if applicable, any
Underlying Beneficial Owner or Related Person, is a senior foreign political figure, or any
immediate family member or close associate of a senior foreign political figure within the meaning
of, and applicable guidance issued by the Department of the Treasury concerning, the U.S. Bank
Secrecy Act (31 U.S.C. §5311 et seq.), as amended, and any regulations promulgated thereunder.



     (e) Purchaser agrees promptly to notify the Company should Purchaser become aware of any
change in the information set forth in paragraphs (A) through (D).



     (f) Purchaser agrees to indemnify and hold harmless the Company, its affiliates, their
respective directors, officers, shareholders, employees, agents and representatives (each, an
“Indemnitee”) from and against any and all losses, liabilities, damages, penalties, costs, fees and
expenses (including legal fees and disbursements) (collectively, “Damages”) which may result,
directly or indirectly, from Purchaser’s misrepresentations or misstatements contained herein or
breaches hereof relating to paragraphs (A) through (D).



     (g) Purchaser understands and agrees that, notwithstanding anything to the contrary contained
in any document (including any side letters or similar agreements), if, following Purchaser’s
investment in the Company, it is discovered that the investment is or has become a Prohibited
Investment, such investment may immediately be redeemed by the Company or otherwise be subject to
the remedies required by law, and Purchaser shall have no claim against any Indemnitee for any form
of Damages as a result of such forced redemption or other action.



     (h) Upon the written request from the Company, Purchaser agrees to provide all information to
the Company to enable the Company to comply with all applicable anti-money laundering statutes,
rules, regulations and policies, including any policies applicable to a portfolio investment held
or proposed to be held by the Company. Purchaser understands and agrees that the Company may
release confidential information about Purchaser and, if applicable, any Underlying Beneficial
Owner(s) or Related Person(s) to any person, if the Company, in its sole discretion, determines
that such disclosure is necessary to comply with applicable statutes, rules, regulations and
policies.



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ARTICLE IV

OTHER AGREEMENTS OF THE PARTIES




     4.1 Transfer Restrictions.



     The Securities may only be disposed of in compliance with state and Federal securities laws.
In connection with any transfer of Securities, the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable
to the Company, the form and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration of such transferred
Securities under the Securities Act, or that such registration has been obtained and remains
effective at the time of transfer. As a condition of transfer, any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have the rights of a Purchaser under
this Agreement.



     4.2 Integration. The Company shall not, and shall use its best efforts to ensure that
no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be
integrated with the offer or sale of the Securities in a manner that would require the registration
under the Securities Act of the sale of the Securities to the Purchasers, or that would be
integrated with the offer or sale of the Securities for purposes of the rules and regulations of
any Trading Market.



     4.3 Reservation of Securities.



          (a) The Company shall maintain a reserve from its duly authorized shares of Common Stock for
issuance pursuant to the Transaction Documents in such amount as may be required to fulfill its
obligations in full under the Transaction Documents (the “Required Minimum”).




          (b) If, on any date, the number of authorized but unissued (and otherwise unreserved) shares
of Common Stock is less than the Required Minimum on such date, then the Board of Directors of the
Company shall use commercially reasonable efforts to amend the Company’s certificate or articles of
incorporation to increase the number of authorized but unissued shares of Common Stock to at least
the Required Minimum at such time, as soon as possible and in any event not later than the 60th day
after such date, or, alternatively, shall conduct a reverse stock split (as previously authorized
by the shareholders of the Company) to have the result of increasing the number of authorized but
unissued shares of Common Stock to at least the Required Minimum on an adjusted basis.




     4.4 Piggyback Registration Rights.



          (a) If the Company shall determine to register any of its securities either for its own
account or the account of a security holder or holders, other than a registration relating solely
to employee benefit plans, or a registration relating to a corporate reorganization or other
transaction on Form S-4, or a registration on any registration form that does not permit secondary
sales, the Company will:




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               (i) promptly notify all Purchasers of such determination; and




               (ii) use its best efforts to include in such registration (and any related qualifications
under applicable blue sky or other state securities laws), except as set forth in subsection (b)
below, and in any underwriting involved therein, the Warrant Shares specified in a written request
or requests made by any Purchaser and received by the Company within twenty (20) days after the
written notice from the Company described in clause (i) above is delivered by the Company. Such
written request may specify all or a part of a Purchaser’s Warrant Shares.



          (b) If the registration of which the Company gives notice is for a registered public offering
involving an underwriting, the Company shall so advise the Purchasers as a part of the written
notice given pursuant to subsection (a)(i), above. In such event, the right of any Purchaser to
registration pursuant to this section shall be conditioned upon such Purchaser’s participation in
such underwriting and the inclusion of such Purchaser’s Warrant Shares in the underwriting to the
extent provided herein. All Purchasers proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders of securities of the Company
with registration rights to participate therein distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.




     Notwithstanding any other provision of this section, if the representative of the underwriters
advises the Company in writing that marketing factors require a limitation on the number of
securities to be underwritten, the representative may (subject to the limitations set forth below)
exclude all Warrant Shares from, or limit the number of Warrant Shares to be included in, the
registration and underwriting. The Company shall so advise all holders of securities requesting
registration, and the securities that are entitled to be included in the registration and
underwriting shall be allocated first to the Company for securities being sold for its own account
and thereafter as set forth in Section 1.12 hereof. If any person who has requested inclusion in
such registration as provided above does not agree to the terms of any such underwriting, such
person shall be excluded therefrom by written notice from the Company or the representative. Any
Warrant Shares or other securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.



     If securities are so withdrawn from the registration and if the number of securities to be
included in such registration was previously reduced as a result of marketing factors, then the
Company shall offer to all persons who have retained the right to include securities in the
registration the right to include additional securities in the registration in an aggregate amount
equal to the number of securities so withdrawn, with such securities to be allocated among such
persons requesting additional inclusion in accordance with this section.



     4.5 No Short Sales or Hedging Transactions. The Purchaser agrees that beginning on
the date of this Agreement and ending at such time all Securities purchased hereunder are sold,
neither Purchaser nor its agents, representatives and affiliates shall in any manner whatsoever
enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined in Rule
3b-3 of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net
short position with respect to the Common Stock.



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ARTICLE V

MISCELLANEOUS




     5.1 Entire Agreement. The Transaction Documents, together with the exhibits and
schedules thereto, contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and
schedules.



     5.2 Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of (a) the date of transmission, if such notice or communication is delivered via
facsimile or email (if designated) prior to 4:30 p.m. (Los Angeles local time) on a Trading Day
with electronic confirmation of delivery, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile or email (if designated) on a day that
is not a Trading Day or later than 4:30 p.m. (Los Angeles local time) on any Trading Day, (c) one
Trading Day following the date of overnight delivery, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom such notice is required
to be given (or actual delivery to such person’s address of record). The addresses for such
notices and communications are those set forth on the signature pages hereof, or such other address
as may be designated in writing hereafter, in the same manner, by such Person.



     5.3 Amendments; Waivers. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by the Company and each of the
Purchasers or, in the case of a waiver, by the party against whom enforcement of any such waiver is
sought. No waiver of any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair the exercise of any
such right.



     5.4 Headings. The headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The
language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.



     5.5 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written consent of the
Purchasers. Any Purchaser may assign its rights under this Agreement and the Registration Rights
Agreement to any Person to whom such Purchaser assigns or transfers any Securities.



     5.6 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person.



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     5.7 Governing Law; Venue; Waiver of Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of the Transaction Documents shall be
governed by and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall
be commenced exclusively in the state and Federal courts sitting in the City of Los Angeles.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of Los Angeles for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or
inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or proceeding by mailing a
copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. The parties hereby waive all rights to a trial by jury. If either party shall
commence an action or proceeding to enforce any provisions of the Transaction Documents, then the
prevailing party in such action or proceeding shall be reimbursed by the other party for its
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.



     5.8 Survival. The representations and warranties contained herein shall survive the
Closing and the delivery and/or exercise of the Securities, as applicable for the applicable statue
of limitations.



     5.9 Execution. This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In the event that any signature
is delivered by facsimile transmission, such signature shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed) such document with the same
force and effect as if such facsimile signature page were an original thereof.



     5.10 Severability. If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt
to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this Agreement.



     5.11 Replacement of Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued
in



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exchange and substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested.



     5.12 Remedies. In addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, each of the Purchasers and the Company will be
entitled to specific performance under the Transaction Documents. The parties agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in any action for
specific performance of any such obligation the defense that a remedy at law would be adequate.



     5.13 Fees and Expenses. Each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all transfer agent fees, stamp taxes and other taxes and duties levied in
connection with the issuance of any Securities.



     5.14 Independent Nature of Purchasers’ Obligations and Rights. The obligations of
each Purchaser under any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in
any Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Document.
Each Purchaser shall be entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement or out of the other Transaction Documents, and
it shall not be necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose. Each Purchaser has been represented by its own separate
legal counsel in their review and negotiation of the Transaction Documents. Richardson & Patel LLP
does not represent any of the Purchasers in connection with this transaction. Richardson & Patel
LLP and certain attorney members of Richardson & Patel LLP may be Purchasers hereunder. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so by the Purchasers.



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     IN WITNESS WHEREOF, the parties hereto have caused this Note and Warrant Purchase Agreement to
be duly executed by their respective authorized signatories as of the date first indicated above.



	 	 	 	 	 
	NGTV

	 	Address for Notice:
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Allan Brown, Chief Executive Officer
	 	9944 Santa Monica Blvd.
	 

	 	 	 	Beverly Hills, CA 90212
	 

	 	 	 	Facsimile: (310) 556-9024
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Jay Vir, President	 	 
	 
	 	 	 	 
	With a copy to (which shall not constitute notice):	 	Richardson & Patel, LLP
	 

	 	 	 	10900 Wilshire Blvd, Suite 500
	 

	 	 	 	Los Angeles, CA 90024
	 

	 	 	 	Attention: Addison K. Adams,
Esq.
	 

	 	 	 	Facsimile: (310) 208-1154






[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGES FOR PURCHASERS FOLLOW]




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[PURCHASER SIGNATURE PAGES TO NGTV NOTE AND WARRANT PURCHASE AGREEMENT]




     IN WITNESS WHEREOF, the undersigned have caused this Note and Warrant Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above.



	 	 	 
	Name of Purchaser:
	 	 
	 

	Signature of Authorized Signatory of Purchaser:
	 	 
	 

	Name of Authorized Signatory:
	 	 
	 

	Title of Authorized Signatory:
	 	 
	 

	Email Address of Authorized Entity:
	 	 
	 






Address for Notice of Purchaser:




	 	 	 
	 


	 	 
	 


	 	 
	 


	 	 
	 


	 	 
	 


	 	 






Address for Delivery of Securities for Purchaser (if not same as above):




	 	 	 
	 


	 	 
	 


	 	 
	 


	 	 
	 


	 	 
	 


	 	 






	 	 	 	 	 	 	 	 	 
	Subscription Amount:

	 	 	$	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Warrant Shares:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	EIN/SSN:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 





[SIGNATURE PAGES CONTINUE]




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Exhibit A




Escrow Agreement




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Exhibit B




Form of Note




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Exhibit C




Form of Warrant





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