exv4w3



 







Exhibit 4.3



EXECUTION COPY





RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT




     This Right of First Refusal And Co-Sale Agreement (this “Agreement”) is made and entered into
as of February 12, 2004 by and among NGTV, a California corporation (the “Company”), each of the
persons and entities listed on Schedule A (collectively referred to as the “Investors”), Kourosh
Taj, Janak Vibhakar (each referred to herein as a “Founder” and collectively as the “Founders”) and
Gene Simmons LLC, Allan Brown and Richard Abramson LLC (each referred to herein as a “Principal
Shareholder” and collectively as the “Principal Shareholders”).



RECITALS




     WHEREAS, the Founders are the beneficial owners of Common Stock of the Company in the amounts
set forth on Schedule B hereto;



     WHEREAS, the Principal Shareholders are the beneficial owners of Common Stock of the Company
in the amounts set forth on Schedule C hereto;



     WHEREAS, the Investors acquired their shares of Common Stock as set forth in Schedule A
pursuant to a financing of up to $7,000,000 of units of the Company each unit consisting of one
share of Common Stock in the capital of the Company and one-half of one common stock purchase
warrant (the “Financing”); and



     WHEREAS, the parties desire to enter into this Agreement to grant first refusal and co-sale
rights to the Company and to the Investors.



     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree
hereto as follows:



ARTICLE
I — DEFINITIONS



1.1
“Agency Agreement” means the agency agreement dated the date hereof by and between the Company
and Standard Securities Capital Corporation;



1.2 “Common Stock” shall mean the Company’s Common Stock and shares of Common Stock issued or
issuable upon exercise of any option, warrant or other security or right of any kind convertible
into or exchangeable for Common Stock.



1.3 “Founder Stock” shall mean all shares of Common Stock now owned or subsequently acquired by the
Founders whether or not registered in a Founder’s name or beneficially owned by such Founder,
including any interest of a spouse in any of the Founder Stock, whether that interest is asserted
pursuant to marital property laws or otherwise. The number of shares of Founder Stock owned by the
Founders as of the date hereof are set forth on Schedule B, which Exhibit may be amended from time
to time by the Company to reflect changes in the number of








 



2.


shares owned by the Founders, but the failure to so amend shall have no effect on such Founder
Stock being subject to this Agreement.



1.4 “Go Public Transaction” means a transaction whereby the Company becomes a publicly traded
company on a recognized stock exchange in Canada or the United States (including but not limited to
the Over-the-counter bulletin board) whether pursuant to: (i) a final prospectus for which a
receipt has been issued by a securities commission or similar regulatory body in Canada or pursuant
to an effective registration statement filed with the United States Securities and Exchange
Commission; or (ii) pursuant to a reverse take-over, statutory amalgamation, statutory arrangement
or similar transaction involving the Company and which, in each case, results in the common stock
of the Company or the common stock of the resulting issuer being listed on a recognized stock
exchange in Canada or the United States;



1.5
“Investor Stock” shall mean the shares of Common Stock now owned pursuant to the Financing or
subsequently acquired by the Investors whether or not such securities are only registered in an
Investor’s name or beneficiary or otherwise legally owned by such Investor.



1.6 “Principal Shareholder Stock” shall mean all shares of Common Stock now owned or subsequently
acquired by the Principal Shareholder whether or not registered in a Principal Shareholder’s name
or beneficially owned by such Principal Shareholder, including any interest of a spouse in any of
the Principal Shareholder Stock, whether that interest is asserted pursuant to marital property
laws or otherwise. The number of shares of Principal Shareholder Stock owned by the Principal
Shareholders as of the date hereof are set forth on Schedule C, which Exhibit may be amended from
time to time by the Company to reflect changes in the number of shares owned by the Principal
Shareholders, but the failure to so amend shall have no effect on such Principal Shareholder Stock
being subject to this Agreement.



1.7 “Subscription Agreements” means the subscription agreements entered into between the Investors
and the Company in respect of the purchase of Units;



1.8 “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance
in trust, gift, transfer by request, devise or descent, or other transfer or disposition of any
kind, including, but not limited to, transfers to receivers, levying creditors, trustees or
receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether
voluntary or by operation of law, directly or indirectly, of any of the Founder Stock or Principal
Shareholder Stock.




ARTICLE
II — TRANSFERS BY A FOUNDER OR PRINCIPAL SHAREHOLDER



2.1 Notice of Transfer. If a Founder or Principal Shareholder proposes to Transfer any shares of
Founder Stock or Principal Shareholder Stock, as the case may be, then the Founder or Principal
Shareholder shall promptly give written notice (the “Notice”) simultaneously to the Company and to
each of the Investors at least thirty (30) days prior to the closing of such Transfer. The Notice
shall describe in reasonable detail the proposed Transfer including, without limitation, the number
of shares of Founder Stock or Principal Shareholder Stock to be transferred, the nature of such
Transfer, the consideration to be paid, and the name and address of each prospective purchaser or
transferee. In the event that the Transfer is being made pursuant








 



3.


to the provisions of Section 3.1, the Notice shall state under which section the Transfer is being
made.



2.2 Company Right of First Refusal. For a period of fifteen (15) days following receipt of any
Notice described in Section 2.1, the Company shall have the right to purchase all or a portion of
the Founder Stock or Principal Shareholder Stock subject to such Notice on the same terms and
conditions as set forth therein. The Company’s purchase right shall be exercised by written notice
signed by an officer of the Company (the “Company Notice”) and delivered to the Founder or
Principal Shareholder. The Company shall effect the purchase of the Founder Stock or Principal
Shareholder Stock, including payment of the purchase price in full, not more than five (5) business
days after delivery of the Company’s Notice, and at such time the Founder or Principal Shareholder
shall deliver to the Company the certificate(s) representing the Founder Stock or Principal
Shareholder Stock to be purchased by the Company, each certificate to be properly endorsed for
transfer. The Founder Stock or Principal Shareholder Stock so purchased shall thereupon be
cancelled and cease to be issued and outstanding shares of the Company’s Common Stock.




2.3 Investor Right of First Refusal.





	 	(a)	 	In the event that the Company does not elect to purchase all of
the Founder Stock or Principal Shareholder Stock available pursuant to its
rights under Section 2.2 within the period set forth therein, the Founder or
Principal Shareholder shall promptly give written notice (the “Second Notice”)
to each of the Investors, which shall set forth the number of shares of Founder
Stock or Principal Shareholder Stock not purchased by the Company and which
shall include the terms of Notice set forth in Section 2.1. Each Investor shall
then have the right, exercisable upon written notice to the Founder or
Principal Shareholder (the “Investor Notice”) within fifteen (15) days after
the receipt of the Second Notice, to purchase such Investor’s pro rota share of
the Founder Stock or Principal Shareholder Stock subject to the Second Notice
on the same terms and conditions as set forth therein. The Investors who so
exercise their rights (the “Participating Investors”) shall effect the purchase
of the Founder Stock or Principal Shareholder Stock, including payment of the
purchase price in full, not more than five (5) days after delivery of the
Investor Notice, and at such time the Founder or Principal Shareholder shall
deliver to such Participating Investors the certificate(s) representing the
Founder Stock or Principal Shareholder Stock to be purchased by the
Participating Investors, each certificate to be properly endorsed for transfer.
	 
	 	(b)	 	Each Investor’s pro rata share shall be equal to the product
obtained by multiplying (x) the aggregate number of shares of Founder Stock or
Principal Shareholder Stock covered by the Second Notice and (y) a fraction,
the numerator of which is the number of shares of Common Stock owned by the
Participating Investor at the time of the Transfer and the denominator of which
is the total number of shares of Investor Stock owned by all of the Investors
at the time of the Transfer.










 



4.


	 	(c)	 	In the event that not all of the Investors elect to purchase
their pro rata share of the Founder Stock or Principal Shareholder Stock
available pursuant to their rights under Section 2.3(a) within the time period
set forth therein, then the Founder or Principal Shareholder shall promptly
give written notice to each of the Participating Investors, which shall set
forth the number of shares of Founder Stock or Principal Shareholder Stock not
purchased by the other Investors, and shall offer such Participating Investors
the right to acquire such unsubscribed shares. The Participating Investors
shall have five (5) days after receipt of such notice to notify the Founder or
Principal Shareholder of their election to purchase the unsubscribed shares on
the same terms and conditions as set forth in the Second Notice (with
such shares allocated pro rata if necessary).
	 
	 	(d)	 	Notwithstanding the provisions of Sections 2.2 or 2.3, no
Founder or Principal Shareholder shall be required to sell their Founder Stock
or Principal Shareholder Stock, as the case may be, if the election to purchase
by the Company or Investors pursuant to the rights of first refusal contained
in Sections 2.2 or 2.3 is not exercised for all (and not less than all) of the
Founder Stock or Principal Shareholder Stock so subject to the rights of first
refusal.





2.4 Right of Co-Sale.





	 	(a)	 	In the event the Company and/or the Investors do not exercise
their respective rights to purchase all, but not less than all, of the Founder
Stock or Principal Shareholder Stock subject to Sections 2.2 or 2.3 hereof,
following the exercise or expiration of the rights of purchase set forth in
Sections 2.2 and 2.3, then the Founder or Principal Shareholder shall deliver
to the Company and each Investor written notice (the “Co-Sale Notice”) that
each Investor shall have the right, exercisable upon written notice to such
Founder or Principal Shareholder within fifteen (15) days after receipt of the
Co-Sale Notice, to participate in such Transfer of Common Stock on the same
terms and conditions as such Founder or Principal Shareholder. Such notice
shall indicate the number of shares of Investor Stock such Investor wishes to
sell under his or her right to participate. To the extent one or more of the
Investors exercise such right of participation in accordance with the terms and
conditions set forth below, the number of shares of Founder Stock or Principal
Shareholder Stock that such Founder or Principal Shareholder may sell in the
transaction shall be correspondingly reduced.
	 
	 	(b)	 	Each Investor may sell all or any part of that number of shares
equal to the product obtained by multiplying (i) the aggregate number of shares
of Founder Stock or Principal Shareholder Stock covered by the Co-Sale Notice
by (ii) a fraction the numerator of which is the number of shares of Investor
Stock owned by such Investor at the time of the Transfer and the denominator of
which is the total number of shares of Common Stock










 



5.


	 	 	 	owned by such Founder or Principal Shareholder and the total number of
Investor Stock owned by the Investors at the time of the Transfer.
	 
	 	(c)	 	Each Investor who elects to participate in the Transfer
pursuant to this Section 2 (a “Co-Sale Participant”) shall effect its
participation in the Transfer by promptly delivering to such Founder or
Principal Shareholder for transfer to the prospective purchaser one or more
certificates, properly endorsed for transfer, which represent the number of
shares of Investor Stock which such Co-Sale Participant elects to sell.
	 
	 	(d)	 	The stock certificate or certificates that the Co-Sale
Participant delivers to such Founder or Principal Shareholder pursuant to
Section 2.4(c) shall be transferred to the prospective purchaser in
consummation of the sale of the Common Stock pursuant to the terms and
conditions specified in the Co-Sale Notice, and the Founder or Principal
Shareholder shall concurrently therewith remit to such Co-Sale Participant that
portion of the sale proceeds to which such Co-Sale Participant is entitled by
reason of its participation in such sale. To the extent that any prospective
purchaser or purchasers prohibits such assignment or otherwise refuses to
purchase shares or other securities from a Co-Sale Participant exercising its
rights of co-sale hereunder, such Founder or Principal Shareholder shall not
sell to such prospective purchaser or purchasers any Founder Stock or Principal
Shareholder Stock unless and until, simultaneously with such sale, such Founder
or Principal Shareholder shall purchase such shares or other securities from
such Co-Sale Participant on the same terms and conditions specified in the
Co-Sale Notice.
	 
	 	(e)	 	The exercise or non-exercise of the rights of the Investors
hereunder to participate in one or more Transfers of Founder Stock or Principal
Shareholder Stock made by such Founder or Principal Shareholder shall not
adversely affect their rights to participate in subsequent Transfers of Founder
Stock or Principal Shareholder Stock subject to Section 2.1.
	 
	 	(f)	 	If none of the Investors elect to participate in the sale of
the Common Stock by the Founder or Principal Shareholder subject to the Co-Sale
Notice, such Founder or Principal Shareholder may, not later than sixty (60)
days following delivery to the Company of the Co-Sale Notice, enter into a bona
fide agreement providing for the closing of the Transfer of the Founder Stock
or Principal Shareholder Stock covered by the Co-Sale Notice within thirty (30)
days of such agreement on terms and conditions not materially more favorable to
the transferor than those described in the Co-Sale Notice. Any proposed
Transfer on terms and conditions materially more favorable than those described
in the Co-Sale Notice, as well as any subsequent proposed Transfer of any of
the Founder Stock or Principal Shareholder Stock by a Founder or Principal
Shareholder, shall again be subject to the first refusal and co-sale rights of
the Company










 



6.


	 	 	 	and/or Investors and shall require compliance by a Founder or Principal
Shareholder with the procedures described in this Section 2.




2.5 Investor Sale. If an Investor who holds at least ten (10) percent of the issued and
outstanding Common Stock (a “Significant Investor”) proposes to transfer at least half of its
Common Stock, then such Investor shall promptly give written notice (the “Investor Notice”)
simultaneously to the Company and each of the Founders and Principal Shareholders which Investor
Notices shall contain the same information as specified in Section 2.1 with respect to a Notice and
which Investor Notice shall specify that each Founder and Principal Shareholder shall have the
right, exercisable upon written notice to the Significant Investor within fifteen (15) days after
receipt of the Investor Notice, to participate in such Transfer of Common Stock on the same terms
and conditions as such Significant Investor. To the extent one or more of the Founders or
Principal Shareholders exercises such right of participation in accordance with the provisions
hereof the number of shares of Common Stock that the Significant Investor may sell shall be
correspondingly reduced and the provisions of Sections 2.4(b) to 2.4(f) inclusive shall apply
mutatis mutandis subject only to the necessary reference changes to parties and holders of Common
Stock required.



2.6 Termination of Co-Sale. Subject to earlier termination pursuant to Section 6.5 hereof, the
obligations and rights of co-sale as contained in Section 2.4 shall terminate and be of no force
and effect with respect to any proposed Transfer following twelve (12) months from the date of this
Agreement.



2.7 Payment. All payments required to be made pursuant to Article II or Section 4.2 shall be made
in full on the date set for closing of the transaction by way of certified check, bank draft, wire
transfer or by other means of immediately available funds.




ARTICLE III — EXEMPT TRANSFERS




3.1 Exempt Transfers.





	 	(a)	 	Notwithstanding the foregoing, the first refusal and co-sale
rights of the Company and the Investors shall not apply to (i) any Transfer to
the ancestors, descendants or spouse or to trusts for the benefit of such
persons or the Founder or Principal Shareholder, (ii) any pledge of Founder
Stock or Principal Shareholder Stock made pursuant to a bona fide loan
transaction that creates a mere security interest, or (iii) any bona fide gift;
provided that in the event of any Transfer made pursuant to one of the
exemptions provided by clauses (i), (ii) and (iii), (A) the Founder or
Principal Shareholder shall inform the Investors of such pledge, transfer or
gift prior to effecting it and (B) the pledgee, transferee or donee shall
furnish the Investors with a written agreement to be bound by and comply with
all provisions of Section 2. Such transferred Founder Stock or Principal
Shareholder Stock shall remain “Founder Stock” or “Principal Shareholder
Stock”, as the case may be, hereunder, and such pledgee, transferee or donee
shall be treated as the “Founder” or “Principal Shareholder” as the case may
be, for purposes of this Agreement.










 



7.


	 	(b)	 	Notwithstanding the foregoing, the provisions of Section 2
shall not apply to the sale of any Founder Stock, Principal Shareholder Stock
or the Common Stock of a Significant Investor pursuant to: (i) a registration
statement filed with, and declared effective by, the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the “Securities Act”),
(ii) a Go Public Transaction; or (iii) a Change of Control Transaction (as
defined in Section 6.5(c)).





ARTICLE
IV — PROHIBITED TRANSFERS



4.1 Contravention. In the event that a Founder or Principal Shareholder should Transfer any
Founder Stock or Principal Shareholder Stock in contravention of the co-sale rights of each
Investor under this Agreement (a “Prohibited Transfer”), each Investor, in addition to such other
remedies as may be available at law, in equity or hereunder, shall have the put option provided
below, and such Founder or Principal Shareholder shall be bound by the applicable provisions of
such option.



4.2 Right to Sell. In the event of a Prohibited Transfer, each Investor shall have the right to
sell to such Founder or Principal Shareholder the type and number of shares of Common Stock equal
to the number of shares each Investor would have been entitled to transfer to the purchaser under
Section 2.4 hereof had the Prohibited Transfer been effected pursuant to and in compliance with the
terms hereof. Such sale shall be made on the following terms and conditions:





	 	(a)	 	The price per share at which the shares are to be sold to the
Founder or Principal Shareholder shall be equal to the price per share paid by
the purchaser to such Founder or Principal Shareholder in such Prohibited
Transfer. The Founder or Principal Shareholder shall also reimburse each
Investor for any and all fees and expenses, including legal fees and expenses,
incurred pursuant to the exercise or the attempted exercise of the Investor’s
rights under Section 2.4.
	 
	 	(b)	 	Within ninety (90) days after the date on which an Investor
received notice of the Prohibited Transfer or otherwise became aware of the
Prohibited Transfer, such Investor shall, if exercising the option created
hereby, deliver to the Founder or Principal Shareholder the certificate or
certificates representing shares to be sold, each certificate to be properly
endorsed for transfer.
	 
	 	(c)	 	Such Founder or Principal Shareholder shall, upon receipt of
the certificate or certificates for the shares to be sold by an Investor,
pursuant to this Section 4.2, pay the aggregate purchase price therefor and the
amount of reimbursable fees and expenses, as specified in Section 4.2(a), in
cash or by other means acceptable to the Investor.
	 
	 	(d)	 	Notwithstanding the foregoing, any attempt by a Founder or
Principal Shareholder to transfer Founder Stock or Principal Shareholder Stock
in violation of Section 2.4 hereof shall be voidable at the option of a
majority










 



8.


	 	 	 	in interest of the Investors if the Investors do not elect to exercise the
put option set forth in this Section 4, and the Company agrees it will not
effect such a transfer nor will it treat any alleged transferee as the
holder of such shares without the written consent of a majority in interest
of the Investors.





 ARTICLE V — LEGEND




5.1 Legend.





	 	(a)	 	Each certificate representing shares of Founder Stock or
Principal Shareholder Stock now or hereafter owned by the Founder or Principal
Shareholder or issued to any person in connection with a transfer pursuant to
Section 3.1 hereof shall be endorsed with substantially the same wording as set
forth below:
	 
	 	 	 	“THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
BY AND AMONG THE SHAREHOLDER, THE COMPANY AND CERTAIN HOLDERS OF
STOCK OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL
PLACE OF BUSINESS.”
	 
	 	(b)	 	The Founders and Principal Shareholders agree that the Company
may instruct its transfer agent to impose transfer restrictions on the shares
represented by certificates bearing the legend referred to in Section 5(a)
above to enforce the provisions of this Agreement and the Company agrees to
promptly do so. The legend shall be removed upon termination of this Agreement.





ARTICLE
VI — MISCELLANEOUS



6.1 Conditions to Exercise of Rights. Exercise of the Investors’ rights under this Agreement shall
be subject to and conditioned upon, and the Founders and Principal Shareholders and the Company
shall use their best efforts to assist each Investor in, compliance with applicable laws.



6.2 Governing Law. This Agreement shall be governed by and construed under the laws of the State of
California as applied to agreements among California residents entered into and to be performed
entirely within California.



6.3 Amendment. Any provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively or prospectively),
only by the written consent of (i) as to the Company, only by the Company, (ii) as to the
Investors, by persons holding more than a majority in interest of the Common Stock;








 



9.


and (iii) as to the Founders and Principal Shareholders, only by a majority in interest of the
Founders and a majority in interest of the Principal Shareholders. Any amendment or waiver effected
in accordance with clauses (i), (ii), and (iii) of this Section 6(c) shall be binding upon each
Investor, the Company, the Founders and the Principal Shareholders.



6.4 Assignment of Rights. This Agreement and the rights and obligations of the parties hereunder
shall inure to the benefit of, and be binding upon, the parties hereto and their respective
successors, assigns and legal representatives.



6.5 Term. This Agreement shall continue in full force and effect from the date hereof through the
earliest of the following dates, on which date it shall terminate in its entirety:





	 	(a)	 	the date of the closing of a firmly underwritten public
offering of the Common Stock pursuant to a registration statement filed with
the Securities and Exchange Commission, and declared effective under the
Securities Act;
	 
	 	(b)	 	the date of the closing of a Go Public Transaction;
	 
	 	(c)	 	the date of the closing of a sale, lease, or other disposition
of all or substantially all of the Company’s assets or the Company’s merger
into or consolidation with any other corporation or other entity, or any other
corporate reorganization, in which the holders of the Company’s outstanding
voting stock immediately prior to such transaction own, immediately after such
transaction, securities representing less than fifty percent (50%) of the
voting power of the corporation or other entity surviving such transaction (a
“Change of Control Transaction”); provided that this Section 6.5(c) shall not
apply to a merger effected exclusively for the purpose of changing the domicile
of the Company;
	 
	 	(d)	 	date as of which the parties hereto terminate this Agreement by
written consent of a majority in interest of the Investors, a majority in
interest of the Founders, a majority in interest of the Principal Shareholders
and the Company; or
	 
	 	(e)	 	the date which is five (5) years from the date of this
Agreement.





     6.6 Ownership. Each Founder and Principal Shareholder represents and warrants with respect to
himself, herself or itself that:




	 	(a)	 	each is the sole legal and beneficial owner of those shares of
Founder Stock or Principal Shareholder Stock, as the case may be, he, she or it
currently holds subject to the Agreement, and
	 
	 	(b)	 	no other person has any interest (other than a community
property interest) in such shares.










 



10.






6.7 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by
confirmed facsimile if sent during normal business hours of the recipient; if not, then on the next
business day, (iii) five (5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the party to be notified at the address as set forth on the
signature page hereof or at such other address as such party may designate by ten (10) days advance
written notice to the other parties hereto, provided that any notice to be given to an Investor
shall be effectively given, if an address for such Investor is not set forth on the signature page
or in Schedule A annexed hereof, if given to:



Standard Securities Capital Corporation

24 Hazelton Avenue

Toronto, Ontario M5R 2E2



Attn: Marvin Igelman



Fax: (416) 515-1135



6.8 Severability. In the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein and the parties hereto shall, to the extent permissible by applicable law, amend
this Agreement so as to make effective and enforceable the intent .of this Agreement.



6.9 Entire Agreement. This Agreement and the Schedules hereto, along with the Subscription
Agreements and the Agency Agreements and each of the Schedules thereto and the other documents
delivered pursuant thereto, constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof and no party shall be liable or bound to any
other in any manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.



6.10 Counterparts. This Agreement may be executed in two or more counterparts, including
counterparts transmitted by facsimile, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.



6.11 Further Assurances. Each party will cooperate fully with the other parties and to execute such
further instruments, documents and agreements and to give such further written assurances as may be
reasonably requested by any other party to evidence and reflect the transactions described herein
and contemplated hereby, and to carry this Agreement into effect.



6.12 Interpretation. If any claim is made by a party relating to any conflict, omission or
ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will
be implied because this Agreement was prepared by or at the request of any party or its counsel.
The parties waive any statute or rule of law to the contrary.










 



11.



6.13 Rights Cumulative. Each and all of the various rights, powers and remedies of the parties
hereto will be considered to be cumulative with and in addition to any other rights, powers and
remedies which such parties may have at law or in equity in the event of the breach of any of the
terms of this Agreement. The exercise or partial exercise of any right, power or remedy will
neither constitute the exclusive election thereof nor the waiver of any other right, power or
remedy available to such party.



6.14 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in construing this Agreement.




[THIS SPACE INTENTIONALLY LEFT BLANK]










 



12.




     The foregoing RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT is hereby executed as of the date
first above written.



	 	 	 	 	 	 	 
	COMPANY:	 	 	 	 
	 
	 	 	 	 	 	 
	NGTV	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Kourosh Taj	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name: Kourosh Taj	 	 	 	 
	 

	 	Title: CEO	 	 	 	 
	 
	 	 	 	 	 	 
	FOUNDERS:	 	 	 	 
	 
	 	 	 	 	 	 
	/s/ Kourosh Taj	 	 	 	 
	 	 	 	 
	Kourosh Taj	 	Witness
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Address
	 	 	 	 
	 
	 	 	 	 	 	 
	/s/ Janak Vibhakar	 	 	 	 
	 	 	 	 
	Janak Vibhakar	 	Witness
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Address	 	 	 
	 
	 	 	 	 	 	 
	PRINCIPAL SHAREHOLDERS:	 	 	 	 
	 
	 	 	 	 	 	 
	GENE SIMMONS LLC	 	RICHARD ABRAMSON LLC
	 
	 	 	 	 	 	 
	Per:

	 	/s/ Gene Simmons
	 	Per:	 	/s/ Richard Abramson
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Address	 	Address
	 
	 	 	 	 	 	 
	/s/ Allan Brown	 	 	 	 
	 	 	 	 	 
	Allan Brown	 	Witness
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Address	 	 	 	 












 



13.


	 	 	 	 	 	 	 	 	 
	INVESTORS:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BTR GLOBAL GROWTH TRADING LIMITED	 	AEGON CAPITAL MANAGEMENT INC.	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/ Danny Guy
	 	Per:
	 	/s/ John Kim	 	 
	 

	 	 
	 	 	 	 	 	 
	Danny Guy, Director	 	John Kim, Vice President, P.M.	 	 
	 
	 	 	 	 	 	 	 	 
	BTR GLOBAL ARBITRAGE TRADING LIMITED	 	BLUMONT STRATEGIC PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/ Danny Guy
	 	Per:
	 	/s/	 	 
	 

	 	 
	 	 	 	 	 	 
	Danny Guy, Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BTR GLOBAL OPPORTUNITY TRADING

LIMITED	 	STANDARD MERCANTILE BANCORP LP	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/ Danny Guy
	 	Per:
	 	/s/	 	 
	 

	 	 
	 	 	 	 	 	 
	Danny Guy, Director	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	HJG PARTNERSHIP	 	MISTY MANAGEMENT INC.	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/
	 	Per:
	 	/s/ Larry Torkin	 	 
	 

	 	 
	 	 	 	 	 	 
	 	 	 	 	Larry Torkin, President	 	 
	 
	 	 	 	 	 	 	 	 
	CASURINA PERFORMANCE FUND	 	FRONT STREET CANADIAN HEDGE	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/
	 	Per:
	 	/s/ Frank Mersch	 	 
	 

	 	 
	 	 	 	 	 	 
	 	 	 	 	Frank Mersch, Vice-President	 	 
	 
	 	 	 	 	 	 	 	 
	CASURINA LIMITED PARTNERSHIP	 	FRONT STREET INVESTMENT MANAGEMENT INC.	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/
	 	Per:
	 	/s/ Frank Mersch	 	 
	 

	 	 
	 	 	 	 	 	 
	 	 	 	 	Frank Mersch, Vice-President	 	 
	 
	 	 	 	 	 	 	 	 
	MODENA INVESTMENTS INC.	 	1274639 ONTARIO LTD.	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/ Cindy DeFrancesio
	 	Per:
	 	/s/	 	 
	 

	 	 
	 	 	 	 	 	 
	Cindy DeFrancesio, President	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	FOUNTAINHEAD CAPITAL ADVISORS LTD.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Per:

	 	/s/ Emlyn David	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Emlyn David, President	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Denise Petican	 	 	 	 	 	 
	 	 	 	 	 
	Denise Petican	 	Witness	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Bernie Zaionz	 	 	 	 	 	 
	 	 	 	 	 
	Bernie Zaionz	 	Witness	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Irwin Singer	 	 	 	 	 	 
	 	 	 	 	 
	Irwin Singer	 	Witness	 	 












 



14.


	 	 	 	 	 	 	 	 	 
	/s/ Richard Glatt	 	 	 	 	 	 
	 	 	 	 	 
	Richard Glatt	 	Witness	 	 












 





Schedule A




INVESTORS




	 	 	 	 	 	 	 	 	 
	Name	 	Shares Acquired Pursuant to Financing	 	Address
	BTR Global Growth Trading Limited
	 	 	286,250	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BTR Global Arbitrage Trading
Limited
	 	 	4,411,750	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BTR Global Opportunity Trading
Limited
	 	 	1,860,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Aegon Capital Management Inc.
	 	 	5,738,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Blumont Strategic Partnership
	 	 	131,160	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Front Street Canadian Hedge
	 	 	196,740	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Front Street Investment
Management Inc.
	 	 	459,060	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Casurina Performance Fund
	 	 	688,590	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Casurina Limited Partnership
	 	 	1,803,450	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Standard Mercantile Bancorp LP
	 	 	1,639,000	 	 	 	 	 












 





16




	 	 	 	 	 	 	 	 	 
	Name	 	Shares Acquired Pursuant to Financing	 	Address
	HJG Partnership
	 	 	2,787,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Modena Investments Inc.
	 	 	1,967,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Denise Petican
	 	 	82,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Misty Management Inc
	 	 	98,360	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Bernie Zaionz
	 	 	164,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	1274639 Ontario Ltd.
	 	 	82,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Irwin Singer
	 	 	129,460	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Richard Glatt
	 	 	98,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Fountainhead Capital Advisors Ltd.
	 	 	329,000	 	 	 	 	 













 



 




Schedule B




FOUNDERS




	 	 	 	 	 
	Name of Founder	 	Shares of Common Stock
	Kourosh Taj
	 	 	7,800,000	 
	 
	Janak Vibhakar
	 	 	14,505,000	 













 



 




Schedule C




PRINCIPAL SHAREHOLDERS




	 	 	 	 	 	 	 	 	 
	Name of Principal Shareholder	 	Shares of Common Stock	 	Common Stock Options
	Gene Simmons LLC
	 	 	5,623,977	 	 	 	2,280,607	 
	 
	Allan Brown
	 	 	5,623,977	 	 	 	2,280,607	 
	 
	Richard Abramson LLC
	 	 	5,623,977	 	 	 	2,280,607