exv10w5



 






Exhibit 10.5




CONSULTING AND LICENSE AGREEMENT




     This Agreement is entered into as of February 12, 2004 (the “Effective Date”), by and between
NGTV (“Company”) and Gene Simmons (“Consultant”) with respect to the services of Consultant (as
more fully defined below) in connection with exploitation of the Programs (as defined below) and
the growth of the business of the Company.


1. Term. Subject to the terms and conditions of this Agreement, Company hereby agrees to
employ Consultant commencing on the Effective Date and continuing in full force and effect for a
period of two (2) years (the “Term”).



2. Services.




     2.1. Scope of Services. During the Term, Consultant shall render marketing and
business consulting services and act as a spokesperson for the Company in connection with its
marketing, advertising and similar promotional activities with respect to the Programs (as defined
below) as reasonably requested by the Company from time to time (the “Services”). Such Services
shall include but not be limited to:



          a. Consulting with producers, the Company and the Board of Directors on matters regarding
program direction and the business of the Company;




          b. Meeting with other persons in the entertainment and music industry to market, promote and
publicize the business of the Company and the Programs; and




          c. To act as a spokesperson for the Company to market, promote and publicize the business of
the Company and the Programs, including participation in a reasonable number of public appearances
and interviews for the Company. The Services may be on-camera or off-camera, taped, filmed or
recorded in such manner and by such process or device as the parties may mutually agree.




          d. The Company acknowledges that Consultant’s Services will be rendered to the Company on a
part-time basis, subject to his participation on tours with the musical record group known as
“KISS” and other business commitments. So long as Consultant provides the Services and does not
violate the covenants not to compete, solicit or interfere set forth below, no activities of
Consultant in regard to other business interests which do not materially conflict with his ability
to perform the Services, shall be deemed a violation of this Agreement. Consultant shall provide
the Services at times and locations within the City of Los Angeles that are reasonably acceptable
to the Company and Consultant and at such other locations as may be mutually agreed. Consultant
shall devote such time as may be reasonably necessary to perform his duties under this Agreement,
but shall not be required to devote any minimum amount of time or report or perform his duties
hereunder on a fixed or periodic basis. Consultant shall report directly to and at all times shall
be subject to the reasonable direction of the Company’s Board of Directors in the performance of
his duties.




     2.2. Professional Rendition of Services. Consultant shall render the Services in a
reasonably, competent and professional manner.



     2.3. Definitions. Unless the context otherwise requires, references to the business
of the “Company” shall include any future subsidiaries or affiliates of the Company. “Programs”
mean uncensored music related, reality television programming and uncensored entertainment based
reality television programming featuring celebrities and audio/visual recordings and other



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audio/visual or written materials owned or duly licensed by the Company and forming a material
part of such programming, by means of broadcast television, cable television, pay per view,
satellite broadcast and similar technology whether or not now in existence, and the right to
commercially exploit same in all media and by any manner or means.


3. Compensation.




     3.1. Options. In consideration for the Services rendered by Consultant and all past
Services rendered by Consultant, if any, prior to the date of this Agreement, Company will grant
Consultant the right to purchase 2,280,607 shares of the Company’s common stock, at a price per
share of $.001 (the “Option”). The Option will vest 570,157 shares six (6) months from the
Effective Date and 95,025 shares on the first day of each succeeding calendar month thereafter for
the subsequent eighteen (18) months of the Term, unless earlier terminated. The Option shall be
exercisable in whole or in part at any time during its Term and may be exercised multiple times
until all Shares covered by the Option have been issued to Consultant. The Option shall expire
five (5) years from the Effective Date.



     3.2. Reimbursement for Expenses. Company shall reimburse Consultant for reasonable
and necessary business and entertainment expenses incurred by him in connection with the
performance of his duties hereunder including, without limitation, expenses for business
development, business or first class travel, meals and first class accommodations and related
expenditures in accordance with Company policies as amended from time to time. Consultant shall
submit to Company periodic statements of all expenses so incurred. Subject to such audits as
Company may deem necessary, Company shall reimburse Consultant the full amount of any such expenses
advanced by him in the ordinary course of business. Any and all frequent flyer miles accrued by
Consultant for travel in connection with Consultant’s employment with Company shall be used at the
sole discretion of Consultant.


4. Termination.




     4.1. By Consultant Without Good Reason. Consultant may terminate this agreement at
any time upon thirty (30) days advance written notice to the Company.



     4.2. By Company Without Cause. Company may terminate Consultant’s employment under
this Agreement at any time without cause upon the vote or written consent of two-thirds of the vote
of the members of the Board of Directors, excluding Consultant, if he is a Director at that time.



     4.3. By Company For Cause. Company may terminate this agreement at any time upon
written notice to the Consultant for cause, and shall include in the notice of termination the
grounds substantiating the for cause termination.



          a. The occurrence of any one or more of the following events shall be deemed grounds for
termination for cause:





	 	(i)	 	Willful Breach. If Consultant (X) willfully commits a material
breach of this Agreement or (Y) a material breach of any fiduciary duties owed to
Company, which is not cured to the reasonable satisfaction of a majority of the
Board of Directors (excluding Consultant if he is then a member of the Board)
within thirty (30) days of written notice to Consultant.




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	 	(ii)	 	Wrongful Acts. If Consultant is (X) convicted of a felony or
any other serious crime, (Y) commits fraud, or (Z) is guilty of gross negligence in
the performance of his duties.
	 
	 	(iii)	 	Disability. If Consultant is physically or mentally disabled
(including but not limited to facial or other physical disfigurement which
materially interferes with Consultant’s ability to render the Services) from the
performance of a material portion of his duties for a continuous period of ninety
(90) days or greater. If there should be a dispute between Company and Consultant
as to Consultant’s physical or mental disability for purposes of this Agreement,
the question shall be settled by the opinion of an impartial reputable physician or
psychiatrist agreed upon by the parties or their representatives, or if the parties
cannot agree within ten (10) days after a request for designation of such party,
then a physician or psychiatrist designed by the Los Angeles County Medical
Association. The certification of such physician or psychiatrist as to the
questioned dispute shall be final and binding upon the parties.





     4.4 By Consultant For Good Reason. Consultant may terminate this Agreement at any
time upon written notice to Company for “Good Reason” and shall include in the notice of
termination the grounds substantiating the termination for Good Reason. For purposes of this
Agreement, “Good Reason” shall mean a material breach by the Company of this Agreement or the
material representations and warranties forming part of the Common Stock Purchase Agreement between
the Company and Gene Simmons LLC, a limited liability company wholly owned by Consultant.



     4.5 Effect of Termination. In the event of a termination of this Agreement by
Company for Cause or by Consultant without Good Reason, any unvested Options shall immediately
expire. In the event of a termination of this Agreement by Company without Cause or by Consultant
for Good Reason, any unvested Options shall immediately vest in full.


5. Publicity and Other Rights.




     5.1. Biography. Consultant shall furnish Company with a biography within thirty (30)
days of the Effective Date. Company shall not have the right to use any biographical information
about Consultant other than contained in such biography so furnished or other than references to
Consultant’s prior professional credits and Consultant’s Services without prior approval by
Consultant (not to be unreasonably withheld).



     5.2 Name and Likeness. During the Term of this Agreement (and for a period of twelve
(12) months thereafter if this Agreement is not terminated by Company without Cause or is
terminated by Consultant other than for “Good Reason”), the Company shall have the nonexclusive
right, license and authority (but not the obligation) to use Consultant’s name and approved
photographs and other approved images (including animated versions), approved voice reproductions
and facsimile signature, such approval not to be unreasonably withheld (but not including
photographs or other images of Consultant with face paint or otherwise utilizing his appearance as
associated with the musical group known as KISS) in any and all media now known or hereafter
devised and publications, as the Company may reasonably determine throughout the world, solely in
connection with the Programs and the marketing, advertising, distribution, promotion and other
commercial exploitation of the Programs; provided further that no such use shall be proposed, made
or permitted by the Company that would in Consultant’s



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reasonable judgment, bring Consultant into public disrepute, contempt, scandal or ridicule, or
shock, insult or offend a substantial number of people. Subject to the foregoing, these rights
include the right to publicize Consultant’s association with the Company and the Programs and to
promote Consultant’s position as a spokesperson for the Company.


6. Confidentiality.




     6.1. Maintain Confidentiality. Consultant hereby acknowledges that, based on
Consultant’s past or current relationship with the Company, Consultant has had access to and become
acquainted with the Confidential Information (as defined below). Consultant hereby covenants and
agrees that he shall not, in any fashion, form or manner, unless previously and specifically
consented to in writing by the Company, either directly or indirectly use, divulge, transmit or
otherwise disclose or cause to be used, divulged, transmitted or otherwise disclosed to any person,
firm, partnership, corporation or other entity now existing or hereafter created, in any manner
whatsoever (other than as required by law), any Confidential Information of any kind, nature or
description. Consultant hereby further acknowledges and agrees that the sale or unauthorized use,
transmission or other disclosure of any of the Confidential Information which is in his possession
constitutes unfair competition and Consultant covenants and agrees that he shall not engage in any
unfair competition with the Company (collectively, the “Confidentiality Covenants”). The foregoing
provisions shall not be construed to prevent Consultant from making use of or disclosing
information that (1) is or becomes, at the time of disclosure, in the public domain; (2) is known
to Consultant prior to being disclosed by Company to Consultant; (3) Consultant learns from sources
other than the Company from a person or entity under no duty known to Consultant to keep such
information confidential; and (4) is required by law to be disclosed. The foregoing provisions
shall also not be construed as preventing Consultant from reasonable and bona fide efforts to
promote the Company and otherwise provide the services hereunder for the benefit of the Company.



     6.2. Third Party Information. Consultant recognizes that Company has received and in
the future will receive confidential or proprietary information from third parties subject to a
duty on Company’s part to maintain the confidentiality of such information and to use such
information only for certain limited purposes. Consultant agrees to hold all such confidential or
proprietary information in confidence and not to intentionally disclose it to any person, firm or
corporation or to use it except as necessary in carrying out his work for Company consistent with
Company’s agreement with such third party. The foregoing provision shall not be construed to
prevent Consultant from making use of or disclosing information that: (1) is or becomes, at the
time of disclosure, in the public domain; (2) is known to Consultant prior to being disclosed by
Company to Consultant; (3) Consultant learns from sources other than the Company from a person or
entity under no duty known to Consultant to keep such information confidential; and (4) is required
by law to be disclosed.



     6.3.  Confidential Information. “Confidential Information” shall mean any
information, matter or thing which, as to the business of the Company, is of a secret, confidential
or private nature, whether or not so denominated, and which (i) is the methods of operation of the
business of the Company, or any of its suppliers, customers, licensors, licensees; and (ii) has
material current value to the business of the Company, or the unauthorized disclosure of which
could be materially detrimental to the business of the Company; (iii) business matters known or
available only to management, such as (A) information concerning customers, vendors and suppliers,
including their names, addresses, credit or financial status, buying or selling habits,



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practices or requirements; (B) any arrangements or contracts that the Company has or may have
had with such parties; (C) the marketing methods, plans and/or strategies of the Company for
business development; and (D) the terms of any contracts or agreements the Company has entered
into; and (iv) trade secrets, know-how, formulae, innovations, inventions, technologies, devices,
discoveries, techniques, formats, processes, methods, specifications, designs, patterns,
schematics, data, compilation of information, test results and research and/or development projects
undertaken by the Company with regard to the Programs.



     6.4. Return of Company Documents. Consultant agrees that, at the time of termination
of the Term for any reason, Consultant will deliver to Company (and will not keep, recreate or
deliver to anyone else) any and all Confidential Information and all other documents, materials,
information or property belonging to Company, its successors or assigns. Consultant further agrees
that any property situated on Company’s premises and owned by Company, including disks and other
storage media, filing cabinets or other work areas, is subject to inspection by Company personnel
at any time with or without notice.



     6.5. Obligations Survive Agreement. Consultant’s obligations under this Section
6 shall survive the expiration or termination of this Agreement for a period of five (5) years.


7. Non-Compete/Non-Solicitation.




     7.1. Non-Compete. Consultant hereby covenants and agrees that during the Term and for
a period of one (1) year from the expiration or termination of the Term (six [6] months in the
event that the Agreement is terminated by the Company without cause or by Consultant for Good
Reason), Consultant will not directly or indirectly, whether with or through any person, firm,
partnership, corporation or other entity or venture now existing or hereafter created, engage in,
acquire an interest in (whether as an employee, consultant, agent, proprietor, principal, partner,
major stockholder, corporate officer, director or otherwise), nor participate in the financing,
operation, management or control of any business which is not owned by or affiliated with the
Company and which is substantially engaged in the development, production or distribution of
television programming which is the same or substantially the same as the Programs (“a
Competitor”). Provided, however, that neither Consultant’s participation in the activities of the
musical group known as KISS nor the appearance of an interview with Consultant in the audio/visual
products of a Competitor without any endorsement of the Competitor or its products, shall be a
violation of this Section 7.



     7.2. Covenant Not to Solicit. Consultant hereby covenants and agrees that during the
Term and for a period of two (2) years from the expiration or termination of the Term, Consultant
shall not, either directly or indirectly, whether with or through any person, firm, partnership,
corporation or other entity or venture now existing or hereafter created, solicit or employ, or
attempt to solicit or employ, any person who is or has been within the preceding twelve (12) months
an officer, director, partner, manager, agent employee or Consultant of the Company in a manner
which would interfere with their services provided to the Company (the “Nonsolicitation Covenant”).
Nothing in this paragraph shall apply to any business dealings with Allan Brown, Richard Abramson,
Marvin Igelman, Andy DeFrancesco and/or Standard Securities Capital Corporation and its affiliates.



     7.3. Covenant Not to Interfere. Consultant hereby covenants and agrees that during
the Term and for a period of one (1) year from the expiration or termination of the Term (six [6]
months in the event this Agreement is terminated by the Company without cause or by



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Consultant for Good Reason), Consultant shall not solicit the business of any person, firm or
business entity which is or has been a customer, client, contractor, joint venturer, supplier or
vendor of the Company if, either directly or indirectly, whether with or through any person, firm,
partnership, corporation or other entity now existing or hereafter created, the solicitation is
done: (i) on behalf of, directly or indirectly, any Competitor of the Company; or (ii) for the
purpose of or with the reasonably foreseeable effect of harming or adversely affecting the business
or operations of the Company (the “Noninterference Covenant”). Nothing in this paragraph shall
apply to any business dealings with Allan Brown, Richard Abramson, Marvin Igelman, Andy DeFrancesco
and/or Standard Securities Capital Corporation and its affiliates.


8. Representations, Warranties and Indemnity. Consultant represents and warrants to
Company as of the Effective Date and throughout the Term that Consultant: (a) has the
qualifications and ability to perform the Services in a professional manner, without the advice,
control or supervision of the Company; and (b) has no right, title or interest in the trademarks,
service marks or domain names “NG,” “NGTV” and “No Good TV” or to any similar trademark, service
mark or domain name relating to the business of the Company.



9. Abandonment; No Obligation. Company may (at its sole discretion) abandon the Programs
at any time without further obligation to Consultant, except to pay sums (if any) accrued but
unpaid hereunder as of such abandonment. Without limiting the foregoing, Company is not obligated
to use the Services of Consultant or to produce, distribute or exploit the Programs or, if
commenced, to continue the production, distribution, or exploitation of the Programs in any manner,
medium, or territory. Regardless of whether or not Company elects to produce, distribute and/or
exploit the Programs (or to commence same), Company is not obligated to use the Services in whole
or in part of Consultant.



10. Union Membership. In the event the Company that Company is required to become a
signatory to any trade union or guild, including but not limited to the American Federation of
Television and Radio Artists or the Screen Actors Guild, Consultant will become and remain a member
thereof in good standing for the duration of the Term.



11. Independent Contractor. Consultant’s status hereunder is that of an independent
contractor, and nothing herein contained shall be deemed to create the status of employer and
employee. Accordingly, Consultant shall be responsible to timely pay all taxes and other
withholdings, deductions and payments required by law with respect to Consultant’s services
hereunder. Consultant agrees to indemnify and hold Company harmless from and against any and all
claims, lawsuits or liabilities incurred by Company as a result of Consultant’s failure to make
such payments.



12. Directors and Officers’ Insurance. The Company shall use commercial best efforts to
provide at its expense Directors and Officers’ Insurance, in amounts, with coverages and with
companies reasonably acceptable to Consultant. The Company shall use commercial best efforts to
obtain at its expense liability insurance, including but not limited to, coverage for advertising
injury with a face amount, net of deductibles of at least five million dollars ($5,000,000) from a
Company reasonably acceptable to Consultant, shall name Consultant as an additional insured under
such policy and provide Consultant with a certificate of insurance evidencing same.




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13. Miscellaneous.




     13.1 Assignment. The rights and obligations under this Agreement may not be assigned
or otherwise delegated by Consultant or the Company.



     13.2 Services Unique. It is understood and agreed that Consultant’s Services and the
rights and privileges granted to Company, are of a special, unique, unusual, extraordinary and
intellectual character, giving them a peculiar value. Since any breach of this Agreement by
Consultant may cause Company irreparable damage, Company shall be entitled as a matter of right and
without notice to Consultant to seek equitable relief by way of injunction or otherwise in the
event of any material violation of the provisions of this Agreement, it being understood that
exercise of such right shall not constitute a waiver of any other or additional rights at law or
pursuant to the terms of this Agreement which Company may have against Consultant as a result of
such breach.



     13.3 Successors and Assigns. This Agreement shall bind and inure to the benefit of
the Company and its respective successors and assigns.



     13.4 Notices. All notices, demands and requests of any kind to be delivered to any
party in connection with this Agreement shall be in writing and shall be deemed to have been duly
given if personally delivered or if sent by internationally-recognized overnight courier or by
registered or certified mail, return receipt requested and postage prepaid, addressed as follows:



	 	 	 	 	 
	 

	 	if to the Company:
	 	NGTV
	 

	 	 	 	6310 San Vicente Boulevard, Suite 500,
	 

	 	 	 	Los Angeles, California 90048
	 

	 	 	 	Attention: Jay Vir
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Richardson & Patel LLP
	 

	 	 	 	10900 Wilshire Boulevard, Suite 500
	 

	 	 	 	Los Angeles, California 90024
	 

	 	 	 	Attention: Addison Adams, Esq.
	 

	 	 	 	Facsimile: (310) 208-1154
	 
	 	 	 	 
	 

	 	if to Consultant:
	 	Gene Simmons
	 

	 	 	 	c/o Joseph Young Associates, Ltd.
	 

	 	 	 	P.O. Box 807
	 

	 	 	 	18 Hook Mountain Road, Suite 203
	 

	 	 	 	Pine Brook, New Jersey 07058
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Janvey, Gordon, Herlands, Randolph & Cox, LLP
	 

	 	 	 	355 Lexington Avenue, 10th Floor
	 

	 	 	 	New York, New York 10017
	 

	 	 	 	Attention: William B. Randolph, Esq.
	 

	 	 	 	Facsimile: (212) 983-0772





or to such other address as the party to whom notice is to be given may have furnished to the other
parties to this Agreement in writing in accordance with the provisions of this Section. Any such
notice or communication shall be deemed to have been received (i) in the case of personal


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delivery, on the date of such delivery, (ii) in the case of internationally-recognized overnight
courier, on the next business day after the date when sent and (iii) in the case of mailing, on the
third business day following that on which the piece of mail containing such communication is
posted.



14. Amendments. This Agreement may not be modified or amended, or any of the provisions of
this Agreement waived, except by written agreement of the Company and Consultant.



15. Governing Law; Waiver of Jury Trial. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and construed and enforced in
accordance with the domestic laws of California without giving effect to any choice or conflict of
law provision or rule (whether in the State of California or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of California. In
furtherance of the foregoing, the internal law of the State of California will control the
interpretation and construction of this Agreement, even if under such jurisdiction’s choice of law
or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.




     BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY
AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT
OR ANY DOCUMENTS RELATED HERETO.


16. INDEMNIFICATION. The Company shall indemnify, defend and hold harmless Consultant
against any and all claims or other liabilities (including reasonable attorneys’ fees) arising out
of the performance of the services by Consultant pursuant to the term of this Agreement, provided
that such claims or other liabilities are not determined by a court of competent authority to have
resulted from gross negligence, intentional misconduct, a knowing violation of law or conduct that
Consultant did not believe was in the best interests of the Company. Company shall retain counsel
(subject to Consultant’s approval as to choice of counsel, not to be unreasonably withheld), to
defend against any claim covered by this paragraph. Consultant shall give prompt written notice to
Company of any claim subject to indemnification and shall cooperate fully with the Company’s
defense of such claim. Consultant will not settle, compromise or consent to the entry of judgment
against him in any pending or threatened claim without the Company’s consent (which shall not be
unreasonably withheld), unless such settlement compromise or release includes an unconditional
general release of the Company from all liability arising out of such claim action proceeding or
investigation. In the event the Company shall bear the cost of defense and/or payment of any claim
purported to be covered by this paragraph and it is determined that such claim is not covered by
this paragraph, Consultant shall promptly (within ten (10) days of notice and presentment of its
invoice) reimburse Company for the cost of such defense and/or payment.



17. Submission to Jurisdiction. Any legal action or proceeding with respect to this
Agreement or the other Financing Documents must be brought in the courts of the State of California
or the United States of America located in the City of Los Angeles, California and, by execution
and delivery of this Agreement, the parties hereby accept for themselves and in respect


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to their property, generally and unconditionally, the jurisdiction of the aforesaid courts. The
parties hereby irrevocably waives, in connection with any such action or proceeding, any objection,
including, without limitation, any objection to the venue or based on the grounds of forum
non-conveniens, which it may now or hereafter have to the bringing of any such action or proceeding
in such respective jurisdictions. The parties hereby irrevocably consent to the service of process
of any of the aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at its address as set forth herein.



18. Severability. It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and public policies applied
in each jurisdiction in which enforcement is sought. Accordingly, in the event that any provision
of this Agreement would be held in any jurisdiction to be invalid, prohibited or unenforceable for
any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the
remaining provisions of this Agreement or affecting the validity or enforceability of such
provision in any jurisdiction. Notwithstanding the foregoing, if such provision could be more
narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall,
as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of such provision in any other
jurisdiction.



19. Independence of Agreements, Covenants, Representations and Warranties. All agreements
and covenants hereunder shall be given independent effect so that if a certain action or condition
constitutes a default under a certain agreement or covenant, the fact that such action or condition
is permitted by another agreement or covenant shall not affect the occurrence of such default,
unless expressly permitted under an exception to such covenant. In addition, all representations
and warranties hereunder shall be given independent effect so that if a particular representation
or warranty proves to be incorrect or is breached, the fact that another representation or warranty
concerning the same or similar subject matter is correct or is not breached will not affect the
incorrectness of or a breach of a representation and warranty hereunder.



20. Counterparts. This Agreement may be executed in any number of counterparts, and each
such counterpart of this Agreement shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement. Facsimile counterpart signatures to this
Agreement shall be acceptable and binding in the same manner as an original thereof.



21. Headings. Section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.



22. Expenses. Each of the parties shall pay their respective fees and expenses incurred in
connection with the preparation, negotiation, execution and delivery of this Agreement. Company
will be under no obligation to make any additional payments to Consultant as a performer or to pay
any commissions or fees to any third party on account of this Agreement.



23. Preparation of Agreement. Each party to this Agreement acknowledges that: (i) the
party had the advice of, or sufficient opportunity to obtain the advice of, legal counsel separate
and independent of legal counsel for any other party hereto; (ii) the terms of the transactions
contemplated by this Agreement are fair and reasonable to such party; and (iii) such party has
voluntarily entered into the transactions contemplated by this Agreement without duress or


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coercion. Each party further acknowledges that such party was not represented by the legal counsel
of any other party hereto in connection with the transactions contemplated by this Agreement, nor
was he or it under any belief or understanding that such legal counsel was representing his or its
interests. Each party agrees that no conflict, omission or ambiguity in this Agreement, or the
interpretation thereof, shall be presumed, implied or otherwise construed against any other party
to this Agreement on the basis that such party was responsible for drafting this Agreement.



24. Entire Agreement. This Agreement and the Stock Purchase Agreement and the other
writings and agreements referred to in this Agreement or delivered pursuant to this Agreement
contain the entire understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings among the parties with respect thereto.




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



	 	 	 	 	 	 	 
	 

	 	“Company”
NGTV
	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
        /s/ Kourosh Taj
 

	 	 
	 

	 	Name:
	 	Kourosh Taj	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 
	AGREED AND ACCEPTED:

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	/s/ Gene Simmons
 


	 	 	 	 	 	 
	GENE SIMMONS
	 	 	 	 	 	 







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AMENDMENT NO. 1 TO THE

CONSULTING AND LICENSE AGREEMENT



     This Amendment No. 1 to the Consulting and License Agreement (“Amendment”) is entered into as
of June 1, 2006, by and between NGTV (“Company”) and Gene Simmons (“Consultant”) with respect to
that certain Consulting and License Agreement dated as of February 12, 2004 (“Agreement”).




	A.	 	Amendment to Section 1 – Extension of Term
	 
	 	 	Section 1 is deleted and replaced with the following:






Term. Subject to the terms and conditions of this
Agreement, Company hereby agrees to employ Consultant commencing on
February 12, 2004 and continuing in full force and effect for a
period of five (5) years until February 11, 2009 (the “Term”).




	B.	 	Amendment of Section 3.3 – Cash Compensation
	 
	 	 	A new Section 3.3 shall be added as follows:






Cash Compensation. Consultant shall be paid $20,000 per
month beginning February 12, 2006 and continuing through the
remainder of the Term. All cash payments owing hereunder shall
accrue and not become due and payable unless and until the Company
completes an initial public offering of its equity securities.




	C.	 	Amendment to Section 5.2 – Name and Likeness
	 
	 	 	The following phrase is deleted from Section 5.2:






(and for a period of twelve (12) months thereafter if this Agreement
is not terminated by Company without Cause or is terminated by
Consultant other than for “Good Reason”)




	D.	 	Amendment to Section 7.2 – Covenant Not To Solicit
	 
	 	 	The following is appended to the end of Section 7.2:






Furthermore, nothing in this paragraph shall apply to any business
dealings with Capital Growth Financial, LLC, and its affiliates




	E.	 	Amendment to Section 7.3 – Covenant Not To Interfere
	 
	 	 	The following is appended to the end of Section 7.3:




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Furthermore, nothing in this paragraph shall apply to any business
dealings with Capital Growth Financial, LLC, and its affiliates




	F.	 	Amendment to Section 13.4 – Notice to the Company
	 
	 	 	The address for notice to the Company is amended to be as follows:




NGTV

9944 Santa Monica Blvd.

Beverly Hills, CA 90212

Attention: Jay Vir





	G.	 	All other provisions to remain the same.





     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date and year first written above.



	 	 	 	 	 
	 	“Company”

NGTV

 	 
	 	By:  	/s/ Kourosh Taj
 	 
	 	 	Name:  	Kourosh Taj 	 
	 	 	Title:  	Co-President 	 
	 



AGREED AND ACCEPTED:




/s/ Gene Simmons                    





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