exv4w14



 







EXHIBIT 4.14




NGTV

AND

CAPITAL GROWTH FINANCIAL LLC




FORM OF

REPRESENTATIVE’S OPTION AGREEMENT FOR UNITS




Dated as of _________________, 2006




 






     REPRESENTATIVE’S OPTION AGREEMENT FOR UNITS dated as of                     , 2006 among NGTV, a
California corporation (the “Company”) and CAPITAL GROWTH FINANCIAL LLC, the representative of the
underwriters, a Florida limited liability company (hereinafter referred to variously as the
“Holder”, “Underwriter” or “Representative”).



W I T N E S S E T H:




     WHEREAS, the Representative has agreed pursuant to the underwriting agreement (the
“Underwriting Agreement”) between the Representative, on behalf of the several underwriters, the
Company and the Selling Security Holders named therein, to underwrite, on a firm commitment basis,
the Company’s proposed public offering (“Public Offering”) of up to [6,032,591] units (exclusive of
[625,000] over allotment units) (“Units”) at a public offering price of [$6.00] per Unit, each Unit
consisting of one (1) share of the Company’s common stock no par value per share (“Common Stock”)
and one (1) Redeemable Common Stock Purchase Warrant to purchase one-half of one share of Common
Stock (“Warrant”); and



     WHEREAS, the Company proposes to issue to the Representative options (“Representative Unit
Purchase Options”) to purchase up to an aggregate of 416,667 Units [10% of the Units sold in the
Offering excluding Units being sold by the Selling Security Holders and Units issuable in the event
the over-allotment option is exercised] (the “Representative Units”) of the Company at a purchase
price of $.001 per Unit Purchase Option, exercisable at [120%] of the public offering price of the
Units; and



     WHEREAS, the Representative Units shall be identical to the units sold in the Public Offering
(“Public Units”) and each Representative Unit shall consist of (i) one share of Common Stock (“Unit
Share”) and (ii) one Warrant (“Unit Warrant”); and



     WHEREAS, the Representative’s Unit Purchase Options to be issued pursuant to this Agreement
will be issued by the Company on the Closing Date (as such term is defined in the Underwriting
Agreement) in consideration for, and as part of the compensation in connection with the Public
Offering;



     NOW, THEREFORE, in consideration of the premises, the payment by the Representative to the
Company of an aggregate of One Hundred Sixteen Dollars ($416.00 or



 









 







$0.001 per Unit), the agreements herein set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Grant. The Holder is hereby granted the right to purchase, at any time from
                    2007 [one year from the Effective Date] until 5:00 P.M., Pacific Time, on                     ,
2011, up to an aggregate of [416,667] Representative Units at an initial exercise price per Unit
(subject to adjustment as provided in Section 8 hereof) of [120%] of the Public Offering Price (the
“Exercise Price”).



     2. Representative’s Unit Purchase Option Certificates. The Representative’s option
certificates (the “Representative’s Unit Purchase Option Certificates”) delivered and to be
delivered pursuant to this Agreement shall be in the form set forth in Exhibit A, attached hereto
and made a part hereof, with such appropriate insertions, omissions, substitutions, and other
variations as required or permitted by this Agreement.



     3. Exercise of Representative’s Unit Purchase Options. The Representative’s Unit Purchase
Options initially are exercisable at the exercise price (subject to adjustment as provided in
Section 8 hereof) per Unit, as set forth in Section 6 hereof, payable by (i) certified or official
bank check in New York Clearing House funds, subject to adjustment as provided in Section 8 hereof;
or (ii) through a cashless exercise. “Cashless Exercise” means an exercise of Unit Purchase Options
in which, in lieu of payment of the Exercise Price, the Holder elects to receive a lesser number of
securities such that the value of the securities that such Holder would otherwise have been
entitled to receive but has agreed not to receive, as determined by the closing price of such
securities on the date of exercise or, if such date is not a trading day, on the next prior trading
day, is equal to the Exercise Price with respect to such exercise. A Holder may only elect a
Cashless Exercise if the class of securities issuable by the Company on such exercise is publicly
traded. Upon surrender at the Company’s principal offices in California (presently located at 9944
Santa Monica Blvd., Beverly Hills, California 90012), of Representative’s Unit Purchase Options
with the annexed Form of Election to Purchase duly executed, together with payment of the Purchase
Price (as hereinafter defined) for the Representative Units purchased, the registered holder of a
Representative’s Unit Purchase Option (“Holder” or “Holders”) shall be entitled to receive a
certificate or certificates for the Representative Units so purchased. The Representative Units
shall be identical to the Units and shall consist of one Unit Share and one Unit Warrant. The
purchase rights represented by each Representative’s Unit Purchase Option are exercisable at the
option of the Holder thereof, in whole or in part (but not as to fractional shares of Common Stock
underlying the Representative Units). In the case of the purchase of less than all the
Representative Units purchasable under any Representative’s Unit Purchase Option Certificate, the
Company shall cancel the Representative’s Unit Purchase Option Certificate upon the surrender
thereof, and shall execute and deliver a new Representative’s Unit Purchase Option Certificate of
like tenor for the balance of the Representative Units purchasable thereunder.



     4. Issuance of Certificates. Upon the exercise of Representative’s Unit Purchase Options, the
issuance of certificates for the Units, Unit Warrants and Unit Shares or other securities,
properties or rights underlying such Representative’s Unit Purchase Option, shall be made forthwith
(and in any event within five (5) business days thereafter) without charge to the



 









 







Holder thereof including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall (subject to the provisions of Sections 5 and 7
hereof) be issued in the name of, or in such names as may be directed by, the Holder thereof;
provided, however, that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such certificates in a name
other than that of the Representative and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.



     The Representative’s Unit Purchase Options and the certificates representing the Units, Unit
Warrants and Unit Shares issuable upon exercise of the Representative’s Unit Purchase Options shall
be executed on behalf of the Company by the manual or facsimile signature of the Chairman or Vice
Chairman of the Board of Directors or any President or Vice President of the Company under its
corporate seal reproduced thereon, attested to by the manual or facsimile signature of the then
present Secretary or Assistant Secretary of the Company. The Representative’s Unit Purchase Options
shall be dated the date of the execution by the Company upon initial issuance, division, exchange,
substitution or transfer. The certificates representing the Units, Unit Warrants and Unit Shares
issuable upon exercise of the Representative’s Unit Purchase Options shall be identical in form and
substance to those issued and sold to the public in connection with the Public Offering, including
the terms of redemption for the Warrants. Notwithstanding the foregoing, if, at the time of
exercise of the Representative’s Unit Purchase Option, the Units into which the Representative’s
Unit Purchase Option are exercisable have been separated and no longer trade as Units, then, upon
exercise of the Representative’s Unit Purchase Option, and in lieu of Representative’s Units, the
Company shall issue to the registered Holder, in the manner provided in the first paragraph of this
Section 4:



     (i) such number of Unit Shares as would have been included in each of the Representative Units
had Units been issued upon exercise of the Representative’s Unit Purchase Option by such Holder,
registered in such name(s) as may be designated by the Holder not inconsistent with Section 5
hereof; and



     (ii) such number of Unit Warrants as would have been included in the Representative’s Units
had Units been issued upon exercise of the Representative’s Unit Purchase Option by such Holder,
registered in such name(s) as may be designated by the Holder not inconsistent with Section 5
hereof.



     5. Restriction On Transfer of Representative’s Unit Purchase Option. Neither the Unit
Purchase Option nor the securities of NGTV issuable thereunder may be sold during the Offering, or
sold, transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short
sale, derivative, put, or call transaction that would result in the effective economic disposition
of the Unit Purchase Option or the NGTV securities issuable thereunder by any person during the 180
days immediately following the effective date of the Registration Statement or the commencement of
the Offering, whichever is later, except transfers to any NASD member participating in the Offering
or its officers or partners, or except as otherwise specifically permitted by NASD Conduct Rule
2710(g)(2).



 









 





     6. Exercise Price.




     6.1 Initial and Adjusted Exercise Price. Except as otherwise provided in Section 8
hereof, the initial exercise price of each Representative’s Unit Purchase Option shall be
[$7.20] (120% of Unit Offering Price) per Unit. The exercise price shall be adjusted from
time to time in accordance with the provisions of Section 8 hereof.




     6.2 Exercise Price. The term “Exercise Price” herein shall mean the initial exercise
price or the adjusted exercise price, as the context may require.



     7. Registration Rights.




     7.1 Demand Registration Under the Securities Act of 1933. At any time commencing
after                     , 2007 [one (1) year from the Effective Date] through and including
                    , 2011 [five (5) years from the Effective Date], the Holders of
Representative’s Unit Purchase Options, Unit Warrants and Unit Shares, representing a
“Majority” of the shares of Common Stock issuable upon the exercise of the Representative
Units (assuming the exercise of all of the Representative’s Unit Purchase Options and all of
the Unit Warrants included therein) shall have the right (which right is in addition to the
registration rights under Section 7.2 hereof), exercisable by written notice to the Company,
to have the Company prepare and file with the Commission, on one occasion, a registration
statement and such other documents, including a prospectus, as may be necessary in order to
comply with the provisions of the Act, so as to permit a public offering and sale of their
respective Unit Warrants and Unit Shares during a period equal to the longer of: (i) nine
(9) months or (ii) the unexpired term of the Unit Warrants by such Holders and any other
Holders of Representative’s Unit Purchase Options, Representative Units, Unit Shares and
Unit Warrants who shall notify the Company within ten (10) days after receiving notice from
the Company of such request.




     7.2 Piggyback Registration. If, at any time commencing after                     , 2006,
through and including                     , 2011 [five (5) years from the Effective Date], the
Company proposes to register any of its securities under the Act (other than in connection
with a merger or pursuant to Form S-8 or similar form) it will give written notice by
registered or certified mail, at least thirty (30) days prior to the filing of each such
registration statement, to the Representative and to all other Holders of Representative’s
Unit Purchase Options, Representatives Units, Unit Warrants or Unit Shares underlying the
Representative Units, of its intention to do so. If any of the Representatives or other
Holders of Representative’s Unit Purchase Options, Representative’s Units, Unit Warrants or
Unit Shares underlying the Representative Units, notify the Company within twenty (20) days
after receipt of any such notice of its or their desire to include any of the Unit Warrants
and/or Unit Shares beneficially owned by them in such proposed registration statement, the
Company shall afford each of the Representative and each such Holder, the opportunity to
have any of their Unit Warrants and/or Unit Shares registered under such registration
statement.



 









 






     Notwithstanding the provisions of this Section 7.2, the Company shall have the right at
any time after it shall have given written notice pursuant to this Section 7.2 (irrespective
of whether a written request for inclusion of any such securities shall have been made) to
elect not to file any such proposed registration statement, or to withdraw the same after
the filing but prior to the Effective Date thereof.




     7.3 Notice of Registration. The Company covenants and agrees to give written notice
of any registration request under Section 7.1 by any Holder or Holders to all other
registered Holders of the Representative’s Unit Purchase Option, Unit Shares and Unit
Warrants underlying the Representative Units within ten (10) days from the date of the
receipt of any such registration request.




     7.4 Covenants of the Company With Respect to Registration. In connection with any
registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:




     (a) The Company shall use its best efforts to file a registration statement
within sixty (60) days of receipt of any demand therefor in accordance with Section
7.1, shall use its best efforts to have any registration statement declared
effective at the earliest possible time, and shall furnish each Holder whose
securities are included in such registration statement such number of prospectuses
as shall reasonably be requested. Notwithstanding the foregoing sentence, the
Company shall be entitled to postpone the filing of any registration statement
otherwise required to be prepared and filed by it pursuant to this Section 7.4(a) if
(i) the Company is under contract or other binding legal obligation for a material
acquisition, reorganization or divestiture, or (ii) the Company is publicly
committed to a self-tender or exchange offer and the filing of a registration
statement would cause a violation of Regulation M under the Securities Exchange Act
of 1934. In the event of such postponement, the Company shall be required to file
the registration statement pursuant to this Section 7.4(a) upon the earlier of (i)
the consummation or termination, as applicable, of the event requiring such
postponement or (ii) 90 days after the receipt of the initial demand for such
registration.




     (b) The Company shall pay all costs (excluding fees and expenses of Holder(s)
counsel and any underwriting or selling commissions), fees and expenses in
connection with all registration statements filed pursuant to Sections 7.1 and 7.2
hereof including, without limitation, the Company’s legal and accounting fees,
printing expenses, and blue sky fees and expenses. If the Company shall fail to
comply with the provisions of Section 7.4(a), the Company shall, in addition to any
other equitable or other relief available to the Holder(s), be liable for any or all
incidental, special and consequential damages and damages due to loss of profit
sustained by the Holder(s) requesting registration of their Unit Shares and Unit
Warrants underlying the Representative Units.



 









 






     (c) The Company will take all necessary action which may be required in
qualifying or registering the Unit Shares and Unit Warrants underlying the
Representative Units included in a registration statement for offering and sale
under the securities or blue sky laws of such states as reasonably are requested by
the Holder(s), provided that the Company shall not be obligated to execute or file
any general consent to service of process or to qualify as a foreign corporation to
do business under the laws of any such jurisdiction.




     (d) The Company shall indemnify the Holder(s) of Representative’s Unit Purchase
Options, Representative Units, Unit Shares and Unit Warrants to be sold pursuant to
any registration statement and each person, if any, who controls such Holders within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (“Exchange Act”), against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may become subject
under the Act, the Exchange Act or otherwise, arising from such registration
statement but only to the same extent and with the same effect as the provisions
pursuant to which the Company has agreed to indemnify the Representative contained
in Section 7 of the Underwriting Agreement.




     (e) The Holder(s) of Representative’s Unit Purchase Options, Representative’s
Units, Unit Shares and Unit Warrants underlying the Representative Units to be sold
pursuant to a registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and directors and
each person, if any, who controls the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or
expense or liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or assigns, for
specific inclusion in such registration statement to the same extent and with the
same effect as the provisions contained in Section 7 of the Underwriting Agreement
pursuant to which the Representative has agreed to indemnify the Company.




     (f) Nothing contained in this Agreement shall be construed as requiring the
Holder(s) to exercise their Representative’s Unit Purchase Options or their Unit
Warrants prior to the initial filing of any registration statement or the
effectiveness thereof.




     (g) If the Unit Shares and Unit Warrants underlying the Representative Units
are to be sold in an underwritten public offering, the Company shall use its best
efforts to furnish to each Holder participating in the offering and to each such
underwriter, a signed counterpart, addressed to such underwriter, of (i) an opinion
of counsel to the Company dated the date of the closing under the underwriting



 









 







agreement, and (ii) a “cold comfort” letter dated the date of the closing under
the underwriting agreement signed by the independent public accountants who have
issued a report on the Company’s financial statements included in such registration
statement, in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case of
such accountants’ letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer’s counsel and
in accountants’ letters delivered to underwriters in underwritten public offerings
of securities.




     (h) The Company shall as soon as practicable after the Effective Date of the
registration statement, and in any event within 15 months thereafter, have made
“generally available to its security holders” (within the meaning of Rule 158 under
the Act) an earnings statement (which need not be audited) complying with Section
11(a) of the Act and covering a period of at least 12 consecutive months beginning
after the Effective Date of the registration statement.




     (i) The Company shall deliver promptly to each Holder participating in the
offering requesting the correspondence and memoranda described below, and the
managing underwriters, copies of all correspondence between the Commission and the
Company, its counsel or auditors and all Company memoranda (excluding memoranda to
and from counsel) relating to discussions with the Commission or its staff with
respect to the registration statement and permit each Holder and underwriter to do
such investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. (“NASD”). Such investigation shall include
access to books, records and properties and opportunities to discuss the business of
the Company with its officers and independent auditors, all to such reasonable
extent and at such reasonable times and as often as any such Holder shall reasonably
request.




     (j) The Company shall enter into an underwriting agreement with the managing
underwriter(s) selected for such underwriting, if any, which underwriter shall be
subject to approval by Holders of a Majority of Representative’s Unit Purchase
Options, Representative Units, Unit Shares and Unit Warrants underlying the
Representative Units requesting to be included in such underwriting. Such
underwriting agreement shall be reasonably satisfactory in form and substance to the
Company, each Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such other terms as are
customarily contained in agreements of that type used by the managing
underwriter(s).




     The Holders shall be parties to any underwriting agreement relating to an
underwritten sale of their Units Shares and Unit Warrants underlying the
Representative’s Units and may, at their option, require that any or all the



 









 







representations, warranties and covenants of the Company to or for the benefit
of such underwriter(s) shall also be made to and for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties to or
agreements with the Company or the underwriter(s) except as they may relate to such
Holders, their intended methods of distribution, and except for matters related to
disclosures with respect to such Holders, contained or required to be contained, in
such registration statement under the Act and the rules and regulations thereunder.




     (k) For purposes of this Agreement, the term “Majority” in reference to the
Holders of Representative’s Unit Purchase Options, Representative Units, Unit Shares
and Unit Warrants, shall mean in excess of fifty percent (50%) of the Common Stock
of the Company issuable upon full exercise of all Representative’s Unit Purchase
Options, including the Unit Warrants included in the Representative Units that have
not been resold to the public pursuant to Rule 144 under the Act or a registration
statement filed with the Commission under the Act.



     8. Adjustments to Exercise Price and Number of Securities. The Exercise Price and number of
securities issuable with respect to the Unit Warrants shall be adjusted on the same terms and
conditions, and at the same time, as any adjustments in the Exercise Price and number of shares
issuable with respect to the Public Warrants required by the terms of the Public Warrants.



     9. Exchange and Replacement of Representative’s Unit Purchase Option. Each Representative’s
Unit Purchase Option Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new Representative’s Unit
Purchase Option Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of Units as provided in the original Representative’s Unit Purchase
Options in such denominations as shall be designated by the Holder thereof at the time of such
surrender.



     Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any Representative’s Unit Purchase Options, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it, and reimbursement to
the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of
the Representative’s Unit Purchase Option Certificate, if mutilated, the Company will make and
deliver a new Representative’s Unit Purchase Option Certificate of like tenor, in lieu thereof.



     10. Elimination of Fractional Interests. The Company shall not be required to issue
certificates representing fractions of shares of Common Stock upon the exercise of the
Representative’s Unit Purchase Options, nor shall it be required to issue scrip or pay cash in lieu
of fractional interests, it being the intent of the parties that all fractional interests shall be
eliminated by rounding any fraction up to the nearest whole number of shares of Common Stock or
other securities, properties or rights.



 









 





     11. Reservation and Listing of Securities. The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Representative’s Unit Purchase Options, such number of shares of Common Stock or
other securities, properties or rights as shall be issuable upon the exercise thereof. The Company
covenants and agrees that, upon exercise of the Representative’s Unit Purchase Options and/or the
Representative Unit Warrants and payment of the Exercise Price therefor, all Representative Units,
Unit Shares or Unit Warrants and other securities issuable upon such exercise shall be duly and
validly issued, fully paid, non-assessable and not subject to the preemptive rights of any
stockholder. As long as the Representative’s Unit Purchase Options and/or Representative Units
shall be outstanding, the Company shall use its best efforts to cause all Unit Shares and Unit
Warrants issuable upon the exercise of the Representative’s Unit Purchase Option and Representative
Units to be listed (subject to official notice of issuance) on all securities exchanges on which
the Common Stock issued to the public in connection herewith may then be listed and/or quoted on
the American Stock Exchange.



     12. Notices to Representative’s Option Holders. Nothing contained in this Agreement shall be
construed as conferring upon the Holders the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any
time prior to the expiration of the Representative’s Unit Purchase Options or Unit Warrants and
their exercise, any of the following events shall occur:




     (a) the Company shall take a record of the holders of its shares of Common Stock for
the purpose of entitling them to receive a dividend or distribution payable otherwise than
in cash, or a cash dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatment of such dividend or distribution
on the books of the Company; or




     (b) the Company shall offer to all the holders of its Common Stock any additional shares of
capital stock of the Company or securities convertible into or exchangeable for shares of
capital stock of the Company, or any option, right or warrant to subscribe
therefor; or




     (c) a dissolution, liquidation or winding up of the Company (other than in connection
with a consolidation or merger) or a sale of all or substantially all of its property assets
and business as an entirety shall be proposed;




then, in any one or more of such events the Company shall give written notice of such event
at least fifteen (15) days prior to the date fixed as a record date or the date of closing
the transfer books for the determination of the stockholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity of any
action taken in connection with the declaration or payment of any such dividend, or the



 









 







issuance of any convertible or exchangeable securities, or subscription rights, options or
warrants, or any proposed dissolution, liquidation, winding up or sale.



     13. Notices. All notices requests, consents and other communications hereunder shall be in
writing and shall be deemed to have been duly made when delivered, or mailed by registered or
certified mail, return receipt requested:




     (a) If to the registered Holder of Representative’s Unit Purchase Options, to the
address of such Holder as shown on the books of the Company; or




     (b) If to the Company, to the address set forth in Section 3 hereof or to such other
address as the Company may designate by notice to the Holders.



     14. Supplements and Amendments. The Company and the Representative may from time to time
mutually supplement or amend this Agreement without the approval of any holders of Representative’s
Unit Purchase Option (other than the Representative) in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or inconsistent with any
provisions herein or to make any other provisions in regard to matters or questions arising
hereunder which the Company and the Representative may deem necessary or desirable and which the
Company and the Representative deem shall not adversely affect the interests of the Holders of
Representative’s Unit Purchase Options.



     15. Successors. All the covenants and provisions of this Agreement shall be binding upon and
inure to the benefit of the Company, the Holders and their respective successors and assigns
hereunder.



     16. Termination. This Agreement shall terminate at the close of business on                     , 2011.
Notwithstanding the foregoing, the indemnification provisions of Section 7 shall survive such
termination until the close of business on                     , 2012.



     17. Governing Law: Submission to Jurisdiction.




     (a) This Agreement and each Representative’s Unit Purchase Option issued hereunder
shall be deemed to be a contract made under the laws of the State of Florida and for all
purposes shall be construed in accordance with the laws of such State without giving effect
to the rules of said State governing the conflicts of laws.




     (b) The Company, the Representative and the Holders hereby agree that any action,
proceeding or claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the State of Florida or of the United States
of America Federal Courts located in the State of Florida, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company, the Representative and the
Holders hereby irrevocably waive any objection to such exclusive jurisdiction or
inconvenient forum. Any such process or summons to be served upon any of the Company, the
Representative and the Holders (at the option of the party bringing such action, proceeding
or claim) may be served by transmitting a copy thereof, by



 









 







registered or certified mail, return receipt requested, postage prepaid, addressed to
it at the address set forth in Section 13 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the party so served in any action, proceeding or
claim. The Company, the Representative and the Holders agree that the prevailing party(ies)
in any such action or proceeding shall be entitled to recover from the other party(ies) all
of its/their reasonable legal costs and expenses relating to such action or proceeding
and/or incurred in connection with the preparation therefor.



     18. Entire Agreement; Modification. This Agreement (including the Underwriting Agreement to
the extent portions thereof are referred to herein) contains the entire understanding between the
parties hereto with respect to the subject matter hereof and, except as provided in Section 14
hereof, may not be modified or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.



     19. Severability. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other provision of this
Agreement.



     20. Captions. The caption headings of the Sections of this Agreement are for convenience of
reference only and are not intended, nor should they be construed as, a part of this Agreement and
shall be given no substantive effect.



     21. Benefits or this Agreement. Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company and the Representative and any other registered
Holder(s) of the Representative’s Unit Purchase Option or Unit Shares or Unit Warrants underlying
the Representative’s Unit any legal or equitable right, remedy or claim under this Agreement; and
this Agreement shall be for the sole and exclusive benefit of the Company and the Representative
and any other Holder(s) of the Representative’s Unit Purchase Option or Representative Units.



     22. Facsimile; Counterparts. This Agreement may be executed by facsimile signature, in any
number of counterparts and each of such counterparts shall for all purposes be deemed to be an
original, and such counterparts shall together constitute but one and the same instrument.



 









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of
the day and year first above written.



	 	 	 	 	 
	[SEAL] 	NGTV

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	President 	 
	 



Attest:




Secretary




	 	 	 	 	 
	 	CAPITAL GROWTH FINANCIAL LLC

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT A




[FORM OF REPRESENTATIVE’S UNIT PURCHASE OPTION CERTIFICATE]





     THE REPRESENTATIVE’S UNIT PURCHASE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE OTHER
SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE EXTENT APPLICABLE,
RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.



     THE TRANSFER OR EXCHANGE OF THE REPRESENTATIVE’S UNIT PURCHASE OPTIONS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE REPRESENTATIVE’S OPTION AGREEMENT FOR UNITS
REFERRED TO HEREIN.



EXERCISABLE ON OR BEFORE

5:00 P.M., PACIFIC TIME,                     , 2011




No. W-          Representative’s Unit Purchase Options




Representative’s Unit Purchase Options




     This Representative’s Unit Purchase Option Certificate certifies that Capital Growth Financial
LLC, or registered assigns, is the registered holder of                      [                    ] Representative’s
Unit Purchase Options to purchase initially, at any time from                     , 2007 until 5:00p.m.
Pacific Time on                     , 2011 (“Expiration Date”), up to                      [                    ] Units (the
“Units”) of NGTV, a California corporation (the “Company”), at an initial exercise price, subject
to adjustment in certain events (the “Exercise Price”), of $                     [120% of the public offering
price of the Units] upon surrender of this Representative’s Unit Purchase Option Certificate and
payment of the Exercise Price at an office or agency of the Company, but subject to the conditions
set forth herein and in the Representative’s Option Agreement for Units dated as of                     ,
2006 between the Company and Capital Growth Financial LLC (the “Representative’s Option
Agreement”). Subject to cashless exercise, as defined and in the manner provided for in Section 2
of the Representative’s Option Agreement, payment of the Exercise Price shall be made by certified
or official bank check in New York Clearing House funds payable to the order of the Company.



     No Representative’s Unit Purchase Options may be exercised after 5:00 p.m., Pacific Time, on
the Expiration Date, at which time all Representative’s Unit Purchase Options evidenced hereby,
unless exercised prior thereto, shall thereafter be void.



 









 





     The Representative’s Unit Purchase Option evidenced by this Representative’s Unit Purchase
Option Certificate is part of a duly authorized issue of Units pursuant to the Representative’s
Option Agreement, which Representative’s Option Agreement is hereby incorporated by reference in
and made a part of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the Company and the holders
(the words “holders” or “holder” meaning the registered holders or registered holder) of the
Representative’s Unit Purchase Options.



     The Representative’s Option Agreement provides that upon the occurrence of certain events the
exercise prices and/or number of the Company’s securities issuable thereupon may, subject to
certain conditions, be adjusted. In such event, the Company will, at the request of the holder,
issue a new Representative’s Unit Purchase Option Certificate evidencing the adjustment in the
exercise price and the number and/or type of securities issuable upon the exercise of the
Representative’s Unit Purchase Options; provided, however, that the failure of the Company to issue
such new Representative’s Unit Purchase Options shall not in any way change, alter or otherwise
impair, the rights of the holder as set forth in the Representative’s Option Agreement.



     Upon due presentment for registration of transfer of this Representative’s Unit Purchase
Option Certificate at an office or agency of the Company, a new Representative’s Unit Purchase
Option Certificate of like tenor and evidencing in the aggregate a like number of Representative’s
Unit Purchase Options shall be issued to the transferee(s) in exchange for this Representative’s
Unit Purchase Option Certificate, subject to the limitations provided herein and in the
Representative’s Option Agreement, without any charge except for any tax or other governmental
charge imposed in connection with such transfer.



     Upon the exercise of less than all of the Representative’s Unit Purchase Options evidenced by
this Certificate, the Company shall forthwith issue to the holder hereof a new Representative’s
Unit Purchase Option Certificate representing such number of unexercised Representative’s Unit
Purchase Options.



     The Company may deem and treat the registered holder(s) hereof as the absolute owner(s) of the
Representative’s Unit Purchase Options evidenced by this Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, and
of any distribution to the holder(s) hereof, and for all other purposes, and the Company shall not
be affected by any notice to the contrary.



     All terms used in this Representative’s Unit Purchase Option which are defined in the
Representative’s Option Agreement shall have the meanings assigned to them in the Representative’s
Option Agreement.



[Signature Page Follows]




 









 








     IN WITNESS WHEREOF, the Company has caused this Representative’s Unit Purchase Option
Certificate to be duly executed under its corporate seal.



Dated as of _____________, 2006




	 	 	 	 	 
	[SEAL] 	NGTV

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	President 	 
	 



Attest:




Secretary




 









 





[FORM OF ELECTION TO PURCHASE]





     The undersigned hereby irrevocably elects to exercise the right, represented by this
Representative’s Unit Purchase Option Certificate, to purchase                     Representative’s Units and
herewith tenders in payment for such securities a certified or official bank check payable in New
York Clearing House Funds to the order of NGTV. in the amount of $                                         , or
pursuant to the cancellation of Representative’s Unit Purchase Options pursuant to a cashless
exercise of this Representative’s Unit Purchase Option, in accordance with Section 3 of the
Representative’s Option Agreement for Units, all in accordance with the terms hereof. The
undersigned requests that a certificate for such securities be registered in the name of
                     whose address is                      and that such Certificate be delivered to                     
whose address is                     



Dated:




	 	 	 	 	 
	 

	 	Signature	 	 
	 

	 	 	 
	 	 	(Signature must conform in all respects to name of holder as specified on the
face of the Representative’s Unit Purchase Option Certificate.)
	 
	 
	 	 	 	 
	 	 	 
	 	 	(Insert Social Security or Other
Identifying Number of Holder)