) made as of April ___, 2006 by and between
NGTV, a California corporation (the Company
, LLC, a Delaware limited
liability company (the Subscriber
WHEREAS, the Subscriber desires to purchase and the Company desires to sell in a private
placement to accredited investors (as defined below) a $ promissory note in the form
attached hereto as Exhibit A (the Note) and a Warrant to purchase up to $
of the Companys common stock in the form attached hereto as Exhibit B (the
Warrant) to purchase shares of common stock, no par value per share of the Company, at an
aggregate offering price of $ . The Note and Warrant being sold under this Agreement are
sometimes collectively referred to as the Securities.
NOW, THEREFORE, in consideration of the premises and the mutual representations and covenants
hereinafter set forth, the parties hereto agree as follows:
||SUBSCRIPTION FOR SECURITIES AND REPRESENTATIONS BY SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth, the Subscriber hereby
irrevocably subscribes for and agrees to purchase from the Company the Securities and the Company
agrees to sell such Securities to the Subscriber for said purchase price. The purchase price is
payable by personal or business check, wire transfer of immediately available funds or money order
made payable to the Company contemporaneously with the execution and delivery of this Agreement by
the Subscriber. The Securities will be delivered by the Company to the Subscriber promptly
following the receipt of the purchase price.
1.2 The Subscriber recognizes that the purchase of Securities involves a high degree of risk
in that (i) an investment in the Company is highly speculative and only investors who can afford
the loss of their entire investment should consider investing in the Company; (ii) the Subscriber
may not be able to liquidate its investment; (iii) transferability of the Securities is extremely
limited; and (iv) in the event of a disposition, the Subscriber could sustain the loss of its
1.3 The Subscriber represents that the Subscriber is an accredited investor as such term is
defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the
Act), and that the Subscriber is able to bear the economic risk and illiquidity of an
investment in the Securities.
1.4 The Subscriber hereby acknowledges and represents that (i) the Subscriber has prior
investment experience, including investment in non-listed and unregistered securities, or that the
Subscriber has employed the services of an investment advisor, attorney and/or accountant to read
all of the documents furnished or made available by the Company both to the Subscriber and to all
other prospective investors to evaluate the merits and risks of such an investment on the
Subscribers behalf; (ii) the Subscriber recognizes the highly speculative
nature of an investment in the Securities; and (iii) the Subscriber is able to bear the
economic risk and illiquidity which the Subscriber assumes by investing in the Securities.
1.5 The Subscriber (i) hereby represents that the Subscriber is familiar with the Company and
its operations and has previously invested in other securities of the Company and continues to hold
such securities, and that Subscriber had a pre-existing relationship with the Company prior to the
Companys filing of a registration statement on Form S-1 with the United States Securities and
Exchange Commission (SEC), (ii) hereby represents that the Subscriber has been furnished
by the Company during the course of this transaction with all information regarding the Company
which the Subscriber has requested or desired to know; (iii) has been afforded the opportunity to
ask questions of and receive answers from duly authorized officers or other representatives of the
Company concerning the terms and conditions of the Securities; and (iv) has received any additional
information which the Subscriber has requested.
1.6 (a) To the extent necessary, the Subscriber has retained, at its own expense, and relied
upon the advice of appropriate professionals regarding the investment, tax and legal merits and
consequences of this Agreement and its purchase of the Securities hereunder.
(b) The Subscriber covenants that no Securities were offered or sold to it by means of
any form of general solicitation or general advertising, and in connection therewith the
Subscriber did not (i) receive or review any advertisement, article, notice or other
communication published in a newspaper or magazine or similar media or broadcast over
television or radio, whether closed circuit or generally available; or (ii) attend any
seminar, meeting or industry investor conference whose attendees were invited by any general
solicitation or general advertising.
1.7 The Subscriber hereby acknowledges that the sale of Securities has not been reviewed by
the SEC because of the Companys representations that this sale of Securities is intended to be
exempt from the registration requirements of Section 5 of the Act pursuant to Sections 3(b), 4(2)
and 4(6) thereof and Regulation D promulgated under the Act. In this connection, the Subscriber
hereby represents that the Subscriber is purchasing the Securities for the Subscribers own account
for investment and not with a view toward the resale or distribution thereof to others. The
Subscriber agrees that the Subscriber will not sell or otherwise transfer the Securities unless
they are registered under the Act or unless an exemption from such registration is available.
1.8 The Subscriber understands and hereby acknowledges that the Securities it is purchasing
are characterized as restricted securities under federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without registration under the
Act only in certain limited circumstances. In this connection, Subscriber represents that it is
familiar with Rule 144 promulgated under the Act, as presently in effect, and understands the
resale limitations imposed thereby and by the Act.
1.9 The Subscriber understands and hereby acknowledges that the Company is under no obligation
to register the Securities under the Act or any state securities or blue sky
laws. The Subscriber consents that the Company may, if it desires, permit the transfer of the
Securities out of the Subscribers name only when the Subscribers request for transfer is
accompanied by an opinion of counsel reasonably satisfactory to the Company that neither the sale
nor the proposed transfer results in a violation of the Act or any applicable state blue sky laws
(collectively the, Securities Laws).
1.10 The Subscriber consents to the placement of a legend on any certificate or other document
evidencing the Securities indicating that such Securities have not been registered under the Act or
any state securities or blue sky laws and setting forth or referring to the restrictions on
transferability and sale thereof contained in this Agreement. The Subscriber is aware that the
Company will make a notation in its appropriate records and issue stop transfer instructions to
its transfer agent with respect to the restrictions on the transferability of such Securities.
1.11 The Subscriber represents that the Subscriber has full power and authority (corporate,
statutory and otherwise) to execute and deliver this Agreement and to purchase the Securities
subscribed for hereby. This Agreement constitutes the legal, valid and binding obligation of the
Subscriber, enforceable against the Subscriber in accordance with its terms.
||REPRESENTATIONS AND WARRANTIES BY COMPANY
As a material inducement of the Subscriber to enter into this Subscription Agreement
subscribe for the Securities, the Company represents and warrants to the Subscriber, as of the date
hereof, as follows:
2.1 The Company is a corporation duly organized, validly existing and in good standing under
the laws of the State of California, has full power to carry on its respective business as and
where such business is now being conducted and to own, lease and operate the properties and assets
now owned or operated by it and is duly qualified to do business and is in good standing in each
jurisdiction where the conduct of its business or the ownership of its properties requires such
2.2 The execution, delivery and performance of this Subscription Agreement
by the Company and
the consummation of the transactions contemplated hereby have been duly authorized by the Board of
Directors of the Company.
2.3 The execution, delivery and performance of this Subscription Agreement
consummation of the transactions contemplated hereby do not (i) violate or conflict with the
Companys Articles of Incorporation or By-Laws, (ii) conflict with or result (with the lapse of
time or giving of notice or both) in a material breach or default under any material agreement or
instrument to which the Company is a party or by which the Company is otherwise bound, (iii)
violate any order, judgment, law, statute, rule or regulation applicable to the Company, except
where such violation, conflict or breach would not have a material adverse effect on the Company.
This Subscription Agreement
when executed by the Company will be a legal, valid and binding
obligation of the Company enforceable in accordance with its terms.
2.4 There are no actions, suits, proceedings or investigations pending or, to the knowledge of
the Company, threatened against the Company at law or in equity before or by any
court or Federal, state, municipal or their governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign which could materially adversely affect the
Company. The Company is not subject to any continuing order, writ, injunction or decree of any
court or agency against it which would have a material adverse effect on the Company.
2.5 No consents, filings, authorizations or other actions of any governmental authority are
required to be obtained or made by the Company for the Companys execution, delivery and
performance of this Subscription Agreement
which have not already been obtained or made or will be
made in a timely manner following the closing.
2.6 The Company has made available to the Subscriber each report, registration statement, and
other filing (including exhibits, supplements and schedules thereto) filed with the SEC by the
Company since December 31, 2005 (collectively, the Company SEC Documents). As of their
respective filing dates, to the best of the Companys knowledge solely with respect to information
provided to the Company by the selling securityholders listed in the Company SEC Documents, the
Company SEC Documents, to the best of the Companys knowledge, complied in all material respects
with the requirements of the Securities Act, and, to the best of the Companys knowledge solely
with respect to information provided to the Company by the selling securityholders listed in the
Company SEC Documents, none of the Company SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they were made, not
misleading, except to the extent corrected by a subsequently filed Company SEC Document. Since the
most recent filing of a Company SEC Document, there has been no circumstance, change in or effect
on the Company that, individually or in the aggregate with any other circumstance, changes in or
effects on the Company, is, or would reasonably be expected to be materially adverse to the assets,
business, operation, condition (financial or otherwise) or results of operations of the Company.
2.7 The Company is not obligated to pay any commission or finders fees to any persons in
connection with the sale of the Securities, other than a 10.0% commission and 2.0% non-accountable
expense allowance to Capital Growth Financial LLC, an NASD member firm.
3.1 This Agreement shall not be changed, modified or amended except by a writing signed by all
parties to this Agreement, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
3.2 Upon the execution and delivery of this Agreement by the Subscriber, this Agreement shall
become a binding obligation of the Subscriber with respect to the purchase of Securities as herein
provided, subject to acceptance by the Company.
3.3 Notwithstanding the place where this Agreement may be executed by any of the parties
hereto, the parties expressly agree that all the terms and provisions hereof shall be
construed in accordance with and governed by the laws of the State of New York without regard
to principles of conflicts of law.
3.4 The holding of any provision of this Agreement to be invalid or unenforceable by a court
of competent jurisdiction shall not affect any other provision of this Agreement, which shall
remain in full force and effect. If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in whole or in part,
such provision shall be interpreted so as to remain enforceable to the maximum extent permissible
consistent with applicable law and the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent they are valid,
legal and enforceable, and no provisions shall be deemed dependent upon any other covenant or
provision unless so expressed herein.
3.5 It is agreed that a waiver by either party of a breach of any provision of this Agreement
shall not operate, or be construed, as a waiver of any subsequent breach by that same party.
3.6 The parties agree to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be necessary or appropriate to carry out
the purposes and intent of this Agreement.
3.7 This Agreement may be executed in two or more counterparts each of which shall be deemed
an original, but all of which shall together constitute one and the same instrument.
3.8 Any pronoun herein shall include all genders and/or the plural or singular as appropriate
from the context.
3.9 Each party hereto hereby irrevocably and unconditionally submits to the jurisdiction of
any federal or state court sitting in the County of New York in the State of New York and
irrevocably agrees that all actions or proceedings arising out of or relating to this Agreement
shall be litigated exclusively in such court. Each party hereto agrees not to commence any legal
proceeding related hereto or thereto except in such courts. Each party hereto irrevocably waives
any objection which it may now or hereafter have to the laying of the venue of any such proceeding
in any such court and hereby further irrevocably and unconditionally waives and agrees not to plead
or claim in any such court that any such action, suit or proceeding brought in any such court has
been brought in an inconvenient forum. Each party hereto consents to process being served in any
such action or proceeding by mailing a copy thereof by registered or certified mail.
3.10 EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (1) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OF THE OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT ANY OF THE OTHER PARTIES WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 3.10.
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IN WITNESS WHEREOF, the parties hereto signed this agreement on the date first written above.