SELLING SECURITY HOLDER UNDERWRITING AGREEMENT
EXHIBIT 1.4
a California corporation
SELLING SECURITY HOLDER
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
[5,997,174] Units, each Unit consisting of
One (1) Share of Common Stock and
One (1) Redeemable Common Stock Purchase Warrant
One (1) Share of Common Stock and
One (1) Redeemable Common Stock Purchase Warrant
, 2006
Capital Growth Financial, LLC
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
As Representative of the Underwriters
named on Schedule A hereto
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
As Representative of the Underwriters
named on Schedule A hereto
Ladies and Gentlemen:
This Selling Security Holder Underwriting Agreement relates to the proposed sale by NGTV, a
corporation organized and existing under the laws of California (the “Company”), and certain
shareholders of the Company identified on Schedule A hereto (collectively, the “Selling Security
Holders”), to the several underwriters named on Schedule B hereto (collectively, the
“Underwriters”), for whom Capital Growth Financial, LLC is acting as representative (in such
capacity, the “Representative”), severally, of an aggregate of [5,997,174] units (the “Firm
Units”), each Firm Unit comprised of: one (1) share of the Company’s common stock, no par value per
share, and one (1) Redeemable Common Stock Purchase Warrant to purchase one-half (1/2) of one (1)
share of common stock, of which [4,166,667] Firm Units are to be issued and sold by the Company
(the “Company Firm Units”) and [1,830,507] Firm Units are to be sold by the Selling Security
Holders (the “Holder Firm Units”), with each Selling Security Holder selling, except as noted
below, the number of Holder Firm Units corresponding to its name on Schedule A.
The terms and conditions under which the Company has agreed to issue and sell the Company
Units are set forth in an Underwriting Agreement of even date herewith by and between the Company
and the Representative (the “Company Underwriting Agreement”). Defined terms not otherwise defined
herein shall have the meanings ascribed to them in the Company Underwriting Agreement. The Firm
Units do not include Additional Units that may be sold by the Company to the Underwriters pursuant
to the Company Underwriting Agreement in
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the event that the Representative exercises the Over-Allotment Option granted to it by the
Company.
The Firm Units are being sold to the Underwriters in connection with a proposed public
offering of the Firm Units and the Additional Units pursuant to this Agreement, the Company
Underwriting Agreement and a registration statement on Form S-1 filed by the Company with the
United States Securities and Exchange Commission.
1. Representations and Warranties and Agreements of the Selling Security Holders.
Each Selling Security Holder, severally and not jointly, represents and warrants to and agrees with
the Company and each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Security Holder and contains the valid and binding agreements of such Selling Security
Holder, enforceable against such Selling Security Holder in accordance with the terms hereof,
except as enforceability may be limited by the laws of equity or applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and except as
enforceability may be subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) The execution and delivery by such Selling Security Holder of, and the performance by such
Selling Security Holder of its obligations under this Agreement, does not and will not contravene
any provision of applicable law, or the certificate of incorporation or bylaws of such Selling
Security Holder (if such Selling Security Holder is a corporation), organizational documents (if
such Selling Security Holder is an entity other than a corporation) or any agreement or other
instrument binding upon such Selling Security Holder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such Selling Security Holder, and no
consent, approval, authorization or order of, or qualification with, any governmental body or
agency is required for the performance by such Selling Security Holder of its obligations under
this Agreement, except such as may be required by the securities or Blue Sky laws of the various
states in connection with the Offering.
(c) Such Selling Security Holder has, and on the Closing Date will have, valid title or
entitlement to the Holder Firm Units to be sold by such Selling Security Holder under this
Agreement (the “Holder’s Units”), free and clear of all Liens, and the legal right and power, and
all authorization and approval required by law, to enter into this Agreement and to sell, transfer
and deliver the Holder’s Units to the Underwriters.
(d) Such Selling Security Holder (i) has not heretofore received delivery of certificates
evidencing the Holder’s Units (or their component Unit Shares and Unit Warrants) and (ii) confirms
that the Holder’s Units are issuable to such Selling Security Holder at the time of automatic
conversion into Holder Firm Units of a certain convertible promissory note previously issued by the
Company to the Selling Security Holder (the “Seller Note”). Such Selling Security Holder
understands and agrees that upon and to the extent of conversion of the
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Seller Note into Holder Firm Units at the Closing, the Seller Note will thereupon terminate
and cease to be of further force or effect. Such Selling Security Holder covenants and agrees to
deliver its original Seller Note to the Company on or before the Closing Date, or as soon
thereafter as is practicable. In the event that only a portion of the Seller Note is converted
into Holder Firm Units, the Company shall issue a new note to the Selling Security Holder in the
principal amount of the Seller Note that is not so converted. Such Selling Security Holder hereby
indemnifies and holds the Company harmless from and against any presentment for payment of the
Seller Note by the Selling Security Holder or any other person subsequent to the Closing Date.
(e) Subject to the provisions of this Agreement and delivery to the Selling Security Holder of
the Purchase Price for the Holder’s Units in accordance with Section 3 of this Agreement, in order
to facilitate timely delivery of certificates evidencing the Holder’s Units to the Underwriters at
the Closing, upon conversion of its Seller Note into Holder Firm Units, the Selling Security Holder
hereby waives receipt of certificates evidencing the Holder’s Units (or their component Unit Shares
and Unit Warrants).
(f) For purposes of effectuating the provisions of Section 1(e) and 3(d) hereof, upon
conversion of the Seller Note into Holder’s Units, the Selling Security Holder hereby appoints the
President of the Company, with full power of substitution, as its duly constituted attorney-in-fact
to (i) instruct the Company’s transfer agent to (A) register the Holder’s Units on its books and
records in the name of the Selling Security Holder and (B) transfer the Holder’s Units to the
Underwriter at the Closing of the Offering, against payment therefore, and register such Holder’s
Units in such name(s) as may be designated by the Representative and (ii) do all things that are
reasonably necessary in order to effectuate the provisions of this Section 1(f) and Section 3(d)
hereof. The Selling Security Holder hereby indemnifies and holds the Company, its President and
any such substitute harmless from and against any and all claims, liabilities, damages, costs and
expenses that arise as a result of the Company performing the actions described in this Section
1(f) and 3(d) hereof.
(g) Delivery of the Holder’s Units and payment therefore pursuant to this Agreement will pass
valid title to such Holder’s Units, free and clear of Liens or other adverse claim, to each
Underwriter who purchased such Holder’s Units without notice of an adverse claim.
(h) Such Selling Security Holder is not prompted by any information concerning the Company
which is not set forth in the Prospectus to sell its Holder’s Units pursuant to this Agreement.
(i) Except as otherwise disclosed in writing by such Selling Security Holder to the Company
and the Representative, such Selling Security Holder:
(i) is not a party to an oral or written agreements with the Representative, any Underwriter
or any other member of the National Association of Securities
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Dealers, Inc. (“NASD”) or any associated person of the Representative, any Underwriter or any
such member, concerning the disposition of its Holder’s Units, other than as set forth in this
Agreement;
(ii) is not a broker or dealer or otherwise employed by, or an equity owner of, the
Representative, any Underwriter or an NASD member firm or their respective affiliates;
(iii) is not an “underwriter or related person.” For purposes hereof, an “underwriter or
related person” means the Representative, any Underwriter, counsel to the Underwriters, financial
consultants and advisors to the Representative or any Underwriter, finders, any NASD member
participating in the Offering, and any other persons related to any member participating in the
Offering, any associated person of the member, any members of their immediate family, and any
affiliates of the member;
(iv) has not provided any consulting or other services to NGTV; and
(v) does not have an “immediate family” relationship with the Representative, any Underwriter
or any other NASD member firm. For purposes hereof, “immediate family” relationship means the
parents, mother-in-law, father-in-law, spouse, brother or sister, brother-in-law or sister-in-law,
son-in-law or daughter-in-law, and children of an employee or associated person of an NASD member,
except any person other than the spouse and children who does not live in the same household as,
have a business relationship with, provide material support to, or receive material support from,
the employee or associated person of a member. In addition, the immediate family includes any other
person who either lives in the same household as, provides material support to, or receives
material support from, an employee or associated person of a member.
(j) Such Selling Security Holder does not have any registration or other similar rights to
have any equity or debt securities registered for sale by the Company under the Registration
Statement or included in the Offering, other than as described in the Registration Statement and as
have been waived in writing in connection with the Offering.
(k) In order to document the Underwriters’ compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982, and the Interest and Dividend
Tax Compliance Act of 1983 with respect to the transactions contemplated by this Agreement, such
Selling Security Holder agrees to deliver to you prior to or at the Closing Date, a properly
completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form
or statement specified by Treasury Department regulations in lieu thereof).
(l) Such Selling Security Holder (i) confirms that the information regarding the number of
securities of the Company beneficially owned by such Selling Security Holder and the identity of
any person(s) who exercise investment powers over such securities, as set forth in
the Registration Statement and Prospectus under the section captioned “Selling Security
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Holders,” is true correct (ii) confirms that the information provided by the Selling Security
Holder on the Selling Security Holder signature page to this Agreement is true and correct, and
(iii) acknowledges that the representations and warranties of such Selling Security Holder
contained in this Agreement and the information described in clauses (i) and (ii) of this
paragraph, are deemed furnished to the Company and the Underwriters in writing for inclusion in the
Registration Statement, the Prospectus, and any amendments or supplements thereto.
(m) Such Selling Security Holder has not offered, or caused the Underwriters to offer, the Holder’s
Units to any person or entity with the intention of unlawfully influencing: (i) a customer or
supplier of the Company to alter the customer’s or supplier’s level or type of business with the
Company or (ii) a journalist or publication to write or publish favorable information about the
Company, or its products or services.
(n) Such Selling Security Holder has been advised that (i) the Company Underwriting Agreement
has been filed as an exhibit to the Registration Statement pursuant to the ▇▇▇▇▇ filing system and
may be examined on the SEC’s web site at ▇▇▇.▇▇▇.▇▇▇ and (ii) a copy of the Company Underwriting
Agreement will be furnished by the Company to such Selling Security Holder upon request.
2. Representations and Warranties of the Company. The representations and warranties
of the Company, as set forth in Section 1 of the Company Underwriting Agreement, are hereby
incorporated by reference and are hereby made by the Company to each of the Underwriters and the
Selling Security Holders as if such representations and warranties were fully set forth at length
herein.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions herein set forth, each of the Selling Security
Holders, severally and not jointly, hereby agrees to sell to the Underwriters, and each
Underwriter, upon the basis of the representations, warranties, covenants and agreements herein
contained, but subject to the conditions herein stated, agrees, severally and not jointly, agrees
to purchase from such Selling Security Holder, at the purchase price per Firm Unit hereinafter set
forth (the “Purchase Price”) the number of Holder Firm Units (subject to such adjustments to
eliminate fractional Units as you may deem appropriate) that bears the same proportion to the
number of Holder Firm Units to be sold by such Selling Security Holder as the number of Firm Units
set forth on Schedule B hereto opposite the name of such Underwriter bears to the total number of
Firm Units. The Purchase Price for the Holder Firm Units shall be the initial public offering price
of the Firm Units, as set forth in the final Prospectus, less an underwriting discount not to
exceed 5% of such initial public offering price.
(b) Payment of the purchase price for, and delivery of certificates representing, the Holder
Firm Units shall be made at such time and place as is designated in the
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Company Underwriting
Agreement with respect to the Company Units. The closing of the
payment of the purchase price for, and delivery of certificates representing, the Holder Firm
Units is referred to herein as the “Closing.”
(c) Payment of the purchase price for the Holder Firm Units shall be made in the manner
directed by each Selling Security Holder on the Selling Security Holder Signature Page to this
Agreement, upon delivery of certificates for the Holder Firm Units to the Representative through
the facilities of The Depository Trust Company for the respective accounts of the several
Underwriters. Certificates for the Holder Firm Units shall be registered in such name or names and
shall be in such denominations as the Representative may request at least two (2) business days
before the Closing Date.
(d) Each Selling Security Holder hereby waives its right to receive physical delivery of
certificates evidencing the Holder Firm Units corresponding to its name on Schedule A to this
Agreement, and, as described in Section 1(f) hereof, hereby authorizes the Company’s transfer agent
to (i) register the Holder’s Units in the name of the Selling Security Holder and (ii) sell and
transfer the Holder’s Units to the Underwriters at the Closing, against delivery to the Selling
Security Holder of the net proceeds of sale. Each Selling Security Holder agrees to furnish all
information and deliver all signed documents or instruments that may be reasonably requested by the
Company or the Representative in order to facilitate the issuance of the Holder Firm Units by the
Company and the transfer agent as set forth in this paragraph and Section 1(f).
4. Offering. Upon authorization of the release of the Holder Firm Units by the
Representative, the Underwriters propose to offer the Holder Firm Units, Company Firm Units and, if
the Over-Allotment Option is exercised, the Additional Units, for sale to the public upon the terms
and conditions set forth in the Prospectus.
5. Underwriting Discount.
(a) In consideration of the services to be provided for hereunder, each Selling Security
Holder shall pay to the Underwriters or their respective designees, an underwriting discount not to
exceed five percent (5%) of the gross proceeds from the sale of such Selling Security Holder’s
Holder Firm Units, payable by the Selling Security Holder.
(b) The Representative reserves the right to reduce any item of its compensation or adjust the
terms thereof as specified herein in the event that a determination shall be made by the NASD to
the effect that the Underwriters’ aggregate compensation is in excess of NASD rules or that the
terms thereof require adjustment.
6. Conditions of Underwriters’ Obligations. The obligations of the Underwriters to
purchase and pay for the Holder Firm Units as provided herein shall be subject to: (a) the accuracy
of the representations and warranties of the Selling Security Holders herein contained, as of the
date hereof and as of the Closing Date, (b) the performance by the Company of all of its
obligations under the Company Underwriting Agreement, (c) the satisfaction of all conditions
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precedent to consummation of the transactions contemplated by the Company Underwriting Agreement,
or the waiver thereof by the party entitled to performance and (d) consummation of the transactions
contemplated by the Company Underwriting Agreement.
If any of the conditions specified in this Section shall not have been fulfilled when and as
required by this Agreement, all obligations of the Underwriters hereunder may be cancelled by the
Representative at, or at any time prior to, the consummation of the Closing, and the obligations of
the Underwriters. Notice of such cancellation shall be given to the Company in writing, or by
telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Selling Security Holder from and
against any and all losses, claims, damages and liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement thereto) or any
Preliminary Prospectus, or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Selling Security Holder furnished to the Company in writing by such
Selling Security Holder expressly for use therein.
(b) Each Selling Security Holder agrees to indemnify and hold harmless the Company and each
Underwriter, and their respective affiliates, directors and officers and each person, if any, who
controls each such Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or any Preliminary Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading, but only
insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to the Selling Security Holder furnished to the Company or the
Representative, in writing, by the Selling Security Holder, it being understood and agreed that the
only such information furnished by the
Selling Security Holder consists of (i) the representations and warranties of the Selling
Security
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Holder in this Agreement, (ii) the information provided by the Selling Security Holder on
the Selling Security Holder Signature Page to this Agreement and (iii) the information relating to
the Selling Security Holder contained or referenced under columns “(1), “(3)” and “(4)” of the
table under the heading “Selling Security Holders” in the Prospectus, and the footnotes
corresponding thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each
Selling Security Holder from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or any Preliminary Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
but only insofar as any losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter furnished to the Company
in writing by or on behalf such Underwriter expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or any Preliminary Prospectus, it being
understood and agreed upon that the only such information furnished by any Underwriter consists of
the information in the Prospectus under the caption “Underwriting.”
(d) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of which indemnification
may be sought pursuant to the preceding paragraphs of this Section 7, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have under this Section 7 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have to an Indemnified Person otherwise than under
this Section 7. If any such proceeding shall be brought or asserted against an Indemnified Person
and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that
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there may be legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or
reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representative, any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company and any such separate firm for the Selling Security Holders shall be
designated in writing by holders of a majority of Holder Firm Units. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.
(e) If the indemnification provided for in paragraphs (a), (b) and (c) above is unavailable to
an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Security Holders on the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Company and the Selling Security Holders on the one hand and
the Underwriters on the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Security Holders on the one hand and the
Underwriters on the other shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company and the Selling Security Holders from
the sale of the Securities and the total underwriting discounts and commissions received by the
Underwriters in connection therewith, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate offering price of the Firm Units. The relative
fault
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of the Company and the Selling Security Holders on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company and the Selling Security Holders or by the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) The Company, the Selling Security Holders and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations referred to in
paragraph (e) above. The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (e) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by such Underwriter
with respect to the offering of the Securities exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint. Notwithstanding the provisions of this Section 7, in no event
shall the liability of a Selling Security Holder under this Section 7 exceed the amount by which
the proceeds to such Selling Security Holder, after underwriting discounts and commissions, exceeds
the amount of any damages that the Selling Security Holder has otherwise been required to pay
pursuant to this Section 7.
(g) The remedies provided for in this Section 7 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
8. Survival of Representations and Agreements. All representations and warranties,
covenants and agreements of the Company and the Underwriters contained in this Agreement or in
certificates of officers of the Company or any Subsidiary submitted pursuant hereto, including the
indemnity and contribution agreements contained in Section 7 hereof, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of any Underwriter or
any controlling person thereof or by or on behalf of the Company, any of its officers and directors
or any controlling person thereof, and shall survive delivery of and payment for the Holder Firm
Units to and by the Underwriters. The representations contained in Section 1 hereof and the
covenants and agreements contained in Sections 5, 7, this Section 8 and
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Sections 10, 12, 13 and 14 hereof shall survive any termination of this Agreement, including
termination pursuant to Section 9 hereof.
9. Effective Date of Agreement; Termination. This Agreement shall become effective in
the manner and at such time as the Company Underwriting Agreement becomes effective. The
Representative shall have the right to terminate this Agreement at any time prior to the
consummation of the Closing for any of the reasons and in the manner it is permitted to terminate
the Company Underwriting Agreement.
10. Notices. All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing, and:
(a) if sent to the Representative or any Underwriter, shall be mailed, delivered, or faxed and
confirmed in writing, to Capital Growth Financial, LLC, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President, in each case, with a copy to
Underwriters’ Counsel at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Beilly LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.;
(b) if sent to the Company shall be mailed, delivered, or faxed and confirmed in writing to
the Company and its counsel at the addresses set forth in the Registration Statement; and
(c) if sent to the Selling Security Holders, shall be mailed, delivered, or faxed and
confirmed in writing to the Selling Security Holders at their respective addresses and facsimile
numbers designated on the applicable Selling Security Holder Signature Page to this Agreement.
provided, however, that any notice to an Underwriter pursuant to Section 7 shall be delivered or
sent by mail or facsimile transmission to such Underwriter at its address set forth in its
acceptance facsimile to the Representative, which address will be supplied to any other party
hereto by the Representative upon request. Any such notices and other communications shall take
effect at the time of receipt thereof.
11. Parties. This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Underwriters, the Company and the controlling persons, directors, officers,
employees and agents referred to in Section 7 hereof, and the Selling Security Holders, and their
respective successors and assigns, and no other person shall have or be construed to have any legal
or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and said controlling persons and
their respective successors, officers, directors, heirs and legal representatives, and it is not
for the benefit of any other person. The term “successors and assigns” shall not include a
purchaser, in its capacity as such, of Holder Firm Units from any of the Underwriters.
Capital Growth Financial, LLC
, 2006
Page 12
, 2006
Page 12
12. Governing Law. This Agreement shall be deemed to have been executed and delivered
in Florida and both this Agreement and the transactions contemplated hereby shall be governed as to
validity, interpretation, construction, effect, and in all other respects by the laws of the State
of Florida, without regard to the conflicts of laws principals. Each of the Underwriters and the
Company: (a) agrees that any legal suit, action or proceeding arising out of or relating to this
Agreement and/or the transactions contemplated hereby shall be instituted exclusively in a State or
Federal Court located in Palm Beach County, Florida, (b) waives any objection which it may have or
hereafter to the venue of any such suit, action or proceeding, and (c) irrevocably consents to the
jurisdiction of State and Federal Courts located in Palm Beach County, Florida in any such suit,
action or proceeding. Each of the Underwriters and the Company further agrees to accept and
acknowledge service of any and all process which may be served in any such suit, action or
proceeding in the a State or Federal Court located in Palm Beach County, Florida and agrees that
service of process upon the Company mailed by certified mail to the Company’s address or delivered
by Federal Express via overnight delivery shall be deemed in every respect effective service of
process upon the Company, in any such suit, action or proceeding, and service of process upon the
Underwriters mailed by certified mail to the Underwriters’ address or delivered by Federal Express
via overnight delivery shall be deemed in every respect effective service process upon the
Underwriter, in any such suit, action or proceeding. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE
FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY
WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE
REGISTRATION STATEMENT AND THE PROSPECTUS. No Selling Security Holder not affected by any suit,
action or proceeding arising out of or relating to this Agreement need be made a party to any such
suit, action or proceeding.
13. Entire Agreement. This Agreement, together with the schedule and exhibits
attached hereto and as the same may be amended from time to time in accordance with the terms
hereof, contains the entire agreement among the parties hereto relating to the subject matter
hereof and there are no other or further agreements outstanding not specifically mentioned herein.
14. Severability. If any term or provision of this Agreement or the performance
thereof shall be invalid or unenforceable to any extent, such invalidity or unenforceability shall
not affect or render invalid or unenforceable any other provision of this Agreement and this
Agreement shall be valid and enforced to the fullest extent permitted by law.
15. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same instrument. Each Selling Security Holder shall execute a separate counterpart Selling
Security Holder Signature Page to this Agreement, each of which shall
Capital Growth Financial, LLC
, 2006
Page 13
, 2006
Page 13
become a part of this Agreement. Delivery of a signed counterpart of this Agreement by
facsimile transmission shall constitute valid and sufficient delivery thereof.
16. Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
17. Time is of the Essence. Time shall be of the essence of this Agreement. As used
herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C.
is open for business.
[Signature Pages and Schedules Follow]
[COMPANY AND REPRESENTATIVE SIGNATURE PAGE]
If the foregoing correctly sets forth your understanding, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among
us.
| Very truly yours, NGTV, a California corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted by the Representative, acting for itself and as
Representative of the Underwriters named on Schedule A attached hereto,
as of the date first written above:
CAPITAL GROWTH FINANCIAL, LLC
By:
|
||||
| Name: | ||||
| Title: |
[Selling Security Holder Signature Pages to Follow]
[SELLING SECURITY HOLDER SIGNATURE PAGE — INDIVIDUALS]
If the foregoing correctly sets forth your understanding, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among
us.
Signature of Selling Security Holder: |
||
Signature of Joint Tenant, if any |
||
Print Name of Selling Security Holder: |
||
Address: |
||
Telephone Number: |
||
Fax Number: |
||
Tax Identification Number: |
||
Number of Holder’s Units: |
||
Amount and Type of Other NGTV
Securities Beneficially Owned by
Selling Security Holder |
||
Directions for Payment of Proceeds (initial one):
| [ ] | Deposit to my account at Capital Growth Financial LLC Account No. | |||
| [ ] | Check sent by U.S. Mail to the Address Listed Above. | |||
| [ ] | Wire transfer to the Following Coordinates (Selling Security Holder to pay any wire transfer fees imposed by Receiving Bank): | |||
| ABA Code: | ||||
| SWIFT Code: | ||||
| Bank Name: | ||||
| Bank Address: | ||||
| Amount: | ||||
| F/B/O: | ||||
| Account No.: | ||||
| Other: | ||||
[Selling Security Holder Signature Page — Entities follows]
[SELLING SECURITY HOLDER SIGNATURE PAGE — ENTITIES]
If the foregoing correctly sets forth your understanding, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among
us.
Name of Entity: |
||
Signature of Authority Signatory: |
||
Print Name of Authorized Signatory: |
||
Address: |
||
Telephone Number: |
( ) | |
Fax Number: |
( ) | |
Tax Identification Number: |
||
Number of Holder’s Units: |
||
Amount and Type of Other NGTV
Securities Beneficially Owned by
Selling Security Holder |
||
Directions for Payment of Proceeds (initial one):
| [ ] | Deposit to my account at Capital Growth Financial LLC Account No. | |||
| [ ] | Check sent by U.S. Mail to the Address Listed Above. | |||
| [ ] | Wire transfer to the Following Coordinates (Selling Security Holder to pay any wire transfer fees imposed by Receiving Bank): | |||
| ABA Code: | ||||
| SWIFT Code: | ||||
| Bank Name: | ||||
| Bank Address: | ||||
| Amount: | ||||
| F/B/O: | ||||
| Account No.: | ||||
| Other: | ||||
[End of Signature Pages]
SCHEDULE A
Selling Security Holders
| Name of Selling Security Holder | Number of Holder Firm Units | |||
TOTAL |
[1,830,507] | |||
SCHEDULE B
Underwriters
| Number of | ||||||||||||||||
| Additional Units to | ||||||||||||||||
| be Purchased if | ||||||||||||||||
| Total Number of | Number of Company | Number of Holder | Over-Allotment | |||||||||||||
| Firm Units to be | Firm Units to be | Firm Units to be | Option is Fully | |||||||||||||
| Underwriter | Purchased | Purchased | Purchased | Exercised | ||||||||||||
Capital Growth Financial, LLC |
||||||||||||||||
TOTAL |
[5,997,174] | [4,166,667] | [1,830,507] | [899,576] | ||||||||||||