EXHIBIT 4.5
THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY
ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR
ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE
REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT
SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION
FOR A PERIOD OF ONE YEAR FOLLOWING THE EFFECTIVE DATE (DEFINED
BELOW). THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER
OF (I) THE CONSUMMATION BY INDIA GLOBALIZATION CAPITAL, INC.
("COMPANY") OF A MERGER, CAPITAL STOCK EXCHANGE, ASSET ACQUISITION
OR OTHER SIMILAR BUSINESS COMBINATION ("BUSINESS COMBINATION") (AS
DESCRIBED MORE FULLY IN THE COMPANY’S REGISTRATION STATEMENT
(DEFINED HEREIN)) AND (II) ___, 2006. VOID AFTER 5:00 P.M. EASTERN
TIME, ___, 2010.
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
1,500,000 UNITS
OF
INDIA GLOBALIZATION CAPITAL, INC.
1. PURCHASE OPTION.
THIS CERTIFIES THAT, in consideration of $100.00
duly paid by or on behalf of
("Holder"), as registered owner of this Purchase Option, to India
Globalization Capital, Inc. ("Company"), Holder is entitled, at any
time or from time to time upon the later of (i) the
consummation of a Business Combination AND (ii)
, 2006 ("Commencement Date"), and at or before 5:00 p.m., Eastern
Time,
, 2010 ("Expiration Date"), but not thereafter, to subscribe for,
purchase and receive, in whole or in part, up to One Million Five
Hundred Thousand (1,500,000) units ("Units") of the Company, each
Unit consisting of one share of common stock of the Company, par
value $.0001 per share ("Common Stock"), and two warrants
("Warrant(s)") expiring five years from the effective date
("Effective Date") of the registration statement ("Registration
Statement") pursuant to which Units are offered for sale to the
public ("Offering"). Each Warrant is the same as the warrants
included in the Units being registered for sale to the public by
way of the Registration Statement ("Public Warrants"), except that
the Warrants have an exercise price of $6.25 per share (125% of the
exercise price of the Public Warrants). If the Expiration Date is a
day on which banking institutions are authorized by law to close,
then this Purchase Option may be exercised on the next succeeding
day which is not such a day in accordance with the terms herein.
During the period ending on the Expiration Date, the Company agrees
not to take any action that would terminate the Purchase Option.
This Purchase Option is initially exercisable at $7.50 per Unit so
purchased; provided, however, that upon the occurrence of any of
the events specified in Section 6 hereof, the rights granted
by this Purchase Option, including the exercise price per Unit and
the number of Units (and shares of Common Stock and Warrants) to be
received upon such exercise,
shall be adjusted as therein specified. The term
"Exercise Price" shall mean the initial exercise price or the
adjusted exercise price, depending on the context.
2. EXERCISE.
2.1 EXERCISE FORM. In order to exercise this
Purchase Option, the exercise form attached hereto must be duly
executed and completed and delivered to the Company, together with
this Purchase Option and payment of the Exercise Price for the
Units being purchased payable in cash or by certified check or
official bank check. If the subscription rights represented hereby
shall not be exercised at or before 5:00 p.m., Eastern time, on the
Expiration Date this Purchase Option shall become and be void
without further force or effect, and all rights represented hereby
shall cease and expire.
2.2 LEGEND. Each certificate for the securities
purchased under this Purchase Option shall bear a legend as follows
unless such securities have been registered under the Securities
Act of 1933, as amended ("Act"):
"The securities represented by this certificate
have not been registered under the Securities Act of 1933, as
amended ("Act") or applicable state law. The securities may not be
offered for sale, sold or otherwise transferred except pursuant to
an effective registration statement under the Act, or pursuant to
an exemption from registration under the Act and applicable state
law."
2.3 CASHLESS EXERCISE.
2.3.1 DETERMINATION OF AMOUNT. In lieu of the
payment of the Exercise Price multiplied by the number of Units for
which this Purchase Option is exercisable (and in lieu of being
entitled to receive Common Stock and Warrants) in the manner
required by Section 2.1, the Holder shall have the right (but
not the obligation) to convert any exercisable but unexercised
portion of this Purchase Option into Units ("Conversion Right") as
follows: upon exercise of the Conversion Right, the Company shall
deliver to the Holder (without payment by the Holder of any of the
Exercise Price in cash) that number of shares of Common Stock and
Warrants comprising that number of Units equal to the quotient
obtained by dividing (x) the "Value" (as defined below) of the
portion of the Purchase Option being converted by (y) the
Current Market Value (as defined below). The "Value" of the portion
of the Purchase Option being converted shall equal the remainder
derived from subtracting (a) (i) the Exercise Price multiplied
by (ii) the number of Units underlying the portion of this
Purchase Option being converted from (b) the Current Market
Value of a Unit multiplied by the number of Units underlying the
portion of the Purchase Option being converted. As used herein, the
term "Current Market Value" per Unit at any date means the
remainder derived from subtracting (x) the exercise price of
the Warrants multiplied by the number of shares of Common Stock
issuable upon exercise of the Warrants underlying one Unit from
(y)(i) the Current Market Price of the Common Stock multiplied by
(ii) the number of shares of Common Stock underlying one Unit,
which shall include the shares of Common Stock underlying the
Warrants included in such Unit. The "Current Market Price" of a
share of Common Stock shall mean (i) if the Common Stock is
listed on a national securities exchange or quoted on the Nasdaq
National Market, Nasdaq SmallCap Market or NASD OTC Bulletin Board
(or successor such as the Bulletin Board Exchange), the last sale
price of the Common Stock in the principal trading market for the
Common Stock as reported by the
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exchange, Nasdaq or the NASD, as the case may be;
(ii) if the Common Stock is not listed on a national
securities exchange or quoted on the Nasdaq National Market, Nasdaq
SmallCap Market or the NASD OTC Bulletin Board (or successor such
as the Bulletin Board Exchange), but is traded in the residual
over-the-counter market, the closing bid price for the Common Stock
on the last trading day preceding the date in question for which
such quotations are reported by the Pink Sheets, LLC or similar
publisher of such quotations; and (iii) if the fair market
value of the Common Stock cannot be determined pursuant to clause
(i) or (ii) above, such price as the Board of Directors
of the Company shall determine, in good faith.
2.3.2 MECHANICS OF CASHLESS EXERCISE. The Cashless
Exercise Right may be exercised by the Holder on any business day
on or after the Commencement Date and not later than the Expiration
Date by delivering the Purchase Option with the duly executed
exercise form attached hereto with the cashless exercise section
completed to the Company, exercising the Cashless Exercise Right
and specifying the total number of Units the Holder will purchase
pursuant to such Cashless Exercise Right.
3. TRANSFER.
3.1 GENERAL RESTRICTIONS. The registered Holder of
this Purchase Option, by its acceptance hereof, agrees that it will
not sell, transfer, assign, pledge or hypothecate this Purchase
Option for a period of one year following the Effective Date to
anyone other than (i) FBW or an underwriter or a selected
dealer in connection with the Offering, or (ii) a bona fide
officer or partner of FBW such underwriter or selected dealer. On
and after the second anniversary of the Effective Date, transfers
to others may be made subject to compliance with or exemptions from
applicable securities laws. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment
form attached hereto duly executed and completed, together with the
Purchase Option and payment of all transfer taxes, if any, payable
in connection therewith. The Company shall within five business
days transfer this Purchase Option on the books of the Company and
shall execute and deliver a new Purchase Option or Purchase Options
of like tenor to the appropriate assignee(s) expressly evidencing
the right to purchase the aggregate number of Units purchasable
hereunder or such portion of such number as shall be contemplated
by any such assignment.
3.2 RESTRICTIONS IMPOSED BY THE ACT. The securities
evidenced by this Purchase Option shall not be transferred unless
and until (i) the Company has received the opinion of counsel
for the Holder that the securities may be transferred pursuant to
an exemption from registration under the Act and applicable state
securities laws, the availability of which is established to the
reasonable satisfaction of the Company, or (ii) a registration
statement or a post-effective amendment to the Registration
Statement relating to such securities has been filed by the Company
and declared effective by the Securities and Exchange Commission
and compliance with applicable state securities law has been
established.
4. NEW PURCHASE OPTIONS TO BE ISSUED.
4.1 PARTIAL EXERCISE OR TRANSFER. Subject to the
restrictions in Section 3 hereof, this Purchase Option may be
exercised or assigned in whole or in part. In the event of the
exercise or assignment hereof in part only, upon surrender of this
Purchase Option for
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cancellation, together with the duly executed
exercise or assignment form and funds sufficient to pay any
Exercise Price and/or transfer tax, the Company shall cause to be
delivered to the Holder without charge a new Purchase Option in
like form to this Purchase Option in the name of the Holder
evidencing the right of the Holder to purchase the number of Units
purchasable hereunder as to which this Purchase Option has not been
exercised or assigned.
4.2 LOST CERTIFICATE. Upon receipt by the Company
of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Purchase Option and of reasonably satisfactory
indemnification or the posting of a bond, the Company shall execute
and deliver a new Purchase Option of like tenor and date. Any such
new Purchase Option executed and delivered as a result of such
loss, theft, mutilation or destruction shall constitute a
substitute contractual obligation on the part of the Company.
5. REGISTRATION RIGHTS.
5.1 DEMAND REGISTRATION.
5.1.1 GRANT OF RIGHT. The Company, upon written
demand ("Initial Demand Notice") of the Holder(s) of at least 51%
of the Purchase Options and/or the underlying Units and/or the
underlying securities ("Majority Holders"), agrees to register on
one occasion, all or any portion of the Purchase Options requested
by the Majority Holders in the Initial Demand Notice and all of the
securities underlying such Purchase Options, including the Units,
Common Stock, the Warrants and the Common Stock underlying the
Warrants (collectively, the "Registrable Securities"). On such
occasion, the Company will file a registration statement or a
post-effective amendment to the Registration Statement covering the
Registrable Securities within sixty days after receipt of the
Initial Demand Notice and use its best efforts to have such
registration statement or post-effective amendment declared
effective as soon as possible thereafter. The demand for
registration may be made at any time during a period of five years
beginning on the Effective Date. The Company covenants and agrees
to give written notice of its receipt of any Initial Demand Notice
by any Holder(s) to all other registered Holders of the Purchase
Options and/or the Registrable Securities within ten days from the
date of the receipt of any such Initial Demand Notice.
5.1.2 TERMS. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities,
including the expenses of any legal counsel selected by the Holders
to represent them in connection with the sale of the Registrable
Securities, but the Holders shall pay any and all underwriting
commissions. The Company agrees to use its reasonable best efforts
to qualify or register the Registrable Securities in such States as
are reasonably requested by the Majority Holder(s); provided,
however, that in no event shall the Company be required to register
the Registrable Securities in a State in which such registration
would cause (i) the Company to be obligated to qualify to do
business in such State, or would subject the Company to taxation as
a foreign corporation doing business in such jurisdiction or
(ii) the principal stockholders of the Company to be obligated
to escrow their shares of capital stock of the Company. The Company
shall cause any registration statement or post-effective amendment
filed pursuant to the demand rights granted under
Section 5.1.1 to remain effective for a period of nine
consecutive months from the effective date of such registration
statement or post-effective amendment.
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5.2 "PIGGY-BACK" REGISTRATION.
5.2.1 GRANT OF RIGHT. In addition to the demand
right of registration, the Holders of the Purchase Options shall
have the right for a period of seven years commencing on the
Effective Date, to include the Registrable Securities as part of
any other registration of securities filed by the Company (other
than in connection with a transaction contemplated by Rule 145(a)
promulgated under the Act or pursuant to Form S-8); provided,
however, that if, in the written opinion of the Company’s
managing underwriter or underwriters, if any, for such offering,
the inclusion of the Registrable Securities, when added to the
securities being registered by the Company or the selling
stockholder(s), will exceed the maximum amount of the
Company’s securities which can be marketed (i) at a
price reasonably related to their then current market value, and
(ii) without materially and adversely affecting the entire
offering, then the Company will still be required to include the
Registrable Securities, but may require the Holders to agree, in
writing, to delay the sale of all or any portion of the Registrable
Securities for a period of 90 days from the effective date of
the offering, provided, further, that if the sale of any
Registrable Securities is so delayed, then the number of securities
to be sold by all stockholders in such public offering during such
90 day period shall be apportioned pro rata among all such
selling stockholders, including all holders of the Registrable
Securities, according to the total amount of securities of the
Company owned by said selling stockholders, including all holders
of the Registrable Securities.
5.2.2 TERMS. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities,
including the expenses of any legal counsel selected by the Holders
to represent them in connection with the sale of the Registrable
Securities but the Holders shall pay any and all underwriting
commissions related to the Registrable Securities. In the event of
such a proposed registration, the Company shall furnish the then
Holders of outstanding Registrable Securities with not less than
fifteen days written notice prior to the proposed date of filing of
such registration statement. Such notice to the Holders shall
continue to be given for each applicable registration statement
filed (during the period in which the Purchase Option is
exercisable) by the Company until such time as all of the
Registrable Securities have been registered and sold. The holders
of the Registrable Securities shall exercise the "piggy-back"
rights provided for herein by giving written notice, within ten
days of the receipt of the Company’s notice of its intention
to file a registration statement. The Company shall cause any
registration statement filed pursuant to the above "piggyback"
rights to remain effective for at least nine months from the date
that the Holders of the Registrable Securities are first given the
opportunity to sell all of such securities.
5.3 DAMAGES. Should the registration or the
effectiveness thereof required by Sections 5.1 and 5.2 hereof be
delayed by the Company or the Company otherwise fails to comply
with such provisions, the Company shall, in addition to any other
equitable or other relief available to the Holder(s), be liable for
any and all incidental, special and consequential damages sustained
by the Holder(s), including, but not limited to, the loss of any
profits that might have been received by the holder upon the sale
of shares of Common Stock or Warrants (and shares of Common Stock
underlying the Warrants) underlying this Purchase Option.
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5.4 GENERAL TERMS.
5.4.1 INDEMNIFICATION. The Company shall indemnify
the Holder(s) of the Registrable Securities to be sold pursuant to
any registration statement hereunder 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 reasonable attorneys’ fees and
other expenses reasonably incurred in investigating, preparing or
defending against litigation, commenced or threatened, or any claim
whatsoever whether arising out of any action between the
underwriter and the Company or between the underwriter and any
third party or otherwise) 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 an
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