EXHIBIT 4.4
WARRANT AGREEMENT
Agreement made as of
, 2005 between India Globalization Capital, Inc., a Maryland
corporation, with offices at 4336 Montgomery Avenue, Bethesda,
Maryland, 20814 (“Company”), and Continental Stock
Transfer & Trust Company, a New York corporation, with offices
at 17 Battery Place, New York, New York 10004 (“Warrant
Agent”).
WHEREAS, the Company is
engaged in a public offering (“Public Offering”) of
Units (“Units”) and, in connection therewith, has
determined to issue and deliver up to (i) 40,000,000 Warrants
(“Public Warrants”) to the public investors, and
(ii) 3,000,000 Warrants to Ferris, Baker Watts, Inc.
(“FBW”) or its designees (“Representative’s
Warrants” and, together with the Public Warrants, the
“Warrants”), each of such Public Warrants evidencing
the right of the holder thereof to purchase one share of common
stock, par value $.0001 per share, of the Company’s Common
Stock (“Common Stock”) for $5.00, subject to adjustment
as described herein; and
WHEREAS, the Company has
filed with the Securities and Exchange Commission a Registration
Statement, No.
on Form S-1 (“Registration Statement”) for the
registration, under the Securities Act of 1933, as amended
(“Act”) of, among other securities, the Warrants and
the Common Stock issuable upon exercise of the Warrants; and
WHEREAS, the Company
desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise
of the Warrants; and
WHEREAS, the Company
desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the
Company, the Warrant Agent, and the holders of the Warrants;
and
WHEREAS, all acts and
things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned
by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to
authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1.
APPOINTMENT OF WARRANT
AGENT. The Company hereby appoints the Warrant Agent to act as
agent for the Company for the Warrants, and the Warrant Agent
hereby accepts such appointment and agrees to perform the same in
accordance with the terms and conditions set forth in this
Agreement.
2.
WARRANTS.
2.1
FORM OF WARRANT. Each Warrant shall
be issued in registered form only, shall be in substantially the
form of Exhibit A hereto, the provisions of which are
incorporated herein and shall be signed by, or bear the facsimile
signature of, the Chairman of the Board or President and Treasurer,
Secretary or Assistant Secretary of the Company and shall bear a
facsimile of the Company’s seal. In the event the person
whose facsimile signature has been placed upon any
Warrant shall have ceased
to serve in the capacity in which such person signed the Warrant
before such Warrant is issued, it may be issued with the same
effect as if he or she had not ceased to be such at the date of
issuance.
2.2
EFFECT OF COUNTERSIGNATURE. Unless
and until countersigned by the Warrant Agent pursuant to this
Agreement, a Warrant shall be invalid and of no effect and may not
be exercised by the holder thereof.
2.3
REGISTRATION.
2.3.1 WARRANT
REGISTER. The Warrant Agent shall maintain books (“Warrant
Register”), for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance
of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.3.2
REGISTERED HOLDER. Prior to due presentment for
registration of transfer of any Warrant, the Company and the
Warrant Agent may deem and treat the person in whose name such
Warrant shall be registered upon the Warrant Register
(“registered holder”), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding
any notation of ownership or other writing on the Warrant
Certificate made by anyone other than the Company or the Warrant
Agent), for the purpose of any exercise thereof, and for all other
purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
2.4
DETACHABILITY OF WARRANTS. The
securities comprising the Units will not be separately transferable
until 90 days after the date hereof unless FBW informs the
Company of its decision to allow earlier separate trading, but in
no event will FBW allow separate trading of the securities
comprising the Units until the Company files a Current Report on
Form 8-K which includes an audited balance sheet reflecting the
receipt by the Company of the gross proceeds of the Public Offering
including the proceeds received by the Company from the exercise of
the Underwriter’s over-allotment option, if the
over-allotment option is exercised prior to the filing of the Form
8-K.
2.5
WARRANTS AND REPRESENTATIVE’S
WARRANTS. Except as otherwise provided herein, the
Representative’s Warrants shall have the same terms and be in
the same form as the Public Warrants.
3.
TERMS AND EXERCISE OF
WARRANTS
3.1
WARRANT PRICE. Each Public Warrant
shall, when countersigned by the Warrant Agent, entitle the
registered holder thereof, subject to the provisions of such Public
Warrant and of this Warrant Agreement, to purchase from the Company
the number of shares of Common Stock stated therein, at the price
of $5.00 per whole share (or $6.25 per whole share in respect of
the Representative’s Warrants), subject to the adjustments
provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term “Warrant Price” as used in
this Warrant Agreement refers to the price per share at which
Common Stock may be purchased at the time a
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Warrant is exercised. The
Company in its sole discretion may lower the Warrant Price at any
time prior to the Expiration Date.
3.2
DURATION OF WARRANTS. A Warrant may
be exercised only during the period (“Exercise Period”)
commencing on the later of (i) the consummation by the 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) and (ii)
, 2006, and terminating at 5:00 p.m., New York City time on the
earlier to occur of (i)
, 2010 or (ii) the date fixed for redemption of the Warrants
as provided in Section 6 of this Agreement (“Expiration
Date”). Except with respect to the right to receive the
Redemption Price (as set forth in Section 6 hereunder), each
Warrant not exercised on or before the Expiration Date shall become
void, and all rights thereunder and all rights in respect thereof
under this Agreement shall cease at the close of business on the
Expiration Date. The Company in its sole discretion may extend the
duration of the Warrants by delaying the Expiration Date.
3.3
EXERCISE OF WARRANTS.
3.3.1 PAYMENT.
Subject to the provisions of the Warrant and this Warrant
Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the registered holder thereof by surrendering it,
at the office of the Warrant Agent, or at the office of its
successor as Warrant Agent, in the Borough of Manhattan, City and
State of New York, with the subscription form, as set forth in the
Warrant, duly executed, and by paying in full, in lawful money of
the United States, in cash, good certified check or good bank draft
payable to the order of the Company (or as otherwise agreed to by
the Company), the Warrant Price for each full share of Common Stock
as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the
exchange of the Warrant for the Common Stock, and the issuance of
the Common Stock.
3.3.2 ISSUANCE
OF CERTIFICATES. As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant
Price, the Company shall issue to the registered holder of such
Warrant a certificate or certificates for the number of full shares
of Common Stock to which he , she or it is entitled, registered in
such name or names as may be directed by him, her or it, and if
such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such
Warrant shall not have been exercised. Notwithstanding the
foregoing, the Company shall not be obligated to deliver any
securities pursuant to the exercise of a Warrant unless a
registration statement under the Act with respect to the Common
Stock is effective. Warrants may not be exercised by, or securities
issued to, any registered holder in any state in which such
exercise would be unlawful.
3.3.3 VALID
ISSUANCE. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and non-assessable.
3.3.4 DATE OF
ISSUANCE. Each person in whose name any such certificate for shares
of Common Stock is issued shall for all purposes be deemed to have
become the holder of record of such shares on the date on which the
Warrant was surrendered and payment of the Warrant Price
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was made, irrespective of
the date of delivery of such certificate, except that, if the date
of such surrender and payment is a date when the stock transfer
books of the Company are closed, such person shall be deemed to
have become the holder of such shares at the close of business on
the next succeeding date on which the stock transfer books are
open.
4.
ADJUSTMENTS.
4.1
STOCK DIVIDENDS – SPLIT-UPS. If
after the date hereof, and subject to the provisions of Section 4.6
below, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in shares of Common Stock, or
by a split-up of shares of Common Stock, or other similar event,
then, on the effective date of such stock dividend, split-up or
similar event, the number of shares of Common Stock issuable on
exercise of each Warrant shall be increased in proportion to such
increase in outstanding shares of Common Stock.
4.2
AGGREGATION OF SHARES. If after the
date hereof, and subject to the provisions of Section 4.6, the
number of outstanding shares of Common Stock is decreased by a
consolidation, combination, reverse stock split or reclassification
of shares of Common Stock or other similar event, then, on the
effective date of such consolidation, combination, reverse stock
split, reclassification or similar event, the number of shares of
Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of
Common Stock.
4.3
ADJUSTMENTS IN EXERCISE PRICE.
Whenever the number of shares of Common Stock purchasable upon the
exercise of the Warrants is adjusted, as provided in
Section 4.1 and 4.2 above, the Warrant Price shall be adjusted
(to the nearest cent) by multiplying such Warrant Price immediately
prior to such adjustment by a fraction (x) the numerator of
which shall be the number of shares of Common Stock purchasable
upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of
shares of Common Stock so purchasable immediately thereafter.
4.4
REPLACEMENT OF SECURITIES UPON
REORGANIZATION, ETC. In case of any reclassification or
reorganization of the outstanding shares of Common Stock (other
than a change covered by Section 4.1 or 4.2 hereof or that solely
affects the par value of such shares of Common Stock), or in the
case of any merger or consolidation of the Company with or into
another corporation (other than a consolidation or merger in which
the Company is the continuing corporation and that does not result
in any reclassification or reorganization of the outstanding shares
of Common Stock), or in the case of any sale or conveyance to
another corporation or entity of the assets or other property of
the Company as an entirety or substantially as an entirety in
connection with which the Company is dissolved, the Warrant holders
shall thereafter have the right to purchase and receive, upon the
basis and upon the terms and conditions specified in the Warrants
and in lieu of the shares of Common Stock of the Company
immediately theretofore purchasable and receivable upon the
exercise of the rights represented thereby, the kind and amount of
shares of stock or other securities or property (including cash)
receivable upon such reclassification, reorganization, merger or
consolidation, or upon a dissolution following any such sale or
transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately
prior to such event; and if any reclassification also results in a
change in shares of Common Stock covered by
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Section 4.1 or 4.2,
then such adjustment shall be made pursuant to Sections 4.1,
4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations,
sales or other transfers.
4.5
NOTICES OF CHANGES IN WARRANT. Upon
every adjustment of the Warrant Price or the number of shares
issuable upon exercise of a Warrant, the Company shall give written
notice thereof to the Warrant Agent, which notice shall state the
Warrant Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price
upon the exercise of a Warrant, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation
is based. Upon the occurrence of any event specified in
Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event, the
Company shall give written notice to the Warrant holder, at the
last address set forth for such holder in
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