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 m
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