Maryland | 6770 | 20-2760393 | ||
(State or other jurisdiction of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Michael E. Blount, Esq.
Stanley S. Jutkowitz, Esq. Seyfarth Shaw LLP 55 East Monroe Street, Suite 4200 Chicago, Illinois 60603-5803 Telephone: (312) 346-8000 Facsimile: (312) 269-8869 |
Arthur S. Marcus, Esq.
Peter J. Gennuso, Esq. Kristin J. Angelino, Esq. Gersten Savage LLP 600 Lexington Avenue New York, New York 10022 Telephone: (212) 752-9700 Facsimile: (212) 980-5192 |
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
| one share of our common stock; and | |
| two warrants. |
Underwriting | ||||||||||||
Public Offering | Discount and | Proceeds, Before | ||||||||||
Price | Commission(1) | Expenses, to Us | ||||||||||
Per unit
|
$ | 6.00 | $ | .48 | $ | 5.52 | ||||||
Total
|
$ | 58,980,000 | $ | 4,718,400 | $ | 54,261,600 |
(1) | Includes a non-accountable expense allowance in the amount of 3% of the gross proceeds, or $.18 per unit ($1,769,400 in total), payable to Ferris, Baker Watts, Inc., the representative of the underwriters. Ferris, Baker Watts, Inc. has agreed to deposit 3% of the gross proceeds attributable to the non-accountable expense allowance ($.18 per Unit) into the trust account until the earlier of the completion of a business combination or the liquidation of the trust account. They have further agreed to forfeit any rights to or claims against such proceeds unless we successfully complete a business combination. |
Ferris, Baker
Watts
Incorporated |
Ladenburg Thalmann & Co. Inc. |
First Albany Capital | Merriman Curhan Ford & Co. |
1
2
notes and schedules thereto. Unless otherwise stated in this
prospectus, references to we, us or
our refer to India Globalization
Capital, Inc. sometimes referred to herein as IGC, Inc. You
should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to
provide you with different information. We are not making an
offer of these securities in any jurisdiction where that offer
is not permitted. Unless we tell you otherwise, the information
in this prospectus assumes that the underwriters have not
exercised their over-allotment option.
prospectus have been rounded.
whereby foreign investors can own and control Indian companies
and where profits can be reinvested in India or repatriated to
the U.S.
Table of Contents
Table of Contents
3
4
5
6
7
8
9
9,830,000 units, at $6.00 per unit, each unit consisting of:
one share of common stock; and
two warrants.
The units will begin trading on or promptly after the date of
this prospectus. Each of the common stock and warrants will
trade separately on the 90th day after the date of this
prospectus unless Ferris, Baker Watts, Inc. determines that an
earlier date is acceptable, based upon its assessment of the
relative strengths of the securities market and small
capitalization companies in general, and the trading pattern of,
and demand for, our securities in particular. In no event will
Ferris, Baker Watts, Inc. allow separate trading of the common
stock and warrants until we file an audited balance sheet
reflecting our receipt of the gross proceeds of this offering.
We will file a Current Report on Form 8-K, including an
audited balance sheet, upon the consummation of this offering,
which is anticipated to take place three business days from the
date the units commence trading. The audited balance sheet will
include proceeds we receive from the exercise of the
over-allotment option if the over-allotment option is exercised
prior to the filing of the Current Report on Form 8-K. If
the over-allotment option is exercised after our initial filing
of a Form 8-K, we will file an amendment to the
Form 8-K to provide updated financial information to
reflect the exercise of the over-allotment option. We will also
include in this Form 8-K, or amendment thereto, or in a
subsequent Form 8-K information indicating if Ferris, Baker
Watts, Inc. has allowed separate trading of the common stock and
warrants prior to the 90th day after the date of this
prospectus.
2,500,000 shares
12,500,000 shares
Table of Contents
0 warrants
20,000,000 warrants
Each warrant is exercisable for one share of common stock.
$5.00
The warrants will become exercisable on the later of:
the completion of a business combination on terms as
described in this prospectus; or
, 2007
[one
year from the date of this prospectus].
The warrants will expire at 5:00 p.m., Washington,
DC time,
on ,
2011
[five years from the date of this prospectus]
, or
earlier upon redemption.
None of the warrants may be exercised until after the
consummation of a business combination and, thus, after the
proceeds of the trust account have been disbursed. Upon exercise
of the warrants and disbursement of the trust, the warrant
exercise price will be paid directly to us.
We may redeem the outstanding warrants (including warrants held
by Ferris, Baker Watts, Inc. as a result of the exercise of the
purchase option):
in whole and not in part;
at a price of $.01 per warrant at any time after the
warrants become exercisable;
upon a minimum of 30 days prior written
notice of redemption; and
if, and only if, the last sales price of our common
stock equals or exceeds $8.50 per share for any 20 trading days
within a 30 trading day period ending three business days before
we send the notice of redemption.
Table of Contents
We have established our redemption criteria to provide warrant
holders with a premium to the initial warrant exercise price as
well as a reasonable cushion against a negative market reaction,
if any, to our redemption call. If the foregoing conditions are
satisfied, we will call the warrants and each warrant holder
will be entitled to exercise his or her warrants prior to the
date scheduled for redemption. There can be no assurance,
however, that the price of the common stock will exceed $8.50 or
the warrant exercise price after the redemption call is made.
IGC.U
IGC
IGC.WS
$57,210,600 of the proceeds of this offering and the private
placement (approximately $5.82 per unit) will be placed in a
trust account at United Bank maintained by Continental Stock
Transfer & Trust Company acting as trustee, pursuant to an
agreement to be signed on the date of this prospectus. These
proceeds consist of $55,441,200 from the net proceeds payable to
us and $1,769,400 of the proceeds attributable to the
underwriters non-accountable expense allowance. These
proceeds will not be released until the earlier of (i) the
completion of a business combination on the terms as described
in this prospectus or (ii) our liquidation. Therefore,
unless and until a business combination is consummated, these
proceeds held in the trust account will not be available for our
use for any expenses related to this offering or expenses which
we may incur related to the investigation and selection of a
target business and the negotiation of an agreement to effect
the business combination. These expenses will be paid prior to a
business combination only from the interest earned by the
principal in the trust accounts up to an aggregate of
$1,855,000. The $1,769,400 of the proceeds attributable to the
underwriters non-accountable expense allowance which are
being held in the trust account will be released to Ferris,
Baker Watts, Inc. upon completion of a business transaction on
the terms described in this prospectus or to our public
stockholders upon our liquidation and will in no event be
available for use by us.
Table of Contents
We may use a portion of the funds not held in the trust account
to make a deposit or fund a no-shop, standstill
provision with respect to a prospective business combination. In
the event that we are required to forfeit such funds (whether as
a result of a breach of the agreement relating to such payment
or otherwise), we may not have sufficient working capital
available to pay expenses related to locating a suitable
business combination without securing additional financing. In
such event, if we are unable to secure additional financing, we
may not consummate a business combination in the proscribed time
period and we will be forced to liquidate and dissolve.
Prior to the consummation of a business combination, there will
be no fees, reimbursements or cash payments made to our existing
stockholders and/or officers and directors other than:
Repayment of loans in the aggregate principal amount
of $870,000 with interest at the rate of 4% per annum made by
our chief executive officer and our chairman to us to cover
offering expenses and working capital;
Payment of up to $4,000 per month to affiliates of
our existing stockholders for office space and administrative
expenses;
Reimbursement for any expenses incident to the
offering and finding a suitable business combination; and
Fees payable to our officers, directors and advisers
in kind for services to be rendered.
Other than the agreement with IGN, LLC, with respect to rent for
office space and administrative expenses, there are no current
agreements or understandings with any of our existing
stockholders or any of their respective affiliates with respect
to the payment of compensation of any kind subsequent to a
business combination. However, there can be no assurance that
such agreements may not be negotiated in connection with, or
subsequent to, a business combination.
Table of Contents
combination:
We will seek stockholder approval before we effect our initial
business combination, even if the nature of the acquisition
would not ordinarily require stockholder approval under
applicable state law. In connection with the vote required for
our initial business combination, all of our existing
stockholders, including all of our officers, directors and
special advisors, have agreed to vote the shares of common stock
owned by them (whether purchased prior to, during or after the
consummation of the offering or the private placement) in
accordance with the majority of the shares of common stock voted
by the public stockholders other than our existing stockholders.
Accordingly, they will not be entitled to exercise the
conversion rights described below for public stockholders who
vote against a business combination. We will proceed with a
business combination only if: (i) a majority of the shares
of common stock voted by the public stockholders are voted in
favor of the business combination and (ii) public
stockholders owning less than an aggregate of 20% of the shares
sold in this offering and purchased in the private placement
subsequently exercise their conversion rights described below.
Public stockholders voting against a business combination will
be entitled to convert their stock into a pro rata share of the
trust account (approximately $5.82 per share), plus any interest
earned on their portion of the trust account, net, of working
capital (up to a maximum of $1,855,000) and taxes, if the
business combination is approved and consummated.
In order to exercise this right, the public stockholders must
make an affirmative election. Voting against a business
combination does not automatically trigger the conversion right.
Public stockholders who convert their shares of stock into their
share of the trust account will continue to have the right to
exercise any warrants they may hold.
Table of Contents
We will dissolve and promptly distribute only to our public
stockholders the amount in our trust account inclusive of the
$1,769,400 attributable to the underwriters
non-accountable expense allowance, plus any remaining net
assets, if we do not effect a business combination within
18 months after consummation of this offering (or within
24 months after the consummation of this offering if a
letter of intent, agreement in principle or definitive agreement
has been executed within 18 months after consummation of
this offering and the business combination relating thereto has
not yet been consummated within such 18-month period). The
existing stockholders have agreed to waive their respective
rights to participate in any liquidation distribution occurring
upon our failure to consummate a business combination, but only
with respect to those shares of common stock acquired by them
prior to this offering and with respect to the shares included
in the 170,000 units our officers and directors or their
nominees are purchasing in the private placement; they will
participate in any liquidation distribution with respect to any
shares of common stock acquired in connection with or following
this offering.
On the date of this prospectus, all of our existing stockholders
(which includes all of our officers, directors and special
advisors) will place the shares of common stock they own prior
to this offering and the private placement into an escrow
account maintained by Continental Stock Transfer & Trust
Company, acting as escrow agent. Subject to certain limited
exceptions, such as transfers to family members and trusts for
estate planning purposes and upon death, while in each case
remaining in the escrow account, these shares will not be
released from escrow until six months after the consummation of
a business combination. The shares will only be released prior
to that date if we are forced to liquidate, in which case the
shares would be destroyed, or if we were to consummate a
transaction after the consummation of a business combination
which results in all of the stockholders of the combined entity
having the right to exchange their shares of common stock for
cash, securities or other property.
Table of Contents
December 31, 2005
Actual
As Adjusted(1)
$
(762,218
)
$
54,460,681
762,463
55,435,681
767,982
975,000
(approximately $5.82 per
share)
2
11,634,180
$
(5,519
)
42,826,501
(1)
Excludes the $100 purchase price of the purchase option payable
by Ferris, Baker Watts, Inc.
(2)
Includes .18¢ per share escrowed from the
underwriters fees.
Table of Contents
We are a development stage company with no operating history and, accordingly, you will have no basis upon which to evaluate our ability to achieve our business objective. |
We may not be able to consummate a business combination within the required time frame, in which case, we would be forced to liquidate. |
If we are forced to liquidate before a business combination, our public stockholders will receive less than $6.00 per share upon distribution of the trust account and our warrants will expire worthless. |
You will not be entitled to protections normally afforded to investors of blank check companies under federal securities laws. |
10
If third parties bring claims against us, the proceeds held in trust could be reduced and the per-share liquidation or conversion price received by stockholders may be less than approximately $5.82 per share. |
Because we have not currently selected any prospective target businesses with which to complete a business combination, investors in this offering are unable to currently ascertain the merits or risks of any particular target business operations. |
11
We may issue shares of our capital stock, including through convertible debt securities, to complete a business combination, which would reduce the equity interest of our stockholders and likely cause a change in control of our ownership. |
| may significantly reduce the equity interest of investors in this offering; | |
| will likely cause a change in control if a substantial number of our shares of common stock or voting preferred are issued, which may affect, among other things, our ability to use our net operating loss carry forwards, if any, and most likely also result in the resignation or removal of our present officers and directors; | |
| may adversely affect the voting power or other rights of holders of our common stock if we issue preferred stock with dividend, liquidation, compensation or other rights superior to the common stock; and | |
| may adversely affect prevailing market prices for our common stock, warrants or units. |
We may issue notes or other debt securities, or otherwise incur substantial debt, to complete a business combination, which may adversely affect our leverage and financial condition. |
| may lead to default and foreclosure on our assets if our operating revenues after a business combination are insufficient to pay our debt obligations; | |
| may cause an acceleration of our obligations to repay the debt even if we make all principal and interest payments when due if we breach the covenants contained in the terms of the debt documents; | |
| may create an obligation to immediately repay all principal and accrued interest, if any, upon demand to the extent any debt securities are payable on demand; and | |
| may hinder our ability to obtain additional financing, if necessary, to the extent any debt securities contain covenants restricting our ability to obtain additional financing while such security is outstanding, or to the extent our existing leverage discourages other potential investors. |
Our current officers and directors may resign upon consummation of a business combination. |
12
Our ability to successfully effect a business combination and to be successful afterwards will be completely dependent upon the efforts of our key personnel, some of whom may join us following a business combination and whom we would have only a limited ability to evaluate. |
Our officers, directors and special advisors may allocate their time to other businesses, thereby causing conflicts of interests in their determination as to how much time to devote to our affairs. This may have a negative impact on our ability to consummate a business combination. |
13
Our officers, directors and special advisors are and may in the future become affiliated with entities engaged in business activities similar to those intended to be conducted by us and, accordingly, may have conflicts of interest in determining to which entity a particular business opportunity should be presented. |
Because all of our officers, directors and our special advisors own shares of our securities that will not participate in liquidation distributions, they may have a conflict of interest in determining whether a particular target business is appropriate for a business combination. |
If our common stock becomes subject to the SECs penny stock rules, broker-dealers may experience difficulty in completing customer transactions and trading activity in our securities may be adversely affected. |
| make a special written suitability determination for the purchaser; | |
| receive the purchasers written agreement to a transaction prior to sale; | |
| provide the purchaser with risk disclosure documents that identify certain risks associated with investing in penny stocks and that describe the market for these penny stocks as well as a purchasers legal remedies; and | |
| obtain a signed and dated acknowledgment from the purchaser demonstrating that the purchaser has actually received the required risk disclosure document before a transaction in a penny stock can be completed. |
14
It is probable that we will only be able to complete one business combination, which may cause us to be solely dependent on a single business and a limited number of products or services. |
| result in our dependency upon the performance of a single or small number of operating businesses; | |
| result in our dependency upon the development or market acceptance of a single or limited number of products, processes or services; and | |
| subject us to numerous economic, competitive and regulatory developments, any or all of which may have a substantial adverse impact upon the particular industry in which we may operate subsequent to a business combination. |
We will not generally be required to obtain a determination of the fair market value of a target business from an independent, unaffiliated third party. |
We have substantial discretion as to how to spend the proceeds in this offering which are outside of the trust. |
15
Because of our limited resources and the significant competition for business combination opportunities, we may not be able to consummate an attractive business combination. |
| our obligation to seek stockholder approval of a business combination may delay the consummation of a transaction; | |
| our obligation to convert into cash the shares of common stock in certain instances may reduce the resources available for a business combination; and | |
| our outstanding warrants and the purchase option granted to Ferris, Baker Watts, Inc., and the future dilution they potentially represent, may not be viewed favorably by certain target businesses. |
Because there are numerous companies with a business plan similar to ours seeking to effectuate a business combination, it may be more difficult for us to do so. |
16
We may be unable to obtain additional financing, if required, to complete a business combination or to fund the operations and growth of the target business, which could compel us to restructure or abandon a particular business combination. |
Our existing stockholders, including our officers, directors and special advisors, control a substantial interest in us and thus may influence certain actions requiring stockholder vote. |
Our existing stockholders paid an aggregate of $25,000, or an average of approximately $.01 per share for their shares and, accordingly, you will experience immediate and substantial dilution from the purchase of our common stock. |
17
Our outstanding warrants may have an adverse effect on the market price of common stock and make it more difficult to effect a business combination. |
If our existing stockholders exercise their registration rights, it may have an adverse effect on the market price of our common stock and the existence of these rights may make it more difficult to effect a business combination. |
The American Stock Exchange may delist our securities from quotation on its exchange which could limit investors ability to make transactions in our securities and subject us to additional trading restrictions. |
18
| a limited availability of market quotations for our securities; | |
| a determination that our common stock is a penny stock which will require brokers trading in our common stock to adhere to more stringent rules and possibly resulting in a reduced level of trading activity in the secondary trading market for our common stock; | |
| a limited amount of news and analyst coverage for our company; and | |
| a decreased ability to issue additional securities or obtain additional financing in the future. |
There is currently no market for our securities and a market for our securities may not develop, which could adversely affect the liquidity and price of our securities. |
If we are deemed to be an investment company, we may be required to institute burdensome compliance requirements and our activities may be restricted, which may make it difficult for us to complete a business combination. |
| restrictions on the nature of our investments; and | |
| restrictions on the issuance of securities, each of which may make it difficult for us to complete a business combination. |
| registration as an investment company; | |
| adoption of a specific form of corporate structure; and | |
| reporting, record keeping, voting, proxy and disclosure requirements and other rules and regulations. |
Because we may be deemed to have no independent directors, actions taken and expenses incurred by our officers and directors on our behalf will generally not be subject to independent review. |
19
Political, economic, social and other factors in India may adversely affect our ability to achieve our business objective which is to acquire one or more operating businesses with primary operations in India. |
India has different corporate disclosure, governance and regulatory requirements than those in the United States which may make it more difficult or complex to consummate a business combination. |
20
Foreign currency fluctuations could adversely affect our ability to achieve our business objective. |
Exchange controls that exist in India may limit our ability to utilize our cash flow effectively following a business combination. |
Returns on investment in Indian companies may be decreased by withholding and other taxes. |
21
Certain sectors of the Indian economy are subject to government regulations that limit foreign ownership, which may adversely affect our ability to achieve our business objective which is to acquire one or more operating businesses with primary operations in India. |
| Levying fines; | |
| Revoking our business and other licenses; and | |
| Requiring that we restructure our ownership or operations. |
The requirement that Indian companies provide accounting statements that are in compliance with U.S. Generally Accepted Accounting Principles (GAAP) may limit the potential number of acquisition targets. |
If political relations between the U.S. and India weaken, it could make a target business operations less attractive. |
Because the Indian judiciary will determine the scope and enforcement under Indian law of almost all of our target business material agreements, we may be unable to enforce our rights inside and outside of India. |
22
23
Without Over- | With Over- | |||||||||
Allotment Option | Allotment Option | |||||||||
Gross proceeds
(1)
|
||||||||||
Offering
|
$ | 58,980,000 | $ | 67,827,000 | ||||||
Private placement
|
1,020,000 | 1,020,000 | ||||||||
Total
|
60,000,000 | 68,847,000 | ||||||||
Offering expenses
(2)
|
||||||||||
Underwriting discount (5% of offering)(3)
|
2,949,000 | 3,391,350 | ||||||||
Underwriting non-accountable expense allowance (3% of offering
without the over-allotment option)(3)
|
1,769,400 | 1,769,400 | ||||||||
Legal fees and expenses (including blue sky services and
expenses)
|
515,000 | 515,000 | ||||||||
Miscellaneous expenses
|
60,432 | 60,432 | ||||||||
Printing and engraving expenses
|
120,000 | 120,000 | ||||||||
Accounting fees and expenses
|
35,000 | 35,000 | ||||||||
SEC registration fee
|
45,668 | 45,668 | ||||||||
NASD registration fee
|
39,300 | 39,300 | ||||||||
Net proceeds
|
54,466,200 | 62,870,850 | ||||||||
Contributions to escrow from founders loans and deferred
payments(7)
|
975,000 | 975,000 | ||||||||
Held in trust
|
$ | 55,441,200 | $ | 63,845,850 | ||||||
Working capital funded from interest earned on
amount held in trust
(7)
|
||||||||||
Legal, accounting and other expenses attendant to the due
diligence investigations, structuring and negotiation of a
business combination(4)
|
300,000 | 300,000 | ||||||||
Due diligence of prospective target businesses(4)
|
185,000 | 185,000 | ||||||||
Legal and accounting fees relating to SEC reporting obligations
|
115,000 | 115,000 | ||||||||
Administrative fees relating to office space ($4,000 per month
for 24 months)
|
96,000 | 96,000 | ||||||||
Working capital to cover travel, miscellaneous expenses,
(including potential deposits, down payments or funding of a
no-shop provision with respect to a prospective
business combination) D&O insurance and reserves
|
184,000 | 184,000 | ||||||||
Repayment of loans from founders and deferred payments(7)
|
975,000 | 975,000 | ||||||||
Total
(6)(7)
|
$ | 1,855,000 | $ | 1,855,000 | ||||||
(1) | Excludes the payment of $100 from Ferris, Baker Watts, Inc. for its purchase option, proceeds from the sale of units under the purchase option and proceeds from the exercise of any warrants. |
(2) | A portion of the offering expenses have been paid from the funds we received from Mr. Mukunda as described below. These funds will be repaid out of the proceeds of this offering not being placed in trust upon consummation of this offering. |
(3) | Ferris, Baker Watts, Inc. has agreed to deposit the non-accountable expense allowance ($0.18 per Unit) into the trust account until the earlier of the completion of a business combination or the liquidation of the trust account. They have further agreed to forfeit any rights to or claims against such proceeds unless we successfully complete a business combination. |
(4) | The $300,000 is expected to be paid to legal, accounting and other outside professionals to conduct due diligence once a potential target for a business combination is identified and to assist in negotiating and structuring the ultimate business transaction. The $185,000 represents costs expected to be incurred by the Company and its officers, directors and employees in identifying and reviewing potential targets for business combinations. |
(6) | Excludes a financial advisory fee payable to Ferris, Baker Watts, Inc. equal to two percent (2%) of the consideration of any business combination by us up to a maximum fee of $1,500,000, a portion of which shall be allocated to SG Americas Securities, LLC. |
(7) | The working capital of up to $1,855,000 will be funded from the interest earned from monies in escrow. In order to finance the working capital, at closing the founders will loan the company $720,000 and extend the pre-IPO loans of $150,000, for an aggregate amount of $870,000 to be used as working capital. Certain vendors have agreed to defer an aggregate of $105,000 of expenses. These will be repaid from the interest earned from the funds held in trust. The loans will be repaid with 4% interest from the interest earned from the funds held in trust. The loans and the vendor deferrals will not have any access or rights against the principal in escrow. |
24
25
26
December 31, 2005 | |||||||||
Actual | As Adjusted(1) | ||||||||
Notes payable to stockholders
|
$ | 150,000 | $ | 870,000 | |||||
Common Stock, $.0001 par value 0 and
1,999,000 shares which are subject to possible conversion,
shares at conversion value
|
| 11,634,180 | |||||||
Stockholders equity
|
|||||||||
Preferred stock, $.0001 par value, 1,000,000 shares authorized;
none issued and outstanding
|
| | |||||||
Common stock, $.0001 par value, 75,000,000 shares authorized;
2,437,500 shares issued and outstanding, 12,437,500 shares
issued and outstanding (including 1,999,000 shares which are
subject to possible conversion), as adjusted
|
244 | 1,244 | |||||||
Additional paid-in capital
|
$ | 24,756 | 42,855,776 | ||||||
Deficit accumulated during the development stage
|
$ | (30,519 | ) | (30,519 | ) | ||||
Total stockholders equity
|
$ | (5,519 | ) | 42,826,501 | |||||
Total capitalization
|
$ | 144,481 | $ | 55,330,681 | |||||
(1) | Assumes full payment of the underwriters discount and expense allowance. |
27
Public offering price
|
$ | 6.00 | |||||||
Net tangible book value before this offering
|
$ | (.31 | ) | ||||||
Increase attributable to new investors
|
4.39 | ||||||||
Pro forma net tangible book value after this offering
|
4.08 | ||||||||
Dilution to new investors
|
$ | 1.92 | |||||||
Shares Purchased | Total Consideration | ||||||||||||||||||||
Average Price | |||||||||||||||||||||
Number | Percentage | Amount | Percentage | per Share | |||||||||||||||||
Existing stockholders
|
2,500,000 | 20.00 | % | $ | 25,000 | .04 | % | $ | .01 | ||||||||||||
Private placement
|
170,000 | 1.36 | % | $ | 1,020,000 | 1.70 | % | 6.00 | |||||||||||||
New investors
|
9,830,000 | 78.64 | % | $ | 58,980,000 | 98.26 | % | 6.00 | |||||||||||||
Total
|
12,500,000 | 100.00 | % | $ | 60,025,000 | 100.00 | % | ||||||||||||||
28
Numerator:
|
|||||
Net tangible book value before this offering and the private
placement
|
$ | (762,218 | ) | ||
Proceeds from this offering and the private placement
|
54,466,200 | ||||
Offering costs excluded from net tangible book value before this
offering and the private placement
|
756,699 | ||||
Less: Proceeds held in trust subject to conversion
to cash |
(11,634,180 | ) | |||
$ | 42,826,501 | ||||
Denominator:
|
|||||
Shares of common stock outstanding prior to this offering and
the private placement
|
2,500,000 | ||||
Shares of common stock included in the units offered, including
the private placement
|
10,000,000 | ||||
Less: Shares subject to conversion (10,000,000 × 19.99%)
|
(1,999,000 | ) | |||
10,501,000 | |||||
29
| may significantly reduce the equity interest of our stockholders; | |
| will likely cause a change in control if a substantial number of our shares of common stock or voting preferred stock are issued, which may affect, among other things, our ability to use our net operating loss carry forwards, if any, and may also result in the resignation or removal of one or more of our present officers and directors; | |
| may adversely affect the voting power or other rights of holders of our common stock if we issue preferred stock with dividend, liquidation, conversion or other rights superior to the common stock; and | |
| may adversely affect prevailing market prices for our common stock, warrants or units. |
| may lead to default and foreclosure on our assets if our operating revenues after a business combination are insufficient to pay our debt obligations; | |
| may cause an acceleration of our obligations to repay the debt even if we make all principal and interest payments when due if we breach the covenants contained in the terms of the debt documents, such as covenants that require the maintenance of certain financial ratios or reserves, without a waiver or renegotiation of such covenants; | |
| may create an obligation to immediately repay all principal and accrued interest, if any, upon demand to the extent any debt securities are payable on demand; and | |
| may hinder our ability to obtain additional financing, if necessary, to the extent any debt securities contain covenants restricting our ability to obtain additional financing while such security is outstanding, or to the extent our existing leverage discourages other potential investors. |
30
| Payment of the purchase price for the business combination; | |
| Payment of the fees and costs due to Ferris, Baker Watts, Inc. as representative of the underwriters and financial advisor to the company; | |
| Payment of any finders fees or professional fees and costs; and | |
| Payment of any fees and costs the Company may incur in connection with any equity or debt financing relating to the business combination. | |
| In addition, the Company will repay the outstanding balance of the aggregate $870,000 in loans made by Mr. Mukunda and Dr. Krishna to the Company and any deferred expenses. | |
| approximately $300,000 of expenses for legal, accounting and other expenses attendant to the due diligence investigations, structuring and negotiating of a business combination; | |
| Approximately $185,000 of expenses for the due diligence and investigation of a target business; | |
| approximately $115,000 of expenses in legal and accounting fees relating to our SEC reporting obligations; | |
| approximately $96,000 of expenses in fees relating to our office space and certain general and administrative services; and |
31
| approximately $184,000 for travel, general working capital that will be used for miscellaneous expenses and reserves, including for director and officer liability insurance premiums, deposits, down payments and/or funding of a no shop provision in connection with a prospective business transaction and for international travel with respect to negotiating and finalizing a business combination. |
32
| India is the worlds second most populous country. The population of India is approximately 1.1 billion, with a total labor force of about 482 million (2004 estimate). | |
| Inflation is approximately 4.2% (2004 estimate). | |
| Indias exports are approximately $69.18 billion on a free on board basis (f.o.b.) (2004 estimate). | |
| Indias top five export partners as of the end of 2003 are the following: |
(1) United States (approximately 20.3%); | |
(2) China (approximately 6.3%); | |
(3) United Kingdom (approximately 5.2%); | |
(4) Hong Kong (approximately 4.7%); and | |
(5) Germany (approximately 4.3%). |
| Indias reserves of foreign exchange and gold are approximately $126 billion (2004 estimate). | |
| The Indian currency is the rupee and over the past three years on average US $1.00 was equivalent to: |
| 45.8692 Indian rupees in 2004, | |
| 46.5806 Indian rupees in 2003, and | |
| 48.6103 Indian rupees in 2002. |
33
GDP as measured | ||||||||
in terms of PPP | Growth rate | |||||||
(2004 estimate) | (2004 estimate) | |||||||
U.S.
|
$ | 11.75 trillion | 4.4 | % | ||||
China
|
$ | 7.262 trillion | 9.1 | % | ||||
Japan
|
$ | 3.745 trillion | 2.9 | % | ||||
India
|
$ | 3.319 trillion | 6.2 | % | ||||
Germany
|
$ | 2.362 trillion | 1.7 | % | ||||
U.K.
|
$ | 1.782 trillion | 3.2 | % | ||||
France
|
$ | 1.737 trillion | 2.1 | % | ||||
Italy
|
$ | 1.609 trillion | 1.3 | % |
Business Process Outsourcing and Information Technology: Business Process Outsourcing or BPO typically refers to the act of transferring business processes to an outside provider in order to achieve cost savings while improving service quality. BPO extends beyond typical information technology outsourcing. A BPO service provider may take on a specific corporate function like customer service and/or help desk, or more complex and knowledge-based functions, such as human resources, accounting and finance, research and development, and monitoring of networks. A BPO service provider may also assume the responsibility for re-engineering and introducing best practices into processes that are outsourced. In this way, BPO is fast emerging as not just a cost saving mechanism, but a powerful strategic management tool in achieving business objectives. We believe that India has a well educated, English speaking middle class and a low wage base that will |
34
allow the BPO and Information Technology businesses to continue to grow. Within the BPO and Information Technology sector, we believe there are several compelling industries to explore, including, but not limited to: |
| Knowledge-based and Other Back Office Outsourcing : As labor costs for information technology and similar professionals soar in the U.S. and technology facilitates communication between persons in disparate parts of the world, we believe that the benefits of out-sourcing knowledge-based and back office functions to countries such as India, will be increasingly utilized by businesses all over the world. We may consider sectors, such as software development, research and development, information technology, telecommunications outsourcing, financial services, and customer care. | |
| Pharmaceutical and Health Services : As healthcare costs soar in the U.S., we believe that the benefits of outsourcing medical care, drug manufacturing or medical transcription to countries such as India, will be increasingly utilized in the healthcare industry and by consumers all over the world. For example, medical transcription (where medical dictation is converted by workers in India into print) is an area that has taken advantage of the lower labor rates in India and other countries. Other areas that are expected to benefit from outsourcing are generic drug manufacturing, drug trial testing, and telemedicine. For example, we might consider buying a middle tier generic drug manufacturer with a U.S. Federal Drug Administration approved manufacturing plant and combining it with a distributor in the U.S. to create a vertical generic drug manufacturing and distribution company. |
Infrastructure: We believe that because of rapid economic growth there is a substantial demand for ongoing infrastructure improvements to support continued growth. We further believe that the rapid economic growth has created a growing middle class that has developed increasing buying power. As a result of these factors, we further believe there has been an increased growth opportunity for companies that develop and build infrastructure. Some middle tier infrastructure acquisition opportunities would include, among others, companies that build business complexes, residential housing and shopping complexes. We would also consider transportation companies, logistics companies or financial services companies operating within India as prospective middle tier infrastructure acquisition target businesses. |
35
36
| financial condition, results of operation and repatriation regulations; | |
| growth potential both in India and growth potential outside of India; | |
| capital requirements; | |
| experience and skill of management and availability of additional personnel; | |
| competitive position; | |
| barriers to entry into the businesses industries; | |
| potential for compliance with GAAP, SEC regulations, Sarbanes-Oxley requirements and capital requirements; | |
| domestic and global competitive position and potential to compete in the U.S. and other markets; | |
| position within a sector and barriers to entry; |
37
| stage of development of the products, processes or services; | |
| degree of current or potential market acceptance of the products, processes or services; | |
| proprietary features and degree of intellectual property or other protection of the products, processes or services; | |
| regulatory environment of the industry and the Indian governments policy towards the sector; and | |
| costs associated with effecting the business combination. |
38
| result in our dependency upon the performance of a single or small number of operating businesses; | |
| result in our dependency upon the development or market acceptance of a single or limited number of products, processes or services; and | |
| subject us to numerous economic, competitive and regulatory developments, any or all of which may have a substantial adverse impact upon the particular industry in which we may operate subsequent to a business combination. |
39
40
| our obligation to seek stockholder approval of a business combination or obtain the necessary financial statements to be included in the proxy materials to be sent to stockholders in connection with a proposed business combination may delay the completion of a transaction; | |
| our obligation to convert into cash shares of common stock held by our public stockholders in certain instances may reduce the resources available to us for a business combination; and | |
| our outstanding warrants and the purchase option granted to Ferris, Baker Watts, Inc., and the future dilution they potentially represent, may not be viewed favorably by certain target businesses. |
41
42
Terms of Our Offering | Terms Under a Rule 419 Offering | |||
Escrow of offering proceeds
|
$57,210,600 of the proceeds of this offering and the private placement will be deposited into a trust account located at United Bank Inc., and maintained by Continental Stock Transfer & Trust Company acting as trustee. These proceeds consist of $55,441,200 from the net proceeds payable to us and $1,769,400 of the proceeds attributable to the underwriters non-accountable expense allowance. | $49,680,000 of the offering proceeds would be required to be deposited into either an escrow account with an insured depositary institution or in a separate bank account established by a broker- dealer in which the broker-dealer acts as trustee for persons having the beneficial interests in the account. | ||
Investment of offering proceeds
|
The $57,210,600 of the proceeds of this offering and the private placement held in trust will only be invested in U.S. government securities, defined as any Treasury Bill issued by the United States having a maturity of one hundred and eighty days or less. | Proceeds could be invested only in specified securities such as a money market fund meeting conditions of the Investment Company Act of 1940 or in securities that are direct obligations of, or obligations guaranteed as to principal or interest by, the United States. | ||
Limitation on fair value or net assets of target business
|
The initial target businesses that we acquire must have a fair market value equal to at least 80% of our net assets (excluding any fees and expenses held in the trust account for the benefit of Ferris, Baker Watts, Inc.) at the time of such acquisition. | We would be restricted from acquiring a target business unless the fair value of such business or net assets to be acquired represent at least 80% of the maximum offering proceeds. | ||
Trading of securities issued
|
The units may commence trading on or promptly after the date of this prospectus. The common stock and warrants comprising the units will begin to trade separately on the 90th day after the date of this prospectus unless Ferris, Baker Watts, Inc. informs us of its decision to allow earlier separate trading, provided we have filed with the SEC a Current Report on Form 8-K, which includes an audited balance sheet reflecting our receipt of the proceeds of this offering, including any proceeds we receive from the exercise of the over-allotment option, if such option is exercised prior to the filing of the Form 8-K. | No trading of the units or the underlying common stock and warrants would be permitted until the completion of a business combination. During this period, the securities would be held in the escrow or trust account. |
43
Terms of Our Offering
Terms Under a Rule 419 Offering
The warrants cannot be exercised until the later of the
completion of a business combination or one year from the date
of this prospectus and, accordingly, will only be exercised
after the trust account has been terminated and distributed.
The warrants could be exercised prior to the completion of a
business combination, but securities received and cash paid in
connection with the exercise would be deposited in the escrow or
trust account.
We will give our stockholders the opportunity to vote on the
business combination. In connection with seeking stockholder
approval, we will send each stockholder a proxy statement
containing information required by the SEC. A stockholder
following the procedures described in this prospectus is given
the right to convert his or her shares into his or her pro rata
share of the trust account. However, a stockholder who does not
follow these procedures or a stockholder who does not take any
action would not be entitled to the return of any funds.
A prospectus containing information required by the SEC would be
sent to each investor. Each investor would be given the
opportunity to notify the company, in writing, within a period
of no less than 20 business days and no more than 45 business
days from the effective date of the post- effective amendment,
to notify the company of their election to remain an investor.
If the company has not received the notification by the end of
the 45th business day, funds and interest or dividends, if any,
held in the trust or escrow account would automatically be
returned to the stockholder. Unless a sufficient number of
investors elect to remain investors, all of the deposited funds
in the escrow account must be returned to all investors and none
of the securities will be issued.
A business combination must occur within 18 months after
the consummation of this offering or within 24 months after
the consummation of this offering if a letter of intent,
agreement in principal or definitive agreement relating to a
prospective business combination was entered into prior to the
end of the 18-month period.
If an acquisition has not been consummated within 18 months
after the effective date of the initial registration statement,
funds held in the trust or escrow account would be returned to
investors.
The proceeds held in the trust account will not be released
until the earlier of the completion of a business combination or
our liquidation upon our failure to effect a business
combination within the allotted time.
The proceeds held in the escrow account would not be released
until the earlier of the completion of a business combination or
the failure to effect a business combination within the allotted
time.
44
Name | Age | Position | ||||
Dr. Ranga Krishna
|
42 | Chairman of the Board | ||||
Ram Mukunda
|
47 | Chief Executive Officer, President and Director | ||||
John Cherin
|
64 | Chief Financial Officer, Treasurer and Director | ||||
Sudhakar Shenoy
|
58 | Director | ||||
Suhail Nathani
|
40 | Director | ||||
Larry Pressler
|
63 | Special Advisor | ||||
P.G. Kakodkar
|
69 | Special Advisor | ||||
Shakti Sinha
|
48 | Special Advisor | ||||
Dr. Prabuddha Ganguli
|
56 | Special Advisor | ||||
Dr. Anil K. Gupta
|
55 | Special Advisor |
45
46
47
48
Number of | ||||||
Name | Shares(1) | Relationship to Us | ||||
Dr. Ranga Krishna
|
250,000 | Chairman of the Board | ||||
Ram Mukunda
|
1,250,000 | Chief Executive Officer, President and Director | ||||
John Cherin
|
250,000 | Chief Financial Officer, Treasurer and Director |
Number of | ||||||
Name | Shares(1)(2)(3) | Relationship to Us | ||||
Parveen Mukunda(4)
|
425,000 | Secretary | ||||
Sudhakar Shenoy
|
37,500 | Director | ||||
Suhail Nathani
|
37,500 | Director | ||||
Shakti Sinha
|
12,500 | Special Advisor | ||||
Dr. Prabuddha Ganguli
|
12,500 | Special Advisor | ||||
Dr. Anil K. Gupta
|
25,000 | Special Advisor |
(1) | The share numbers and per share purchase prices in this section reflect the effects of a 1-for-2 reverse split effected September 29, 2005. |
(2) | Representing shares issued to our officers, directors and Special Advisors in consideration of services rendered or to be rendered to us. |
(3) | On September 7, 2005 one shareholder surrendered to the Company 62,500 shares, and on February 3, 2006 a shareholder surrendered to the Company 137,500 shares. These were reissued as set forth below. |
(4) | Parveen Mukunda is the wife of Ram Mukunda. |
Name | Number of Shares | Relationship to Us | ||||
Dr. Ranga Krishna
|
100,000 | Chairman of the Board | ||||
John Cherin
|
37,500 | Chief Financial Officer, Treasurer and Director | ||||
Larry Pressler
|
25,000 | Special Advisor | ||||
P.G. Kakodkar
|
12,500 | Special Advisor | ||||
Sudhakar Shenoy
|
12,500 | Director | ||||
Suhail Nathani
|
12,500 | Director |
49
| None of our officers, directors and special advisors are required to commit their full time to our affairs and, accordingly, they may have conflicts of interest in allocating management time among various business activities. | |
| In the course of their other business activities, our officers, directors and special advisors may become aware of investment and business opportunities that may be appropriate for presentation to us as well as the other entities with which they are affiliated. They may have conflicts of interest in determining to which entity a particular business opportunity should be presented. For a complete description of our managements other affiliations, see the previous section entitled Management. | |
| We may also determine to effect a business combination with another entity that is affiliated with one or more of our existing stockholders. | |
| Our current management will only be able to remain with the combined company after the consummation of a business combination if they are able to negotiate the same as part of any such combination. If management negotiates to be retained post-business combination as a condition to any potential business combination, such negotiations may result in a conflict of interest between management and the stockholders resulting in management attempting to negotiate terms that may be less favorable to the stockholders than what they might otherwise receive. | |
| Our officers, directors and special advisors may in the future become affiliated with entities, including other blank check companies, engaged in business activities similar to those intended to be conducted by us. | |
| Because our officers, directors and special advisors own shares of our common stock that will be subject to lock-up agreements restricting their sale until six months after a business combination is successfully completed, our board may have a conflict of interest in determining whether a particular target business is appropriate to effect a business combination. The personal and financial interests of our directors, officers and special advisors may influence their motivation in identifying and selecting target businesses and completing a business combination in a timely manner. | |
| IGN, LLC, an affiliate of Mr. Mukunda, has agreed that, commencing on the effective date of this prospectus through the acquisition of a target business, it will make available to us office space and certain general and administrative services, as we may require from time to time. We have agreed to pay IGN, LLC $4,000 per month for these services. Mr. Mukunda is the Chief Executive Officer of IGN, LLC. As a result of this affiliation, Mr. Mukunda will benefit from the transaction to the extent of his interest in IGN, LLC. However, this arrangement is solely for our benefit and is not intended to provide Mr. Mukunda with compensation in lieu of a salary. We believe, based on rents and fees for similar services in the Washington, DC metropolitan area, that the fee charged by IGN, LLC is at least as favorable as we could have obtained from an unaffiliated third party. However, as our directors at the time we entered into this agreement may not be deemed independent, we did not have the benefit of disinterested directors approving this transaction. |
50
| the corporation could financially undertake the opportunity; | |
| the opportunity is within the corporations line of business; and | |
| it would not be fair to the corporation and its stockholders for the opportunity not to be brought to the attention of the corporation. |
51
52
| each person known by us to be the beneficial owner of more than 5% of our outstanding shares of common stock; | |
| each of our executive officers, directors and our special advisors; and | |
| all our officers and directors as a group. |
Amount and | Approximate Percentage of | |||||||||||
Nature of | Outstanding Common Stock | |||||||||||
Name and Address of | Beneficial | |||||||||||
Beneficial Owner(1) | Ownership | Before Offering | After Offering(2) | |||||||||
Ranga Krishna
|
350,000 | 14.0% | 2.8% | |||||||||
Ram Mukunda
|
1,250,000 | (3) | 50.0% | 10.0% | ||||||||
John Cherin
|
287,500 | 11.5% | 2.3% | |||||||||
Parveen Mukunda
|
425,000 | 17.0% | 3.4% | |||||||||
Sudhakar Shenoy
|
50,000 | 2.0% | 0.4% | |||||||||
Suhail Nathani
|
50,000 | 2.0% | 0.4% | |||||||||
Larry Pressler
|
25,000 | 1.0% | 0.2% | |||||||||
P.G. Kakodkar
|
12,500 | 0.5% | 0.1% | |||||||||
Shakti Sinha
|
12,500 | 0.5% | 0.1% | |||||||||
Dr. Prabuddha Ganguli
|
12,500 | 0.5% | 0.1% | |||||||||
Dr. Anil K. Gupta
|
25,000 | 1.0% | 0.2% | |||||||||
All directors and executive officers as a group
(5 individuals)
|
1,987,500 | 79.5% | 17.3% |
(1) | Unless otherwise noted, the business address of each of the following is 4336 Montgomery Avenue, Bethesda, Maryland, 20814. |
(2) | Our officers and directors have agreed to purchase an aggregate of 170,000 units in the private placement, which purchase will occur immediately prior to the offering. The percentage ownership after the offering for all executive officers and directors as a group reflects this purchase; however, the percentages for each holder do not since the allocation of the purchase obligation among the officers and directors has not yet been determined. |
(3) | Excludes 425,000 shares owned by Mr. Mukundas wife, Parveen Mukunda, as to which Mr. Mukunda disclaims beneficial ownership. |
53
54
55
| the completion of a business combination; or | |
| one year from the date of this prospectus. |
| in whole and not in part, | |
| at a price of $.01 per warrant at any time after the warrants become exercisable, | |
| upon not less than 30 days prior written notice of redemption to each warrant holder, and | |
| if, and only if, the reported last sale price of the common stock equals or exceeds $8.50 per share, for any 20 trading days within a 30 trading day period ending on the third business day before we send notice of redemption to warrant holders. |
56
57
| 1% of the number of shares of common stock then outstanding, which will equal 125,000 shares immediately after this offering (or 139,745 if the underwriters exercise their over-allotment option); and | |
| the average weekly trading volume of the common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. |
Rule 144(k) |
SEC Position on Rule 144 Sales |
58
Underwriters | Number of Units | |||
Ferris, Baker Watts, Inc.
|
||||
First Albany Capital Inc.
|
||||
Ladenburg Thalmann & Co. Inc.
|
||||
Merriman Curhan Ford & Co.
|
||||
SG Americas Securities, LLC
|
||||
Total
|
9,830,000 | |||
| the history and prospects of companies whose principal business is the acquisition of other companies; | |
| prior offerings of those companies; | |
| our prospects for acquiring an operating business in India at attractive values; | |
| our capital structure; | |
| an assessment of our management and their experience in identifying operating companies; | |
| general conditions of the securities markets at the time of the offering; and | |
| other factors as were deemed relevant. |
59
Per Unit
Without Option
With Option
$
6.00
$
58,980,000
$
67,827,000
$
0.30
$
2,949,000
$
3,391,350
$
0.18
$
1,769,400
$
1,769,400
$
5.52
$
54,261,600
$
62,666,250
(1) | Ferris, Baker Watts, Inc., the representative of the underwriters in this offering, has agreed to deposit 3% of the gross proceeds attributable to the non-accountable expense allowance ($0.18 per Unit) into the trust account until the earlier of the completion of a business combination or the liquidation of the trust account. |
(2) | The offering expenses are estimated as $815,400. |
60
| Stabilizing Transactions. The underwriters may make bids or purchases for the purpose of pegging, fixing or maintaining the price of our securities, so long as stabilizing bids do not exceed a specified maximum as set forth in Regulation M which requires generally, among other things, that no stabilizing bid will be initiated at or increased to a price higher than the lower of the offering price or the highest independent bid for the security on the principal trading market for the security. | |
| Over-Allotments and Syndicate Coverage Transactions. The underwriters may create a short position in our securities by selling more of our securities than are set forth on the cover page of this prospectus. If the underwriters create a short position during the offering, the representative may engage in syndicate covering transactions by purchasing our securities in the open market. The representative may also elect to reduce any short position by exercising all or part of the over-allotment option. | |
| Penalty Bids. The representative may reclaim a selling concession from a syndicate member when the common stock originally sold by the syndicate member is purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions. |
61
62
Page | ||||
Financial Statements
|
||||
F-2 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
F-7 |
F-1
F-2
F-3
F-4
F-5
F-6
Table of Contents
April 29, 2005
(Date of Inception)
through
December 31, 2005
$
30,519
$
(30,519
)
$
(.01
)
2,325,837
Table of Contents
Deficit
Accumulated
Common Stock
Additional
During the
Total
Paid-In
Development
Stockholders
Shares
Amount
Capital
Stage
Equity
2,500,000
$
250
$
24,750
$
25,000
(62,500
)
(6
)
6
$
(30,519
)
(30,519
)
2,437,500
$
244
$
24,756
$
(30,519
)
$
(5,519
)
Table of Contents
April 29, 2005
(Date of Inception)
through
December 31, 2005
$
(30,519
)
15,854
(14,665
)
25,000
(154,571
)
150,000
20,429
$
5,764
$
602,128
Table of Contents
F-7
F-8
F-9
Page | ||||
1 | ||||
3 | ||||
9 | ||||
10 | ||||
23 | ||||
24 | ||||
27 | ||||
28 | ||||
30 | ||||
33 | ||||
45 | ||||
49 | ||||
53 | ||||
55 | ||||
59 | ||||
62 | ||||
62 | ||||
62 | ||||
F-1 |
II-1
II-2
Item 13.
Other Expenses of Issuance and Distribution
1,000
$
45,668
39,300
35,000
120,000
475,000
40,000
59,432
$
815,400
(1)
In addition to the initial acceptance fee that is charged by
Continental Stock Transfer & Trust Company, as trustee,
the registrant will be required to pay to Continental Stock
Transfer & Trust Company annual fees of $3,000 for
acting as trustee, $4,800 for acting as transfer agent of the
registrants common stock, $2,400 for acting as warrant
agent for the registrants warrants and $1,800 for acting
as escrow agent.
(2)
This amount represents additional expenses that may be incurred
by the Registrant or Underwriters in connection with the
offering over and above those specifically listed above,
including distribution and mailing costs.
Item 15.
Recent Sales of Unregistered Securities
Number of
Stockholders
Shares
2,500,000
*
500,000
*
500,000
*
125,000
**
275,000
**
850,000
**
75,000
**
75,000
**
25,000
**
25,000
**
50,000
**
Shares issued on May 5, 2005.
Shares issued on June 20, 2005.
Number of
Stockholders
Shares
37,500
*
100,000
*
25,000
12,500
12,500
12,500
Table of Contents
Item 16.
Exhibits and Financial Statement Schedules
Exhibit No.
Description
1
.1
Form of Underwriting Agreement
1
.2
Form of Selected Dealer Agreement*
3
.1
Amended and Restated Articles of Incorporation*
3
.2
By-laws
4
.1
Specimen Unit Certificate*
4
.2
Specimen Common Stock Certificate*
4
.3
Specimen Warrant Certificate*
4
.4
Form of Warrant Agreement between Continental Stock Transfer
& Trust Company and the Registrant*
4
.5
Form of Purchase Option to be granted to the Representative*
5
.1
Opinion of Seyfarth Shaw LLP*
10
.1
Amended and Restated Letter Agreement between the Registrant,
Ferris, Baker Watts, Inc. and Ram Mukunda*
10
.2
Amended and Restated Letter Agreement between the Registrant,
Ferris, Baker Watts, Inc. and John Cherin*
10
.3
Amended and Restated Letter Agreement between the Registrant,
Ferris, Baker Watts, Inc. and Ranga Krishna*
10
.4
Form of Investment Management Trust Agreement between
Continental Stock Transfer & Trust Company and the Registrant
10
.5
Promissory Note issued by the Registrant to Ram Mukunda
10
.5.1
Extension of Due Date of Promissory Note issued to Ram Mukunda
10
.6
Form of Stock and Unit Escrow Agreement among the Registrant,
Ram Mukunda, John Cherin and Continental Stock Transfer &
Trust Company
10
.7
Form of Registration Rights Agreement among the Registrant and
each of the existing stockholders*
10
.8
Form of Unit Purchase Agreement among Ferris, Baker Watts, Inc.
and one or more of the Initial Stockholders
10
.9
Form of Office Service Agreement between the Registrant and
Integrated Global Networks, LLC*
10
.10
Amended and Restated Letter Advisory Agreement between the
Registrant, Ferris, Baker Watts, Inc. and SG Americas
Securities, LLC
10
.11
Form of Letter Agreement between Ferris, Baker Watts, Inc. and
certain officers and directors of the Registrant*
10
.12
Form of Letter Agreement between Ferris, Baker Watts, Inc. and
each of the Special Advisors of the Registrant*
10
.13
Form of Letter Agreement between the Registrant and certain
officers and directors of the Registrant*
10
.14
Form of Letter Agreement between the Registrant and each of the
Special Advisors of the Registrant*
10
.15
Promissory Note issued by the Registrant to Ranga Krishna
10
.15.1
Extension of Due Date of Promissory Note issued to Ranga Krishna
10
.16
Form of Promissory Note to be issued by the Registrant to Ranga
Krishna
23
.1
Consent of Goldstein Golub Kessler LLP
23
.2
Consent of Seyfarth Shaw LLP (incorporated by reference from
Exhibit 5.1)
23
.3
Consent of Mega Ace Consultancy*
24
Power of Attorney*
99
.1
Code of Ethics**
Previously filed.
To be filed with the Registrants initial Form 10-K.
Table of Contents
II-3
India Globalization Fund, Inc.
By:
/s/ Ram Mukunda
Ram Mukunda
Chief Executive Officer and President
Signature
Title
Date
/s/ Ranga Krishna*
Ranga Krishna
Chairman
February 14, 2006
/s/ Ram Mukunda
Ram Mukunda
Chief Executive Officer,
President and Director
(Principal Executive Officer)
February 14, 2006
/s/ John Cherin*
John Cherin
Chief Financial Officer, Treasurer
and Director
(Principal Financial and Accounting Officer)
February 14, 2006
/s/ Suhail Nathani*
Suhail Nathani
Director
February 14, 2006
/s/ Sudhakar Shenoy*
Sudhakar Shenoy
Director
February 14, 2006
*
by Ram Mukunda, Power of Attorney
EXHIBIT 1.1
UNDERWRITING AGREEMENT
between
INDIA GLOBALIZATION CAPITAL, INC.
and
FERRIS, BAKER WATTS
INCORPORATED
Dated: February , 2006
INDIA GLOBALIZATION CAPITAL, INC.
UNDERWRITING AGREEMENT
Baltimore, Maryland
February
, 2006
Ferris, Baker Watts, Inc.
100 Light Street
Baltimore, MD 21202
Dear Sirs:
The undersigned, India Globalization Capital, Inc., a Maryland corporation ( Company ), hereby confirms its agreement with Ferris, Baker Watts, Inc. (hereinafter referred to as you , FBW or the Representative ) and with the other underwriters named on Schedule I hereto for which FBW is acting as Representative (the Representative and the other Underwriters being collectively called the Underwriters or, individually, an Underwriter ) as follows:
1. Purchase and Sale of Securities .
1.1 Firm Securities .
1.1.1 Purchase of Firm Securities . On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell, severally and not jointly, to the several Underwriters, an aggregate of 10,000,000 units ( Firm Units ) of the Company at a purchase price (net of discounts and commissions) of $5.52 per Firm Unit. The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Securities set forth opposite their respective names on Schedule I attached hereto and made a part hereof at a purchase price (net of discounts and commissions) of $5.52 per share. The Units are to be offered initially to the public (the Offering ) at the offering price set forth on the cover page of the Prospectus (as defined in Section 2.1.1 hereof). Each Firm Unit consists of one share of the Companys common stock, par value $.0001 per share (the Common Stock ), and two warrants ( Warrant(s) ). The shares of Common Stock and the Warrants included in the Firm Units will not be separately transferable until 90 days after the effective date (the Effective Date ) of the Registration Statement (as defined in Section 2.1.1 hereof) unless FBW informs the Company of its decision to allow earlier separate trading, but in no event will FBW allow separate trading until the preparation of an audited balance sheet of the Company reflecting receipt by the Company of the proceeds of the Offering. Each Warrant entitles its holder to exercise it to purchase one share of Common Stock for $5.00 during the period commencing on the later of the consummation by the Company of its Business Combination or one year from the Effective Date of the Registration Statement and terminating on the five-year anniversary of the Effective Date. Business Combination shall mean any merger, capital stock exchange, asset acquisition or other similar business combination consummated by the Company with a company which has its primary operations located in India (as described more fully in the Registration Statement).
1.1.2 Payment and Delivery . Delivery and payment for the Firm Units shall be made at 10:00 A.M., Baltimore time, on the third business day following the Effective Date of the Registration Statement (or the fourth business day following the Effective Date, if the Registration Statement is declared effective after 4:30 p.m.) or at such earlier time as shall be agreed upon by the Representative and the Company at the offices of the Representative or at such other place as shall be agreed upon by the
Representative and the Company. The hour and date of delivery and payment for the Firm Units is called the Closing Date . Payment for the Firm Units shall be made on the Closing Date at the Representatives election by wire transfer in Federal (same day) funds or by certified or bank cashiers check(s) in Clearing House funds, payable as follows: $57,210,600 of the proceeds received by the Company for the Firm Units shall be deposited in the trust fund established by the Company for the benefit of the public stockholders as described in the Registration Statement ( Trust Fund ) pursuant to the terms of an Investment Management Trust Agreement (the Trust Agreement ) and the remaining proceeds shall be paid to the order of the Company upon delivery to you of certificates (in form and substance satisfactory to the Underwriters) representing the Firm Units (or through the facilities of the Depository Trust Company (the DTC )) for the account of the Underwriters. The Firm Units shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least two full business days prior to the Closing Date. The Company will permit the Representative to examine and package the Firm Units for delivery, at least one full business day prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Units except upon tender of payment by the Representative for all the Firm Units.
1.2 Over-Allotment Option .
1.2.1 Option Units . For the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Units, the Underwriters are hereby granted, severally and not jointly, an option to purchase up to an additional 1,474,500 units from the Company (the Over-allotment Option ). Such additional 1,474,500 units are hereinafter referred to as Option Units . The Firm Units and the Option Units are hereinafter collectively referred to as the Units , and the Units, the shares of Common Stock and the Warrants included in the Units and the shares of Common Stock issuable upon exercise of the Warrants are hereinafter referred to collectively as the Public Securities . The purchase price to be paid for the Option Units will be the same price per Option Unit as the price per Firm Unit set forth in Section 1.1.1 hereof.
1.2.2 Exercise of Option . The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to all (at any time) or any part (from time to time) of the Option Units within 45 days after the Effective Date. The Underwriters will not be under any obligation to purchase any Option Units prior to the exercise of the Over-allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which must be confirmed in writing by overnight mail or facsimile transmission setting forth the number of Option Units to be purchased and the date and time for delivery of and payment for the Option Units, which will not be later than five full business days after the date of the notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of the Representative or at such other place as shall be agreed upon by the Company and the Representative. If such delivery and payment for the Option Units does not occur on the Closing Date, the date and time of the closing for such Option Units will be as set forth in the notice (hereinafter the Option Closing Date ). Upon exercise of the Over-allotment Option, the Company will become obligated to convey to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will become obligated to purchase, the number of Option Units specified in such notice.
1.2.3 Payment and Delivery . Payment for the Option Units will be at the Representatives election by wire transfer in Federal (same day) funds or by certified or bank cashiers check(s) in Clearing House funds, payable to the Trust Fund at the offices of the Representative or at such other place as shall be agreed upon by the Representative and the Company upon delivery to you of certificates representing such securities (or through the facilities of DTC) for the account of the Underwriters. The certificates representing the Option Units to be delivered will be in such denominations and registered in such names as the Representative requests not less than two full business days prior to the Closing Date or the Option Closing Date, as the case may be, and will be made available
2
to the Representative for inspection, checking and packaging at the aforesaid office of the Companys transfer agent or correspondent not less than one full business day prior to such Closing Date.
1.3 Representatives Purchase Option .
1.3.1 Purchase Option . The Company hereby agrees to issue and sell to the Representative (and/or their designees) on the Effective Date an option ( Representatives Purchase Option ) for the purchase of an aggregate of 500,000 units (the Representatives Units ) for an aggregate purchase price of $100.00. Each of the Representatives Units is identical to the Firm Units, except that the Warrants included in the Representatives Units ( Representatives Warrants ) have an exercise price of $6.25 (125% of the exercise price of the Warrants included in the units sold to the public). The Representatives Purchase Option shall be exercisable, in whole or in part, commencing on the later of the consummation of a Business Combination or one year from the Effective Date and expiring on the five-year anniversary of the Effective Date at an initial exercise price per Representatives Unit of $7.50, which is equal to one hundred and twenty five percent (125%) of the initial public offering price of a Unit. The Representatives Purchase Option, the Representatives Units, the Warrants included in the Representatives Units (the Representatives Warrants ) and the shares of Common Stock issuable upon exercise of the Representatives Warrants are hereinafter referred to collectively as the Representatives Securities . The Public Securities and the Representatives Securities are hereinafter referred to collectively as the Securities . The Representative understands and agrees that there are significant restrictions against transferring the Representatives Purchase Option during the first year after the Effective Date, as set forth in Section 3 of the Representatives Purchase Option.
1.3.2 Delivery and Payment . Delivery and payment for the Representatives Purchase Option shall be made on the Closing Date. The Company shall deliver to the Underwriters, upon payment therefor, certificates for the Representatives Purchase Option in the name or names and in such authorized denominations as the Underwriters may request.
2. Representations and Warranties of the Company . The Company represents and warrants to the Underwriters as follows:
2.1 Filing of Registration Statement .
2.1.1 Pursuant to the Act . The Company has filed with the Securities and Exchange Commission ( Commission ) a registration statement and an amendment or amendments thereto, on Form S-1 (File No. 333-124942), including any related preliminary prospectus (the Preliminary Prospectus ), for the registration of the Public Securities under the Securities Act of 1933, as amended ( Act ), which registration statement and amendment or amendments have been prepared by the Company in conformity with the requirements of the Act, and the rules and regulations ( Regulations ) of the Commission under the Act. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement becomes effective (including the prospectus, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of such time pursuant to paragraph (b) of Rule 430A of the Regulations), is hereinafter called the Registration Statement , and the form of the final prospectus dated the Effective Date included in the Registration Statement (or, if applicable, the form of final prospectus filed with the Commission pursuant to Rule 424 of the Regulations), is hereinafter called the Prospectus . The Registration Statement has been declared effective by the Commission on the date hereof.
3
2.1.2 Pursuant to the Exchange Act . The Company has filed with the Commission a Form 8-A (File Number 000-___) providing for the registration under the Securities Exchange Act of 1934, as amended (the Exchange Act ), of the Units, the Common Stock and the Warrants. The registration of the Units, Common Stock and Warrants under the Exchange Act has been declared effective by the Commission on the date hereof.
2.2 No Stop Orders, Etc. Neither the Commission nor, to the best of the Companys knowledge, any state regulatory authority has issued any order preventing or suspending the use of any Preliminary Prospectus or has instituted or, to the best of the Companys knowledge, threatened to institute any proceedings with respect to such an order.
2.3 Disclosures in Registration Statement .
2.3.1 10b-5 Representation . At the time the Registration Statement becomes effective and at all times subsequent thereto up to the Closing Date and the Option Closing Date, if any, the Registration Statement and the Prospectus will contain all material statements that are required to be stated therein in accordance with the Act and the Regulations, and will in all material respects conform to the requirements of the Act and the Regulations; neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, on such dates, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. When any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement for the registration of the Securities or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with the applicable provisions of the Act and the Regulations and did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representation and warranty made in this Section 2.3.1 does not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Representative expressly for use in the Registration Statement or Prospectus or any amendment thereof or supplement thereto.
4
2.3.2 Disclosure of Agreements . The agreements and documents described in the Registration Statement and the Prospectus conform to the descriptions thereof contained therein and there are no agreements or other documents required to be described in the Registration Statement or the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which its property or business is or may be bound or affected and (i) that is referred to in the Prospectus, or (ii) is material to the Companys business, has been duly and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Companys knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and none of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the best of the Companys knowledge, any other party is in default thereunder and, to the best of the Companys knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the best of the Companys knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
2.3.3 Prior Securities Transactions . No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by, or under common control with the Company within the three years prior to the date hereof, except as disclosed in the Registration Statement.
2.3.4 Regulations . The disclosures in the Registration Statement concerning the effects of Federal, State and local regulation and any foreign regulation on the Companys business as currently contemplated are correct in all material respects and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
2.4 Changes After Dates in Registration Statement .
2.4.1 No Material Adverse Change . Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Company; (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no member of the Companys management has resigned from any position with the Company.
2.4.2 Recent Securities Transactions, Etc. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as may otherwise be indicated or contemplated herein or therein, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
2.5 Independent Accountants . To the knowledge of the Company, Goldstein Golub Kessler LLP ( GGK ), whose report is filed with the Commission as part of the Registration Statement, are independent accountants as required by the Act and the Regulations. GGK has not, during the periods
5
covered by the financial statements included in the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.6 Financial Statements . The financial statements, including the notes thereto and supporting schedules included in the Registration Statement and Prospectus fairly present the financial position and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with generally accepted accounting principles, consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The Registration Statement discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Companys financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses.
2.7 Authorized Capital; Options, Etc. The Company had at the date or dates indicated in the Prospectus duly authorized, issued and outstanding capitalization as set forth in the Registration Statement and the Prospectus. Based on the assumptions stated in the Registration Statement and the Prospectus, the Company will have on the Closing Date the adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement and the Prospectus, on the Effective Date and on the Closing Date, there will be no options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the Company or any security convertible into shares of Common Stock of the Company, or any contracts or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible securities.
2.8 Valid Issuance of Securities, Etc.
2.8.1 Outstanding Securities . All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The authorized Common Stock conforms to all statements relating thereto contained in the Registration Statement and the Prospectus. The offers and sales of the outstanding Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky laws or, based in part on the representations and warranties of the purchasers of such shares of Common Stock, exempt from such registration requirements.
2.8.2 Securities Sold Pursuant to this Agreement . The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. The Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement. When issued, the Representatives Purchase Option, the Representatives Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment of the respective exercise prices therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof and such Representatives Purchase Option, the Representatives Warrants and the Warrants are enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and
6
state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.9 Registration Rights of Third Parties . Except as set forth in the Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
2.10 Validity and Binding Effect of Agreements . This Agreement, the Warrant Agreement (as defined in Section 2.21 hereof), the Trust Agreement, the Services Agreement (as defined in Section 3.7.2 hereof), the Advisory Agreement (as defined in Section 2.25 hereof) and the Escrow Agreement (as defined in Section 2.22.2 hereof) have been duly and validly authorized by the Company and constitute, and the Representatives Purchase Option, has been duly and validly authorized by the Company and, when executed and delivered, will constitute, the valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.11 No Conflicts, Etc. The execution, delivery, and performance by the Company of this Agreement, the Warrant Agreement, the Representatives Purchase Option, the Trust Agreement, the Advisory Agreement, the Service Agreement and the Escrow Agreement, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which the Company is a party except pursuant to the Trust Agreement referred to in Section 2.23 hereof; (ii) result in any violation of the provisions of the Articles of Incorporation or the By-Laws of the Company; or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or business constituted as of the date hereof.
2.12 No Defaults; Violations . No default exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any term or provision of its Articles of Incorporation, as may be amended from time to time, or Bylaws or in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or businesses.
2.13 Corporate Power; Licenses; Consents.
2.13.1 Conduct of Business . Except as described in the Prospectus, the Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business purpose as described in the Prospectus. The disclosures in the Registration Statement concerning the effects of federal, state, local and foreign regulation on this
7
offering and the Companys business purpose as currently contemplated are correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
2.13.2 Transactions Contemplated Herein . The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance, sale and delivery, of the Securities and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement, the Representatives Purchase Option, the Trust Agreement, the Services Agreement, the Advisory Agreement and the Escrow Agreement and as contemplated by the Prospectus, except with respect to applicable federal and state securities laws.
2.14 D&O Questionnaires . To the Companys knowledge, all information contained in the questionnaires (the Questionnaires ) completed by each of the Companys stockholders immediately prior to the Offering (the Initial Stockholders ) and provided to the Underwriters as an exhibit to his or her Insider Letter (as defined in Section 2.22.1) is true and correct in all respects and the Company has not become aware of any information which would cause the information disclosed in the questionnaires completed by each Initial Stockholder to become inaccurate and incorrect.
2.15 Litigation; Governmental Proceedings . There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the Companys knowledge, threatened against, or involving the Company or, to the Companys knowledge, any Initial Stockholder which has not been disclosed in the Registration Statement or the Questionnaires.
2.16 Good Standing . The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation as of the date hereof, and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification.
2.17 Stop Orders . The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or any part thereof.
2.18 Transactions Affecting Disclosure to NASD .
2.18.1 Finders Fees . Except as described in the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finders, consulting or origination fee by the Company or any Initial Stockholder with respect to the sale of the Securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Companys knowledge, any Initial Stockholder that may affect the Underwriters compensation, as determined by the National Association of Securities Dealers, Inc. (the NASD ).
2.18.2 Payments Within Twelve Months . The Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finders fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) to any NASD member; or (iii) to any person or entity that has any direct or indirect affiliation or association with any NASD member, within the twelve months prior to the Effective Date, other than payments to FBW.
2.18.3 Use of Proceeds . None of the net proceeds of the Offering will be paid by the Company to any participating NASD member or its affiliates, except as specifically authorized herein and except as may be paid in connection with a Business Combination as contemplated by the Prospectus.
8
2.18.4 Initial Stockholders NASD Affiliation . Based on questionnaires distributed to such persons, no officer, director or any beneficial owner of the Companys unregistered securities has any direct or indirect affiliation or association with any NASD member. The Company will advise the Representative and its counsel if it learns that any officer, director or owner of at least 5% of the Companys outstanding Common Shares is or becomes an affiliate or associated person of an NASD member participating in the offering.
2.19 Foreign Corrupt Practices Act . Neither the Company nor any of the Initial Stockholders or any other person acting on behalf of the Company has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, might have had a material adverse effect on the assets, business or operations of the Company as reflected in any of the financial statements contained in the Prospectus or (iii) if not continued in the future, might adversely affect the assets, business, operations or prospects of the Company. The Companys internal accounting controls and procedures are sufficient to cause the Company to comply with the Foreign Corrupt Practices Act of 1977, as amended.
2.20. Officers Certificate . Any certificate signed by any duly authorized officer of the Company and delivered to you or to your counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.21 Warrant Agreement . The Company has entered into a warrant agreement with respect to the Warrants and the Representatives Warrants with Continental Stock Transfer & Trust Company substantially in the form filed as an exhibit to the Registration Statement (the Warrant Agreement ).
2.22 Agreements With Initial Stockholders .
2.22.1 Insider Letters . The Company has caused to be duly executed legally binding and enforceable agreements (except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally, (ii) as enforceability of any indemnification, contribution or noncompete provision may be limited under the federal and state securities laws, and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) annexed as Exhibits 10.1, 10.2, 10.3, 10.11, 10.12, 10.13 and 10.14, to the Registration Statement (the Insider Letter ), pursuant to which each of the Initial Stockholders of the Company agree to certain matters, including but not limited to, certain matters described as being agreed to by them under the Proposed Business Section of the Prospectus.
2.22.2 Escrow Agreement . The Company has caused the Initial Stockholders to enter into an escrow agreement (the Escrow Agreement ) with Continental Stock Transfer & Trust Company (the Escrow Agent ) in form and substance satisfactory to the Underwriters, whereby the Common Stock owned by the Initial Stockholders will be held in escrow by the Escrow Agent, until six months after the consummation of a Business Combination. During such escrow period, the Initial Stockholders shall be prohibited from selling or otherwise transferring such shares (except to spouses and children of Initial Stockholders and trusts established for their benefit and as otherwise set forth in the Escrow Agreement), but will retain the right to vote such shares. The Escrow Agreement shall not be amended, modified or otherwise changed without the prior written consent of FBW.
9
2.23 Investment Management Trust Agreement . The Company has entered into the Trust Agreement with respect to certain proceeds of the Offering in form and substance satisfactory to the Underwriters.
2.24 Covenants Not to Compete . No Initial Stockholder of the Company is subject to any noncompetition agreement with any employer or prior employer which could materially affect his ability to be an Initial Stockholder, employee, officer and/or director of the Company.
2.25 Financial Advisory Agreement . The Company has entered into an Amended and Restated Financial Advisory Agreement with the Representative (the Advisory Agreement ), in form and substance satisfactory to the Representative, whereby FBW, and SG Americas Securities, LLC, one of the participating underwriters in the offering, will serve as our financial advisors in connection with a Business Combination for a period of two years from the effective date of this offering.
2.26 Investments . No more than 45% of the value (as defined in Section 2(a)(41) of the Investment Company Act of 1940 (the Investment Company Act )) of the Companys total assets consist of, and no more than 45% of the Companys net income after taxes is derived from, securities other than Government securities (as defined in Section 2(a)(16) of the Investment Company Act).
2.27 Subsidiaries . The Company does not own an interest in any corporation, partnership, limited liability company, joint venture, trust or other business entity.
2.28 Related Party Transactions . There are no business relationships or related party transactions involving the Company or any other person required to be described in the Prospectus that have not been described as required.
2.29 Board of Directors. The Board of Directors of the Company is comprised of the persons set forth on Schedule 2.29. The qualifications of the persons serving as Board members and the overall composition of the Board comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder. At least one member of the Board qualifies as a financial expert as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder.
2.30 Sarbanes-Oxley Compliance.
2.30.1 Disclosure Controls. The Company has developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15 or 15d-15 of the Exchange Act, and such controls and procedures are effective to ensure that all material information concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of the Companys Exchange Act filings and other public disclosure documents.
2.30.2 Compliance. The Company and each of its directors and its senior financial officers has consulted with the Companys independent auditors and outside counsel with respect to, and is familiar in all material respects with, the requirements of the Sarbanes-Oxley Act of 2002. The Company is in, or will be on the Effective Date, compliance with the provisions of the Sarbanes-Oxley Act of 2002 applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Companys future compliance (not later than the relevant statutory and regulatory deadlines therefore) with all the provisions of the Sarbanes-Oxley Act of 2002.
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3. Covenants of the Company . The Company covenants and agrees as follows:
3.1 Amendments to Registration Statement . The Company will deliver to the Representative, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement to which the Representative shall reasonably object in writing.
3.2 Federal Securities Laws .
3.2.1 Compliance . During the time when a Prospectus is required to be delivered under the Act, the Company will use its best efforts to comply with all requirements imposed upon it by the Act, the Regulations and the Exchange Act and by the regulations under the Exchange Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the Prospectus. If at any time when a Prospectus relating to the Public Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission, subject to Section 3.1 hereof, an appropriate amendment or supplement in accordance with Section 10 of the Act.
3.2.2 Filing of Final Prospectus . The Company will file the Prospectus (in form and substance satisfactory to the Representative) with the Commission pursuant to the requirements of Rule 424 of the Regulations.
3.2.3 Exchange Act Registration . For a period of five years from the Effective Date, or until such earlier time upon which the Company is required to be liquidated, the Company will use its best efforts to maintain the registration of the Units, Common Stock and Warrants under the provisions of the Exchange Act. The Company will not deregister the Units under the Exchange Act without the prior written consent of FBW.
3.3 Blue Sky Filing . The Company will endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Public Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably designate, provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would be subject to service of general process or to taxation as a foreign corporation doing business in such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may be required by the laws of such jurisdiction.
3.4 Delivery to Underwriters of Prospectuses . The Company will deliver to each of the several Underwriters, without charge, from time to time during the period when the Prospectus is required to be delivered under the Act or the Exchange Act such number of copies of each Preliminary Prospectus and the Prospectus as such Underwriters may reasonably request and, as soon as the Registration Statement or any amendment or supplement thereto becomes effective, deliver to you two original executed Registration Statements, including exhibits, and all post-effective amendments thereto and copies of all exhibits filed therewith or incorporated therein by reference and all original executed consents of certified experts.
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3.5 Effectiveness and Events Requiring Notice to the Representative . The Company will use its best efforts to cause the Registration Statement to remain effective and will notify the Representative immediately and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any event during the period described in Section 3.4 hereof that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
3.6 Review of Financial Statements . For a period of five years from the Effective Date, or until such earlier upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent certified public accountants to review (but not audit) the Companys financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Companys Form 10-Q quarterly report and the mailing of quarterly financial information to stockholders.
3.7 Transactions .
3.7.1 Business Combinations . The Company will not consummate a Business Combination with any entity which is affiliated with any Initial Stockholder unless the Company obtains an opinion from an independent investment banking firm that the Business Combination is fair to the Companys stockholders from a financial perspective.
3.7.2 Administrative Services . The Company has entered into an agreement (the Services Agreement ) with Integrated Global Networks, LLC (the Provider ), pursuant to which the Provider will make available to the Company general and administrative services including office space, utilities and secretarial support for an amount equal to $4,000.00 per month.
3.7.3 Affiliate Compensation . The Company shall not pay any Initial Stockholder or any of their affiliates any fees or compensation from the Company, for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided that the Initial Stockholders shall be entitled to reimbursement from the Company for their out-of-pocket expenses incurred in connection with seeking and consummating a Business Combination.
3.8 Secondary Market Trading and Standard & Poors . The Company will apply to be included in Standard and Poors Daily News and Corporation Records Corporate Descriptions for a period of five years from the consummation of a Business Combination. Promptly after the consummation of the Offering, the Company shall take such steps as may be necessary to obtain a secondary market trading exemption for the Companys securities in the State of California. The Company shall also take such other action as may be reasonably requested by the Representative to obtain a secondary market trading exemption in such other states as may be requested by the Representative.
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3.9 Intentionally omitted.
3.10 Financial Public Relations Firm . Promptly after the execution of a definitive agreement for a Business Combination, the Company shall retain a financial public relations firm reasonably acceptable to the Representative for a term to be agreed upon by the Company and the Representative.
3.11 Reports to the Representative .
3.11.1 Periodic Reports, Etc. For a period of five years from the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company will furnish to the Representative (Attn: Scott Bass, Vice President ) and its counsel copies of such financial statements and other periodic and special reports as the Company from time to time (if not readily available via the EDGAR service) furnishes generally to holders of any class of its securities, and promptly furnish to the Representative: (i) a copy of each periodic report the Company shall be required to file with the Commission; (ii) a copy of every press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) copies of each Form SR; (iv) a copy of each Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4 received or prepared by the Company; (v) five copies of each Registration Statement; (vi) a copy of monthly statements, if any, setting forth such information regarding the Companys results of operations and financial position (including balance sheet, profit and loss statements and data regarding outstanding purchase orders) as is regularly prepared by management of the Company; and (vii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request.
3.11.2 Transfer Sheets . For a period of five years following the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company shall retain a transfer and warrant agent acceptable to the Representative (the Transfer Agent ) and will furnish to the Underwriters at the Companys sole cost and expense such transfer sheets of the Companys securities as the Representative may request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. Continental Stock Transfer & Trust Company is acceptable to the Underwriters.
3.11.3 Secondary Market Trading Survey . Until such time as the Public Securities are listed or quoted, as the case may be, on the New York Stock Exchange, the American Stock Exchange or quoted on the Nasdaq National Market, or until such earlier time upon which the Company is required to be liquidated, the Company shall engage Gersten Savage LLP ( Gersten Savage ), for a one-time fee of $5,000 payable on the Closing Date, to deliver and update to the Underwriters on a timely basis, but in any event on the Effective Date and at the beginning of each fiscal quarter, a written report detailing those states in which the Public Securities may be traded in non-issuer transaction under the Blue Sky laws of the fifty States (the Secondary Market Trading Survey ).
3.11.4 Trading Reports . During such time as the Public Securities are listed on the American Stock Exchange (the AMEX), the Company shall provide to the Representative, at its expense, such reports published by the AMEX relating to price trading of the Public Securities, as the Representative shall reasonably request.
3.12 Disqualification of Form S-1 . For a period equal to seven years from the date hereof, the Company will not take any action or actions which may prevent or disqualify the Companys use of Form S-1 (or other appropriate form) for the registration of the Warrants and the Representatives Warrants under the Act.
3.13 Payment of Expenses .
3.13.1 General Expenses Related to the Offering . The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid at Closing Date,
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all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (i) the preparation, printing, filing and mailing (including the payment of postage with respect to such mailing) of the Registration Statement, the Preliminary and final Prospectuses and the printing and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in quantities as may be required by the Underwriters; (ii) the printing, engraving, issuance and delivery of the Units, the shares of Common Stock and the Warrants included in the Units and the Representatives Purchase Option, including any transfer or other taxes payable thereon; (iii) the qualification of the Public Securities under state or foreign securities or Blue Sky laws, including the costs of printing and mailing the Preliminary Blue Sky Memorandum, and all amendments and supplements thereto, fees and disbursements for the Representatives counsel retained for such purpose (such fees shall be capped at $35,000 in the aggregate, of which $10,000 has previously been paid), and a one-time fee of $5,000 payable to the Representatives counsel for the preparation of the Secondary Market Trading Survey; (iv) filing fees, costs and expenses (including disbursements for the Representatives counsel) incurred in registering the Offering with the NASD; (v) costs of placing tombstone advertisements in The Wall Street Journal , The New York Times and a third publication to be selected by the Representative; (vi) fees and disbursements of the transfer and warrant agent; (vii) the preparation, binding and delivery of transaction bibles, in form and style reasonably satisfactory to the Representative and transaction lucite cubes or similar commemorative items in a style and quantity as reasonably requested by the Representative; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 3.13.1. The Company also agrees that, if requested by the Representative, it will engage an investigative search firm of the Representatives choice to conduct an investigation of the principals of the Company as shall be mutually selected by the Representative and the Company. The Representative may deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the Representative and others. If the Company elects not to proceed with the Offering contemplated by this Agreement, then the Company shall reimburse the Underwriters in full for their out of pocket accountable expenses actually incurred by the Underwriters, including, without limitation, its legal fees (up to a maximum of $50,000) and disbursements.
3.13.2 Nonaccountable Expenses . The Company further agrees that, in addition to the expenses payable pursuant to Section 3.13.1, on each of the Closing Date, it will pay to the Representative a nonaccountable expense allowance equal to three percent (3.0%) of the gross proceeds received by the Company from the sale of the Firm Units by deduction from the proceeds of the Offering contemplated herein.
3.13.3 Expenses Related to Business Combination . The Company further agrees that, in the event the Representative assists the Company in trying to obtain approval of a proposed Business Combination, the Company agrees to reimburse the Representative for all out-of-pocket expenses, including, but not limited to, road-show and due diligence expenses.
3.14 Application of Net Proceeds . The Company will apply the net proceeds from the Offering received by it in a manner consistent with the application described under the caption Use Of Proceeds in the Prospectus.
3.15 Delivery of Earnings Statements to Security Holders . The Company will make generally available to its security holders as soon as practicable, but not later than the first day of the fifteenth full calendar month following the Effective Date, an earnings statement (which need not be certified by independent public or independent certified public accountants unless required by the Act or the Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Act) covering a period of at least twelve consecutive months beginning after the Effective Date.
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3.16 Notice to NASD . In the event any person or entity (regardless of any NASD affiliation or association), other than FBW, is engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, the Company will provide the following to the NASD prior to the consummation of the Business Combination: (i) complete details of all services and copies of agreements governing such services; and (ii) justification as to why the person or entity providing the merger and acquisition services should not be considered an underwriter and related person with respect to the Companys initial public offering, as such term is defined in Rule 2710 of the NASDs Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the proxy statement which the Company will file for purposes of soliciting stockholder approval for the Business Combination.
3.17 Stabilization . Except with respect to the agreement between Ram Mukunda and the Representative annexed as Exhibit 10.8 to the Registration Statement, neither the Company, nor, to its knowledge, any of its employees, directors or stockholders (without the consent of FBW) has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Units.
3.18 Internal Controls . The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with managements general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with managements general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
3.19 Accountants . For a period of five years from the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company shall retain GGK or other independent public accountants reasonably acceptable to FBW.
3.20 Form 8-K . The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the Audited Financial Statements ) reflecting the receipt by the Company of the proceeds of the initial public offering. As soon as the Audited Financial Statements become available, the Company shall immediately file a Current Report on Form 8-K with the Commission, which Report shall contain the Companys Audited Financial Statements.
3.21 NASD . The Company shall advise the NASD if it is aware that any 5% or greater stockholder of the Company becomes an affiliate or associated person of an NASD member participating in the distribution of the Companys Public Securities.
3.22 Corporate Proceedings . All corporate proceedings and other legal matters necessary to carry out the provisions of this Agreement and the transactions contemplated hereby shall have been done to the reasonable satisfaction to counsel for the Underwriters.
3.23 Investment Company . The Company shall cause the proceeds of the Offering to be held in the Trust Fund to be invested only in government securities with specific maturity dates as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will otherwise conduct its business in a manner so that it will not become subject to the Investment Company Act. Furthermore, once the Company consummates a Business Combination, it will be engaged in a business other than that of investing, reinvesting, owning, holding or trading securities.
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3.24 Investment Banking Engagement . Pursuant to the Advisory Agreement, the Company hereby engages FBW as its investment banker in connection with the Companys Business Combination to provide the Company with assistance in structuring the Business Combination and negotiating its terms.
3.24.1 Compensation . As compensation for the foregoing services, the Company will pay FBW a cash fee at the closing of a Business Combination equal to 2% of the aggregate consideration paid in such Business Combination.
3.24.2 Payment . All fees payable under Section 3.24.1 are due and payable to FBW, by certified check or wire transfer, at the closing of the Business Combination.
3.24.3 Business Combination Announcement . Within five business days following the consummation by the Company of a Business Combination, the Company shall cause an announcement ( Business Combination Announcement ) to be placed, at its cost, in The Wall Street Journal. Such announcement shall describe the consummation of the Business Combination and indicate that the Representative was the managing underwriter in the Offering and advisor in connection with the Business Combination. The Company shall supply the Representative with a draft of the Business Combination Announcement and provide the Representative with a reasonable opportunity to comment thereon. The Company will not place the Business Combination Announcement without the final approval of the Representative.
3.25 Colorado Trust Filing . In the event the Securities are registered in the State of Colorado, the Company will cause a Colorado Form ES to be filed with the Commissioner of the State of Colorado no less than 10 days prior to the distribution of the Trust Fund in connection with a Business Combination and will do all things necessary to comply with Section 11-51-302 and Rule 51-3.4 of the Colorado Securities Act.
3.26 No Fiduciary Duties . The Company acknowledges and agrees that the Underwriters responsibility to the Company is solely contractual in nature and that none of the Underwriters or their affiliates shall be acting in a fiduciary capacity, or otherwise owe any fiduciary duty to the company in connection with the Offering and the other transactions contemplated by this Agreement.
4. Conditions of Underwriters Obligations . The obligations of the several Underwriters to purchase and pay for the Units, as provided herein, shall be subject to the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of each of the Closing Date and the Option Closing Date, if any, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof and to the performance by the Company of its obligations hereunder and to the following conditions:
4.1 Regulatory Matters .
4.1.1 Effectiveness of Registration Statement . The Registration Statement shall have become effective not later than 5:00 P.M., Baltimore time, on the date of this Agreement or such later date and time as shall be consented to in writing by you, and, at each of the Closing Date and the Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for the purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Gersten Savage.
4.1.2 NASD Clearance . By the Effective Date, the Representative shall have received clearance from the NASD as to the amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3 No Blue Sky Stop Orders . No order suspending the sale of the Units in any jurisdiction designated by you pursuant to Section 3.3 hereof shall have been issued on either on the
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Closing Date or the Option Closing Date, and no proceedings for that purpose shall have been instituted or shall be contemplated.
4.2 Company Counsel Matters .
4.2.1 Effective Date Opinion of Counsel . On the Effective Date, the Representative shall have received the favorable opinion of Seyfarth Shaw LLP ( Seyfarth ), counsel to the Company, dated the Effective Date, addressed to the Representative and in form and substance satisfactory to the Representative to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its state of incorporation. The Company is duly qualified and licensed and in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character of its operations requires such qualification or licensing, except where the failure to qualify would not have a material adverse effect on the Company.
(ii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any stockholder of the Company arising by operation of law or under the Articles of Incorporation or Bylaws of the Company. The offers and sales of the outstanding Common Stock were at all relevant times either registered under the Act and the applicable state securities or Blue Sky Laws or exempt from such registration requirements. The authorized and outstanding capital stock of the Company is as set forth in the Prospectus.
(iii) The Securities have been duly authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company arising by operation of law or under the Articles of Incorporation or Bylaws of the Company. When issued, the Representatives Purchase Option, the Representatives Warrants and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number and type of securities of the Company called for thereby and such Warrants, the Representatives Purchase Option, and the Representatives Warrants, when issued, in each case, are enforceable against the Company in accordance with their respective terms, except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally; (b) as enforceability of any indemnification or contribution provision may be limited under the United States and state securities laws; and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The certificates representing the Securities are in due and proper form.
(iv) This Agreement, the Warrant Agreement, the Services Agreement, the Trust Agreement, Advisory Agreement and the Escrow Agreement have each been duly and validly authorized and, when executed and delivered by the Company, constitute, and the Representatives Purchase Option has been duly and validly authorized by the Company and, when executed and delivered, will constitute, the valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally; (b) as enforceability of any indemnification or contribution provisions may be limited under the United States and state securities laws; and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
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(v) The execution, delivery and performance of this Agreement, the Warrant Agreement, the Representatives Purchase Option, the Escrow Agreement, Advisory Agreement, the Trust Agreement and the Services Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated hereby and thereby, and compliance by the Company with the terms and provisions hereof and thereof, do not and will not, with or without the giving of notice or the lapse of time, or both, (a) to such counsels knowledge, conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of, any mortgage, deed of trust, note, indenture, loan, contract, commitment or other agreement or instrument filed as an exhibit to the Registration Statement, (b) result in any violation of the provisions of the Articles of Incorporation or the By-Laws of the Company, or (c) to such counsels knowledge, violate any statute or any judgment, order or decree, rule or regulation applicable to the Company of any court, domestic or foreign, or of any federal, state or other regulatory authority or other governmental body having jurisdiction over the Company, its properties or assets.
(vi) The Registration Statement, each Preliminary Prospectus and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) each as of their respective dates complied as to form in all material respects with the requirements of the Act and Regulations. The Securities conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. No United States or state statute or regulation required to be described in the Prospectus is not described as required (except as to the Blue Sky laws of the various states, as to which such counsel expresses no opinions), nor are any contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement not so described or filed as required (except for the contracts and documents described in the Underwriting section of the Registration Statement, as to which such counsel expresses no opinions).
(vii) Counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Underwriters at which the contents of the Registration Statement, the Prospectus and related matters were discussed and although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as otherwise set forth in this opinion), no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement or the Prospectus or any amendment or supplement thereto, as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to (i) any disclosures relating to the laws, rules, statutes or regulations of India or (ii) the financial statements and schedules and other financial and statistical data included in the Registration Statement or Prospectus).
(viii) The Registration Statement is effective under the Act. To such counsels knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act or applicable state securities laws.
(ix) To such counsels knowledge, there is no action, suit or proceeding before or by any court of governmental agency or body, domestic or foreign, now pending, or threatened against the Company that is required to be described in the Registration Statement.
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4.2.2 Closing Date and Option Closing Date Opinion of Counsel . On each of the Closing Date and the Option Closing Date, if any, the Representative shall have received the favorable opinion of Seyfarth, dated the Closing Date or the Option Closing Date, as the case may be set forth above, addressed to the Representative and in form and substance reasonably satisfactory to the Representative, confirming as of the Closing Date and, if applicable, the Option Closing Date, the statements made by Seyfarth in their respective opinions delivered on the Effective Date.
4.2.3 Reliance . In rendering such opinion, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdiction having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall be delivered to the Underwriters counsel if requested. The opinion of counsel for the Company and any opinion relied upon by such counsel for the Company shall include a statement to the effect that it may be relied upon by counsel for the Underwriters in its opinion delivered to the Underwriters.
4.3 Cold Comfort Letter . At the time this Agreement is executed, and at each of the Closing Date and the Option Closing Date, if any, you shall have received a letter, addressed to the Representative and in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to you and to Gersten Savage from GGK dated, respectively, as of the date of this Agreement and as of the Closing Date and the Option Closing Date, if any:
(i) Confirming that they are independent accountants with respect to the Company within the meaning of the Act and the applicable Regulations and that they have not, during the periods covered by the financial statements included in the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act;
(ii) Stating that in their opinion the financial statements of the Company included in the Registration Statement and Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the published Regulations thereunder;
(iii) Stating that, on the basis of a limited review which included a reading of the latest available unaudited interim financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the stockholders and board of directors and the various committees of the board of directors, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention which would lead them to believe that: (a) the unaudited financial statements of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations or are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements of the Company included in the Registration Statement; (b) at a date not later than five days prior to the Effective Date, Closing Date or Option Closing Date, as the case may be, there was any change in the capital stock or long-term debt of the Company, or any decrease in the stockholders equity of the Company as compared with amounts shown in the September 30, 2005 balance sheet included in the Registration Statement, other than as set forth in or contemplated by the Registration Statement, or, if there was any decrease, setting forth the amount of such decrease, and (c) during the period from September 30, 2005 to a specified date not later than five days prior to the Effective Date, Closing Date or Option
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Closing Date, as the case may be, there was any decrease in revenues, net earnings or net earnings per share of Common Stock, in each case as compared with the corresponding period in the preceding year and as compared with the corresponding period in the preceding quarter, other than as set forth in or contemplated by the Registration Statement, or, if there was any such decrease, setting forth the amount of such decrease;
(iv) Setting forth, at a date not later than five days prior to the Effective Date, the amount of liabilities of the Company (including a break-down of commercial papers and notes payable to banks);
(v) Stating that they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Prospectus in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement;
(vi) Stating that they have not during the immediately preceding five year period brought to the attention of the Companys management any reportable condition related to internal structure, design or operation as defined in the Statement on Auditing Standards No. 60 Communication of Internal Control Structure Related Matters Noted in an Audit, in the Companys internal controls; and
(vii) Statements as to such other matters incident to the transaction contemplated hereby as you may reasonably request.
4.4 Officers Certificates .
4.4.1 Officers Certificate . At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Chairman of the Board or the Chief Financial Officer and the Secretary or Assistant Secretary of the Company, dated the Closing Date or the Option Closing Date, as the case may be, respectively, to the effect that the Company has performed all covenants and complied with all conditions required by this Agreement to be performed or complied with by the Company prior to and as of the Closing Date, or the Option Closing Date, as the case may be, and that the conditions set forth in Section 4.5 hereof have been satisfied as of such date and that, as of Closing Date and the Option Closing Date, as the case may be, the representations and warranties of the Company set forth in Section 2 hereof are true and correct. In addition, the Representative will have received such other and further certificates of officers of the Company as the Representative may reasonably request.
4.4.2 Secretarys Certificate . At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date or the Option Date, as the case may be, respectively, certifying: (i) that the By-Laws and Articles of Incorporation of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions relating to the public offering contemplated by this Agreement are in full force and effect and have not been modified; (iii) all correspondence between the Company or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
4.5 No Material Changes . Prior to and on each of the Closing Date and the Option Closing Date, if any: (i) there shall have been no material adverse change or development involving a prospective
20
material adverse change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Initial Stockholder before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth in the Registration Statement and Prospectus; (iii) no stop order shall have been issued under the Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and shall conform in all material respects to the requirements of the Act and the Regulations, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
4.6 Delivery of Agreements .
4.6.1 Effective Date Deliveries . On the Effective Date, the Company shall have delivered to the Representative executed copies of the Escrow Agreement, the Trust Agreement, Advisory Agreement, the Warrant Agreement, the Services Agreement and all of the Insider Letters.
4.6.2 Closing Date Deliveries . On the Closing Date, the Company shall have delivered to the Representative executed copies of the Representatives Purchase Option.
4.7 Opinion of Counsel for the Underwriters . All proceedings taken in connection with the authorization, issuance or sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to you and to Gersten Savage and you shall have received from such counsel a favorable opinion, dated the Closing Date and the Option Closing Date, if any, with respect to such of these proceedings as you may reasonably require. On or prior to the Effective Date, the Closing Date and the Option Closing Date, as the case may be, counsel for the Underwriters shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 4.7, or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained.
4.8 Secondary Market Trading Survey . On the Closing Date, the Representative shall have received the Secondary Market Trading Survey from Gersten Savage.
4.9 Quotation on the American Stock Exchange . On the Closing Date, the Companys Units shall have been approved for listing on the American Stock Exchange.
5. Indemnification .
5.1 Indemnification of Underwriters .
5.1.1 General . Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each of the Underwriters, their respective directors, officers and employees and each person, if any, who controls any such Underwriter ( controlling person ) within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriters and the Company or between any of the Underwriters and any third party or otherwise) to which they or any of them may become subject under the Act, the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) any Preliminary Prospectus, the Registration
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Statement or the Prospectus (as from time to time each may be amended and supplemented); (ii) in any post-effective amendment or amendments or any new registration statement and prospectus in which is included securities of the Company issued or issuable upon exercise of the Representatives Purchase Option; or (iii) any application or other document or written communication (in this Section 5 collectively called application ) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Units under the securities laws thereof or filed with the Commission, any state securities commission or agency, the American Stock Exchange; or the omission or alleged omission therefrom of 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, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the Company with respect to an Underwriter by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus, the Registration Statement or Prospectus, or any amendment or supplement thereof, or in any application, as the case may be. With respect to any untrue statement or omission or alleged untrue statement or omission made in the Preliminary Prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of any Underwriter to the extent that any loss, liability, claim, damage or expense of such Underwriter results from the fact that a copy of the Prospectus was not given or sent to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of the Securities to such person as required by the Act and the Regulations, and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by the Company with its obligations under Section 3.4 hereof. The Company agrees promptly to notify the Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors or controlling persons in connection with the issue and sale of the Securities or in connection with the Registration Statement or Prospectus.
5.1.2 Procedure . If any action is brought against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant to Section 5.1.1, such Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter) and payment of actual expenses. Such Underwriter or controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action; (ii) the Company shall not have employed counsel to have charge of the defense of such action; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter and/or controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if the Underwriter or controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
5.2 Indemnification of the Company . Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, officers and employees and agents who control the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made in any Preliminary Prospectus, the Registration Statement or Prospectus or any amendment or supplement thereto or in any application, in reliance upon, and in strict conformity with, written information furnished to the Company with respect to such Underwriter by or on behalf of the Underwriter expressly for use in such Preliminary Prospectus, the Registration Statement or
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Prospectus or any amendment or supplement thereto or in any such application. In case any action shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement or Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2.
5.3 Contribution .
5.3.1 Contribution Rights . In order to provide for just and equitable contribution under the Act in any case in which (i) any person entitled to indemnification under this Section 5 makes claim for indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 5 provides for indemnification in such case, or (ii) contribution under the Act, the Exchange Act or otherwise may be required on the part of any such person in circumstances for which indemnification is provided under this Section 5, then, and in each such case, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and the Underwriters, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the initial offering price appearing thereon (to the extent that it shall have actually been paid from the Trust Fund to the Underwriters as of each date a contribution obligation is payable hereunder; otherwise, the Underwriters contribution shall be limited to the underwriting discount paid on the Closing Date) ( the Underwriters Contribution Percentage ) and the Company is responsible for the balance; provided, that, no person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation, provided, further , that upon consummation of a Business Combination and delivery of the Escrowed Fees to the Underwriters, the Underwriters Contribution Percentage shall be increased by the percentage that the Escrowed Fees bears to the initial offering price (the Final Contribution Percentage ) and the Final Contribution Percentage shall hereafter be applicable only to new claims for contribution by the Company. Notwithstanding the provisions of this Section 5.3.1, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Public Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay in respect of such losses, liabilities, claims, damages and expenses. For purposes of this Section, each director, officer and employee of an Underwriter or the Company, as applicable, and each person, if any, who controls an Underwriter or the Company, as applicable, within the meaning of Section 15 of the Act shall have the same rights to contribution as the Underwriters or the Company, as applicable.
5.3.2 Contribution Procedure . Within fifteen days after receipt by any party to this Agreement (or its representative) of notice of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (contributing party), notify the contributing party of the commencement thereof, but the omission to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or its representative of the commencement thereof within the aforesaid fifteen days, the contributing party will be entitled to participate therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution without the written consent of such contributing party. The contribution provisions contained in this Section are intended to supersede, to the extent permitted by law, any right to contribution under the Act, the Exchange Act or otherwise available. The Underwriters obligations to contribute pursuant to this Section 5.3 are several and not joint.
6. Default by an Underwriter .
6.1 Default Not Exceeding 10% of Firm Units or Option Units . If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm Units or the Option Units, if the
23
over-allotment option is exercised, hereunder, and if the number of the Firm Units or Option Units with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Units or Option Units that all Underwriters have agreed to purchase hereunder, then such Firm Units or Option Units to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2 Default Exceeding 10% of Firm Units or Option Units . In the event that such default relates to more than 10% of the Firm Units or Option Units, you may in your discretion arrange for yourself or for another party or parties to purchase such Firm Units or Option Units to which such default relates on the terms contained herein. If within one business day after such default relating to more than 10% of the Firm Units or Option Units you do not arrange for the purchase of such Firm Units or Option Units, then the Company shall be entitled to a further period of one business day within which to procure another party or parties satisfactory to you to purchase said Firm Units or Option Units on such terms. In the event that neither you nor the Company arrange for the purchase of the Firm Units or Option Units to which a default relates as provided in this Section 6, this Agreement will automatically be terminated without liability on the part of the Company (except as provided in Sections 3.15 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided , however , that if such default occurs with respect to the Option Units, this Agreement will not terminate as to the Firm Units; and provided further that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other several Underwriters and to the Company for damages occasioned by its default hereunder.
6.3 Postponement of Closing Date . In the event that the Firm Units or Option Units to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, you or the Company shall have the right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five business days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration Statement or the Prospectus that in the opinion of counsel for the Underwriter may thereby be made necessary. The term Underwriter as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such Securities.
7. Right to Appoint Representative . For a period of two years from the Effective Date, upon notice from FBW to the Company, FBW shall have the right to send a representative (who need not be the same individual from meeting to meeting) to observe each meeting of the Board of Directors of the Company; provided that such representative shall sign a Regulation FD compliant confidentiality agreement which is reasonably acceptable to FBW and its counsel in connection with such representatives attendance at meetings of the Board of Directors; and provided further that upon written notice to FBW, the Company may exclude the representative from meetings where, in the written opinion of counsel for the Company, the representatives presence would destroy the attorney-client privilege. The Company agrees to give FBW written notice of each such meeting and to provide FBW with an agenda and minutes of the meeting no later than it gives such notice and provides such items to the other directors, and reimburse the representative of FBW for its reasonable out-of-pocket expenses incurred in connection with its attendance at the meeting, including but not limited to, food, lodging and transportation.
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8. Additional Covenants .
8.1 Board Composition and Board Designations . For a period of five years from the Effective Date, the Company shall ensure that (i) the qualifications of the persons serving as board members and the overall composition of the board comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder and with the listing requirements of the Nasdaq or any other national securities exchange or national securities association (as the case may be in the event the Company seeks to have its Public Securities listed on another exchange or quoted on an automated quotation system), and (ii) if applicable, at least one member of the board of directors qualifies as a financial expert as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder.
8.2 Additional Shares or Options . The Company hereby agrees that until the Company consummates a Business Combination (as such term is defined in the Registration Statement), it shall not issue any shares of Common Stock or any options or other securities convertible into Common Stock, or any shares of Preferred Stock which participate in any manner in the Trust Fund or which vote as a class with the Common Stock on a Business Combination.
8.3 Trust Fund Waiver Letters . The Company hereby agrees that it will not commence its due diligence investigation of any operating business which the Company seeks to acquire ( Target Business ) or obtain the services of any vendor unless and until the Target Business or the vendor executes a waiver letter in the form attached hereto as Exhibit A and B , respectively. Furthermore, each officer and director of the Company shall execute a waiver letter in the form attached hereto as Exhibit C.
8.4 Insider Letters . The Company shall not take any action or omit to take any action which would cause a breach of any of the Insider Letters executed between each Initial Stockholder and FBW and will not allow any amendments to, or waivers of, such Insider Letters without the prior written consent of FBW.
8.5 Articles of Incorporation and By-Laws . The Company shall not take any action or omit to take any action that would cause the Company to be in breach or violation of its Articles of Incorporation or By-Laws.
8.6 Blue Sky Requirements . The Company shall provide counsel to the Representative with ten copies of all proxy information and all related material filed with the Commission in connection with a Business Combination concurrently with such filing with the Commission. In addition, the Company shall furnish any other state in which its initial public offering was registered, such information as may be requested by such state.
8.7 Intentionally Omitted .
8.8 Acquisition/Liquidation Procedure . The Company agrees: (i) that, prior to the consummation of any Business Combination, it will submit such transaction to the Companys stockholders for their approval ( Business Combination Vote ) even if the nature of the acquisition is such as would not ordinarily require stockholder approval under applicable state law; and (ii) that, in the event that the Company does not effect a Business Combination within 18 months from the consummation of this Offering (subject to extension for an additional six-month period, as described in the Prospectus), the Company will be liquidated and will distribute to all holders of IPO Shares (defined below) an aggregate sum equal to the Companys Liquidation Value. With respect to the Business Combination Vote, the Company shall cause all of the Initial Stockholders to vote the shares of Common Stock owned by them immediately prior to this Offering in accordance with the vote of the holders of a majority of the IPO Shares. At the time the Company seeks approval of any potential Business Combination, the Company will offer each of holders of the Companys Common Stock issued in this
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Offering (the IPO Shares ) the right to convert their IPO Shares at a per share price equal to the amount in the Trust Fund (inclusive of any interest income therein) on the record date (the Conversion Price ) for determination of stockholders entitled to vote upon the proposal to approve such Business Combination (the Record Date ) divided by the total number of IPO Shares. The Companys Liquidation Value shall mean the Companys book value, as determined by the Company and audited by GGK. In no event, however, will the Companys Liquidation Value be less than the Trust Fund, inclusive of any net interest income thereon. If holders of less than 20% in interest of the Companys IPO Shares vote against such approval of a Business Combination, the Company may, but will not be required to, proceed with such Business Combination. If the Company elects to so proceed, it will convert shares, based upon the Conversion Price, from those holders of IPO Shares who affirmatively requested such conversion and who voted against the Business Combination. Only holders of IPO Shares shall be entitled to receive liquidating distributions and the Company shall pay no liquidating distributions with respect to any other shares of capital stock of the Company. If holders of 20% or more in interest of the IPO Shares vote against approval of any potential Business Combination, the Company will not proceed with such Business Combination and will not convert such shares.
8.8 Rule 419 . The Company agrees that it will use its best efforts to prevent the Company from becoming subject to Rule 419 under the Act prior to the consummation of any Business Combination, including, but not limited to, using its best efforts to prevent any of the Companys outstanding securities from being deemed to be a penny stock as defined in Rule 3a-51-1 under the Exchange Act during such period.
8.9 Affiliated Transactions . The Company shall cause each of the Initial Stockholders to agree that, in order to minimize potential conflicts of interest which may arise from multiple affiliations, the Initial Stockholders will present to the Company for its consideration, prior to presentation to any other person or company, any suitable opportunity to acquire an operating business, until the earlier of the consummation by the Company of a Business Combination, the liquidation of the Company or until such time as the Initial Stockholders cease to be an officer or director of the Company, subject to any pre-existing fiduciary obligations the Initial Stockholders might have or new fiduciary obligations related to or affiliated with entities to whom the Initial Stockholders have pre-existing fiduciary obligations, including, but not limited to, fiduciary obligations to next generation, follow-on or successor entities to any entities to which the Initial Stockholders have pre-existing obligations.
8.10 Target Net Assets . The Company agrees that the initial Target Business that it acquires must have a fair market value equal to at least 80% of the Companys net assets at the time of such acquisition. The fair market value of such business must be determined by the Board of Directors of the Company based upon standards generally accepted by the financial community, such as actual and potential sales, earnings and cash flow and book value. If the Board of Directors of the Company is not able to independently determine that the target business has a fair market value of at least 80% of the Companys fair market value at the time of such acquisition, the Company will obtain an opinion from an unaffiliated, independent investment banking firm which is a member of the NASD with respect to the satisfaction of such criteria. The Company is not required to obtain an opinion from an investment banking firm as to the fair market value if the Companys Board of Directors independently determines that the Target Business does have sufficient fair market value.
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9. Representations and Agreements to Survive Delivery . Except as the context otherwise requires, all representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements at the Closing Dates and such representations, warranties and agreements of the Underwriters and Company, including the indemnity agreements contained in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter, the Company or any controlling person, and shall survive termination of this Agreement or the issuance and delivery of the Securities to the several Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect.
10. Effective Date of This Agreement and Termination Thereof .
10.1 Effective Date . This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission.
10.2 Termination . You shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in your opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange, the American Stock Exchange, the Boston Stock Exchange or on the NASD OTC Bulletin Board (or successor trading market) shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required on the NASD OTC Bulletin Board or by order of the Commission or any other government authority having jurisdiction, or (iii)if the United States shall have become involved in a new war or an increase in major hostilities, or (iv) if a banking moratorium has been declared by a New York State or federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in your opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if any of the Companys representations, warranties or covenants hereunder are breached, or (viii) if the Representative shall have become aware after the date hereof of such a material adverse change in the conditions or prospects of the Company, or such adverse material change in general market conditions as in the Representatives judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Units.
10.3 Expenses . In the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions thereof pursuant to the terms herein, the obligations of the Company to pay the out of pocket expenses related to the transactions contemplated herein shall be governed by Section 3.13.1 hereof.
10.4 Indemnification . Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way effected by, such election or termination or failure to carry out the terms of this Agreement or any part hereof.
11. Miscellaneous .
11.1 Notices . All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed, delivered or telecopied and confirmed and shall be deemed given when so delivered or telecopied and confirmed or if mailed, two days after such mailing
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If to the Representative:
Ferris, Baker Watts, Inc.
100 Light Street
Baltimore, Maryland 21202
Attn: Scott Bass, Vice-President
Copy to:
Gersten Savage LLP
600 Lexington Avenue, 9
th
Floor
New York, New York 10022
Attn: Arthur S. Marcus, Esq.
If to the Company:
India Globalization Capital, Inc.
c/o Integrated Global Networks, LLC
4336 Montgomery Avenue
Bethesda, Maryland 20814
Attn: Ram Mukunda, Chairman and Chief Executive Officer
Copy to:
Seyfarth Shaw LLP
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603-5803
Attn: Michael E. Blount, Esq.
11.2 Headings . The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
11.3 Amendment . This Agreement may only be amended by a written instrument executed by each of the parties hereto.
11.4 Entire Agreement . This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
11.5 Binding Effect . This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters, the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives 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 provisions herein contained.
11.6 Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland, without giving effect to conflict of laws. The Company hereby agrees that any action, proceeding or claim against it arising out of, relating in any way to this Agreement shall be brought and enforced in the courts of the State of Maryland of the United States of America for the District of Baltimore, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction
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and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 10 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor.
11.7 Execution in Counterparts . This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto.
11.8 Waiver, Etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
INDIA GLOBALIZATION CAPITAL, INC. |
||||
By: | ||||
Name: | Ram Mukunda | |||
Title: | Chairman and Chief Executive Officer | |||
Accepted on the date first
above written.
FERRIS, BAKER WATTS, INC.
By:
Name:
Scott Bass
Title:
Vice-President
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SCHEDULE I
INDIA GLOBALIZATION CAPITAL, INC.
10,000,000 Units
Number of Firm Units
Underwriter
to be Purchased
9,830,000
SCHEDULE 2.29
INDIA GLOBALIZATION CAPITAL, INC.
Board of Directors
Ram Mukunda
John Cherin
Dr. Ranga Krishna
Suhail Nathani
Sudhakar Shenoy
EXHIBIT A
India Globalization Capital, Inc.
Attn.: Ram Mukunda
c/o Integrated Global Networks, LLC
4336 Montgomery Avenue
Bethesda, Maryland 20814
Gentlemen:
Reference is made to the Final Prospectus of India Globalization Capital, Inc. ( IGC ), dated , 2005 (the Prospectus ). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that IGC has established the Trust Fund, initially in an amount of $ for the benefit of the Public Stockholders and that IGC may disburse monies from the Trust Fund only (i) to the Public Stockholders in the event of the redemption of their shares or the liquidation of IGC or (ii) to IGC after it consummates a Business Combination.
For and in consideration of IGC agreeing to evaluate the undersigned for purposes of consummating a Business Combination with it, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Fund (the Claim ) and hereby waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with IGC and will not seek recourse against the Trust Fund for any reason whatsoever.
EXHIBIT B
India Globalization Capital, Inc.
Attn.: Ram Mukunda
c/o Integrated Global Networks, LLC
4336 Montgomery Avenue
Bethesda, Maryland 20814
Gentlemen:
Reference is made to the Final Prospectus of India Globalization Capital, Inc. ( IGC ), dated , 2005 (the Prospectus ). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that IGC has established the Trust Fund, initially in an amount of $ for the benefit of the Public Stockholders and that IGC may disburse monies from the Trust Fund only: (i) to the Public Stockholders in the event of the redemption of their shares or the liquidation of IGC; or (ii) to IGC after it consummates a Business Combination.
For and in consideration of IGC engaging the services of the undersigned, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Fund (the Claim ) and hereby waives any Claim it may have in the future as a result of, or arising out of, any contracts or agreements with IGC and will not seek recourse against the Trust Fund for any reason whatsoever.
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Print Name of Lender | |
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Authorized Signature of Lender |
EXHIBIT C
India Globalization Capital, Inc.
Attn.: Ram Mukunda
c/o Integrated Global Networks, LLC
4336 Montgomery Avenue
Bethesda, Maryland 20814
Gentlemen:
The undersigned officer or director of India Globalization Capital, Inc. ( IGC ) hereby acknowledges that IGC has established the Trust Fund, initially in an amount of $___for the benefit of the Public Stockholders and that IGC may disburse monies from the Trust Fund only (i) to the Public Stockholders in the event of the redemption of their shares or the liquidation of IGC or (ii) to IGC after it consummates a Business Combination.
The undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Fund (the Claim ) and hereby waives any Claim it may have in the future as a result of, or arising out of, any contracts or agreements with IGC and will not seek recourse against the Trust Fund for any reason whatsoever.
Notwithstanding the foregoing, such waiver shall not apply to any shares acquired by the
undersigned in the public market after the initial public offering by
the Company of its securities.
Print Name of Officer/Director
Authorized Signature of Officer/Director
EXHIBIT 3.2
TABLE OF CONTENTS
ARTICLE I. OFFICES AND RECORDS
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1 | |||
Section 1.01. Registered Office
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1 | |||
Section 1.02. Other Offices
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1 | |||
Section 1.03. Books and Records
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1 | |||
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ARTICLE II. STOCKHOLDERS
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1 | |||
Section 2.01. Annual Meeting
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1 | |||
Section 2.02. Special Meeting
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1 | |||
Section 2.03. Place of Meeting
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2 | |||
Section 2.04. Notice of Meeting
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2 | |||
Section 2.05. Quorum and Adjournment; Voting
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2 | |||
Section 2.06. Proxies
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2 | |||
Section 2.07. Notice of Stockholder Business and Nominations
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3 | |||
Section 2.08. Procedure for Election of Directors; Required Vote; Voting
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6 | |||
Section 2.09. Inspectors of Elections; Opening and Closing the Polls
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6 | |||
Section 2.10. Action Without meeting
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7 | |||
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ARTICLE III. BOARD OF DIRECTORS
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7 | |||
Section 3.01. General Powers
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7 | |||
Section 3.02. Meetings Generally
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8 | |||
Section 3.03. Regular Meetings
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8 | |||
Section 3.04. Special Meetings
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8 | |||
Section 3.05. Notice
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8 | |||
Section 3.06. First Meeting
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8 | |||
Section 3.07. Action by Consent of Board of Directors
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8 | |||
Section 3.08. Conference Telephone Meetings
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8 | |||
Section 3.09. Quorum
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9 | |||
Section 3.10. Committees of the Board of Directors
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9 | |||
Section 3.11. Records
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9 | |||
Section 3.12. Compensation of Directors
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9 | |||
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ARTICLE IV. OFFICERS
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10 | |||
Section 4.01. Elected Officers
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10 | |||
Section 4.02. Election and Term of Office
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10 | |||
Section 4.03. Chairman of the Board and Chief Executive Officer
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10 | |||
Section 4.04. President
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10 | |||
Section 4.05. Vice Presidents
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11 | |||
Section 4.06. Treasurer
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11 | |||
Section 4.07. Secretary
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11 | |||
Section 4.08. Removal
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12 | |||
Section 4.09. Vacancies
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12 | |||
Section 4.10. Execution of Documents
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12 |
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ARTICLE V. STOCK CERTIFICATES AND TRANSFERS
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12 | |||
Section 5.01. Stock Certificates and Transfers
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12 | |||
Section 5.02. Lost, Stolen or Destroyed Certificates
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13 | |||
Section 5.03. Transfers of Stock
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13 | |||
Section 5.04. Registered Stockholders
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13 | |||
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ARTICLE VI. MISCELLANEOUS PROVISIONS
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13 | |||
Section 6.01. Fiscal Year
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13 | |||
Section 6.02. Dividends
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13 | |||
Section 6.03. Seal
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14 | |||
Section 6.04. Waiver of Notice
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14 | |||
Section 6.05. Audits
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14 | |||
Section 6.06. Resignations
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14 | |||
Section 6.07. Fixing Record Date
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14 | |||
Section 6.08. Loans
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15 | |||
Section 6.09. Deposits
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15 | |||
Section 6.10. Annual Statement
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15 | |||
Section 6.11. Form of Records
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15 | |||
Section 6.12. Control Share Acquisition Act
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15 | |||
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ARTICLE VII. CONTRACTS, PROXIES, ETC
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15 | |||
Section 7.01. Contracts
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15 | |||
Section 7.02. Proxies
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16 | |||
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ARTICLE VIII. AMENDMENTS
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16 | |||
Section 8.01. Amendments
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16 | |||
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ARTICLE IX. INDEMNIFICATION AND INSURANCE
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16 | |||
Section 9.01. Right to Indemnification
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16 | |||
Section 9.02. Right of Claimant to Bring Suit
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17 | |||
Section 9.03. Non-Exclusivity of Rights
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17 | |||
Section 9.04. Insurance
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18 | |||
Section 9.05. Severability
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18 |
ii
EXHIBIT 3.2
BYLAWS
OF
INDIA GLOBALIZATION CAPITAL, INC.
ARTICLE I.
OFFICES AND RECORDS
Section 1.01. Registered Office. The principal office of India Globalization Capital, Inc. (the Corporation) shall be located at such place as the Board of Directors of the Corporation may designate.
Section 1.02. Other Offices. The Corporation may have such other offices, either within or without the State of Maryland, as the board of directors of the Corporation (the Board of Directors, and each member thereof, a Director) may designate or as the business of the Corporation may from time to time require.
ARTICLE II.
STOCKHOLDERS
Section 2.01. Annual Meeting. The annual meeting of the stockholders of the Corporation for the election of Directors and for the transaction of such other business as may properly come before the meeting shall be held on such date and at such time as may be fixed by resolution of the Board of Directors.
Section 2.02. Special Meeting. Except as otherwise required by law special meetings of stockholders of the Corporation for any purpose or purposes may be called only (a) by the Chief Executive Officer of the Corporation, (b) by the Board of Directors pursuant to a resolution stating the purpose or purposes thereof approved by a majority of the total number of Directors which the Corporation would have if there were no vacancies or unfilled newly-created directorships (the Whole Board), or (c) except as otherwise provided by law, by the Secretary of the Corporation on the written request of stockholders entitled to cast at least a majority of all the votes entitled to be cast at such a special meeting. Such written request by the stockholders shall state the purpose or purposes of such special meeting and the matters proposed to be acted on thereat. The Secretary shall inform such requesting stockholders of the reasonably estimated cost of preparing and mailing such notice of the meeting, and, upon payment to the Corporation of such costs, the Secretary shall give notice stating the purpose or purposes of such special meeting to all stockholders entitled to notice of such meeting. No special meeting need be called upon the request of the stockholders entitled to cast less than a majority of all the votes entitled to be cast at such special meeting or to consider any matter which is substantially the same as a matter voted upon at any special meeting of the stockholders held during the preceding twelve (12) months. No business other than that stated in the Corporations notice of meeting under Section 2.04 shall be brought before or transacted at any special meeting.
Section 2.03. Place of Meeting. The Board of Directors or the Chairman of the Board, as the case may be, may designate the place, if any, of meeting for any annual meeting or for any
special meeting of the stockholders. In lieu of holding a stockholders meeting in a fixed place, the Board of Directors may make arrangements for stockholders to participate in a the meeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 2.04. Notice of Meeting. Notice, stating the place (if any), day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered by the Corporation not less than ten (10) calendar days nor more than ninety (90) calendar days before the date of the meeting, either personally, by mail, by electronic transmission or by other lawful means, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at such persons address as it appears on the stock transfer books of the Corporation. If sent by electronic transmission, such notice shall be deemed given when transmitted to the stockholder by electronic mail to any electronic mail address of the stockholder or by any electronic means. Such further notice shall be given as may be required by law. Meetings may be held without notice if all stockholders entitled to notice are present (except when stockholders entitled to notice attend the meeting for the express purpose of objecting, at the beginning of the meeting, because the meeting is not lawfully called or convened), or if notice is waived by those not present in accordance with Section 6.04. Any previously scheduled meeting of the stockholders may be postponed, and any special meeting of the stockholders may be canceled, by resolution of the Board of Directors upon public notice given prior to the date previously scheduled for such meeting of stockholders.
Section 2.05. Quorum and Adjournment; Voting. Except as otherwise provided by law or by the Articles, the holders of a majority of the voting power of all outstanding shares of the Corporation entitled to vote generally in the election of Directors (the Voting Stock), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority of the voting power of the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. The chairman of the meeting may adjourn the meeting from time to time, at his sole discretion, whether or not there is such a quorum. No notice of the time and place of adjourned meetings need be given except as required by law. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 2.06. Proxies. At all meetings of stockholders, a stockholder may vote by proxy in accordance with the General Corporation Law of the State of Maryland (the MGCL) or by such persons duly authorized attorney in fact. No proxy shall be voted or acted upon after eleven (11) months from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting of stockholders and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation.
2
Section 2.07. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (A) pursuant to the Corporations notice of meeting pursuant to Section 2.04, (B) by or at the direction of the Board of Directors or (C) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this Section 2.07, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.07.
(ii) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of paragraph (a)(i) of this Section 2.07, the stockholder must (W) have given timely notice thereof in writing to the Secretary of the Corporation; (X) the business must be a proper matter for stockholder action under Maryland law; (Y) if the stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Corporation with a Solicitation Notice (as that term is defined below), such stockholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Corporations voting shares required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Corporations voting shares reasonably believed by such stockholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder, and must, in either case, have included in such materials the Solicitation Notice; and (Z) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 2.07, the stockholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this Section.. To be timely, a stockholders notice shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) calendar day nor earlier than the close of business on the one hundred and twentieth (120th) calendar day prior to the first (1st) anniversary of the preceding years annual meeting; PROVIDED, HOWEVER, that in the event that the date of the annual meeting is more than thirty (30) calendar days before or more than sixty (60) calendar days after such anniversary date or in the case of the first annual meeting, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one hundred and twentieth (120th) calendar day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) calendar day prior to such annual meeting or the tenth (10th) calendar day following the calendar day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholders notice as described above. Such stockholders notice shall set forth (A) as to each person whom the stockholder proposes to nominate for election or reelection as a Director all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors in an
3
election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the Exchange Act) (including such persons written consent to being named in the proxy statement as a nominee and to serving as a Director if elected); (B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (1) the name and address of such stockholder, as they appear on the Corporations books, and of such beneficial owner, (2) the class (and, if applicable, series) and number of shares of stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (3) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, and (4) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporations outstanding capital stock required to approve or adopt the proposal or elect such nominee or nominees (an affirmative statement of such intent, a Solicitation Notice). The foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has notified the Corporation of his or her intention to present a proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act and such stockholders proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a Director.
(iii) Notwithstanding anything in the second sentence of paragraph (a)(ii) of this Section 2.07 to the contrary, in the event that the number of Directors to be elected to the Board of Directors at an annual meeting is increased and there is no public announcement by the Corporation naming all of the nominees for Director or specifying the size of the increased Board of Directors at least one hundred (100) calendar days prior to the first (1st) anniversary of the preceding years annual meeting, a stockholders notice required by this Section 2.07 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) calendar day following the day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporations notice of meeting under Section 2.04. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected (i) pursuant to the Corporations notice of meeting, (ii) by or at the direction of the Board of Directors or (iii) provided that the Board of Directors has determined that Directors shall be
4
elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in these Bylaws, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.07. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more Directors to the Board of Directors, any stockholder entitled to vote in such election of Directors may nominate, pursuant to clause (iii) of the immediately preceding sentence of this Section 2.07(b), a person or persons (as the case may be) for election to such position(s) as specified in the Corporations notice of meeting, if the stockholders notice required by paragraph (a)(ii) of this Section 2.07 shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business on the one hundred and twentieth (120th) calendar day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) calendar day prior to such special meeting or the tenth (10th) calendar day following the calendar day on which public announcement of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such special meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholders notice as described above.
(c) General.
(i) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.07 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of stockholders as (A) shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.07 and (B) shall have been determined to be a proper matter for stockholder action under Maryland law. Except as otherwise provided by law, the Articles or these Bylaws, the chairman of the meeting shall have the power and the duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.07 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholders nominee or proposal in compliance with such stockholders representation as required by clause (a)(ii)(C)(4) of this Section 2.07 and whether any proposal of business to be considered by the stockholders is a proper matter for stockholder action under Maryland law) and, if any proposed nomination or business is not in compliance with this Section 2.07, to declare that such defective proposal or nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 2.07, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(ii) For purposes of this Section 2.07, public announcement shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
5
(iii) Notwithstanding the foregoing provisions of this Section 2.07, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.07. Nothing in this Section 2.07 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals in the Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the holders of any series of preferred stock of the Corporation (Preferred Stock) to elect Directors under an applicable Preferred Stock Designation (as defined in the Articles).
Section 2.08. Voting. The affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on any matter properly before the meeting shall be the act of the stockholders, except as otherwise provided in the Articles of Incorporation (the Articles). Except as otherwise provided by the Articles, each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the Corporations capital stock having voting power held by such stockholder. Voting on any question or in any election may be by voice vote unless the chairman of the meeting shall demand that voting be by ballot.
Section 2.09. Action Without Meeting. Unless otherwise provided in the Articles, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, if a consent in writing, setting forth such action, is signed by all the stockholders entitled to vote on the subject matter thereof and any other stockholders entitled to notice of a meeting of stockholders but not to vote thereat have waived in writing any rights which they may have to dissent from such action, and such consent and waiver are filed with the records of stockholders meetings. Such consents and waivers shall be delivered to the Corporation by delivery to its registered office in the State of Maryland, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporations registered office shall be by hand or by certified or registered mail, return receipt requested or by electronic transmission. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless within sixty (60) days of the earliest dated consent delivered to the Corporation in the manner required by this Section 2.09, all required written consents and waivers are delivered to the Corporation as provided herein.
ARTICLE III.
BOARD OF DIRECTORS
Section 3.01. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authorities by these Bylaws expressly conferred upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Articles or by these Bylaws required to be exercised or done by the stockholders. The exact number of directors shall be fixed from time to time, within the limits specified herein or in
6
the Articles, by the Board of Directors. The Board of Directors may be divided into Classes as more fully described in the Charter.
Section 3.02. Meetings Generally. Meetings of the Board of Directors, regular or special, may be held at any place in or out of the State of Maryland as the Board of Directors may from time to time determine.
Section 3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this Bylaw in conjunction with the annual meeting of stockholders. The Board of Directors may, by resolution, provide the time and place for the holding of additional regular meetings without other notice than such resolution.
Section 3.04. Special Meetings. Special meetings of the Board of Directors shall be called at the request of the Chairman of the Board, the Chief Executive Officer or a majority of the Board of Directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix the place and time of the meetings.
Section 3.05. Notice. Notice of any special meeting of Directors shall be given to each Director at such persons business or residence in writing by hand delivery, first-class or overnight mail or courier service, facsimile transmission, electronic mail transmission, orally by telephone or any other lawful means. If mailed by first-class mail, such notice shall be deemed adequately delivered when deposited in the United States mail so addressed, with postage thereon prepaid, at least five (5) calendar days before such meeting. If by overnight mail or courier service, such notice shall be deemed adequately delivered when the telegram is delivered to the telegraph company or the notice is delivered to the overnight mail or courier service company at least twenty-four (24) hours before such meeting. If by facsimile transmission, such notice shall be deemed adequately delivered when the notice is transmitted at least twelve (12) hours before such meeting. If by electronic mail transmission notice shall be deemed to be given the earlier of actual receipt or within twelve (12) hours of delivery provided that the message is not returned as undeliverable within such twelve (12) hour period. If by telephone, by hand delivery or by other lawful means, the notice shall be given at least twelve (12) hours prior to the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting.
Section 3.06. Action by Consent of Board of Directors. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent in writing thereto in accordance with applicable law and such written consent is filed with the minutes of proceedings of the Board of Directors or committee.
Section 3.07. Conference Telephone Meetings. Members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
7
Section 3.08. Quorum. Subject to Article VIII of the Articles, a whole number of Directors equal to at least a majority of the Whole Board shall constitute a quorum for the transaction of business, but if at any meeting of the Board of Directors there shall be less than a quorum present, a majority of the Directors present may adjourn the meeting from time to time without further notice. The act of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the concurrence of a greater proportion is required for such action by statute, the Articles or these Bylaws.
Section 3.09. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if (i) the materials facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even through the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
Section 3.10. Committees of the Board of Directors.
(a) The Board of Directors may from time to time designate committees, which shall consist of one or more Directors. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee may, to the extent permitted by law, exercise such powers and shall have such responsibilities as shall be specified in the designating resolution. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Each committee shall keep written minutes of its proceedings and shall report such proceedings to the Board of Directors when required.
(b) A majority of any committee may determine its action and fix the time and place of its meetings, unless the Board of Directors shall otherwise provide. Notice of such meetings shall be given to each member of the committee in the manner provided for in Section 3.05. The Board of Directors shall have power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee. Nothing herein shall be deemed to prevent
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the Board of Directors from appointing one or more committees consisting in whole or in part of persons who are not Directors; PROVIDED, HOWEVER, that no such committee shall have or may exercise any authority of the Board of Directors.
Section 3.11. Records. The Board of Directors shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board of Directors or of any committee thereof and of the stockholders, appropriate stock books and registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation.
Section 3.12. Compensation of Directors. The Directors may, pursuant to action by the Board of Directors, be paid their expenses, if any, of attendance at each meeting of the Board of Directors and be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as Director. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may, pursuant to action by the Board of Directors, be allowed like compensation for attending committee meetings.
ARTICLE IV.
OFFICERS
Section 4.01. Elected Officers. The elected officers of the Corporation shall be a Chairman of the Board and Chief Executive Officer, a President, a Secretary, a Treasurer, and such other officers (including, without limitation, chief financial officer, chief operating officer, one or more vice presidents and general counsel) as the Board of Directors from time to time may deem proper. The Chairman of the Board and Chief Executive Officer shall be chosen from among the Directors. All officers elected by the Board of Directors shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article IV. Such officers shall also have such powers and duties as from time to time may be conferred by the Board of Directors or by any committee thereof. The Board of Directors or any committee thereof may from time to time elect, or the Chairman of the Board and Chief Executive Officer may appoint, such other officers (including one or more Vice Presidents, Controllers, Assistant Secretaries and Assistant Treasurers), as may be necessary or desirable for the conduct of the business of the Corporation. Such other officers and agents shall have such duties and shall hold their offices for such terms as shall be provided in these Bylaws or as may be prescribed by the Board of Directors or such committee or by the Chairman of the Board and Chief Executive Officer, as the case may be.
Section 4.02. Election and Term of Office. The elected officers of the Corporation shall be elected annually by the Board of Directors at the regular meeting of the Board of Directors held in conjunction with the annual meeting of the stockholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as convenient. Each officer shall hold office until such persons successor shall have been duly elected and shall have qualified or until such persons death or until he shall resign or be removed pursuant to Section 4.10.
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Section 4.03. Chairman of the Board and Chief Executive Officer. The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the stockholders and of the Board of Directors and shall be the chief executive officer of the Corporation. The Chairman of the Board and Chief Executive Officer shall be responsible for the general management of the affairs of the Corporation and shall perform all duties incidental to such persons office which may be required by law and all such other duties as are properly required of him by the Board of Directors or the stockholders. The Chairman of the Board and Chief Executive Officer shall make reports to the Board of Directors and the stockholders and shall see that all orders and resolutions of the Board of Directors and of any committee thereof are carried into effect. The Chairman of the Board and Chief Executive Officer shall be the President of the Corporation if no other person has been elected as the President. The Board of Directors also may elect a Vice-Chairman to act in the place of the Chairman of the Board and Chief Executive Officer upon his or her absence or inability to act.
Section 4.04. Chief Operating Officer: The Board of Directors may designate a chief operating officer. The chief operating officer shall have the responsibilities and duties as set forth by the Board of Directors or the chief executive officer.
Section 4.05. Chief Financial Officer: The Board of Directors may designate a chief financial officer. The chief financial officer shall have the responsibilities and duties as set forth by the Board of Directors or the chief executive officer.
Section 4.06. President. The President shall act in a general executive capacity and shall assist the Chairman of the Board and Chief Executive Officer in the administration and operation of the Corporations business and general supervision of its policies and affairs. The President shall also perform such other duties as may from time to time be prescribed by the Chairman of the Board and Chief Executive Officer. The President, if he or she is also a Director, shall, in the absence of or because of the inability to act of the Chairman of the Board and Chief Executive Officer and, if applicable, the absence of the Vice-Chairman, perform all duties of the Chairman of the Board and Chief Executive Officer and preside at all meetings of stockholders and of the Board of Directors.
Section 4.07. Vice Presidents. Each Senior Vice President and Executive Vice President and any Vice President shall have such powers and shall perform such duties as shall be assigned to such person by the Board of Directors or by the Chairman of the Board and Chief Executive Officer.
Section 4.08. Treasurer. The Treasurer shall exercise general supervision over the receipt, custody and disbursement of corporate funds and shall keep, or cause to be kept, full and accurate accounts of receipts and disbursements in books belonging to the Corporation. The Treasurer shall cause the funds of the Corporation to be deposited in such banks as may be authorized by the Board of Directors, or in such banks as may be designated as depositories in the manner provided by resolution of the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors or the Chairman of the Board and Chief Executive Officer, taking proper vouchers for such disbursements, and shall render to the Chairman of the Board and Chief Executive Officer and the Board of Directors, at
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regular meetings of the Board of Directors or when the Chairman of the Board and Chief Executive Officer or the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall have such further powers and duties and shall be subject to such directions as may be granted or imposed from time to time by the Board of Directors or the Chairman of the Board and Chief Executive Officer. The Board of Directors or the Chairman of the Board and Chief Executive Officer may designate one or more Assistant Treasurers who shall have such of the authority and perform such of the duties of the Treasurer as may be assigned to them by the Board of Directors or the Chairman of the Board and Chief Executive Officer. During the Treasurers absence or inability, the Treasurers authority and duties shall be possessed by such Assistant Treasurer(s) as the Board of Directors or the Chairman of the Board and Chief Executive Officer may designate.
Section 4.09. Secretary. The Secretary shall attend all meetings of the stockholders and all meetings of the Board of Directors and any committees thereof and shall keep or cause to be kept in one or more books provided for that purpose, the minutes of all meetings of the Board of Directors, the committees of the Board of Directors and the stockholders; shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law; shall be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal and shall see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed; shall have general charge of the stock transfer books of the Corporation; shall authenticate records of the Corporation when such authentication is required; and in general, shall perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to the Secretary by the Board of Directors or the Chairman of the Board and Chief Executive Officer. The Board of Directors or the Chairman of the Board and Chief Executive Officer may designate one or more Assistant Secretaries who shall have such of the authority and perform such of the duties of the Secretary as may be provided in these Bylaws or assigned to them by the Board of Directors or the Chairman of the Board and Chief Executive Officer. During the Secretarys absence or inability, the Secretarys authority and duties shall be possessed by such Assistant Secretary or Assistant Secretaries as the Board of Directors or the Chairman of the Board and Chief Executive Officer may designate.
Section 4.10. Removal. Any officer or agent of the Corporation may be removed by the affirmative vote of a majority of the Board of Directors whenever, in their judgment, the best interests of the Corporation would be served thereby. Any officer or agent appointed by the Chairman of the Board and Chief Executive Officer may be removed by him or her whenever, in such persons judgment, the best interests of the Corporation would be served thereby. No elected officer shall have any contractual rights against the Corporation for compensation by virtue of such election beyond the date of the election of such persons successor, such persons death, such persons resignation or such persons removal, whichever event shall first occur, except as otherwise provided in an employment contract or under an employee benefit plan.
Section 4.11. Vacancies. A newly created elected office and a vacancy in any elected office because of death, resignation, or removal may be filled by the Board of Directors for the
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unexpired portion of the term at any meeting of the Board of Directors. Any vacancy in an office appointed by the Chairman of the Board and Chief Executive Officer because of death, resignation, or removal may be filled by the Chairman of the Board and Chief Executive Officer.
Section 4.12. Execution of Documents. All deeds, mortgages, bonds, contracts, and other instruments made by the Corporation may be executed on behalf of the Corporation by any officer of the Corporation (unless such power is restricted by Board resolution or by law) or by any other person or persons designated from time to time by resolution of the Board of Directors. The Secretary, when necessary, shall attest the execution thereof.
ARTICLE V.
STOCK CERTIFICATES AND TRANSFERS
Section 5.01. Stock Certificates and Transfers. The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock in such form as the Corporation may from time to time prescribe. The shares of the stock of the Corporation shall be transferred on the books of the Corporation by the holder thereof in person or by such persons attorney, upon surrender for cancellation of certificates for at least the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. The certificates of stock shall be signed, countersigned and registered in such manner as the Board of Directors may by resolution prescribe or as may otherwise be permitted by applicable law, which resolution may permit all or any of the signatures on such certificates to be in facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue. All certificates for shares shall be consecutively numbered or otherwise identified. The Secretary shall enter into the stock transfer books of the Corporation the name and address of the person to whom the shares represented by any certificate are issued, including the number of shares and the date of issuance. Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Articles, these Bylaws, applicable securities laws or any agreement among any number of stockholders or among any number of stockholders and the Corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction. Notwithstanding the foregoing provisions regarding share certificates, the Corporation may provide that, subject to the rights of stockholders under applicable law, some or all of any or all classes or series of the Corporations common or any preferred shares may be uncertificated shares.
Section 5.02. Lost, Stolen or Destroyed Certificates. No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen, except on production of such evidence of such loss, destruction or theft and on delivery to the Corporation of a bond of indemnity in such amount, upon such terms and secured by such surety, as the Board of Directors or any financial officer may in its or such persons discretion require.
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Section 5.03. Transfers of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares endorsed or accompanied by proper evidence of succession, assignment or authority to transfer and in compliance with applicable law, the Corporation or its transfer agent shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the stock transfer books of the Corporation if, when the certificates are presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so.
Section 5.04. Registered Stockholders. The Corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares for all purposes, including all rights deriving from such shares, and shall not be bound to recognize any equitable or other claim to, or interest in, such shares, or rights deriving from such shares, on the part of any other person, unless and until such other person becomes the record holder of such shares, whether or not it shall have express or other notice thereof, except as otherwise provided by applicable law.
ARTICLE VI.
MISCELLANEOUS PROVISIONS
Section 6.01. Fiscal Year. The fiscal year of the Corporation shall begin on the first (1st) day of January and end on the last day of December of each year, unless otherwise determined by the Board of Directors.
Section 6.02. Dividends. The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Articles.
Section 6.03. Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words Corporate Seal, Maryland and such words and figures as the Board of Directors may approve and adopt. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 6.04. Waiver of Notice. Whenever any notice is required to be given under the provisions of applicable statutes or of the Articles or of these Bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting of stockholders, Directors or members of a committee of Directors shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, Directors or members of a committee of Directors need be specified in any written waiver of notice unless so required by the Articles of these Bylaws.
Section 6.05. Audits. The accounts, books and records of the Corporation shall be audited upon the conclusion of each fiscal year by an independent certified public accountant selected by
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the Board of Directors, and it shall be the duty of the Board of Directors to cause such audit to be done annually.
Section 6.06. Resignations. Any Director or any officer, whether elected or appointed, may resign at any time by giving written notice of such resignation to the Chairman of the Board and Chief Executive Officer, the President, or the Secretary, and such resignation shall be deemed to be effective as of the close of business on the date said notice is received by the Chairman of the Board and Chief Executive Officer, the President, or the Secretary, or at such later time as is specified therein. No formal action shall be required of the Board of Directors or the stockholders to make any such resignation effective.
Section 6.07. Fixing Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may, except as otherwise required by law, fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than ninety (90) days (and, in the case of a meeting of stockholders, not less than ten (10) days) before the date on which the action requiring the determination will be taken; PROVIDED, HOWEVER, that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day on which the notice of the meeting is mailed or the thirtieth (30th) day before the meeting, whichever is later, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto, so long as this date shall not be more than sixty (60) days after the adoption of the resolution.
Section 6.08. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board of Directors, the Chairman of the Board and Chief Executive Officer or the Treasurer shall direct in such banks, trust companies or other depositories as the Chairman of the Board and Chief Executive Officer or the Board of Directors may select, or as may be selected by any other officer or officers or agent or agents of the Corporation to whom power in that respect shall have been delegated by the Board of Directors. For the purpose of deposit and collection for the account of the Corporation, checks, drafts and other orders for the payment of money which are payable to the order of the Corporation may be endorsed, assigned and delivered by any officer of the Corporation.
Section 6.09. Annual Statement. The President or a Vice-President or the Treasurer shall prepare or cause to be prepared annually a full and correct statement of the affairs of the Corporation, including a balance sheet and a financial statement of operations for the preceding fiscal year, which shall be submitted at the annual meeting and shall be filed within twenty (20) days thereafter at the principal office of the Corporation.
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Section 6.10. Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other information storage device, provided that the records so kept can be converted into clearly legible written form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.
Section 6.11. Control Share Acquisition Act. Notwithstanding any other provision of the Articles or these Bylaws, Title 3, Subtitle 7 of the MGCL, or any successor statute, shall not apply to any acquisition by any person of shares of stock of the Corporation. This section may be repealed, in whole or in part, at any time, whether before or after an acquisition of control shares and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.
ARTICLE VII.
CONTRACTS, PROXIES, ETC.
Section 7.01. Contracts. Except as otherwise required by law, the Articles, a Preferred Stock Designation, or these Bylaws, any contracts or other instruments may be executed and delivered in the name and on the behalf of the Corporation by such officer or officers of the Corporation as the Board of Directors may from time to time direct. Such authority may be general or confined to specific instances as the Board of Directors may determine. The Chairman of the Board and Chief Executive Officer, the President or any Senior Vice President, Executive Vice President or Vice President may execute bonds, contracts, deeds, leases and other instruments to be made or executed or for or on behalf of the Corporation. Subject to any restrictions imposed by the Board of Directors or the Chairman of the Board and Chief Executive Officer, the President and or any Senior Vice President, Executive Vice President or Vice President of the Corporation may delegate contractual powers to others under such persons jurisdiction, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 7.02. Proxies. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairman of the Board and Chief Executive Officer, the President or any Senior Vice President, Executive Vice President or Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holders of stock or other securities in any other entity, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other entity, or to consent in accordance with applicable law, in the name of the Corporation as such holder, to any action by such other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such proxies, consents or other instruments as such person may deem necessary or proper in the premises.
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ARTICLE VIII.
AMENDMENTS
Section 8.01. Amendments. The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision of the Bylaws and to make new Bylaws.
ARTICLE IX.
INDEMNIFICATION AND INSURANCE
Section 9.01. Right to Indemnification. Subject to Article Tenth of the Articles, each person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a Proceeding), by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a Director or officer of the Corporation or, while a Director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, partner, member, agent or employee of another corporation, partnership, limited liability company, association, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a Director, officer, employee or agent or in any other capacity while serving as a Director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the MGCL, as the same exists or may hereafter be amended, against all expense, liability and loss (including attorneys fees, judgments, fines, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974, as in effect from time to time) reasonably incurred or suffered by such person in connection therewith if such person acted in good faith and in a manner such person reasonably believed to be in compliance with the standard of conduct set forth in Section 405 (or any successor provision) of the MGCL and such indemnification shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of such persons heirs, executors and administrators; PROVIDED, HOWEVER, that, except as provided in Section 9.02 hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. Upon the receipt of a written affirmation by the Director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification, the Corporation shall pay the expenses incurred in defending any such proceeding in advance of its final disposition with any advance payments to be paid by the Corporation within 20 calendar days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; PROVIDED, HOWEVER, that, if and to the extent the MGCL requires, the payment of such expenses incurred by a Director or officer in such persons capacity as a Director or officer in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Director or officer, to repay all amounts so advanced if it shall ultimately be determined that such Director or officer is not entitled to be indemnified under this Article IX or otherwise. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to have the Corporation pay the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent of the Corporation to the fullest extent of the provisions of
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this Article with respect to the indemnification and advancement of expenses of Directors and officers of the Corporation.
Section 9.02. Right of Claimant to Bring Suit. If a claim under Section 9.01 is not paid in full by the Corporation within 30 calendar days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the MGCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because the claimant has met the applicable standard of conduct set forth in the MGCL, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 9.03. Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article IX shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles, these Bylaws, agreement, vote of stockholders or disinterested Directors or otherwise. No repeal or modification of this Article shall in any way diminish or adversely affect the rights of any Director, officer, employee or agent of the Corporation hereunder in respect of any occurrence or matter arising prior to any such repeal or modification.
Section 9.04. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any person who is or was a Director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the MGCL.
Section 9.05. Severability. If any provision or provisions of this Article IX shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Article IX (including, without limitation, each portion of any Section of this Article IX containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Article IX (including, without limitation, each such portion of any paragraph of this Article IX containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
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EXHIBIT 10.4
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of , 2005 by and between India Globalization Capital, Inc. (the Company) and Continental Stock Transfer & Trust Company (Trustee).
WHEREAS, the Companys Registration Statement on Form S-1, No. 333-124942 (Registration Statement), for its initial public offering of securities (IPO) has been declared effective as of the date hereof by the Securities and Exchange Commission (Effective Date); and
WHEREAS, Ferris, Baker Watts, Incorporated (FBW) is acting as the representative of the underwriters in the IPO; and
WHEREAS, as described in the Companys Registration Statement, $57,210,600 of the gross proceeds of the IPO and the Placement as herein provided as herein provided ($65,615,250 if the underwriters over-allotment option is exercised in full) (the Base Deposit) will be delivered to the Trustee to be deposited and held in a trust account for the benefit of the Company, FBW and the holders of the Companys common stock, par value $.0001 per share, issued in the IPO (the amount to be delivered to the Trustee will be referred to herein as the Property; the stockholders for whose benefit the Trustee shall hold the Property will be referred to as the Public Stockholders, and the Public Stockholders, FBW and the Company will be referred to together as the Beneficiaries) and in the event the securities offered in the IPO are registered in Colorado, pursuant to Section 11-51-302(6) of the Colorado Revised Statutes (the CRS). A copy of Section 11-51-302(6) of the CRS is attached hereto and made a part hereof and
WHEREAS, a portion of the Property consists of $1,769,400 attributable to the underwriters non-accountable expenses allowance which FBW, on behalf of the underwriters, has agreed to deposit in the Trust Account (defined below); and
WHEREAS, the Company has agreed to issue securities in a private placement (the Placement); and
WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property
IT IS AGREED:
1. AGREEMENTS AND COVENANTS OF TRUSTEE. The Trustee hereby agrees and covenants to:
(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement, including, without limitation, the terms of Section 11-51-302(6) of the CRS, in a segregated trust account (Trust Account) established by the Trustee at a branch of United Bank, Inc. selected by the Trustee;
(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In a timely manner, upon the instruction of the Company, to invest and reinvest the Property in any Government Security. As used herein, Government Security means any Treasury Bill issued by the United States, having a maturity of one hundred and eighty days or less;
(d) Collect and receive, when due, all principal and income arising from the Property, which shall become part of the Property, as such term is used herein;
(e) Notify the Company and FBW of all communications received by it with respect to any Property requiring action by the Company;
(f) Supply any necessary information or documents as may be requested by the Company in connection with the Companys preparation of the tax returns for the Trust Account;
(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the written instructions of the Company to do so;
(h) Render to the Company and to FBW, and to such other person as the Company may instruct, monthly written statements of the activities of and amounts in the Trust Account reflecting all receipts and disbursements of the Trust Account;
(i) As of the date of the consummation of a business combination (Business Combination), commence liquidation of the Trust Account upon receipt of the Officers Certificate signed by the Chief Executive Officer and Chief Financial Officer and in accordance with the terms of a letter (Termination Letter), in a form substantially similar to that attached hereto as Exhibit A signed on behalf of the Company by its President, Chief Financial Officer or Chairman of the Board and Secretary or Assistant Secretary. The Trustee shall complete the liquidation of the Trust Account and distribute the Property in the Trust Account to the Beneficiaries as directed in the Termination Letter and the other documents referred to therein. The Trustee understands and agrees that disbursements from the Trust Account shall be made only pursuant to a duly executed Termination Letter, together with the other documents referenced herein, including, without limitation, an independently certified oath and report of inspector of election in respect of the shareholder vote in favor of the Business Combination. In all cases, the Trustee shall provide FBW with a copy of any Termination Letters, Officers Certificates and/or any other correspondence that it receives with respect to any proposed withdrawal from the Trust Account promptly after it receives same.
(j) As of the date 18 months from the date of this Agreement (the LOI Termination Date) (or 24 months from the date hereof in the event the Company has executed the Letter of Intent (defined below) prior to the LOI Termination Date but failed to consummate a Business Combination (Second Termination Date)), commence liquidation of the Trust Account. The Trustee, upon consultation with the Company and FBW, shall deliver a notice to Public Stockholders of record as of the LOI Termination Date or Second Termination Date, whichever the case may be, by U.S. mail or via the Depository Trust Company (DTC), within five days of the LOI Termination Date or Second Termination Date, to notify the Public Stockholders of such event and take such other actions as it may deem necessary to inform the Beneficiaries. The Trustee shall deliver to each Public Stockholder its ratable share of the Property against satisfactory evidence of delivery of the stock certificates by the Public Stockholders to the Company through DTC, its Deposit Withdraw Agent Commission (DWAC) system or as otherwise presented to the Trustee. Notwithstanding the foregoing, if the Trustee receives a bona fide, executed letter of intent or engagement letter (the Letter of Intent) for a Business Combination prior to the LOI Termination Date accompanied by an Officers Certificate as described in Section 2(e) hereof, then the Trustee shall forego or suspend any liquidation of the Trust Account until the earlier of a Business Combination or the Second Termination Date.
2. LIMITED DISTRIBUTIONS OF INCOME ON PROPERTY.
(a) Upon receipt by the Trustee of an Officers Certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company certifying as true, accurate and complete a copy of any tax return required to be filed on behalf of the Trust Account in respect of income earned on the Property held therein, the Trustee shall deliver to the Company for submission to the appropriate taxing authority a check made payable to the order of such taxing authority in the amount required to pay such taxes; provided, however , that in no event shall the aggregate amount of all checks issued to taxing authorities pursuant to this Section 2(a) exceed the income in respect of which such taxes are due and owing.
(b) Upon written request from the Company, which may be given not more than once in any calendar month, the Trustee shall distribute to the Company an amount equal to the income earned on the Base Deposit, net of taxes payable through the last day of the month immediately preceding the date of receipt of the Companys request; provided, however , that the maximum amount of distributions, net of taxes, that the Company may request and the Trustee shall distribute pursuant to this Section 2(b) shall be $1,855,000.
(c) Except as provided in Sections 2(a) and 2(b) above, no other distributions from the Trust Account shall be permitted except in accordance with Sections 1(i) and 1(j) hereof.
3. AGREEMENTS AND COVENANTS OF THE COMPANY.
(a) The Company hereby agrees and covenants to provide all instructions to the Trustee hereunder in writing, signed by the Companys President or Chairman of the Board and Chief Financial Officer. In addition, except with respect to its duties under section 1(i) and (j) above, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction which it in good faith believes to be given by any one of the persons authorized above to give written instructions, provided that the Company and/or FBW, whichever has the authority to issue the instructions, shall promptly confirm such instructions in writing;
(b) The Company hereby agrees and covenants to hold the Trustee harmless and indemnify the Trustee from and against, any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Trustee in connection with any action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any income earned from investment of the Property, except for expenses and losses resulting from the Trustees gross negligence or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this paragraph, it shall notify the Company in writing of such claim (hereinafter referred to as the Indemnified Claim). The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim, provided, that the Trustee shall obtain the consent of the Company with respect to the selection of counsel, which consent
2
shall not be unreasonably withheld. The Company may participate in such action with its own counsel;
(c) Pay the Trustee an initial acceptance fee of $1,000 and an annual fee of $3,000 (it being expressly understood that the Property shall not be used to pay such fee). The Company shall pay the Trustee the initial acceptance fee and first years fee at the consummation of the IPO and thereafter on the anniversary of the Effective Date. The Trustee shall refund to the Company the fee (on a pro rata basis) with respect to any period after the liquidation of the Trust Fund. The Company shall not be responsible for any other fees or charges of the Trustee except as may be provided in section 2(b) hereof (it being expressly understood that the Property shall not be used to make any payments to the Trustee under such section);
(d) In the event that the Company consummates a Business Combination and the Trust Account is liquidated in accordance with Section 1(i) hereof, the Trustee or another independent party designated by FBW shall act as the inspector of election to certify the results of the shareholder vote.
(e) The Officers Certificate referenced in Sections 1(i) and (j) hereof shall require the Chief Executive Officer and Chief Financial Officer of the Company to each certify the following (wherever applicable): (1) prior to the LOI Termination Date, the Company has entered into a bona fide Letter of Intent with a target business; and/or (2) prior to the LOI Termination Date, the Company has entered into a Business Combination with a target business, the terms of which are consistent with the requirements set forth in the Registration Statement; and/or (3) prior to the Second Termination Date, the Company has entered into a Business Combination with a target business, the terms of which are consistent with the requirements set forth in the Registration Statement; and (4) the Board of Directors (the Board) pursuant to the unanimous written consent of the Board has approved (where applicable): (i) the Business Combination; and/or (ii) Letter of Intent. A copy of such consent shall be attached as an exhibit to the Officers Certificate.
3. LIMITATIONS OF LIABILITY. The Trustee shall have no responsibility or liability to:
(a) Take any action with respect to the Property, other than as directed in Section 1 hereof and the Trustee shall have no liability to any party except for liability arising out of its own gross negligence or willful misconduct;
(b) Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received written instructions from the Company given as provided herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
(c) Change the investment of any Property, other than in compliance with Section 1(c) hereof;
(d) Refund any depreciation in principal of any Property;
(e) Assume that the authority of any person designated by the Company and FBW to give written instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company and FBW shall have delivered a written revocation of such authority to the Trustee;
(f) The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, except for its gross negligence or willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Trustee, in good faith, to be genuine and to be signed or presented by the proper person or persons. The Trustee need not investigate any fact or matter stated in the document. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
3
(g) Verify the correctness of the information set forth in the Registration Statement or to confirm or assure that any acquisition made by the Company or any other action taken by it is as contemplated by the Registration Statement, unless an officer of the Trustee has actual knowledge thereof, written notice of such event is sent to the Trustee or as otherwise required under Section 1(i) hereof; and
(h) Pay any taxes on behalf of the Trust Account (it being expressly understood that the Property shall not be used to pay any such taxes and that such taxes, if any, shall be paid by the Company from funds not held in the Trust Account).
5. TERMINATION. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee. At such time that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that, in the event that the Company does not locate a successor trustee within ninety days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever;
(b) At such time that the Trustee has completed the liquidation of the Trust Account in accordance with the provisions of Section 1(i) hereof, and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate except with respect to Section 2(b) hereof; or
(c) On such date after , 2007 when the Trustee deposits the Property with the United States District Court for the Southern District of New York in the event that, prior to such date, the Trustee has not received a Termination Letter from the Company pursuant to Sections 1(i) or (j) hereof.
6. MISCELLANEOUS.
(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. Upon receipt of written instructions, the Trustee will confirm such instructions with an Authorized Individual at an Authorized Telephone Number listed on the attached Exhibit C. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such information, or of any change in its authorized personnel. In executing funds transfers, the Trustee will rely upon account numbers or other identifying numbers of a beneficiary, beneficiarys bank or intermediary bank, rather than names. The Trustee shall not be liable for any loss, liability or expense resulting from any error in an account number or other identifying number, provided it has accurately transmitted the numbers provided.
4
(b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflict of laws. It may be executed in several counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. This Agreement or any provision hereof may only be changed, amended or modified by a writing signed by each of the parties hereto; provided, however, that no such change, amendment or modification may be made without the prior written consent of FBW. As to any claim, cross-claim or counterclaim in any way relating to this Agreement, each party waives the right to trial by jury.
(d) The parties hereto consent to the jurisdiction and venue of any state or federal court located in the State of New York for purposes of resolving any disputes hereunder.
(e) Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or by facsimile transmission:
if to the Trustee, to:
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven G. Nelson Fax No.: (212) 509-5150
if to the Company, to:
India Globalization Capital, Inc.
4336 Montgomery Avenue
Bethesda, Maryland 20814
Attn: Ram Mukunda, Chairman Fax No.: (240) 465-0273
in either case with a copy to:
Ferris, Baker Watts,
Incorporated
100 Light Street
Baltimore, MD 21202
Attn: Scott T. Bass, Vice President Fax No.: (410) 659-4632
(f) This Agreement may not be assigned by the Trustee without the prior consent of the Company.
(g) Each of the Trustee and the Company hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective
5
obligations as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance.
[REMAINDER OF PAGE DELIBERATELY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement as of the date first written above.
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, as Trustee
By:
Name:
Title:
INDIA GLOBALIZATION CAPITAL, INC.
By :
Name:
Chairman and Chief Executive Officer
7
EXHIBIT A
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson
Re: TRUST ACCOUNT NO. _____________ TERMINATION LETTER
Gentlemen:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between India Globalization Capital, Inc. (Company) and Continental Stock Transfer & Trust Company (Trustee), dated as of , 2005 (Trust Agreement), this is to advise you that the Company has entered into an agreement (Business Agreement) with (Target Business) to consummate a business combination with Target Business (Business Combination) on or about [INSERT DATE]. The Company shall notify you at least 48 hours in advance of the actual date of the consummation of the Business Combination (Consummation Date) and shall provide you with an Officers Certificate in accordance with Sections 1(i) and 2(d) of the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to commence liquidation of the Trust Account to the effect that, on the Consummation Date, all of funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Company and FBW shall direct in writing on the Consummation Date.
On the Consummation Date (i) counsel for the Company shall deliver to you written notification that (a) the Business Combination has been consummated, and (b) the provisions of Section 11-51-302(6) and Rule 51-3.4 of the CRS have been met, to the extent applicable; (ii) the Company shall deliver along with the oath and report of inspector of election certified by an independent inspector which may be the Trustee or as otherwise appointed by FBW (collectively, the Report); and (iii) the Company shall deliver to you written instructions with respect to the transfer of the funds held in the Trust Account (Instruction Letter) along with satisfactory evidence of delivery of the stock certificates from the Public Stockholders who elect to exercise their conversion rights through the Depository Trust Company, its Deposit Withdraw Agent Commission (DWAC) system or as otherwise presented to you (the Stock Certificates). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt of the counsels letter, the Report, evidence of delivery of the Stock Certificates, the Officers Certificate and the Instruction Letter (the Deliverables) in accordance with the terms of the Instruction Letter. Notwithstanding the foregoing, upon verification of receipt by you of the Deliverables, we hereby agree and acknowledge that the Property (as defined in the Trust Agreement) in the Trust Account shall be distributed in accordance with the terms of the Instruction Letter. In the event that certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the Company and FBW of the same and the Company and, if the amount set forth in clause (1) shall not have been paid in full, FBW, shall issue joint written instructions directing you as to whether such funds should remain in the Trust Account and distributed after the Consummation Date to the Company and/or FBW. Upon the distribution of all the funds in the Trust Account pursuant to the terms hereof, the Trust Agreement shall be terminated.
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In the event that the Business Combination is not consummated on the Consummation Date described in the notice thereof and we have not notified you on or before the original Consummation Date of a new Consummation Date, then the funds held in the Trust Account shall be reinvested as provided in the Trust Agreement on the business day immediately following the Consummation Date as set forth in the notice.
Very truly yours,
INDIA GLOBALIZATION CAPITAL, INC.
By: | ||||
Chief Executive Officer | ||||
By: | ||||
Chief Financial Officer |
9
EXHIBIT B
AUTHORIZED INDIVIDUAL(S)
FOR TELEPHONE CALL BACK |
AUTHORIZED
TELEPHONE NUMBER(S) |
||||
|
|||||
COMPANY:
|
|||||
|
|||||
India Globalization Capital, Inc.
|
|||||
4336 Montgomery Avenue
|
|||||
Bethesda, Maryland 20814
|
|||||
Attn: Ram Mukunda, Chairman
|
|||||
|
(301) 983-0998 | ||||
|
|||||
FBW:
|
|||||
|
|||||
Ferris Baker Watts, Incorporated
|
|||||
100 Light Street
|
|||||
Baltimore,
Maryland 21202
|
|||||
Attn.: Scott Bass, Vice-President
|
(410) 659-2565 | ||||
|
|||||
|
|||||
TRUSTEE:
|
|||||
|
|||||
|
|||||
Continental Stock Transfer
|
|||||
& Trust Company
|
|||||
17 Battery Place
|
|||||
New York, NY 10004
|
|||||
Attn: Steven Nelson
|
|||||
|
(212) 845-3200 | ||||
10
EXHIBIT 10.5
PROMISSORY NOTE
$100,000
Bethesda, Maryland
India Globalization Capital, Inc. (the Maker) promises to pay to the order of Ram Mukunda (the Payee) the principal sum of One Hundred Thousand Dollars and No Cents ($100,000.00) in lawful money of the United States of America, together with interest on the unpaid principal balance of this Note, on the terms and conditions described below.
1. PRINCIPAL. The principal balance of this Note shall be repayable on the earlier of (i) April 30, 2006 or (ii) the date on which Maker consummates an initial public offering of its securities.
2. INTEREST. The principal balance shall bear interest at the rate of four per cent per annum.
3. APPLICATION OF PAYMENTS. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorneys fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note.
4. EVENTS OF DEFAULT. The following shall constitute Events of Default:
(a) FAILURE TO MAKE REQUIRED PAYMENTS. Failure by Maker to pay the principal of or accrued interest on this Note within five (5) business days following the date when due.
(b) VOLUNTARY BANKRUPTCY, ETC. The commencement by Maker of a voluntary case under the Federal Bankruptcy Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing.
(c) INVOLUNTARY BANKRUPTCY, ETC. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of maker in an involuntary case under the Federal Bankruptcy Code, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.
5. REMEDIES.
(a) Upon the occurrence of an Event of Default specified in Section 4(a), Payee may, by written notice to Maker, declare this Note to be due and payable, whereupon the principal
amount of this Note, and all other amounts payable thereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 4(b) and 4(c), the unpaid principal balance of, and all other sums payable with regard to, this Note shall automatically and immediately become due and payable, in all cases without any action on the part of Payee.
6. WAIVERS. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.
7. UNCONDITIONAL LIABILITY. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.
8. NOTICES. Any notice called for hereunder shall be deemed properly given if (i) sent by certified mail, return receipt requested, (ii) personally delivered, (iii) dispatched by any form of private or governmental express mail or delivery service providing receipted delivery, (iv) sent by telefacsimile or (v) sent by e-mail, to the following addresses or to such other address as either party may designate by notice in accordance with this Section:
If to Maker:
India Globalization Capital, Inc.
4336 Montgomery Avenue
Bethesda, Maryland 20814
Attn.: John Cherin, Chief Financial Officer
If to Payee:
Ram Mukunda
4336 Montgomery Avenue
Bethesda, Maryland 20814
2
Notice shall be deemed given on the earlier of (i) actual receipt by the receiving party, (ii) the date shown on a telefacsimile transmission confirmation, (iii) the date on which an e-mail transmission was received by the receiving partys on-line access provider (iv) the date reflected on a signed delivery receipt, or (vi) two (2) Business Days following tender of delivery or dispatch by express mail or delivery service.
9. CONSTRUCTION. This Note shall be construed and enforced in accordance with the domestic, internal law, but not the law of conflict of laws, of the State of Maryland.
10. SEVERABILITY. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by its Chief Executive Officer the day and year first above written.
INDIA GLOBALIZATION CAPITAL, INC.
|
||||
By: |
/s/ John Cherin
|
|||
Chief Financial Officer
|
||||
3
Very truly yours,
|
||||
Ram Mukunda | ||||
EXHIBIT 10.6
STOCK AND UNIT ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of ___, 2005 (Agreement), by and among INDIA GLOBALIZATION CAPITAL, INC., a Maryland corporation (Company), RAM MUKUNDA, JOHN CHERIN, RANGA KRISHNA and those other persons named on Exhibit A hereto (collectively, the Initial Stockholders) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (Escrow Agent).
WHEREAS, the Company has entered into an Underwriting Agreement, dated ___, 2005 (Underwriting Agreement), with Ferris, Baker Watts, Inc. (FBW) acting as representative of the several underwriters (collectively, the Underwriters), pursuant to which, among other matters, the Underwriters have agreed to purchase 9,830,000 units (Units) of the Company. Each Unit consists of one share of the Companys Common Stock, par value $.0001 per share, and two Warrants, each Warrant to purchase one share of Common Stock, all as more fully described in the Companys final Prospectus, dated ___, 2006 (Prospectus) comprising part of the Companys Registration Statement on Form S-1 (File No. -___) under the Securities Act of 1933, as amended (Registration Statement), declared effective on ___, 2006 (Effective Date).
WHEREAS, the Initial Stockholders have agreed as a condition of the sale of the Units to deposit their shares of Common Stock of the Company, as set forth opposite their respective names in Exhibit A attached hereto (collectively Escrow Shares), in escrow as hereinafter provided.
WHEREAS, the Company and the Initial Stockholders desire that the Escrow Agent accept the Escrow Shares, in escrow, to be held and disbursed as hereinafter provided.
WHEREAS, pursuant to the terms of a Unit Purchase Agreement (UPA), Ram Mukunda (Mukunda) has agreed to purchase 166,667 Units (the IPO Units) in the initial public offering by the Company of its securities (the IPO) and deposit the IPO Units in escrow as hereinafter provided.
IT IS AGREED:
1. APPOINTMENT OF ESCROW AGENT. The Company and the Initial Stockholders hereby appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject to such terms. Capitalized terms used in this Agreement but not defined herein will have the meanings set forth in the Registration Statement.
2. DEPOSIT OF ESCROW SHARES INTO ESCROW.
2.1 ESCROW SHARES. On or before the Effective Date, each of the Initial Stockholders shall deliver to the Escrow Agent certificates representing his respective Escrow Shares, to be held and disbursed subject to the terms and conditions of this Agreement. Each Initial Stockholder acknowledges that the certificate representing his Escrow Shares is legended to reflect the deposit of such Escrow Shares under this Agreement.
2.2 IPO UNITS. On the consummation of the IPO Mukunda shall deliver to the Escrow Agent certificates representing the IPO Units to be held and disbursed subject to the terms and conditions of this Agreement.
3. DISBURSEMENT OF THE ESCROW SHARES.
3.1 The Escrow Agent shall hold the Escrow Shares until the one hundred eightieth day following the consummation by the Company of a Business Combination (Escrow Period), on which date it shall, upon written instructions from each Initial Stockholder, disburse each of the Initial Stockholders Escrow Shares to such Initial Stockholder; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 3.3 hereof that the Company is
being liquidated at any time during the Escrow Period, then the Escrow Agent shall promptly destroy the certificates representing the Escrow Shares; provided further, however, that if, after the Company consummates a Business Combination (as such term is defined in the Registration Statement), it (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the stockholders of such entity having the right to exchange their shares of Common Stock for cash, securities or other property, then the Escrow Agent will, upon receipt of a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, in form reasonably acceptable to the Escrow Agent, that such transaction is then being consummated, and release the Escrow Shares to the Initial Stockholders upon consummation of the transaction so that they can similarly participate. The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of the Escrow Shares and the IPO Units in accordance with this Section 3.
3.2 The Escrow Agent shall hold the IPO Units until the third business day following receipt of the certificate referred to in Section 3.3 hereof, on which date it shall, upon written instructions from Mukunda and/or his designee(s), as appropriate, disburse the IPO Units to Mukunda or his designee(s); provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 3.4 hereof that the Company is being liquidated at any time prior to disbursement of the IPO Units, then the Escrow Agent shall promptly destroy the certificates representing the IPO Units; provided further, however, that if, after the Company consummates a Business Combination (as such term is defined in the Registration Statement), it (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the stockholders of such entity having the right to exchange their shares of Common Stock for cash, securities or other property, then the Escrow Agent will, upon receipt of a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, in form reasonably acceptable to the Escrow Agent, that such transaction is then being consummated, release the IPO Units to Mukunda or his designee(s) upon consummation of the transaction so that he or they can similarly participate.
3.3 CONSUMMATION OF A BUSINESS COMBINATION. Within thirty (30) days after the consummation by the Company of a Business Combination, the Company shall deliver to the Escrow Agent a certificate executed by the Chief Executive Officer or the Chief Financial Officer, in form reasonably acceptable to the Escrow Agent, stating that a Business Combination has been consummated, the date of the Business Combination shall have been consummated and the date that is one hundred eighty days after the date of consummation of a Business Combination.
3.4 LIQUIDATION OF THE COMPANY. The Company shall give the Escrow Agent written notification of the liquidation and dissolution of the Company in the event that the Company fails to consummate a Business Combination within the time period(s) specified in the Prospectus.
4. RIGHTS OF INITIAL STOCKHOLDERS IN ESCROW SHARES.
4.1 VOTING RIGHTS AS A STOCKHOLDER. Subject to the terms of the Insider Letter described in Section 4.4 hereof and except as herein provided, the Initial Stockholders shall retain all of their rights as stockholders of the Company during the Escrow Period, including, without limitation, the right to vote such shares.
4.2 DIVIDENDS AND OTHER DISTRIBUTIONS IN RESPECT OF THE ESCROW SHARES. During the Escrow Period, all dividends payable in cash with respect to the Escrow Shares and the IPO Units shall be paid to the Initial Stockholders, but all dividends payable in stock or other non-cash property (Non-Cash Dividends) shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As used herein, the term Escrow Shares and IPO Units shall be deemed to include the Non-Cash Dividends distributed thereon, if any.
4.3 RESTRICTIONS ON TRANSFER. During the Escrow Period, no sale, transfer or other disposition may be made of any or all of the Escrow Shares or the IPO Units except (i) by gift to a member of Initial Stockholders immediate family or to a trust, the beneficiary of which is an Initial Stockholder or a member of an Initial Stockholders immediate family, (ii) by virtue of the laws of descent and distribution upon death of any Initial Stockholder, or (iii) pursuant to a qualified domestic relations order; provided, however, that such permissive transfers may be implemented only upon the respective transferees written agreement to be bound by the terms and conditions
2
of this Agreement and of the Insider Letter signed by the Initial Stockholder transferring the Escrow Shares or the IPO Units. During the Escrow Period, the Initial Stockholders shall not pledge or grant a security interest in the Escrow Shares or the IPO Units or grant a security interest in their rights under this Agreement.
4.4 INSIDER LETTERS. Each of the Initial Stockholders has executed a letter agreement with FBW and the Company, dated as indicated on Exhibit A hereto, and which is filed as an exhibit to the Registration Statement (Insider Letter), respecting the rights and obligations of such Initial Stockholder in certain events, including but not limited to the liquidation of the Company.
5. CONCERNING THE ESCROW AGENT.
5.1 GOOD FAITH RELIANCE. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
5.2 INDEMNIFICATION. The Escrow Agent shall be indemnified and held harmless by the Company from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Shares and the IPO Units held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Shares and the IPO Units or it may deposit the Escrow Shares and the IPO Units with the clerk of any appropriate court or it may retain the Escrow Shares and the IPO Units pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Shares and the IPO Units are to be disbursed and delivered. The provisions of this Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or 5.6 below.
5.3 COMPENSATION. The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder. The Escrow Agent shall also be entitled to reimbursement from the Company for all expenses paid or incurred by it in the administration
3
of its duties hereunder including, but not limited to, all counsel, advisors and agents fees and disbursements and all taxes or other governmental charges.
5.4 FURTHER ASSURANCES. From time to time on and after the date hereof, the Company and the Initial Stockholders shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
5.5 RESIGNATION. The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, the Escrow Shares and IPO Units held hereunder. If no new escrow agent is so appointed within the 60 day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Shares and IPO Units with any court it reasonably deems appropriate.
5.6 DISCHARGE OF ESCROW AGENT. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in writing at any time by the other parties hereto, jointly, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.
5.7 LIABILITY. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of the State of New York.
6.2 THIRD PARTY BENEFICIARIES. Each of the Initial Stockholders hereby acknowledges that the Underwriters are third party beneficiaries of this Agreement and this Agreement may not be modified or changed without the prior written consent of FBW.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed by the party to the charged.
6.4 HEADINGS. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation thereof.
6.5 BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives, successors and assigns.
4
6.6 NOTICES. Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally or be mailed, certified or registered mail, or by private national courier service, return receipt requested, postage prepaid, and shall be deemed given when so delivered personally or, if mailed, two days after the date of mailing, as follows:
If to the Company, to:
India Globalization Capital, Inc.
4336 Montgomery Avenue
Bethesda, Maryland 20814
Attn: Chairman
If to a Stockholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company 17 Battery Place
New York, New York 10004 Attn: Chairman
A copy of any notice sent hereunder shall be sent to:
Seyfarth Shaw LLP
815 Connecticut Avenue, N.W., Suite 500
Washington, DC 20006-4004
Attn: Stanley S. Jutkowitz, Esq.
Ferris, Baker Watts, Inc.
100 Light Street
Baltimore, Maryland 21202
Attn: Richard K. Prins, Senior Vice President
and:
Gersten Savage, LLP
600 Lexington Avenue
New York, NY 10022
Attn: Jay M. Kaplowitz, Esq.
The parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner provided herein for giving notice.
5
WITNESS the execution of this Agreement as of the date first above written.
INDIA GLOBALIZATION CAPITAL, INC.
By:
INITIAL STOCKHOLDERS:
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:
Name:
Title:
6
EXHIBIT A
Name and Address of | Number | Stock | Date of | |||||
Initial Stockholder | of Shares | Certificate Number | Insider Letter | |||||
Ram Mukunda
|
2,500,000 | May 5, 2005 | ||||||
John Cherin
|
537,500 | May 5, 2005 | ||||||
Ranga Krishna
|
600,000 | May 5, 2005 | ||||||
Parveen
Mukunda
|
850,000 | |||||||
Sudhakar
Shenoy
|
87,500 | |||||||
Suhail
Nathani
|
87,500 |
Shakti
Sinha
|
25,000 | |||||
Dr.
Prabuddha Ganguli
|
25,000 | |||||||
Dr. Anil K. Gupta
|
50,000 | |||||||
Larry
Pressler
|
25,000 | |||||||
P.G.
Kakodkar
|
12,500 |
* With the exception of
37,500 shares issued to Mr. Cherin, 100,000 shares issued to Dr.
Krishna, 12,500 shares issued to each of Messers. Shenoy and
Nathani, and the shares issued to Senator Pressler and
Mr. Kakodkar the share numbers reflect the
original number of shares issued to the stockholder, without giving
effect to a 1-for-2 reverse stock split effected September 29, 2005. Giving effect to the reverse stock split, the number of shares deposited by each of the Initial
Stockholders is as follows:
Number
Initial Stockholder
of Shares
1,250,000
287,500
350,000
425,000
50,000
50,000
12,500
12,500
25,000
25,000
12,500
7
2
3
4
5
INDIA GLOBALIZATION CAPITAL, INC.
|
||||
By: | ||||
Ram Mukunda, President and Chief Executive
Officer |
||||
FERRIS, BAKER WATTS INCORPORATED
|
||||
By: | ||||
PURCHASERS:
|
||||
6
|
||||
|
||||
7
8
|
EXHIBIT 10.10 |
|
|
February 14, 2006 |
Mr. Ram Mukunda
India Globalization Capital, Inc.
4336 Montgomery Ave.
Bethesda, MD 20814
Dear Ram,
This letter will confirm and set forth the terms and conditions of engagement of Ferris, Baker Watts, Incorporated (FBW) and SG Americas Securities, LLC (SG) (collectively, the Advisors), by India Globalization Capital, Inc. (the Company) as its financial advisors in connection with the proposed purchase by the Company of the stock or assets of a target company or companies (the Target), by way of merger, purchase of, or exchange for all or a portion of the stock of the Target, or otherwise (the Business Combination). The Advisors services in connection with the Business Combination are hereinafter referred to as the Engagement. The decision to complete the Business Combination shall be at the sole discretion of the Company.
The Advisors shall perform financial advisory services for the Company, including, without limitation and for purpose of illustration, assisting the Company in determining an appropriate acquisition strategy and tactics, evaluating the consideration that may be offered to the Target and assisting the Company in the negotiation of the financial terms and conditions of the Business Combination. Such services shall also include conducting due diligence of the target of a prospective Business Combination. In performing their services hereunder, the Advisors may rely entirely, without independent investigation, on publicly available information and such other information as may be furnished to the Advisors by the Company or the Target.
The Company agrees to furnish to the Advisors all information concerning the Company and the proposed Business Combination which the Advisors and you reasonably deem appropriate, and to use its best efforts to cause the Target to furnish to the Advisors all information concerning the Target and to provide to the Advisors reasonable access to the Companys officers, directors, employees, accountants, and counsel. Except as otherwise agreed to by the Company, or required by law, all information which is not publicly available will be kept confidential by the Advisors. The Company hereby represents and warrants, to the best of its knowledge, that all information furnished to the Advisors by the Company concerning the Company (excluding forward-looking information, which will be prepared using such reasonable assumptions as the Company considers appropriate) shall be complete and correct in all material respects when furnished and shall not contain any untrue statements of a material fact. In rendering its services hereunder, the Advisors will be using and relying primarily on publicly available information or other information furnished by the Company and has not and does not assume any responsibility for independent verification of such information or any independent appraisal or valuation of assets. Further, in evaluating other companies, the Advisors will be using information contained in public reports and information supplied by the Company, and have not and do not assume any responsibility for independent verification of such information or independent appraisal or valuation of assets.
To enable the Advisors to render these services in a professional manner, the Company agrees that the Advisors shall have no responsibility to the Company, the Board of Directors, the Target or any other parties for the accuracy,
Mr. Ram Mukunda
India Globalization Capital, Inc. |
February 14, 2006
Page 2 of 4 |
completeness or legal sufficiency of any financial statements, memoranda or other documentation prepared by or on behalf of the Company or for verification of any of the information contained therein. Appropriate officials of the Company, as the Company may designate, will be responsible for reviewing any memoranda or other documentation prior to its use to determine that, to the best of their knowledge, it does not contain any material misstatements or omissions. The Company recognizes that the Advisors ability to successfully perform the services contemplated herein is to a great extent dependent upon the Companys timely cooperation.
For the Advisors services in connection with the Engagement, the Company shall pay to FBW, who shall pay a portion to SG, pursuant to their agreed-upon allocation, an aggregate fee equal to 2.0% of the Aggregate Consideration (as defined below) paid in connection with the Business Combination (the Business Combination Fee). The Business Combination Fee shall be capped at $1,500,000 and shall constitute the Advisors compensation for the Engagement and shall be paid upon consummation of the Business Combination; provided that, to the extent that a portion of the Aggregate Consideration constitutes earnouts or is subject to other contingencies, the Business Combination Fee with respect to such Aggregate Consideration shall only be due and payable when such Aggregate Consideration is paid.
Aggregate Consideration, used herein, means all payments of any type to or for the benefit of the Target, its shareholders, creditors, or employees (including assumption or acquisition or refinancing of debt obligations of the Target or related entities as well as any earnout provisions) in the Business Combination whether in cash or by delivery of notes or other securities or property of any type, including amounts paid into escrow. For purposes of determining Aggregate Consideration, each share of Company common stock issued or issuable in connection with the Business Combination shall be valued at the 10 day volume-weighted average price of the Companys common stock, as computed by Bloomberg, beginning on the fifth trading day immediately preceding the day on which the Business Combination is consummated.
In addition to the foregoing fee, the Company will reimburse each of the Advisors promptly, on a monthly basis, for all of the reasonable out-of-pocket expenses incurred by the Advisors in connection with the Engagement, whether or not the Business Combination is consummated; provided, however, that such expenses for the Advisors in aggregate shall not exceed $25,000 without the prior consent of the Company.
Whether or not the Business Combination is effected, the Company will indemnify and hold harmless each of FBW and SG and each of its officers, directors, employees, attorneys, consultants, agents, servants, parents, affiliates, successors and assigns, jointly and severally (hereinafter collectively Indemnitees), from and against any and all losses, claims, damages, liabilities, awards, costs and expenses, including but not limited to reasonable attorneys fees (hereinafter collectively Claim or Claims) to which Indemnitees may become subject by virtue of, in connection with, resulting from, or arising out of the Engagement. Without limitation but in illustration of the foregoing, Claims shall include reasonable legal and other expenses, including the cost of any investigation and preparation incurred by Indemnitees in connection with any pending or threatened Claim by any person or entity, whether or not it results in a loss, damages, liability or award. Indemnitees shall be indemnified and held harmless by the Company for any and all Claims whether they arise under contract; foreign, federal, state or local law or ordinance; common law; or otherwise.
Notwithstanding anything above to the contrary: (1) the Advisors shall promptly notify the Company after any Claim is asserted, and the Company shall have the right, upon notification to FBW or SG, as applicable, within 10 days thereafter, to assume the defense of such Claim or action and to appoint counsel reasonably satisfactory to Indemnitees to conduct such defense, provided that (A) all expenses and costs related thereto shall be borne by the Company; and (B) the Indemnitees shall have the right to retain separate counsel, but the fees and expenses of such counsel shall be at the expense of the Indemnified Parties, unless (i) the Company has failed to assume the defense and employ counsel as required above, or (ii) the named parties to any such action (including any impleaded parties) include both (A) the Indemnitees and (B) the Company, and the Indemnitees shall have reasonably determined that the defenses available to them are not available to the Company and/or may not be consistent with the best interests of the Company or the Indemnitees (in which case the Company shall not have the right to assume the defense of such action on behalf of the Indemnitees) and (2) the Company shall not be liable to any Indemnitee for any Claim to the extent that a court having jurisdiction shall have determined by a final, non-appealable, judgment, that such Claim resulted from the gross negligence or
Mr. Ram Mukunda
India Globalization Capital, Inc. |
February 14, 2006
Page 3 of 4 |
willful misconduct of such Indemnitee.
The foregoing commitment of the Company regarding indemnification will survive any termination of the authorization provided by this letter.
You agree to promptly notify FBW and SG of any assertion against FBW, SG, the Company, or any other person of any Claim or the commencement of any action or proceeding relating to the services comprising the Engagement.
The term of the Engagement will commence on the date of the Companys acceptance of this letter and will expire 24 months after the effective date of the Companys public offering or upon consummation of a Business Combination(s) with Aggregate Consideration equal to at least 80% of the Companys net assets. The Engagement may be terminated (except as provided above with respect to reimbursement of expenses and indemnification) by either of SG or FBW at any time with or without cause, upon 30 days written notice to the Company. In the event that only one of the Advisors terminates its Engagement with the Company, such termination shall not affect the Engagement between the Company and the remaining Advisor.
The Company agrees that FBW and SG have the right to place advertisements in financial and other newspapers and journals at the Advisors own expense describing the Advisors services to the Company in connection with the Engagement if the Business Combination is consummated, provided that the Advisors will submit a copy of any such advertisement to the Company for its prior approval, which approval shall not be unreasonably withheld or delayed.
The Advisors engagement by the Company is for the limited purposes set forth in this letter, and the rights and obligations of each of FBW, SG and the Company are defined by this letter agreement. Each of FBW, SG and the Company agrees that none of the other parties has any fiduciary duty to it or its stockholders, officers and directors as a result of the engagement described in this letter agreement.
The Advisors will assume that all financial forecasts have been reasonably prepared and reflect the best then currently available estimates and judgments of the Companys or the potential targets management as to the expected future financial performance of the Company or any potential target.
The Company acknowledges that all advice given by the Advisors in connection with this Engagement is for the benefit and use of the Company in considering the Business Combination. The Company agrees that no such advice shall be used for any other purpose or be disclosed, reproduced, disseminated, quoted or referred to at any time, in any manner or for any purpose, nor shall any public references to the Advisors be made by or on behalf of the Company, in each case without the Advisors prior written consent, which consent shall not be unreasonably withheld.
Each Advisor may delegate the performance of any of the above services to an affiliate or subsidiary of such Advisor. It is expressly understood and agreed that neither Advisor is undertaking to provide any advice relating to legal, regulatory, accounting or tax matters. In furtherance thereof, the Company acknowledges and agrees that (a) it and its affiliates have relied and will continue to rely on the advice of its own legal, regulatory, tax and accounting advisors for all matters relating to the Business Combination, and all other matters and (b) neither it, nor any of its affiliates has received, or has relied upon, the advice of either Advisor or any of its affiliates regarding legal, regulatory, tax or accounting matters. In addition, neither Advisor shall be liable for the acts or omissions of the other Advisor in connection with this agreement or the Engagement.
The Company acknowledges and agrees that the Advisors have been retained to act as financial advisors to the Company, and not as advisors to or agents of any other person, and that the Companys engagement of the Advisors is not intended to confer rights upon any person not a party to this Agreement (including shareholders, employees or creditors of the Company) as against either Advisor or its affiliates, or their respective directors, officers, employees or agents.
Mr. Ram Mukunda
India Globalization Capital, Inc. |
February 14, 2006
Page 4 of 4 |
Each Advisor shall act as an independent contractor under this Agreement, and any duties arising out of its engagement shall be owed solely to the Company. It is understood that the responsibility of Advisors to the Company is solely contractual in nature and the Advisors do not owe the Company, or any other party, any fiduciary duty as a result of this Agreement. Each party hereto waives any right to trial by jury it may have in any way resulting from or arising out of this agreement or the Engagement.
This agreement shall be governed by and construed in accordance with the laws of the State of New York.
If the foregoing correctly sets forth our agreement, we would appreciate your signing both enclosed copies of this letter in the space provided below and returning one of them to us. In the event that we do not receive a copy of this letter evidencing your acceptance and agreement within 20 calendar days after the date hereof, the terms of this letter shall be null and void and of no further force and effect.
Very truly yours,
FERRIS, BAKER WATTS, INCORPORATED |
||||
By: | ||||
Scott T. Bass | ||||
Vice President | ||||
SG AMERICAS SECURITIES, LLC |
||||
By: | ||||
Alan Z.J. Zinser | ||||
Director | ||||
Accepted and Agreed:
INDIA GLOBALIZATION CAPITAL, INCORPORATED
|
||||
By:
|
|
|||
|
Authorized Officer | |||
|
||||
Date: |
|
2
INDIA GLOBALIZATION CAPITAL, INC.
|
||||
Date: September 26, 2005 | By: | /s/ John Cherin | ||
Chief Financial Officer | ||||
3
Very truly yours,
|
||||
Ranga Krishna | ||||
2
INDIA GLOBALIZATION CAPITAL, INC.
|
||||
Date: ______________, 200_ | By: | |||
Chief Financial Officer | ||||
3
EXHIBIT 23.1
India Globalization Capital, Inc.
New York, New York