ATM Agency Agreement
On September 22, 2018, India Globalization Capital, Inc. (the “Company”) entered into an At-the-Market Offering Agreement (the “Agreement”) with The Benchmark Company, LLC (“Benchmark”) and ViewTrade Securities, Inc. (“ViewTrade” and together with Benchmark, the “Managers”) pursuant to which the Managers will act as the Company’s sales agents with respect to the issuance and sale of up to $15,000,000 of the Company’s shares of common stock, par value $0.0001 per share (the “Shares”), from time to time in an at-the-market public offering (the “Offering”).
Sales of the Shares, if any, through the Managers, will be made directly on the NYSE American, on any other existing trading market for our common stock or to or through a market maker. The Managers may also sell the Shares in privately negotiated transactions, provided that the Managers receive our prior written approval for any sales in privately negotiated transactions. The Company will pay its Managers a commission equal to 5.0% of the gross proceeds from the sale of the Shares pursuant to the Sales Agreement.
The Company or the Managers may suspend the offering of Shares upon notice and subject to other conditions. The Agreement will automatically terminate on May 10, 2021, or sooner if terminated as permitted therein.
The Agreement contains representations, warranties and covenants that are customary for transactions of this type. In addition, the Company has agreed to indemnify the Managers against certain liabilities, including liabilities under the Securities Act of 1933, as amended.
A copy of the Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K (“this Report”) and is incorporated herein by reference. The description of the Agreement is qualified in its entirety by reference to Exhibit 10.1 to this Report.
The Shares will be sold and issued pursuant the Company’s shelf registration statement on Form S-3 (File No. 333-224082), which was declared effective by the Securities and Exchange Commission on May 11, 2018 (the “Registration Statement”), and a related prospectus supplement.
This Report, including the exhibits filed herewith, is not an offer to sell or the solicitation of an offer to buy the Shares or any other securities of the Company, nor shall there by any offer, solicitation or sale of the Shares or any other securities of the Company in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
A copy of the opinion of Olshan Frome Wolosky LLP relating to the legality of the Shares is filed as Exhibit 5.1 to this Report and is filed with reference to, and is hereby incorporated by reference into, the Registration Statement.