AMENDMENT TO UNIT PURCHASE OPTIONS
Exhibit
4.2
AMENDMENT
TO
This
AMENDMENT TO UNIT PURCHASE OPTIONS
(this ‘‘Amendment’’), dated January 4, 2008, is made by and between India
Globalization Capital, Inc. (the ‘‘Company’’) and Xxxxxx, Xxxxx Xxxxx,
Incorporated (‘‘FBW’’).
WHEREAS,
the Company initially issued
that certain Unit Purchase Option, dated March 8, 2006 (the ‘‘Initial Unit
Purchase Option’’) to FBW in connection with the Company’s initial public
offering; and
WHEREAS,
in January 2007 FBW tendered
the Initial Unit Purchase Option to the Company for reissuance to a number
of
holders (the “Holders”), and the Company issued those certain Unit Purchase
Options listed on Schedule
1(the “Replacement Unit
Purchase Options”) to the holders set forth on Schedule 1; and
WHEREAS,
the Replacement Unit Purchase
Options provide that they may be amended by the Company and FBW without
the approval of the Holders thereof in order to cure any ambiguity, to correct
or supplement any provision contained therein that may be defective or
inconsistent with any other provisions therein, or to make any other provisions
in regard to matters or questions arising hereunder that the Company and
FBW may
deem necessary or desirable and that the Company and FBW deem shall not
adversely affect the interest of the Holders; and.
WHEREAS,
the parties hereto have agreed
that the Replacement Unit Purchase Options be amended as set forth herein
to
clarify the understanding between the parties with respect to the terms of
the
Initial Unit Purchase Option effective as of the date of their issuance and
have
determined that such amendments shall not adversely affect the interest
of the Holders.
NOW,
THEREFORE, in consideration of the
premises and of the agreements contained herein, the parties hereto hereby
agree
as follows:
1. The
Replacement Unit Purchase Options are hereby amended by adding the following
new
Section 5.1.3 to such Unit Purchase Options:
”5.1.3.
No
Cash Settlement
Option. The Company is only required to use its best efforts to cause a
registration statement covering issuance of the Registrable Securities to
be
declared effective, and once effective, only to use its best efforts to maintain
the effectiveness of the registration statement. The Company will not be
obligated to deliver any Registrable Securities, and there are no contractual
penalties for failure to deliver any such securities, if a registration
statement is not effective at the time of exercise. The failure or inability
of
the Company to maintain the effectiveness of such registration statement
shall
not in any way prevent the expiration of this Purchase Option on the Expiration
Date. Additionally, in no event is the Company obligated to settle any Purchase
Option, in whole or in part, for cash.”
2. Section
5.3 of
the Replacement Unit Purchase Options is hereby deleted in its entirety and
replaced by the following:
“ 5.3
Damages.
Intentionally
omitted.”
3. Upon
the due
execution and delivery of this Amendment by the parties hereto, on and after
the
date hereof each reference in the Replacement Unit Purchase Options to this
‘‘Purchase Option’’, ‘‘hereunder’’, ‘‘hereof’’, ‘‘herein’’ or words of like
import referring to the Replacement Unit Purchase Options shall mean and
be a
reference to the Replacement Unit Purchase Options, as amended hereby. Except
as
specifically amended above, the Replacement Unit Purchase Options shall remain
in full force and effect and is hereby ratified and confirmed.
4. This
Amendment
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.
[SIGNATURE
PAGE FOLLOWS]
By: /s/
Ram Mukunda___________________
Name:
Ram Xxxxxxx
Title: President
XXXXXX,
XXXXX XXXXX, INCORPORATED
By: /s/
Xxxxx X. Bass_______________
Name:
Xxxxx X. Xxxx
Title:
Vice President
Schedule
1
|
Holder
|
UPO
Units
|
|
Xxxxxx,
Xxxxx Xxxxx, Incorporated
|
151,250
|
|
Xxxxxxx
X. Xxxxx
|
71,250
|
|
Xxxxx
X. Xxxx
|
22,500
|
|
Xxxxxxxxxxx
X. Xxxxxxx
|
15,000
|
|
Xxxxx
X. Ascari
|
15,000
|
|
Xxxxxxxx
Curhan Ford & Co.
|
35,000
|
|
JDA
Investment Management LLC
|
15,000
|
|
Ladenburg
Xxxxxxxx & Co. Inc.
|
175,000
|
