exv10w4



 






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 Company’s Registration Statement on Form S-1, No.                  (“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, Inc. (“FBW”) is acting as the representative of the underwriters in
the IPO; and



WHEREAS, as described in the Company’s Registration Statement, $107,498,000 of the gross proceeds
of the IPO as herein provided ($124,418,000 if the underwriters over-allotment option is exercised
in full) will be delivered to the Trustee to be deposited and held in a trust account for the
benefit of the Company and the holders of the Company’s 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 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, 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
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 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 Company’s 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 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; and



(i)      Commence liquidation of the Trust Account only after receipt of and only in accordance with the
terms of a letter (“Termination Letter”), in a form substantially similar to that attached hereto
as either Exhibit A or Exhibit B, signed on behalf of the Company by its President or Chairman of
the Board and Secretary or Assistant Secretary, and complete the liquidation of the Trust Account
and distribute the Property in the Trust Account only 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. In all cases, the Trustee shall provide FBW with a copy of
any Termination Letters and/or any other correspondence that it receives with respect to any
proposed withdrawal from the Trust Account promptly after it receives same.



2.        AGREEMENTS AND COVENANTS OF THE COMPANY. The Company hereby agrees and covenants to:



(a)      Give all instructions to the Trustee hereunder in writing, signed by the Company’s President or
Chairman of the Board. In addition, except with respect to its duties under paragraph 1(i) 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 shall promptly
confirm such instructions in writing;



(b)      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 Trustee’s 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




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shall not be unreasonably withheld. The Company may participate in such action with its own
counsel; and



(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 year’s 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 paragraph 2(b) hereof (it being expressly understood that the Property shall not be
used to make any payments to the Trustee under such paragraph).



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 paragraph 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 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 paragraph 1(c);



(d)      Refund any depreciation in principal of any Property;



(e)      Assume that the authority of any person designated by the Company to give instructions
hereunder shall not be continuing unless provided otherwise in such designation, or unless the
Company 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 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;




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(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; 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).



4.        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 paragraph 1(i) hereof, and distributed the Property in accordance with the
provisions of the Termination Letter, this Agreement shall terminate except with respect to
Paragraph 2(b); 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 paragraph 1(i).



5.        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, beneficiary’s 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.




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(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.: (301)


in either case with a copy to:




Ferris, Baker Watts, Inc.

7601 Lewinsville Road, Suite 450

McLean, VA 22102

Attn: Scott T. Bass, Vice President Fax No.:


(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




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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]




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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



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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 paragraph 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”).



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 shall direct 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 and (ii) the Company shall
deliver to you written instructions with respect to the transfer of the funds held in the Trust
Account (“Instruction Letter”). You are hereby directed and authorized to transfer the funds held
in the Trust Account immediately upon your receipt of the counsel’s letter and the Instruction
Letter, 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 of the same and the Company shall direct you as to whether such funds should
remain in the Trust Account and distributed after the Consummation Date to the Company. 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:                                                                           





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EXHIBIT B




[LETTERHEAD OF COMPANY]




[INSERT DATE]




Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn:



Re: TRUST ACCOUNT NO. _________________ TERMINATION LETTER



Gentlemen:



Pursuant to paragraph 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 been unable to
effect a Business Combination with a Target Company within the time frame specified in the
Company’s prospectus relating to its IPO.



In accordance with the terms of the Trust Agreement, we hereby (a) certify to you that the
provisions of Section 11-51-302(6) and Rule 51-3.4 of the CRS have been met, to the extent
applicable, and (b) authorize you, to commence liquidation of the Trust Account. You will notify
the Company and United Bank (“Designated Paying Agent”) in writing as to when all of the funds in
the Trust Account will be available for immediate transfer (“Transfer Date”). The Designated Paying
Agent shall thereafter notify you as to the account or accounts of the Designated Paying Agent that
the funds in the Trust Account should be transferred to on the Transfer Date so that the Designated
Paying Agent may commence distribution of such funds in accordance with the Company’s instructions.
You shall have no obligation to oversee the Designated Paying Agent’s distribution of the funds.
Upon the payment to the Designated Paying Agent of all the funds in the Trust Account, the Trust
Agreement shall be terminated.



Very truly yours,




INDIA GLOBALIZATION CAPITAL, INC.




By:                                                                           



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EXHIBIT C




	 	 	 	 	 	 
	 	 	 	 	 	 
	 	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	 
	 	 
	 	 	 	 
	 	TRUSTEE:
	 	 	 	 
	 	 
	 	 	 	 
	 	 
	 	 	 	 
	 	Continental Stock Transfer
	 	 	 	 
	 	& Trust Company
	 	 	 	 
	 	17 Battery Place
	 	 	 	 
	 	New York, NY 10004
	 	 	 	 
	 	Attn: Steven Nelson
	 	 	 	 
	 	

	 	 	(212) 845-3200	 
	 	 	 	 	 	 






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