Item 1.01.
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Entry into a Material Definitive Agreement.
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ATM Agency Agreement
On November 29, 2017, India Globalization Capital, Inc. (the “Company”) entered into an At-the-Market Offering Agreement (the “Sales Agreement”) with The Benchmark Company, LLC (“Benchmark”) to act as the Company’s sales agent with respect to the issuance and sale of up to $10,000,000 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 Benchmark, 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. Benchmark may also sell the Shares in privately negotiated transactions, provided that Benchmark receives our prior written approval for any sales in privately negotiated transactions.
The Company or Benchmark may suspend the offering of Shares upon notice and subject to other conditions. The Sales Agreement will automatically terminate on November 29, 2019, or sooner if terminated as permitted therein.
The Company will pay Benchmark a commission equal to 4.0% of the gross proceeds from the sale of the Shares pursuant to the Sales Agreement.
The Sales Agreement contains representations, warranties and covenants that are customary for transactions of this type. In addition, the Company has agreed to indemnify Benchmark against certain liabilities, including liabilities under the Securities Act of 1933, as amended. A copy of the Sales Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the Sales Agreement is qualified in its entirety by reference to Exhibit 1.1 to this Current Report on Form 8-K.
The Shares will be sold and issued pursuant the Company’s shelf registration statement on Form S-3 (File No. 333-201822), which was previously declared effective by the Securities and Exchange Commission, and a related prospectus.
This Current Report on Form 8-K, 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 Current Report and is filed with reference to, and is hereby incorporated by reference into, the Registration Statement.