indiaglobalization_s8010611.htm
As filed with the Securities and Exchange Commission on January 7, 2011
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 

INDIA GLOBALIZATION CAPITAL, INC.
(Exact name of registrant as specified in its charter)
 
Maryland
        
20-2760393
(State or other jurisdiction of
incorporation or organization)
        
(I.R.S. Employer
Identification Number)

4336 Montgomery Ave.
Bethesda, Maryland   20814
(301) 983-0998
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)

India Globalization Capital, Inc. 2008 Omnibus Incentive Plan
(Full title of the plan)

Ram Mukunda
India Globalization Capital, Inc.
4336 Montgomery Ave
Bethesda, Maryland 20814
(301) 983-0998
 (Name, address, including zip code, and telephone number,
including area code, of agent for service)

Copy to:
Stanley S. Jutkowitz, Esq. 
Seyfarth Shaw LLP
975 F Street, N.W.
Washington, D.C. 20004
(202) 463-2400 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer
o
  
Accelerated filer box.
o
  
Non-accelerated filer
o
  
Smaller reporting company
x
  
(Do not check if a smaller reporting company)
 
 
 
CALCULATION OF REGISTRATION FEE
 
       
Proposed maximum
  
Proposed maximum
      
 
Amount to be
    
offering price per
  
aggregate offering
    
Amount of
Title Of Securities To Be Registered
registered(1)
    
share(3)
  
price(3)
    
Registration Fee
Common Stock $0.0001 par value
 1,513,675 (2 )   $ 0.56     $ 847,658     $ 98.41  
 
(1)
  
This Registration Statement registers the issuance of (a) 1,513,675 shares of common stock of India Globalization Capital, Inc. (the “Registrant”) issuable pursuant to the 2008 Omnibus Incentive Plan of the Registrant (the “2008 Plan”).   Shares covered by this Registration Statement and issued under the 2008 Plan shall be issued from time to time upon the exercise of stock options and employee stock purchase plan options, as restricted stock, and in connection with other types of rights or awards granted under the 2008 Plan.  This Registration Statement also covers any additional shares that may hereafter become issuable as a result of the adjustment provisions of the 2008 Plan.
   
(2)
  
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the employee benefit plans set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that results in an increase in the number of the outstanding shares of the Registrant’s common stock.
     
(3)
  
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457 promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon the average of the high and low prices of the Registrant’s common stock on the NYSE Amex on January 5, 2011.
 

TABLE OF CONTENTS
 
 
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
       
The documents containing the information specified in Part I of this registration statement on Form S-8 (this “Registration Statement”) will be sent or given to participants in the India Globalization Capital, Inc. 2008 Omnibus Incentive Plan covered by this Registration Statement, as applicable, in accordance with the requirements of Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the “Securities Act”).  Such documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Certain Documents by Reference.
       
The SEC allows us to “incorporate by reference” the information we have filed with it, which means that we can disclose important information to you by referring you to those documents. The documents listed below are hereby incorporated by reference into this Registration Statement:
  
 
(1) 
  Our Annual Report on Form 10-K for the fiscal year ended March 31, 2010, filed with the Commission on July 14, 2010;

 
(2)
 Our Current Report on Form 8-K as filed with the Securities and Exchange Commission on April 5, 2010;

 
(3)
 Our Current Report on Form 8-K as filed with the Securities and Exchange Commission on April 27, 2010;

 
(4)
 Our Current Report on Form 8-K as filed with the Securities and Exchange Commission on May 4, 2010;

 
(5)
 Our Current Report on Form 8-K as filed with the Securities and Exchange Commission on May 27, 2010;

 
(6)
 Our Current Report on Form 8-K as filed with the Securities and Exchange Commission on August 16, 2010;

 
(7)
Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, filed with the Commission on August 16, 2010;

 
(8)
Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2010, filed with the Commission on November 19, 2010;

 
(9)
 Our Current Report on Form 8-K as filed with the Securities and Exchange Commission on December 3, 2010; and

 
(10)
 Our Current Report on Form 8-K as filed with the Securities and Exchange Commission on December 9, 2010.
 
 
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All reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date hereof and prior to the termination of this offering shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such reports and other documents. Unless expressly incorporated into this Registration Statement, a report furnished but not filed on Form 8-K shall not be incorporated by reference into this Registration Statement. Any document, or any statement contained in a document, incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a document or statement contained herein, or in any other subsequently filed document that also is deemed to be incorporated by reference herein, modifies or supersedes such document or statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Subject to the foregoing, all information appearing in this Registration Statement is qualified in its entirety by the information appearing in the documents incorporated by reference.

Item 4. Description of Securities.

                  Not applicable.

Item 5. Interests of Named Experts and Counsel.
       
Not applicable.

Item 6. Indemnification of Directors and Officers.
       
Our certificate of incorporation provides that all directors, officers, employees and agents of the registrant shall be entitled to be indemnified by us to the fullest extent permitted by Section 2-418 of the Maryland General Corporation Law. Section 2-418 of the Maryland General Corporation Law concerning indemnification of officers, directors, employees and agents is set forth below.
 
“Section 2-418. Indemnification of directors, officers, employees and agents.
 
(a) Definitions. — In this section the following words have the meanings indicated.
 
(1)  
“Director” means any person who is or was a director of a corporation and any person who, while a director of a corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan.
 
(2)  
“Corporation” includes any domestic or foreign predecessor entity of a corporation in a merger, consolidation, or other transaction in which the predecessor’s existence ceased upon consummation of the transaction.

(3)  
 ”Expenses” includes attorney’s fees.
 
 
(4)  
“Official capacity” means the following:

(i)  
When used with respect to a director, the office of director in the corporation; and
 
(ii)  
When used with respect to a person other than a director as contemplated in subsection (j), the elective or appointive office in the corporation held by the officer, or the employment or agency relationship undertaken by the employee or agent in behalf of the corporation.

(iii)  
“Official capacity” does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, other enterprise, or employee benefit plan.
 
(5)  
“Party” includes a person who was, is, or is threatened to be made a named defendant or respondent in a proceeding.

(6)  
“Proceeding” means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative.
 
(b) Permitted indemnification of director. —
 
(1)  
A corporation may indemnify any director made a party to any proceeding by reason of service in that capacity unless it is established that:
 
(i)  
The act or omission of the director was material to the matter giving rise to the proceeding; and

1.  
Was committed in bad faith; or
 
2.  
Was the result of active and deliberate dishonesty; or

(ii)  
The director actually received an improper personal benefit in money, property, or services; or
 
(iii)  
In the case of any criminal proceeding, the director had reasonable cause to believe that the act or omission was unlawful.

(2)  
  
(i)  
Indemnification may be against judgments, penalties, fines, settlements, and reasonable expenses actually incurred by the director in connection with the proceeding.
 
   
(ii)  
However, if the proceeding was one by or in the right of the corporation, indemnification may not be made in respect of any proceeding in which the director shall have been adjudged to be liable to the corporation.
 
 
 
(3)  
  
(i)  
The termination of any proceeding by judgment, order, or settlement does not create a presumption that the director did not meet the requisite standard of conduct set forth in this subsection.

 
(ii)  
The termination of any proceeding by conviction, or a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the director did not meet that standard of conduct.
 
(4)  
A corporation may not indemnify a director or advance expenses under this section for a proceeding brought by that director against the corporation, except:

 
(i)  
For a proceeding brought to enforce indemnification under this section; or
 
 
(ii)  
If the charter or bylaws of the corporation, a resolution of the board of directors of the corporation, or an agreement approved by the board of directors of the corporation to which the corporation is a party expressly provide otherwise.
 
(c) No indemnification of director liable for improper personal benefit. — A director may not be indemnified under subsection (b) of this section in respect of any proceeding charging improper personal benefit to the director, whether or not involving action in the director’s official capacity, in which the director was adjudged to be liable on the basis that personal benefit was improperly received.
 
(d) Required indemnification against expenses incurred in successful defense — Unless limited by the charter:
 
(1)  
A director who has been successful, on the merits or otherwise, in the defense of any proceeding referred to in subsection (b) of this section shall be indemnified against reasonable expenses incurred by the director in connection with the proceeding.
 
(2)  
A court of appropriate jurisdiction, upon application of a director and such notice as the court shall require, may order indemnification in the following circumstances:

(i)  
If it determines a director is entitled to reimbursement under paragraph (1) of this subsection, the court shall order indemnification, in which case the director shall be entitled to recover the expenses of securing such reimbursement; or
 
(ii)  
If it determines that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director has met the standards of conduct set forth in subsection (b) of this section or has been adjudged liable under the circumstances described in subsection (c) of this section, the court may order such indemnification as the court shall deem proper. However, indemnification with respect to any proceeding by or in the right of the corporation or in which liability shall have been adjudged in the circumstances described in subsection (c) shall be limited to expenses.

(3)  
A court of appropriate jurisdiction may be the same court in which the proceeding involving the director’s liability took place.
 
 
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(e) Determination that indemnification is proper. —
 
(1)   Indemnification under subsection (b) of this section may not be made by the corporation unless authorized for a specific proceeding after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in subsection (b) of this section.
 
(2)  
Such determination shall be made:
  

(i)  
By the board of directors by a majority vote of a quorum consisting of directors not, at the time, parties to the proceeding, or, if such a quorum cannot be obtained, then by a majority vote of a committee of the board consisting solely of two or more directors not, at the time, parties to such proceeding and who were duly designated to act in the matter by a majority vote of the full board in which the designated directors who are parties may participate;
 
(ii)  
 By special legal counsel selected by the board of directors or a committee of the board by vote as set forth in subparagraph (i) of this paragraph, or, if the requisite quorum of the full board cannot be obtained therefor and the committee cannot be established, by a majority vote of the full board in which directors who are parties may participate; or
 
(iii)  
By the stockholders.

(3)  
Authorization of indemnification and determination as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible. However, if the determination that indemnification is permissible is made by special legal counsel, authorization of indemnification and determination as to reasonableness of expenses shall be made in the manner specified in subparagraph (ii) of paragraph (2) of this subsection for selection of such counsel.
 
(4)  
Shares held by directors who are parties to the proceeding may not be voted on the subject matter under this subsection.
 
(f) Payment of expenses in advance of final disposition of action. —
 
(1)   Reasonable expenses incurred by a director who is a party to a proceeding may be paid or reimbursed by the corporation in advance of the final disposition of the proceeding upon receipt by the corporation of:
 
(i)  
A written affirmation by the director of the director’s good faith belief that the standard of conduct necessary for indemnification by the corporation as authorized in this section has been met; and
 
(ii)  
A written undertaking by or on behalf of the director to repay the amount if it shall ultimately be determined that the standard of conduct has not been met.

 (2)  
The undertaking required by subparagraph (ii) of paragraph (1) of this subsection shall be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make the repayment.
 
(3)  
Payments under this subsection shall be made as provided by the charter, bylaws, or contract or as specified in subsection (e) of this section.
 
 
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(g) Validity of indemnification provision. — The indemnification and advancement of expenses provided or authorized by this section may not be deemed exclusive of any other rights, by indemnification or otherwise, to which a director may be entitled under the charter, the bylaws, a resolution of stockholders or directors, an agreement or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office.
 
(h) Reimbursement of director’s expenses incurred while appearing as witness. — This section does not limit the corporation’s power to pay or reimburse expenses incurred by a director in connection with an appearance as a witness in a proceeding at a time when the director has not been made a named defendant or respondent in the proceeding.
 
(i)           Director’s service to employee benefit plan. — For purposes of this section:
 
(1)  
The corporation shall be deemed to have requested a director to serve an employee benefit plan where the performance of the director’s duties to the corporation also imposes duties on, or otherwise involves services by, the director to the plan or participants or beneficiaries of the plan;
 
(2)  
Excise taxes assessed on a director with respect to an employee benefit plan pursuant to applicable law shall be deemed fines; and

(3)  
Action taken or omitted by the director with respect to an employee benefit plan in the performance of the director’s duties for a purpose reasonably believed by the director to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
 
(j)           Officer, employee or agent. — Unless limited by the charter:
 
(1)  
An officer of the corporation shall be indemnified as and to the extent provided in subsection (d) of this section for a director and shall be entitled, to the same extent as a director, to seek indemnification pursuant to the provisions of subsection (d);
 
(2)  
A corporation may indemnify and advance expenses to an officer, employee, or agent of the corporation to the same extent that it may indemnify directors under this section; and

(3)  
A corporation, in addition, may indemnify and advance expenses to an officer, employee, or agent who is not a director to such further extent, consistent with law, as may be provided by its charter, bylaws, general or specific action of its board of directors, or contract.
 
(k) Insurance or similar protection. —
 
(1)   A corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation, or who, while a director, officer, employee, or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan against any liability asserted against and incurred by such person in any such capacity or arising out of such person’s position, whether or not the corporation would have the power to indemnify against liability under the provisions of this section.
 
 
(2)  
A corporation may provide similar protection, including a trust fund, letter of credit, or surety bond, not inconsistent with this section.
 
(3)  
The insurance or similar protection may be provided by a subsidiary or an affiliate of the corporation.
 
(l) Report of indemnification to stockholders. — Any indemnification of, or advance of expenses to, a director in accordance with this section, if arising out of a proceeding by or in the right of the corporation, shall be reported in writing to the stockholders with the notice of the next stockholders’ meeting or prior to the meeting.
 
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
 
Paragraph B. of Article Tenth of our amended and restated certificate of incorporation provides:
 
“The Corporation, to the full extent permitted by Section 2-418 of the MGCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding or which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized hereby.”
 
Article XI of our Bylaws provides for indemnification of any of our directors, officers, employees or agents for certain matters in accordance with Section 2-418 of the Maryland General Corporation Law.
 
 
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Item 7. Exemption from Registration Claimed.
      
Not applicable.

Item 8. Exhibits.
    
              The following is a list of exhibits filed as a part of this Registration Statement which are incorporated herein:

Exhibit No.
Description
   
5.1
10.1
10.2
10.3
23.1
23.2
24
Power of Attorney (included on the signature page of this registration statement).*
 
*Filed herewith.
 
 
8
 
Item 9. Undertakings.
 
(a) The undersigned registrant hereby undertakes:
 
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
 
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
 
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
 
Provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; and
 
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
 
 
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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized.

     
 
INDIA GLOBALIZATION CAPITAL, INC.
  
  
  
Date:January 7, 2011 
By:  
/s/Ram Mukunda                                
 
Ram Mukunda
 
Chief Executive Officer and President
 
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ram Mukunda as true and lawful attorney-in-fact and agent with full power of substitution and resubstitution and for him/her and in his/her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, as well as any new registration statement filed to register additional securities pursuant to Rule 462(b) under the Securities Act, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates stated.
 
 
INDIA GLOBALIZATION CAPITAL, INC.    
  
       
Date: January 7, 2011 
By:
/s/ Ram Mukunda                                         
  
   
Ram Mukunda     
  
   
Director, Chief Executive Officer and President (Principal Executive Officer)
  
       
 
       
Date: January 7, 2011  
By:
/s/ John B. Selvaraj                                      
  
   
John B. Selvaraj      
  
   
Treasurer, Principal Accounting Officer
  
       
     
       
Date: January 7, 2011  
By:
/s/ Dr. Ranga Krishna                                
  
   
Dr. Ranga Krishna  
  
   
Director
  
       
 
     
       
Date: January 7, 2011  
By:
/s/ Suhail Nathani                                       
  
   
 Suhail Nathani    
  
   
Director
  
       
     
       
Date: January 7, 2011 
By:
/s/ Sudhakar Shenoy                                  
  
   
Sudhakar Shenoy    
  
   
Director
  
       
 
     
       
Date: January 7, 2011  
By:
/s/ Richard Prins                                                   
  
   
Richard Prins
  
   
Director
  
       
 
 
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