Exhibit 10.2


 


EXHIBIT A


 


VOTING
AGREEMENT


 


VOTING AGREEMENT, dated as
of May 23, 2008 (this “Agreement”), by
and among American Defense Systems, Inc., a Delaware corporation (the “Company”), and the stockholder listed on the signature page hereto
under the heading “Stockholder”
(the “Stockholder”).


 


WHEREAS, the Company and certain investors (each, an
“Investor”, and collectively, the “Investors”) have entered into a Securities Purchase
Agreement, dated as March 7, 2008 (the “Securities
Purchase Agreement”), pursuant to which, among other things, the
Company has agreed to issue and sell to the Investors and the Investors have
agreed to purchase, (i) shares of the Company’s Series A Convertible
Preferred Stock (“Preferred Shares”),
which Preferred Shares are convertible into shares of the common stock, par
value $0.001 per share (the “Common Stock”);
and (ii) warrants which are exercisable to
purchase shares of Common Stock.


 


WHEREAS, as of the date hereof, the Stockholder owns
the number of shares of Common Stock as set forth on Appendix A hereto; and


 


WHEREAS, as a condition to
the willingness of the Investors to enter into that certain Consent and
Agreement of Series A Convertible Preferred Stockholders, dated as of May 23,
2008 (the “Consent and Agreement”), the
Investors have required that the Stockholder agree, and in order to induce the
Investors to enter into the Consent and Agreement, the Stockholder has agreed,
to enter into this Agreement with respect to all the Common Stock now owned and
which may hereafter be acquired by the Stockholder and any other securities, if
any, which the Stockholder is currently entitled to vote, or after the date
hereof, becomes entitled to vote, at any meeting of stockholders of the Company
(the “Other Securities”).


 


NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:


 


ARTICLE I


 


VOTING AGREEMENT OF THE STOCKHOLDER


 


SECTION 1.01.      Voting Agreement. Subject to the
last sentence of this Section 1.01, the Stockholder hereby agrees that at
any meeting of the stockholders of the Company, however called, and in any
action by written consent of the Company’s stockholders, the Stockholder shall
vote the Common Stock and the Other Securities: 
(a) in favor of the Stockholder Approval (as defined in the Consent
and Agreement) as described in Section 4 of the Consent and Agreement; and
(b) against any proposal or any other corporate action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Consent and Agreement or
which could result in any of the conditions to the Company’s obligations under
the Consent and Agreement not being fulfilled. The Stockholder acknowledges
receipt and review of a copy of the Securities Purchase Agreement, the Consent
and Agreement and the other Transaction Documents (as 


 





















 


defined
in the Securities Purchase Agreement). The obligations of the Stockholder under
this Section 1.01 shall terminate immediately following the occurrence of
the Stockholder Approval.


 


ARTICLE II


 


REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER


 


The
Stockholder hereby represents and warrants to each of the Investors as follows:


 


SECTION 2.01.      Authority Relative to This Agreement.
The Stockholder has all necessary power and authority to execute and deliver
this Agreement, to perform his or its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in
accordance with its terms, except (a) as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws now or hereafter in effect relating to,
or affecting generally the enforcement of creditors’ and other obligees’
rights, (b) where the remedy of specific performance or other forms of
equitable relief may be subject to certain equitable defenses and principles
and to the discretion of the court before which the proceeding may be brought,
and (c) where rights to indemnity and contribution thereunder may be
limited by applicable law and public policy.


 


SECTION 2.02.      No Conflict. (a)  The
execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder shall not, (i) conflict with
or violate any federal, state or local law, statute, ordinance, rule,
regulation, order, judgment or decree applicable to any Stockholder or by which
the Common Stock or the Other Securities owned by the Stockholder are bound or
affected or (ii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Common Stock or the Other Securities owned by the Stockholder pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Stockholder is
a party or by which the Stockholder or the Common Stock or Other Securities
owned by the Stockholder are bound.


 


(b)           The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the Stockholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental entity by the Stockholder.


 


SECTION 2.03.      Title to the Stock. As of the date
hereof, the Stockholder is the owner of the number of shares of Common Stock
set forth opposite its name on Appendix A attached hereto, entitled to
vote, without restriction, on all matters brought before holders of capital
stock of the Company, which Common Stock represent on the date hereof the
percentage of the outstanding stock and voting power of the Company set forth
on such Appendix. Such Common Stock are all the securities of the Company
owned, either of record or beneficially, by 


 


2





















 


the
Stockholder. Such Common Stock are owned free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on the Stockholder’s voting rights, charges and other
encumbrances of any nature whatsoever, except for transfer restriction under
federal or applicable state securities or blue sky law and that certain lock-up
letter agreement (“Lock-Up Agreement”)
with the Company dated March 7, 2008. No Stockholder has appointed or
granted any proxy, which appointment or grant is still effective, with respect
to the Common Stock or Other Securities owned by the Stockholder.


 


ARTICLE III


 


COVENANTS


 


SECTION 3.01.      No Disposition or Encumbrance of Stock.
The Stockholder hereby covenants and agrees that he will comply with the terms
and conditions of his Lock-Up Agreement.


 


SECTION 3.02.      Company Cooperation. The Company
agrees that at any time in which any Stockholder Approval is required pursuant
to Section 4 of the Consent and Agreement, it will use its reasonable best
efforts to cause holders of Common Stock or Other Securities representing the
percentage of outstanding capital stock required to vote in favor of the
transactions contemplated by the Securities Purchase Agreement in order for the
Company to comply with its obligations under Section 4 of the Consent and
Agreement to so vote in favor of such transactions.


 


ARTICLE IV


 


MISCELLANEOUS


 


SECTION 4.01.      Further Assurances. Each
Stockholder will execute and deliver such further documents and instruments and
take all further action as may be reasonably necessary in order to give effect
to the voting agreement and other covenants of the Stockholder contemplated
hereby.


 


SECTION 4.02.      Specific Performance. The parties
hereto agree that irreparable damage would occur in the event any provision of
this Agreement was not performed in accordance with the terms hereof and that
any Investor (without being joined by any other Investor) shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law or in equity. Any Investor shall be entitled to its reasonable attorneys’
fees in any action brought to enforce this Agreement in which it is the
prevailing party.


 


SECTION 4.03.      Entire Agreement. This Agreement
constitutes the entire agreement among the Company and the Stockholder (other
than the Securities Purchase Agreement, the Consent and Agreement and the other
Transaction Documents) with respect to the subject matter hereof and supersedes
all prior agreements and understandings, both written and oral, among the
Company and the Stockholder with respect to the subject matter hereof.


 


3





















 


SECTION 4.04.      Amendment. The provisions of this
Agreement may not be amended or waived, nor may this Agreement be terminated by
the Company other than pursuant to the provisions of Section 4.07.


 


SECTION 4.05.      Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of law, or public policy, all other conditions and provisions
of this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent possible.


 


SECTION 4.06.      Governing Law. All questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of New York.
The parties hereby agree that all actions or proceedings arising directly or
indirectly from or in connection with this Agreement shall be litigated only in
the Supreme Court of the State of New York or the United States District Court for
the Southern District of New York located in New York County, New York. The
parties consent to the jurisdiction and venue of the foregoing courts and
consent that any process or notice of motion or other application to any of
said courts or a judge thereof may be served inside or outside the State of New
York or the Southern District of New York by registered mail, return receipt
requested, directed to the party being served at its address set forth on the
signature ages to this Agreement (and service so made shall be deemed complete
three (3) days after the same has been posted as aforesaid) or by
personal service or in such other manner as may be permissible under the rules of
said courts. Each of the Company and each Stockholder irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action, or proceeding brought
in such a court and any claim that suit, action, or proceeding has been brought
in an inconvenient forum. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


SECTION 4.07.      Termination. This Agreement shall
terminate immediately following the occurrence of the Stockholder Approval.


 


[Signature Page Follows]


 


4





















 


IN
WITNESS WHEREOF, each of Stockholder and the Company has duly executed this
Agreement.


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  AMERICAN DEFENSE SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  Dated: May       , 2008

  	
   

  



 

















 


	
   

  	
  STOCKHOLDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated: May       , 2008

  	
   

  
	
   

  	
  Address:

  



 

















 


APPENDIX A


 


	
  Stockholder

  	
   

  	
  Common Stock

  Owned

  	
   

  	
  Percentage of Common

  Stock Outstanding

  	
   

  	
  Voting Percentage

  of Common Stock

  Outstanding