Exhibit 10.1


 


SETTLEMENT AGREEMENT,
WAIVER AND AMENDMENT


 


This
SETTLEMENT AGREEMENT, WAIVER AND AMENDMENT (this
“Agreement”), dated as of May 22,
2009 (the “Effective Date”), is entered into
by and among American Defense Systems, Inc., a Delaware corporation (the “Company”), and the stockholders of the Company parties
hereto (individually, a “Holder” and
collectively, the “Holders”).  Unless otherwise specified herein,
capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Certificate of Designations (as defined below).


 


RECITALS


 


A.            The Company and the Holders are
parties to the Securities Purchase Agreement, dated as of March 7, 2008
(as may be amended, modified, restated or supplemented from time to time, the “Securities Purchase Agreement”), pursuant to which the
Holders purchased from the Company shares of the Company’s Series A
Convertible Preferred Stock, par value $0.001 per share (the “Series A Preferred Stock”), the terms of which are set
forth in the certificate of designation for such series of preferred stock
filed by the Company with the Secretary of State of the State of Delaware on March 7,
2008 (the “Certificate of Designations”).


 


B.            The Holders and the Company entered
into a Consent and Agreement of Series A Convertible Preferred
Stockholders, dated May 23, 2008 (the “Consent and
Agreement”), pursuant to which, among other things, the Company
agreed to certain financial covenants with respect to the Company’s fiscal year
ended December 31, 2008, which the Company failed to satisfy.


 


C.            On April 14, 2009, one of the
Holders delivered to the Company a notice of Triggering Event redemption
purportedly pursuant to a redemption option provided under the Certificate of
Designations (the “Notice of Triggering Event
Redemption”), demanding that the Company (i) immediately redeem
the 14,025 shares of Series A Preferred Stock owned by such Holder
for an aggregate price of $15,427,500.00, (ii) pay $470,317.81 as
dividends allegedly accrued from January 1, 2009 through April 13,
2009 on such shares of Series A Preferred Stock at the cash dividend rate
of 12%, and (iii) pay $70,000.00 in legal fees and expenses such Holder
incurred in connection with the negotiations relating to the breach of the
financial covenants contained in the Consent and Agreement.


 


D.            The Company and the Holders desire
to, among other things, settle certain claims by the Holders against the
Company, waive the breach of the financial covenants contained in the Consent
and Agreement and make certain amendments to the Warrants (as such term is
defined in the Securities Purchase Agreement), all as more fully set forth
herein.


 


TERMS OF AGREEMENT


 


In
consideration of the premises and further valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 

















 


1.                                       Amendment
to Warrants.  On the
Effective Date, each of the Warrants issued to the Holders pursuant to the
Securities Purchase Agreement (which Warrants are numbered A-1, A-2, A-3 and
A-4) is hereby amended by deleting paragraph (b) of Section 1 of such
Warrant in its entirety and replacing it with the following new paragraph (b):


 


“(b)  Exercise Price.  For purposes of this Warrant, “Exercise Price” means $0.01.”


 


2.                                       Waivers.          As of the
Effective Date, subject to the Company’s performance of its obligations
hereunder, the Holders hereby waive (i) any breach by the Company of any
of the covenants or agreements contained in Section 6 of the Consent and
Agreement, (ii) any breach by the Company of its obligation to timely pay
Dividends under the Certificate of Designation 
for any period through September 30, 2009, (iii) any breach by
the Company of its obligation (including under Section 4(f) of the
Securities Purchase Agreement) to cause the listing with an Eligible Market of
any Listed Securities in excess of 7,858,358 shares of Common Stock (the “Excess Shares”), and (iv) any Equity Conditions Failure
and any Triggering Event otherwise arising under the Certificate of Designation
as a result of any of the foregoing breaches (and, for the avoidance of doubt,
the Holders acknowledge that, for purposes of Section 3(c) of the
Certificate of Designations, the Equity Conditions shall be deemed to have been
satisfied on December 31, 2008).


 


3.                                       Covenants and Agreements of the
Company.


 


(a)                                  On the Effective Date, in full satisfaction of the Company’s
obligation to pay Dividends under the Certificate of Designations on March 31,
2009, June 30, 2009 and September 30, 2009, the Company shall (i) issue
to the Holders the number of shares of Common Stock payable as Dividends under
the Certificate of Designations as of March 31, 2009,  June 30, 2009 (in advance) and September 30,
2009 (in advance) (collectively, the “Settlement Shares”);
provided that, notwithstanding anything to the contrary contained in the
Certificate of Designations, solely for purposes of such calculation, the
Dividend Rate applicable to the Dividend Shares otherwise issuable on March 31,
2009 shall be 12%, the Dividend Rate applicable to the Dividend Shares
otherwise issuable on June 30, 2009 and September 30, 2009 shall be
10%, and the Dividend Conversion Price for each such period shall be $0.60, and
(B) cause its transfer agent to deliver to the Holders, within five (5) business
days following the Effective Date of this Agreement, share certificates
evidencing such Settlement Shares.  The
number of shares of Common Stock to be issued to each Holder pursuant to this Section 3(a) is
set forth on Schedule 1 attached hereto.


 


(b)                                 On the Effective Date, the Company shall execute and deliver to the Holders a
Registration Rights Agreement with respect to the Settlement Shares in the
form of Exhibit A attached hereto (the “Registration
Rights Agreement”).


 


(c)                                  On or before June 30,
2009, the Company shall pay (i) to
Shulte Roth & Zabel LLP, all unpaid legal fees and disbursements
incurred by the Holders in connection with the Transaction Documents (as such
term is defined in the Securities Purchase Agreement), the Notice of Triggering
Event Redemption and related matters, in the amount of $70,000, and (ii) to



 


2

















 


Reicker, Pfau, Pyle & McRoy LLP, all
reasonable legal fees and disbursements incurred by the Holders in connection
with the negotiation and execution of this Agreement and the transactions
contemplated hereby, not to exceed $10,000 in the aggregate.


 


(d)                                 On the Effective Date, each of the Company’s
executive officers and directors shall execute and deliver to the Company a Lock-Up Agreement in the
form of Exhibit B attached hereto (collectively, the “Lock-Up Agreements”).


 


(e)                                  The Company shall use best efforts to cause
TD Bank, or any successor bank or other provider of bank financing to the
Company (the “Senior Lender”), prior to December 31,
2009, to enter into an intercreditor agreement with the Holders, in form and
substance reasonably satisfactory to the Holders, setting forth the respective
rights and obligations of the Senior Lender and the Holders upon the occurrence
of an event of default under the loan documents between the Company and the
Senior Lender.


 


(f)                                    Within 30 days following the Effective Date,
the Company shall file all applications and pay all fees necessary to list the
Excess Shares on an Eligible Market.


 


(g)                                 If
any Preferred Shares remain outstanding on December 31, 2009, the Company
shall, on such date, redeem for an amount in cash per Preferred Share equal to
the Stated Value (the “Interim Redemption
Price”) by wire transfer of immediately available funds to an
account designated in writing by each Holder, such number of Preferred Shares
as can be purchased at the Interim Redemption Price for an aggregate purchase
price of $7,500,000 (or such lesser purchase price as may be sufficient to purchase
all of the Preferred Shares then outstanding at the Interim Redemption Price).


 


(i)                                     If
less than all of the Preferred Shares then outstanding are redeemed pursuant to
this Section 3(g), the Company shall redeem a pro rata amount from each
Holder of such Holder’s Allocation Percentage multiplied by the total number of
Preferred Shares to be redeemed from all Holders.


 


(ii)                                  (A)          If the Company for any reason fails to
redeem all of the Preferred Shares required to be purchased pursuant to this Section 3(g) by
payment of the Interim Redemption Price for each such Preferred Share by December 31,
2009, then, in lieu of any other remedies or damages available to any Holder
under any Transaction Document (other than any remedies or damages available in
the event of fraud by the Company), (i) the applicable Interim Redemption
Price payable in respect of such unredeemed Preferred Shares shall be increased
by an amount equal to 10% of the Stated Value, (ii) the Company shall use
its best efforts to obtain the approval of the Stockholders of the Company to
reduce the Conversion Price to $0.50, and (iii) the Company shall (A) on
or before January 10, 2010, expand the size of the Board of Directors by
two (2) positions, and fill such positions with persons designated in writing
by the Required Holders, and (B) thereafter exercise its best efforts to
amend the Company’s Certificate of Incorporation to grant to the holders of
Preferred Shares, voting as a separate class, the right to elect two persons to
serve as members of the Company’s Board of Directors (the “Director
Designees”), and (C) for so long as any Preferred Shares remain
outstanding, take all actions within its control to allow the Director
Designees to serve on the Company’s Board of Directors (provided that each such
Director Designee satisfies any 


 


3

















 


applicable
laws and the rules of any stock exchange or over-the-counter market on
which the Common Stock then trades). 
Commencing December 1, 2009, the Company shall take the actions
required to seek to obtain approval from the stockholders of the Company for
such amendments to the Company’s certificate of incorporation as may be
necessary or convenient for reducing the Conversion Price to $0.50 and granting
to the holders of the Preferred Shares, voting as a separate class, the right
to elect the Designated Directors, in each instance as contemplated by the
foregoing provisions of this Section 3(g)(2)(A)) (including but not
limited to (i) calling a meeting of the Company’s stockholders to consider
such an amendment to the Company’s certificate of incorporation, (ii) submitting
to the United States Securities and Exchange Commission a preliminary proxy
statement for the contemplated stockholder meeting, (iii) mailing notice
of a stockholders’ meeting to the Company’s stockholders, and (iv) subject
to receipt of the requisite stockholder approval, filing the amendment to the
certificate of incorporation to effect such changes) if, as of December 1,
2009, the Company does not reasonably believe that the Company will be able to
redeem at least $7.5 million of the Preferred Shares at the Interim Redemption
Price on or before December 31, 2009.


 


(B)           The Holders agree that (i) any
Common Stock issued or issuable or deemed to be issued in accordance with Section 2(f) of
the Certificate of Designations by the Company in connection with any financing
by the Company to raise capital for the purpose of allowing the Company to
fulfill its obligations under this Section 3(g) shall be deemed to be
Excluded Securities for all purposes under the Transaction Documents, to the
extent that, concurrently with the closing of such financing, the proceeds of
such financing are used solely to effect the complete redemption of all
Preferred Shares then held by Holders and to pay all accrued but unpaid
Dividends thereon; and (ii) notwithstanding anything to the contrary in
the Transaction Documents, the
Company may (A) pay cash dividends at a rate not to exceed the Dividend
Rate, and/or pay stock dividends, on any preferred stock, at least the first
$7,500,000 of the proceeds of which are used to finance the Company’s
redemption of Preferred Shares under this Section 3(g) or under Section 4
of the Certificate of Designations, and which is junior in rank to the
Preferred Shares in respect of the preferences as to dividends and other
distributions, amortization and redemption payments, and (B) make payments
on account of any such preferred stock upon the liquidation, dissolution and
winding up of the Company, subject to the rights of the Preferred Shares (and,
to the extent required under Section 12(e) of the Certificate of
Designations, the Holders hereby consent to the payments described in this
clause (ii)).


 


(h)           The Company shall not, for so long as any of the Preferred
Shares remain outstanding, without the prior written consent of the Required
Holders, (i) subordinate
or agree to subordinate the Preferred Shares to any new or existing
indebtedness of the Company, other than traditional bank financing (for the
avoidance of doubt, indebtedness to any private fund or other non-traditional
bank shall not be permitted without the prior written consent of the Required
Holders, if the Preferred Shares would be subordinate to or pari passu with such indebtedness) for working capital
purposes; or (ii) pay interest on any indebtedness of the Company, other
than traditional bank financing (for the avoidance of doubt, indebtedness to
any private fund or other non-traditional bank shall not be permitted without the
prior written consent of the Required Holders, if the Preferred Shares would be
subordinate to or pari passu with such
indebtedness), except that the Company may pay interest at a rate not to exceed
the Dividend 


 


4

















 


Rate on any such indebtedness incurred to fulfill the
Company’s obligations under Section 3(g) hereof.


 


4.                                       Closing Deliveries.  On the Effective Date:


 


(a)           Each of the
executive officers and directors of the Company shall execute and deliver to
counsel for the Holders the Lock-Up Agreement;


 


(b)           Anthony Piscitelli executes and delivers to the Holders an
Irrevocable Proxy and Voting Agreement in the form attached hereto as Exhibit C,
agreeing to vote in favor of (i) a reduction in the Conversion Price
pursuant to clause (ii) of Section 3(g)(ii)(A), above, and (ii)an
amendment of the Company’s Certificate of Incorporation to confer upon the
holders of Preferred Shares the right to elect the Director Designees pursuant
to clause “(iii)” of Section 3(g)(ii)(A), above; and


 


(c)           The Company shall deliver to the Holders (i) a
certificate evidencing the good standing of the Company in the State of
Delaware as of a date within ten days of the Effective Date and (ii) a
certificate, dated as of the Effective Date and signed by the Secretary of the
Company, attaching (A) a copy of resolutions adopted by the Board
approving the transactions contemplated by this Agreement, and (B) a list
of the names of the executive officers and directors of the Company as of the
Effective Date.


 


By executing this
Agreement, each party to whom an item is required to be delivered under this Section 4
hereby confirms receipt of each such item.


 


5.                                       Reference to and Effect on
Transaction Documents.  From and after the Effective Date, any
reference in any of the Transaction Documents to the Warrants shall be deemed
to be a reference to the Warrants, as amended hereby.  Except as specifically modified pursuant
hereto, the Transaction Documents shall remain in full force and effect.


 


5

















 


6.                                       Representations and Warranties.


 


(a)           By
the Company.  The Company hereby
represents and warrants to the Holders that (i) the Company is duly incorporated and in good
standing under the laws of the State of Delaware, and (ii) this Agreement
and the Registration Rights Agreement (A) have been duly approved by the
Company by all necessary corporate action, (B) do not violate the Company’s
charter, bylaws or material agreements, and (C) shall be binding on the
Company in accordance with their terms (except as may be limited by bankruptcy
laws and the availability of equitable remedies).


 


(b)           By the Holders. 
Each Holder hereby represents and warrants to the Company that this
Agreement (i) has been duly approved by such Holder by all necessary
corporate (or similar) action, (ii) does not violate such Holder’s
charter, bylaws (or equivalent organizational documents) or material
agreements, and (iii) shall be binding on such Holder in accordance with
its terms (except as may be limited by bankruptcy laws and the availability of
equitable remedies)


 


7.                                       Miscellaneous.


 


(a)           Governing
Law; Jurisdiction; Jury Trial.  All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other
jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Delaware. 
Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in Wilmington, Delaware, for the
adjudication of any dispute under or in connection with this Agreement or the
other documents or agreements contemplated hereby (including the Securities
Purchase Agreement and the documents and agreements executed in connection
therewith, notwithstanding any provision therein to the contrary) or with any
transaction contemplated hereby or thereby or discussed herein or therein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper.  Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner
permitted by law.  Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law.  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.


 


(b)           Counterparts.  This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; 


 


6

















 


provided
that a facsimile signature and a signature delivered electronically (including
by delivery via electronic mail of a signature page in “pdf” format) shall
be considered due execution and shall be binding upon the signatory thereto
with the same force and effect as if the signature were an original, not a
facsimile or electronic signature.


 


(c)           Headings.  The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.


 


(d)           Severability.  If any provision of this Agreement is
prohibited by law or otherwise determined to be invalid or unenforceable by a
court of competent jurisdiction, the provision that would otherwise be
prohibited, invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the
remaining provisions of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter hereof and the prohibited nature, invalidity
or unenforceability of the provision(s) in question does not substantially
impair the respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be conferred
upon the parties.  The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or
unenforceable provision(s) with a valid provision(s), the effect of which
comes as close as possible to that of the prohibited, invalid or unenforceable
provision(s).


 


(e)           Entire
Agreement; Amendments.  This
Agreement and the other Transaction Documents (as amended pursuant hereto)
supersede all other prior oral or written agreements between the Holders, the
Company, their affiliates and Persons acting on their behalf with respect to
the matters discussed herein, and this Agreement, the other Transaction
Documents (as amended pursuant hereto) and the instruments referenced herein
and therein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither the Company nor any Holder makes any representation,
warranty, covenant or undertaking with respect to such matters.  No provision of this Agreement may be amended
other than by an instrument in writing signed by the Company and the Required
Holders, and any amendment to this Agreement made in conformity with the
provisions of this Section 7(e) shall be binding on all Holders and
holders of Securities (as such term is defined in the Securities Purchase
Agreement), as applicable.  No provision
hereof may be waived other than by an instrument in writing signed by the party
against whom enforcement is sought.  No
such amendment shall be effective to the extent that it applies to less than
all of the holders of the applicable Securities then outstanding.


 


(f)            Notices.  Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered:  (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation
of transmission is mechanically or electronically generated and kept on file by
the sending party); or (iii) one Business Day after deposit with an
overnight courier service, in each case properly addressed to the party to
receive the same.  The addresses and
facsimile numbers for such communications shall be:


 


7

















 


If to the
Company:


	
   

  	
  American
  Defense Systems, Inc.

  
	
   

  	
  230 Duffy Avenue, Unit C

  
	
   

  	
  Hicksville, NY 11801

  
	
   

  	
  Telephone:

  	
  (516) 390-5300

  
	
   

  	
  Facsimile:

  	
  (516) 390-5308

  
	
   

  	
  Attention:

  	
  Chief
  Financial Officer

  



 


With a copy
(for informational purposes only) to:


 


	
   

  	
  Greenberg
  Traurig, LLP

  
	
   

  	
  1750
  Tysons Boulevard

  
	
   

  	
  Suite 1200

  
	
   

  	
  McLean,
  Virginia 22102

  
	
   

  	
  Telephone:

  	
  (703) 749-1336

  
	
   

  	
  Facsimile:

  	
  (703) 749-1301

  
	
   

  	
  Attention:

  	
  Jeffrey
  R. Houle, Esq.

  



 


If to a Holder, to its address and facsimile number set forth on the
Schedule of Buyers attached to the Securities Purchase Agreement, with copies
to such Holder’s representatives as set forth on such Schedule of Buyers,


 


with a copy
(for informational purposes only) to:


 


	
   

  	
  Reicker,
  Pfau, Pyle & McRoy LLP

  
	
   

  	
  1421
  State Street, Suite B

  
	
   

  	
  Santa
  Barbara, CA 93101

  
	
   

  	
  Telephone:

  	
  (805)
  966-2440

  
	
   

  	
  Facsimile:

  	
  (805)
  966-3320

  
	
   

  	
  Attention:

  	
  Michael
  E. Pfau, Esq.

  



 


or to such
other address and/or facsimile number and/or to the attention of such other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change.  Written confirmation of receipt (A) given
by the recipient of such notice, consent, waiver or other communication, (B) mechanically
or electronically generated by the sender’s facsimile machine containing the
time, date, recipient facsimile number and an image of the first page of
such transmission or (C) provided by an overnight courier service shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.


 


(g)           Successors
and Assigns.  This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns, including any purchasers of the Preferred Shares or the
Warrants.  The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Required Holders.  A
Holder may assign some or all of its rights hereunder without the consent 


 


8

















 


of the
Company, in which event such assignee shall be deemed to be a Holder hereunder
with respect to such assigned rights.


 


(h)           No
Third Party Beneficiaries.  This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person.


 


(i)            Further
Assurances.  Each party shall do and
perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates,
instruments and documents, as any other party may reasonably request in order
to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.


 


(j)            No
Strict Construction.  The language
used in this Agreement will be deemed to be the language chosen by the parties
to express their mutual intent, and no rules of strict construction will
be applied against any party.


 


(k)           Independent
Nature of Holders’ Obligations and Rights. 
The obligations of each Holder under this Agreement are several and not
joint with the obligations of any other Holder, and no Holder shall be
responsible in any way for the performance of the obligations of any other
Holder under this Agreement.  Nothing
contained herein, and no action taken by any Holder pursuant hereto, shall be
deemed to constitute the Holders as, and the Company acknowledges that the
Holders do not so constitute, a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Holders are in any
way acting in concert or as a group, and the Company will not assert any such
claim with respect to such obligations or the transactions contemplated by this
Agreement and the Company acknowledges that the Holders are not acting in
concert or as a group with respect to such obligations or the transactions
contemplated hereby.  The Company
acknowledges and each Holder confirms that it has independently participated in
the negotiation of the transaction contemplated hereby with the advice of its
own counsel and advisors.  Each Holder
shall be entitled to independently protect and enforce its rights, including,
without limitation, the rights arising out of this Agreement, and it shall not
be necessary for any other Holder to be joined as an additional party in any
proceeding for such purpose.


 


[Signature
Pages Follow]


 


9
















 


IN WITNESS WHEREOF,
each Holder and the Company have caused their respective signature page to
this Settlement Agreement, Waiver and Amendment to be duly executed as of the
date first written above.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  AMERICAN DEFENSE SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Sidorsky

  
	
   

  	
   

  	
  Name: Gary Sidorsky

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  



 

















 


IN WITNESS WHEREOF,
each Holder and the Company have caused their respective signature page to
this Settlement Agreement, Waiver and Amendment to be duly executed as of the
date first written above.


 


 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  WEST
  COAST OPPORTUNITY FUND, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Atticus Lowe

  
	
   

  	
   

  	
  Name: Atticus Lowe

  
	
   

  	
   

  	
  Title: CIO of Managing
  Member

  



 

















 


IN WITNESS WHEREOF,
each Holder and the Company have caused their respective signature page to
this Settlement Agreement, Waiver and Amendment to be duly executed as of the
date first written above.


 


 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  CENTAUR VALUE FUND, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Zeke Ashton

  
	
   

  	
   

  	
  Name: Zeke Ashton

  
	
   

  	
   

  	
  Title: Managing Partner

  



 

















 


IN WITNESS WHEREOF,
each Holder and the Company have caused their respective signature page to
this Settlement Agreement, Waiver and Amendment to be duly executed as of the
date first written above.


 


 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  UNITED
  CENTAUR MASTER FUND

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Zeke Ashton

  
	
   

  	
   

  	
  Name: Zeke Ashton

  
	
   

  	
   

  	
  Title: Managing Partner

  



 

















 


Schedule A


 


Settlement Shares


 


	
  Holder

  	
   

  	
  No. of Settlement Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  West Coast Opportunity Fund, LLC

  	
   

  	
  1,870,000

  	
   

  
	
  Centaur Value Fund, LP

  	
   

  	
  70,933

  	
   

  
	
  United Centaur Master Fund

  	
   

  	
  59,067

  	
   

  
	
  TOTAL

  	
   

  	
  2,000,000

  	
   

  



 

















 


Exhibit A


 


Registration Rights Agreement


 

















 


Exhibit B


 


Form of Lock-Up Agreement


 

















 


Exhibit C


 


Form of Irrevocable Proxy and Voting
Agreement