Exhibit 10.1


 


WAIVER AGREEMENT


 


This Waiver Agreement (the “Agreement”) is
made and entered into, effective as of June 8, 2009 (the “Effective Date”), 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 (i) 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”), and (ii) certain Warrants numbered A-1, A-2,
A-3 and A-4 (the “Warrants”).


 


B.            The parties previously
executed that certain Settlement Agreement, Waiver and Amendment dated
effective May 22, 2009 (the “Settlement Agreement”),
pursuant to which, inter alia, the
parties amended the Warrants to reduce the “Exercise Price” thereunder.


 


C.            Under the Certificate
of Designations, with respect to the shares of Series A Preferred Stock
described therein, and the Warrants, with respect to the shares of common stock
issuable under such Warrants, each Holder may not convert its shares of Series A
Preferred Stock or exercise its Warrant if such Holder (together with its
affiliates) would be treated as beneficially owning more than 9.99% of the
Company’s outstanding common stock immediately after such conversion or
exercise (such provisions of the Certificate of Designations and Warrants are
herein referred to as the “Blocker Provisions”).


 


D.            The parties have
agreed to execute this Agreement to memorialize their agreement to waive the
Blocker Provisions.


 


AGREEMENTS:


 


NOW, THEREFORE, the parties hereto, intending to be legally
bound, do hereby agree as follows:


 


1.                                    Waiver
of Blocker Provisions. 
Notwithstanding any provision of the Certificate of Designations or the
Warrants to the contrary, the parties hereto hereby agree to waive the Blocker
Provisions in the Certificate of Designations and the Warrants, with the effect
that such Blocker Provisions shall not preclude a Holder from converting its
shares of Series A Preferred Stock into shares of the Company’s common
stock, and shall not preclude a Holder from exercising its Warrant for shares
of the Company’s common stock.


 

















 


2.                                    Miscellaneous.


 


2.1          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.


 


2.2          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; 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.


 


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


 


2.4          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 


 


2

















 


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).


 


2.5          Entire Agreement; Amendments.  This Agreement and the other Transaction
Documents 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 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 2.5
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.


 


2.6          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:


 


	
  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.

  



 


3

















 


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.


 


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


 


2.8          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.


 


2.9          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.


 


2.10        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.


 


2.11        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 


 


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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]


 


5

















 


IN WITNESS WHEREOF, each Holder and the Company have caused
their respective signature page to this Waiver Agreement 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

  



 


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IN WITNESS WHEREOF, each Holder and the Company have caused
their respective signature page to this Waiver Agreement 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

  



 


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IN WITNESS WHEREOF, each Holder and the Company have caused
their respective signature page to this Waiver Agreement 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

  



 


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


 


 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  UNITED
  CENTAUR MASTER FUND

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Zeke Ashton

  
	
   

  	
   

  	
  Name:
  Zeke Ashton 

  
	
   

  	
   

  	
  Title:
  Investment Manager

  



 


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