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 oth
