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EX-10.1 - AMERICAN DEFENSE SYSTEMS INC | v210855_ex10-1.htm |
UNITED
STATES SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act Of 1934
Date of
Report (Date of earliest event reported): February 10, 2011 (November 12,
2010)
American
Defense Systems, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Delaware
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001-33888
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83-0357690
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(State
or Other
Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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230
DUFFY AVENUE
HICKSVILLE,
NY 11801
(Address
of principal executive offices) (Zip Code)
Registrant’s
Telephone Number, Including Area Code: (516) 390-5300
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
See General Instruction A.2. below):
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a- 12 under the Exchange Act (17 CFR
240.14a- 12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
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Item
1.01.
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Entry
Into a Material Definitive
Agreement
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American
Defense Systems, Inc. (the “Company”) previously entered into a Securities
Purchase Agreement (the “Purchase Agreement”), dated March 7, 2008, with
certain investors (the “Series A Holders”), pursuant to which the investors
acquired shares of the Company’s Series A Convertible Preferred Stock (the
“Series A Preferred”). Pursuant to the terms of the Series A
Preferred set forth in Exhibit A (Certificate of Designations, Preferences and
Rights of such Series A Preferred) to the Company’s Third Amended and Restated
Certificate of Incorporation, as amended (the “Certificate of Designations”),
the Company was required to redeem any outstanding shares of the Series A
Preferred on the Maturity Date, December 31, 2010, as such term is further
defined therein (the “Mandatory Redemption Provision”). On April 8,
2010, the Company entered into a waiver agreement with the Series A Holders,
pursuant to which the Series A Holders agreed to extend the Maturity Date from
December 31, 2010 to April 1, 2011. On August 13, 2010, the Company
entered into a second waiver agreement with the Series A Holders, pursuant to
which the Series A Holders agreed to extend the Maturity Date from April 1, 2011
to July 1, 2011.
Effective
November 12, 2010, the Company entered into a third waiver agreement with the
Series A Holders (the “Waiver Agreement”) that further extended the Maturity
Date from July 1, 2011 to October 1, 2011 (the period from December
31, 2010 to October 1, 2011 is referred to as the “Extension
Period”). Pursuant to the Waiver Agreement, during the Extension
Period, (i) the Series A Holders agreed to waive any right to the redemption of
the Series A Preferred under the Mandatory Redemption Provision until the last
day of the Extension Period, (ii) the Company’s failure to comply with the
Mandatory Redemption Provision prior to the last day of the Extension Period
shall be deemed not to be a breach of such provision or the terms and conditions
of, or applicable to, the Series A Preferred and (iii) the Series A Holders
agreed to waive (A) all rights and remedies that would otherwise be available to
the Series A Holders under the Certificate of Designations or any other
Transaction Documents (as such term is defined in the Purchase Agreement) as a
result of the Company’s failure to comply with the Mandatory Redemption
Provision during the Extension Period to the extent that such rights or remedies
arise as a result of the existence or continuation of the Company’s failure to
comply with the Mandatory Redemption Provision and (B) any Equity Conditions
Failure and any Triggering Event otherwise arising under the Certificate of
Designations as a result of any such failure to comply with the Mandatory
Redemption Provision prior to the last day of the Extension Period.
The
description of the terms of the Waiver Agreement set forth herein is qualified
in its entirety to the full text of the Waiver Agreement, which is filed as an
exhibit hereto.
Item
3.03
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Material
Modification to Rights of Security
Holders.
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The
information included in Item 1.01 of this report is incorporated by reference
into this Item 3.03.
Item
9.01
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Financial
Statements and Exhibits.
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(d)
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Exhibits
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10.1
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Waiver
Agreement between the Company and Series A Holders, dated November 12,
2010.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Company has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
Date: February
10, 2011
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AMERICAN
DEFENSE SYSTEMS, INC.
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By:
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/s/ Gary
Sidorsky
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Chief
Financial Officer
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EXHIBIT
INDEX
Exhibit
Number
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Exhibit
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10.1
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Waiver
Agreement between the Company and Series A Holders, dated November 12,
2010.
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