UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant ¨
Filed by a Party other than the Registrant x
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| ¨ | Preliminary Proxy Statement | |||
| ¨ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |||
| ¨ | Definitive Proxy Statement | |||
| ¨ | Definitive Additional Materials | |||
| x | Soliciting Material Pursuant to § 240.14a-12 | |||
AMERICAN DEFENSE SYSTEMS, INC. | ||||
| (Name of Registrant as Specified In Its Charter) | ||||
ARMOR TECHNOLOGIES LLC DALE S. SCALES JOHN JODLOWSKI JOWCO LLC FRANK A. BEDNARZ HAROLD WROBEL MARK WAYNER EMI WAYNER JOE VAN HECKE | ||||
| (Name of Person(s) Filing Proxy Statement, if other than the Registrant) | ||||
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John S. West 804.697.1269 telephone 804.698-.5138 facsimile john.west@troutmansanders.com |  | TROUTMAN SANDERS LLP Attorneys at Law Troutman Sanders Building 1001 Haxall Point P.O. Box 1122 (23218-1122) Richmond, Virginia 23219 804.697.1200 telephone 804.697.1339 facsimile troutmansanders.com |
PERSONAL AND CONFIDENTIAL
January 31, 2012
VIA OVERNIGHT MAIL
General Alfred Gray
Potomac Institute for Policy Studies
901 N. Stuart St. #200
Arlington VA 22203-1821
| Re: | American Defense Systems, Inc. |
Dear General Gray:
Troutman Sanders LLP represents Armor Technologies LLC, a North Carolina limited liability Company (“Armor”). Armor is part of a group (the “Group”) which, as of today’s date, has acquired approximately 30.2% of the outstanding common shares of American Defense Systems, Inc. (“ADSI”). The purpose of this letter is to notify you, in your capacity as Chairman of the Board of Directors of ADSI (the “Board”), that the Group strongly objects to recent actions taken by the Board and believes that such actions constitute a breach of the Board members’ fiduciary duties to ADSI and its stockholders. As a result, unless the Board takes immediate actions to reverse its actions, our client intends to pursue legal action against ADSI and the Board.
The facts relevant to this situation are the following. On January 6, 2012, ADSI filed a Form 8-K reporting the outcome of stockholder votes per their Annual Stockholder meeting held on December 30, 2011. The results for a proposal to re-elect a current Board Member (Stephen Sieter) were 2,688,509 votes FOR and 26,064,857 votes AGAINST, reflecting a massive show of dissent among stockholders. On that same day, Armor, as required by law, filed a Schedule 13D announcing the establishment of the Group and the Group’s intention to call a special meeting of the stockholders of ADSI in order to remove and replace all of the remaining members of the Board, as well as to amend ADSI’s certificate of incorporation and bylaws (“Bylaws”) to remove certain “anti-takeover provisions” contained therein so as to enable such removal.
After learning of Armor’s Schedule 13D filing, and given the negative results of the proposal to re-elect Board member Stephen Sieter, ADSI filed a Form 8-K on January 9, 2012 reporting the Board’s amendment of ADSI’s Bylaws. Specifically, the Board amended Section 1.2 of the Bylaws to remove the following provision: “(c) upon written request of the
ATLANTA CHICAGO HONG KONG NEW YORK NEWARK NORFOLK ORANGE COUNTY PORTLAND
RALEIGH RICHMOND SAN DIEGO SHANGHAI TYSONS CORNER VIRGINIA BEACH WASHINGTON, DC
January 31, 2012
Page 2
stockholders holding at least a majority of the voting power of all of the then outstanding shares of capital stock of the Company entitled to vote generally.” This deletion from the Bylaws (the “Bylaws Amendment”) effectively eliminates a stockholder’s right to call a special meeting of ADSI’s stockholders.
Between January 9 and today, numerous stockholders of ADSI sent the members of the Board and ADSI’s officers emails stating their displeasure with the Bylaws Amendment and putting them on notice that they likely have violated their fiduciary responsibility to ADSI and its stockholders. Furthermore, as confirmed by a Form 8-K filed by ADSI on January 17, 2012, we are aware that on January 12, 2012, Richard P. Torykian, Sr., notified the Board that he was resigning as a member of the Board effective immediately, stating that “I believe I have no choice but to step down at this time due to certain actions that have been taken by the Board which I am unable to agree with in my fiduciary capacity as a Director.”
Attached to this letter is a stockholder request signed by stockholders holding more than sixty-six and two-thirds percent (66 2/3%) of ADSI’s issued and outstanding common shares requesting that the Company call a special meeting of stockholders for the following purposes:
1. To remove all of the existing directors serving on the Board of Directors for cause;
2. To elect the following director nominees: (i) Dale S. Scales as a Class III director to serve until the 2014 Annual Meeting of Stockholders; (ii) A. Christopher Johnson as a Class II director to serve until the 2013 Annual Meeting of Stockholders; and (iii) Robert Gordon Windesheim as a Class I director to serve until the 2012 Annual Meeting of Stockholders;
3. To adopt a stockholder resolution requesting that the Board of Directors reduce the size of the Board of Directors to three members;
4. To adopt a stockholder resolution requesting that the Board of Directors amend the Company’s Third Amended and Restated Certificate of Incorporation to declassify the Board of Directors;
5. To adopt a stockholder resolution requesting that the Board of Directors amend the Company’s Third Amended and Restated Certificate of Incorporation to remove Article VII thereof in its entirety; and
6. To amend the Company’s Amended and Restated Bylaws to declassify the Board.
January 31, 2012
Page 3
Our client requests that you rescind the recently enacted Bylaws Amendment and call a special meeting of ADSI’s stockholders. If the Board does not take these actions by 5:00 PM Eastern Standard Time on Thursday, February 2nd, 2012, the Group and other stockholders of ADSI will initiate legal action against the Board and ADSI.
Sincerely,
/s/ John S. West
John S. West
Enclosure
| cc: | Pasquale J. D’Amuro |
| Stephen Seiter |
| Victor Trizzino |
January 31, 2012
General Alfred M. Gray, Chairman of the
Board of Directors and Acting Chief Executive Officer
Stephen R. Seiter, Director
Pasquale J. D’Amuro, Director
Victor F. Trizzino, Director
American Defense Systems, Inc.
420 Lillington Parkway
Lillington, North Carolina 27546
Gentlemen:
Please be advised that the undersigned stockholders of American Defense Systems, Inc. (the “Company”), comprising greater than 50% of the voting power of the Company based on 54,987,192 shares of Company common stock outstanding as of December 1, 2011, as disclosed in the Company’s proxy statement for the 2011 Annual Meeting of Stockholders filed under the cover of Schedule 14A with the Securities and Exchange Commission on December 9, 2011, hereby request that the Company call a special meeting of stockholders for the following purposes:
| 1. | To remove all of the existing directors serving on the Board of Directors for cause; |
| 2. | To elect the following director nominees: (i) Dale S. Scales as a Class III director to serve until the 2014 Annual Meeting of Stockholders; (ii) A. Christopher Johnson as a Class II director to serve until the 2013 Annual Meeting of Stockholders; and (iii) Robert Gordon Windesheim as a Class I director to serve until the 2012 Annual Meeting of Stockholders; |
| 3. | To adopt a stockholder resolution requesting that the Board of Directors reduce the size of the Board of Directors to three members; |
| 4. | To adopt a stockholder resolution requesting that the Board of Directors amend the Company’s Third Amended and Restated Certificate of Incorporation to declassify the Board of Directors; |
| 5. | To adopt a stockholder resolution requesting that the Board of Directors amend the Company’s Third Amended and Restated Certificate of Incorporation to remove Article VII thereof in its entirety; and |
| 6. | To amend the Company’s Amended and Restated Bylaws to declassify the Board. |
The undersigned stockholders request that such meeting be held no earlier than February 15, 2012 and no later than March 15, 2012.
The above request is being made pursuant to Section 1.2 of the Company’s Amended and Restated Bylaws as they were in existence on January 6, 2012. The undersigned stockholders are aware of your recent action on January 9, 2012 purportedly amending Section 1.2 to remove the ability of stockholders holding at least a majority of the Company’s voting power from requesting that the Company call a special meeting. The undersigned stockholders respectfully submit that such action was an unreasonable response to the filing by Armor Technologies LLC, et al., of a Schedule 13D on January 6, 2012, which Schedule 13D indicated the filing persons’
intention to call a special meeting of the stockholders of the Company, to remove the current Board of Directors of the Company, to appoint new representatives to the Board of Directors, to amend the Company’s certificate of incorporation and bylaws, including the “anti-takeover provisions” thereof to enable the foregoing, to solicit proxies, written requests or written consents to effect the foregoing, and for the purpose of taking all other actions necessary to achieve the foregoing.
We believe that the bylaw amendment was an improper, retaliatory action designed to entrench the current Board of Directors and strongly request the Board repeal such provision and call the special meeting requested above. Should the Board of Directors refuse to repeal the amendment and call the special meeting, the undersigned stockholders will pursue all remedies available to them, up to and including legal recourse in the Delaware courts.
Please direct any and all oral or written correspondence related to this request to Dale S. Scales, who can be reached at 11010 Lake Grove Blvd. Suite 100, #408, Morrisville, North Carolina 27560, 919-389-8321 (telephone) or 919-379-1091 (facsimile).
[signatures on the following pages]
[Signature page to January 31, 2012
Stockholder Letter to American Defense Systems Inc. Board of Directors]
Respectfully submitted,
| Stockholder Name: |
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| Signature: | * | |||||
| Number of Shares Held: |
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| Percentage Held (based on 54,987,192 shares outstanding): % | ||||||
IMPORTANT NOTICE TO STOCKHOLDERS SIGNING THIS LETTER
This letter has been prepared by Armor Technologies LLC and the other filing persons named in the Schedule 13D filed by such persons with the Securities and Exchange Commission (the “SEC”) on January 6, 2012, which Schedule 13D relates to the share ownership of American Defense Systems, Inc. of such persons and the intentions of such persons related thereto. The Schedule 13D outlines each filing person’s direct and indirect interests in American Defense Systems, Inc.
You are urged to read American Defense Systems, Inc.’s proxy statement related to the proposals outlined in this letter when it is available, as it will contain important information. You can get the proxy statement and any other relevant documents free of charge at the SEC’s website (www.sec.gov).
| * | The following stockholders have signed the January 31, 2012 Stockholder Letter to American Defense Systems Inc. Board of Directors: |
ADSI Holdings, LLC
Balasco, Alex
Bateman, Camille
Bednarz, Frank
Beehler, Jeffrey
Bennett, David
Berthel Fisher & Company
Bonadona, Louis
Bonadona, Thomas
Bowden, Laura
Brazzle, William
Bretsch, Miles
Caminiti, Francis
Carpenter, Steven
Caudle, Jeff
Caudle, Josh
Caudle, Roger
Caudle, Todd
Chan, Kenneth
Collins, Michael
Concrete Solutions of Raleigh
Corrigan, Elizabeth
Ebach, Daryl
Federman, Bruce
Ferran, D. Thomas
Freberg, Ronald
Geislinger, Irving
Geislinger, Jeff
Gressett, Randall
CMT Investments, LLC
Hahler, Mark and Jeanette
Henfling, Gregory
Hensch, Leland
Hutchinson, David
Hutchinson, Michael
James M. and Diane G. Eichelberger Restated Living Trust
Jeffers, Reagan
Jessick, Arnold
Jodlowski, Eugene
Jodlowski, John
John Jodlowski Revocable Trust
JOWCO LLC
Kaufman, Lewis
Kaufman, Michael
Kern, Eugene
Kienow, Robert and Sharon
King, Donald
Kirke, Gerald
Kirke, Jeffrey
Kraemer, Thomas
Kramer, Eugene
Kruger, F. Lawrence
Larson, K. Dennis
Lease, Mark
Lease, Michael
Lindskov, Les
Lugano, Eileen
Magnus, Robert
Maloney, John
Malvin, Kris
Mark and Emi Wayner 2007 Family Trust
Marshall, Robert
Massey, Mary Ann
McPartland, Robert
Mesmer, Jon and Patricia
Molinsky, Maria
Molinsky, Richard
Molinsky, Victor
Montalbana, Alfred
Morales, Marianne
Nelson, Ronald
Nistler, Kurt
Nistler, Peter
O’Brien, Carolyn
O’Brien, Diana
O’Brien, Jacquelyn
O’Brien, James
O’Neill, James
Piscitelli, Anthony
Piscitelli, Marion
Piscitelli, Melissa
Quinlan, Lisa
Rutledge, Daniel
Scales, Dale
Schultz Living Trust
Smith, Charles
Steeltown Consulting Group
Stelton, Craig
Stewart, Xavier
Teare, Roland
Thares, James
Timothy G. Blitz Trust dated January 28, 2004
Torykian, Eric
Torykian, James
Torykian, Sr., Richard
Uihlein, April
Uihlein, Barry
Uihlein, Jacob
Uihlein, Suselinde
Uihlein, Warren
Uihlein, Jr., Warren
Ullman, Harlan
USMC Scout/Sniper Inc.
Van Hecke, Joe
Wahl, Andrea Bia
Ward, Roger
Wardlaw, Sr., Craig
Wertz, Christina
Wertz, Derek
Wertz, Scott
White, Cody
White, Kenneth
Wrobel, Harold