EXHIBIT 10.6(a)(3)
ADDENDUM DATED SEPTEMBER 28, 2004, TO THE
EQUIPMENT PURCHASE AGREEMENT OF EQUIPMENT DEPOT, INC., DATED MAY 31, 2004
This Addendum ("Addendum") to the Equipment Purchase Agreement dated May
31, 2004 (the "EPA"), inclusive of all of its Exhibits, Addendums and
Amendments, is entered into by and between On Alert Systems, Inc. ( "OAS or the
"Company"), a Nevada corporation, inclusive of its successors and assigns, Cyber
Defense Systems, Inc. ("CYDF"), a Florida corporation, and Equipment Depot,
Inc., Florida corporation (the "Seller"), as follows:
R E C I T A L S
WHEREAS, Company and Seller entered into an Equipment Purchase Agreement
dated May 31, 2004, and other Agreements attached thereto, such as a Money
Purchase Contract ("MPC"), a Registration Rights Agreement ("RRA"), various
exhibits thereto, and Addendums and Amendments of various dates, which provided
the terms under which the Company will purchase from the Seller certain
Equipment, inclusive of terms and conditions relating to collateral pledged by
the Company to the Seller to insure payment there under; and,
WHEREAS, the Seller and the Company agreed to execute to the benefit of the
Seller and the Company any and all documents required by the Seller or the
Company to perfect its interest in and payment of the obligations of the Company
thereto; and,
WHEREAS, the Company has completed a merger and recapitalization, including
a change of corporate name and stock symbol, subsequent to the date of the EPA,
and therefore the parties desire to reflect such modifications, as applicable,
to the EPA, on a universal basis, to be applicable to any and all documents
relating to the transactions; and,
WHEREAS, the parties desire to modify certain provisions and reaffirm all
other provisions of the EPA, as applicable; Now Therefore, in consideration of
the mutual covenants, representations and agreements heretofore entered into
between the parties and hereinafter set forth below, the parties agree that the
following provisions should become a part of the EPA, just as if the provisions
had been included in the EPA, at the time the Agreement was entered into between
the parties. Accordingly, the parties agree as follows:
1. The Company has changed its name to Cyber Defense Systems, Inc., which is a
Florida corporation. As such, all references to On Alert Systems, Inc, a Nevada
corporation, are hereby universally replaced with the new name and state of
incorporation as if such new name and state of incorporation had been in place
at the time of the execution of the various Agreements, as amended or add ended.
All references to "the Company" are now intended to mean CYDF. Any ambiguity
that is evident by the parties at the time of this Addendum caused by the name
change as it relates to the effect or operation of any part of the Agreement
shall be described in Exhibit A, attached hereto. The parties agree herein that
no such ambiguity is intended to affect the substance or operation of the
Agreement as previously executed.
1
2. All obligations, representations, and warranties of On Alert Systems, Inc.,
become the obligations, representations, and warranties of CYDF.
3. Conflict and Ratification. Since the intent of this Addendum to the EPA, is
to modify certain terms and conditions where the addition, deletion, or
modification of terms and conditions, as contained herein, become a part of the
EPA, in the event the terms and provisions of this Addendum conflict with the
terms and conditions of the EPA, or any other agreements executed by the parties
concerning the EPA, the terms of this Addendum shall prevail only to the extent
that this Addendum has modified such applicable terms, and shall not be deemed
nor construed to add, delete, waive, or modify any other terms or conditions, or
subject any existing terms and conditions to any interpretation other than what
was agreed and executed by the parties in the Agreements of August 23, 2004, and
other applicable dates as executed; otherwise, the terms and conditions of such
Agreements are hereby ratified and confirmed.
4. Limitations of this Agreement. Limited by its additions, deletions, or
modifications to the specific terms and conditions of the EPA, this Addendum
constitutes the sole and entire agreement of the parties with respect to such
additions, deletions, or modifications to the specific terms and conditions of
the EPA, and supersedes any and all prior or contemporaneous agreements,
discussions, representations, warranties or other communications regarding such
specific additions, deletions, or modifications to the terms and conditions of
the EPA. The provision of this Addendum shall not be deemed nor construed as a
breach, remedy, or settlement of any provision of the EPA, or any other
documents executed or delivered on August 19, 2004, and other applicable dates,
by the parties.
5. Counterparts. This Addendum may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
6. Addendums. This Addendum may not be amended or modified without the written
consent of the Company and the Seller, nor shall any waiver be effective against
any party unless in writing executed on behalf of such party.
7. Severability. If any provision of this Addendum shall be declared void or
unenforceable by any judicial or administrative authority, the validity of any
other provision and of the entire Addendum shall not be affected thereby.
8. Titles and Subtitles. The titles and subtitles used in this Addendum are for
convenience only and are not to be considered in construing or interpreting any
term or provision of this Addendum.
9. Successors and Assigns. This Addendum may not be assigned by any party hereto
without the prior written consent of the other party hereto. The terms and
conditions of this Addendum shall inure to the benefit of and are binding upon
the parties, their respective successors, executors, beneficiaries and permitted
assigns of the parties hereto.
10. Confidentiality. Each party hereto agrees that, except with the prior
permission of the other party, it shall at all times keep confidential and not
divulge, furnish or make accessible to anyone any information or knowledge
2
relating to (a) any provisions of this Addendum (b) any discussions or
negotiations relating to this Addendum and (c) the identity of the parties to
this Addendum except as required by law or any regulatory agencies. The parties
hereto further agree that there shall be no press release or other public
statement issued by either party relating to this Addendum or the transactions
contemplated hereby, unless the parties otherwise agree in writing, or as
required by applicable regulation or law.
11. Registration Rights. All registration rights granted by the RRA of May 31,
2004, by the Company shall be construed to be granted by CYDF as if such new
name and state of incorporation had been in place at the time of the execution
of the various Agreements, as amended or add ended.
12. Money Purchase Contract. All rights granted by the MPC of May 31, 2004, by
the Company shall be construed to be granted by CYDF as if such new name and
state of incorporation had been in place at the time of the execution of the
various Agreements, as amended or add ended.
IN WITNESS WHEREOF, the Company and the Seller have caused this Addendum to
be executed and delivered by the undersigned as of the 28th day of September,
2004.
and on behalf of all predecessors, inclusive of On Alert Systems, Inc.,
successors, affiliates and assigns to which this Addendum may apply
COMPANY: Cyber Dense Systems, Inc.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxxx, President & CEO
SELLER: Equipment Depot, Inc.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxx, Vice-President
3
