Exhibit 10.7(a)(3)
AMENDMENT #3 DATED February 8, 2005
TO THE SPA DATED August 19, 2004
This Third Amendment ("Third Amendment") to the Stock Purchase Agreement
("SPA") is entered into by and between Cyber Defense Systems, Inc., ("Cyber" or
the "Company"), a Florida corporation, inclusive of its successors and assigns,
and Allstars Marketing, Inc., a Florida corporation ("Purchaser"), as follows:
R E C I T A L S
WHEREAS, Company and Purchaser entered into a Stock Purchase Agreement
("SPA") dated as of August 19, 2004, which provided the terms under which
Company will be paid the consideration Purchaser agreed to pay to Company for
the fair market value of its common stock in the amount of 88,000 shares,
inclusive of closing costs. Company agreed to sell to Purchaser and Purchaser
agreed to Purchase pursuant to the terms of an SPA entered into between the
parties; and,
WHEREAS, the Purchaser agreed to execute to the benefit of the Company any
and all documents required by the Company to perfect its interest in and
purchase of the stock so purchased by the Purchaser; and,
WHEREAS, the Company and Purchaser desire to modify certain terms and
conditions regarding the Purchaser's option to purchase additional shares of
Cyber common stock, subsequent to the date of the SPA, RRA, and Amendment #1 and
# 2 to the SPA, and therefore the parties desire to reflect such modifications,
as applicable, to the SPA, 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 SPA, RRA, and Amendments #1 and #2 to the SPA, 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 SPA just as if the provisions had been included in the SPA at the
time the Agreement was entered into between the parties. Accordingly, the
parties agree as follows:
1. Pursuant to the August 30th, 2004, Amendment # 1 of the SPA dated August
19th, 2004, the Company and Purchaser have agreed to modify Section 11 of said
Amendment #1, wherein the number of additional shares available for the
Purchaser to purchase are hereby changed. The Purchaser shall hereby be entitled
to purchase up to an additional 88,000 shares at the same price per share as
paid pursuant to the original 88,000 shares, and subject to the same conditions,
such as registration or exemption rights, etc., as the 88,000 shares, but may
exercise this right only during the 180 days following the execution date of
this Amendment#3. No other shares shall be available to the Purchaser pursuant
to this Amendment #3, or the SPA, at such price, other than these 88,000
additional shares
1
2. The Company shall file an S-3 registration statement to register the
outstanding 88,000 held by the purchaser by March 1, 2005, pursuant to
regulatory procedure and applicable statute.
3. The Company shall include any of the 88,000 additional shares purchased
by the Purchaser in the first registration statement filed subsequent to the
purchase of such shares by the Purchaser, but in no event later than 45 days
subsequent to such purchase. In the event that an exemption from registration is
available to the Company, such additional shares shall be included in such
exemption, and if deemed exempt by a regulatory entity or court of appropriate
jurisdiction, the Company will not be required to file a registration statement
registering such shares.
4. Conflict and Ratification. Since the intent of this Amendment #3 to the
SPA 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
SPA, in the event the terms and provisions of this Amendment #3 conflict with
the terms and conditions of the SPA, or any other agreements executed by the
parties concerning the SPA, the terms of this Amendment #3 shall prevail only to
the extent that this Amendment 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 19, 2004; otherwise, the terms and conditions of such Agreements are
hereby ratified and confirmed.
5. Limitations of this Agreement. Limited by its additions, deletions, or
modifications to the specific terms and conditions of the SPA, this Amendment #3
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 SPA, 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 SPA. The provision of this Amendment #3 shall not be deemed nor construed as
a breach, remedy, or settlement of any provision of the SPA or Registration
Rights Agreement ("RRA"), or any other documents executed or delivered on August
19, 2004, by the parties.
6. Counterparts. This Amendment #3 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.
7. Amendments. This Amendment #3 may not be amended or modified without the
written consent of the Company and the Purchaser, nor shall any waiver be
effective against any party unless in writing executed on behalf of such party.
8. Severability. If any provision of this Amendment #3 shall be declared
void or unenforceable by any judicial or administrative authority, the validity
of any other provision and of the entire Amendment #3 shall not be affected
thereby.
9. Titles and Subtitles. The titles and subtitles used in this Amendment #3
are for convenience only and are not to be considered in construing or
interpreting any term or provision of this Amendment #3.
2
10. Successors and Assigns. This Amendment #3 may not be assigned by any
party hereto without the prior written consent of the other party hereto. The
terms and conditions of this Amendment #3 shall inure to the benefit of and are
binding upon the parties, their respective successors, executors, beneficiaries
and permitted assigns of the parties hereto.
11. 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
relating to (a) any provisions of this Amendment #3, (b) any discussions or
negotiations relating to this Amendment #3 and (c) the identity of the parties
to this Amendment #3 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 Amendment #3 or the
transactions contemplated hereby, unless the parties otherwise agree in writing,
or as required by applicable regulation or law.
12. Registration Rights. All registration rights granted by the RRA of
August 19, 2004, by the Company shall be construed to be applicable, except as
amended herein.
13. Documentation Expense. The Company shall pay One Thousand dollars
($1,000) to the SearchPro Corporation for the provision of documents relating to
this Amendment, and for its expenses and costs related to the provision of this
Amendment, due and payable upon the execution of this Amendment by the parties
hereto.
IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Amendment #3 to be executed and delivered by the undersigned as of the 8th day
of February, 2005.
COMPANY: Cyber Dense Systems, Inc., and on behalf of all predecessors, inclusive
of On Alert Systems, Inc., successors, affiliates and assigns to which this
Amendment #3 may apply
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxx, CEO
PURCHASER: Allstars Marketing, Inc.
By: By: /s/ X.X. Xxxxx
-----------------------------------
X.X. Xxxxx, President
3
