EXHIBIT 10.6
WAIVER AND AMENDMENT
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This
WAIVER AND AMENDMENT ("Amendment") is made as of this 18th day
of
December, 2008, by and between CDEX Inc., a Nevada corporation
("Company"), and
GEMINI MASTER FUND, LTD., a Cayman Islands company ("Holder").
W I T N E S S E T H:
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WHEREAS,
pursuant to that certain Securities Purchase Agreement
("Purchase Agreement") dated as of June 25, 2008 by and between the
Company and
the Holder, on or about such date the Company sold and issued to
the Holder (i)
a 12% Senior Convertible Note ("Note"), which Note is convertible
into shares of
common stock of the Company, $0.005 par value per share ("Common
Stock"), and
(ii) a Common Stock Purchase Warrant to purchase up to 2,717,391
shares of
Common Stock ("Warrant"); capitalized terms used herein but not
otherwise
defined herein shall have the meanings set forth in the Purchase
Agreement, the
Note or the Warrant, as the case may be; and
WHEREAS, the Company wishes (a) to issue shares of Common Stock in
one or
more financings between the date hereof and April 1, 2009 ("Waiver
Period")
without the anti-dilution adjustments applying as set forth in the
Transaction
Documents in certain circumstances, (b) to delay payments of the
Monthly
Redemption Amount due on January 1, 2009 under the Note until
February 1, 2009,
and (c) to allow for prepayment of the Note under certain
conditions, and the
Holder desires to consent to such requests, on the terms and
conditions set
forth herein;
NOW
THEREFORE, in consideration of the foregoing premises and the
mutual
covenants set forth in this Amendment, and for other good and
valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the
parties hereto agree as follows:
1.
Subsequent
Issuance Waivers
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(a) -Common Stock Issuances. Notwithstanding anything contained in
the
Transaction Documents, to the extent the Company sells and issues
shares of
Common Stock or warrants in one or more Common Stock Financings (as
defined
below) during the Waiver Period for gross proceeds which do not
exceed
$500,000 in the aggregate, such issuances shall constitute
"Exempt
Issuances" under the Transaction Documents. For purposes hereof,
"Common
Stock Financing" means the sale and issuance of shares of Common
Stock by
the
Company in a capital raising financing, provided that (a) the
effective
sale
price per share of Common Stock shall equal at least $0.10, (b)
the
transaction shall not be a Variable Rate Transaction or MFN
Transaction,
and
(c) the Company may issue to the purchasers thereof, in connection
with
any
such financing, warrants to purchase a number of shares of Common
Stock
equal to 50% of the number of shares of Common Stock sold to
such
purchasers in such financing, provided that the effective exercise
price
per
share of Common Stock under such warrants shall equal at least
$0.20.
For
clarification, a Common Stock Financing may result from the sale
and
issuance of shares of
Common Stock pursuant to the exercise of currently
<PAGE>
outstanding warrants following a reduction of the exercise
price
thereunder, provided that the provisi
