EXHIBIT 10.7
SECOND WAIVER AND AMENDMENT
---------------------------
This SECOND WAIVER AND AMENDMENT
("Amendment") is made effective this 1st
day of February, 2009, 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:
--------------------
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");
WHEREAS, by agreement dated
December 18, 2008 entitled Waiver and
Amendment ("First Amendment") the Transaction Documents were
amended;
capitalized terms used herein but not otherwise defined herein
shall have the
meanings set forth in the Purchase Agreement, the Note, the
Warrant, or the
First Amendment, as the case may be: and
WHEREAS, the Company wishes
(a) to sell shares of Common Stock in
addition to such Stock sold in relation to Section 1 of the First
Amendment in
one or more financings between the date hereof and May 1, 2009
("Extended Waiver
Period") without the anti-dilution adjustments applying as set
forth in the
Transaction Documents in certain circumstances, (b) to delay
payments to Holder
for interest and Monthly Redemption Amounts due on February 1,
March 1 and April
1, 2009 under the Note until May 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--Common
Stock Issuances. Notwithstanding
anything contained in the Transaction Documents, including the
First Amendment,
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
Extended
Waiver Period for gross proceeds in excess of the $500,000
addressed in Section
1 of the First Amendment, such issuances shall constitute "Exempt
Issuances"
under the Transaction Documents, provided that the Company hereby
agrees that at
least 50% of all funds so raised shall be sent to Holder within
fifteen (15)
days of receipt of funds as payment of principal and interest owed
to Holder
pursuant to 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
<PAGE>
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
