July 27, 2007
Malcolm Philips
CDEX Inc.
4555 South Palo Verde Road
Suite 123
Tucson, Arizona 85714
Mr. Greg Baldwin
Baxa Corporation
1445 Grasslands Drive
Englewood, Colorado 80112-3903
Dear Mr. Baldwin:
Subject: Second Amendment to Reseller Agreement
--------------------------------------
RECITALS
As we have discussed, Baxa Corporation, a Colorado corporation, having
its principal offices at 14445 Grasslands Drive, Englewood, Colorado 80112
("Baxa") and CDEX, Inc. a Nevada corporation, having its principal offices at
4555 South Palo Verde Road, Suite 123, Tucson, Arizona 85714, entered into a
certain Reseller Agreement dated November 7, 2005 ("Reseller Agreement") which
was amended by a letter Agreement dated January 30, 2007 ("First Amendment
Agreement") (both the Reseller Agreement and First Amendment Agreement are
together termed "Agreement"). Baxa and CDEX would like to amend the Agreement as
set forth below. This instant amendment to the Agreement is termed the "Second
Amendment".
AGREEMENT
Accordingly, for good and valuable consideration, the sufficiency of
which is agreed to by both parties, notwithstanding any provisions to the
contrary contained in the Agreement, Baxa and CDEX agree as follows:
1. The RECITALS, written above, are incorporated into this Second
Amendment by reference.
2. Section 9.2 of the Reseller Agreement shall be changed as
follows: After the sentence which ends "...(the "Renewal Date")"
insert the following sentence: "Notwithstanding the foregoing or
any provision in the Agreement to the contrary, for the first
renewal cycle, Baxa and CDEX shall have until September 10, 2007
to determine if the Agreement shall be renewed."
3. Section 2.1 of the Reseller Agreement shall be changed as
follows: After the last sentence which ends ..."all sales
efforts outside of the Territory" insert the following:
"Notwithstanding the foregoing or any provision in the Agreement to the
contrary, Baxa and CDEX agree that the following provisions shall govern
all marketing, sales, support and related activities associated with the
Device and Products as defined in the Agreement in the Territory during
the term of this Agreement:
.
o CDEX is granted a non-exclusive right to market and sale the Device
and Products. Baxa will continue with reasonable sales and marketing
of the CDEX Products and Devices.
o To assure continuity of service for all users of the ValiMed(TM)
Products, CDEX will provide all Annual Support and sales of services
and devices related to the ValiMed Units (e.g., cuvette sales). To
facilitate this, all existing Contracts between Baxa and its Clients
related to the Products or Device are hereby assigned to CDEX. All
reasonable and agreed upon costs associated with this transfer will
be borne by Baxa. In addition, Contracts for all Devices and
Products sold pursuant to the Agreement and Second Amendment thereto
will be between the ultimate end user Client and CDEX.
o Absent specific direction from Baxa to the contrary, during the term
of the Agreement, the Devices provided to fulfill all new or
backlogged sale or lease contracts will come first from the
Production Units owned by Baxa currently in the CDEX warehouse,
unless directed by Baxa otherwise.
o Any and all revenue or Client payments associated with existing or
new contracts associated with the Device or Products will be
collected and retained by CDEX except as set forth below:
o Related to a contract for the purchase or lease of one Device by
_________ and any contract associated with a purchase or lease
of a Device(s) by a Client under an existing contract between
Baxa and a Client where the Device(s) has not been delivered,
CDEX will install that Device(s) and the fees associated with
purchase or lease of the Device(s) at issue in the Client
contract will be dispersed as set forth in the existing
Agreement, with the exception of Annual Support fees which will
be fully retained by CDEX, and fees associated with Cuvette
sales which will be dispersed according to provisions discussed
below. To the extent that such a Client requires an on-site
demonstration of the Device by CDEX before the Client decides to
go forth with the contract, Baxa shall reimburse CDEX for its
efforts on a "time and expenses" basis at CDEX's existing hourly
rates. In this regard, irrespective of contracts with existing
Clients, CDEX shall be entitled to an Annual Support fee of
$_____ per month.
o Related to any contract associated with the purchase or lease of
a Device(s) by a Client under an existing contract between Baxa
and a Client where the Device has already been delivered to the
Client, the fees associated with purchase or lease of the
Device(s) at issue in the Client contract will be dispersed as
set forth in the exiting Agreement, with the exception of Annual
Support fees which will be fully retained by CDEX and fees
associated with Cuvette sales which will be dispersed according
to provisions discussed below. In this regard, irrespective of
contracts with existing Clients, CDEX shall be entitled to an
Annual Support fee of $_____ per month.
o Related to the purchase or lease of a Device and Products that
is not now the direct subject of an existing Client contract:
|X| Before all of the existing Baxa inventory in the CDEX
warehouse as of the Effective Date of this Second
Amendment to the Agreement is delivered to a Client due
to a sale or lease, on any new sale of a Device from
the Baxa inventory, Baxa will receive $________ plus
1/2 of the remaining sales price of the Device (e.g.,
if the sales price is $_____, Baxa will receive
$___________; if the sales price is $_____, Baxa will
receive $__________). Before all of the existing Baxa
inventory in the CDEX warehouse as of the Effective
Date of this Second Amendment to the Agreement is
delivered to a Client due to a sale or lease, on any
new lease of a Device from the Baxa inventory, Baxa
will receive ___% of the "lease payments" until
$________ is paid and then ___% thereafter until Baxa
receives a total of $__________ or until the lease is
terminated. If the aforementioned lease is converted to
a sale of the leased Device, Baxa will receive ____% of
the sales proceeds until it has received a combined
total of $__________ from the lease proceeds and sales
proceeds and then ___% of the sales proceeds until it
has received a combined total of $_________ from the
lease proceeds and sales proceeds
|X| After all of the existing Baxa inventory in the CDEX
warehouse as of the Effective Date of this Second
Amendment to the Agreement is delivered to a Client due
to a sale or lease, on any new sale of a Device Baxa
will receive ___% of the sales price. After all of the
existing Baxa inventory in the CDEX warehouse as of the
Effective Date of this Second Amendment to the
Agreement is delivered to a Client due to a sale or
lease, on any new lease of a Device Baxa will receive
___% of the lease payments until Baxa receives $_____
or until the lease agreement is terminated without
further action. If the lease agreement is converted
into a sales agreement, Baxa will receive a total
amount of lease payments and sales proceeds equal to
$_____.
|X| For the purpose of calculating the amount owed to Baxa
under a sale or lease of a Device, in all cases the
"sales price" is the price of the Device and the "lease
payments" are payments for lease of the Device. Neither
the "sales price" nor "lease payments" include any
installation fee or annual maintenance support cost. In
all cases, Baxa will be paid within thirty (30) days of
receipt of the respective payment by CDEX.
|X| CDEX shall provide a monthly sales report to Baxa
regarding any Devices and Products sold during the
preceding month, including a schedule of payments owed
to Baxa for any Devices and Products where Baxa has not
previously been paid in full.
o From the Effective Date of this Second Amendment to the
Agreement throughout the remaining term of the Agreement, ___%
of the gross revenue from the sale of Cuvettes will be dispersed
to Baxa"
4. With regard to the Devices that Baxa has purchased from CDEX to
date that have not been shipped to designated clients, CDEX will
continue to hold those Devices in its warehouse until directed
by Baxa to ship them to a specified client's address or until
the following dates:
a. July 31, 2007: whereupon CDEX will ship all remaining Baxa
Devices up to _____ Devices from the CDEX warehouse to a
location designated by Baxa or to Baxa at 14445 Grasslands
Drive, Englewood, CO.
b. October 30, 2007, whereupon CDEX will ship all remaining Baxa
Devices and Products in the CDEX warehouse to a location
designated by Baxa or to Baxa at 14445 Grasslands Drive,
Englewood, CO.
If you agree with the terms in this letter, please so indicate by
signature below.
- ------------------------ ------------------------
Malcolm Philips Gregory Baldwin
CEO CEO
CDEX Inc Baxa Corporation