THE SECURITIES WHICH ARE THE SUBJECT OF THIS
AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"),
NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT.
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION
STATEMENT
UNDER THE 1933 ACT, OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
1933
ACT, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE
SATISFACTION OF THE
COMPANY.
ACQUISITION AGREEMENT
---------------------
AGREEMENT made this 30th day of September, 2003, by and between
REXRAY
CORPORATION, a Colorado
corporation, (the
"ISSUER"), its principal shareholders
and officers and directors (hereinafter "Shareholders"), and CytoDyn of New
Mexico, Inc., a New Mexico
corporation ("CytoDyn").
In consideration of the mutual promises, covenants, and
representations
contained herein, and other
good and valuable
consideration,
including $10,000
in cash, receipt of which is
hereby acknowledged by ISSUER,
THE PARTIES HERETO AGREE AS FOLLOWS:
1.
ACQUISITION OF TRADE NAME AND PATENT LICENSE.
---------------------------------------------
i. Subject to the terms and conditions of this Agreement, ISSUER
agrees
to issue to CytoDyn, a total of 5,362,640 post-reverse split shares of the
common stock of ISSUER, in
exchange for the following assets: 1) the trademarks,
CytoDyn Cytolin, and that certain trademark symbol,
a copy of which is attached
hereto as Schedule 1(i) (hereinafter collectively"trademark"),
and 2) the
assignment of that certain
patent license
agreement dated July 1, 1994 by
and
between Allen D. Allen and CytoDyn of New Mexico, Inc., ("license"), which
license is attached
hereto as Exhibit "A"
and covers U.S. Patent
No.s 5424066,
5651970, and 6534057, and described as a "method for inhibiting disease
associated with the Human
Immunodeficiency
Virus through the use
of monoclonal
antibodies directed against
anti-self cytotoxic
T-lymphocytes or their
lytics"
(hereinafter
"license.")
ii. The
above-referenced
shares are calculated
after the effectuation
of a one for two reverse split of the common share capital of ISSUER, which
shall be duly approved by its
shareholders.
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<PAGE>
2.
REPRESENTATIONS
AND WARRANTIES.
ISSUER
and Shareholders
represent and warrants to
CytoDyn the following:
i. Organization.
ISSUER is a corporation duly organized,
validly existing,
and in good standing
under the laws of Colorado, and has all
necessary corporate powers to own properties
and carry on a
business, and
is
duly qualified to do business and is in
good standing in Colorado. All actions
taken by the Incorporators,
directors and shareholders of ISSUER have been valid
and in accordance
with the laws of the
State of Colorado.
ISSUER is current in
its reporting obligations to
the Securities and Exchange Commission.
ii. Capital. The
authorized capital stock of ISSUER currently
consists of 20,000,000 shares of common stock, $0.001 par value, of which
1,780,000 are issued and
outstanding, prior to the effectuation of a one for two
(1:2) reverse split of
ISSUER's common share capital. All outstanding shares
are
fully paid and nonassessable,
free of liens, encumbrances, options, restrictions
(with the exception of Rule
144 requirements)
and legal or equitable
rights of
others not a party to this
Agreement. Following the one for two reverse split of
share capital contemplated by
this Agreement, and
the closing, there shall be a
total of 6,277,640
shares of common stock
of ISSUER issued and
outstanding and
there will be no outstanding subscriptions, options, rights, warrants,
convertible securities,
or other agreements or
commitments obligating ISSUER to
issue or to transfer from
treasury any
additional shares of
its capital stock.
None of the outstanding shares of ISSUER are subject to
any stock
restriction
agreements. All of the shareholders of ISSUER have valid title to such
shares
and acquired their shares in a lawful
transaction
and in accordance
with the
laws of Colorado.
iii. Financial
Statements.
The financial
statements of
the
ISSUER have been audited and prepared in
accordance
with generally accepted
accounting principles consistently followed by ISSUER throughout the periods
indicated, and fairly present
the financial position of ISSUER as of the date of
the balance sheet and the financial statements, and the results of its
operations for the periods
indicated. ISSUER is
current in its filings with the
Securities and Exchange Commission, and all such filings are accurate and
complete.
iv. Absence
of Changes. Since the date of the financial
statements filed with the
Securities and Exchange Commission, there has not been
any change in the financial
condition or operations of ISSUER, except changes in
the ordinary course of business, which changes have not in the
aggregate
been
materially
adverse.
v. Liabilities. ISSUER
does not have any debt, liability, or
obligation of any nature,
whether accrued,
absolute, contingent,
or otherwise,
and whether due or to become due, that is not reflected on the ISSUERS'
financial statement.
ISSUER is not aware of
any pending, threatened or asserted
claims, lawsuits or
contingencies involving ISSUER or its common stock. There
is
no dispute of any kind
between the ISSUER and any third party, and no such
dispute will exist at the
closing of this Agreement. At closing, ISSUER will
be
free from any and all
liabilities, liens, claims and/or commitments.
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<PAGE>
vi. Ability to Carry
Out Obligations.
ISSUER has the
right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by Issuer and the
performance by ISSUER of its
obligations hereunder
will not cause,
constitute,
or conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a
default under any
license, indenture,
mortgage,
charter, instrument, articles of incorporation, bylaw, or other agreement
or
instrument to which ISSUER or
its shareholders are a party, or by which they may
be bound, nor will any
consents or
authorizations of any party other than those
hereto be required, (b) an event that would
cause ISSUER to be liable to
any
party, or (c) an event that would result
in the creation or
imposition or
any
lien, charge or encumbrance on any asset of ISSUER or upon the
securities
of
ISSUER to be
acquired.
vii. Full Disclosure. None of the representations and
warranties made by the ISSUER and/or Shareholders, or in any memorandum,
document or whatever form, or
in any certificate or
memorandum furnished
or to
be furnished by the ISSUER,
contains or will
contain any untrue
statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not currently carrying
on
any business and is not a
party to any contract,
agreement or lease. No
person
holds a power of attorney
from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is
not
in violation of any federal,
state, or local
statute, law,
and/or regulation
pertaining to ISSUER.
ISSUER has complied
with all federal and state securities
laws in connection
with the issuance,
sale and distribution of its
securities
and in its filings with the
Securities and
Exchange Commission
and all of such
filings have been timely
made. All of the certifications made in connection with
its filings are true and
correct. All of
ISSUER's affiliates who are subject to
Section 16 of the Securities and Exchange Act of 1934 have made timely and
accurate filings under that
section.
x. Litigation. ISSUER is not (and has not been) a party to
any
suit, action, arbitration, or legal, administrative, or other proceeding, or
pending governmental
investigation.
To the best knowledge
of the ISSUER, there
is no basis for any such
action or proceeding
and no such action or
proceeding
is threatened against ISSUER and ISSUER is not subject
to or in default
with
respect to any order, writ,
injunction, or decree
of any federal, state, local,
or foreign court, department,
agency, or instrumentality.
xi. Conduct of
Business. Prior to the
closing, ISSUER
shall
conduct its business in the
normal course, and
shall not (1) sell,
pledge, or
assign any assets (2) amend
its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell or issue stock or other securities, (4) incur any
liabilities, (5) acquire or dispose of any
assets, enter into any contract,
guarantee obligations of any third party, or (6) enter into any other
transaction or commit to or agree to do any of the
foregoing.
There are no
cumulative voting rights with
respect to the common stock issued by ISSUER.
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<PAGE>
xii. Documents.
All minutes, consents or other documents
pertaining to ISSUER to be
delivered at closing shall be valid and in accordance
with the laws of
Colorado.
xiv. Title.
The Shares to be
issued to CytoDyn
will be, at
closing, free and clear of all liens,
security interests, pledges, charges,
claims, encumbrances and restrictions of any kind,
shall be issued pursuant to
Regulation D, Section 506 and 4(2)of the Act and shall bear a legend in
the
following format: "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
BY THE ISSUEE FOR INVESTMENT PURPOSES. SAID SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER THE SECURITIES ACT OF
1933, OR A PRIOR OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER THAT REGISTRATION
IS NOT REQUIRED UNDER THE ACT." None of such Shares
are or will be subject to any
voting trust or agreement. No person holds or has
the right to receive any proxy or similar instrument with respect to such
shares, except as provided in this
Agreement, the ISSUER
is not a party to any
agreement which offers or grants to any
person the right to purchase or acquire
any of the securities to be issued to
CytoDyn. There is no
applicable
local,
state or federal law, rule,
regulation,
or decree which would,
as a result
of
the issuance of the Shares to
CytoDyn, impair, restrict or delay CytoDyn's
voting rights with respect to
the Shares.
xv. Employees.
Except for the fact that the ISSUER has
officers who are deemed to be employees by law, the ISSUER does not have
now,
nor has it ever had any
employees and is not
now, nor has it ever had any COBRA
or other benefit obligations. The current directors and officers
of the ISSUER
are not entitled to any compensation of any form, whether past, current or
future that has not been paid
and no severance benefits are payable to them.
xvi. Taxes. There are
no outstanding or threatened tax liens,
assessments, or audits
against ISSUER or any of its assets.
3.
CytoDyn represents and warrants to ISSUER the following:
i. Organization.
CytoDyn is a
corporation
duly organized,
validly existing, and in good standing under the laws of New Mexico,
has all
necessary corporate powers to own properties
and carry on a
business, and
is
duly qualified to do business
and is in good standing in New Mexico. All actions
taken by the Incorporators,
directors and CytoDyn of CytoDyn have been valid and
in accordance with the laws
of New Mexico.
ii. CytoDyn
and Issued Stock. CytoDyn currently has
outstanding 63,283 shares of
common stock.
iii. Counsel.
CytoDyn represents and
warrants that prior to
Closing, that it has been represented by independent counsel or has had the
opportunity to retain
independent counsel to represent it in this transaction.
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<PAGE>
iv. Financial Statements. The financial statements of
CytoDyn
have been prepared in
accordance with generally accepted accounting principles
consistently followed by CytoDyn throughout the
periods indicated,
and fairly
present the financial position of CytoDyn as of the date
of the balance
sheet
and the financial statements,
and the results of its
operations for the periods
indicated.
v. Absence of Changes.
Since the date of the letter of intent
executed by the parties, there has not been any change in the financial
condition or operations
of CytoDyn,
except changes in the ordinary
course of
business, which changes have
not in the aggregate been materially adverse.
vi. Liabilities. CytoDyn does not have any debt, liability,
or
obligation of any nature,
whether accrued,
absolute, contingent,
or otherwise,
and whether due or to become due, that is not reflected on the CytoDyn's
financial statement. CytoDyn
is not aware of any pending, threatened or asserted
