Exhibit 10.2
AMENDMENT NUMBER 1
TO
ACQUISITION AGREEMENT
Rexray Corporation and CytoDyn of New Mexico. Inc. entered into an Acquisition
Agreement dated September 30, 2003. The parties wish to amend that Agreement as
set forth in this Amendment Number 1. Defined terms in this Amendment have the
same meanings as they have in the Acquisition Agreement.
I. The parties agree to amend the Acquisition Agreement as follows:
A. Article 1.i. is amended to add the following sentence:
ISSUER understands and agrees that the trademark and license are only
part of the assets of CytoDyn, and that Issuer is not acquiring the
business of CytoDyn. As a result, Issuer also understands that CytoDyn
is not entering into a covenant not to compete or any other restriction
on CytoDyn's business in connection with this Acquisition Agreement.
B. Article 3.ii. is deleted and the following Article 3.ii is added in its
place:
Ownership of Assets. CytoDyn owns and has title to the trademark and
license, subject to no liens or encumbrances.
C. Article 3.xii. is amended by adding the italicized language to the
paragraph:
Conduct of Business. Prior to the closing, CytoDyn shall conduct its
business in the normal course, and shall not do any ofthe following in
such a way as to effect the sale of the trademark and license under this
Acquisition Agreement: (1) sell, pledge, or assign any of the trademark
or license assets, (2) amend its Articles of Incorporation or Bylaws,
(3) declare dividends, redeem or sell 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.
D. Article 3.xvii is amended by deleting the title and adding in its place:
Prior License Failure.
II. The parties further agree that:
A. The amendments to the Acquisition Agreement will be deemed to have been
made as of the date of the Acquisition Agreement.
Amendment Number 1
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B. Except for the amendments, theterms and conditions of the Acquisition
Agreement will remain unchanged.
Dated: November 20, 2003
REXRAY CORPORATION
By: /s/ Xxxxx XxXxxxx
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Xxxxx XxXxxxx, Executive Vice President
CytoDyn of New Mexico, Inc.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
As to paragraph 3.xiv and the provisions of paragraph 8 that apply to him only:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Individually
Amendment Number 1
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