SECURITY AGREEMENT (Patent)
(Patent)
THIS SECURITY AGREEMENT
(PATENT) (“Agreement”), is
entered into and made effective as of August 8, 2008, by and between IR BIOSCIENCES HOLDINGS, INC.,
a Delaware corporation with its principal place of business located at
0000 X. Xxx Xx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (the “Parent”), and the
each subsidiary of the Parent listed on Schedule I attached hereto (each a
“Subsidiary,”
and collectively and together with the Parent, the “Company”), in favor
of Brencourt Advisors, LLC as agent (the “Secured Party”) for
the holders of the Convertible Debentures referred to in the following paragraph
(the “Holders”).
WITNESETH:
WHEREAS, in connection with
the Securities Purchase Agreement by and among the Parent and the Secured Party
of even date herewith (the “Securities Purchase
Agreement”), the Parent has agreed, upon the terms and subject to the
conditions of the Securities Purchase Agreement, to issue to the Holders (i) an
aggregate original principal amount of up to $5,000,000 of senior secured
convertible debentures (the “Convertible
Debentures”), which shall be convertible into shares of the Parent’s
Common Stock (the “Conversion Shares”);
and (ii) warrants (the “Warrants”) to be
exercisable to acquire additional shares of Common Stock (the “Warrants Shares”)
initially in that number of shares of Common Stock set forth in the Securities
Purchase Agreement;
WHEREAS, to induce each Holder
to purchase the Convertible Debentures and enter into the Securities Purchase
Agreement and the documents entered into in connection therewith, (collectively
referred to as the “Transaction
Documents”), each Company hereby grants to the Secured Party a security
interest, in and to the Patent Collateral (as defined below) to secure all of
the Obligations (as defined below).
WHEREAS, in connection with
the Securities Purchase Agreement, each Company has agreed to provide the
Secured Party a general security interest in the Pledged Property (as this term
is defined in the Security Agreement by and between each Company and the Secured
Party, dated August 8, 2008 (together with all amendments, supplements,
restatements and other modifications, if any, from time to time made thereto,
the “Security
Agreement”);
WHEREAS, each Company has duly
authorized the execution, delivery and performance of this
Agreement;
NOW THEREFORE, for good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
agrees as follows:
SECTION
1. Definitions. Unless
otherwise defined herein otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the
Securities Purchase Agreement.
(a) “Obligations” shall have the
meaning assigned to it in the Security Agreement.
SECTION
2. Grant of Security
Interest. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, to secure the payment and
performance of all of the Obligations of the Company, the Company does hereby
mortgage, pledge and hypothecate to the Secured Party and grant to the Secured
Party a security interest in all of the following property (the “Patent Collateral”), now owned
and existing:
(a) all
letters patent and applications for letters patent throughout the world,
including all patent applications in preparation for filing anywhere in the
world and including each patent and patent application referred to in Schedule A
hereto;
(b) all
reissues, divisions, continuations, continuations-in-part, extensions, renewals
and reexaminations of any of the items described in clause (a);
(c) all
patent licenses and other agreements providing the Company with the right to use
any of the items of the type referred to in clauses (a) and (b), including each
patent license referred to in Schedule A
hereto;
(d) the right
to xxx third parties for past, present or future infringements of any Patent
Collateral described in clauses (a) and (b) and, to the extent applicable,
clause (c); and
(e) all
proceeds of, and rights associated with, the foregoing, (including license
royalties and proceeds of infringement suits), and all rights corresponding
thereto throughout the world.
SECTION
3. Security
Agreement. This Agreement has been executed and delivered by
each Company for the purpose of recording the security interest of the Secured
Party in the Patent Collateral relating to patents referred to in Schedule A with the
United States Patent and Trade Marks Office, to the extent it may be so
registered therein. The security interest granted hereby has been
granted as a supplement to, and not in limitation of, the security interest
granted to the Secured Party under the Security Agreement. The
Security Agreement (and all rights and remedies of the Secured Party thereunder)
shall remain in full force and effect in accordance with its terms.
SECTION
4. Release of Security
Interest. Upon payment in full of all Obligations the Secured
Party shall, at the Company’s expense, execute and deliver to the Company all
instruments and other documents as may be necessary or proper to release the
lien on any security interest in the Patent Collateral which has been granted
hereunder.
SECTION
5. Acknowledgement. The
Company does hereby further acknowledge and affirm that the rights and remedies
of the Secured Party with respect to the security interest in the Patent
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which (including the remedies provided for therein)
are incorporated by references herein as if fully set forth herein.
SECTION
6. Securities Purchase
Agreement. Notwithstanding any other term or provision hereof,
in the event that any provisions hereof contradict and are incapable of being
construed in conjunction with the provisions of the Securities Purchase
Agreement, the provisions of the Securities Purchase Agreement shall take
precedence over those contained herein and, in particular, if any act of the
Company is expressly permitted under the Securities Purchase Agreement but is
prohibited hereunder, any such act shall be permitted hereunder and any
encumbrance expressly permitted under the Securities Purchase Agreement to exist
or to remain outstanding shall be permitted hereunder and thereunder. This
instrument, document or agreement may be sold, assigned or transferred by the
Agent in accordance with the terms of the Securities Purchase
Agreement.
SECTION
7. Counterparts. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written
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IR
Biosciences Holdings, Inc.
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By: /s/ Xxxxxxx
Xxxxxxx
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Name: Xxxxxxx
Xxxxxxx
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Title: CEO
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IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
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COMPANY:
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ImmuneRegen
BioSciences, Inc.
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By: /s/ Xxxxxxx
Xxxxxxx
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Name: Xxxxxxx
Xxxxxxx
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Title: CEO
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IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
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SECURED
PARTY:
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Brencourt
Multi-Strategy Master Ltd.
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By: Brencourt
Advisors, LLC, its investment manager
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By:
/s/ Xxxxxxx
Xxxxxx
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Name: Xxxxxxx
Xxxxxx
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Title: Chief
Financial Officer
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IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
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SECURED
PARTY:
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Brencourt
Multi-Strategy Enhanced Dedication Fund, L.P.
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By: Brencourt
Advisors, LLC, its investment manager
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By: /s/ Xxxxxxx
Xxxxxx
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Name: Xxxxxxx
Xxxxxx
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Title: Chief
Financial Officer
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IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
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SECURED
PARTY:
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Man
Mac Schreckhorn 14B Limited
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By: Brencourt
Advisors, LLC, its investment manager
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By: /s/ Xxxxxxx
Xxxxxx
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Name: Xxxxxxx
Xxxxxx
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Title: Chief
Financial Officer
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SCHEDULE
I
LEGAL NAMES; ORGANIZATIONAL
IDENTIFICATION NUMBERS; STATES OF ORGANIZATION
The
Company has one wholly-owned subsidiary:
ImmuneRegen
BioSciences, Inc.
8767 E.
Xxx Xx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxx 00000
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Company’s
Name
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State
of Organization
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Employer
ID
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Organizational
ID
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IR
Biosciences Holdings, Inc.
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Delaware
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00-0000000
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2063399
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ImmuneRegen
BioSciences, Inc.
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Delaware
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00-0000000
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3585852
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SCHEDULE
A
PATENTS AND
APPLICATIONS
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TITLE
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COUNTRY
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FILING
DATE
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APPLICATION
NUMBER
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DATE
ISSUED
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PATENT
NUMBER
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Substance
P Treatment for Immunostimulation
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United
States of America
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23-Feb-98
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09/028003
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7-Dec-99
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5998376
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Substance
P Treatment for Immunostimulation
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United
States of America
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28-Mar-97
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08/829445
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31-Aug-99
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5945508
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Substance
P Treatment for Immunostimulation
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Australia
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8-Jul-97
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40464/97
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22-Nov-01
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737201
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Substance
P Treatment for Immunostimulation
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Canada
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8-Jul-97
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2261885
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Substance
P Treatment for Immunostimulation
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Switzerland
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8-Jul-97
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97938049
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24-Mar-04
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957930
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Substance
P Treatment for Immunostimulation
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Germany
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8-Jul-97
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97938049
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24-Mar-04
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957930
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Substance
P Treatment for Immunostimulation
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France
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8-Jul-97
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97938049
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24-Mar-04
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957930
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Substance
P Treatment for Immunostimulation
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Spain
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8-Jul-97
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97938049
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24-Mar-04
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957930
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Substance
P Treatment for Immunostimulation
|
United
Kingdom
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8-Jul-97
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97938049
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24-Mar-04
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957930
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Substance
P Treatment for Immunostimulation
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Ireland
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8-Jul-97
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97938049
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24-Mar-04
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957930
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Substance
P Treatment for Immunostimulation
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Italy
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8-Jul-97
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97938049
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24-Mar-04
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957930
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|
Substance
P Treatment for Immunostimulation
|
Liechtenstein
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8-Jul-97
|
97938049
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24-Mar-04
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957930
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Substance
P Treatment for Immunostimulation
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Monaco
|
8-Jul-97
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97938049
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24-Mar-04
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957930
|
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Amelioration
of Effects of Cigarette Smoke
|
United
States of America
|
22-Aug-03
|
10/645,839
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||
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Amelioration
of Effects of Cigarette Smoke
|
Singapore
|
22-Aug-03
|
200501072-3
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||
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Amelioration
of Effects of Cigarette Smoke
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China
|
22-Aug-03
|
3820184.4
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||
|
Amelioration
of Effects of Cigarette Smoke
|
Japan
|
22-Aug-03
|
2004-532943
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||
|
Amelioration
of Effects of Cigarette Smoke
|
European
Patent Office
|
22-Aug-03
|
3791722.6
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||
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Amelioration
of Effects of Cigarette Smoke
|
Canada
|
22-Aug-03
|
2496447
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||
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Use
of Substance P or a Bioactive Analog Thereof for Production
of Medicament for Ameliorating or Preventing Damage Caused by
Cigarette Smoke
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Vietnam
|
22-Aug-03
|
1-2005-00215
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||
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Acute
Respiratory Syndromes
|
Hong
Kong
|
22-Jun-06
|
6107144.4
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||
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Acute
Respiratory Syndromes
|
European
Patent Office
|
14-Apr-04
|
4759500.4
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||
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Acute
Respiratory Syndromes
|
United
States of America
|
14-Oct-05
|
10/553,232
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||
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Acute
Respiratory Syndromes
|
Singapore
|
14-Apr-04
|
200507608-8
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||
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Use
of Substance P or its Analogs for the Manufacture of Medicaments for
Treating or Protecting SARS or ARDS
|
Vietnam
|
14-Apr-04
|
1-2005-01560
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||
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Prevention
of Respiratory Infections in Fowl
|
European
Patent Office
|
23-Nov-05
|
5849894
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||
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Prevention
of Respiratory Infections in Fowl
|
Singapore
|
27-Jan-05
|
200500467-6
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||
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Prevention
of Respiratory Infections in Fowl
|
Thailand
|
11-Feb-05
|
97659
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||
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Prevention
of Respiratory Infections in Fowl
|
Patent
Cooperation Treaty
|
23-Nov-05
|
PCT/US05/042601
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||
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Prevention
of Respiratory Infections in Fowl
|
United
States of America
|
3-July-07
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11/795,659
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Prevention
of Respiratory Infections in Fowl
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Xxxxxxxxx
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00-Xxx-00
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2005323304
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Prevention
of Respiratory Infections in Fowl
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Japan
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23-Nov-05
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2007-549376
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||
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Prevention
of Respiratory Infections in Fowl
|
Canada
|
23-Nov-05
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2,593,232
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||
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Prevention
of Respiratory Infections in Fowl
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Vietnam
|
5-May-05
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1-2005-00599
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Treatment
of Skin Diseases
|
European
Patent Office
|
15-Dec-05
|
5854144.2
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||
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Treatment
of Skin Diseases
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Singapore
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27-Jan-05
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200500466-8
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||
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Treatment
of Skin Diseases
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Vietnam
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5-May-05
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1-2005-00598
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||
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Treatment
of Skin Diseases
|
Thailand
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25-Feb-05
|
98080
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||
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Treatment
of Skin Diseases
|
Canada
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15-Dec-05
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2594517
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||
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Treatment
of Skin Diseases
|
Australia
|
15-Dec-05
|
2005324417
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||
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Treatment
of Skin Diseases
|
Patent
Cooperation Treaty
|
15-Dec-05
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XXX/XX00/000000
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||
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Xxxxxxxxx
xx Xxxx Xxxxxxxx
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Xxxxxx
Xxxxxx of America
|
11-Jul-07
|
11/795,044
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||
|
Method
to Promote Wound Healing
|
European
Patent Office
|
25-Oct-05
|
5813067.5
|
||
|
Method
to Promote Wound Healing
|
Australia
|
25-Oct-05
|
2005299341
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||
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Method
to Promote Wound Healing
|
Japan
|
25-Oct-05
|
2007-539081
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||
|
Method
to Promote Wound Healing
|
Canada
|
25-Oct-05
|
2585265
|
||
|
Method
to Promote Wound Healing
|
Patent
Cooperation Treaty
|
25-Oct-05
|
PCT/US05/038646
|
||
|
Method
to Promote Wound Healing
|
United
States of America
|
27-Apr-07
|
11/666,474
|
||
|
Treatment
for Asthma
|
Patent
Cooperation Treaty
|
31-Mar-06
|
PCT/US06/011833
|
||
|
Treatment
for Asthma
|
European
Patent Office
|
31-Mar-06
|
6748998.9
|
||
|
Treatment
for Asthma
|
Japan
|
31-Mar-06
|
2008-504408
|
||
|
Treatment
for Asthma
|
Australia
|
31-Mar-06
|
Tba
|
||
|
Treatment
for Asthma
|
Canada
|
31-Mar-06
|
2,603,808
|
||
|
Treatment
for Asthma
|
Singapore
|
24-Jun-05
|
200504104-1
|
||
|
Treatment
for Asthma
|
United
States of America
|
25-Sep-07
|
11/887,105
|
||
|
Stimulation
of Hair Growth
|
United
States of America
|
20-Jun-05
|
10/539,734
|
||
|
Stimulation
of Hair Growth
|
Patent
Cooperation Treaty
|
18-Dec-03
|
PCT/US03/040259
|
||
|
Inducing
and Maintaining Hair Color
|
United
States of America
|
25-Oct-06
|
11/587,594
|
||
|
Inducing
and Maintaining Hair Color
|
Patent
Cooperation Treaty
|
18-Apr-05
|
PCT/US05/013112
|
||
|
Anti-Aging
Effects of Substance P
|
Patent
Cooperation Treaty
|
18-Apr-05
|
PCT/US05/013113
|
||
|
Anti-Aging
Effects of Substance P
|
Japan
|
18-Apr-05
|
2007-509540
|
||
|
Anti-Aging
Effects of Substance P
|
Canada
|
18-Apr-05
|
Tba
|
||
|
Anti-Aging
Effects of Substance P
|
United
States of America
|
25-Oct-06
|
11/587,595
|
||
|
Anti-Aging
Effects of Substance P
|
European
Patent Office
|
18-Apr-05
|
5755488.3
|
||
|
Anti-Aging
Effects of Substance P
|
China
|
18-Apr-05
|
2005-80016786.5
|
||
|
Anti-Aging
Effects of Substance P
|
Australia
|
18-Apr-05
|
2005240026
|
||
|
Method
to Reduce the Risk and/or Severity of Anthrax Infection
|
Patent
Cooperation Treaty
|
6-Mar-07
|
PCT/US07/005668
|
||
|
Method
to Reduce the Risk and/or Severity of Anthrax Infection
|
United
States of America
|
6-Mar
07
|
Tba
|
||
|
Prophylactic
and Therapeutic Treatment of Mammals for Avian Influenza Virus
Infection
|
Patent
Cooperation Treaty
|
14-Aug-07
|
PCT/US07/017953
|
||
|
Prophylactic
and Therapeutic Treatment of Mammals for Avian Influenza Virus
Infection
|
United
States of America
|
14-Aug-07
|
Tba
|
||
|
Method
to Treat Blood Cell Depletion
|
Patent
Cooperation Treaty
|
30-May-07
|
PCT/US07/012661
|
||
|
Method
to Treat Blood Cell Depletion, In Conditions Such as MDS
|
United
States of America
|
27-Jul-07
|
60/952,394
|
||
|
Methods
of Using Substance P Analogs to Ameliorate Myelodysplastic
Syndrome
|
United
States of America
|
27-Mar-08
|
61/039,867
|
||
|
Methods
of Using Substance P Analogs to Ameliorate Myelodysplastic
Syndrome
|
United
States of America
|
Tba
|
|||
|
Method
to Stimulates Blood Cells Regeneration Following Non-Lethal Radiation
Exposure
|
United
States of America
|
30-Jul-07
|
60/952,691
|
||
|
Method
to Treat Chemotherapy and Therapeutic Radiation
Myelosuppression
|
United
States of America
|
tba
|
|||
|
Methods
of Using Substance P Analogs in Radiation Oncology
|
United
States of America
|
27-Mar-08
|
61/039,860
|
||
|
Substance
P and Analogs Thereof as an Immunogenic
Composition Adjuvant
|
United
States of America
|
18-Jan-08
|
12/015,914
|
||
|
Substance
P and Analogs Thereof as an Immunogenic
Composition Adjuvant
|
Patent
Cooperation Treaty
|
14-Aug-07
|
PCT/US08/000621
|
||
|
Methods
of Using Substance P and Analogs for Ameliorating Adverse Effects of
Drugs
|
United
States of America
|
20-Aug-07
|
60/965,580
|
||
|
Methods
of Using Substance P and Analogs for Ameliorating Drug Induced Blood
Dyscrasias
|
United
States of America
|
27-Mar-08
|
61/039,866
|
||
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Substance
P Analogs as PARP Inhibitors
|
United
States of America
|
29-Aug-07
|
60/966,948
|
||
|
Substance
P Analogs to Promote Cell Differentiation
|
United
States of America
|
2-Oct-07
|
60/997,314
|
||
|
Methods
of Stimulating the Proliferation and/or Differentiation of Stem Cells with
Substance P, or an Analog
|
United
States of America
|
26-Oct-07
|
60/983,012
|
||
|
Methods
of Using Substance P Analogs for Stem Cell Growth
|
United
States of America
|
24-Mar-08
|
61/038,871
|
||
|
Methods
of Using Substance P Analogs for Stem Cell Growth
|
United
States of America
|
26-Mar-08
|
61/039,686
|
||
|
Methods
of Using Substance P Analogs for Stem Cell Growth
|
United
States of America
|
Tba
|
|||
|
Substance
P Analogs to Stimulate Fibroblast Growth
|
United
States of America
|
12-Oct-07
|
60/979,769
|
||
|
Methods
and Compositions for Stimulation of Fibroblasts
|
United
States of America
|
24-Apr-08
|
61/047,709
|
||
|
Methods
and Compositions for Stimulation of Fibroblasts
|
United
States of America
|
tba
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|||
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Methods
and Compositions for Improving the Texture or Appearance of Skin with
Substance P or an Analog Thereof
|
United
States of America
|
21-Dec-07
|
61/016,245
|
||
|
Methods
and Compositions for Improving the Texture or Appearance of Skin with
Substance P or an Analog Thereof
|
United
States of America
|
14-Feb-08
|
61/028,774
|
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|
Methods
of Ex Vivo Expansion of Bone Marrow Cells Using Substance P and Analogs
Thereof
|
United
States of America
|
29-Jan-08
|
61/024,354
|
||
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Substance
P and Analogs thereof as a Cancer Immunogenic Composition
Adjuvant
|
United
States of America
|
17-Apr-08
|
61/045,856
|
||
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ELISA
for Substance P Analogs
|
Tba
|
