SECURITY AGREEMENT (Patent)
(Patent)
THIS
SECURITY AGREEMENT
(PATENT) (“Agreement”),
is
entered into and made effective as of January 3, 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 the YA GLOBAL INVESTMENTS,
L.P. (the “Secured
Party”).
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 Secured Party
(i) an aggregate original principal amount of up to $3,000,000 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 the Secured
Party 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 January 3, 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
|
IR
Biosciences Holdings, Inc.
|
|
|
By: /s/
Xxxxxxx
Xxxxxxx
|
|
|
Name: Xxxxxxx
Xxxxxxx
|
|
|
Title:
President and Chief Executive Officer
|
|
STATE
OF ____________________)
)
SS:
COUNTY
OF __________________)
BEFORE
ME, a Notary Public in
and for said County and State, personally appeared the above-named Xxxxxxx
Xxxxxxx who acknowledged that he/she did sign the foregoing agreement and that
the same is his/her free act and deed.
IN
TESTIMONY WHEREOF, I have
hereunto set my hand an official seal at __________________,
____________________, this ___ day of __________, 2007.
| /s/ Xxxxxxxx X. Xxxxxxx | |
|
Notary
Public
|
IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
COMPANY:
|
|
|
ImmuneRegen
BioSciences, Inc.
|
|
|
By: /s/
Xxxxxxx
Xxxxxxx
|
|
|
Name: Xxxxxxx
Xxxxxxx
|
|
|
Title:
President and Chief Executive Officer
|
|
STATE
OF ____________________)
)
SS:
COUNTY
OF __________________)
BEFORE
ME, a Notary Public in
and for said County and State, personally appeared the above-named Xxxxxxx
Xxxxxxx who acknowledged that he/she did sign the foregoing agreement and that
the same is his/her free act and deed.
IN
TESTIMONY WHEREOF, I have
hereunto set my hand an official seal at __________________,
____________________, this ___ day of __________, 2007.
| /s/ Xxxxxxxx X. Xxxxxxx | |
|
Notary
Public
|
IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
SECURED
PARTY:
|
|
|
YA
GLOBAL INVESTMENTS, L.P.
|
|
|
By: Yorkville
Advisors, LLC
|
|
|
Its:
Investment Manager
|
|
|
By: /s/
Xxxx
Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
|
|
Title: Portfolio
Manager
|
|
SCHEDULE
I
LEGAL
NAMES; ORGANIZATIONAL
IDENTIFICATION NUMBERS; STATES OF ORGANIZATION
|
Company’s
Name
|
State
of Organization
|
Employer
ID
|
Organizational
ID
|
|
IR
Biosciences Holdings, Inc.
|
Delaware
|
00-0000000
|
|
|
ImmuneRegen
BioSciences, Inc.
|
Delaware
|
00-0000000
|
SCHEDULE
A
US
PATENTS AND
APPLICATIONS
|
TITLE
|
COUNTRY
|
FILING
DATE
|
APPLICATION
NUMBER
|
DATE
ISSUED
|
PATENT
NUMBER
|
|
Substance
P Treatment for
Immunostimulation
|
United
States of
America
|
23-Feb-98
|
09/028003
|
7-Dec-99
|
5998376
|
|
Substance
P Treatment for
Immunostimulation
|
United
States of
America
|
28-Mar-97
|
08/829445
|
31-Aug-99
|
5945508
|
|
Substance
P Treatment for
Immunostimulation
|
Australia
|
8-Jul-97
|
40464/97
|
22-Nov-01
|
737201
|
|
Substance
P Treatment for
Immunostimulation
|
Canada
|
8-Jul-97
|
2261885
|
||
|
Substance
P Treatment for
Immunostimulation
|
Switzerland
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
Germany
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
France
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
Spain
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
United
Kingdom
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
Ireland
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
Italy
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
Liechtenstein
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Substance
P Treatment for
Immunostimulation
|
Monaco
|
8-Jul-97
|
97938049
|
24-Mar-04
|
957930
|
|
Amelioration
of Effects of
Cigarette Smoke
|
United
States of
America
|
22-Aug-03
|
10/645,839
|
||
|
Amelioration
of Effects of
Cigarette Smoke
|
Singapore
|
22-Aug-03
|
200501072-3
|
||
|
Amelioration
of Effects of
Cigarette Smoke
|
China
|
22-Aug-03
|
3820184.4
|
||
|
Amelioration
of Effects of
Cigarette Smoke
|
Japan
|
22-Aug-03
|
2004-532943
|
||
|
Amelioration
of Effects of
Cigarette Smoke
|
European
Patent
Office
|
22-Aug-03
|
3791722.6
|
||
|
Amelioration
of Effects of
Cigarette Smoke
|
Canada
|
22-Aug-03
|
2496447
|
||
|
Amelioration
of Effects of
Cigarette Smoke
|
Vietnam
|
22-Aug-03
|
1-2005-00215
|
||
|
Acute
Respiratory
Syndromes
|
Hong
Kong
|
22-Jun-06
|
6107144.4
|
||
|
Acute
Respiratory
Syndromes
|
European
Patent
Office
|
14-Apr-04
|
4759500.4
|
||
|
Acute
Respiratory
Syndromes
|
United
States of
America
|
14-Oct-05
|
10/553,232
|
||
|
Acute
Respiratory
Syndromes
|
Singapore
|
14-Apr-04
|
200507608-8
|
||
|
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
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
European
Patent
Office
|
23-Nov-05
|
5849894
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
Singapore
|
27-Jan-05
|
200500467-6
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
Thailand
|
11-Feb-05
|
97659
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
Patent
Cooperation
Treaty
|
23-Nov-05
|
PCT/US05/42601
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
United
States of
America
|
3-July-07
|
11/795,044
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
Xxxxxxxxx
|
00-Xxx-00
|
2005323304
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
Japan
|
23-Nov-05
|
2007-549376
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
Canada
|
23-Nov-05
|
2,593,232
|
||
|
Prevention
of Respiratory
Infections in Fowl
|
Vietnam
|
5-May-05
|
1-2005-00599
|
||
|
Treatment
of Skin
Diseases
|
European
Patent
Office
|
15-Dec-05
|
5854144.2
|
||
|
Treatment
of Skin
Diseases
|
Singapore
|
27-Jan-05
|
200500466-8
|
||
|
Treatment
of Skin
Diseases
|
Vietnam
|
5-May-05
|
1-2005-00598
|
||
|
Treatment
of Skin
Diseases
|
Thailand
|
25-Feb-05
|
98080
|
||
|
Treatment
of Skin
Diseases
|
Canada
|
15-Dec-05
|
2594517
|
||
|
Treatment
of Skin
Diseases
|
Australia
|
15-Dec-05
|
2005324417
|
||
|
Treatment
of Skin
Diseases
|
Patent
Cooperation
Treaty
|
15-Dec-05
|
PCT/US05/45369
|
||
|
Method
to Promote Wound
Healing
|
European
Patent
Office
|
25-Oct-05
|
5813067.5
|
|
Method
to Promote Wound
Healing
|
Australia
|
25-Oct-05
|
2005299341
|
||
|
Method
to Promote Wound
Healing
|
Japan
|
25-Oct-05
|
2007-539081
|
||
|
Method
to Promote Wound
Healing
|
Canada
|
25-Oct-05
|
2585265
|
||
|
Method
to Promote Wound
Healing
|
Patent
Cooperation
Treaty
|
25-Oct-05
|
PCT/US05/38646
|
||
|
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
|
tba
|
||
|
Treatment
for
Asthma
|
Australia
|
31-Mar-06
|
tba
|
||
|
Treatment
for
Asthma
|
Canada
|
31-Mar-06
|
tba
|
||
|
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/US03/40259
|
||
|
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/US05/13112
|
||
|
Anti-Aging
Effects of Substance
P
|
Patent
Cooperation
Treaty
|
18-Apr-05
|
PCT/US05/13113
|
||
|
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
|
PCT/US05/13113
|
||
|
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/US07/05668
|
||
|
Method
to Reduce the Risk and/or
Severity of Anthrax Infection
|
United
States of
America
|
2-Feb
07
|
60/889,035
|
||
|
Prophylactic
and Therapeutic
Treatment of Mammals
for Avian
InfluenzaVirus
Infection
|
Patent
Cooperation
Treaty
|
14-Aug-07
|
PCT/US07/017953
|
||
|
Prophylactic
and Therapeutic
Treatment of Mammals
for Avian
InfluenzaVirus
Infection
|
United
States of
America
|
1-May-07
|
60/915,373
|
||
|
Prophylactic
and Therapeutic
Treatment of Mammals
for Avian
InfluenzaVirus
Infection
|
United
States of
America
|
15-Aug-06
|
60/837,635
|
||
|
Prophylactic
and Therapeutic
Treatment of Mammals
for Avian
InfluenzaVirus
Infection
|
United
States of
America
|
9-Oct-06
|
60/828,728
|
||
|
Prophylactic
and Therapeutic
Treatment of Mammals
for Avian
InfluenzaVirus
Infection
|
United
States of
America
|
22-Nov-06
|
60/866,901
|
||
|
Method
to Treat Blood Cell
Depletion
|
Patent
Cooperation
Treaty
|
30-May-07
|
PCT/US
tba
|
||
|
Method
to Treat Blood Cell
Depletion, In Conditions Such as MDS
|
United
States of
America
|
27-Jul-07
|
60/952,394
|
||
|
Method
to Stimulates Blood Cells
Regeneration Following Non-Lethal Radiation
Exposure
|
United
States of
America
|
30-Jul-07
|
0/952,691
|
||
|
Substance
P and Analogs
Thereofas aVaccine Adjuvant
|
United
States of
America
|
18-Jan-07
|
60/885,562
|
||
|
Substance
P as an Adjuvant
|
United
States of
America
|
14-Aug-07
|
60/955,712
|
||
|
Use
of Homspera
(substance P
analog) as an
Adjuvant
|
United
States of
America
|
1-May-07
|
60/915,358
|
||
|
Methods
of Using Substance P and
Analogs for Ameliorating Adverse Effects of Drugs
|
United
States of
America
|
20-Aug-07
|
60/965,580
|
||
|
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 withSubstance
P, or an
Analog
|
United
States of
America
|
26-Oct-07
|
60/983,012
|
||
|
Substance
P Analogs
to Stimulate Fibroblast
Growth
|
United
States of
America
|
12-Oct-07
|
60/979,769
|
||
|
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
|
||
|
ELISA
for Substance P
Analogs
|
United
States of
America
|
tba
|
