ex10-2.htm


    Exhibit 10.2


    GUARANTY

     

    This GUARANTY AGREEMENT (“Agreement”), dated as
of August 8, 2008 is made by each of the undersigned (each a "Guarantor", and
collectively, the "Guarantors"), 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”).

     

    WHEREAS, in connection with
the Securities Purchase Agreement by and among IR BIOSCIENCES HOLDINGS, INC.,
a  Delaware corporation (the "Company") and the
Secured Party of even date herewith (the “Securities Purchase
Agreement”), the Company 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 Company’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, each of the
Guarantors is executing and delivering a Security Agreement dated the date
hereof (the “Security
Agreement”) granting a lien in all of the Pledged Property (as defined in
the Security Agreement) to the Secured Party;

     

    WHEREAS, it is a condition
precedent to each Holder purchasing the Convertible Debentures and Warrants
pursuant to the Securities Purchase Agreement that the Guarantors shall have
executed and delivered to the Secured Party this Agreement guaranteeing all of
the obligations of the Company under the Transaction Documents (as defined in
the Securities Purchase Agreement, the “Transaction
Documents”;

     

    WHEREAS, each Guarantor has
determined that the execution, delivery and performance of this Guaranty
directly benefits, and is in the best interest of, such Guarantor;

     

    NOW, THEREFORE, in
consideration of the premises and the agreements herein and in order to induce
the Secured Party to perform under the Securities Purchase Agreement, each
Guarantor hereby agrees with the Secured Party as follows:

     

    SECTION
1. Definitions.  Reference
is hereby made to the Securities Purchase Agreement and the Convertible
Debentures issued pursuant thereto for a statement of the terms
thereof.  All terms used in this Guaranty, which are defined in the
Securities Purchase Agreement or the Convertible Debentures and not otherwise
defined herein, shall have the same meanings herein as set forth
therein.

     

    SECTION
2. Guaranty.  The
Guarantors, jointly and severally, hereby unconditionally and irrevocably,
guaranty the punctual payment, as and when due and payable, by stated maturity
or otherwise, of all Obligations (as defined in the Security Agreement) of the
Company from time to time owing by it to the Secured Party (such obligations, to
the extent not paid by the Company, being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) reasonably incurred by the Secured Party
in enforcing any rights under this Guaranty.  Without limiting the
generality of the foregoing, each Guarantor's liability hereunder shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be
owed by the Company to the Secured Party but for the fact that they are
unenforceable or not allowable due to the existence of an insolvency proceeding
involving any Guarantor or the Company (each, a "Transaction
Party").

     

    SECTION
3. Guaranty Absolute;
Continuing Guaranty; Assignments.

     

    (a) The
Guarantors, jointly and severally, guaranty that the Guaranteed Obligations will
be paid strictly in accordance with the terms of the Transaction Documents,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Secured Party with
respect thereto.  The obligations of each Guarantor under this
Guaranty are independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against any Guarantor to enforce such
obligations, irrespective of whether any action is brought against any
Transaction Party or whether any Transaction Party is joined in any such action
or actions.  The liability of any Guarantor under this Guaranty shall
be irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives, to the extent permitted by law, any defenses it may
now or hereafter have in any way relating to, any or all of the
following:

     

    (i) any lack
of validity or enforceability of any Transaction Document or any agreement or
instrument relating thereto;

     

    (ii) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from any Transaction Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Transaction Party or
otherwise;

     

    (iii) any
taking, exchange, release or non-perfection of any Pledged Property (as defined
in the Security Documents), or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the Guaranteed
Obligations;

     

    (iv) any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of any Transaction Party; or

     

    (v) any other
circumstance (including any statute of limitations) or any existence of or
reliance on any representation by the Secured Party that might otherwise
constitute a defense available to, or a discharge of, any Transaction Party or
any other guarantor or surety.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    This
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by the Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of any Transaction Party or otherwise,
all as though such payment had not been made.

     

    (b) This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect
until the indefeasible cash payment in full of the Guaranteed Obligations (other
than inchoate indemnity obligations) and (ii) be binding upon each Guarantor and
its respective successors and assigns.  This Guaranty shall inure to
the benefit of and be enforceable by the Secured Party and its successors, and
permitted pledgees, transferees and assigns.  Without limiting the
generality of the foregoing sentence, the Secured Party may pledge, assign or
otherwise transfer all or any portion of its rights and obligations under and
subject to the terms of any Transaction Document to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Secured Party herein or otherwise, in each case as
provided in the Securities Purchase Agreement or such Transaction
Document.

     

    SECTION
4. Waivers.  To
the extent permitted by applicable law, each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the Secured
Party exhaust any right or take any action against any Transaction Party or any
other Person or any Pledged Property.  The Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this Section 4 is knowingly
made in contemplation of such benefits.  The Guarantors hereby waive
any right to revoke this Guaranty, and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.

     

    SECTION
5. Subrogation.  No
Guarantor may exercise any rights that it may now or hereafter acquire against
any Transaction Party or any other guarantor that arise from the existence,
payment, performance or enforcement of any Guarantor's obligations under this
Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the  Secured Party against any
Transaction Party or any other guarantor or any Pledged Property, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from any
Transaction Party or any other guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security solely
on account of such claim, remedy or right, unless and until all of the
Guaranteed Obligations (other than inchoate indemnity obligations) and all other
amounts payable under this Guaranty (other than inchoate indemnity obligations)
shall have indefeasibly been paid in full in cash.  If any amount
shall be paid to the Guarantor in violation of the immediately preceding
sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, such
amount shall be held in trust for the benefit of the Secured Party and shall
forthwith be paid to the Secured Party to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Transaction
Document, or to be held as Pledged Property for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising.  If
(a) any Guarantor shall make payment to the Secured Party of all or any
part of the Guaranteed Obligations, and (b) all of the Guaranteed
Obligations (other than inchoate indemnity obligations) and all other amounts
payable under this Guaranty (other than inchoate indemnity obligations) shall
indefeasibly be paid in full in cash, the Secured Party will, at such
Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by such
Guarantor.

     

    SECTION
6. Representations, Warranties
and Covenants.

     

    (a)           Each
Guarantor hereby represents and warrants as of the date first written above as
follows:

     

    (i)           The
Guarantor (A) is a corporation, limited liability company or limited partnership
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (B) has all corporate, limited liability
company or limited partnership power and authority to conduct its business as
now conducted and as presently contemplated and to execute and deliver this
Guaranty and each other Transaction Document to which the Guarantor is a party,
and to consummate the transactions contemplated hereby and thereby and (C) is
duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary except where the
failure to be so qualified would not result in a Material Adverse
Effect.

     

    (ii)           The
execution, delivery and performance by the Guarantor of this Guaranty and each
other Transaction Document to which the Guarantor is a party (A) have been duly
authorized by all necessary corporate, limited liability company or limited
partnership action, (B) do not and will not contravene its charter or by-laws,
its limited liability company or operating agreement or its certificate of
partnership or partnership agreement, as applicable, or any applicable law or
any contractual restriction binding on the Guarantor or its properties (except
where the contravention of such contractual restriction would not result in a
Material Adverse Effect), (C) do not and will not result in or require the
creation of any lien (other than pursuant to any Transaction Document) upon or
with respect to any of its properties, and (D) do not and will not result in any
default, noncompliance, suspension, revocation, impairment, forfeiture or
nonrenewal of any material permit, license, authorization or approval applicable
to it or its operations or any of its properties.

     

    (iii)           No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority is required in connection with the due execution,
delivery and performance by the Guarantor of this Guaranty or any of the other
Transaction Documents to which the Guarantor is a party (other than expressly
provided for in any of the Transaction Documents).

     

    (iv)           Each
of this Guaranty and the other Transaction Documents to which the Guarantor is
or will be a party, when delivered, will be, a legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, suretyship or other similar
laws and equitable principles (regardless of whether enforcement is sought in
equity or at law).

     

    (v)           There
is no pending or, to the knowledge of the Guarantor, threatened action, suit or
proceeding against the Guarantor or to which any of the properties of the
Guarantor is subject, before any court or other governmental authority or any
arbitrator that (A) if adversely determined, could reasonably be expected to
have a Material Adverse Effect or (B) relates to this Guaranty or any of the
other Transaction Documents to which the Guarantor is a party or any transaction
contemplated hereby or thereby.

     

    (vi)           The
Guarantor (A) has read and understands the terms and conditions of the
Securities Purchase Agreement and the other Transaction Documents, and (B) now
has and will continue to have independent means of obtaining information
concerning the affairs, financial condition and business of the Company and the
other Transaction Parties, and has no need of, or right to obtain from the
Secured Party, any credit or other information concerning the affairs, financial
condition or business of the Company or the other Transaction Parties that may
come under the control of the Secured Party.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    SECTION
7. Right of
Set-off.  Upon the occurrence and during the continuance
of any Event of Default, the Secured Party may, and is hereby authorized to, at
any time and from time to time, without notice to the Guarantors (any such
notice being expressly waived by each Guarantor) and to the fullest extent
permitted by law, set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Secured Party to or for the credit or the account of any
Guarantor against any and all obligations of the Guarantors now or hereafter
existing under this Guaranty or any other Transaction Document, irrespective of
whether or not the Secured Party shall have made any demand under this Guaranty
or any other Transaction Document and although such obligations may be
contingent or unmatured.  The Secured Party agrees to notify the
relevant Guarantor promptly after any such set-off and application made by the
Secured Party, provided that the failure to give such notice shall not affect
the validity of such set-off and application.  The rights of the
Secured Party under this Section 7 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Secured Party
may have under this Guaranty or any other Transaction Document in law or
otherwise.

     

    SECTION
8. Notices,
Etc.  All notices and other communications provided for
hereunder shall be in writing and shall be mailed, telecopied or delivered, if
to any Guarantor, to it at its address set forth on the signature page hereto,
or if to the Secured Party, to it at its respective address set forth in the
Securities Purchase Agreement; or as to either such Person at such other address
as shall be designated by such Person in a written notice to such other Person
complying as to delivery with the terms of this Section 8.  All such
notices and other communications shall be effective (i) if mailed (by certified
mail, postage prepaid and return receipt requested), when received or three
Business Days after deposited in the mails, whichever occurs first; (ii) if
telecopied, when transmitted and confirmation is received, provided same is on a
Business Day and, if not, on the next Business Day; or (iii) if delivered by
hand, upon delivery, provided same is on a Business Day and, if not, on the next
Business Day.

     

    SECTION
9. Governing
Law.  This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New Jersey without regard to the
principles of conflict of laws.  The parties further agree that any
action between them shall be heard in Hudson County, New Jersey, and expressly
consent to the jurisdiction and venue of the Superior Court of New Jersey,
sitting in Hudson County and the United States District Court for the District
of New Jersey sitting in Newark, New Jersey for the adjudication of any civil
action asserted pursuant to this Paragraph.

     

    SECTION
10. WAIVER OF JURY TRIAL,
ETC.  EACH GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS
GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER,
CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE
FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY
FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY OR THE OTHER
TRANSACTION DOCUMENTS, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR
COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.  EACH GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT
OR ATTORNEY OF THE SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
THE SECURED PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR
COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS.  EACH GUARANTOR
HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED
PARTY ENTERING INTO THIS AGREEMENT.

     

    SECTION
11. Miscellaneous.

     

    (a) Each
Guarantor will make each payment hereunder in lawful money of the United States
of America and in immediately available funds to the Secured Party, at such
address specified by the Secured Party from time to time by notice to the
Guarantors.

     

    (b) No
amendment or waiver of any provision of this Guaranty and no consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by each Guarantor and the Secured Party, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.

     

    (c) No
failure on the part of the Secured Party to exercise, and no delay in
exercising, any right hereunder or under any other Transaction Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder or under any Transaction Document preclude any other or further
exercise thereof or the exercise of any other right.  The rights and
remedies of the Secured Party provided herein and in the other Transaction
Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law.  The rights of the Secured Party
under any Transaction Document against any party thereto are not conditional or
contingent on any attempt by the Secured Party to exercise any of their
respective rights under any other Transaction Document against such party or
against any other Person.

     

    (d) Any
provision of this Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.

     

    (e) This
Guaranty shall (i) be binding on each Guarantor and its respective successors
and assigns, and (ii) inure, together with all rights and remedies of the
Secured Party hereunder, to the benefit of the Secured Party and their
respective successors, transferees and assigns.  Without limiting the
generality of clause (ii) of the immediately preceding sentence, the Secured
Party may assign or otherwise transfer its rights and obligations under the
Securities Purchase Agreement or any other Transaction Document to any other
Person in accordance with the terms thereof, and such other Person shall
thereupon become vested with all of the benefits in respect thereof granted to
the Secured Party, as the case may be, herein or otherwise.  None of
the rights or obligations of any Guarantor hereunder may be assigned or
otherwise transferred without the prior written consent of Secured
Party.

     

    (f) This
Guaranty reflects the entire understanding of the transaction contemplated
hereby and shall not be contradicted or qualified by any other agreement, oral
or written, entered into before the date hereof.

     

    (g) Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.

     

    


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    IN WITNESS WHEREOF, each
Guarantor has caused this Guaranty to be executed by its respective duly
authorized officer, as of the date first above written.

     

    


    ImmuneRegen
BioSciences, Inc.

     

     

    By:       /s/ Michael
Wilhelm                


    Name:  Michael
Wilhelm

    Title:    CEO

    


    Address: 8767
E. Via de Ventura

                    
Suite 190

                    
Scottsdale, AZ 85258