ex10-2.htm


    Exhibit
      10.2


    GUARANTY

     

    This
      GUARANTY AGREEMENT (“Agreement”),
      dated as
      of January 3, 2008 is made by each of the undersigned (each a "Guarantor", and
      collectively, the "Guarantors"), in
      favor of YA GLOBAL INVESTMENTS,
      L.P. (the “Secured
      Party”).

     

    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 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 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 the Secured Party 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:        
      President and Chief Executive Officer

    


    Address:
      8767 East Via De Ventura Suite 190

                    
      Scottsdale, Arizona 85258