EX-10.179






 Exhibit 10.179



PLEDGE AND ESCROW AGREEMENT




THIS PLEDGE AND ESCROW AGREEMENT (the “Agreement”) is made and entered into as of
August 4, 2005 (the “Effective Date”) by and among THE IMMUNE RESPONSE CORPORATION, a
corporation organized and existing under the laws of the State of Delaware (the “Pledgor”),
CORNELL CAPITAL PARTNERS, LP (the “Pledgee”), and DAVID GONZALEZ, ESQ., as escrow
agent (“Escrow Agent”).



RECITALS:




WHEREAS, in order to secure the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all of the Company’s obligations (the
“Obligations”) to the Pledgee or any successor to the Pledgee under this Agreement, the
Securities Purchase Agreement of even date herewith between the Pledgor and the Pledgee (the
“Securities Purchase Agreement”), the Convertible Debentures (the “Convertible
Debentures”) issued or to be issued by the Company to the Pledgee, either now or in the future,
up to a total of Two Million Dollars ($2,000,000) of principal, plus any interest, costs, fees, and
other amounts owed to the Pledgee thereunder, the Security Agreement of even date herewith between
the Pledgor and the Pledgee (the “Security Agreement”), and all other contracts entered
into between the parties hereto (collectively, the “Transaction Documents”), the Pledgor
has agreed to irrevocably pledge to the Pledgee Four Million Nine Hundred Fifty Nine Thousand Seven
Hundred Five (4,959,705) shares (the “Pledged Shares”) of the Pledgor’s common stock, and



WHEREAS, subject to the terms of the Convertible Debentures, the Pledgee has the right to
convert at any time until payment in full, the Convertible Debentures into an aggregate of up to
3,167,062 shares of the Pledgor’s common stock (the “Conversion Shares”).



NOW, THEREFORE, in consideration of the mutual covenants, agreements, warranties, and
representations herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:



TERMS AND CONDITIONS




1. Pledge and Transfer of Pledged Shares.



1.1. The Pledgor hereby grants to Pledgee a security interest in all Pledged Shares as
security for Pledgor’s obligations under the Convertible Debentures. Simultaneously with the
execution of the Transaction Documents, the Pledgor shall deliver to the Escrow Agent stock
certificates made out in favor of the Pledgor representing the Pledged Shares, together with duly
executed stock powers or other appropriate transfer documents executed in blank by the Pledgor (the
“Transfer Documents”), and such stock certificates and Transfer Documents shall be held by
the Escrow Agent until the full payment of all amounts due to the Pledgee under the Convertible
Debentures and through repayment in accordance with the terms of the Convertible Debentures, or the
termination or expiration of this Agreement.



1.2. Adjustment to Pledged Shares. Upon each conversion by the Pledgee into Conversion Shares,
the Pledgor shall provide written notice to the Escrow Agent, with a copy to the Pledgee, of the
number of Conversion Shares issued to the Pledgee pursuant to such conversion and the number of
Pledged Shares pursuant to this agreement shall be reduced, share for share, by the number of
Conversion Shares issued to the Pledgee (if required by the applicable rules of the Nasdaq). In no
event shall the Pledgor issue or transfer any Pledged Shares to the Pledgee, or its affiliates or
assigns, if after taking into account such issuance or transfer, the total number of shares issued
or transferred to the Pledgee, or its affiliates or assigns, under this Agreement and as Conversion
Shares under the Convertible Debentures would exceed 4,959,705, unless and until the holders of
Common Stock approve the issuance of shares under the Transaction Documents.



2. Rights Relating to Pledged Shares. Upon the occurrence of an Event of Default (as
defined herein) and transfer of some or all of the Pledged Shares to the Pledgee pursuant to the
Pledgees entitlement, the Pledgee shall be entitled to vote such transfered Pledged Shares, to
receive dividends and other distributions thereon, and to enjoy all other rights and privileges
incident to the ownership of such transfered Pledged Shares.



3. Release of Pledged Shares from Pledge. Upon the payment of all amounts due to the
Pledgee under the Convertible Debentures by repayment in accordance with the terms of the Note, the
parties hereto shall notify the Escrow Agent to such effect in writing. Upon receipt of such
written notice for payment of the amounts due to the Pledgee under the Convertible Debentures, the
Escrow Agent shall return to the Pledgor the Transfer Documents and the certificates representing
the Pledged Shares, (collectively the “Pledged Materials”), whereupon any and all rights of
Pledgee in the Pledged Materials shall be terminated. Notwithstanding anything to the contrary
contained herein, upon full payment of all amounts due to the Pledgee under the Convertible
Debentures, by repayment in accordance with the terms of the Note, this Agreement and Pledgee’s
security interest and rights in and to the Pledged Shares shall terminate.



4. Event of Default. An “Event of Default” shall be deemed to have occurred
under this Agreement upon an Event of Default under the Convertible Debentures.



5. Remedies. Upon and anytime after the occurrence of an Event of Default, the
Pledgee shall have the right to provide written notice of such Event of Default (the “Default
Notice”) to the Escrow Agent, with a copy to the Pledgor. As soon as practicable after receipt
of the Default Notice, the Escrow Agent shall deliver to Pledgee the Pledged Materials held by the
Escrow Agent hereunder. Upon receipt of the Pledged Materials, the Pledgee shall have the right to
(i) sell the Pledged Shares and to apply the proceeds of such sales, net of any selling
commissions, to the Obligations owed to the Pledgee by the Pledgor under the Convertible
Debentures, including, without limitation, outstanding principal, interest, legal fees, and any
other amounts owed to the Pledgee, and exercise all other rights and (ii) any and all remedies of a
secured party with respect to such property as may be available under the Uniform Commercial Code
as in effect in the State of New Jersey. To the extent that the net proceeds received by the
Pledgee are insufficient to satisfy the Obligations in full, the Pledgee shall be entitled to a
deficiency judgment against the Pledgor for such amount. The Pledgee shall have the absolute right
(subject to applicable securities laws) to sell or dispose of the Pledged Shares in any manner it
sees fit and shall have no liability to the Pledgor or any other party for selling or disposing of
such Pledged Shares even if other methods of sales or dispositions would or allegedly would result
in greater proceeds than the method actually used. The Escrow Agent shall have the absolute right
to disburse the Pledged Shares to the Pledgee in batches not to exceed 9.9% of the outstanding
capital of the Pledgor (which limit may be waived by the Pledgee providing not less than 65 days’
prior written notice to the Escrow Agent).



5.1. Each right, power and remedy of the Pledgee provided for in this Agreement or any other
Transaction Document shall be cumulative and concurrent and shall be in addition to every other
such right, power or remedy. The exercise or beginning of the exercise by the Pledgee of any one
or more of the rights, powers or remedies provided for in this Agreement or any other Transaction
Document or now or hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee of all such other rights, powers or
remedies, and no failure or delay on the part of the Pledgee to exercise any such right, power or
remedy shall operate as a waiver thereof. No notice to or demand on the Pledgor in any case shall
entitle it to any other or further notice or demand in similar or other circumstances or constitute
a waiver of any of the rights of the Pledgee to any other further action in any circumstances
without demand or notice. The Pledgee shall have the full power to enforce or to assign or contract
its rights under this Agreement to a third party.



5.2. Demand Registration Rights. In addition to all other remedies available to the Pledgee,
upon an Event of Default, the Pledgor shall promptly, but in no event more than thirty (30) days
after the date of the Default Notice, file a registration statement to register with the Securities
and Exchange Commission the Pledged Shares for the resale by the Pledgee. The Pledgor shall cause
the registration statement to remain in effect until all of the Pledged Shares have been sold by
the Pledgee.



6. Concerning the Escrow Agent.



6.1. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein
and no implied duties or obligations shall be read into this Agreement against the Escrow Agent.



6.2. The Escrow Agent may act in reliance upon any writing or instrument or signature which
it, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or
assertion contained in such a writing or instrument, and may assume that any person purporting to
give any writing, notice, advice or instructions in connection with the provisions hereof has been
duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency
or correctness as to form, manner, and execution, or validity of any instrument deposited in this
escrow, nor as to the identity, authority, or right of any person executing the same; and its
duties hereunder shall be limited to the safekeeping of such certificates, monies, instruments, or
other document received by it as such escrow holder, and for the disposition of the same in
accordance with the written instruments accepted by it in the escrow.



6.3. Pledgee and the Pledgor hereby agree, to defend and indemnify the Escrow Agent and hold
it harmless from any and all claims, liabilities, losses, actions, suits, or proceedings at law or
in equity, or any other expenses, fees, or charges of any character or nature which it may incur or
with which it may be threatened by reason of its acting as Escrow Agent under this Agreement; and
in connection therewith, to indemnify the Escrow Agent against any and all expenses, including
attorneys’ fees and costs of defending any action, suit, or proceeding or resisting any claim (and
any costs incurred by the Escrow Agent pursuant to Sections 6.4 or 6.5 hereof). The Escrow Agent
shall be vested with a lien on all property deposited hereunder, for indemnification of attorneys’
fees and court costs regarding any suit, proceeding or otherwise, or any other expenses, fees, or
charges of any character or nature, which may be incurred by the Escrow Agent by reason of disputes
arising between the makers of this escrow as to the correct interpretation of this Agreement and
instructions given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent,
regardless of the instructions aforesaid, to hold said property until and unless said additional
expenses, fees, and charges shall be fully paid. Any fees set forth herein and costs charged by
the Escrow Agent for serving hereunder shall be paid by the Pledgor.



6.4. If any of the parties shall be in disagreement about the interpretation of this
Agreement, or about the rights and obligations, or the propriety of any action contemplated by the
Escrow Agent hereunder, the Escrow Agent may, at its sole discretion deposit the Pledged Materials
with the Clerk of the United States District Court of New Jersey, sitting in Newark, New Jersey,
and, upon notifying all parties concerned of such action, all liability on the part of the Escrow
Agent shall fully cease and terminate. The Escrow Agent shall be indemnified by the Pledgor, the
Company and Pledgee for all costs, including reasonable attorneys’ fees in connection with the
aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities
under this Agreement until a final decision or other settlement in the proceeding is received.



6.5. The Escrow Agent may consult with counsel of its own choice (and the costs of such
counsel shall be paid by the Pledgor and Pledgee) and shall have full and complete authorization
and protection for any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel. The Escrow Agent shall not be liable for any mistakes of fact or
error of judgment, or for any actions or omissions of any kind, unless caused by its willful
misconduct or gross negligence.



6.6. The Escrow Agent may resign upon ten (10) days’ written notice to the parties in this
Agreement. If a successor Escrow Agent is not appointed within this ten (10) day period, the
Escrow Agent may petition a court of competent jurisdiction to name a successor.



6.7 Conflict Waiver. The Pledgor hereby acknowledges that the Escrow Agent is general
counsel to the Pledgee, a partner in the general partner of the Pledgee, and counsel to the Pledgee
in connection with the transactions contemplated and referred herein. The Pledgor agrees that in
the event of any dispute arising in connection with this Agreement or otherwise in connection with
any transaction or agreement contemplated and referred herein, the Escrow Agent shall be permitted
to continue to represent the Pledgee and the Pledgor will not seek to disqualify such counsel and
waives any objection Pledgor might have with respect to the Escrow Agent acting as the Escrow Agent
pursuant to this Agreement.



6.8 Notices. Unless otherwise provided herein, all demands, notices, consents,
service of process, requests and other communications hereunder shall be in writing and shall be
delivered in person or by overnight courier service, or mailed by certified mail, return receipt
requested, addressed:



	 	 	 
	If to the Pledgor, to:

	 	The Immune Response Corporation
	 
	 	 
	
 
	 	5391 Darwin Court
	 
	 	 
	
 
	 	Carlsbad, CA 92008
	 
	 	 
	
 
	 	Attention: Michael K. Green
	 
	 	 
	
 
	 	Facsimile: (760) 431-8636
	 
	 	 
	With a copy to:

	 	Heller Ehrman LLP
	 
	 	 
	
 
	 	4530 La Jolla Village Drive, 7th Floor
	 
	 	 
	
 
	 	San Diego, CA 92122
	 
	 	 
	
 
	 	Attention: Hayden J. Trubitt, Esq.
	 
	 	 
	
 
	 	Facsimile: (858) 587-5903
	 
	 	 
	If to the Pledgee:

	 	Cornell Capital Partners, LP
	 
	 	 
	
 
	 	101 Hudson Street, Suite 3700
	 
	 	 
	
 
	 	Jersey City, NJ 07302
	 
	 	 
	
 
	 	Attention: Mark A. Angelo
	 
	 	 
	
 
	 	Telephone: (201) 985-8300
	 
	 	 
	
 
	 	Facsimile: (201) 985-8744
	 
	 	 
	With copy to:

	 	David Gonzalez, Esq.
	 
	 	 
	
 
	 	101 Hudson Street, Suite 3700
	 
	 	 
	
 
	 	Jersey City, NJ 07302
	 
	 	 
	
 
	 	Telephone: (201) 985-8300
	 
	 	 
	
 
	 	Facsimile: (201) 985-1964






Any such notice shall be effective (a) when delivered, if delivered by hand delivery or overnight
courier service, or (b) five (5) days after deposit in the United States mail, as applicable.



7. Binding Effect. All of the covenants and obligations contained herein shall be
binding upon and shall inure to the benefit of the respective parties, their successors and
assigns.



8. Governing Law; Venue; Service of Process. The validity, interpretation and
performance of this Agreement shall be determined in accordance with the laws of the State of New
Jersey applicable to contracts made and to be performed wholly within that state except to the
extent that Federal law applies. The parties hereto agree that any disputes, claims,
disagreements, lawsuits, actions or controversies of any type or nature whatsoever that, directly
or indirectly, arise from or relate to this Agreement, including, without limitation, claims
relating to the inducement, construction, performance or termination of this Agreement, shall be
brought in the state superior courts located in Hudson County, New Jersey or Federal district
courts located in Newark, New Jersey, and the parties hereto agree not to challenge the selection
of that venue in any such proceeding for any reason, including, without limitation, on the grounds
that such venue is an inconvenient forum. The parties hereto specifically agree that service of
process may be made, and such service of process shall be effective if made, pursuant to Section
6.8 hereto.



9. Enforcement Costs. If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provisions of this Agreement, the successful or prevailing
party or parties shall be entitled to recover reasonable attorneys’ fees, court costs and all
expenses even if not taxable as court costs (including, without limitation, all such fees, costs
and expenses incident to appeals), incurred in that action or proceeding, in addition to any other
relief to which such party or parties may be entitled.



10. Remedies Cumulative. No remedy herein conferred upon any party is intended to be
exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by
statute, or otherwise. No single or partial exercise by any party of any right, power or remedy
hereunder shall preclude any other or further exercise thereof.



11. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute the same instrument.



12. No Penalties. No provision of this Agreement is to be interpreted as a penalty
upon any party to this Agreement.



13. JURY TRIAL. EACH OF THE PLEDGEE AND THE PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT WHICH IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION BASED HEREON, OR ARISING OUT OF, UNDER OR IN ANY WAY CONNECTED WITH THE DEALINGS
BETWEEN PLEDGEE AND PLEDGOR, THIS PLEDGE AND ESCROW AGREEMENT OR ANY DOCUMENT EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.



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IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge and Escrow Agreement as
of the date first above written.




Cornell Capital Partners, LP



	 	 	 
	By:

Its:

	 	Yorkville Advisors, LLC

General Partner
	By:

	 	

	 

	 	 
	Name:

Title:

	 	Mark Angelo

Portfolio Manager







The Immune Response Corp.



	 
	 

	By:

	 

	 

	 

	 

	Name:

	 

	 

	 

	Title:








Escrow Agent



	 	 	 
	By:

	 	

	 

	 	 
	Name:

	 	David Gonzalez, Esq.
	 
	 	 







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