EX-10.174






Exhibit 10.174



SECURITIES PURCHASE AGREEMENT




THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of August 4, 2005, by
and among THE IMMUNE RESPONSE CORPORATION, a Delaware corporation (the “Company”), and the
Buyers listed on Schedule I attached hereto (individually, a “Buyer” or collectively
“Buyers”).



WITNESSETH




WHEREAS, the Company and the Buyer(s) are executing and delivering this Agreement in reliance
upon an exemption from securities registration pursuant to Section 4(2) and/or Rule 506 of
Regulation D (“Regulation D”) as promulgated by the U.S. Securities and Exchange Commission
(the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”);



WHEREAS, the parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Buyer(s), as provided herein, and the Buyer(s)
shall purchase up to Two Million Dollars ($2,000,000) of secured convertible debentures (the
“Convertible Debentures”), which shall be convertible into shares of the Company’s common
stock, par value $0.0025 (the “Common Stock”) (as converted, the “Conversion
Shares”) of which One Million Dollars ($1,000,000) shall be funded within (5) business day
following the date hereof (the “First Closing”) and One Million Dollars ($1,000,000) shall
be funded at the option of the Company, on, or before, August 31, 2005 and prior to the date the
registration statement (the “Registration Statement”) is filed, pursuant to the Investor
Registration Rights Agreement dated the date hereof, with the United States Securities and Exchange
Commission (the “SEC”) (the “Second Closing”) (individually referred to as a
“Closing” collectively referred to as the “Closings”), for a total purchase price
of up to Two Million Dollars ($1,000,000), (the “Purchase Price”) in the respective amounts
set forth opposite each Buyer(s) name on Schedule I (the “Subscription Amount”); and



WHEREAS, contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering a Registration Rights Agreement substantially in the form
attached hereto as Exhibit A (the “Investor Registration Rights Agreement”)
pursuant to which the Company has agreed to provide certain registration rights under the
Securities Act and the rules and regulations promulgated thereunder, and applicable state
securities laws; and



WHEREAS, the aggregate proceeds of the sale of the Convertible Debentures contemplated hereby
shall be held in escrow pursuant to the terms of an escrow agreement substantially in the form of
the Escrow Agreement attached hereto as Exhibit B.



WHEREAS, contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering a Security Agreement substantially in the form attached hereto
as Exhibit C (the “Security Agreement”) pursuant to which the Company has agreed to
provide the Buyer a security interest in Pledged Collateral (as this term is defined in the
Security Agreement) to secure the Company’s obligations under this Agreement, the Convertible
Debenture, the Investor Registration Rights Agreement, the Irrevocable Transfer Agent Instructions,
the Security Agreement, the Pledge and Escrow Agreement or any other obligations of the Company to
the Buyer;



WHEREAS, contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering a Pledge and Escrow Agreement substantially in the form
attached hereto as Exhibit D (the “Pledge and Escrow Agreement”) pursuant to which
the Company has agreed to provide the Buyer a security interest in the Pledged Shares (as this term
is defined in the Pledge and Escrow Agreement) and the parties hereto and Cheshire Associates LLC
are executing and delivering an Insider Pledge and Escrow Agreement substantially in the form
attached hereto as Exhibit E (the “Insider Pledge and Escrow Agreement”) pursuant
to which Cheshire Associates LLC has agreed to provide the Buyer a security interest in the Pledged
Shares (as this term is defined in the Insider Pledge and Escrow Agreement) to secure the Company’s
obligations under this Agreement, the Convertible Debenture, the Investor Registration Rights
Agreement, the Irrevocable Transfer Agent Instructions, the Security Agreement, the Pledge and
Escrow Agreement or any other obligations of the Company to the Buyer; and



WHEREAS, contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering Irrevocable Transfer Agent Instructions substantially in the
form attached hereto as Exhibit F (the “Irrevocable Transfer Agent Instructions”)



NOW, THEREFORE, in consideration of the mutual covenants and other agreements contained in
this Agreement the Company and the Buyer(s) hereby agree as follows:



1. PURCHASE AND SALE OF CONVERTIBLE DEBENTURES.



(a) Purchase of Convertible Debentures. Subject to the satisfaction (or waiver) of
the terms and conditions of this Agreement, each Buyer agrees, severally and not jointly, to
purchase at each Closing and the Company agrees (i) to sell and issue to each Buyer, severally and
not jointly, at the First Closing Convertible Debentures in an amount of $1,000,000, and (ii) at
the Company’s option, on, or before, August 31, 2005, but prior to the date the Registration
Statement is filed with the SEC, to sell and issue to each Buyer, severally and not jointly, at the
Second Closing Convertible Debentures in an amount of $1,000,000. The Company shall provide the
Buyer with three (3) business days’ advance written notice of its intention to exercise such
option. Upon execution hereof by a Buyer, the Buyer shall wire transfer the amount to be funded at
the First Closing in same-day funds or a check payable to “David Gonzalez, Esq., as Escrow Agent
for The Immune Response Corporation/Cornell Capital Partners, LP,” and within three (3) business
days of receiving notice from the Company of its intentions to exercise its option, the Buyer shall
wire transfer the amount to be funded at the Second Closing in same-day funds or a check payable to
“David Gonzalez, Esq., as Escrow Agent for The Immune Response Corporation/Cornell Capital
Partners, LP,” which amounts shall be held in escrow pursuant to the terms of the Escrow Agreement
(as hereinafter defined) and disbursed in accordance therewith.



(b) Closing Date. The First Closing of the purchase and sale of the Convertible
Debentures shall take place at 10:00 a.m. Eastern Time on the fifth (5th) business day
following the date hereof, subject to notification of satisfaction of the conditions to the First
Closing set forth herein and in Sections 6 and 7 below (or such earlier or later date as is
mutually agreed to by the Company and the Buyer(s)) (the “First Closing Date”) and the
Second Closing of the purchase and sale of the Convertible Debentures shall take place at 10:00
a.m. Eastern Time on, or before, August 31, 2005 and prior to the date the Registration Statement
is filed with the SEC, subject to notification of satisfaction of the conditions to the Second
Closing set forth herein and in Sections 6 and 7 below (the “Second Closing Date”)
(collectively referred to as the “Closing Dates”). The Closings shall occur on the
respective Closing Dates at the offices of Yorkville Advisors, LLC, 3700 Hudson Street, Suite 3700,
Jersey City, New Jersey 07302 (or such other place as is mutually agreed to by the Company and the
Buyer(s)).



(c) Escrow Arrangements; Form of Payment. Upon execution hereof by Buyer(s) and
pending the Closings, the aggregate proceeds of the sale of the Convertible Debentures to Buyer(s)
pursuant hereto shall be deposited in a non-interest bearing escrow account with David Gonzalez,
Esq., as escrow agent (the “Escrow Agent”), pursuant to the terms of an escrow agreement
between the Company, the Buyer(s) and the Escrow Agent in the form attached hereto as Exhibit
B (the “Escrow Agreement”). Subject to the satisfaction of the terms and conditions of
this Agreement, on the Closing Dates, (i) the Escrow Agent shall deliver to the Company in
accordance with the terms of the Escrow Agreement such aggregate proceeds for the Convertible
Debentures to be issued and sold to such Buyer(s) and (ii) the Company shall deliver to each Buyer,
Convertible Debentures which such Buyer(s) is purchasing in amounts indicated opposite such Buyer’s
name on Schedule I, duly executed on behalf of the Company. The Company shall pay the unpaid
structuring fees and expenses of Yorkville Advisors Management, LLC of Ten Thousand Dollars
($10,000) directly from the gross proceeds held in escrow of the First Closing



2. BUYER’S REPRESENTATIONS AND WARRANTIES.



Each Buyer represents and warrants, severally and not jointly, that:



(a) Investment Purpose. Each Buyer is acquiring the Convertible Debentures and, upon
conversion of Convertible Debentures, the Buyer will acquire the Conversion Shares then issuable,
for its own account for investment only and not with a view towards, or for resale in connection
with, the public sale or distribution thereof, except pursuant to sales registered or exempted
under the Securities Act; provided, however, that by making the representations herein, such Buyer
reserves the right to dispose of the Conversion Shares at any time in accordance with or pursuant
to an effective registration statement covering such Conversion Shares (including proper prospectus
delivery) or an available exemption under the Securities Act.



(b) Accredited Investor Status. Each Buyer is an “Accredited Investor” as
that term is defined in Rule 501(a)(3) of Regulation D.



(c) Reliance on Exemptions. Each Buyer understands that the Convertible Debentures
are being offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the Company is relying in
part upon the truth and accuracy of, and such Buyer’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of such Buyer set forth herein in order
to determine the availability of such exemptions and the eligibility of such Buyer to acquire such
securities.



(d) Information. Each Buyer and its advisors (and his or, its counsel), if any, have
been furnished with all materials relating to the business, finances and operations of the Company
and information he deemed material to making an informed investment decision regarding his purchase
of the Convertible Debentures and the Conversion Shares, which have been requested by such Buyer.
Each Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the
Company and its management. Neither such inquiries nor any other due diligence investigations
conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or
affect such Buyer’s right to rely on the Company’s representations and warranties contained in
Section 3 below. Each Buyer understands that its investment in the Convertible Debentures and the
Conversion Shares involves a high degree of risk. Each Buyer is in a position regarding the
Company, which, based upon employment, family relationship or economic bargaining power, enabled
and enables such Buyer to obtain information from the Company in order to evaluate the merits and
risks of this investment. Each Buyer has sought such accounting, legal and tax advice, as it has
considered necessary to make an informed investment decision with respect to its acquisition of the
Convertible Debentures and the Conversion Shares.



(e) No Governmental Review. Each Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Convertible Debentures or the Conversion Shares, or the
fairness or suitability of the investment in the Convertible Debentures or the Conversion Shares,
nor have such authorities passed upon or endorsed the merits of the offering of the Convertible
Debentures or the Conversion Shares.



(f) Transfer or Resale. Each Buyer understands that except as provided in the
Investor Registration Rights Agreement: (i) the Convertible Debentures have not been and are not
being registered under the Securities Act or any state securities laws, and may not be offered for
sale, sold, assigned or transferred unless (A) subsequently registered thereunder, or (B) such
Buyer shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to
the effect that such securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration requirements; (ii) any sale of such
securities made in reliance on Rule 144 under the Securities Act (or a successor rule thereto)
(“Rule 144”) may be made only in accordance with the terms of Rule 144 and further, if Rule
144 is not applicable, any resale of such securities under circumstances in which the seller (or
the person through whom the sale is made) may be deemed to be an underwriter (as that term is
defined in the Securities Act) may require compliance with some other exemption under the
Securities Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company
nor any other person is under any obligation to register such securities under the Securities Act
or any state securities laws or to comply with the terms and conditions of any exemption
thereunder. The Company reserves the right to place stop transfer instructions against the shares
and certificates for the Conversion Shares.



(g) Legends. Each Buyer understands that the certificates or other instruments
representing the Convertible Debentures and or the Conversion Shares shall bear a restrictive
legend in substantially the following form (and a stop transfer order may be placed against
transfer of such stock certificates):



THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED
SOLELY FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TOWARD RESALE AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE
FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS.



The legend set forth above shall be removed and the Company within two (2) business days shall
issue a certificate without such legend to the holder of the Conversion Shares upon which it is
stamped, if, unless otherwise required by state securities laws, (i) in connection with a sale
transaction, provided the Conversion Shares are registered under the Securities Act or (ii) in
connection with a sale transaction, after such holder provides the Company with an opinion of
counsel, which opinion shall be in form, substance and scope customary for opinions of counsel in
comparable transactions, to the effect that a public sale, assignment or transfer of the Conversion
Shares may be made without registration under the Securities Act.



(h) Authorization, Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of such Buyer and is a valid and binding agreement of such Buyer
enforceable in accordance with its terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.



(i) Receipt of Documents. Each Buyer and his or its counsel has received and read in
their entirety: (i) this Agreement and each representation, warranty and covenant set forth
herein, the Security Agreement, the Investor Registration Rights Agreement, the Escrow Agreement,
the Irrevocable Transfer Agent Agreement, and the Pledge and Escrow Agreement; (ii) all due
diligence and other information necessary to verify the accuracy and completeness of such
representations, warranties and covenants; (iii) the Company’s Form 10-K for the fiscal year ended
December 31, 2004; (iv) the Company’s Form 10-Q for the fiscal quarter ended March 31, 2005 and (v)
answers to all questions each Buyer submitted to the Company regarding an investment in the
Company; and each Buyer has relied on the information contained therein and has not been furnished
any other documents, literature, memorandum or prospectus.



(j) Due Formation of Corporate and Other Buyers. If the Buyer(s) is a corporation,
trust, partnership or other entity that is not an individual person, it has been formed and validly
exists and has not been organized for the specific purpose of purchasing the Convertible Debentures
and is not prohibited from doing so.



(k) No Legal Advice From the Company. Each Buyer acknowledges, that it had the
opportunity to review this Agreement and the transactions contemplated by this Agreement with his
or its own legal counsel and investment and tax advisors. Each Buyer is relying solely on such
counsel and advisors and not on any statements or representations of the Company or any of its
representatives or agents for legal, tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws of any jurisdiction.



3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.



The Company represents and warrants to each of the Buyers that, except as set forth in the SEC
Documents (as defined herein):



(a) Organization and Qualification. The Company and its subsidiaries are corporations
duly organized and validly existing in good standing under the laws of the jurisdiction in which
they are incorporated, and have the requisite corporate power to own their properties and to carry
on their business as now being conducted. Each of the Company and its subsidiaries is duly
qualified as a foreign corporation to do business and is in good standing in every jurisdiction in
which the nature of the business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole.



(b) Authorization, Enforcement, Compliance with Other Instruments. (i) The Company
has the requisite corporate power and authority to enter into and perform this Agreement, the
Security Agreement, the Investor Registration Rights Agreement, the Irrevocable Transfer Agent
Agreement, the Escrow Agreement, the Pledge and Escrow Agreement, the Insider Pledge and Escrow
Agreement, and any related agreements (collectively the “Transaction Documents”) and to
issue the Convertible Debentures and the Conversion Shares in accordance with the terms hereof and
thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby, including, without
limitation, the issuance of the Convertible Debentures, the Conversion Shares and the reservation
for issuance and the issuance of the Conversion Shares issuable upon conversion or exercise
thereof, have been duly authorized by the Company’s Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors or its stockholders, (iii) the
Transaction Documents have been duly executed and delivered by the Company, (iv) the Transaction
Documents constitute the valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and
remedies. The authorized officer of the Company executing the Transaction Documents knows of no
reason why the Company cannot file the registration statement as required under the Investor
Registration Rights Agreement or perform any of the Company’s other obligations under such
documents.



(c) Capitalization. As of the date hereof, the authorized capital stock of the
Company consists of 170,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock,
$0.001 par value per share (“Preferred Stock”), of which 50,585,982 shares of Common Stock
and 688,146 shares of Series A convertible shares of Preferred Stock are issued and outstanding.
All of such outstanding shares have been validly issued and are fully paid and nonassessable.
Except as disclosed in the SEC Documents (as defined in Section 3(f)), no shares of Common Stock
are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered
or permitted by the Company. Except as disclosed in (or arising under plans disclosed in) the SEC
Documents, as of the date of this Agreement, (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, any shares of capital stock of the Company or any of its subsidiaries,
or contracts, commitments, understandings or arrangements by which the Company or any of its
subsidiaries is or may become bound to issue additional shares of capital stock of the Company or
any of its subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company or any of its subsidiaries, (ii) there are no outstanding debt
securities and (iii) there are no agreements or arrangements under which the Company or any of its
subsidiaries is obligated to register the sale of any of their securities under the Securities Act
(except pursuant to the Registration Rights Agreement) and (iv) there are no outstanding
registration statements and there are no outstanding comment letters from the SEC or any other
regulatory agency. There are no securities or instruments containing anti-dilution or similar
provisions that will be triggered by the issuance of the Convertible Debentures as described in
this Agreement. The Company has furnished to the Buyer true and correct copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate
of Incorporation”), and the Company’s By-laws, as in effect on the date hereof (the
“By-laws”), and the terms of all securities convertible into or exercisable for Common
Stock and the material rights of the holders thereof in respect thereto other than stock options
issued to employees and consultants.



(d) Issuance of Securities. The Convertible Debentures are duly authorized and, upon
issuance in accordance with the terms hereof, shall be duly issued, fully paid and nonassessable,
are free from all taxes, liens and charges with respect to the issue thereof. The Conversion
Shares issuable upon conversion of the Convertible Debentures have been duly authorized and
reserved for issuance. Upon conversion or exercise in accordance with the Convertible Debentures
the Conversion Shares will be duly issued, fully paid and nonassessable.



(e) No Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company and the consummation by the Company of the transactions contemplated
hereby will not (i) result in a violation of the Certificate of Incorporation, any certificate of
designations of any outstanding series of preferred stock of the Company or the By-laws or (ii)
conflict with or constitute a default (or an event which with notice or lapse of time or both would
become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations and the rules and regulations
of the Nasdaq SmallCap Market on which the Common Stock is quoted) applicable to the Company or any
of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries is
bound or affected. Neither the Company nor its subsidiaries is in violation of any term of or in
default under its Certificate of Incorporation or By-laws or their organizational charter or
by-laws, respectively, or any material contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company
or its subsidiaries. The business of the Company and its subsidiaries is not being conducted, and
shall not be conducted in violation of any material law, ordinance, or regulation of any
governmental entity. Except as specifically contemplated by this Agreement and as required under
the Securities Act and any applicable state securities laws, the Company is not required to obtain
any consent, authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its obligations under or
contemplated by this Agreement or the Registration Rights Agreement in accordance with the terms
hereof or thereof. All consents, authorizations, orders, filings and registrations which the
Company is required to obtain pursuant to the preceding sentence have been obtained or effected on
or prior to the date hereof. The Company and its subsidiaries are unaware of any facts or
circumstance, which might give rise to any of the foregoing.



(f) SEC Documents: Financial Statements. Since January 1, 2003, the Company has filed
all reports, schedules, forms, statements and other documents required to be filed by it with the
SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (all of the
foregoing filed prior to the date hereof or amended after the date hereof and all exhibits included
therein and financial statements and schedules thereto and documents incorporated by reference
therein, being hereinafter referred to as the “SEC Documents”). The Company has delivered
to the Buyers or their representatives, or made available through the SEC’s website at
http://www.sec.gov., true and complete copies of the SEC Documents. As of their respective dates,
the financial statements of the Company disclosed in the SEC Documents (the “Financial
Statements”) complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect thereto. Such
financial statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except (i) as may be otherwise
indicated in such Financial Statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed or summary
statements) and, fairly present in all material respects the financial position of the Company as
of the dates thereof and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit adjustments). No other
information provided by or on behalf of the Company to the Buyer which is not included in the SEC
Documents, including, without limitation, information referred to in this Agreement, contains any
untrue statement of a material fact or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.



(g) 10(b)-5. The SEC Documents do not include any untrue statements of material fact,
nor do they omit to state any material fact required to be stated therein necessary to make the
statements made, in light of the circumstances under which they were made, not misleading.



(h) Absence of Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency, self-regulatory organization
or body pending against or affecting the Company, the Common Stock or any of the Company’s
subsidiaries, wherein an unfavorable decision, ruling or finding would (i) have a material adverse
effect on the transactions contemplated hereby (ii) adversely affect the validity or enforceability
of, or the authority or ability of the Company to perform its obligations under, this Agreement or
any of the documents contemplated herein, or (iii) have a material adverse effect on the business,
operations, properties, financial condition or results of operations of the Company and its
subsidiaries taken as a whole.



(i) Acknowledgment Regarding Buyer’s Purchase of the Convertible Debentures. The
Company acknowledges and agrees that the Buyer(s) is acting solely in the capacity of an arm’s
length purchaser with respect to this Agreement and the transactions contemplated hereby. The
Company further acknowledges that the Buyer(s) is not acting as a financial advisor or fiduciary of
the Company (or in any similar capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by the Buyer(s) or any of their respective representatives
or agents in connection with this Agreement and the transactions contemplated hereby is merely
incidental to such Buyer’s purchase of the Convertible Debentures or the Conversion Shares. The
Company further represents to the Buyer that the Company’s decision to enter into this Agreement
has been based solely on the independent evaluation by the Company and its representatives.



(j) No General Solicitation. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in connection with the
offer or sale of the Convertible Debentures or the Conversion Shares.



(k) No Integrated Offering. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that would require
registration of the Convertible Debentures or the Conversion Shares under the Securities Act or
cause this offering of the Convertible Debentures or the Conversion Shares to be integrated with
prior offerings by the Company to any person other than the Buyer(s) for purposes of the Securities
Act.



(l) Employee Relations. Neither the Company nor any of its subsidiaries is involved
in any labor dispute nor, to the knowledge of the Company or any of its subsidiaries, is any such
dispute threatened. None of the Company’s or its subsidiaries’ employees is a member of a union
and the Company and its subsidiaries believe that their relations with their employees are good.



(m) Intellectual Property Rights. The Company and its subsidiaries own or possess
adequate rights or licenses to use all trademarks, trade names, service marks, service mark
registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights necessary to conduct their respective
businesses as now conducted. The Company and its subsidiaries do not have any knowledge of any
infringement by the Company or its subsidiaries of trademark, trade name rights, patents, patent
rights, copyrights, inventions, licenses, service names, service marks, service mark registrations,
trade secret or other similar rights of others, and, to the knowledge of the Company there is no
claim, action or proceeding being made or brought against, or to the Company’s knowledge, being
threatened against, the Company or its subsidiaries regarding trademark, trade name, patents,
patent rights, invention, copyright, license, service names, service marks, service mark
registrations, trade secret or other infringement; and the Company and its subsidiaries are unaware
of any facts or circumstances which might give rise to any of the foregoing.



(n) Environmental Laws. The Company and its subsidiaries are (i) in compliance with
any and all applicable foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such permit, license or
approval.



(o) Title. Any real property and facilities held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries.



(p) Insurance. The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as management
of the Company believes to be prudent and customary in the businesses in which the Company and its
subsidiaries are engaged. Neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for and neither the Company nor any such subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the Company and its
subsidiaries, taken as a whole.



(q) Regulatory Permits. The Company and its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and neither the Company
nor any such subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit.



(r) Internal Accounting Controls. The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset accountability, and (iii) the
recorded amounts for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.



(s) No Material Adverse Breaches, etc. Neither the Company nor any of its
subsidiaries is subject to any charter, corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which in the judgment of the Company’s officers has or is
expected in the future to have a material adverse effect on the business, properties, operations,
financial condition, results of operations or prospects of the Company or its subsidiaries.
Neither the Company nor any of its subsidiaries is in breach of any contract or agreement which
breach, in the judgment of the Company’s officers, has or is expected to have a material adverse
effect on the business, properties, operations, financial condition, results of operations or
prospects of the Company or its subsidiaries.



(t) Tax Status. The Company and each of its subsidiaries has made and filed all
federal and state income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject and (unless and only to the extent that the Company and each of
its subsidiaries has set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) has paid all taxes and other governmental assessments and charges that
are material in amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and has set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due
by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for
any such claim.



(u) Certain Transactions. Except for arm’s length transactions pursuant to which the
Company makes payments in the ordinary course of business upon terms no less favorable than the
Company could obtain from third parties and other than the grant of stock options disclosed in the
SEC Documents, none of the officers, directors, or employees of the Company is presently a party to
any transaction with the Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company, any
corporation, partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or partner.



(v) Fees and Rights of First Refusal. The Company is not obligated to offer the
securities offered hereunder on a right of first refusal basis or otherwise to any third parties
including, but not limited to, current or former shareholders of the Company, underwriters,
brokers, agents or other third parties.



4. COVENANTS.



(a) Best Efforts. Each party shall use its best efforts to timely satisfy each of the
conditions to be satisfied by it as provided in Sections 6 and 7 of this Agreement.



(b) Blue Sky. The Company shall, on or before the Closing Date, take such action as
the Company shall reasonably determine is necessary to qualify the Conversion Shares, or obtain an
exemption for the Conversion Shares for sale to the Buyers at the Closing pursuant to this
Agreement under applicable securities or “Blue Sky” laws of the states of the United States, and
shall provide evidence of any such action so taken to the Buyers on or prior to the Closing Date.



(c) Reporting Status. Until the earlier of (i) the date as of which the Buyer(s) may
sell all of the Conversion Shares without restriction pursuant to Rule 144(k) promulgated under the
Securities Act (or successor thereto), or (ii) the date on which (A) the Buyer(s) shall have sold
all the Conversion Shares and (B) none of the Convertible Debentures are outstanding (the
“Registration Period”), the Company shall file in a timely manner all reports required to
be filed with the SEC pursuant to the Exchange Act and the regulations of the SEC thereunder, and
the Company shall not terminate its status as an issuer required to file reports under the Exchange
Act even if the Exchange Act or the rules and regulations thereunder would otherwise permit such
termination.



(d) Use of Proceeds. The Company will use the proceeds from the sale of the
Convertible Debentures for general corporate and working capital purposes.



(e) Reservation of Shares. The Company shall take all action reasonably necessary to
at all times have authorized, and reserved for the purpose of issuance, such number of shares of
Common Stock as shall be necessary to effect the issuance of the Conversion Shares. If at any time
the Company does not have available such shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all of the Conversion Shares, the Company shall call and
hold a special meeting of the shareholders within thirty (30) days of such occurrence, for the sole
purpose of increasing the number of shares authorized. The Company’s management shall recommend to
the shareholders to vote in favor of increasing the number of shares of Common Stock authorized.
Management shall also vote all of its shares in favor of increasing the number of authorized shares
of Common Stock.



(f) Listings or Quotation. The Company shall promptly secure the listing or quotation
of the Conversion Shares upon each national securities exchange, automated quotation system or The
National Association of Securities Dealers Inc.’s Over-The-Counter Bulletin Board (“OTCBB”)
or other market, if any, upon which shares of Common Stock are then listed or quoted (subject to
official notice of issuance) and shall use its best efforts to maintain, so long as any other
shares of Common Stock shall be so listed, such listing of all Conversion Shares from time to time
issuable under the terms of this Agreement. The Company shall use its reasonable efforts to
maintain the Common Stock’s listing on the Nasdaq SmallCap Market.



(g) Fees and Expenses.



(i) Each of the Company and the Buyer(s) shall pay all costs and expenses incurred by such
party in connection with the negotiation, investigation, preparation, execution and delivery of the
Transaction Documents. The Company shall pay Yorkville Advisors Management LLC a fee equal to ten
percent (10%) of the Purchase Price.



(ii) The Company shall pay a structuring fee to Yorkville Advisors Management, LLC of Ten
Thousand Dollars ($10,000) which shall be paid directly from the proceeds of the First Closing as
set forth in Section 1(c).



(iii) The Company shall issue to the Buyer a warrant to purchase Five Hundred Thousand
(500,000) shares of the Common Stock on the First Closing Date and a warrant to purchase Five
Hundred Thousand (500,000) shares of Common Stock on the Second Closing Date (provided the Company
exercises its option) (collectively, the “Warrant Shares”), each of which shall have a term
of period of five (5) years and an exercise price per share equal to one hundred twenty percent
(120%) of the closing bid price on the trading day immediately prior to issuance. The Warrant
Shares shall have “piggy-back” and demand registration rights.



(h) Corporate Existence. So long as any of the Convertible Debentures remain
outstanding, the Company shall not directly or indirectly consummate any merger, reorganization,
restructuring, reverse stock split consolidation, sale of all or substantially all of the Company’s
assets or any similar transaction or related transactions (each such transaction, an
“Organizational Change”) unless, prior to the consummation an Organizational Change, the
Company obtains the written consent of each Buyer. In any such case, the Company will make
appropriate provision with respect to such holders’ rights and interests to insure that the
provisions of this Section 4(h) will thereafter be applicable to the Convertible Debentures.



(i) Transactions With Affiliates. So long as any Convertible Debentures are
outstanding, the Company shall not, and shall cause each of its subsidiaries not to, enter into,
amend, modify or supplement, or permit any subsidiary to enter into, amend, modify or supplement
any agreement, transaction, commitment, or arrangement with any of its or any subsidiary’s
officers, directors, person who were officers or directors at any time during the previous two (2)
years, stockholders who beneficially own five percent (5%) or more of the Common Stock, or
Affiliates (as defined below) or with any individual related by blood, marriage, or adoption to any
such individual or with any entity in which any such entity or individual owns a five percent (5%)
or more beneficial interest (each a “Related Party”), except for (a) customary employment
arrangements and benefit programs on reasonable terms, (b) any investment in an Affiliate of the
Company, (c) any agreement, transaction, commitment, or arrangement on an arms-length basis on
terms no less favorable than terms which would have been obtainable from a person other than such
Related Party, (d) any agreement, transaction, commitment, or arrangement which is approved by a
majority of the disinterested directors of the Company; for purposes hereof, any director who is
also an officer of the Company or any subsidiary of the Company shall not be a disinterested
director with respect to any such agreement, transaction, commitment, or arrangement.
“Affiliate” for purposes hereof means, with respect to any person or entity, another person
or entity that, directly or indirectly, (i) has a ten percent (10%) or more equity interest in that
person or entity, (ii) has ten percent (10%) or more common ownership with that person or entity,
(iii) controls that person or entity, or (iv) shares common control with that person or entity.
“Control” or “controls” for purposes hereof means that a person or entity has the
power, direct or indirect, to conduct or govern the policies of another person or entity.



(j) Transfer Agent. The Company shall not change its transfer agent without the
express written consent of the Buyer(s), which may be withheld by the Buyer(s) in its sole
discretion. In the event that the Company’s agency relationship with the transfer agent should be
terminated for any reason prior to a date which is two (2) years after the Closing Date, the
Company shall immediately appoint a new transfer agent and shall require that the new transfer
agent execute and agree to be bound by the terms of the Irrevocable Transfer Agent Instructions (as
defined herein).



(k) Restriction on Issuance of the Capital Stock. So long as any Convertible
Debentures are outstanding, the Company shall not, without the prior written consent of the
Buyer(s) which shall not be unreasonably withheld, and except for grants of stock awards and stock
options under the Company’s current equity incentive plan (including a future increase of up to
5,000,000 shares in the share reserve) and except for exercises or conversions of currently
outstanding derivative securities, (i) issue or sell shares of Common Stock or Preferred Stock
without consideration or for a consideration per share less than the bid price of the Common Stock
determined immediately prior to its issuance, (ii) issue any warrant, option, right, contract,
call, or other security instrument granting the holder thereof, the right to acquire Common Stock
without consideration or for a consideration less than such Common Stock’s Bid Price value
determined immediately prior to it’s issuance, (iii) enter into any security instrument granting
the holder a security interest in any and all assets of the Company, or (iv) other than with regard
to allowed increases in the equity incentive plan share reserve set forth above, file any
registration statement on Form S-8.



(l) Neither the Buyer(s) nor any of its affiliates have an open short position in the Common
Stock of the Company, and the Buyer(s) agrees that it shall not, and that it will cause its
affiliates not to, engage in any short sales of or hedging transactions with respect to the Common
Stock as long as any Convertible Debenture or warrants to purchase the Warrant Shares shall remain
outstanding.



5. TRANSFER AGENT INSTRUCTIONS.



(a) The Company shall issue the Irrevocable Transfer Agent Instructions to its transfer agent
irrevocably appointing David Gonzalez, Esq. as the Company’s agent for purpose of having
certificates issued, registered in the name of the Buyer(s) or its respective nominee(s), for the
Conversion Shares representing such amounts of Convertible Debentures as specified from time to
time by the Buyer(s) to the Company upon conversion of the Convertible Debentures, for interest
owed pursuant to the Convertible Debenture, and for any and all Liquidated Damages (as this term is
defined in the Investor Registration Rights Agreement). David Gonzalez, Esq. shall be paid a cash
fee of Fifty Dollars ($50) for every occasion they act pursuant to the Irrevocable Transfer Agent
Instructions. Prior to registration of the Conversion Shares under the Securities Act, all such
certificates shall bear the restrictive legend specified in Section 2(g) of this Agreement. The
Company warrants that no instruction other than the Irrevocable Transfer Agent Instructions
referred to in this Section 5, and stop transfer instructions to give effect to Section 2(g) hereof
(in the case of the Conversion Shares prior to registration of such shares under the Securities
Act) will be given by the Company to its transfer agent and that the Conversion Shares shall
otherwise be freely transferable on the books and records of the Company as and to the extent
provided in this Agreement and the Investor Registration Rights Agreement. Nothing in this Section
5 shall affect in any way the Buyer’s obligations and agreement to comply with all applicable
securities laws upon resale of Conversion Shares. If the Buyer(s) provides the Company with an
opinion of counsel, in form, scope and substance customary for opinions of counsel in comparable
transactions to the effect that registration of a resale by the Buyer(s) of any of the Conversion
Shares is not required under the Securities Act, the Company shall within two (2) business days
instruct its transfer agent to issue one or more certificates in such name and in such
denominations as specified by the Buyer. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose
of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at
law for a breach of its obligations under this Section 5 will be inadequate and agrees, in the
event of a breach or threatened breach by the Company of the provisions of this Section 5, that the
Buyer(s) shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate issuance and transfer, without the necessity of
showing economic loss and without any bond or other security being required.



6. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.



The obligation of the Company hereunder to issue and sell the Convertible Debentures to the
Buyer(s) at the Closings is subject to the satisfaction, at or before the Closing Dates, of each of
the following conditions, provided that these conditions are for the Company’s sole benefit and may
be waived by the Company at any time in its sole discretion:



(a) Each Buyer shall have executed the Transaction Documents and delivered them to the
Company.



(b) The Buyer(s) shall have delivered to the Escrow Agent the Purchase Price for Convertible
Debentures in respective amounts as set forth next to each Buyer as outlined on Schedule I attached
hereto and the Escrow Agent shall have delivered the net proceeds to the Company by wire transfer
of immediately available U.S. funds pursuant to the wire instructions provided by the Company.



(c) The representations and warranties of the Buyer(s) shall be true and correct in all
material respects as of the date when made and as of the Closing Dates as though made at that time
(except for representations and warranties that speak as of a specific date), and the Buyer(s)
shall have performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied or complied with by
the Buyer(s) at or prior to the Closing Dates.



(d) With respect to the Second Closing, the Company has exercised its option set forth in
section 1(a) to sell and issue to each Buyer at the Second Closing Convertible Debentures in an
amount of $1,000,000.



7. CONDITIONS TO THE BUYER’S OBLIGATION TO PURCHASE.



(a) The obligation of the Buyer(s) hereunder to purchase the Convertible Debentures at the
First Closing is subject to the satisfaction, at or before the First Closing Date, of each of the
following conditions:



(i) The Company shall have executed the Transaction Documents and delivered the same to the
Buyer(s).



(ii) The Common Stock shall be authorized for quotation or trading on the Nasdaq National
Market, the Nasdaq SmallCap Market, the American Stock Exchange, the OTC Bulletin Board or the New
York Stock Exchange, whichever is at the time the principal trading exchange or market for the
Common Stock (a “Principal Market”). Trading in the Common Stock shall not have been
suspended for any reason, and all the Conversion Shares issuable upon the conversion of the
Convertible Debentures shall be approved by the Principal Market.



(iii) The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality in Section 3 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the date when made and as of the
First Closing Date as though made at that time (except for representations and warranties that
speak as of a specific date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the First Closing Date. If
requested by the Buyer, the Buyer shall have received a certificate, executed by the President of
the Company, dated as of the First Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by the Buyer including, without limitation an update as of
the First Closing Date regarding the representation contained in Section 3(c) above.



(iv) The Company shall have executed and delivered to the Buyer(s) the Convertible Debentures
in the respective amounts set forth opposite each Buyer(s) name on Schedule I attached hereto.



(v) The Buyer(s) shall have received an opinion of counsel from Heller Ehrman LLP in a form
satisfactory to the Buyer(s).



(vi) The Company shall have provided to the Buyer(s) a certificate of good standing from the
secretary of state from the state in which the company is incorporated.



(vii) The Company or the Buyer(s) shall have filed a form UCC-1 or such other forms as may be
required to perfect the Buyer’s interest in the Pledged Property as detailed in the Security
Agreement dated the date hereof and provided proof of such filing to the Buyer(s).



(viii) The Company and Cheshire Associates shall have delivered to the Escrow Agent the
Pledged Shares as well as executed and medallion guaranteed stock powers as required pursuant to
the Pledge and Escrow Agreement and the Insider Pledge and Escrow Agreement.



(ix) The Company shall have provided to the Buyer an acknowledgement, to the satisfaction of
the Buyer, from the Company’s independent certified public accountants as to its ability to provide
all consents required in order to file a registration statement in connection with this
transaction.



(x) The Company shall have reserved out of its authorized and unissued Common Stock, solely
for the purpose of effecting the conversion of the Convertible Debentures, shares of Common Stock
to effect the conversion of all of the Conversion Shares then outstanding.



(xi) The Irrevocable Transfer Agent Instructions, in form and substance satisfactory to the
Buyer, shall have been delivered to and acknowledged in writing by the Company’s transfer agent.



(b) The obligation of the Buyer(s) hereunder to accept the Convertible Debentures at the
Second Closing is subject to the satisfaction, at or before the Second Closing Date, of each of the
following conditions:



(i) The Common Stock shall be authorized for quotation or trading on the Nasdaq National
Market, the Nasdaq SmallCap Market, the American Stock Exchange, the OTC Bulletin Board or the New
York Stock Exchange, whichever is at the time the principal trading exchange or market for the
Common Stock (a “Principal Market”). Trading in the Common Stock shall not have been
suspended for any reason, and all the Conversion Shares issuable upon the conversion of the
Convertible Debentures shall be approved by the Principal Market.



(ii) The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality in Section 3 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the date when made and as of the
Second Closing Date as though made at that time (except for representations and warranties that
speak as of a specific date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the Second Closing Date. If
requested by the Buyer, the Buyer shall have received a certificate, executed by two officers of
the Company, dated as of the Second Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by the Buyer including, without limitation an update as of
the Second Closing Date regarding the representation contained in Section 3(c) above.



(iii) The Company shall have executed and delivered to the Buyer(s) the Convertible Debentures
in the respective amounts set forth opposite each Buyer(s) name on Schedule I attached hereto.



(iv) No event of default shall have occurred under the Convertible Debenture issued at the
First Closing.



(v) The Company shall have provided written notice exercising its option to issue and sell to
the Buyer Convertible Debentures at the Second Closing in accordance with Section 1(a) of this
Agreement.



(vi) The Company shall have certified that all conditions to the Second Closing have been
satisfied and that the Company will file the Registration Statement with the SEC in compliance with
the rules and regulations promulgated by the SEC for filing thereof two (2) business days after the
Second Closing. If requested by the Buyer, the Buyer shall have received a certificate, executed
by the two officers of the Company, dated as of the Second Closing Date, to the foregoing effect.
The Buyers have no obligation to fund at the Second Closing if the Company has filed the
Registration Statement.



8. INDEMNIFICATION.



(a) In consideration of the Buyer’s execution and delivery of this Agreement and acquiring the
Convertible Debentures and the Conversion Shares hereunder, and in addition to all of the Company’s
other obligations under this Agreement, the Company shall defend, protect, indemnify and hold
harmless the Buyer(s) and each other holder of the Convertible Debentures and the Conversion
Shares, and all of their officers, directors, employees and agents (including, without limitation,
those retained in connection with the transactions contemplated by this Agreement) (collectively,
the “Buyer Indemnitees”) from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection
therewith (irrespective of whether any such Buyer Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements
(the “Indemnified Liabilities”), incurred by the Buyer Indemnitees or any of them as a
result of, or arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Company in this Agreement, the Convertible Debentures or the
Investor Registration Rights Agreement or any other certificate, instrument or document
contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the
Company contained in this Agreement, or the Investor Registration Rights Agreement or any other
certificate, instrument or document contemplated hereby or thereby, or (c) any cause of action,
suit or claim brought or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance or enforcement of this Agreement or any other instrument, document
or agreement executed pursuant hereto by any of the parties hereto, any transaction financed or to
be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the
Convertible Debentures or the status of the Buyer or holder of the Convertible Debentures the
Conversion Shares, as a Buyer of Convertible Debentures in the Company. To the extent that the
foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities,
which is permissible under applicable law.



(b) In consideration of the Company’s execution and delivery of this Agreement, and in
addition to all of the Buyer’s other obligations under this Agreement, the Buyer shall defend,
protect, indemnify and hold harmless the Company and all of its officers, directors, employees and
agents (including, without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the “Company Indemnitees”) from and against
any and all Indemnified Liabilities incurred by the Indemnitees or any of them as a result of, or
arising out of, or relating to (a) any misrepresentation or breach of any representation or
warranty made by the Buyer(s) in this Agreement, instrument or document contemplated hereby or
thereby executed by the Buyer, (b) any breach of any covenant, agreement or obligation of the
Buyer(s) contained in this Agreement, the Investor Registration Rights Agreement or any other
certificate, instrument or document contemplated hereby or thereby executed by the Buyer, or (c)
any cause of action, suit or claim brought or made against such Company Indemnitee based on
material misrepresentations or due to a material breach and arising out of or resulting from the
execution, delivery, performance or enforcement of this Agreement, the Investor Registration Rights
Agreement or any other instrument, document or agreement executed pursuant hereto by any of the
parties hereto. To the extent that the foregoing undertaking by each Buyer may be unenforceable
for any reason, each Buyer shall make the maximum contribution to the payment and satisfaction of
each of the Indemnified Liabilities, which is permissible under applicable law.



9. GOVERNING LAW: MISCELLANEOUS.



(a) 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.



(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party. In
the event any signature page is delivered by facsimile transmission, the party using such means of
delivery shall cause four (4) additional original executed signature pages to be physically
delivered to the other party within five (5) days of the execution and delivery hereof.



(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.



(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other jurisdiction.



(e) Entire Agreement, Amendments. This Agreement supersedes all other prior oral or
written agreements between the Buyer(s), the Company, their affiliates and persons acting on their
behalf with respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or therein, neither the
Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to
such matters. No provision of this Agreement may be waived or amended other than by an instrument
in writing signed by the party to be charged with enforcement.



(f) Notices. Any notices, consents, waivers, or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered (i) upon receipt, when delivered personally; (ii) upon confirmation of receipt,
when sent by facsimile; (iii) three (3) days after being sent by U.S. certified mail, return
receipt requested, or (iv) one (1) day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:



	 	 	 
	If to the Company, 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 Buyer(s), to its address and facsimile number on Schedule I, with copies to the
Buyer’s counsel as set forth on Schedule I. Each party shall provide five (5) days’ prior written
notice to the other party of any change in address or facsimile number.



(g) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns. Neither the Company nor any
Buyer shall assign this Agreement or any rights or obligations hereunder without the prior written
consent of the other party hereto.



(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.



(i) Survival. Unless this Agreement is terminated under Section 9(l), the
representations and warranties of the Company and the Buyer(s) contained in Sections 2 and 3, the
agreements and covenants set forth in Sections 4, 5 and 9, and the indemnification provisions set
forth in Section 8, shall survive the Closing for a period of two (2) years following the date on
which the Convertible Debentures are converted in full. The Buyer(s) shall be responsible only for
its own representations, warranties, agreements and covenants hereunder.



(j) Publicity. The Company and the Buyer(s) shall have the right to approve, before
issuance any press release or any other public statement with respect to the transactions
contemplated hereby made by any party; provided, however, that the Company shall be entitled,
without the prior approval of the Buyer(s), to issue any press release or other public disclosure
with respect to such transactions required under applicable securities or other laws or regulations
(the Company shall use its best efforts to consult the Buyer(s) in connection with any such press
release or other public disclosure prior to its release and Buyer(s) shall be provided with a copy
thereof upon release thereof).



(k) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.



(l) Termination. In the event that the First Closing shall not have occurred with
respect to the Buyers on or before five (5) business days from the date hereof due to the Company’s
or the Buyer’s failure to satisfy the conditions set forth in Sections 6 and 7 above (and the
non-breaching party’s failure to waive such unsatisfied condition(s)), the non-breaching party
shall have the option to terminate this Agreement with respect to such breaching party at the close
of business on such date without liability of any party to any other party.



(m) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.



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IN WITNESS WHEREOF, the Buyers and the Company have caused this Securities Purchase Agreement
to be duly executed as of the date first written above.



	 	 	 	 	 
	COMPANY:

	 

	THE IMMUNE RESPONSE CORPORATION







	 
	By:

	 

	Name:

	Title:







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EXHIBIT A




FORM OF INVESTOR REGISTRATION RIGHTS AGREEMENT




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EXHIBIT B




FORM OF ESCROW AGREEMENT




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EXHIBIT C




SECURITY AGREEMENT







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EXHIBIT D




PLEDGE AND ESCROW AGREEMENT





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EXHIBIT E




INSIDER PLEDGE AND ESCROW AGREEMENT






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EXHIBIT F




IRREVOCABLE TRANSFER AGENT INSTRUCTIONS




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SCHEDULE I




SCHEDULE OF BUYERS 




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Address/Facsimile	 	Amount of
	Name	 	Signature	 	Number of Buyer	 	Subscription
	 
	 	By: Yorkville
	 	 	 	 	 	 	 	 
	Cornell Capital Partners, LP
	 	Advisors, LLC
	 	101 Hudson Street – Suite 3700	 	$	2,000,000	 
	 
	 	Its: General Partner
	 	Jersey City, NJ  07303
	 	 	 	 
	 
	 	 	 	 	 	Facsimile: (201) 985-8266
	 	 	 	 
	 
	 	By:
	 	 	 	 	 	 	 	 
	 
	 	Name: Mark Angelo
	 	 	 	 	 	 	 	 
	 
	 	Its: Portfolio
	 	 	 	 	 	 	 	 
	 
	 	Manager
	 	 	 	 	 	 	 	 
	With a copy to:
	 	David Gonzalez, Esq.
	 	101 Hudson Street – Suite 3700	 	 	 	 
	 
	 	 	 	 	 	Jersey City, NJ 07302
	 	 	 	 
	 
	 	 	 	 	 	Facsimile:           (201) 985-8266
	 	 	 	 







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