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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-QSB
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
[ _ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______ TO ______
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LIFESTREAM TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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NEVADA 82-0487965
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 LINDEN STREET, SUITE 302, FT. COLLINS, COLORADO 80524
(Address of principal executive offices)
(970) 416-9966
(Registrant's telephone number, including area code)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or shorter period
that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes [ X ] No [ _ ]
The number of shares outstanding of the registrant's common stock as of August
10, 1998 was 10,936,366.
Transitional Small Business Disclosure Format. Yes [ _ ] No [ X ]
<PAGE>
LIFESTREAM TECHNOLOGIES, INC.
FORM 10-QSB
FOR THE QUARTER ENDED JUNE 30, 1998
INDEX
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Balance Sheets as of June 30, 1998 and December 31, 1997 2
Statements of Loss for the six months ended June 30, 1998
and 1997, the three month period ended June 30, 1998 and
1997, and from the period from date of inception (August
7, 1992) through June 30, 1998 4
Statements of Cash Flows for the six months ended June 30,
1998 and 1997, and from the period from date of inception
(August 7, 1992) through June 30, 1998 5
Notes to consolidated financial statements 6
Item 2. Management's Discussion and Analysis - Plan of Operation 9
PART II. OTHER INFORMATION 14
Item 2. Changes in Securities and Use of Proceeds
Item 4. Submission of Matters to a Vote of Security Holders
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES 17
Exhibit Index 18
1
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<TABLE>
<CAPTION>
Part I. FINANCIAL INFORMATION Lifestream Technologies, Inc.
Item 1. Financial Statements (A Development Stage Company)
Consolidated Balance Sheets
June 30, December 31,
1998 1997
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Unaudited
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 1,601,277 $ 6,160
Interest receivable, related parties 12,577 9,482
Inventory and supplies 30,802 30,802
Prepaid expenses 11,107 2,068
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Total current assets 1,655,763 48,512
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Equipment and leasehold improvements, net 510,991 23,754
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Other assets:
Patent, net 1,561,416 1,623,762
Notes receivable, related parties 119,622 69,622
Officer advances 5,212 1,500
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Total other assets 1,686,250 1,694,884
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Total assets $ 3,853,004 $ 1,767,150
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</TABLE>
See accompanying notes to consolidated financial statements
2
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<TABLE>
<CAPTION>
Lifestream Technologies, Inc.
(A Development Stage Company)
Consolidated Balance Sheets
June 30, December 31,
1998 1997
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Unaudited
<S> <C> <C>
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable $ 224,053 $ 216,918
Accrued compensation 36,866 -
Interest payable 2,222 20,371
Related party payable - 12,435
Capitalized lease obligation, current 40,287 -
Notes payable, current 11,720 41,144
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Total current liabilities 315,148 290,868
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Capitalized lease obligation, less current maturities 150,220 -
Notes payable, less current maturities 21,871 -
Convertible debt - 100,000
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Total liabilities 487,239 390,868
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Commitments and Contingencies
Stockholders' equity:
Preferred stock - -
Common stock 10,773 8,041
Additional paid-in capital 7,456,382 3,773,536
Unearned stock compensation (569,835) -
Deficit accumulated during the development stage (3,531,555) (2,405,295)
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Total stockholders' equity 3,365,765 1,376,282
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Total liabilities and stockholders' equity $ 3,853,004 $ 1,767,150
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</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE>
<TABLE>
<CAPTION>
Lifestream Technologies, Inc.
(A Development Stage Company)
Consolidated Statements of Loss
Cumulative
Amounts from
Date of Inception
(August 7, 1992) Six Months Ended Three Months Ended
through June 30, June 30,
June 30, ----------------------------- ---------------------------
1998 1998 1997 1998 1997
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Unaudited Unaudited Unaudited Unaudited Unaudited
<S> <C> <C> <C> <C> <C>
Revenues $ - $ - $ - $ - $ -
Operating Expenses:
Depreciation and amortization 745,206 233,801 72,773 197,416 36,388
Professional services 1,148,532 249,209 78,331 196,977 26,099
Travel 266,602 55,442 14,614 50,798 9,970
Research and product 394,226 177,665 24,687 165,089 12,111
development
Salaries and wages 385,249 177,499 50,000 152,499 25,000
Public relations 202,500 67,760 - 67,760 -
Other, general office 359,901 148,610 17,972 138,611 7,973
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Total operating expenses 3,502,216 1,109,986 258,377 969,150 117,541
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Loss from operations (3,502,216) (1,109,986) (258,377) (969,150) (117,541)
Other expense, net (29,339) (16,274) (4,190) (14,672) (2,588)
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Net loss $ (3,531,555)$ (1,126,260) $ (262,567) $ (983,822) $ (120,129)
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Net loss per share - basic and $ (0.13) $ (0.03) $ (0.11) $ (0.01)
diluted
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Weighted average number of
shares outstanding 8,343,371 7,538,411 8,621,520 7,673,540
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</TABLE>
See accompanying notes toconsolidated financial statements.
4
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<TABLE>
<CAPTION>
Lifestream Technologies, Inc.
(A Development Stage Company)
Consolidated Statements of Cash Flows
Increase (Decrease) in Cash
Date of
Inception
(August 7, 1992) Six Months Ended
through June 30,
June 30, ----------------------------
1998 1998 1997
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Unaudited Unaudited Unaudited
<S> <C> <C> <C>
Net cash used in operating activities $ (1,532,480) $ (684,916) $ (64,911)
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Cash flows from investing activities:
Capital expenditures (188,936) (144,538) (4,607)
Advances to related parties (119,622) (50,000) (5,202)
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Net cash used in investing activities (308,558) (194,538) (9,809)
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Cash flows from financing activities:
Proceeds from issuance of convertible debt 375,000 275,000 50,000
Proceeds from stock options exercised 94,756 32,326 -
Proceeds from sale of common stock 2,753,968 2,174,798 25,000
Net proceeds from (borrowings on)
notes payable 218,591 (7,553) -
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Net cash provided by financing activities 3,442,315 2,474,571 75,000
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Net increase in cash and cash equivalents 1,601,277 1,595,117 280
Cash and cash equivalents,
beginning of period - 6,160 5,229
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Cash and cash equivalents, end of period $ 1,601,277 $ 1,601,277 $ 5,509
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Supplemental schedule of non-cash investing and
financing activities:
Issuance of common stock in exchange for:
Patent and distribution rights $ 2,116,865 $ - $ -
Reduction of note payable 185,000 - -
Reduction of accrued interest 25,575 17,304 -
Reduction of accounts payable 90,381 - -
Reduction of convertible debt 375,000 375,000 -
Leasehold improvements 170,000 170,000 -
Financing costs 156,250 156,250 -
Interest paid $ 27,019 $ 17,068 $ 201
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</TABLE>
See accompanying notes to consolidated financial statements.
5
<PAGE>
Lifestream Technologies, Inc.
(A Development Stage Company)
Notes to Consolidated Financial Statements
A. Basis of In the opinion of management, the accompanying
Presentation unaudited consolidated balance sheets and related
interim consolidated statements of loss and cash
flows include all adjustments (consisting only of
normal recurring items) necessary for their fair
presentation in conformity with generally accepted
accounting principles. Preparing financial statements
requires management to make estimates and assumptions
that affect the reported amount of assets,
liabilities, revenue and expenses. Examples include
provisions for returns and bad debt and the length of
product life cycles and buildings' lives. Actual
results may differ from these estimates. Interim
results are not necessarily indicative of results for
a full year. The information included in this Form
10-QSB should be read in conjunction with
Management's Discussion and Analysis and the
financial statements and notes thereto included in
the Lifestream Technologies, Inc. Form 10-KSB for the
year ended December 31, 1997.
B. Development Stage The Company has been in the development stage since
Operations and it inception. The Company has no recurring source of
Going Concern revenue and has incurred operating losses since
inception. These factors raise substantial doubt
about the Company's ability to continue as a going
concern. The financial statements do not include any
adjustments that may be necessary if the Company is
unable to continue as a going concern. Management of
the Company has undertaken certain actions to address
these conditions. These actions include seeking new
sources of capital or funding to allow the Company to
commence production of its products. The Company
anticipates commencing operations in 1998.
C. Completion of In May 1998 the Company completed an offering of
Private 1,560,372 shares of the Company's common
Placement stock at a per share price of $1.25. Net proceeds of
Stock $1,950,465 have been invested in high-grade
Offering government-backed marketable securities, with
maturity periods ranging from 30 to 90 days, or have
been used in operations.
D. Convertible Debt In March 1998, the Company issued $250,000 of
convertible debt. The debt agreement specified a
conversion rate of $1.25 per share and an annual
interest rate of 8%. The debt was secured by shares
of the Company's common stock held by the Company's
president. As an inducement to advance the funds, the
Company issued the holder of the convertible debt
125,000 shares of the Company's common stock. This
stock issuance was recorded at its fair value as a
deferred finance charge of $156,250, and was set to
be amortized to expense over the term of the debt.
Additionally, in March 1998, the Company executed a
$25,000 convertible debt agreement with a stated
conversion rate of $1.00 per share and an interest
rate of prime plus 2%.
In June 1998, the Company effectively retired all of
its outstanding convertible debt obligations through
the issuance of 352,000 shares of the Company's
common stock. The conversion price ranged from $0.75
to $1.25 per share. In addition, the Company issued
an additional 29,065 shares as settlement of the
accrued interest outstanding as of the date of the
conversion of the debt to equity, and charged to
expense the remaining unamortized balance of the
deferred financing costs.
6
<PAGE>
E. Promissory On June 1, 1998 the Company loaned a related party
Note company $50,000. The Company received a promissory
note which included a stated interest rate of 8%.
F. Stock Compensation The Company has required that new key employees sign
an executive employment agreement (the "Agreement"),
in which the new employee is required to purchase a
quantity of the Company's common stock on the date of
hire at the price specified in the Agreement. In
addition, the Agreement contains a matching provision
which states that for every share purchased, one
additional share is sold for a price equal to the par
value of the stock ($0.001). The Agreement provides
for a "buy-back option" which permits the Company to
repurchase shares of stock sold under the Agreement
if the employee leaves the Company for any reason
during the 60 months following his hire, with the
right expiring as to 20% of the stock each year. The
agreement also contains a stock option grant of
20,000 shares of the Company's common stock at an
exercise price of $1.25 per share and with the same
vesting period as for the shares of stock purchased
under the agreement.
During the second quarter of 1998, the Company
executed this Agreement with four individuals. The
individuals purchased a number of shares ranging from
12,500 to 20,000 (128,500 in the aggregate) for a per
share purchase price of $1.25. Additionally, an equal
number of shares of stock were sold at the stated par
value of the stock. The Company has recorded the fair
value of the stock sold and corresponding grant of
options to be $605,180 as a component of equity and
is amortizing the balance to compensation expense
over the vesting period applicable to each new
employee.
G. Capital Lease In June 1998, the Company leased manufacturing space
Obligation in Post Falls, ID for a term of 60 months. In
connection with the lease agreement, the leasor made
certain facility improvements. The total facility
improvements were paid for in part by the issuance of
40,000 shares of the Company's common stock. The
total leasehold improvements were capitalized by the
Company and the fair value of the common stock issued
was recognized as an increase in Additional Paid-In
Capital. The balance of the capitalized lease
obligation will be repaid in monthly installments of
$3,027 over the term of the lease period.
7
<PAGE>
Item 2. Management's Discussion and Analysis or Plan of Operation
The following Management's Discussion and Analysis of Financial
Condition and Results of Operations contains forward-looking
statements which involve risks and uncertainties. The Company's actual
results could differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including
those set forth in the Company's 1997 Form 10-KSB and elsewhere in
this document.
The Company
- -----------
The Company was formed to develop, manufacture and market a line of health
diagnostic instruments to domestic and international markets. Lifestream's
initial product offering will be the Cholestron(TM), a hand held instrument that
accurately measures cholesterol levels in the blood in under five minutes. It
will be used in conjunction with a disposable dry-chemistry test strip. The
Company signed a manufacturing agreement with Boehringer Mannheim GMbH
("Boehringer"), located in Germany, whereby Boehringer will supply the
dry-chemistry test strips and in vitro diagnostic optic hardware used by the
Cholestron.
The Cholestron will initially monitor only total cholesterol levels, but the
Company hopes to make subsequent introductions of instruments which will also
make readings of high-density lipoprotein ("HDL") cholesterol, triglycerides,
low-density lipoprotein ("LDL") cholesterol levels, and possibly glucose all in
one instrument.
Lifestream plans to introduce the Cholestron to the market through health
professionals, including physicians, wellness/lifestyle educators and work site
health promotion programs. Also, the Company plans to distribute its products to
pharmacists and physicians. These health professionals will be able to support
pharmaceutical companies which sell cholesterol lowering therapy and pharmacists
will be able to offer on-site testing to their customers. The Company currently
plans to introduce a consumer-oriented product after the launch to the
professional market. The consumer-oriented product will be geared toward
patients with high cholesterol levels who need to monitor their progress on a
cholesterol-reducing program.
The Cholestron professional instrument will offer important education features
absent in current competing products. Using the Cholestron's keypad, the user
will be able to enter risk factors associated with heart health. The device will
use these factors to calculate the patients "biological" age (i.e. a measure of
how the patient's heart health compares to others). By changing parameters, a
patient can learn how his or her biological age will improve by changing
behavior lifestyles, such as quitting smoking or increasing exercise. A key part
of this system will be the Cholestron "smart card", holding up to 75 "bytes" of
information, including the patient's cholesterol readings and other risk factors
downloaded from the Cholestron. This information can then be transferred to the
physician's office computer via the "smart card" to provide the patient's risk
profile. By accessing Lifestream's secured intranet program being created
jointly with Secured Interactive Technologies Inc. (formerly Interactive Health
Evaluation Systems, Inc.), a health information software company, the physician
will be able to merge the "smart card" patient information with the latest
health research to create a "Personal Health Evaluation Program" for each
patient. This personalized program will be able to be printed out and reviewed
with the patient by the physician and continually updated to provide physicians
with a state-of-the-art tool to encourage behavioral change.
8
<PAGE>
The Company believes this approach to fighting and monitoring high cholesterol
will be what sets the Cholestron apart from its competitors. The Company expects
competition from several firms, both those using "single use" cholesterol
(screening) test strips and those developing an instrument/strip for monitoring
and diagnostics. However, no competitor to date has introduced a monitoring
product into the U.S. over-the-counter market on a retail basis or met the
Company's targeted price range for the professional market.
As of June 30, 1998, Lifestream had an accumulated deficit of approximately
$3,527,826. The ability of the Company to continue as a going concern and
achieve profitability is highly dependent upon numerous factors including, but
not limited to: the Company's ability to raise additional funds; successfully
manufacture, market and distribute its Cholestron product; successfully complete
the Company's regulatory approval process; and provide a reliable product at a
cost efficient price. Due to the uncertainty of these factors, it is difficult
to predict when such profitability will occur, if at all.
The development and marketing of consumer medical devices is capital intensive.
The Company has funded operations to date through private equity and debt
financing arrangements. In order to complete the product development and
initiate the marketing and production process it is expected that substantial
additional outside funding will be necessary. To this end the Company completed
a private placement offering of shares of the Company's Common Stock in May
1998, in which the Company was successful in raising approximately $1.95
million. The Company currently believes that the funds raised in this offering
will be sufficient to fund the development of the product through the initial
stages of production and marketing, but that additional funds will need to be
raised in order to successfully manufacture, market and distribute its
Cholestron product during the course of the twelve month period ending June 30,
1999, but this may not be the case.
Plan of Operation
In April 1998, the Company completed clinical studies for the Cholestron unit.
Upon completion of the clinical studies, the Company filed a 510(k) notification
with the United States Food and Drug Administration ("FDA"). Dealing with
Federal agencies including the FDA can be unpredictable, however it is the
Company's belief that the FDA's approval will be successfully obtained in the
fall of 1998, but this may not be the case.
9
<PAGE>
A pre-qualification product run of the Cholestron is currently in-process. This
device is assembled by the Company using sub-components manufactured by third
parties. Additionally, in May 1998, the Company leased a production facility
located in Post Falls, Idaho. The Company took possession of this 6,500 square
foot facility in June 1998, and immediately begin preparation for a
preproduction run of 250 units, which is expected to occur in the fall of 1998.
These 250 units will be used for beta site testing, marketing and as a final
quality assurance and control test before beginning actual volume production.
The Company expects to incur additional expense for capital equipment and
development costs as the Company transitions to actual production of the
Cholestron instrument. The extent of additional expense is dependent on the
quantity of sales orders the Company receives, if any. In June 1998, the Company
leased office space in Ft. Collins, Colorado. This office space is to be used as
the primary location for the administrative functions (marketing, sales,
accounting, investor relations and human resources) for the Company. As such,
the Company is currently developing a plan to transfer all such operations, from
Sandpoint, Idaho, to this new office and it is expected to be completed in the
third quarter of 1998. It is the opinion of management that the lease in
Sandpoint will be assumed by other parties at minimal cost to the Company.
Currently, the Company has 12 full time employees. The Company expects to
increase this to approximately 15-20 full time equivalent employees in the
fourth quarter of 1998, which is the current anticipated date when actual
production will begin, and the Company anticipates that it will continue to
increase the number of employees as the demand on manufacturng operations
increases, although this may not be the case.
Management's Discussion and Analysis
- ------------------------------------
Operating Expenses:
Operating expenses include those costs incurred to bring the Company's product
to market relative to both research and development and general administration.
Operating expenses increased to $1,109,986 in the six months ended June 30,
1998, from $258,377 for the same period of the prior year. The increase of
$851,609 was due in part to a net increase in professional expenses, salary
costs and research and development as the Company accelerated its efforts to
bring the Cholestron to market. The Company increased operating expenses to
$969,150 for the three month period ended June 30, 1998, from $117,541 for the
same three month period of the prior year. The increase of $851,609 was due
primarily to the opening of a production facility in Post Falls, Idaho and an
administrative office in Ft. Collins, Colorado. Salary and rent expense
increased in order to staff and maintain these new facilities. In addition, the
Company incurred certain costs to prepare a number of Cholestron units necessary
for a preproduction run and for certain clinical trials necessary to obtain the
FDA's 510(k) approval. Finally, the Company has employed certain individuals in
order to begin marketing the Cholestron and to create consumer product
awareness.
10
<PAGE>
Other Expenses and Income:
Other expenses and income includes those costs incurred relative to both
interest earned and interest paid, and for other miscellaneous non-operating
matters. For the six months ended June 30, 1998, other expense, net was $16,274
as compared to $4,190 for the corresponding six month period of the prior year.
For the three month period ended June 30, 1998, other expense, net was $14,672
as compared to $2,588 for the corresponding three month period of the prior
year. This increase in other expense of $12,084 for each of the periods was
primarily attributable to the increasing base in debt for which interest was
accrued.
Net Loss:
Primarily as a result of the foregoing factors, the Company's net loss was
$1,126,260 for the six months ended June 30, 1998 and $262,567 for the six
months ended June 30, 1997. This represents an increase in the loss for the same
period of $863,693. The loss for the three months ended June 30, 1998 was
$983,822 as compared to a loss for the three months ended June 30, 1997 of
$120,129.
Financial Condition:
From inception (August 7, 1992) to June 30, 1998, the Company has been financed
through private placements of equity securities and certain issuances of
corporate debt.
The Company has acquired certain intangible assets in exchange for shares of the
Company's Common Stock. In 1992, the Company acquired all of the outstanding
assets and liabilities of a related party development partnership for 3,327,000
shares of the Company's Common Stock. In 1993, the Company acquired certain
patents and distribution rights from an unrelated company in exchange for
470,000 shares of the Company's Common Stock.
In May 1998, the Company sold 1,560,372 shares of the Company's Common Stock at
a price of $1.25 per share. The proceeds from this offering will be used to fund
the initial stages of production and marketing. At June 30, 1998, $348,906 of
these proceeds had been utilized in operations. Until used, the proceeds are
invested in high grade government backed marketable securities with maturity
periods ranging from 30 to 90 days.
Additionally, through June 30, 1998, the Company incurred indebtedness of
$375,000 pursuant to the terms of various convertible promissory notes which
were to convert to Company Common Stock at a price between $0.75 and $1.25 per
share. In June 1998, the Company retired all these notes by the issuance of
352,000 shares of the Company's Common Stock.
11
<PAGE>
During the six months ended June 30, 1998, the Company used cash in operating
activities of $684,916 as compared to $64,911 for the six months ended June 30,
1997. This increase of $620,005 was primarily due to the increase in the net
loss for the period. The increase in depreciation and accrued expenses offset in
part the decrease in accounts payable for the amounts owed for professional
services. As of June 30, 1998, the Company had a balance of $1,601,277 in cash
and cash equivalents.
The Company's success will be dependent on its ability to achieve profitable
operations, bring the Cholestron to market, and obtain additional funds to
support its operations. There can be no assurance that the Company will achieve
profitable operations or successfully complete development and obtain regulatory
approval to market the Cholestron or that additional funds will be available
when and as required by the Company on acceptable terms or at all.
Year 2000 Compliance:
The Company has reviewed its business systems and believes that such systems are
year 2000 compliant. The costs to address the Company's year 2000 issues are not
expected to be material. The risks associated with the year 2000 compliance
issue in connection with the Cholestron have yet to be identified and addressed
but are part of the on-going development of the Cholestron. Additionally, the
Company has not created a contingency plan which would resolve any unforeseen
issues. The Company anticipates development of a formal plan in the next six
months.
New Accounting Pronouncements:
SFAS 132 In February 1998, the FASB issued SFAS No. 132, Employers'
Disclosures about Pensions and Other Postretirement Benefits,
which standardizes the disclosure requirements for pension and
other postretirement benefits. The adoption of SFAS No. 132 is
not expected to impact the Company's current disclosures.
SFAS 133 In June 1998, the FASB issued SFAS 133, "Accounting for
Derivative Instruments and Hedging Activities." SFAS 133
requires companies to recognize all derivatives contracts as
either assets or liabilities in the balance sheet and to
measure them at fair value. If certain conditions are met, a
derivative may be specifically designated as a hedge, the
objective of which is to match the timing of gain or loss
recognition on the hedging derivative with the recognition of
(i) the changes in the fair value of the hedged asset or
liability that are attributable to the hedged risk or (ii) the
earnings effect of the hedged forecasted transaction. For a
derivative not designated as a hedging instrument, the gain or
loss is recognized in income in the period of change. SFAS 133
is effective for all fiscal quarters of fiscal years beginning
after June 15, 1999.
12
<PAGE>
Historically, the Company has not entered into derivatives
contracts either to hedge existing risks or for speculative
purposes. Accordingly, the Company does not expect adoption of
the new standard on January 1, 2000 to affect its financial
statements.
Part II. OTHER INFORMATION
Item 2.
1. On May 31, 1998, the Company completed a private placement of 1,560,372
shares of Common Stock for a per share price of $1.25, or an aggregate
of $1,950,465. The shares were issued to twelve accredited investors.
The Company relied on Rule 505 of Regulation D as the basis for an
exemption from the registration requirements of the Securities Act of
1933 (the "1933 Act").
2. On June 24,1998, the Company issued 40,000 shares of Common Stock to
Jacklin Investments, L.P. in consideration for leasehold improvements
to be completed at the Post Falls, Idaho facility valued at $50,000.
Jacklin Investment, L.P. is an affiliate of the lessor pursuant to the
lease.
3. On June 15, 1998, the Company issued 181,065 shares of Common Stock to
Gordon Rock and 200,000 shares of Common Stock to Timothy Mathers, in
consideration of cancellation of indebtedness of $375,000 principal
amount plus accrued interest pursuant to convertible promissory notes
(the "Notes") made by the Company to Mr. Rock and Britannia Holdings,
Ltd. Britannia subsequently assigned its Note to Mr. Mathers.
4. On May 12, 1998, the Company issued shares of Common Stock to several
employees who exercised vested options to purchase the Company's Common
Stock. A total of 146,333 shares were issued and the option exercise
prices ranged from $.001 to $.75 per share. The Company received
aggregate cash consideration from the exercise of such option of
$19,015.
5. On May 12, 1998, the Company issued an aggregate of 58,680 shares of
Common Stock as payment for services provided to the Company pursuant
to the terms of four separate contracts for services. The aggregate
cash value of the services provided pursuant to the contracts was
$48,660.
6. On June 15, 1998, the Company issued an aggregate of 15,776 shares of
Common Stock as payment for services provided to the Company pursuant
to the terms of three separate contracts for services. The aggregate
cash value of the services provided pursuant to the contracts was
$17,776.
13
<PAGE>
7. On June 15, 1998, the Company issued 12,500 shares of Common Stock to
Craig Coad, an employee of the Company pursuant to an employment
agreement between Mr. Coad and the Company for services to be provided
by Mr. Coad to the Company.
8. The Company has agreed to sell 40,000, 40,000 and 36,000 shares of
Common Stock to Chuck Cannon, Diane Sawczyn and Ed Kalin, respectively,
pursuant to the terms of employment agreements between the Company and
each of Messrs. Cannon and Kalin and Ms. Sawczyn. One half of the
shares issued to each of the employees will be issued at a per share
purchase price of $1.25 and the remaining shares will be purchased for
a per share purchase price of $.001 pursuant to the terms of the
employment agreements.
9. The Company has agreed to issue 6,000 shares of Common Stock to each of
the five directors elected to the Company's Board of Directors as
compensation for serving as a director of the Company.
The Company relied on Section 4(2) of the 1933 Act as the basis for an
exemption from the registration requirements of the 1933 Act for the issuances
of Common Stock described in items 2-9 immediately above.
Item 4. Submission of Matters to a Vote of Security Holders
On June 28, 1998 the Company held its annual meeting of stockholders.
At the annual meeting, stockholders of the Company voted on (a) the election of
five directors; (b) the adoption of the Company's 1998 Stock Option Plan; and
(c) the ratification of the appointment of the Company's independent auditors.
The proxy tabulation results for the matters voted on at the annual
meeting are as follows:
1. Election of Directors/Nominees: Christopher Maus, Robert Boyle, Michael
Crane, William Gridley and John Trenary
For: 6,317,031 Against: 0 Abstain: 3,768
2. Proposal to adopt the 1998 Stock Option Plan
For: 4,132,031 Against: 117,813 Abstain:5,300
3. Proposal to ratify the appointment of independent auditors
For: 6,319,449 Against: 200 Abstain: 1,150
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Item 6. Exhibits and Reports on Form 8-K
a. Exhibit Index
b. Reports on Form 8-K
Form 8-K filed on May 8, 1998 reporting changes in the registrants
certifying public accountant (Item 4)
15
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SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
LIFESTREAM TECHNOLOGIES, INC.
- ----------------------------
(Registrant)
BY: /s/ Christopher Maus
--------------------
Christopher Maus, President, Chief Executive Officer, and Director
DATE: August 10, 1998
--------------------
BY: /s/ Criss Sakala
--------------------
Criss Sakala, Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
DATE: August 10, 1998
--------------------
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EXHIBIT INDEX
Exhibit No.
10.1 Lease between Jacklin Land Company Limited Partnership and Lifestream
Diagnostics, Inc., a wholly-owned subsidiary of Lifestream Technologies, Inc.
dated as of May 19, 1998.
10.2 Employment Agreement between Criss Sakala and Lifestream Technologies,
Inc. dated as of June 25, 1998.
27 Financial Data Schedule
17
LEASE
THIS LEASE is made and entered into on the 19th day of May,
1998 between JACKLIN LAND COMPANY LIMITED PARTNERSHIP, an Idaho
limited partnership (hereinafter called "Landlord"), and LIFESTREAM
DIAGNOSTICS, INC. (hereinafter called "Tenant").
A. DEMISE.
Landlord hereby leases, demises and lets to Tenant,
and Tenant hereby leases, hires and takes from Landlord those certain
premises (hereinafter called "Premises"), identified as a portion of
a building located in Kootenai County, Idaho legally described in
Exhibit "A," outlined in red on the site plan marked Exhibit "B,"
comprising approximately 6,430 square feet (hereinafter called
Tenant's "gross leaseable area").
B. TERMS, COVENANTS AND CONDITIONS.
The parties agree that this Lease is made upon the
following terms, covenants and conditions:
Article 1. Term. The term of this Lease shall
commence upon the 1st day of June, 1998, and shall terminate at
midnight on the 31st day of May, 2003.
Article 2. Base Rent.
For the term of this Lease, Tenant agrees to pay
Landlord as base rent for the Premises the sum of $5,015 per month
subject to adjustment as hereinafter provided. Said base rent shall
be paid in advance on the first day of each and every calendar month
during said term, except that the first month's rent shall be paid
upon the execution hereof. (In the event the term of this Lease
commences or ends on a day other than the first day of a calendar
month, then the rental for the first and last months of the lease
term shall be prorated in the proportion that the number of days this
Lease is in effect during such months bears to 30, and such rental
shall be paid at the commencement of such months.)
In addition to said base rent, Tenant agrees to pay
the amount of the rental adjustments as and when hereinafter provided
in this Lease. Said rental, including base rent, additional rent and
all other sums payable to Landlord under this Lease shall be paid to
Landlord without deduction or offset at the address set forth at the
end of this Lease or at such other place as Landlord may, from time
to time, designate in writing.
2.2 The base rent payable hereunder shall be
increased twelve (12) months after the commencement date hereof, and
every twelve (12) months thereafter during the term hereof, including
any renewal or extension period in an amount equal to the greater of
five percent (5%) over the base rent charged for the immediately
preceding 12-month period or an amount equal to the percentage
increase during the preceding 12-month period in the "U.S. Bureau of
Labor Statistics Consumer Price Index for Urban Wage Earners and
Clerical Workers, Seattle Area (1967 = 100), All Items."
Article 3. Security Deposit.
3.1 Upon execution of this Lease, Tenant has delivered
to Landlord the sum of $5,015 as security for the faithful
performance by Tenant of all of the obligations of this Lease to be
kept and performed by Tenant.
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3.2 If Tenant defaults with respect to any provision of
this Lease, or should Landlord make any payment on behalf of Tenant,
Landlord may (but shall not be required to) use, apply or retain all or
any part of said deposit in the amount of said default or payment. If
any portion of said deposit is so paid or retained, Tenant shall
forthwith upon Landlord's demand therefor deposit cash with Landlord in
an amount sufficient to restore said deposit to its original sum.
Tenant's failure to do so shall constitute a material breach of this
Lease.
3.3 Landlord shall not be required to keep said deposit
separate from its general funds and Tenant shall not be entitled to
interest on any sums deposited. Upon full and faithful performance of
all of Tenant's obligations under this Lease, said deposit or its
then-remaining balance shall be refunded to Tenant within thirty (30)
business days after the termination of this Lease.
3.4 If for any reason this Lease is terminated prior to
the commencement of the term (other than for non-performance of
Landlord), in addition to any other rights Landlord may have, Landlord
shall have the right to retain the security deposit.
Article 4. Use of Premises.
4.1 The Premises shall be used and occupied only for the
conduct of distribution and manufacturing of cholesteron devices and
activities incident thereto and for no other purpose without the prior
written consent of Landlord.
4.2 Tenant shall not do or permit to be done in or about
the Premises anything which is illegal or unlawful or which is of a
hazardous or dangerous nature; or which causes undue noise or vibration;
or which will increase the rate or cause the cancellation of any
insurance on the building of which the Premises are a part.
4.3 Tenant shall not obstruct or interfere with the
rights of any other Tenants of the building or their customers and
invitees nor injure or annoy them.
4.4 Tenant shall not use or permit the use of the
Premises or any part thereof as living or sleeping quarters.
4.5 Tenant shall not cause, maintain or permit any
nuisance in, on or about Premises nor commit any waste therein or
thereon.
4.6 Tenant shall not store, handle, generate, transport,
treat, use or dispose of any Hazardous Substances or substances
containing components designated as Hazardous Substances on or in the
Premises, excepting Tenant may use, handle and store on the Premises, in
the ordinary course of business, those Hazardous Substances identified
in Exhibit "C" attached hereto. With respect to Hazardous Substances,
Tenant covenants and agrees:
(a) To use, store and dispose of all Hazardous
Substances in accordance with Environmental Law;
(b) To establish and maintain spill prevention,
containment and disposal programs to insure proper disposal and
containment of Hazardous Substances, and prevent spills, discharges
and/or releases of Hazardous Substances on or in the Premises;
(c) To immediately notify Landlord of any spill,
discharge and/or release of Hazardous Substances, whether or not said
spill, discharge and/or release is reportable under Environmental Law;
and
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(d) To be fully and solely responsible for all cleanup
and remedial costs associated with Hazardous Substance spills,
discharges and/or releases in or on the Premises occurring during
Tenant's use or occupancy of the Premises, and caused or occasioned by
Tenant.
As used in this paragraph: (i) "Hazardous Substances",
whether as product, waste or release to other media, are those
substances defined or regulated by Environmental Law; (ii)
"Environmental Law" means all federal laws and the laws of the City of
Post Falls, Kootenai County and the State of Idaho, now or hereafter
existing, that relate to health, safety or environmental protection; and
(iii) "Premises" shall include not only the property leased but all of
Lot 6, Block 1, Phase 2, Riverbend Commerce Park, City of Post Falls,
Idaho, plus all lots contiguous to said Lot 6, and any storm, sewer or
drywell drains contained on said lots.
4.7 Tenant shall furnish, install and maintain in the
Premises such trade fixtures, furniture and other property reasonably
appropriate to the conduct of Tenant's business.
4.8 Tenant agrees that at its own cost and expense, it
will comply with and conform to all laws and ordinances and any and all
lawful requirements and orders of any properly constituted governmental
board or authority, in any way relating to the use or occupancy of the
Premises throughout the entire term of this Lease.
4.9 Landlord has not and does not make any
representation or warranty as to whether the Premises are zoned or
otherwise comply with applicable governmental regulations so as to
permit the use of the same for Tenant's particular purposes. Tenant
acknowledges that it is Tenant's responsibility to verify that the
Premises can be used for Tenant's purposes.
Article 5. Taxes.
Landlord shall pay, before the same become delinquent,
all taxes and special assessments levied against the land and building
upon which the Premises are situated. Tenant agrees to reimburse
Landlord, as additional rent, eighteen percent (18%) of all such tax and
special assessment payments made by Landlord within ten (10) days of
Landlord's notice to Tenant. Tenant shall pay, before the same become
delinquent, all taxes assessed against Tenant's furniture, fixtures,
equipment and other property in the Premises and all taxes based upon
Tenant's occupancy of the Premises or the business conducted by Tenant.
Article 6. Utilities and Other Services.
6.1 Landlord, at its expense, will furnish all water,
sewer, electricity, garbage services and janitorial and maintenance
service for the common areas of the building and the grounds and parking
areas adjacent thereto.
6.2 Tenant, at its own cost and expense, shall furnish
and pay for all water, heat, air conditioning, electricity, garbage
disposal, any required industrial pretreatment of wastewater, sewer,
telephone, cleaning and janitorial service, and any other utility or
service charges related to its occupancy of the Premises. Tenant shall
pay all charges for said services as they become due and hold Landlord
harmless thereon.
6.3 Landlord does not warrant that any of the utilities
and services to be provided by or paid for by Landlord will be free from
interruption, but Landlord will take reasonable steps to restore the
interrupted utilities and services. Nor does Landlord warrant that the
utilities currently on the Premises are adequate for Tenant's intended
use, and
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<PAGE>
Tenant warrants that it has inspected the Premises and accepts
it as is. The interruption of utilities or services shall not be deemed
an eviction or excuse performance of any of Tenant's obligations under
this Lease or render Landlord liable for damages.
Article 7. Maintenance by Landlord.
Landlord shall maintain in good condition the structural
and exterior components of the building. Landlord shall maintain in good
condition all plumbing and the electrical system of the building.
Landlord shall not be obligated to repair or replace fixtures or
equipment installed by Tenant or make any repair or replacement
occasioned by any act or omission of Tenant, its employees, agents,
invitees or licensees.
Article 8. Alterations. Repairs and Maintenance by
Tenant.
8.1 Tenant shall make no changes, improvements or
alterations to the Premises or any part thereof without first obtaining
Landlord's written consent. All such changes, improvements, alterations
and repairs, if any, made by Tenant shall be at Tenant's sole cost. At
Landlord's option, any or all such improvements, alterations and repairs
upon expiration or termination of this Lease shall: (i) remain on the
Premises and become property of Landlord; or (ii) shall be promptly
removed by Tenant and all damage caused by such removal be repaired with
all due diligence at Tenant's cost. Landlord may impose as a condition
of its consent to such changes, improvements, alterations and repairs
that Tenant utilize for such purposes only contractors, materials,
mechanics and materialmen reasonably acceptable to Landlord, and that
Tenant reimburse Landlord for any architectural/engineering costs
incurred by Landlord in reviewing Tenant's proposed changes,
improvements or alterations.
8.2 Tenant shall, at its expense, keep and maintain the
Premises in good order, condition and repair and shall do such
reasonable periodic painting of the Premises as may be required and
approved by Landlord. Tenant shall keep its sewers and drains open and
clear and windows clean and in good condition. Tenant shall reimburse
Landlord on demand for the cost of damage to the Premises or the
building caused by Tenant or its employee's agents. If Tenant shall fail
to comply with the foregoing requirements, Landlord may (but shall not
be obligated to) effect such maintenance and repairs and the cost
thereof may be deducted from the security deposit. In the event said
security deposit is not sufficient to repay Landlord, Tenant shall
forthwith make any deficiency payment to Landlord with interest thereon
at the rate of twelve percent (12%) per annum.
Article 9. Common Areas.
During the term of this Lease, Landlord agrees to
operate and maintain all common areas within the building in a
reasonable and clean manner. The term "common area" as used in this
Lease shall include any public restrooms, hallways, sidewalks, parking
areas and yards and landscaping on the property described in Exhibit
"A." Subject to paragraph 4.3 above, Tenant shall have a non-exclusive
easement to use said common areas for the benefit of Tenant and Tenant's
employees, invitees and agents for the term of this Lease.
Article 10. Insurance.
10.1 Tenant shall at all times during the term hereof,
at its expense, carry and maintain insurance policies in the amount and
in the form hereinafter provided: (a) Public liability and property
damage; bodily injury liability insurance with limits of not less than
$1,000,000.00 per person and $1,000,000.00 per occurrence insuring
against any
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and all liability of the insured with respect to the
Premises or arising from the maintenance, use or occupancy thereof and
property damage liability insurance with limits of not less than
$500,000.00 per occurrence. All such insurance shall specifically insure
the performance by Tenant of the indemnity agreement as to liability for
injury to or death of persons and loss of or damage to property
contained in Article 13.1 hereof. Said insurance shall name Landlord as
an additional insured and shall provide that Landlord, although named as
an insured, shall nevertheless be entitled to recovery thereunder for
any loss suffered by its agents, servants and employees by reason of
Tenant's negligence. Said insurance shall be primary insurance as
respects Landlord and not participating with any other available
insurance. (b) Plate glass: Plate glass insurance sufficient to cover
all plate glass located in or on Tenant's Premises. (c) Tenant
improvements: Insurance covering all of Tenant's leasehold improvements,
trade fixtures, merchandise and other personal property located from
time to time on the Premises an amount not less than eighty percent
(80%) of their full replacement cost providing protection against any
peril included within the classification "fire and extended coverage,"
together with insurance against sprinkler damage, vandalism and
malicious mischief. Proceeds of such insurance shall, so long as this
Lease remains in effect, be used to repair or replace the property
damaged or destroyed. (d) Policy form: All insurance to be carried by
Tenant hereunder shall be in companies with loss payable clauses and
deductibles reasonably satisfactory to Landlord. Copies of such policies
or certificates evidencing such insurance shall be delivered to Landlord
within ten (10) days of possession of the Premises by Tenant and within
thirty (30) days prior to the expiration date of each policy. No such
policy shall be cancelable, except after twenty (20) days' advance
written notice to Landlord.
10.2 If Tenant fails to procure and maintain any
insurance policy required herein, Landlord may (but shall not be
obligated to) procure the same on Tenant's behalf, and the cost of same
shall be due with the next installment of rent, together with interest
at the rate of twelve percent (12%) per annum.
10.3 Landlord shall, at Landlord's expense, maintain on
the building a policy of standard fire insurance with extended coverage
in the amount of its replacement value. All proceeds of any such
insurance shall be payable to Landlord.
10.4 Any insurance carried by either party with respect
to the Premises and the property contained in or on the Premises or
occurrences related to the use of the Premises, at the expense of the
party who has the obligation to procure such coverage, shall include a
clause or statement denying to the insurer rights of subrogation against
the other party the extent rights have been waived by the insured prior
to occurrence of injury or loss. Each party notwithstanding any
provisions of this Lease to the contrary waives any right of recovery
against the other for injury or loss due to hazards covered by insurance
to the extent that the injured party is compensated for the injury or
loss by such insurance.
Article 11. Damage or Destruction.
11.1 In the event the leased Premises or the building in
which they form a part shall be totally or partially destroyed by fire
or any other casualty or by an act of God, then Landlord shall have, at
its option, either the right to rebuild said Premises, or on thirty (30)
days' written notice to Tenant, Landlord may terminate this Lease
without liability for damages to Tenant in any sum whatsoever. In the
event the leased Premises are destroyed, resulting in Tenant being
deprived of its occupancy of the leased Premises, no rental shall be
5
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required of Tenant unless the leased Premises or a portion thereof are
being used by Tenant for the conduct of Tenant's business, in which
event Tenant shall pay rental in such proportion as the part used bears
to the whole of said Premises.
11.2 Landlord shall not, under any circumstances, be
required or obligated to repair, restore or replace any of Tenant's
leasehold improvements, trade fixtures or any other property whatsoever
installed in the Premises by Tenant.
Article 12. Eminent Domain.
12.1 If all or substantially all of the Premises or the
building in which they form a part shall be taken or appropriated by any
public or quasi-public authority under the power of eminent domain,
either party hereto shall have the right, at its option, to terminate
this Lease effective as of the date possession is taken by said
authority, and Landlord shall be entitled to any and all income, rent,
award and any interest thereon whatsoever which may be paid or made in
connection with such public or quasi-public use or purpose. Tenant
hereby assigns Landlord its entire interest in any and all such awards
and shall have no claim against Landlord for the value of any unexpired
term of the Lease.
12.2 If only a portion of the Premises or the building
of which they form a part is taken, then this Lease shall continue in
full force and effect and the proceeds of the award shall be used by
Landlord to restore the remainder of the improvements on the Premises so
far as practicable to a complete unit of like quality and condition to
that which existed immediately prior to the taking, and the base rent
shall be reduced in proportion to the floor area of the Premises taken.
Landlord's restoration work shall not exceed the scope of work done by
Landlord in originally constructing Premises and the cost of such work
shall not exceed the amount of the award received by Landlord.
12.3 Nothing hereinbefore contained shall be deemed to
deny Tenant its right to claim from the condemning authority,
compensation or damages for its trade fixtures and personal property.
Article 13. Indemnity.
13.1 Tenant shall defend, indemnify and hold harmless
Landlord against and from any and all claims, actions, damages,
liability and expenses, including attorneys' fees arising from or out of
Tenant's use of the Premises or from the conduct of its business or from
any activity, work or other things done, permitted or suffered by Tenant
in or about the Premises. Tenant shall give prompt notice to Landlord in
case of casualty or accidents in the Premises.
13.2 Landlord shall not be liable for injury or damage
which may be sustained by the person, goods, wares, merchandise or
property of Tenant, its employees, invitees or customers or by any other
person in or about the Premises caused by or resulting from fire, steam,
electricity, gas, water or rain which may leak or flow from or into any
part of the Premises or from the breakage, leakage, condensation,
obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures of the same,
whether said damage or injury results from conditions arising upon the
demised Premises or from other sources. Landlord shall not be liable for
any damage arising from any act or neglect of any other Tenant of the
building.
Article 14. Signs.
Tenant shall have the right to install, maintain and
replace signs on the exterior of the leased Premises in accordance with
the Riverbend Commerce Park Covenants,
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Conditions and Restrictions filed
with Kootenai County, Idaho provided, to assure architectural integrity
to the building facade, the materials and design of the proposed sign
shall be subject to Landlord's prior written approval.
Article 15. Assignment and Subletting.
Tenant shall not voluntarily or involuntarily assign,
transfer, hypothecate or otherwise encumber this lease or Tenant's
interest therein and shall not sublet or permit the use by others of the
Premises or any part thereof without first obtaining in each instance
Landlord's written consent. If such consent is once given by Landlord,
such consent shall not operate as a waiver of the necessity for
obtaining Landlord's consent to any subsequent assignment, transfer,
hypothecation or sublease. Any such assignment or transfer without
Landlord's consent shall be void and shall, at Landlord's option,
constitute a material breach of this Lease.
Article 16. Right of Landlord to Perform.
All covenants to be performed by Tenant hereunder shall
be performed by Tenant at its sole cost and expense without any
abatement of any rent to be paid hereunder. If Tenant shall fail to pay
any sum, other than rent, required to be paid by it or shall fail to
perform any other act on its part to be performed, and such failure
shall continue beyond the applicable grace period set forth in Article
18, Landlord may (but shall not be obligated to) and without waiving or
releasing Tenant from any of its obligations, make any such payment or
perform any such other act on Tenant's part to be made or performed as
herein provided. All sums so paid by Landlord and all necessary
incidental costs together with an administrative fee of ten percent
(10%) and interest at the rate of twelve percent (12%) per annum from
the date of such payment by Landlord shall be payable by Tenant
forthwith on Landlord's demand therefor. In the event of nonpayment
thereof by Tenant, Landlord shall have in addition to all other rights
and remedies the same rights and remedies as in the case of default by
Tenant in payment of rent.
Article 17. Landlord Default and Remedies.
17.1 Tenant, prior to exercising any right or remedy it
may have against Landlord on account of default by Landlord of any
covenant to be performed by Landlord, shall give Landlord a thirty
(30)-day written notice of such default specifying the nature of such
default. Notwithstanding anything to the contrary elsewhere in this
Lease, Tenant agrees that if default specified in said notice is of such
nature that it can be cured by Landlord but cannot with reasonable
diligence be cured within said thirty (30)-day period then such default
shall be deemed cured if Landlord shall have commenced the curing
thereof within said thirty (30)-day period and shall continue thereafter
with all due diligence to continue to complete the curing of such
default.
17.2 If Landlord shall fail to cure a default of any
covenant of this Lease to be performed by it and as a consequence of
such uncured default Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied solely out of the proceeds of
sale received upon execution of such judgment against the right, title
and interest of Landlord in the building and its underlying realty and
out of the rents or other income of such property received by Landlord
or out of the consideration received by Landlord from the sale or other
disposition of all or any part of Landlord's right, title and interest
in said property but neither Landlord nor any partner nor joint venture
of Landlord shall be personally liable for any deficiency.
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Article 18. Tenant Default and Remedies.
18.1 In addition to the breaches/defaults specified
elsewhere in this Lease, the occurrence of any of the following shall
constitute a material breach and default of this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the
rent required be paid by Tenant hereunder where such failure continues
for ten (10) days after the same is due.
(b) A failure by Tenant to observe and perform any other
provision of this Lease to be observed or performed by Tenant where such
failure continues for thirty (30) days after written notice thereof from
Landlord provided that if the nature of such default is such that the
same cannot with due diligence be cured within said period Tenant shall
not be deemed to be in default if it shall within said period commence
such curing and thereafter diligently proceed to complete such cure.
(c) The abandonment or vacation of the Premises.
(d) Tenant or any guarantor of Tenant's obligations
hereunder shall generally not pay its debts as they become due or shall
admit in writing its inability to pay its debts or shall make a general
assignment for the benefit of creditors; or Tenant or any such guarantor
shall commence any case, proceeding or other action seeking to have an
order for relief on its behalf as debtor or to adjudicate it as bankrupt
of insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors
or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its
property; or Tenant or any such guarantor shall take any corporate
action to authorize any of the action set forth above in this paragraph.
(e) If in any case, proceeding or other action against
Tenant or any guarantor of Tenant's obligations hereunder shall be
commenced seeking to have an order for relief entered against it as
debtor or to adjudicate it as bankrupt or insolvent or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy
insolvency, reorganization or relief of debtors or seeking appointment
of receiver trustee custodian or other similar appointment of a receiver
trustee custodian or other similar official for it or for all or any
substantial part of its property and such ease, proceeding or other
action (i) results in the entry of any order for relief against it which
is not fully satisfied within seven (7) business days after entry
thereof or (ii) shall remain undismissed for a period of forty-five (45)
days, Landlord may at its election and without further notice or demand,
if permitted by law enter upon the Premises, and at its discretion
cancel this Lease and thereafter recover any past due rental and damages
arising from its loss of rental calculated in the amount equal to the
present value of the rental obligation herein stated less the present
value of the fair rental value of the Premises which it can obtain for
the remainder of the stated Premises.
18.2 In the event of any default as aforesaid by Tenant,
then in addition to any and all other remedies available at law or in
equity, Landlord shall have the right to immediately terminate this
Lease and all rights Tenant hereunder by giving written notice to Tenant
of its election to do so. If Landlord shall elect to terminate this
Lease then it may recover from Tenant:
(a) The worth at the date of judgment of the unpaid rent
payable hereunder which had been earned at the date of such termination;
plus
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(b) The worth at the date of judgment of the amount by
which the unpaid rent would have been earned after termination and until
the time of the award exceeds the amount of such rental loss which
Tenant proves could have been reasonably avoided; plus
(c) The worth at the date of judgment of the amount by
which the unpaid rent for the balance of the term after the time of the
award exceeds the amount of such rental loss which Tenant proves could
be reasonably avoided;
(d) Plus any other amount necessary to compensate
Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations hereunder or which, in the ordinary course of
affairs would likely result therefrom, and
(e) At Landlord's election such other amounts in
addition to or in lieu of the foregoing as may be permitted by
applicable Idaho law from time to time.
18.3 As used in paragraphs (a) and (b) above, the "worth
at the date of judgment" is computed by allowing interest at the rate of
twelve percent (12%) per annum. As used in paragraph (c) above, the
"worth at the date of judgment" is computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the
time of the award plus one percent (1%).
18.4 In the event of any default by Tenant, Landlord
shall also have the right, with or without terminating this Lease, to
re-enter the demised Premises and remove all property and persons
therefrom, and any such property may be removed and stored in a public
warehouse or elsewhere at the cost and for the account of Tenant.
18.5 If Landlord shall elect to re-enter as above
provided or shall take possession of said Premises pursuant to legal
proceedings or pursuant to any notice provided by law, and if Landlord
has not elected to terminate this Lease, Landlord may either recover all
rental as it becomes due or relet the demised Premises or any part or
parts thereof for such term or terms and upon such provisions as
Landlord, in its sole judgment may deem advisable and shall have the
right to make repairs to and alterations of the demised Premises.
18.6 If Landlord shall elect to relet the demised
Premises, then rentals received by Landlord therefrom shall be applied
as follows:
(a) To the payment of any indebtedness other than rent
due hereunder from Tenant; (b) To the payment of all
costs and expenses incurred by Landlord in connection
with such re-entry and reletting;
(c) To the payment of the cost of any
alterations of and repairs to the Premises;
(d) To the payment of rent due and unpaid
hereunder and the residue, if any, shall
be held by Landlord and applied in payment of future rent as the same
may become due and payable hereunder. In no event shall Tenant be
entitled to any excess rental received by Landlord over and above that
which Tenant is obligated to pay hereunder. Should that portion of such
rentals be received from such reletting during any month which is
applied to the payment of rent hereunder be less than the rent payable
hereunder during that month by Tenant, then Tenant shall pay such
9
<PAGE>
deficiency to Landlord forthwith upon demand and said deficiency shall
be calculated and paid monthly. Tenant shall pay Landlord upon demand,
all costs and expenses incurred by Landlord in connection with such
re-entry and reletting and in making any such alterations and repairs
which are not covered by the rentals received from such reletting.
18.7 No re-entry or taking possession of the Premises by
Landlord under this Article shall be construed as an election to
terminate this Lease unless a written notice of such intention is given
to Tenant or unless the termination thereof be adjudged by a court of
competent jurisdiction. Notwithstanding any reletting without
termination by Landlord because of Tenant's default, Landlord may at
anytime after such reletting elect to termination this Lease because of
such default.
18.8 Nothing contained in this Article shall constitute
a waiver of Landlord's right to recover damages by reason of Landlord's
effort to mitigate the damage caused by Tenant's default; nor shall
anything in this Article adversely affect Landlord's right to
indemnification against liability for injury or damage to persons or
property occurring prior to termination of this Lease as provided in
this Lease.
18.9 If Landlord shall retain an attorney for the
purpose of collecting any rental due from Tenant, Tenant shall pay the
fees of such attorney for his services regardless of the fact that no
legal proceeding or action may have been filed or commenced.
18.10 Any unpaid rent and any other sums due and payable
hereunder by Tenant shall bear interest at the rate of twelve percent
(12%) per annum from the due date until payment thereof.
18.11 The terms "rent" and "rental" as used herein shall
be deemed to be the base rent, all additional rents, rental adjustments
and any and all other sums however designated required to be paid by
Tenant hereunder.
18.12 Tenant acknowledges that late payment by Tenant to
Landlord of rent will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of such cost being extremely difficult and
impracticable to fix. Such costs include, without limitation, processing
and accounting charges and late charges that may be imposed on Landlord
by the terms of any encumbrance and notes secured by any encumbrance
covering the Premises. Therefore, if any installment of rent due from
Tenant is not received by Landlord when due, Tenant shall pay to
Landlord an additional sum of twelve percent (12%) of the overdue rent
as a late charge. The parties agree that this late charge represents a
fair and reasonable estimate of the costs that Landlord will incur by
reason of late payment by Tenant. Acceptance of any late charge shall
not constitute a waiver for Tenant's default with respect to the overdue
amount, nor prevent Landlord from exercising any of the other rights and
remedies available to Landlord.
18.13 The foregoing rights and remedies given Landlord
are, and shall be deemed to be, cumulative and the exercise of them
shall not be deemed to be an election excluding the exercise by Landlord
of any time of a different or inconsistent remedy, and shall be deemed
to be given to said Landlord in addition to any other and further rights
granted to said Landlord by the terms hereof or by law, and the failure
of Landlord at any time to exercise any right or remedy herein granted
or established by law shall not be deemed to operate as a waiver of its
right to exercise such right or remedy at any other future time.
10
<PAGE>
Article 19. Priority of Lease and Estoppel Certificate.
19.1 At Landlord's election, this Lease shall be either
superior to or subordinate to any and all trusts, deeds, mortgages or
other security instruments, ground leases or leaseback financing
arrangements now existing or which may hereafter be executed covering
the Premises and/or land underlying the same or any part or parts of
either thereof and for the full amount of any advances made or to be
made thereunder, together with interest thereon, and subject to all the
provisions thereof and to any renewals, extensions, modifications and/or
consolidations thereof, all without the necessity of having further
instruments executed by Tenant to effectuate the same. Tenant agrees to
execute, acknowledge and deliver upon request by Landlord any and all
documents or instruments which are or may be deemed necessary and proper
by Landlord to more fully and certainly assure the superiority or the
subordination of this Lease to any such trust deeds, mortgages or other
security instruments, ground leases or leasebacks.
19.2 Tenant shall, at any time, execute, acknowledge and
deliver to Landlord within ten (10) days after Landlord's request
therefore written statement certifying as follows: (a) That this Lease
is unmodified and in full force (or if there has been a modification
thereof, that the same is in full force as modified and stating the
nature thereof); (b)That to the best of its knowledge, there are no
uncured default on the part of Landlord (or if any such default exists,
the specific nature and extent thereof); and (c) The date to which any
rents and other charges have been paid in advance, if any. If Tenant
shall fail to execute and deliver any such statement to Landlord within
ten (10) days after Landlord's written request therefor, Landlord may,
as Tenant's attorney in fact, coupled with an interest, execute said
statement for and on behalf of Tenant and in Tenant's name.
Article 20. Liens.
20.1 Tenant shall not suffer or permit any lien to be
filed against the building or any part thereof or Tenant's leasehold
interest therein by reason of work, labor, services or materials
performed or supplied to Tenant or anyone holding the Premises or any
part thereof under Tenant. If any such lien is filed against the
building or Tenant's leasehold interest in it shall cause the same to be
discharged and recorded within thirty (30) days after the filing of the
same. Tenant shall indemnify and save Landlord harmless against
liability, loss, damage, costs, attorneys' fees and any other expense on
account of the claims of lien, of laborers or materialmen for work
performed or materials or supplies or equipment furnished for Tenant or
persons claiming under it.
20.2 If Tenant shall desire to contest any claim of
lien, it shall furnish Landlord adequate security in the amount of the
claim plus estimated costs and interest by a bond of a responsible
corporate surety in that amount conditioned on discharge of the lien.
20.3 If Tenant shall not have paid a charge for which a
lien claim or suit to foreclose the same has been filed and shall not
have given security therefor, Landlord may (but shall not be obligated
to) pay said claim and any costs, and the amount so paid by Landlord,
together with reasonable attorneys' fees incurred in connection
therewith, shall be immediately due and payable and owing from Tenant to
Landlord as additional rent, together with interest at the rate of
twelve percent (12%) per annum from the date of Landlord's payment
thereof.
Article 21. Access to Premises.
Tenant shall permit Landlord or its agents to enter the
leased Premises at all reasonable times and hours for the purpose of:
(a) Inspecting the Premises; (b) Making repairs Tenant may neglect and
refuse to make in accordance with the provisions of this Lease; (c) To
11
<PAGE>
gain access to common areas for the purpose of cleaning and repair; and
(d) To show the Premises to prospective lessees within six (6) months
prior to the expiration of the term of this Lease. Tenant shall, within
six months prior to the expiration of the term, permit usual notices and
signs "For Rent" and "For Sale" to be placed on the leased Premises and
remain thereon without hindrance and molestation.
Tenant shall not alter or change the locks to the
premises without first obtaining Landlord's written consent.
Article 22. Quiet Enjoyment.
Landlord agrees that Tenant, upon payment of rent,
additional rent and all other sums and charges required to be paid by
Tenant hereunder and the due and punctual performance of all of Tenant's
other covenants and obligations under this Lease, shall have quiet and
undisturbed possession of the Premises.
Article 23. ADA Requirements.
Throughout the term or any extended term of this Lease,
Tenant shall be responsible for compliance with Title III of the
Americans With Disabilities Act, 42 U.S.C. ss. 1200, et seq. (as
amended), as it applies to Tenant's use and occupancy of the Premises,
excluding any common areas. In the event compliance shall require
alterations to the Premises, they shall be accomplished pursuant to
Article 8 herein.
Article 24. Holding Over.
If, without the execution of a new lease or written
extension of this Lease, and with the consent of Landlord, Tenant shall
hold over after the expiration of the term of this Lease, Tenant shall
be deemed to be occupying the Premises as a Tenant from month-to-month,
which tenancy may be terminated as provided by law. During said tenancy,
the rent payable to Landlord shall be one hundred twenty percent (120%)
of the rent paid at the expiration of the term of this Lease and all
other terms, covenants and conditions set forth in this Lease so far as
the same are applicable shall govern the hold-over tenancy. If Tenant
shall fail to surrender the Premises upon termination of this Lease, in
addition to other liabilities to Landlord arising therefrom, Tenant
shall and does hereby agree to indemnify and hold Landlord harmless from
any loss or liability resulting from such failure, including, but not
limited to, claims made by any succeeding Tenant upon such failure.
Article 25. Notices.
Whenever in this Lease it shall be required or permitted
that notice, approval, advice, consent or demand be given or served by
either party upon the other, the same shall be given or served in
writing by certified mail, return receipt requested, addressed to the
addresses of the parties as specified herein. Notice shall be deemed
given as evidenced by the date on the return receipt which shall include
the date first delivery is attempted.
Article 26. Costs and Attorneys' Fees.
26.1 Should any action be brought under this Lease or
should any action be brought to recover any rent due hereunder, any
other sum payable by Tenant, or for breach of any provision of this
Lease, the substantially prevailing party shall be awarded attorneys'
fees against the losing party. Landlord and Tenant hereby agree that
jurisdiction and venue for any suit shall properly lie in Kootenai
County, Idaho.
26.2 In the event Landlord is required to employ an
attorney or seek legal advice for any reason because of the Tenant's
default on its obligations hereunder, whether or not any suit or action
is brought or filed, or because of the filing of a voluntary or
12
<PAGE>
involuntary bankruptcy petition under any bankruptcy chapter by or
against Tenant, all such legal fees and costs so incurred shall be
deemed an additional expense under this Lease, and shall be payable in
full the month following billing by Landlord's attorneys. Such legal
fees shall include, without limitation, such general advice as may be
given to Landlord concerning its remedies hereunder and, in the case of
a bankruptcy shall include, without limitation, the following: review of
any and all notices, schedules, or petitions concerning the case;
attendance at creditors meetings; negotiations with debtor or debtor's
counsel; preparation and filing of any and all notices, motions,
objections, or any other pleadings in connection with the cause on
behalf of Landlord, including, without limitation, motions to assume or
reject this Lease, to seek stay relief, to recover administrative
expenses; or review any Disclosure Statements and Plans of
Reorganization; and participation in any hearing regarding any matters
of any nature in which the Landlord believes its rights may be affected.
Article 27. Miscellaneous.
27.1 If any term, provision or part of this Agreement
shall be deemed invalid, void or voidable by a court of competent
jurisdiction, said term, provision or part shall be severed from this
Agreement and the remaining terms, provisions or parts shall remain in
full force and effect.
27.2 The laws of the State of Idaho shall govern the
validity, performance and enforcement of this Lease. Although the
provisions of this Lease were prepared and drawn by Landlord, this Lease
shall not be construed either for or against Landlord or Tenant, but
shall be given a fair and reasonable interpretation in accordance with
the words hereof.
27.3 Landlord's failure to perform any of its
obligations under this Lease shall be excused if due to causes beyond
the control and without the fault or negligence of Landlord, including,
but not restricted to, acts of God, acts of a public enemy, acts of any
government, fires, floods, epidemics and strikes.
27.4 No failure of Landlord to insist upon the strict
performance of any provision of this Lease shall be construed as
depriving Landlord of the right to insist upon the strict performance of
such provision or any other provision in the future. No waiver by
Landlord of any provision of this Lease shall be deemed to have been
made unless expressed in writing and signed by Landlord. No acceptance
of rent or of any other payment by Landlord from Tenant after any
default by Tenant shall constitute a waiver of any such default or any
other default. Consent by Landlord in any one instance shall not
dispense with the necessity of consent by Landlord in any other
instance.
27.5 Upon Landlord's written request, Tenant shall
promptly furnish to Landlord from time to time financial statements
reflecting Tenant's current financial condition.
27.6 Time is of the essence of this Lease.
27.7 Each Tenant and all general partners of any
partnership which is a Tenant shall be jointly and severally liable
under this Lease.
27.8 Except as otherwise provided in this Lease, each
and all of the provisions of this Lease shall be binding upon and inure
to the benefit of the parties hereto and their respective personal
representatives, successors and assigns subject at all times to
provisions and restrictions elsewhere in this Lease respecting
assignment, transfer, encumbering or subletting.
13
<PAGE>
27.9 At Landlord's request, a memorandum of lease
shall be recorded, but Tenant shall not record this Lease, nor any
memorandum thereof, without Landlord's prior written consent. Tenant
agrees to execute such memorandum at Landlord's request.
27.10 Tenant shall comply with the covenants, conditions
and restrictions of Riverbend Commerce Park on file with Kootenai
County, Idaho.
27.11 The entire agreement between the parties hereto as
set forth in this Lease, and any agreement hereafter made shall be
ineffective to change, modify, alter or discharge it, in whole or in
part, unless such agreement is in writing and signed by both parties.
There are no oral agreements between the parties affecting this Lease,
and this Lease supersedes and cancels all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between
the parties, and none of the same shall be available to interpret or
construe this Lease. All negotiations and oral agreements acceptable to
both parties have been merged into and are included in this Lease.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first above written.
LANDLORD: TENANT:
JACKLIN LAND COMPANY LIFESTREAM DIAGNOSTICS, INC.
LIMITED PARTNERSHIP
By /s/ Jacklin By /s/ Robert F. Boyle
---------------------- ----------------------
Title: General Partner Title: Sec/Treasurer
Notice Address: Notice Address:
Kaniksu Building, Suite 1 515 Pine St., Suite 200
510 West Clearwater Loop Sandpoint, ID. 83864
Post Falls, Idaho 83854
June 25, 1998
VIA FACSIMILE: Criss Sakala
RE: Employment Offer
Dear Criss;
Lifestream Technologies, Inc. is submitting this formal offer of employment
for your consideration and acceptance as Chief Financial Officer. This
position is to be based in Ft. Collins, Colorado.
LIFESTREAM TECHNOLOGIES, INC.
OFFER OF EMPLOYMENT
Salary
Your salary will be $80,000 per year
Insurance
While you are an employee, the Company will pay to you, each month, an amount
equal to your present medical and dental insurance premium as computed through
Cobra, as long as you are not covered by a spouse's or any other insurance
program, until such time the Company makes an insurance program generally
available.
Matching Stock Purchase Program
As a requirement for employment you will purchase at least One Unit (10,000
shares) of the Company's restricted (legend stock) common stock at $1.25 per
share under the Company's stock purchase agreement. You may purchase additional
shares if you wish; however this is a one-time offer. In addition the Company
will issue one share of the Company's restricted common stock at a cost of $.001
per share for every share purchased for $1.25 per share. The Company retains the
right to purchase back all shares (under the schedule below) including all
matching shares at a price equal to the original purchase price if you resign or
your employment terminates for any reason. In the event of the sale of the
Company, any purchase back of shares will be at fair market value.
Employment Period Company "Buy Back Option"
0-12 months 100%
12-24 months 80%
24-36 months 60%
36-48 months 40%
48-60 months 20%
over 60 months 0%
<PAGE>
Page 2
Stock Options
The Company will issue an option for 20,000 shares of the Company's restricted
common stock at $1.25 per share from the Company's Stock Option Plan. Options
will vest as set forth below. Details and other provisions are set forth in the
Company's stock option plan and the related stock option agreement. These
options will be fully vested in the event of the sale of the Company.
Employment Period Option Vesting
0-12 months 0%
12-24 months 25%
24-36 months 50%
36-48 months 75%
48-60 months 100%
Stock Option Plan
In the future, you will be eligible to participate further in the Stock Option
Plan based on the Company's and your personal performance. Your performance
reviews will be conducted on an annual basis and upon a recommendation from the
CEO and approval by the Board, additional option grants may be made.
Confidentiality
All employees will be required to execute the Company's standard confidentiality
and non-disclosure agreements as well as other Company employment forms and
agreements.
Acceptance
It is the Company's interest to offer our corporate objectives regarding the Ft.
Collins initiative as soon as possible. This is open until June 26, 1998, and is
predicated on the acceptance by all members of the proposed management team and
the Board of Directors. Notification to present employer should not be given
until the Company has received an acceptance by everyone in the management team
and the Board of Directors. The Company will notify you as to the acceptance of
all parties (we estimate Company's decision of acceptance within approximately
48 hours after receipt of this executed acceptance letter).
Starting Date
The starting date of employment will be determined by the mutual agreement of
both parties.
<PAGE>
Page 3
Thank you for your immediate consideration of this offer.
Sincerely,
/s/ Christopher Maus
- ------------------------------
Christopher Maus, President
Lifestream Technologies, Inc.
ACCEPTED BY
/s/ Criss Sakala 6/25/98
- ------------------------------ --------------------
Criss Sakala Date
July 15, 1998
- ------------------------------
Estimated Starting Date
30,000 Shares
- ------------------------------
Number Shares to Purchase
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
unaudited financial statement of the Company for the six month period ended June
30, 1998 and should be read in conjunction with, and is qualified in its
entirety by, the audited financial statements for the year ended December 31,
1997.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 1,601,277
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 30,802
<CURRENT-ASSETS> 1,655,763
<PP&E> 510,991
<DEPRECIATION> 0
<TOTAL-ASSETS> 3,853,004
<CURRENT-LIABILITIES> 315,148
<BONDS> 0
0
0
<COMMON> 10,773
<OTHER-SE> 3,354,992
<TOTAL-LIABILITY-AND-EQUITY> 3,853,004
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 1,109,986
<OTHER-EXPENSES> 16,274
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,126,260)
<EPS-PRIMARY> (0.13)
<EPS-DILUTED> 0
</TABLE>
