February 8, 2005
Christopher Maus
President and Chief Executive Officer
Lifestream Technologies, Inc.
510 Clearwater Loop
Suite 101
Post Falls, ID 83854
Re: Lifestream Technologies, Inc.
Registration Statement on Form SB-2
File No. 333-121991
Filed on January 12, 2005
Dear Mr. Maus:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Form SB-2
Fee Table
1. We note the paragraph following the footnotes to the fee table
and
the debenture conversion event described in the fifth bullet point
on
page 23. Please note that you may only register an indeterminate
number of additional securities that may become issuable pursuant
to
stock splits, stock dividends or similar transactions contemplated
by
Rule 416 of the Securities Act; Rule 416 does not permit you to
register an indeterminate number of additional shares that may be
issued upon conversion or exercise in the event that the company
subsequently issues securities at a price lower than the
applicable
conversion price of the debentures. Please supplementally confirm
our understanding that in the event such an adjustment requires
you
to issue more shares than you are registering on this registration
statement, you will file a new registration statement to register
those additional shares. Also, please revise this paragraph below
the fee table to track the language of Rule 416.
Risk Factors - Page 3
2. Please revise the third, fourth and last sentences of the
introductory paragraph and the first sentence of the last
paragraph
of this section to remove any implication that you have not
disclosed
any material risk factors.
Our continued sale of equity securities - Page 4
3. Disclose the number of shares of common stock that underlie all
outstanding obligations.
We remain dependent upon Roche Diagnostics GmbH - Page 5
4. Please quantify the amount of royalties Roche believes it is
entitled to receive in relation to the optics technology and the
amount of royalties you have proposed to pay Roche.
Government regulation may delay or prevent - Page 6
5. We note your disclosure that compliance with federal and state
regulations is subject to "one`s interpretation." With a view
toward
revised disclosure, please provide us your basis for the
statement.
Forward-Looking Statements - Page 9
6. Please remove the reference to statutes that are not applicable
to
penny-stock issuers.
Business
Cholesterol Monitor - Page 10
7. We note your reference to the NCEP. Please revise to clarify
whether this is a government agency and the significance of
meeting
the guidelines set forth by the NCEP.
Consumer Marketplace - Page 10
8. Please provide supplemental support for the information
attributed
to the American Heart Association and the NCEP, and tell us
whether
the data comes from publicly available reports. Also tell us
whether
you commissioned the reports.
9. Clarify whether your product provides sufficient data to
satisfy
the recommended testing cited in this section.
Sales and Marketing Efforts - Page 11
10. We note in your Government Regulatory Environment disclosure
that
you are subject to foreign regulatory agencies. Please disclose
any
sales and marketing conducted abroad.
11. Please update the disclosure relating to your outstanding
obligation to advertise on radio.
Sales Concentrations with Major Customers - Page 11
12. Please name the customers that accounted for more than 10% of
your sales during fiscal years 2004 and 2005. Also discuss the
events
leading to the lost customer mentioned on page F-34.
Principal Vendors and Related Assembly - Page 13
13. Please tell us where you have filed the licensing and
manufacturing agreement with Roche as an exhibit. If you have not
filed it, please file it or provide your basis for not doing so.
14. We note you were precluded from obtaining test strips from
anyone
other than Roche through December 2004. Please update this
disclosure.
Intellectual Property Rights - Page 14
15. Please disclose the duration of material patents. Also
clarify
the extent of your products covered by the patents; for example,
it
is unclear why you disclose that Roche could become your
competitor
if you own the test strip patents. Disclose the patent and
portion
of your product line that is affected by the uncertain litigation
mentioned on page 20.
16. Please explain the meaning of the term PCT.
Governmental Regulatory Environment - Page 15
17. Disclose your experience with obtaining third-party payments
for
your products, including reimbursement rates and experience with
denied reimbursement.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations - Page 18
Consolidated Results of Operations - First Fiscal 2005 Quarter -
Page
19
18. Please explain more completely the reasons for material
changes
in line items throughout the MD&A discussion. Also, if more than
one
factor contributed to the change, quantify the extent to which the
various factors contributed to the change. We note, for example,
the
increases in net sales and non-operating income and expenses, each
in
the 2005 quarter, and the decrease in salaries expense, increased
costs for the board of directors included in the general and
administrative expenses, each in fiscal year 2004.
19. Refer to your discussion of depreciation and amortization. We
note that you decreased the remaining estimated useful life on
your
patent from six to three years due to the uncertainty of the
litigation surrounding this patent. Using the criteria outlined
in
paragraph 11 of SFAS 142 explain why this change is appropriate.
In
light of the ongoing litigation surrounding this patent, tell us
why
the carrying amount is not impaired.
Consolidated Results of Operations - Fiscal 2004 - Page 20
20. We note that your sales decreased in part due to the return of
test strips with short-term expiration dates and that you
determined
other such strips were obsolete. Please quantify both the returns
and the amount of inventory you declared obsolete. Also, disclose
here or in the Business section whether this is an ongoing problem
with your inventory of test strips.
21. We note that the decrease in your revenues was primarily
attributable to revenue recognized on initial orders from two
customers in fiscal 2003. Please revise to explain why these
customers decided not to renew their contracts in 2004 and how
this
will impact revenues going forward.
22. Revise your discussion of gross profit/loss to quantify, to
the
extent practicable, the impact of any significant factors on gross
margin. For example, we note your references to an increased
sales
return allowance, obsolete inventory, increased royalty expense
and
no cost inventory provided to a major retailer but you did not
tell
investors how each factor contributed to the significant decrease
in
2004.
23. We note the significant reduction in your inventory allowance;
supplementally tell us how you disposed of these items. If by
sale
please quantify the impact on gross margin. Also please confirm
that
your inventory valuation policy is in compliance with the guidance
set forth in SAB Topic 5-BB.
Consolidated Liquidity and Capital Resources - Page 22
24. Please describe your expected sources of capital and disclose
whether you have sufficient cash to carry out operations on both a
short-term and long-term basis.
25. We note your disclosure relating to the various financing
transactions since 2001. Please revise to disclose whether the
same
source provided the financing in more than one transaction or
whether
the same person holds debt or equity securities from more than one
transaction.
26. With respect to the February 2004 issuances of securities, we
note in the second sentence your reference to "conversions" that
appear to have been effected. Please describe those conversions.
Also, in the second paragraph of this section, please quantify the
number of shares into which the convertible debentures could be
converted and the debenture principal outstanding on February 19,
2004.
27. You should cite reasons for the significant increase in your
working capital deficiency. You tell investors that your working
capital deficiency increased to $1,739,136 from $940,698 during
the
first quarter but you provide no corresponding analysis. Please
revise to expand your current disclosure.
Contractual Obligations - Page 25
28. We note your references to escrowed funds like here and on
page
F-15. Please more fully describe the reasons for and terms of the
escrow.
Legal Contingencies - Page 28
29. We note in your discussion of results of operations that you
are
currently a party to a lawsuit relating to patent infringement.
Please provide the disclosure required by Item 103 of Regulation
S-B.
30. We also note per your press release dated November 22, 2004
that
you have reached a settlement of a lawsuit with Polymer Technology
Systems. Please describe the terms of the settlement and file the
agreement as an exhibit.
Executive Compensation - Page 30
31. We note your disclosure that Mr. Maus and Mr. Siemens
currently
receive a salary of $150,000 and $125,000, respectively. Please
revise to reconcile this disclosure with the disclosure in the
table
which shows that each of these individuals has received a
significantly higher salary than the amounts noted above.
Certain Relationships and Related Transactions - Page 33
32. Please tell us which exhibits govern each of the transactions
mentioned in this section. Also, please revise your exhibit index
so
that the nature of each exhibit is more clear.
33. Please disclose, following the table in this section, the
number
of shares granted to each director effective April 28, 2004 in
lieu
of payment for board services previously provided.
Security Ownership of Certain Beneficial Owners - Page 35
34. The beneficial ownership for RAB Special Situations should not
differ between this table and the Selling Security Holders table.
35. Please revise footnote 3 to the table to clarify, if true,
that
beneficial ownership includes shares of common stock subject to
options or warrants that are currently exercisable or will become
exercisable within 60 days, instead of after 60 days.
Description of Securities - Page 37
36. Please disclose in an appropriate place the information
required
by Item 510 of Regulation S-B.
Selling Security Holders - Page 38
37. Tell us whether any of the selling stockholders are broker-
dealers or affiliates of a broker-dealer. Any selling stockholder
who is a broker-dealer must be identified in the prospectus as an
underwriter. In addition, each selling stockholders who is an
affiliate of a broker-dealer must be identified in the prospectus
as
an underwriter unless that selling stockholder is able to make the
following representations in the prospectus:
* The selling stockholder purchased the shares being registered
for
resale in the ordinary course of business, and
* At the time of the purchase, the selling stockholder had no
agreements or understandings, directly or indirectly, with any
person
to distribute the securities.
Please revise accordingly.
38. Please tell us the price you used in arriving at the number of
shares included in this registration statement in connection with
the
$500,000 promissory note issued to RAB Special Situations and
provide
us your analysis supporting such election.
39. Please identify the individuals who beneficially own the
shares
held by RAB Special Situations and Equitylink.
40. Please tell us your basis for not filing as exhibits the
agreements with Mr. Czirr, Equitylink and Mr. Schmitt. Also,
please
confirm whether the shares issued to the latter two persons were
issued in January 2004 or 2005.
Plan of Distribution - Page 40
41. We note your disclosure that transferees of your selling
stockholders will become the selling stockholders for purposes of
this prospectus. Please revise to clarify that, in the event a
transfer as described takes place, you will file a post-effective
amendment to the registration statement if the change is material.
42. We note your disclosure that transferees of your selling
stockholders will become the selling stockholders for purposes of
this prospectus. Please revise to disclose that in the event a
transfer as described takes place you will file a Rule 424
prospectus
to disclose the change; however, if the change is material, you
will
file a post-effective amendment to the registration statement.
Financial Statements
Note 3. Summary of Significant Accounting Policies - Page F-10
Revenue Recognition and Accounts Receivable - Page F-11
43. Please revise your current disclose to specifically address
the
revenue recognition criteria specified in SAB 104. You should
expand
to discuss how each of the criteria are applied to your sales
transactions.
44. We note that "in certain instances shipments made to a retail
customer may not transfer risk of ownership at the time of
shipment,
in which case, the revenue is not recognized until the time risks
of
ownership transfer." In a supplemental response tell us the
significant terms and conditions of such transactions and how you
account for these transactions. Cite the authoritative literature
upon which you relied.
45. We note on page 20 that you state that a portion of the
reduction
in revenues is due to increased sales returns for test strips sold
with a short-term expiration date. In a supplemental response
tell
us your revenue recognition policy is it relates to the sale of
test
strips. If you are unable to estimate sales returns then you
should
defer revenue recognition until the expiration date. For
reference
see paragraph 8 of SFAS 48. Please revise your disclosure to
discuss
your revenue recognition policy as it relates to the sales of test
strips.
46. We also note on page 21 that you offer pricing discounts and
incentives to certain retailers. In a supplemental response tell
us
the terms of these discounts and incentives and how you are
recognizing the related revenue. Please cite the specific
accounting
literature that you are relying upon in your response.
Sales Returns Allowance - Page F-12
47. Please tell us your basis for classifying these amounts as an
accrued liability as shown in Note 9 on page F-15. Supplementally,
provide us with a rollforward of this allowance account on a gross
basis showing increases, decreases, and adjustments separately,
for
all periods presented including interim periods.
Note 9. Accrued Liabilities - Page F-15
48. Tell us what portion of your accrued sales return balance is
for
warranties for all periods presented. If significant please
revise
to provide the warranty disclosures required by paragraph 14(b) of
FIN 45.
Note 10. Option and Purchase Agreement - Page F-15
49. In a supplemental response tell us the purpose of the
transaction
related to the potential purchase of an unused patent. Why did
this
unrelated third party make a $250,000 payment and not complete the
acquisition by the expiration date? In your response tell us the
value recorded for the unutilized technology patent.
Note 13. Convertible Debt - Page F-16
50. For each convertible debt issuance please revise to disclose
the
following:
* Disclose the amount of the debt discount for each of the
issuances.
* Disclose the amount of expense related to amortizing the debt
discount for each issuance and where that expense is recorded on
the
income statement.
* Disclose the amount of warrants issued in connection with each
issuance and how each issuance was recorded and the amount of
expense
recorded.
* Disclose the total expense related to the amortization of the
debt
discount for each year and the amount of expense expected for
future
years.
September 2003 Issuances - Page F-17
51. In a supplemental response and in detail explain how you
recorded
and accounted for the debt modification. Provide details of the
calculation of the additional $1,488,889 charge related to the
beneficial conversion feature.
52. We noted that for fiscal 2004 debt issuances you determined
that
the fair value of the detachable warrants and beneficial
conversion
feature equaled the aggregate principal face amount of the debt
proceeds received. Supplementally explain how you valued the
warrants and beneficial conversion feature.
February 2004 Issuances - Page F-17
53. We note that the $500,000 original issue discount is being
amortized to deferred financing costs over the term of the
debentures. Tell us how this amount was determined and recorded.
Note 14. Stockholders` Deficit - Page F-19
Common shares issued upon Conversion of Convertible Debt - Page F-
19
54. We note that you indicate that you converted approximately $6
million in notes, including interest, into 76,833,789 shares of
common stock. Please revise to provide more details of this
transaction as we do not see $6 million in debt ever recorded on
your
financial statements.
Note 15. Stock Options and Warrants - Page F-20
55. You indicate in your disclosure that you issue stock options
to
vendors and others for services. Please revise to disclose the
amount of options issued to vendors and others and how much
expense
was recorded related to these options issuances.
Note 17. Commitment and Contingencies - Page F-21
Patent Litigation
56. In a supplemental response tell us the accounting literature
that
allows you to record an impairment of an intangible as
amortization
expense.
September 30, 2004 Financial Statements
Note 8. Stockholders` Deficit - Page F-32
Common Shares Issued for Services - Page F-32
57. Please tell us and disclose how you accounted for and measured
the common stock issued for services. Cite the accounting
literature
upon which you relied.
Part II
Recent Sales of Unregistered Securities
58. Please revise to identify the specific exemption from Section
5
of the Securities Act relied upon in connection with each
transaction
and the specific facts that support the availability of that
exemption with respect to each such transaction. Also, revise to
identify the person or class of persons to whom you sold the
securities.
* * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Eric Atallah at (202) 824-5266, or Dan
Gordon,
Branch Chief, at (202) 942-2813 if you have questions regarding
comments on the financial statements and related matters. Please
contact Dan Duchovny at (202) 942-2962 or me at (202) 824-5697
with
any other questions.
Sincerely,
Russell Mancuso
Branch Chief
cc (via fax): Steven Weinberger, Esq. (561) 362-9612
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Christopher Maus
Lifestream Technologies, Inc.
February 8, 2005
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