OVERVIEW
Imaging Diagnostic Systems, Inc. ("IDSI") is a development stage medical
technology company. Since its inception in December 1993, we have been engaged
in the development and testing of a Computed Tomography Laser Breast Imaging
System for detecting breast cancer (CT Laser Mammography or, "CTLM(R)"). We are
currently in the process of commercializing the CTLM(R) in certain international
markets.
Although the CTLM(R) system is a CT-like scanner, its energy source for imaging
is a laser beam and not ionizing radiation such as is found in conventional
x-ray mammography or CT scanners. The advantage of imaging without ionizing
radiation may be significant in our markets. X-ray mammography is a
well-established method of imaging the structures within the breast. Ultrasound
is often used as an adjunct to mammography to help differentiate tumors and
cysts. The CTLM(R) is being marketed as an adjunct to mammography and will not
compete directly with X-ray mammography. CTLM(R) is, however, an emerging new
modality offering the potential of molecular functional imaging, which can
visualize the process of angiogenesis which may be used to distinguish between
benign and malignant tissue.
We believe that the adjunctive use of CT laser breast imaging will improve early
diagnosis, reduce diagnostic uncertainty, and decrease the number of biopsies
performed on benign lesions. The CTLM technology is unique and patented. IDSI
intends to develop their technologies into a family of related products. We
believe these technologies and clinical benefits constitute substantial markets
for our products well into the future.
We have a limited history of operations. Since our inception in December 1993,
we have been engaged principally in the development of the CTLM(R). We currently
have a limited source of operating revenue and have incurred substantial net
operating losses since our inception. On June 30, 2004, we had an accumulated
deficit of $77,247,281 after discounts and dividends on Preferred Stock. Such
losses have resulted principally from costs associated with our operations. We
expect operating losses will continue for at least the next 12 months as
substantial costs and expenses continue due principally to the commercialization
of the CTLM(R), sales and marketing in the international market, activities
related to our regulatory processes, and advanced product development
activities. Our ability to achieve profitability will depend in large part on
obtaining regulatory approvals for our proposed products and to develop the
capacity to manufacture and market our approved products either by ourselves or
in collaboration with others. There can be no assurance as to if or when we will
ever receive US regulatory approvals for the commercialization of the CTLM(R),
or achieve profitability. See Item 7. "Management's Discussion and Analysis of
Financial Condition and Results of Operations".
BREAST CANCER
According to the American Cancer Society ("ACS"), approximately one in eight
women in the United States will develop breast cancer during her lifetime.
Nationwide, it was estimated that in 2003 211,300 new cases of invasive breast
cancer would occur among women in the United States, and approximately 40,200
women would die from this disease. Excluding skin cancers, the breast is the
most frequent site of cancer among American women, accounting for 32% of
incident cancers and 17% of cancer deaths. It is the second leading cause of
cancer death for American women following lung cancer, which is the leading
cause of cancer death among women. The annual cost of breast cancer
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management in the United States alone is approximately $25 billion.
There is widespread agreement that screening for breast cancer, when combined
with appropriate follow-up, will reduce mortality from the disease. According to
the National Cancer Institute (NCI), the five-year survival rate decreases from
96% to 78% after the cancer has spread to the lymph nodes, and to 18% after it
has spread to other organs such as the lung, liver or brain. A major problem
with current detection methods is that studies have shown that mammography does
not detect, 15%-20% of breast cancers detected by physical exam alone.
Breast cancer screening is generally recommended as a routine part of preventive
healthcare for women over the age of 20 (approximately 90 million in the United
States). For these women, the American Cancer Society (ACS) has published
guidelines for breast cancer screening including: (i) monthly breast
self-examinations for all women over the age of 20; (ii) a baseline mammogram
for women by the age of 40; (iii) a mammogram every one to two years for women
between the ages of 40 and 49; and (iv) an annual mammogram for women age 50 or
older. As a result of family medical histories and other factors, certain women
are at "high risk" of developing breast cancer during their lifetimes. For these
women, physicians often recommend close monitoring, particularly if an
abnormality posing increased risk factors has been detected.
Each year, approximately eight million women in the United States require
diagnostic testing for breast cancer due to a physical symptom, such as a
palpable lesion, pain or nipple discharge, discovered through self or physical
examination (approximately seven million) or a non-palpable lesion detected by
screening x-ray mammography (approximately one million). Once a physician has
identified a suspicious lesion in a woman's breast, the physician may recommend
further diagnostic procedures, including a diagnostic x-ray mammography, an
ultrasound study, a magnetic resonance imaging procedure, or a minimally
invasive procedure such as fine needle aspiration or large core needle biopsy.
In each case, the potential benefits of additional diagnostic testing must be
balanced against the costs, risks and discomfort to the patient associated with
undergoing the additional procedures
Due in part to the limitations in the ability of the currently available
modalities to identify malignant lesions, a large number of patients with
suspicious lesions proceed to surgical biopsy, an invasive and expensive
procedure. Approximately 1.3 million surgical biopsies are performed each year
in the United States, of which approximately 80% result in the surgical removal
of benign breast tissue. The average cost of a surgical biopsy ranges from
approximately $1,000 to $5,000 per procedure. Thus, biopsies of benign breast
tissue cost the U.S. health care system approximately $2.45 billion annually. In
addition, biopsies result in pain, scarring, and anxiety to patients. Patients
who are referred to biopsy usually are required to schedule the procedure in
advance and generally must wait up to 48 hours for their biopsy results.
SCREENING AND DIAGNOSTIC MODALITIES
Mammography
Mammography is an x-ray imaging modality commonly used for both routine breast
cancer screening and as a diagnostic tool. A mammogram produces either films or
electronic images of the internal structure of the breast and surrounding
tissues. In a screening mammogram, radiologists seek to detect suspicious
lesions, while in a diagnostic mammogram radiologist seek to characterize
suspicious lesions. Mammograms require subjective interpretation by a trained
radiologist.
A certified technologist performs the x-ray procedure under strict guidance from
the Congressional Mammography Quality Standards Act (MQSA). MQSA was enacted to
improve x-ray breast cancer detection studies by tightly regulating machine
specifications, quality control procedures, technologist training and
certification, and other variables. Still, mammography is viewed as an
`imperfect' breast cancer detection tool and is often supplemented with
follow-up studies including more x-rays at later dates, closer physical
examination of the patient, adjunctive ultrasound exams, and, when available,
breast MRI or Scintimammography, and biopsy.
Because x-ray mammography exposes the patient to radiation, the American Cancer
Society recommends that mammograms be limited to once per year. In addition,
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x-ray mammography is considered to be less effective for women under the age of
50 who have dense breast tissue which may compromise the breast x-ray study.
Various mechanical means have been implemented to squeeze or compress the breast
to pull tissue away from the chest wall and flatten the tissue so that x-rays
may penetrate the tissue more uniformly. These techniques introduce pain and
discomfort to many mammogram patients. Most mammography exams include 2 views of
each breast which equates to 4 compressions per patient.
The cost of a diagnostic mammogram is approximately $55 to $200 per procedure
(an average of $113) and requires the use of x-ray equipment ranging in cost
from $75,000 to $225,000 and perhaps ultrasound equipment ranging from $60,000
to $200,000.
Digital Mammography
Digital mammography, also referred to as "full-field digital" mammography, is
the latest form of breast x-ray examination. These systems eliminate the use of
x-ray film and record images directly on electronic panels. The digital images
can then be manipulated and examined on an electronic viewing station. However,
the limitations of conventional mammography still exist in digital mammography.
Digital mammography units sell for an average price of $430,000 and procedures
range from $250 to $500.
Magnetic Resonance Imaging
Magnetic resonance imaging ("MRI") produces images using a magnetic field and
radiofrequency (RF) gradients under computer control to produce proton density
images. When applied to breast exams, MRI produces images with 10 to 100 times
more contrast resolution than an x-ray. MRI has proven effective in imaging
breasts with prosthetic implants, detecting recurrent cancer, evaluating the
response to chemotherapy and serving as an additional imaging option when
mammography or ultrasound fails to provide sufficient imaging information.
MRI offers the advantage over x-ray that it can visualize fine-details in breast
tissue but also detect blood flow and angiogenesis associated with malignancies.
The disadvantages are that MRI systems are not widely available in the global
market and the costs of using conventional MRI scanners for breast exams are
sometimes prohibitive. MRI systems sell for approximately $1,200,000 and
procedures range from $1,000 to $2,000.
Ultrasound
Ultrasound systems can image breast tissue by `sonar' techniques. Sound
transducers are placed directly on breast tissue coupled with an acoustic gel
substance. Trained sonographers locate suspicious areas by moving the transducer
and observing the sonar image on an electronic viewing station. In some
countries physicians perform the study.
Ultrasound images are localized to specific areas of suspicion usually detected
by a previous mammogram. If mammographic results suggest a lesion, ultrasound
may differentiate a solid from a cystic mass. The cost for a breast ultrasound
is approximately $125 to $500 per procedure (an average of $235) and requires
the use of capital equipment ranging in cost from approximately $60,000 to
$200,000.
CTLM(R)
Although the CTLM(R) system is a CT-like scanner, its energy source for imaging
is a laser diode beam and not ionizing radiation such as is found in
conventional x-ray mammography or CT scanners. The advantage of imaging without
ionizing radiation may be significant in our markets. X-ray mammography is a
well-established method of imaging the structures within the breast. Ultrasound
is often used as an adjunct to help differentiate tumors and cysts. The CTLM(R)
is being marketed as an adjunct to mammography and will not compete directly
with X-ray mammography. CTLM(R) is, however, an emerging new modality offering
the potential of molecular functional imaging, which can visualize the process
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of angiogenesis which may be used to distinguish between benign and malignant
tissue.
We believe that the adjunctive use of CT laser breast imaging will improve early
diagnosis, reduce diagnostic uncertainty, and decrease the number of biopsies
performed on benign lesions.
A breast exam utilizing the CTLM(R) is non-invasive and can be performed by a
medical technician. A patient lies face down on the scanning table with one
breast hanging into a specially designed scanning chamber. Once the entire
breast is scanned the other breast may be positioned in the chamber for
scanning. Both breasts can be scanned in approximately 24 minutes. The CTLM(R)
is a sophisticated electro-mechanical scanner under microprocessor and computer
control. Results are available immediately in digital format for comparison to
mammography results, consultation, transmission to multi-modality reading
stations, or archiving.
Images and study results present as multiple-slice data sets which can be viewed
slice-by-slice or as a 3D volume with image manipulation tools. Images are
usually viewed in gray and green color shades, since color displays are common
with other molecular imaging modalities such as nuclear medicine, PET, fMRI, and
in radiation therapy imaging.
FLUORESCENCE IMAGING
Fluorescence and molecular imaging techniques are of growing importance to the
drug development industry and for disease detection. Certain molecules exhibit
the phenomenon of emitting light after being illuminated by light of an
appropriate wavelength, e.g., from a laser. The light that is emitted is
referred to as "fluorescent" light. The compounds that produce fluorescence are
commonly referred to as fluorescent dyes. A number of pharmaceutical companies
are developing fluorescent compounds for possible use in breast cancer
detection.
The CTLM(R) system laser diodes stimulate fluorescent light emissions when used
in conjunction with these compounds. When an appropriate fluorescent compound
has been introduced into the blood, areas with an abundance of blood vessels,
i.e., the angiogenesis associated with a tumor, will retain a higher
concentration of the fluorescent compound. As the CTLM(R) scanner illuminates
these areas, fluorescent radiation is emitted and detected by the system's
detectors. Reconstructed CTLM(R) images then locate and quantify the fluorescent
area within the perimeter of the scanned breast.
Several CTLM(R)'s were retrofitted with laser diodes tuned to specific
wavelengths of light which matched the compounds. Optical filters were added to
limit the spectral response to required wavelengths. Experiments were conducted
by placing fluorescent dyes inside a breast equivalent phantom and scanning it
with CTLM(R). The ability to excite the dye, detect the location of the
fluorescence within the simulated breast, and create an image has not, to our
knowledge, been accomplished before. On September 14, 1999, a patent was issued
to IDSI titled "Laser Imaging Apparatus Using Biomedical Markers that Bind to
Cancer Cells" as Patent No 5,952,664.
The FDA has approved the use of radioactive compounds to identify breast cancer
locations. The use of non-radioactive fluorescent dyes for breast imaging, we
believe, has the potential to play a significant role in breast cancer
detection. We intend to work with contrast agent manufacturers to explore and
develop this emerging technique. The FDA must first approve the use of
non-radioactive florescent dyes before they can be used commercially in the
United States. Any such approval could take several years.
In March 2002, we signed an agreement with Schering AG to evaluate the
advantages of new fluorescence dyes for the potential use of detecting breast
cancer. Our CTLM(R) systems are being used in conjunction with Schering AG's
dyes during their clinical trials. The collaboration is assisting in determining
the potential benefits of using both technologies adjunctively to enhance
capabilities to detect breast cancer. We have installed two CTLM(R) systems in
Germany for Schering AG's clinical trials: one at Charite's Robert-Rossle Clinic
in Berlin and the other at the University of Muenster. In August 2003, Schering
AG announced that their innovative method for breast cancer detection showed
positive results in a clinical Phase 1 study. In September 2004, we installed a
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third CTLM(R) system for Schering AG in Charite Hospital in Berlin, Germany as
part of their Phase 1 clinical studies of fluorescent imaging compounds.
LASER IMAGER FOR LAB ANIMALS
In November 2003, we announced the signing of a collaborative agreement with the
Rumbaugh-Goodwin Institute for Cancer Research, Inc. for the development of
optical imaging products for the laboratory market. With this agreement, IDSI
plans to address a new market, targeting pharmaceutical developers and
researchers who monitor cancer growth and who use optical imaging in their
clinical research. The first model of the Laser Imager for Lab Animals
"LILA(TM)" product line is a miniature optical helical CT scanner in a
third-generation configuration for imaging green fluorescent protein, derived
from the DNA of jellyfish. The scanner is a work-in-progress and we expect to
have a working prototype in the first half of 2005. It is believed the LILA(TM)
will provide a useful tool for scientists to monitor cancer growth, metastasis
and the effect of new therapies in the treatment of cancer.
GOVERNMENT REGULATION
United States Regulation
The United States Food and Drug Administration (the "FDA") has regulatory
authority over the testing, manufacturing, and sale of the CTLM(R) in the United
States. Because the CTLM(R) is a medical device, it is subject to the relevant
provisions of the Federal Food, Drug and Cosmetic Act (FD&C Act") and its
implementing regulations. Pursuant to the FD&C Act, the FDA regulates, among
other things, the manufacturing, labeling, distribution, and promotion of the
CTLM(R) in the United States. The FD&C Act requires that a medical device must
(unless exempted by regulation) be cleared or approved by the FDA before being
commercially distributed in the United States. The FD&C Act also requires that
manufacturers of medical devices, among other things, comply with specific
labeling requirements and manufacture devices in accordance with Current Good
Manufacturing Practices ("CGMPs"), which require that companies manufacture
their products and maintain related documentation in a conformed manner with
respect to manufacturing, testing, and quality control activities. The FDA
inspects medical device manufacturers and distributors, and has broad authority
to order recalls of medical devices, to seize non-complying medical devices, to
enjoin and/or impose civil penalties, and to criminally prosecute violators.
The FDA classifies medical devices intended for human use into three classes:
Class I; Class II; and Class III. In general, Class I devices are products for
which the FDA can determine that their safety and effectiveness can be
reasonably assured by general controls under the FD&C Act relating to such
matters as adulteration, misbranding, registration, notification, records and
reports, and QSRs. Class II devices are products for which the FDA determines
that these general controls are insufficient to provide reasonable assurance of
safety and effectiveness, and that require special controls such as the
promulgation of performance standards, post-market surveillance, patient
registries, or such other actions as the FDA deems necessary. Class III devices
are devices for which the FDA has insufficient information to conclude that
either general controls or special controls would be sufficient to assure safety
and effectiveness, and which are life-supporting, life-sustaining, of
substantial importance in preventing impairment of human health (e.g., a
diagnostic device to detect a life-threatening illness), or present a
potentially unreasonable risk of illness or injury.
The FD&C Act further provides that, unless exempted by regulation, medical
devices may not be commercially distributed in the United States unless they
have been approved or cleared by the FDA. Manufacturers of Class III devices
must apply to the FDA for pre-marketing approval ("PMA") before marketing can
begin. PMA applications must demonstrate, among other matters, that the medical
device is safe and effective. A PMA application is typically a complex
submission, usually including the results of clinical studies, and preparing an
application is a detailed and time-consuming process.
Once a PMA application has been filed, the FDA has by regulation 180 days to
review it; however, the review time may be extended by the FDA asking for
additional information or clarification of information already provided in the
submission. In addition, the FDA will inspect the manufacturing facility to
ensure compliance with the FDA's quality system regulations commonly referred to
as QSRs prior to approval of a PMA. The PMA process is a lengthy and expensive
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one, and there can be no assurance that a PMA application will be approved
within 180 days.
We have engaged the services of U.S. regulatory consultants who specialize in
FDA matters and to assist us in the final preparation and submission of our PMA
application. We filed our PMA application on April 29, 2003 and requested
expedited review. We are in the process of amending our PMA application to
address deficiencies outlined in a letter from the FDA in August 2003. See Item
1. "Business-Regulatory and Clinical Status, United States/FDA". If we are
unable to obtain prompt FDA approval, it will have a material adverse effect on
our business and financial condition and would result in postponement of the
commercialization of the CTLM(R). See "Regulatory and Clinical Status".
Any products manufactured or distributed by us pursuant to a PMA are or will be
subject to pervasive and continuing regulation by the FDA. The FDA Act also
requires that our products be manufactured in registered establishments and in
accordance with QSR regulations. Labeling, advertising and promotional
activities are subject to scrutiny by the FDA and, in certain instances, by the
Federal Trade Commission. The export of medical devices is also subject to
regulation in certain instances. In addition, the marketing and use of our
products may be regulated by various state agencies.
All lasers manufactured for us are subject to the Radiation Control for Health
and Safety Act administered by the Center for Devices and Radiological Health of
the FDA. The law requires laser manufacturers to file new product and annual
reports and to maintain quality control, product testing, and sales records, and
to comply with labeling and certification requirements. Various warning labels
must be affixed to the laser, depending on the class for the product under the
performance standard.
Both the FDA and the individual states may inspect the manufacturers of our
products on a routine basis for compliance with current QSR regulations and
other requirements.
In addition to the foregoing, we are subject to numerous federal, state, and
local laws relating to such matters as safe working conditions, manufacturing
practices, environmental protection, and fire hazard control. There can be no
assurance that we will not be required to incur significant costs to comply with
such laws and regulations and that such compliance will not have a material
adverse effect upon our ability to conduct business. See Item 7. "Management's
Discussion and Analysis of Financial Condition and Results of
Operations-Cautionary Statements - Extensive Government Regulation, No Assurance
of Regulatory Approvals".
Foreign Regulation
Sales of medical devices outside of the United States are subject to foreign
regulatory requirements that vary widely from country to country. The time
required to obtain approval for sale in foreign countries may be longer or
shorter than that required for FDA clearance or approval, and the requirements
may differ. The laws of certain European and Asian countries may permit us to
begin marketing the CTLM(R) in Europe and Asia before marketing would be
permitted in the United States. In order to sell our products within the
European Economic Area ("EEA"), companies are required to achieve compliance
with requirements of the Medical Devices Directive ("MDD") and affix a "CE"
marking on their products to attest such compliance. In Europe, we have obtained
the certifications necessary to enable the CE mark to be affixed to our products
in order to conduct sales in member countries of the EEA, subject to compliance
with additional regulations imposed by individual countries. In obtaining these
certifications, we utilized the services of UL International (UK). Ltd. as our
notified body ("NB"). An NB is a regulatory body from the private sector that is
responsible for the review and approval of the documentation submitted by us in
order to enable the CE mark to be affixed to products. Certain standards and
steps were complied with in order to obtain the CE mark in order to distribute
the CTLM(R) in the EEA. These standards include risk assessment, quality
assurance and labeling. The listed standards are for the EEA market only and
additional document requirements and standards exist for other markets.
In October 2000, we contracted Underwriters Laboratories Inc. ("UL") to perform
safety testing and assist us in achieving regulatory certifications necessary to
begin selling the CTLM(R) system outside the United States. We also chose UL as
our Notified Body to certify our compliance with EN2900/4600/ISO9000 quality
assurance standards. The certifications and CE marking signify that the product
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and its design, manufacturing and quality systems comply with international
standards. The UL safety testing is also necessary in order for the CTLM(R)
system to be sold in the United States once we receive FDA approval. In January
2001 we received notice from UL of completion for worldwide safety
classification of our CTLM(R) system.
In November 2000, we were recommended for CE marking, subject to review by UL's
Notified Body. In January 2001, we received regulatory approval from UL to apply
the CE marking to our CTLM(R) system. CE marking provides us the opportunity to
market the CTLM(R) within the European Union, one of the largest markets in the
world. In addition, CE marking permits medical device product sales in many
other markets worldwide.
In May 2001, we received ISO 9002 certification demonstrating our commitment for
quality and our ability to provide consistency, reliability, value and
exceptional customer service. ISO 9002 certification is significant in
facilitating the global marketing of our CTLM(R) system by conforming to an
effective quality management system recognized as the gold standard around the
world.
On September 25, 2001, we received a Certificate of Exportability from the FDA
for the CTLM(R). The FDA requires unapproved products that are subject to PMA
requirements to have prior FDA Certificate of Exportability in order to be
exported outside of the United States. On September 17, 2003, we received a
renewal of our Certificate of Exportability, which will be valid for two years.
In October 2003 we announced that we received a Certificate of Approval that our
Quality Management System has been inspected and upgraded to the following
quality assurance standards: ISO 9001:2000, ISO, 3485:2003, EN 46001:1996 and
Annex II have been granted. As of the date of this report, almost 100 countries,
including the United States, the United Kingdom, Germany, Australia, Canada,
Japan and France have adopted ISO Standards as the primary means for evaluating
the quality of manufacturing products.
Regulatory and Clinical Status
In order to sell the CTLM(R) commercially in the United States, we must obtain
marketing clearance from the Food and Drug Administration. A PreMarket Approval
application must be supported by extensive data, including pre-clinical and
clinical trial data, as well as extensive literature to prove the safety and
effectiveness of the device. Under the Food, Drug, and Cosmetic Act, the FDA has
180 days to review a PMA application, although in certain cases the FDA may
increase that time period through requests for additional information or
clarification of existing information.
We followed the guidelines of the "Standardized Shell for Modular Submission"
for the FDA approval process. The FDA assigned a Modular Shell Control Number
and a general description of items required for the submission. Below is a table
indicating the status of our FDA Modular Submission:
Module # Description of Module Submission Date Filed Date Accepted
-------- --------------------------------- ---------- --------------
Module 1 General Information & Safety 9/27/2000 1/7/2002
Module 2 Software 4/17/2001 6/12/2001
Module 3 Non-Pivotal Clinical 5/1/2001 8/13/2001
Module 4 Manufacturing & Quality Systems 1/2/2001 9/25/2001
PMA PMA Submission 4/29/2003 Pending
On April 29, 2003, we announced that we submitted our PMA with the U.S. Food and
Drug Administration (FDA) seeking marketing approval for our Computed Tomography
Laser Mammography System, the CTLM(R).
On June 18, 2003, we announced that we received notification from the Food and
Drug Administration that an initial review of our PMA had been conducted and was
found to be sufficiently complete to permit a substantive review and, therefore,
9
suitable for filing. An in-depth evaluation of the safety and effectiveness of
the device will be conducted to determine the final approval of the PMA
application.
On August 27, 2003, we announced in an 8-K filing that we received a letter from
the FDA dated August 22, 2003. The FDA letter outlined the deficiencies in our
PMA application, which must be resolved before the FDA's review could be
completed. The FDA stated that until these deficiencies are resolved, the PMA
application is not approvable in its current form. We are continuing to work
closely with the FDA and our new regulatory consultants to address the
deficiencies and to submit an amendment to our PMA application.
On February 2, 2004, we announced in an 8-K filing that we received a warning
letter from the FDA specifically regarding the bio-monitoring section of an
inspection conducted August 13th through August 18th, 2003 at our facility. We
submitted our response to this letter to the FDA on February 9, 2004.
On February 10, 2004, we announced in an 8-K filing that we had submitted our
response to the warning letter and on March 29, 2004, we announced in an 8-K
filing that our responses to the FDA's warning letter regarding the
bio-monitoring inspection addressed each of the issues and no further response
to the FDA is required at this time.
On March 25, 2004, we announced in an 8-K filing that the FDA agreed with our
request for an extension of time to respond to the FDA's August 22, 2003 letter
regarding our pre-market approval application. We are seeking PreMarket
approval from the FDA for this intended use: "The Imaging Diagnostics Computed
Tomography Laser Mammography (CTLM(R)) scanner is intended for use as an adjunct
to mammography in patients who have equivocal mammographic findings within ACR
BI-RADS categories 3 or 4. In particular, it is not intended for use in cases
with clear mammographic or non-mammographic indications for biopsy. This device
provides the radiologist with additional information to guide a biopsy
recommendation". We are continuing to work closely with the FDA and our
new regulatory consultants to address the deficiencies and to submit an
amendment to our PMA application.
Patients are continuing to be scanned at our various collaboration sites,
including the University of Vienna, Allgemeines Hospital, the Humboldt
University of Berlin, Charite Hospital and at Policlinico Paolo Giancone
Hospital in Palermo, Italy. IDSI expects to remain involved in the PMA
supplement process if we receive approval as the CTLM(R) technology platform
will evolve to expand the range of clinical utility. The Company intends to
pursue a rigorous clinical program to discover and commercialize the envisioned
applications.
Product Quality and Safety
Product Safety Evaluation -We believe that one of the most important aspects of
product safety is the design of the product. If safety standards are not
considered through the design of the product, the product safety evaluation may
require that the mechanical and electrical parts of the product be re-designed.
Throughout the CTLM(R) design process, we have made every effort to confirm that
it complies with all domestic and international safety standards. New
requirements, or new interpretations of existing requirements, may affect the
CTLM(R). In January 2001 we received notice of completion for worldwide safety
classification of our CTLM(R) system from Underwriters Laboratories Inc. (UL).
Quality Assurance -We have implemented and intend to maintain a full quality
system at our corporate offices. Our Quality Assurance Manager ("QAM") has
completed the process of implementation in accordance with the required
standards. After implementation of the quality system, auditors from
Underwriters Laboratories completed an assessment of our quality systems. UL
found us in compliance with ISO 9002 and in May 2001 issued a certificate
signifying such compliance for the manufacture and servicing of laser-based
diagnostic mammography imaging systems.
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DOMESTIC SALES AND MARKETING
There are approximately 9,600 Mammography Quality Standards Act (MQSA) centers
certified in the U.S. IDSI will begin marketing the CTLM(R) to the centers
following FDA approval. There are 600 MQSA centers located in 49 of the larger
cities in the U.S., which are believed to have patient volume in excess of 40
patients per day. These centers will be IDSI's initial marketing targets.
Since the field of Molecular Optical Imaging is relatively new to most
radiologists and mammographers, the extent that, and rate at which, the CTLM(R)
achieves market acceptance and penetration will depend on many variables. These
include, but are not limited to, the establishment and demonstration in the
medical community of the clinical safety, efficacy, and cost-effectiveness of
the CTLM(R), and the advantage of the CTLM(R) over existing technology and
cancer detection methods. We believe that the clinical data being collected and
assessed under our PMA process will have a significant impact on the ultimate
market size for our device. We have focused our efforts on establishing a
presence at major Breast Imaging Conferences that are held each year. Failure of
our products to gain market acceptance would have a material adverse effect on
our business, financial condition, and results of operations. There can be no
assurance that physicians or the medical community in general will accept and/or
utilize the CTLM(R).
In order to market any products we may develop, we will have to develop a
marketing and sales force with technical expertise and distribution capability.
There can be no assurance that we will be able to establish sales and
distribution capabilities or that we will be successful in gaining market
acceptance for any products we may develop.
International Sales
We appointed a new Vice President, International Sales, in September 2004 and we
intend to pursue international sales in those countries where permitted prior to
commencing commercial sales in the United States. Sales in the United States
cannot occur unless and until we receive pre-market approval from the FDA. The
laws of certain countries permit us to begin marketing the CTLM(R) subject to
certain homologations before marketing would be permitted in the United States.
See "Government Regulation". In preparation for launching international sales of
the CTLM(R) we have installed systems at University of Vienna, Allgemeines
Hospital and at Charite Hospital, Humboldt-University Berlin as demonstrators.
We have arranged special terms on a CTLM(R) System to our distributor,
Biomedical International S.n.c. of Rome, Italy, which was installed in June 2004
at Policlinico Paolo Giancone Hospital in Palermo, Sicily.
Until we receive pre-market approval from the FDA to market the CTLM(R) in the
United States, as to which there can be no assurance, our revenues, if any, will
be derived from sales to international distributors. A significant portion of
our revenues, therefore, may be subject to the risks associated with
international sales, including economical and political instability, shipping
delays, fluctuation of foreign currency exchange rates, foreign regulatory
requirements and various trade restrictions, all of which could have a
significant impact on our ability to deliver products on a timely basis. Future
imposition of, or significant increases in the level of customs, duties, export
quotas or other trade restrictions could have a material adverse effect on our
business, financial condition and results of operations. The regulation of
medical devices continues to develop and there can be no assurance that new laws
or regulations will not have an adverse effect on us.
We filed our application with Health Canada for a new medical device license to
sell the CTLM(R) in Canada, in July 2001 shortly after our May 2001 filing of
the last module as part of our PMA modular submission process. Since July 2001,
we have supplemented our Canadian application from time to time with the
information requested by Health Canada. We filed a new application with Health
Canada in June 2003. On June 18, 2003 we received notification from the Medical
Device Bureau of Health Canada that our application had been accepted for
review. On November 14, 2003 we announced that we received notification from the
Medical Device Bureau of Health Canada that our application for a "New Medical
Device" license was approved. The license was issued in accordance with the
Medical Device Regulations, Section 36. Furthermore, we possess the CMD/CSA ISO
11
13485-1998 certification, which is an additional regulatory requirement that is
evidence of compliance to the quality system of the medical device.
In November 2003, we announced that we received a deposit for the purchase of a
CTLM(R) System through our distributor, Veccsa S.A., who intended to sell it to
The Institutos Medicos de Alta Tecnologia, a comprehensive diagnostic imaging
center in Buenos Aires, Argentina pending product registration from the Ministry
of Health of Argentina. We received product registration in June 2004 but due to
the delay in receiving the registration, the customer requested a re-negotiation
of the terms of the sale with the distributor. We and Veccsa S.A are in the
process of negotiating new terms and conditions for the sale, which may or may
not be acceptable to the distributor's customer.
In November 2003, we announced receipt of a purchase order with a guaranteed
letter of credit for three CTLM(R) Systems from our Chinese distributor, China
Far East International Trading Corp (CFETC). Headquartered in Beijing, CFETC was
established in 1985 and has 23 satellite offices located throughout China as
well as four international branches located in the United States, Belgium,
Southeast Asia and Hong Kong. CFETC works in conjunction with the Chinese
Government's Ministry of Foreign Trade and Economic Co-Operation. In February
2004, we shipped four CTLM(R) Systems to China in accordance with an irrevocable
confirmed letter of credit. The fourth system will be used for The State Food
and Drug Administration (SFDA) testing and subsequent training and clinical
research in a hospital.
On May 4, 2004, we announced shipment of a CTLM(R) System to Dubai as a result
of a purchase order from Axis Medical LLC from February 2004. Full payment was
received and the revenue from the sale was recorded in the fourth quarter.
INTERNATIONAL DISTRIBUTORS
In May 2003, based on our commitment to develop international sales, we engaged
the services of an international sales and marketing consultant. The consultant
had experience in the international marketing of medical imaging devices,
establishing worldwide distribution networks, launching new products and
creating training and development programs. In March 2004, we terminated our
agreement with the consultant. In order to achieve our international marketing
goals, management decided to seek a full-time international sales Vice President
who joined IDSI in September 2004.
We intend to add new distributors to cover international regions. Where
performance fails to meet agreed upon targets, distributors may be terminated.
We expect such changes to occur in the normal course of introducing a new
product to global markets.
THIRD-PARTY REIMBURSEMENT; HEALTH CARE REFORM
In the United States, suppliers of health care products and services are greatly
affected by Medicare, Medicaid, and other government insurance programs, as well
as by private insurance reimbursement programs. Third-party payers (Medicare,
Medicaid, private health insurance companies and other organizations) may affect
the pricing or relative attractiveness of our products by regulating the level
of reimbursement provided by such payers to the physicians and clinics utilizing
the CTLM(R) or by refusing reimbursement. If examinations utilizing our products
were not reimbursed under these programs, our ability to sell our products may
be materially and/or adversely affected. There can be no assurance that
third-party payers will provide reimbursement for use of our products. In
international markets, reimbursement by private third-party medical insurance
providers, including governmental insurers and independent providers, varies
from country to country. In certain countries, our ability to achieve
significant market penetration may depend upon the availability of third-party
governmental reimbursement. Revenues and profitability of medical device
companies may be affected by the continuing efforts of governmental and third
party payers to contain or reduce the cost of health care through various means.
12
PRODUCT LIABILITY
Our business exposes us to potential product liability risks, which are inherent
in the testing, manufacturing and marketing of cancer detection products. While
the CTLM(R) is being developed as an adjunct to other diagnostic techniques,
there can be no assurance that we will not be subjected to future claims and
potential liability. At present we carry $3,000,000 in product liability
insurance to cover both clinical sites and sales.
COMPETITION
The medical device industry generally, and the diagnostic imaging segments in
particular, are characterized by rapidly evolving technology and intense
competition. The IDSI approach of employing continuous wave laser optical
technology in a CT-like device to produce 3D images is unique and patented, and
the concept of imaging angiogenesis in the breast to differentiate between
benign and malignant tissue is well accepted.
Although the CTLM(R) system is a CT-like scanner, its energy source for imaging
is a laser beam and not ionizing radiation such as is found in conventional
x-ray mammography or CT scanners. The advantage of imaging without ionizing
radiation may be significant in our markets. X-ray mammography is a
well-established method of imaging the structures within the breast. Ultrasound
is often used as an adjunct to help differentiate tumors and cysts. The CTLM(R)
is being marketed as an adjunct to mammography and will not compete directly
with X-ray mammography. CTLM(R) is, however, a method of molecular functional
imaging, which can visualize the process of angiogenesis which may be used to
distinguish between benign and malignant tissue. Unlike X-ray or ultrasound,
optical molecular imaging is a revolutionary functional imaging modality. In
this respect, CTLM(R) may compete with magnetic resonance imaging (MRI) in
breast imaging because both CTLM and MRI have the capacity to visualize function
at the molecular level.
The CTLM(R) Laser Breast System differs from any other optical imaging device in
several ways:
1. CTLM(R) employs advanced continuous wave laser signals versus
transillumination or time domain approaches which we tested earlier
and subsequently abandoned.
2. CTLM(R) does not compress or even touch the breast--it is painless.
3. CTLM(R) is truly 3D and presents the breast study as a volume on a
viewing workstation vs. planar or 2D approaches that superimpose many
layers of information upon themselves. CT and MRI are examples of 3D
imagers like CTLM(R).
Two companies, to our knowledge, are targeting the breast optical imaging
markets. Advanced Research Technologies, Inc. (ART) (TSX:ARA) is developing a
non-3D imager which does not utilize our patented continuous wave technology and
in which the breast must be immersed in a gel. ART has signed distribution
agreements with GE Medical should a product become available.
DOBI Medical International, Inc. (DBMI:OB) is developing an optical imager based
upon compression and transillumination of the breast, which produces a 2D `map'
of relative oxygenation. IDSI views this adaptation of older technology as
unlikely to become a threat to our CT laser 3D approach.
Neither ART nor DOBI have FDA approval. To IDSI's knowledge, no other company
has a functioning optical imaging device designed for use as an adjunct to
mammography. CTLM(R) Breast Imaging Systems are in clinical settings in Italy,
Germany, Austria, Peoples Republic of China, and the United Arab Emirates. In
vivo human studies of fluorescent compounds are also underway at three Schering
AG locations.
Methods for the detection of cancer are subject to rapid technological
innovation and there can be no assurance that future technical changes will not
render our CTLM(R) obsolete. There can be no assurance that the development of
new types of diagnostic medical equipment or technology will not have a material
adverse effect on our business, financial condition, and results of operations.
13
PATENTS
The patent for the CTLM(R) was issued in December 1997 under Patent Number
5,692,511 (the "Patent"). The Patent has a total of 4 independent claims and 24
subordinate claims. The independent claims serve to provide an overall outline
of the disclosure of the invention. The subordinate claims provide additional
information to identify pertinent details of the invention as they relate to the
respective specific independent claim. We own the rights to the Patent for its
17-year life pursuant to an exclusive patent licensing agreement with the late
Richard Grable, who invented the CTLM(R) and served as our Chief Executive
Officer and whose estate has owned the Patent since his death in August 2001.
See "Patent Licensing Agreement" and "Certain Transactions." As of the date of
this report, we own 17 patents and have nine additional United States patents
pending with regard to optical tomography, many of which are based on the
original CTLM(R) technology. We also have eight International patents and have
28 International patents pending.
In September 1999, we were issued a patent for a laser imaging apparatus using
biomedical markers that bind to cancer cells. This patent was issued under
Patent Number 5,952,664 and is owned by the Company. The biomedical marker we
are currently testing is a fluorescent marker. We plan to continue studying
other biomedical markers in conjunction with major pharmaceutical companies as a
potential advanced diagnostic feature to be used with our CTLM(R) system. The
CTLM(R) in combination with the fluorescent feature has the potential to be used
with photodynamic therapy (PDT) to aid in the treatment of breast cancer.
In February 2000, we were issued a patent for: "Device for Determining the
Perimeter of the Surface of an Object Being Scanned and for Limiting Reflection
from the Object Surface". The patent was issued under Patent Number 6,029,077
and is owned by the Company. This particular patent covers the technique for
determining the perimeter of the breast, which simplifies the algorithms
necessary to produce the image.
In March 2000, we were issued a patent for: "Apparatus and Method for
Determining the Perimeter of the Surface of an Object Being Scanned". The patent
was issued under Patent Number 6,044,288, and is owned by the Company. This
additional patent covers an optical technique to determine the perimeter of a
scanned breast. The Company's patent 6,029,077 described in the previous
paragraph covers a different technique to perform the same measurement.
Together, these two patents protect the practical techniques that can be used to
acquire this information.
In August 2000, we were issued a patent for: "Detector Array for Use in a Laser
Imaging Apparatus". The patent was issued under Patent Number 6,100,520 and is
owned by the Company. This patent describes the several different variations
that can be used while scanning the breast without any contact between the
breast and the optical components. Unlike the conventional method, this unique
feature allows the CTLM(R) to scan the breast without the use of breast
compression.
In October 2000, we were issued a patent for: "Method of Reconstructing an Image
Being Scanned". The patent was issued under Patent Number 6,130,958 and is owned
by the Company. This patent describes the algorithms used to reconstruct images
from data acquired from CTLM(R) scans.
In December 2000, we were issued a patent for: "Detector Array With Variable
Gain Amplifiers For Use In A Laser Imaging Apparatus". The patent was issued
under Patent Number 6,150,649 and is owned by the Company. This patent describes
the proprietary electronics used in the CTLM(R) detector array.
In February 2001, Mr. Grable was issued a patent for "Diagnostic Tomographic
Laser Imaging Apparatus". This patent was issued for his proprietary scanning
bed, a unique feature of the CTLM(R), and was issued as U.S. Patent Number
6,195,580. The patent allows for a fixed horizontal platform including a top
surface with an opening through which the female breast is vertically pendent
using a laser beam for the detection of breast abnormalities. The patent should
prevent others in the industry from utilizing a scanning bed with a laser breast
imaging system that requires the patient to lie in the prone position. See
"Patent Licensing Agreement".
In April 2001, we were issued a patent for: "Detector Array for Use in a Laser
Imaging Apparatus". The patent was issued under Patent No. 6,211,512 and is
14
owned by the Company. The patent allows for several different optics variations
while scanning the breast without contact between the breast and the optical
components. This feature allows the CTLM(R) to scan the breast without the use
of breast compression.
In January 2002, we announced that we were issued a patent for "Detector Array
With Variable Gain Amplifiers for Use in a Laser Imaging Apparatus," as U.S.
Patent No. 6,331,700. This patent protects some of the non-obvious, but
essential, design aspects of an optical CT scanner. This patent addresses the
solution to the problem of accommodating a huge dynamic range of light
intensities emitted from the breast.
In February 2002, we were issued a patent for "Time-Resolved Breast Imaging
Device," as U.S. Patent No. 6,339,216. This patent protects the key electronics
of a time-resolved optical CT scanner. It addresses the solution to the problem
of simultaneously accommodating a large dynamic range of light intensities
emitted from the breast while achieving the necessary temporal resolution.
In May 2003, we were issued a patent for "Medical Optical Imaging Scanner Using
Multiple Wavelength Simultaneous Data Acquisition for Breast Imaging," as U.S.
Patent No. 6,571,116.
In January 2004, we announced that we were issued a patent for "PHANTOM FOR
OPTICAL AND MAGNETIC RESONANCE IMAGING QUALITY CONTROL," as U.S. Patent No.
6,675,035. This invention relates to phantoms for use in optical and magnetic
resonance imaging that emulates the optical characteristics of breast tissue,
that resembles the breast in shape and size, as an integral component of a
quality assurance protocol to verify the performance of the medical imaging
apparatus being evaluated.
In January 2004, we announced that we were issued a patent for "METHOD FOR
IMPROVING THE ACCURACY OF DATA OBTAINED IN A LASER IMAGING APPARATUS," as U.S.
Patent No. 6,681,130. This method improves the accuracy of data obtained using a
diagnostic medical imaging apparatus that employs a near-infrared laser and
array of detectors with variable gain amplifiers that can accommodate the wide
dynamic range of signals available from the detectors.
In February 2004, we announced that we were issued a patent for "LASER IMAGING
APPARATUS USING BIOMEDICAL MARKERS THAT BIND TO CANCER CELLS" as U.S. Patent No.
6,693,287. This patent protects the proprietary method of collecting data while
using "biomedical" markers that bind to cancer cells during a CT laser scan to
provide a positive identification of the cancer area, to selectively activate
the Photo Dynamic Therapy (PDT) drug to destroy the cancer.
In April 2004, we announced that we were granted a Canadian Patent for "LASER
IMAGING APPARATUS USING BIOMEDICAL MARKERS THAT BIND TO CANCER CELLS" as
Canadian Patent No. 2,373,299. This patent broadly covers the optical imaging of
fluorescent compounds.
In May 2004, we announced that we were issued a patent for "MEDICAL OPTICAL
IMAGING SCANNER USING MULTIPLE WAVELENGTH SIMULTANEOUS DATA ACQUISITIONS FOR
BREAST IMAGING" as Patent No. 6,738,658. This patent protects the concept of
differential reconstruction: reconstructing the difference in data before and
after an injection of a contrast agent, such as a fluorescent compound.
In June 2004, we announced that we were granted a Chinese Patent for "DIAGNOSTIC
TOMOGRAPHIC LASER IMAGING APPARATUS" as Chinese Patent No. ZL95197940X. The
patent was issued in the name of Richard J. Grable for a period of 20 years from
the date of filing until July 10, 2015 and is exclusively licensed to Imaging
Diagnostic Systems, Inc. See "Patent Licensing Agreement".
In August 2004, we announced that we were granted a European Patent for
"APPARATUS FOR DETERMINING THE PERIMETER OF THE SURFACE OF AN OBJECT BEING
SCANNED" as European Patent No. 1003419. This is the European equivalent of U.S.
Patent No. 6,044,288, which protects a key element in the optical technique used
to determine the perimeter of an object being scanned.
15
We intend to file for patents on products, including the CTLM(R), for which we
believe the cost of obtaining a patent is economically reasonable in relation to
the expected protection obtained. There can be no assurances that any patent
that we apply for will be issued, or that any patents issued will protect our
technology. If the patents we license or obtain are infringed upon, or if we are
required to defend any patent infringement cases brought against us, that will
require substantial capital, the expenditure of which we might not be able to
afford.
PATENT LICENSING AGREEMENT
IDSI was formed in December 1993 for the sole purpose of developing and
commercializing Richard Grable's invention, a CT laser breast-imaging device
(the "Mammoscan(TM)"). The Mammoscan(TM) had already been exhibited at the
Radiology Society of North America ("RSNA") 1989 session and held the promise of
a new, emerging technology for the detection of breast abnormalities without
compression or ionizing X-rays. This device used a laser diode for its energy
source and a 386 processor that was extremely slow. Once the technology became
available to speed up the processing, IDSI's founders (Richard Grable, Linda
Grable and Allan Schwartz) believed that this device would be a major
breakthrough in the early detection of breast cancer.
Mr. Grable invented the CTLM(R) by making major improvements in the
Mammoscan(TM) technology. In June 1998, we finalized an exclusive patent license
agreement with Mr. Grable, which encompasses the technology for the CTLM(R). The
term of the license is for the life of the Patent (17 years) and any renewals,
subject to termination, under specific conditions. As consideration for this
license, we issued to Mr. Grable 7,000,000 shares of common stock. In addition,
we agreed to pay Mr. Grable a royalty based upon a percentage, ranging from 6%
to 10%, of the net selling price (the dollar amount earned from our sale, both
international and domestic, before taxes minus the cost of the goods sold and
commissions or discounts paid) of all the products and goods in which the patent
is used. Mr. Grable agreed that these royalty provisions will not apply to any
sales and deliveries of CTLM(R) systems made by IDSI prior to receipt of the PMA
for the CTLM(R). In addition, following issuance of the PMA, IDSI and Mr. Grable
agreed that Mr. Grable would be paid guaranteed minimum royalties of at least
$250,000 per year based on the sales of the products and goods in which the
CTLM(R) patent is used. Due to Mr. Grable's death in August 2001, his interest
in the patent license agreement passed to his estate. Mr. Grable's widow, Linda
Grable, is the principal beneficiary of Mr. Grable's estate.
The following table sets forth the Patent licensing royalty structure:
ANNUAL GROSS SALES PERCENTAGE OF NET SELLING PRICE
----------------- -------------------------------
$0 to $1,999,999 10%
$2,000,000 to $3,999,999 9%
$4,000,000 to $6,999,999 8%
$7,000,000 to $9,999,99 7%
Greater than $10,000,000 6%
16
EMPLOYEES
As of the date of this Report, we have 45 full-time employees, including our
four executive officers. Thirty-eight percent of our employees (17) are employed
in the areas of scientific, clinical and product research and development. As of
September 2003, we had 43 full-time employees, of whom 32 were employed in the
areas of scientific, clinical, and product research and development. The
increase and reallocation of human resources is due to our focus on
commercializing the CTLM(R). Our ability to provide our services is dependent
upon our recruiting, hiring and retaining qualified technical personnel. To
date, we have been able to recruit and retain sufficient qualified personnel.
None of our employees are represented by a labor union. We have not experienced
any work stoppages and consider our relations with our employees to be good.
Due to the specialized scientific nature of our business, we are highly
dependent upon our ability to attract and retain qualified scientific, technical
and managerial personnel. Therefore, we have entered into employment agreements
with certain of our executive officers and key employees. The loss of the
services of existing personnel as well as the failure to recruit key scientific,
technical and managerial personnel in a timely manner would be detrimental to
our research and development programs and to our business. Our anticipated
growth and expansion into areas and activities requiring additional expertise,
such as marketing, will require the addition of new management personnel.
Competition for qualified personnel is intense and there can be no assurance
that we will be able to continue to attract and retain qualified personnel
necessary for the development of our business.
ITEM 2. DESCRIPTION OF OUR PROPERTY
Our headquarters facility is located at 6531 N.W. 18th Court, Plantation,
Florida. The facilities are owned by us and comprise a 24,000-sq. ft. building
with ample space to expand, located on a 5-acre landscaped tract. We believe
that our facility is adequate for our current and reasonably foreseeable future
needs. We intend to assemble the CTLM(R) at our facility from hardware
components that will be made by vendors to our specifications.
ITEM 3. LEGAL PROCEEDINGS
On May 1, 2000, we filed a civil lawsuit against DOE 1 a/k/a DEIGHTON in the
Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida,
Case No. CACE 00-006881 (04) for defamation and tortious interference with our
contracts and business relationships.
The civil lawsuit filed against Doe 1 a/k/a DEIGHTON sought permanent relief
which would restrain Doe 1 and his/her agents, etc. from making any statement or
engaging in any conduct to intentionally interfere with any contractual/business
relationship by and between IDSI, Richard Grable and Linda Grable and our
customers, shareholders and/or investors, and for damages, attorney fees, costs
and interest in excess of $15,000. A Summons and Verified Complaint was served
on the Doe 1 and a Response was filed by Diane M. Strait, a former employee of
the company. The defendant, Ms. Strait admitted to being the author, with her
husband, Robert Leonard of over 1,000 postings on the Raging Bull message boards
regarding us. Our motion for a temporary injunction was denied on November 3,
2000. On December 18, 2000, we served an amended complaint, which added Mr.
Leonard as a defendant in the lawsuit. Diane Strait filed a counterclaim for
defamation against us. We filed a motion to dismiss this counterclaim for
failure to state cause of action. Our motion to dismiss was granted and the
defendants were given leave to amend their counterclaim. Defendant, Diane
Strait, filed a second amended counterclaim in January 2002. We filed a motion
to dismiss Ms. Strait's second amended counterclaim, which was granted on April
2, 2002, with leave to file a third amended counterclaim within 30 days. Ms.
Strait filed a third amended counterclaim on May 1, 2002, for defamation, abuse
of privilege, negligence, negligent supervision and negligent retention. We
filed an answer to the counterclaim.
The Judge issued an Order referring the case with regard to us, to Non-Binding
Arbitration, pursuant to Florida Statutes Section 44.103. The parties appeared
before an Arbitrator on August 13, August 29, and September 8, 2003, and in a
decision dated September 29, 2003, the Arbitrator found on all counts set forth
in Plaintiffs' First Amended Complaint for Injunctive Relief and Damages, on the
evidence presented, Imaging Diagnostic Systems, Inc., Richard Grable and Linda
17
Grable's request for injunctive relief was denied and held that Defendants Diane
Strait and Robert Leonard shall have and recover costs from the plaintiffs that
may properly be taxed as determined by the Court. On all counts set forth in
Defendant/Counterplaintiff Diane Strait's Third Amended Counterclaim, the
Arbitrator found that Defendant/Counterplaintiff Diane Strait's request for
damages be denied. It was also ordered that we shall have and recover costs from
the Plaintiff that may properly be taxed as determined by the court.
On October 15, 2003 the parties including Linda Grable individually and on
behalf of the Estate of Richard Grable filed with the Court an Agreement and
Release dated September 30, 2003, which states that all parties are in agreement
to dismissing the case brought by us against Diane Strait and Robert Leonard and
the case brought by Diane Strait against us. Both parties agreed to waive costs,
and general releases were exchanged. Both cases are now closed.
We were served with a lawsuit filed in the United States District Court, Eastern
District of New York on February 16, 2001 by Anthony Giambrone for alleged
breach of a consulting agreement. Mr. Giambrone sent notice of exercise of all
of his warrants to purchase 500,000 shares of our common stock at a price of
$.93 per share on February 10, 2000, as provided in the consulting agreement. On
March 17, 2000, he tendered only $100,000, representing partial payment for the
warrants and received the 107,527 shares corresponding to the payment. No
further payments were made and the warrants expired on July 26, 2000. Mr.
Giambrone was seeking 392,473 unrestricted shares of common stock or
alternatively, damages of at least $430,645. A Settlement Agreement dated as of
March 22, 2002, was entered into between Mr. Giambrone and us. On March 28,
2002, we issued 350,000 restricted shares of common stock to Mr. Giambrone in
settlement of the lawsuit. The shares were issued in an exempt transaction
pursuant to section 4(2) of the Securities Act of 1933, as amended. The suit was
dismissed by stipulation on April 23, 2002. In addition we agreed that, if the
market price of our common stock on March 28, 2003, was less than $.75 per
share, then we would issue to him additional shares of common stock equal to the
quotient of (a) 262,500 minus the product of (i) 350,000 and (ii) the market
price, divided by (b) the market price. On March 28, 2003, the market price of
our stock was $.17, so we issued to him 1,194,118 additional shares bearing a
restricted legend. Under the settlement agreement, we were obligated to register
the shares issued to Mr. Giambrone, subject to certain conditions. The shares
were subsequently registered on July 23, 2003.
We were served with a lawsuit filed in the United States District Court,
Southern District of New York on March 14, 2001 by Ladenburg Thalmann & Co. Inc.
for alleged breach of an investment-banking contract. We believed that the
complaint was without merit as Ladenburg Thalmann & Co. terminated the contract
and we believed that we complied with all of our obligations under the contract.
We filed a motion to dismiss on May 25, 2001, which was granted in part and
denied in part on December 10, 2001. We filed an answer to the Plaintiff's
complaint on April 16, 2002, denying the material allegations of the complaint.
On or about September 18, 2003, we entered into a settlement agreement to settle
this action. Under this settlement we agreed to issue 401,785 shares of our
common stock to Ladenburg in exchange for Ladenburg's dismissal with prejudice
of its claims against us. As of the date of the Settlement Agreement the value
of the stock was approximately $450,000. We and Ladenburg jointly moved for
Court approval of the settlement as fair to Ladenburg so that the delivery of
the shares to and the resale of the shares in the United States by Ladenburg may
be exempt from registration under Section 3(a)(10) of the Securities Act of
1933. In an order dated October 24, 2003, the Judge ordered and adjudged that
the settlement was approved as fair to the party to whom the shares will be
issued within the meaning of Section 3(a)(10) and the case was closed. The
shares were issued on November 12, 2003.
We are not aware of any other material legal proceedings, pending or
contemplated, to which we are, or would be a party to, or of which any of our
property is, or would be, the subject.
18
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On March 24, 2004 we held an annual meeting of stockholders at our corporate
offices at 6531 NW 18th Court, Plantation, Florida for the following purposes:
1. To elect six directors to serve a one-year term expiring at the Fiscal
Year 2005 Annual Meeting of Stockholders or until his/her successor is
duly elected and qualified;
2. To consider and act upon a proposal to adopt the Company's 2004
Non-Statutory Stock Option Plan;
3. To ratify the Company's Board of Directors' appointment of Margolies,
Fink and Wichrowski, CPA's as independent auditors for the Company for
the fiscal year ending June 30, 2004.
For proposal no. 1, the stockholders elected six incumbent directors with the
voting as follows:
Linda B. Grable FOR 161,458,971 AGAINST 356,033 ABSTAIN 1,896,586
Allan L. Schwartz FOR 161,777,341 AGAINST 37,663 ABSTAIN 1,896,586
Sherman Lazrus FOR 161,468,461 AGAINST 346,543 ABSTAIN 1,896,586
Patrick J. Gorman FOR 161,146,798 AGAINST 668,206 ABSTAIN 1,896,586
Edward Rolquin FOR 161,364,561 AGAINST 450,443 ABSTAIN 1,896,586
Jay S. Bendis FOR 161,493,998 AGAINST 321,006 ABSTAIN 1,896,586
For proposal no. 2, the stockholders voted to adopt the Company's 2004
Non-Statutory Stock Option Plan: The affirmative vote of a majority of the
outstanding shares of the Common Stock present in persons or represented by
Proxy at the Annual Meeting and entitled to vote were required to approve the
adoption of the Stock Option Plan.
FOR 35,168,753 AGAINST 6,580,936 ABSTAIN 820,887
For proposal no. 3, the stockholders voted to ratify the Board of Directors'
action of its appointment of Margolies, Fink and Wichrowski, CPA's as
independent auditors for the Company for the fiscal year ending June 30, 2004
with the following votes:
FOR 162,287,050 AGAINST 757,047 ABSTAIN 667,493
19
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Our Common Stock is traded on the NASDAQ's OTC Bulletin Board market under the
symbol IMDS. There has been trading in our common stock since September 20,
1994. The following table sets forth, for each of the fiscal periods indicated,
the high and low bid prices for the common stock, as reported on the OTC
Bulletin Board. These per share quotations reflect inter-dealer prices in the
over-the-counter market without real mark-up, markdown, or commissions and may
not necessarily represent actual transactions.
QUARTER ENDING HIGH BID LOW BID
FISCAL YEAR 2003
First Quarter $0.43 $0.20
Second Quarter $0.27 $0.19
Third Quarter $0.33 $0.17
Fourth Quarter $0.85 $0.17
FISCAL YEAR 2004
First Quarter $1.80 $0.81
Second Quarter $1.25 $0.84
Third Quarter $1.15 $0.57
Fourth Quarter $0.79 $0.39
FISCAL YEAR 2005
First Quarter (through September 16, 2004) $0.41 $0.27
On September 16, 2004, the closing trade price of the common stock as reported
on the OTC Bulletin Board was $.37. As of such date, there were approximately
2,481 registered holders of record of our common stock.
20
SALE OF UNREGISTERED SECURITIES
Private Placement of Preferred Stock
We have had to rely on the private placement of preferred and common stock to
obtain working capital. In deciding to issue preferred stock pursuant to the
private placements, we took into account the number of common shares authorized
and outstanding, the market price of the common stock at the time of each
preferred sale and the number of common shares the preferred stock would have
been convertible into at the time of the sale. At the time of each private
placement of preferred stock there were enough shares, based on the price of our
common stock at the time of the sale of the preferred to satisfy the preferred
conversion requirements. Although our board of directors tried to negotiate a
floor on the conversion price of each series of preferred stock prior to sale,
it was unable to do so. In order to obtain working capital we will continue to
seek capital through debt or equity financing which may include the issuance of
convertible preferred stock whose rights and preferences are superior to those
of the common stock holders. We have endeavored to negotiate the best
transaction possible taking into account the impact on our shareholders,
dilution, loss of voting power and the possibility of a change-in-control;
however, in order to satisfy our working capital needs, we have been and may
continue to be forced to issue convertible securities and debentures with no
limitations on conversion. In addition, the dividends on the preferred stock
affect the net losses applicable to shareholders. There are also applicable
adjustments as a result of the calculation of the deemed preferred stock
dividends because we have entered into contracts providing for discounts on the
preferred stock when it is converted.
In the event that we issue preferred stock without a limit on the number of
shares that can be issued upon conversion and the price of our common stock
decreases, the percentage of shares outstanding that will be held by preferred
holders upon conversion will increase accordingly. The lower the market price
the greater the number of shares to be issued to the preferred holders, upon
conversion, thus increasing the potential profits to the holders when the price
per share increases and the holders sell the common shares. In addition, the
sale of a substantial amount of preferred stock to relatively few holders could
cause a possible change-in-control. In the event of a voluntary or involuntary
liquidation while the preferred stock is outstanding, the holders will be
entitled to a preference in distribution of our property available for
distribution equal to $10,000 per share. As of the date of this report there are
no outstanding shares of preferred stock.
Series K Preferred
See "Financing/Equity Line of Credit".
21
Private Placement of Common Stock
On January 26, 2000, we entered into a consulting agreement with Anthony
Giambrone, an unaffiliated third party, which provided payment for services
rendered to us over a six-month period with warrants exercisable into 500,000
shares of common stock at a price of $0.93 per share. The term of the warrants
ran concurrent with the term of the consulting agreement. On the date of the
execution of the agreement, the bid-ask range of our common stock was $1.81 -
$2.00. The agreement provided that Mr. Giambrone, an investment banker with 30
years of experience in the financial sector, including fund management and
public relations, would assist us in implementing our short and long range
business plans, including implementing a marketing program, monitoring our hired
advertising and public relations firms, advising us on our stockholders
relations program and raising the awareness of institutional investors regarding
our products and company. Mr. Giambrone sent notice of exercise for all of his
warrants on February 10, 2000 as provided in the consulting agreement. On March
17, 2000 he only tendered partial payment of $100,000 and received 107,527
common shares of stock applicable to such payment. No further payments were
made. The shares paid for were promptly issued and registered. The consulting
agreement and the unpaid warrants expired on July 26, 2000; however, Mr.
Giambrone has sued us for the issuance of 392,473 unrestricted shares of common
stock or alternatively, for the alleged $430,645 value of the expired warrants.
The suit was settled. See "Legal Proceedings".
ISSUANCE OF STOCK FOR SERVICES
We, from time to time, have issued and may continue to issue stock for services
rendered by consultants, all of whom have been unaffiliated.
Since we have generated no significant revenues to date, our ability to obtain
and retain consultants may be dependent on our ability to issue stock for
services. Since July 1, 1996, we have issued an aggregate of 2,306,500 shares of
common stock according to registration statements on Form S-8. The aggregate
fair market value of the shares when issued was $2,437,151. The issuance of
large amounts of our common stock, sometimes at prices well below market price,
for services rendered or to be rendered and the subsequent sale of these shares
may further depress the price of our common stock and dilute the holdings of our
shareholders. In addition, because of the possible dilution to existing
shareholders, the issuance of substantial additional shares may cause a
change-in-control.
FINANCING/EQUITY LINE OF CREDIT
We will require substantial additional funds for working capital, including
operating expenses, clinical testing, regulatory processes and manufacturing and
marketing programs and our continuing product development programs. Our capital
requirements will depend on numerous factors, including the progress of our
product development programs, results of pre-clinical and clinical testing, the
time and cost involved in obtaining regulatory approvals, the cost of filing,
prosecuting, defending and enforcing any patent claims and other intellectual
property rights, competing technological and market developments and changes in
our existing research, licensing and other relationships and the terms of any
new collaborative, licensing and other arrangements that we may establish.
Moreover, our fixed commitments, including salaries and fees for current
employees and consultants, and other contractual agreements are likely to
increase as additional agreements are entered into and additional personnel are
retained.
On July 17, 2000 we sold to Charlton in a private placement 400 shares of our
Series K convertible preferred stock for $4 million. We issued an additional 95
Series K shares to Charlton for $950,000 on November 7, 2000. The total of
$4,950,000 was designed to serve as bridge financing pending draws on the
Charlton private equity line (described below). We paid Spinneret Financial
Systems Ltd. ("Spinneret"), an independent financial consulting firm
unaffiliated with us and, according to Spinneret and Charlton, unaffiliated with
Charlton, $200,000 as a consulting fee for the first tranche of Series K shares
and five Series K shares as a consulting fee for the second tranche. We were
22
obligated to pay a 9% dividend on the Series K convertible preferred in cash or
common stock at our option semi-annually on June 30 and December 31 of each
calendar year or upon the conversion date. Under the Series K Certificate of
Designations, we had the option of redeeming the remaining convertible preferred
(except for the Spinneret shares) solely through the use of the private equity
line by paying cash with the following redemption premiums.
Days from closing 0-120 121-180 180
Redemption price
As a % of Principal 105% 107.5% 110%
In the event that, for whatever reason, we did not redeem the convertible
preferred according to the above schedule, the holder had the right to convert
the convertible preferred into common stock at a per share price equal to the
lower of $1.29 (115% of the closing bid price on the day prior to the initial
issuance) or 87.5% of the average of the three lowest closing bid prices (which
need not be consecutive) of the 20 consecutive trading days prior to the
conversion date. In November 2000, Charlton converted 25 Series K shares plus
accrued dividends into 197,349 restricted shares of common stock. In January
2001, Charlton converted $3,950,000 (395 shares) of Series K convertible
preferred stock into an aggregate of 4,935,412 common shares and Spinneret
converted $50,000 (5 shares) of Series K convertible preferred stock into an
aggregate of 63,996 common shares. On December 12, 2000, we registered 5,720,605
common shares underlying the 500 shares of Series K convertible preferred stock.
The shares registered included only 58,140 shares underlying the Spinneret
Series K preferred so we had to issue 5,856 common shares with a restrictive
legend. Those shares were registered in February 2001. Of the remaining 100
shares of Series K preferred stock, 50 shares were converted into 664,659 shares
of common stock in April 2001 and 50 shares were redeemed for $550,000 using
proceeds from the Charlton private equity line in April 2001.
On August 17, 2000, we entered into a $25 million private equity credit
agreement with Charlton. On November 29, 2000, prior to any draws under the
initial private equity agreement, we terminated that agreement and the initial
agreement was replaced by an Amended Private Equity Credit Agreement dated
November 30, 2000 (the "Private Equity Agreement"). The Private Equity Agreement
committed Charlton to purchase up to $25 million of common stock subject to
certain conditions pursuant to Regulation D over the course of a commitment
period extending 12 months after the effective date of a registration statement
covering the Private Equity Agreement common shares. The timing and amounts of
the purchase by the investor were at our sole discretion. We were required to
draw down a minimum of $10 million from the credit line over the initial
12-month period. If the minimum amount was not sold, Charlton was entitled to
receive a payment equal to 9% of the difference between the $10,000,000 and the
amount drawn by us (the "Shortfall Payment"). The purchase price of the shares
of common stock was set at 91% of the market price. The market price, as defined
in the agreement, was the average of the three lowest closing bid prices of the
common stock over the ten day trading period beginning on the put date and
ending on the trading day prior to the relevant closing date of the particular
tranche. If, subsequent to effectiveness, the registration statement was
suspended at any time, we would be obligated to pay liquidated damages of 1.5%
of the cost of all common stock then held by the investor for each 15-day period
or portion thereof, beginning on the date of the suspension. If such suspension
was cured within the first 15 days, the damages would not apply. The only fee
associated with the private equity financing was a 5% consulting fee payable to
Spinneret. In September 2001 Spinneret proposed to lower the consulting fee to
4% provided that we pay their consulting fee in advance. We reached an agreement
and paid them $250,000 out of proceeds from a put. On December 13, 2000 we
registered 7,089,685 shares of common stock underlying $10 million out of the
$25 million available in the Private Equity Agreement. Because of the decline in
our stock price, we did not have sufficient common shares registered to fulfill
our obligation under the Private Equity Agreement. To satisfy our obligation to
provide registered common shares to cover the $10 million minimum, we registered
9,875,000 additional shares on October 23, 2001. We paid Spinneret an additional
$186,235 in consulting fees relating to the Private Equity Agreement from
January to September 2001.
The New Private Equity Agreement
Because the average bid price of our common stock fell below the contractually
required $.50 during the 15-day period prior to puts and/or put closings from
23
time to time in the period beginning November 15, 2001, Charlton orally agreed
to waive the minimum price requirement. Further, because we drew only $5,825,000
of the $10,000,000 minimum by December 13, 2001, Charlton orally agreed to
extend the commitment period and thereby waived its right to receive a Shortfall
Payment based on our failure to timely draw the $10,000,000 minimum. On May 7,
2002, we and Charlton entered into a written amendment to the Private Equity
Agreement as of November 15, 2001, which (i) reduced the minimum stock price
requirement from $.50 to $.25, (ii) reduced the minimum average daily trading
volume to $50,000, and (iii) extended the commitment period to December 13,
2003. Between November 15, 2001, and April 24, 2002, Charlton accepted two puts
totaling $625,000 and 1,410,240 shares despite the relevant average bid price
having fallen below $.50. From December 14, 2001, to April 24, 2002, Charlton
accepted eight puts totaling $2,600,000 and 5,897,827 shares. Charlton has not
accepted any puts under the prior Private Equity Agreement since April 24, 2002.
Charlton agreed to the waivers sought by us in connection with the prior Private
Equity Agreement because of our good working relationship and the mutually
beneficial nature of the relationship. During the initial one-year commitment
period, we drew only $5,825,000 of the $10,000,000 minimum because we did not
require all of the funds and wanted to avoid unnecessary dilution of our
shareholders and unnecessary sales of our stock, which could have depressed its
market price. Charlton has never rejected any of our puts. From January 25, 2001
to April 9, 2002 we drew $8,425,000 and issued 15,015,479 shares to Charlton
under the prior Private Equity Agreement.
On May 15, 2002, we and Charlton entered into a new private equity agreement,
which replaced the prior Private Equity Agreement (the "New Private Equity
Agreement"). The terms of the New Private Equity Agreement are substantially
equivalent to the terms of the prior agreement, except that (i) the commitment
period is three years from the effective date of a registration statement
covering the New Private Equity Agreement shares, (ii) the minimum amount we
must draw through the end of the commitment period is $2,500,000, (iii) the
minimum stock price requirement has been reduced to $.20, and (iv) the minimum
average trading volume has been reduced to $40,000. The conditions to our
ability to draw under the Charlton private equity line, as described above, may
materially limit the draws available to us.
Since we did not yet have an effective registration statement covering shares to
be sold pursuant to the New Private Equity Agreement, in May 2002, Charlton
loaned us $350,000 in order to partially cover our short-term working capital
needs. This loan was evidenced by a promissory note dated May 29, 2002, due
August 1, 2002, and bearing interest at a rate of 2% per month. The loan was
secured by a pledge of 1,000,000 shares of our common stock, 500,000 each by our
Chief Executive Officer, Linda Grable, and by our Executive Vice President and
Chief Financial Officer, Allan Schwartz, and was personally guaranteed by Ms.
Grable and Mr. Schwartz. Charlton orally agreed to extend the due date of the
note, and we have paid it back in full with proceeds of puts under the New
Private Equity Agreement between July and December 2002.
On May 17, 2002 we filed a registration statement on Form S-2 to register
10,000,000 shares underlying the New Private Equity Agreement, which was
declared effective by the SEC on July 24, 2002. We intend to make sales under
the New Private Equity Agreement from time to time in order to raise working
capital on an "as needed" basis. We may sell additional shares pursuant to the
New Private Equity Agreement through subsequent registration statement(s),
provided that our stock price remains above that agreement's minimum. As of the
date of this report under the New Private Equity Agreement we have drawn down
$2,076,000 and issued 9,989,319 shares of common stock.
The Third Private Equity Credit Agreement
On October 29, 2002, we and Charlton entered into a new "Third Private Equity
Credit Agreement" with which we intend to supplement the prior New Private
Equity Agreement. The terms of the Third Private Equity Credit Agreement are
substantially equivalent to the terms of the prior agreement, except that (i)
the commitment period is three years from the effective date of a registration
statement covering the Third Private Equity Credit Agreement shares, (ii) the
maximum commitment is $15,000,000, (iii) the minimum amount we must draw through
the end of the commitment period is $2,500,000, (iv) the minimum stock price
requirement has been reduced to $.10, and (v) the minimum average trading volume
24
in dollars has been reduced to $20,000. The conditions to our ability to draw
under this private equity line, as described above, may materially limit the
draws available to us.
We intend to make sales under the new Third Private Equity Credit Agreement from
time to time in order to raise working capital on an "as needed" basis. Based on
our current assessment of our financing needs, we intend to draw in excess of
the $2,500,000 minimum but substantially less than the $15,000,000 maximum under
the new Third Private Equity Credit Agreement; however, if those needs change we
may draw up to the $15,000,000 maximum. As of the date of this report under the
Third Private Equity Credit Agreement we have drawn down $7,805,000 and issued
21,756,177 shares of common stock.
The Fourth Private Equity Credit Agreement
On January 9, 2004, we and Charlton entered into a new "Fourth Private Equity
Credit Agreement" which replaces our prior private equity agreements. The terms
of the Fourth Private Equity Credit Agreement are more favorable to us than the
terms of the prior Third Private Equity Credit Agreement. The new, more
favorable terms are: (i) the put option price is 93% of the three lowest closing
bid prices in the ten day trading period beginning on the put date and ending on
the trading day prior to the relevant closing date of the particular tranche,
while the prior Third Private Equity Credit Agreement provided for 91%, ii) the
commitment period is two years from the effective date of a registration
statement covering the Fourth Private Equity Credit Agreement shares, while the
prior Third Private Equity Credit Agreement was for three years, (iii) the
maximum commitment is $15,000,000, (iv) the minimum amount we must draw through
the end of the commitment period is $1,000,000, while the prior Third Private
Equity Credit Agreement minimum amount was $2,500,000, (v) the minimum stock
price requirement is now controlled by us as we have the option of setting a
floor price for each put transaction (the previous minimum stock price in the
Third Private Equity Credit Agreement was fixed at $.10), (vi) there are no fees
associated with the Fourth Private Equity Credit Agreement; the prior private
equity agreements required the payment of a 5% consulting fee, which was
subsequently lowered to 4% by mutual agreement in September 2001, and (vii) the
elimination of the requirement of a minimum average daily trading volume in
dollars. The previous trading volume requirement in the Third Private Equity
Credit Agreement was $20,000. The conditions to our ability to draw under this
private equity line, as described above, may materially limit the draws
available to us.
On January 30, 2004, we filed a registration statement with respect to 5,000,000
shares of our common stock to be issued pursuant to the Fourth Private Equity
Credit Agreement. This registration statement became effective March 4, 2004, at
which time the Third Private Equity Credit Agreement was terminated and we began
drawing under the Fourth Private Equity Credit Agreement. On June 21, 2004 we
filed a registration statement with respect to 9,800,000 shares of our common
stock to be issued pursuant to the Fourth Private Equity Credit Agreement. This
registration statement became effective June 29, 2004. We intend to make sales
under the new Fourth Private Equity Credit Agreement from time to time in order
to raise working capital on an "as needed" basis. Based on our current
assessment of our financing needs, we intend to draw in excess of the $1,000,000
minimum but substantially less than the $15,000,000 maximum under the new Fourth
Private Equity Credit Agreement; however, if those needs change we may draw up
to the $15,000,000 maximum. As of the date of this report, under the Fourth
Private Equity Credit Agreement we have drawn down $3,100,000 and issued
8,732,735 shares of common stock.
As of the date of this report, since January 2001, we have drawn an aggregate of
$23,606,000 in gross proceeds from our equity credit lines with Charlton and
have issued 58,044,633 shares as a result of those draws.
There can be no assurance that adequate financing will be available when needed,
or if available, will be available on acceptable terms. Insufficient funds may
prevent us from implementing our business plan or may require us to delay, scale
back, or eliminate certain of our research and product development programs or
to license to third parties rights to commercialize products or technologies
that we would otherwise seek to develop ourselves. If we utilize the new Fourth
Private Equity Credit Agreement or additional funds are raised by issuing equity
securities, especially convertible preferred stock and convertible debentures,
dilution to existing shareholders will result and future investors may be
granted rights superior to those of existing shareholders. Moreover, substantial
dilution may result in a change in our control.
25
Item 6. Selected Financial Data
The following selected financial data should be read in conjunction with
"Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations" and "Item 8. Financial Statements and Supplementary Data."
Year Ended Year Ended Year Ended Year Ended Year Ended
June 30, 2004 June 30, 2003 June 30, 2002 June 30, 2001 June 30, 2000
--------------- -------------- --------------- -------------- ---------------
Sales $ 733,211 $ 184,085 $ - $ - $ -
Cost of Sales 284,682 79,189 - - -
----------- ---------- ---------- ---------- -----------
Gross Profit 448,529 104,896 - - -
----------- ---------- ---------- ---------- -----------
Operating Expenses 8,160,982 7,309,446 6,967,256 7,382,237 7,060,864
---------- ---------- ---------- ---------- ---------
Operating Loss (7,712,453) (7,204,550) (6,967,256) (7,382,237) (7,060,864)
Gain (Loss) on sale of fixed assets (5,669) 11,254 - - -
Interest income 9,305 689 1,031 53,688 5,587
Interest expense (694,142) (987,917) (711,335) (1,265,280) (967,652)
--------- --------- --------- ----------- ---------
Net Loss (8,402,959) (8,180,524) (7,677,560) (8,593,829) (8,022,929)
Dividends on cumulative Pfd. stock:
From discount at issuance - - - (708,130) -
Earned - - - (422,401) (145,950)
----------- ------------- ------------- ----------- ---------
Net loss applicable to
common shareholders $ (8,402,959) $ (8,180,524) $ (7,677,560) $ (9,724,360) $ (8,168,879)
============= ============= ============= ============= =============
Net Loss per common share $ (0.05) $ (0.06) $ (0.06) $ (0.09) $ (0.10)
======== ======== ========= ======== ========
Weighted avg. no. of common shares,
Basic & Diluted 167,982,750 145,150,783 125,746,307 111,651,970 79,222,066
============ ============ ============ ============ ==========
Cash and Cash Equivalents $ 554,354 $ 1,361,507 $ 194,894 $ 207,266 $ 159,126
Total Assets 6,113,631 6,373,717 6,346,021 6,352,354 5,914,430
Deficit accumulated during
the development stage (77,247,281) (68,844,322) (60,663,798) (52,986,238) (43,261,878)
Stockholders' Equity 3,586,211 4,121,819 2,462,009 3,749,014 1,126,051
26
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The information set forth below should be read in conjunction with our Financial
Statements and the Notes included elsewhere in this Report.
RESULTS OF OPERATIONS
Twelve Months Ended June 30, 2004 and June 30, 2003
Revenues during the year ended June 30, 2004, were $733,211 representing an
increase of $549,126 or 298% from $184,085 during the year ended June 30, 2003.
The Cost of Sales during the year ended June 30, 2004, was $284,682 representing
an increase of $205,493 or 259% from $79,189 during the year ended June 30,
2003. The increase is a result of selling four CTLM(R) Systems compared to one
CTLM(R) System during the year ended June 30, 2003.
General and administrative expenses in the aggregate during the 12 months ended
June 30, 2004 were $4,288,625 representing a decrease of $760,205 or 15% from
$5,048,830 during the 12 months ended June 30, 2003. General and administrative
expenses in the aggregate are derived from deducting compensation and related
benefits, research and development expenses, depreciation and amortization and
adding interest income to the net loss as presented on the Statement of
Operations. The decrease in general and administrative expenses was due
primarily to a reduction in inventory write-downs and the cost associated with a
one-time settlement. Selling, general and administrative expenses ("SG&A") in
the aggregate during the year ended June 30, 2004, were $643,892 representing an
increase of $218,136 or 51% from $425,756 during the year ended June 30, 2003.
The increase in SG&A was primarily due to costs associated with commercializing
the CTLM(R) in the international market.
Compensation and related benefits during the year ended June 30, 2004, were
$3,836,289 representing an increase of $944,986 or 33% from $2,891,303 during
the year ended June 30, 2003. The increase in compensation is primarily due to
the recording of a stock bonus given to the employees during the third quarter
and the accrual of the payment obligation to Linda Grable pursuant to her
retirement agreement. See Item 10. "Executive Compensation".
Consulting expenses during the year ended June 30, 2004, were $402,156
representing an increase of $24,884 or 7% from $377,272 during the year ended
June 30, 2003. The increase was due primarily to increased use of consultants
during the year ended June 30, 2004.
Inventory Valuation Adjustments during the year ended June 30, 2004, were
$586,510 representing a decrease of $323,934 or 36% from $910,444 during the
year ended June 30, 2003. The decrease is due to a reduction in write-downs of
obsolete lasers and other components that are no longer used in the
manufacturing of the CTLM(R).
Professional expenses during the year ended June 30, 2004, were $430,813
representing a decrease of $81,966, or 16% from $512,779 during the year ended
June 30, 2003. The decrease was due primarily to reduced litigation expenses as
a result of the settlement of lawsuits during the year ended June 30, 2004. See
Item 3. "Legal Proceedings".
Travel and subsistence costs during the year ended June 30, 2004, were $324,239
representing an increase of $85,917 or 36% from $238,322 during the year ended
June 30, 2003. This increase was primarily due to additional international
travel costs associated with trade shows and developing our distributor network.
Interest expense during the year ended June 30, 2004, was $694,142 representing
a decrease of $293,775, or 30% from $987,917 during the year ended June 30,
2003. The decrease was primarily due to a reduction in the use of our Private
Equity Credit lines resulting in a decrease in recording of the 9% discount on
the Third Private Equity Credit Agreement and the 7% discount on the Fourth
Private Equity Credit Agreement.
27
Twelve Months Ended June 30, 2003 and June 30, 2002
Revenues during the year ended June 30, 2003, were $184,085 as a result of our
first sale of a CTLM(R) System. There were no revenues in the year ended June
30, 2002.
General and administrative expenses in the aggregate during the 12 months ended
June 30, 2003 were $5,048,830 representing an increase of $507,246 or 11% from
$4,541,584 during the 12 months ended June 30, 2002. General and administrative
expenses in the aggregate are derived from deducting compensation and related
benefits, research and development expenses, depreciation and amortization and
adding interest income to the net loss as presented on the Statement of
Operations. Selling, general and administrative expenses ("SG&A") in the
aggregate during the year ended June 30, 2003, were $425,756 representing an
increase of $2,658 or 1% from $423,098 during the year ended June 30, 2002.
Compensation and related benefits during the year ended June 30, 2003, were
$2,891,303 representing an increase of $3,296 or .01% from $2,888,007 during the
year ended June 30, 2002. The increase in compensation is due to normal
fluctuations in the course of business.
Consulting expenses during the year ended June 30, 2003, were $377,272
representing a decrease of $2,777 or 1% from $380,049 during the year ended June
30, 2002. The decrease was due primarily to reduced use of consultants during
the year ended June 30, 2003.
Inventory Valuation Adjustments during the year ended June 30, 2003, were
$910,444 representing an increase of $363,502 or 66% from $547,942 during the
year ended June 30, 2002. The increase is due to the write-down of obsolete
lasers and other components that are no longer used in the manufacturing of the
CTLM(R).
Professional expenses during the year ended June 30, 2003, were $512,779
representing an increase of $107,543, or 27% from $405,236 during the year ended
June 30, 2002. The increase was due primarily to additional litigation expenses.
See Item 3. "Legal Proceedings".
Travel and subsistence costs during the year ended June 30, 2003, were $238,322
representing a decrease of $314,553 or 57% from $552,875 during the year ended
June 30, 2002. This decrease was primarily due to less travel and housing
expenses for our clinical application specialists at our various clinical sites
in the United States and Mexico since the clinical studies were completed.
Interest expense during the year ended June 30, 2003, was $987,917 representing
a increase of $276,582, or 39% from $711,335 during the year ended June 30,
2002. The increase was primarily due to the recording of the 9% discount on our
equity credit line as interest and interest associated with our mortgage.
BALANCE SHEET DATA
We have financed our operations since inception by the issuance of equity
securities with aggregate net proceeds of approximately $46,665,705 and through
loan transactions in the aggregate net amount of $2,595,029. Furthermore, we
issued equity securities for the conversion of all outstanding convertible
debentures in the aggregate net amount of $3,240,000.
Our combined cash and cash equivalents totaled $554,354 at June 30, 2004. We do
not expect to generate a positive internal cash flow for at least the next 12
months due to the expected costs of commercializing our initial product, the
CTLM(R) and the time required for homologations from certain countries.
Our inventory totaled $2,357,864 at June 30, 2004 and $2,012,275 at June 30,
2003. This increase is primarily due to the purchase of components for the
manufacture of CTLM(R) Systems after giving affect to the valuation adjustment
of $586,510 recorded during the year. Our property and equipment, net, totaled
$2,301,095 at June 30, 2004 and $2,129,338 at June 30, 2003. This increase is
due to the purchase of a new trade show booth for the Radiological Society of
North America's ("RSNA") annual conference during the year ended June 30, 2004.
The trade-show booth will be maintained in storage by our exhibit company and
28
will be used annually at future RSNA conferences.
LIQUIDITY AND CAPITAL RESOURCES
We are currently a development stage company and our continued existence is
dependent upon our ability to resolve our liquidity problems, principally by
obtaining additional debt and/or equity financing. We have yet to generate a
positive internal cash flow, and until significant sales of our product occur,
we are mostly dependent upon debt and equity funding from outside investors. In
the event that we are unable to obtain debt or equity financing or are unable to
obtain such financing on terms and conditions acceptable to us, we may have to
cease or severely curtail our operations. This would materially impact our
ability to continue as a going concern.
We have financed our operating and research and development activities through
several Regulation S and Regulation D private placement transactions. Net cash
used for operating and product development expenses during fiscal 2004 was
$6,834,193 primarily due to our purchase of additional materials to continue the
manufacture of CTLM(R) Systems in anticipation of receiving orders from our
distributors in certain countries where permitted by law compared to net cash
used by operating activities and product development of the CTLM(R) and related
software development of $5,529,017 in fiscal 2003. At June 30, 2004, we had
working capital of $478,872 compared to working capital of $1,152,061 at June
30, 2003.
If and when we receive a PMA from the FDA, which cannot be assured, we believe
that, based on our current business plan approximately $5 million will be
required above and beyond normal operating expenses over the next year to
complete all necessary stages in order for us to market the CTLM(R) in the
United States and foreign countries. The $5 million will be used to purchase
inventory, sub-contracted components, tooling, manufacturing templates and
non-recurring engineering costs associated with preparation for full capacity
manufacturing and assembly and marketing, advertising and promotion, training,
ongoing regulatory expenses, and other costs associated with product launch. If
the need should arise for capital in excess of the Fourth Private Equity Credit
Agreement or if the Fourth Private Equity Credit Agreement is unavailable due to
the price of our common stock, our inability to comply with the registration
provision, Charlton's breach of its agreement, or any other reason, we may be
forced to seek additional funding through public or private financing,
collaboration, licensing and other arrangements with corporate partners. See
"Sale of Unregistered Securities-Financing/Equity Line of Credit."
During fiscal 2004, we were able to raise a total of $5,850,000 less expenses
through Regulation D transactions. We do not expect to generate a positive
internal cash flow for at least the next 12 months due to the expected costs of
commercializing our initial product, the CTLM(R) and the expense of our
continuing product development program. We will require additional funds for
operating expenses, developing our CD-ROM clinical atlas, FDA regulatory
processes, manufacturing and marketing programs and to continue our product
development program. Accordingly, we plan to utilize the Fourth Private Equity
Credit Agreement to raise the funds required prior to the end of fiscal year
2005 in order to continue operations. In the event that we are unable to utilize
the Fourth Private Equity Credit Agreement, we would have to raise the
additional funds required by either equity or debt financing, including entering
into a transaction(s) to privately place equity, either common or preferred
stock, or debt securities, or combinations of both; or by placing equity into
the public market through an underwritten secondary offering. If additional
funds are raised by issuing equity securities, dilution to existing stockholders
will result, and future investors may be granted rights superior to those of
existing stockholders.
No assurances, however, can be given that the necessary future financing will be
available or, if available, that it will be obtained on terms satisfactory to
us. Our ability to effectuate our business plan and continue operations is
dependent on our ability to raise capital, structure a profitable business, and
generate revenues. If our working capital were insufficient to fund our
operations, we would have to explore additional sources of financing.
Capital expenditures for the fiscal 2004 were $334,264 as compared to $43,314
for fiscal 2003. These expenditures were a direct result of purchases of
computer and other equipment, office, warehouse and manufacturing fixtures,
trade show equipment, computer software, laboratory equipment, and other fixed
assets. We anticipate that our capital expenditures for fiscal 2005 will be
approximately $75,000.
29
During the year ending June 30, 2004, there were no changes in our existing debt
agreements and we had no outstanding bank loans as of June 30, 2004. Our annual
fixed commitments, including salaries and fees for current employees and
consultants, rent, payments under license agreements and other contractual
commitments are approximately $7.4 million, as of the date of this report and
are likely to increase as additional agreements are entered into and additional
personnel are retained. We will require substantial additional funds for our
product development programs, operating expenses, regulatory processes, and
manufacturing and marketing programs, which are presently estimated at an
aggregate of approximately $620,000 per month. The foregoing projections are
subject to many conditions most of which are beyond our control. Our future
capital requirements will depend on many factors, including the following: the
progress of our product development projects, the time and cost involved in
obtaining regulatory approvals; the cost of filing, prosecuting, defending and
enforcing any patent claims and other intellectual property rights; competing
technological and market developments; changes and developments in our existing
collaborative, licensing and other relationships and the terms of any new
collaborative, licensing and other arrangements that we may establish; and the
development of commercialization activities and arrangements. We do not expect
to generate a positive internal cash flow for at least 12 months as substantial
costs and expenses continue due principally to the commercialization of the
CTLM(R), activities related to our FDA PMA process, and advanced product
development activities. We intend to use the Fourth Private Equity Credit
Agreement as our principal source of additional capital. We plan to continue our
policy of investing excess funds, if any, in a High Performance Money Market
account at Wachovia Bank N.A.
This report contains "forward-looking statements" within the meaning of the
federal securities laws. These forward-looking statements include, among others,
statements relating to our business strategy, which is based upon our
interpretation and analysis of trends in the healthcare treatment industry,
especially those related to the diagnosis and treatment of breast cancer, and
upon management's ability to successfully develop and commercialize its
principal product, the CTLM(R). This strategy assumes that the CTLM(R) will
prove superior, from both a medical and an economic perspective, to alternative
techniques for diagnosing breast cancer. This strategy also assumes that we will
be able to promptly obtain from the FDA and the relevant foreign governmental
agencies the approvals which are needed to market the CTLM(R) in the United
States and key foreign markets and that we will be able to raise the capital
necessary to finance the completion of the development and commercialization of
the CTLM(R). Many known and unknown risks, uncertainties and other factors,
including, but not limited to, technological changes and competition from new
diagnostic equipment and techniques, changes in general economic conditions,
healthcare reform initiatives, legal claims, regulatory changes and risk factors
detailed from time to time in our Securities and Exchange Commission filings may
cause these assumptions to prove incorrect and may cause our actual results,
performance or achievements to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements.
CERTAIN FACTORS THAT MAY AFFECT FUTURE RESULTS
Risks associated with our business
We must comply with extensive government regulation and have no assurance of
regulatory approvals or clearances, which could cause us to cut back or cease
operations.
Our delay or inability to obtain any necessary United States, state or foreign
regulatory clearances or approvals for our products would prevent us from
selling the CTLM(R) system in the U.S. and other countries.
In the United States, the CTLM(R) is regulated as a medical device and is
subject to the FDA's pre-market clearance or approval requirements. To obtain
FDA approval of an application for pre-market approval of a diagnostic tool such
as the CTLM(R), the pre-market approval application must demonstrate based on
statistically significant results from extensive clinical studies, that the
subject device is safe and has clinical utility, meaning that as a diagnostic
tool it provides information that measurably contributes to a diagnosis of a
30
disease or condition. We are now relying on outside FDA consultants to assist us
in obtaining the PMA from the FDA.
In addition, sales of medical devices outside the United States may be subject
to international regulatory requirements that vary from country to country. The
time required to gain approval for international sales may be longer or shorter
than required for FDA approval and the requirements may differ. For example, in
order to sell our products within the European Economic Area ("EEA"), companies
are required to achieve compliance with the requirements of the medical devices
directive and affix a "CE" marking on their products to attest compliance. In
Europe, we have obtained the certifications in January 2001 necessary to enable
the CE mark to be affixed to our products in order to conduct sales in member
countries of the EEA, subject to compliance with additional regulations imposed
by individual countries.
Regulatory approvals, if granted, may include significant limitations on the
indicated uses for which the CTLM(R) may be marketed. In addition, to obtain
these approvals, the FDA and certain foreign regulatory authorities may impose
numerous other requirements which medical device manufacturers must comply with.
FDA enforcement policy strictly prohibits the marketing of approved medical
devices for unapproved uses. Product approvals could be withdrawn for failure to
comply with regulatory standards or the occurrence of unforeseen problems
following initial marketing.
The third-party manufacturers upon which we will depend to manufacture our
products are required to adhere to applicable FDA regulations regarding quality
systems regulations commonly referred to as QSRs, which include testing, control
and documentation requirements. Failure to comply with applicable regulatory
requirements, including marketing and promoting products for unapproved use,
could result in warning letters, fines, injunctions, civil penalties, recall or
seizure of products, total or partial suspension of production, refusal of the
government to grant pre-market clearance or approval for devices, withdrawal of
approvals and criminal prosecution. Changes in existing regulations or adoption
of new government regulations or polices could prevent or delay regulatory
approval of our products. Material changes to medical devices also are subject
to FDA review and clearance or approval.
There can be no assurance that we will be able to obtain or maintain the
following:
o FDA approval of a pre-market approval application for the CTLM(R),
o foreign marketing clearances for the CTLM(R) or regulatory approvals or
clearances for other products that we may develop, on a timely basis, or at
all,
o timely receipt of approvals or clearances,
o continued approval or clearance of previously obtained approvals and
clearances, and
o compliance with existing or future regulatory requirements.
If we do not obtain or maintain any of the above-mentioned standards, there may
be material adverse effects on our business, financial condition and results of
operations.
We may not be able to develop other products that are currently in the early
stages of development due to our need for additional capital.
Due to our need for additional capital, our proposed products other than the
CTLM(R) device are at early stages of development. There can be no assurance
that any of our proposed products, including the CTLM(R), will:
o be found to be safe and effective,
o meet applicable regulatory standards or receive necessary regulatory
clearance,
o be safe and effective, developed into commercial products, manufactured on
a large scale or be economical to market, or
o achieve or sustain market acceptance.
31
Therefore, there is substantial risk that our product development and
commercialization efforts will prove to be unsuccessful.
We depend on market acceptance to sell our products, which have not been proven,
and a lack of acceptance of the CTLM(R) could cause our business to fail.
There can be no assurance that physicians or the medical community in general
will accept and utilize the CTLM(R) or any other products that we develop. The
extent and rate the CTLM(R) achieves market acceptance and penetration will
depend on many variables, including, but not limited to the establishment and
demonstration in the medical community of the clinical safety, efficacy and
cost-effectiveness of the CTLM(R) and the advantages of the CTLM(R) over
existing technology and cancer detection methods.
There can be no assurance that the medical community and third-party payers will
accept our unique technology. Similar risks will confront any other products we
develop in the future. Failure of our products to gain market acceptance would
hinder our sales efforts resulting in a loss of revenues and potential profit
and, ultimately, could cause our business to fail. It would further prevent us
from developing new products.
We depend upon suppliers with whom we have no contracts, which suppliers could
cause production disruption if they terminated or changed their relationships
with us.
We believe that there are a number of suppliers for most of the components and
subassemblies required for the CTLM(R); however, components for our laser system
are provided by one supplier. Although these components are provided by a
limited number of other suppliers, we believe our laser supplier and their
products are the most reliable. We have no agreement with our laser supplier and
purchase the laser components on an as-needed basis. For certain services and
components, we currently rely on single suppliers. If we encounter delays or
difficulties with our third-party suppliers in producing, packaging, or
distributing components of the CTLM(R) device, market introduction and
subsequent sales would be adversely affected.
We have limited experience in sales, marketing and distribution, which could
negatively impact our ability to enter into collaborative arrangements or other
third party relationships which are important to the successful development and
commercialization of our products and potential profitability.
We have limited internal marketing and sales resources and personnel. There can
be no assurance that we will be able to establish sales and distribution
capabilities or that we will be successful in gaining market acceptance for any
products we may develop. There can be no assurance that we will be able to
recruit and retain skilled sales, marketing, service or support personnel, that
agreements with distributors will be available on terms commercially reasonable
to us, or at all, or that our marketing and sales efforts will be successful.
There can be no assurance that we will be able to further develop our
distribution network on acceptable terms, if at all, or that any of our proposed
marketing schedules or plans can or will be met.
We depend on qualified personnel to run and develop our specialized business who
we may be unable to retain or hire.
Due to the specialized scientific nature of our business, we are highly
dependent upon our ability to attract and retain qualified scientific, technical
and managerial personnel. We have entered into employment agreements with some
of our executive officers. The loss of the services of existing personnel, as
well as the failure to recruit key scientific, technical and managerial
personnel in a timely manner would be detrimental to our research and
development programs and could have an adverse impact upon our business affairs
and finances. Our anticipated growth and expansion into areas and activities
requiring additional expertise, such as marketing, will require the addition of
new management personnel. Competition for qualified personnel is intense and
there can be no assurance that we will be able to continue to attract and retain
qualified personnel necessary for the development of our business.
32
We have a limited manufacturing history that could cause delays in the
production and shipment of our product.
We will have to expand our CTLM(R) manufacturing and assembly capabilities and
contract for the manufacture of the CTLM(R) components in volumes that will be
necessary for us to achieve significant commercial sales in the event we begin
substantial foreign sales and/or obtain regulatory approval to market our
products in the United States. We have limited experience in the manufacture of
medical products for clinical trials or commercial purposes. Should we continue
to manufacture our products at our facility, our manufacturing facilities would
continue to be subject to the full range of the FDA's current quality system
regulations. In addition, there can be no assurance that our manufacturing
efforts will be successful or cost-effective.
We depend on third parties who may not be in compliance with the FDA's quality
system regulations which may delay the approval or decrease the sales of the
CTLM(R).
We have used and do use third parties to manufacture and deliver the components
of the CTLM(R) and intend to continue to use third parties to manufacture and
deliver these components and other products we may develop. There can be no
assurance that the third-party manufacturers we depend on for the manufacturing
of CTLM(R) components will be in compliance with the quality system regulations
(QSR) at the time of the pre-approval inspection or will maintain compliance
afterwards. This failure could significantly delay FDA approval of the
pre-market approval application for the CTLM(R) device.
We will rely on international sales and may be subject to risks associated with
international commerce.
We have commenced international sales efforts for the CTLM(R) in Europe, Asia
and the Middle East. Until we receive pre-market approval from the FDA to market
the CTLM(R) in the United States, our revenues, if any, will be derived from
sales to international distributors. A significant portion of our revenues may
be subject to the risks associated with international sales, including:
o economical and political instability,
o shipping delays,
o fluctuation of foreign currency exchange rates,
o foreign regulatory requirements, and
o various trade restrictions, all of which could have a significant impact on
our ability to deliver products on a timely basis.
Significant increases in the level of customs duties, export quotas or other
trade restrictions could have a material adverse effect on our business,
financial condition and results of operations. The regulation of medical devices
in foreign countries continues to develop, and there can be no assurance that
new laws or regulations will not have an adverse effect on us. In order to
minimize the risk of doing business with distributors in countries which are
having difficult financial times, our international distribution agreements all
require payment via an irrevocable letter of credit drawn on a United States
bank prior to shipment of the CTLM(R).
Our business has the risk of product liability claims and preferred insurance
coverage may be expensive or unavailable which may expose us to material
liabilities.
Our business exposes us to potential product liability risks, which are inherent
in the testing, manufacturing, and marketing of cancer detection products.
Significant litigation, not involving us, has occurred in the past based on the
allegations of false negative diagnoses of cancer. There can be no assurance
that we will not be subjected to claims and potential liability. Although the
FDA does not require product liability insurance with regard to clinical
investigations, we obtained and presently carry product liability insurance in
the amount of $3,000,000. While we plan to maintain insurance against product
liability and defense costs, there can be no assurance that claims against us
arising with respect to our products will be successfully defended or that the
insurance to be carried by us will be sufficient to cover liabilities arising
33
from any claims. A successful claim against us in excess of our insurance
coverage could have a material adverse effect on us. Furthermore, there can be
no assurance that we will be able to continue to obtain or maintain product
liability insurance on acceptable terms.
Risks associated with our industry
Lack of third-party reimbursement may have a negative impact on the sales of our
products, which would negatively impact our revenues.
In the United States, suppliers of health care products and services are greatly
affected by Medicare, Medicaid and other government insurance programs, as well
as by private insurance reimbursement programs. Third-party payers (Medicare,
Medicaid, private health insurance companies, and other organizations) may
affect the pricing or relative attractiveness of our products by regulating the
level of reimbursement provided by these payers to the physicians, clinics and
imaging centers utilizing the CTLM(R) or any other products that we may develop,
by refusing reimbursement. The level of reimbursement, if any, may impact the
market acceptance and pricing of our products, including the CTLM(R). Failure to
obtain favorable rates of third-party reimbursement could discourage the
purchase and use of the CTLM(R) as a diagnostic device.
In international markets, reimbursement by private third-party medical insurance
providers, including governmental insurers and independent providers varies from
country to country. In addition, such third-party medical insurance providers
may require additional information or clinical data prior to providing
reimbursement for a product. In some countries, our ability to achieve
significant market penetration may depend upon the availability of third-party
governmental reimbursement. Revenues and profitability of medical device
companies may be affected by the continuing efforts of governmental and third
party payers to contain or reduce the cost of health care through various means.
There are uncertainties regarding healthcare reform including possible
legislation, whereby our customers may not receive medical reimbursement for the
use of our product on their patients, which may cause our customers to use other
services and products.
Several states and the United States government are investigating a variety of
alternatives to reform the health care delivery system. These reform efforts
include proposals to limit and further reduce and control health care spending
on health care items and services, limit coverage for new technology and limit
or control the price health care providers and drug and device manufacturers may
charge for their services and products, respectively. If adopted and
implemented, these reforms could cause our healthcare providers to limit or not
use the CTLM(R) systems.
Competition in the medical imaging industry may result in competing products,
superior marketing and lower revenues and profits for us.
The market in which we intend to participate is highly competitive. Many of the
companies in the cancer diagnostic and screening markets have substantially
greater technological, financial, research and development, manufacturing, human
and marketing resources and experience than we do. These companies may succeed
in developing, manufacturing and marketing products that are more effective or
less costly than our products. The competition for developing a commercial
device utilizing computed tomography techniques and laser technology is
difficult to ascertain given the proprietary nature of the technology.
34
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As of the date of this report, we believe that we do not have any material
quantitative and qualitative market risks.
ITEM 8. FINANCIAL STATEMENTS
Index to Financial Statements
Page
----
Report of Independent Certified Public Accountants F-1
Financial Statements
Balance Sheets F-3
Statements of Operations F-4
Statements of Stockholders' Equity F-5-12
Statements of Cash Flows F-14-15
Notes to Financial Statements F-16-62
35
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Imaging Diagnostic Systems, Inc.
We have audited the accompanying balance sheets of Imaging Diagnostic Systems,
Inc. (a Development Stage Company) as of June 30, 2004 and 2003, and the related
statements of operations, stockholders' equity and cash flows for the years
ended June 30, 2004, 2003 and 2002 and for the period December 10, 1993 (date of
inception) to June 30, 2004. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free from material misstatement. An audit includes examining, on
a test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Imaging Diagnostic Systems,
Inc. (a Development Stage Company), as of June 30, 2004 and 2003 and the results
of its operations and its cash flows for the years ended June 30, 2004, 2003 and
2002 and for the period December 10, 1993 (date of inception) to June 30, 2004
in conformity with United States generally accepted accounting principles.
The Company is in the development stage as of June 30, 2004 and to date has had
no significant operations. Recovery of the Company's assets is dependent on
future events, the outcome of which is indeterminable. In addition, successful
completion of the Company's development program and its transition, ultimately,
to attaining profitable operations is dependent upon obtaining adequate
financing to fulfill its development activities and achieving a level of sales
adequate to support the Company's cost structure.
F-1
The accompanying financial statements have been prepared assuming the Company
will continue as a going concern. The Company has suffered recurring losses and
has yet to generate an internal cash flow that raises substantial doubt about
its ability to continue as a going concern. Management's plans in regard to
these matters are described in Note 4. The financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
/s/
Margolies, Fink and Wichrowski
Certified Public Accountants
Pompano Beach, Florida
August 23, 2004
F-2
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Balance Sheets
June 30, 2004 and 2003
2004 2003
------------ ------------
Current Assets:
Cash and cash equivalents $ 554,354 $ 1,361,507
Accounts Receivable 28,925 --
Loans receivable - employees 570 1,455
Inventory 2,357,864 2,012,275
Prepaid expenses 64,579 28,722
------------ ------------
Total Current Assets 3,006,292 3,403,959
------------ ------------
Property and Equipment, net 2,301,095 2,129,338
Other Assets 806,244 840,420
------------ ------------
$ 6,113,631 $ 6,373,717
============ ============
Liabilities and Stockholders' Equity
Current Liabilities:
Accounts Payable and accrued expenses $ 1,172,527 $ 937,005
Customer Deposits 40,000 --
Short term debt 300,407 300,407
Other current liabilities 1,014,486 1,014,486
------------ ------------
Total Current Liabilities 2,527,420 2,251,898
------------ ------------
Stockholders Equity:
Common Stock, no par value; authorized 200,000,000 shares,
issued 173,327,412 and 162,994,039 shares, respectively 79,235,712 71,368,361
Additional paid-in capital 1,597,780 1,597,780
Deficit accumulated during the development stage (77,247,281) (68,844,322)
------------ ------------
Total stockholders' equity 3,586,211 4,121,819
------------ ------------
$ 6,113,631 $ 6,373,717
============ ============
The accompanying notes are an integral part of these condensed financial
statements.
F-3
IMAGING DIAGNOSTIC SYSTEMS, INC.
A Developmental Stage Company
Statement of Operations
From Inception
(December 10,
Year Ended Year Ended Year Ended 1993) to
June 30, 2004 June 30, 2003 June 30, 2002 June 30, 2004
------------- -------------- ------------- ---------------
Sales $ 733,211 $ 184,085 $ -- $ 917,296
Cost of Sales 284,682 79,189 -- 363,871
------------- ------------- ------------- -------------
Gross Profit 448,529 104,896 -- 553,425
------------- ------------- ------------- -------------
Operating Expenses:
Compensation and related benefits:
Administrative and engineering $ 3,461,852 $ 1,782,083 $ 1,761,684 $ 20,592,528
Research and development 374,437 1,109,220 1,126,323 7,847,433
Research and development expenses 111,635 751 2,129 3,107,985
Selling, general and administrative 643,892 425,756 423,098 3,697,145
Inventory valuation adjustments 586,510 910,444 547,942 3,235,001
Depreciation and amortization 175,715 240,329 246,871 2,233,569
Amortization of deferred compensation -- -- -- 4,064,250
Other operating expenses (Note 11) 2,806,941 2,840,863 2,859,209 21,051,891
------------- ------------- ------------- -------------
8,160,982 7,309,446 6,967,256 65,829,802
------------- ------------- ------------- -------------
Operating Loss (7,712,453) (7,204,550) (6,967,256) (65,276,377)
Gain (Loss) on sale of fixed assets (5,669) 11,254 -- 5,585
Interest income 9,305 689 1,031 268,837
Interest expense (694,142) (987,917) (711,335) (5,397,566)
------------- ------------- ------------- -------------
Net Loss (8,402,959) (8,180,524) (7,677,560) (70,399,521)
Dividends on cumulative Pfd. stock:
From discount at issuance -- -- -- (5,402,713)
Earned -- -- -- (1,445,047)
------------- ------------- ------------- -------------
Net loss applicable to
common shareholders $ (8,402,959) $ (8,180,524) $ (7,677,560) $ (77,247,281)
============= ============== ============== =============
Net Loss per common share:
Net loss per common share $ (0.05) $ (0.06) $ (0.06) $ (1.06)
============== ============== ============== ==============
Weighted avg. no. of common shares
Basic & Diluted: 167,982,750 145,150,783 125,746,307 72,732,317
============= ============= ============= =============
See accompanying notes to the financial statements.
F-4
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ---------- ------------- ---------- ------------
Balance at December 10, 1993 (date of inception) 0 $- 0 $ -- $ --
Issuance of common stock, restated for reverse
stock split -- -- 510,000 50,000 --
Acquisition of public shell -- -- 178,752 --
Net issuance of additional shares of stock -- -- 15,342,520 16,451
Common stock sold -- -- 36,500 36,500
Net loss -- -- --
----------- --- ----------- ----------- -----------
Balance at June 30, 1994 -- -- 16,067,772 102,951 --
Common stock sold -- -- 1,980,791 1,566,595 --
Common stock issued in exchange for services -- -- 115,650 102,942 --
Common stock issued with employment agreements -- -- 75,000 78,750 --
Common stock issued for compensation -- -- 377,500 151,000 --
Stock options granted -- -- -- -- 622,500
Amortization of deferred compentsation -- -- -- -- --
Forgiveness of officers' compensation -- -- -- -- 50,333
Net loss -- -- -- -- --
----------- --- ----------- ----------- -----------
Balance at June 30, 1995 -- -- 18,616,713 2,002,238 672,833
----------- --- ----------- ----------- -----------
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
------------- ------------ -------------- -------------
Balance at December 10, 1993 (date of inception) $ -- $ -- $ -- $ --
Issuance of common stock, restated for reverse
stock split -- -- -- 50,000
Acquisition of public shell -- -- -- --
Net issuance of additional shares of stock -- -- -- 16,451
Common stock sold -- -- -- 36,500
Net loss -- (66,951) -- (66,951)
----------- ----------- ----------- -----------
Balance at June 30, 1994 (66,951) -- -- 36,000
Common stock sold -- (523,118) -- 1,043,477
Common stock issued in exchange for services -- -- -- 102,942
Common stock issued with employment agreements -- -- -- 78,750
Common stock issued for compensation -- -- -- 151,000
Stock options granted -- -- (622,500) --
Amortization of deferred compentsation -- -- 114,375 114,375
Forgiveness of officers' compensation -- -- -- 50,333
Net loss (1,086,436) -- -- (1,086,436)
----------- ----------- ----------- -----------
Balance at June 30, 1995 (1,153,387) (523,118) (508,125) 490,441
----------- ----------- ----------- -----------
See accompanying notes to the financial statements.
F-5
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
-----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- --------------- --------------- -----------
Balance at June 30, 1995 -- -- 18,616,713 2,002,238 672,833
----------- ----------- ----------- ----------- -----------
Preferred stock sold, including dividends 4,000 3,600,000 -- -- 1,335,474
Common stock sold -- -- 700,471 1,561,110 --
Cancellation of stock subscription -- -- (410,500) (405,130) --
Common stock issued in exchange for services -- -- 2,503,789 4,257,320 --
Common stock issued with exercise of stock options -- -- 191,500 104,375 --
Common stock issued with exercise of options
for compensation -- -- 996,400 567,164 --
Conversion of preferred stock to common stock (1,600) (1,440,000) 420,662 1,974,190 (534,190)
Common stock issued as payment of preferred
stock dividends -- -- 4,754 14,629 --
Dividends accrued on preferred stock not
yet converted -- -- -- -- --
Collection of stock subscriptions -- -- -- -- --
Amortization of deferred compentsation -- -- -- -- --
Forgiveness of officers' compensation -- -- -- -- 100,667
Net loss (restated) -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at June 30, 1996 (restated) 2,400 2,160,000 23,023,789 10,075,896 1,574,784
----------- ----------- ----------- ----------- -----------
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
------------- ------------- -------------- -------------
Balance at June 30, 1995 (1,153,387) (523,118) (508,125) 490,441
----------- ----------- ----------- -----------
Preferred stock sold, including dividends (1,335,474) -- -- 3,600,000
Common stock sold -- -- -- 1,561,110
Cancellation of stock subscription -- 405,130 -- --
Common stock issued in exchange for services -- -- -- 4,257,320
Common stock issued with exercise of stock options -- (4,375) -- 100,000
Common stock issued with exercise of options
for compensation -- -- -- 567,164
Conversion of preferred stock to common stock -- -- -- --
Common stock issued as payment of preferred
stock dividends (14,629) -- -- --
Dividends accrued on preferred stock not
yet converted (33,216) -- -- (33,216)
Collection of stock subscriptions -- 103,679 -- 103,679
Amortization of deferred compentsation -- -- 232,500 232,500
Forgiveness of officers' compensation -- -- -- 100,667
Net loss (restated) (6,933,310) -- -- (6,933,310)
----------- ----------- ----------- -----------
Balance at June 30, 1996 (restated) (9,470,016) (18,684) (275,625) 4,046,355
----------- ----------- ----------- -----------
See accompanying notes to the financial statements.
F-6
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- -------------- --------------- ------------
Balance at June 30, 1996 (restated) 2,400 2,160,000 23,023,789 10,075,896 1,574,784
----------- ----------- ----------- ----------- -----------
Preferred stock sold, including dividends 450 4,500,000 -- -- 998,120
Conversion of preferred stock to common stock (2,400) (2,160,000) 1,061,202 2,961,284 (801,284)
Common stock issued in exchange for services -- -- 234,200 650,129 --
Common stock issued for compensation -- -- 353,200 918,364 --
Common stock issued with exercise of stock options -- -- 361,933 1,136,953 --
Common stock issued to employee -- -- (150,000) (52,500) --
Common stock issued as payment of preferred
stock dividends -- -- 20,760 49,603 --
Dividends accrued on preferred stock not
yet converted -- -- -- -- --
Stock options granted -- -- -- -- 1,891,500
Collection of stock subscriptions -- -- -- -- --
Amortization of deferred compentsation -- -- -- -- --
Net loss (restated) -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at June 30, 1997 (restated) 450 4,500,000 24,905,084 15,739,729 3,663,120
----------- ----------- ----------- ----------- -----------
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
-------------- ------------- --------------- -------------
Balance at June 30, 1996 (restated) (9,470,016) (18,684) (275,625) 4,046,355
----------- ----------- ----------- -----------
Preferred stock sold, including dividends (998,120) -- -- 4,500,000
Conversion of preferred stock to common stock -- -- -- --
Common stock issued in exchange for services -- -- -- 650,129
Common stock issued for compensation -- -- -- 918,364
Common stock issued with exercise of stock options -- (33,750) -- 1,103,203
Common stock issued to employee -- -- -- (52,500)
Common stock issued as payment of preferred
stock dividends (16,387) -- -- 33,216
Dividends accrued on preferred stock not
yet converted (168,288) -- -- (168,288)
Stock options granted -- -- (1,891,500) --
Collection of stock subscriptions -- 16,875 -- 16,875
Amortization of deferred compentsation -- -- 788,000 788,000
Net loss (restated) (7,646,119) -- -- (7,646,119)
----------- ----------- ----------- -----------
Balance at June 30, 1997 (restated) (18,298,930) (35,559) (1,379,125) 4,189,235
----------- ----------- ----------- -----------
See accompanying notes to the financial statements.
F-7
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- -------------- --------------- ------------
Balance at June 30, 1997 (restated) 450 4,500,000 24,905,084 15,739,729 3,663,120
----------- ----------- ----------- ----------- -----------
Preferred stock sold, including dividends
and placement fees 501 5,010,000 -- -- 1,290,515
Conversion of preferred stock to common stock (340) (3,400,000) 6,502,448 4,644,307 (1,210,414)
Common stock sold -- -- 500,000 200,000 --
Common stock issued in exchange for services -- -- 956,000 1,419,130 --
Common stock issued for compensation -- -- 64,300 54,408 --
Common stock issued with exercise of stock options -- -- 65,712 22,999 --
Common stock issued in exchange for
licensing agreement -- -- 3,500,000 1,890,000 (3,199,000)
Dividends accrued on preferred stock not
yet converted -- -- -- -- --
Stock options granted -- -- -- -- 1,340,625
Collection of stock subscriptions -- -- -- 12,500 --
Amortization of deferred compentsation -- -- -- -- --
Net loss -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at June 30, 1998 611 6,110,000 36,493,544 23,983,073 1,884,846
----------- ----------- ----------- ----------- -----------
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
-------------- ------------- --------------- -------------
Balance at June 30, 1997 (restated) (18,298,930) (35,559) (1,379,125) 4,189,235
----------- ----------- ----------- -----------
Preferred stock sold, including dividends
and placement fees (1,741,015) -- -- 4,559,500
Conversion of preferred stock to common stock -- -- -- 33,893
Common stock sold -- -- -- 200,000
Common stock issued in exchange for services -- -- -- 1,419,130
Common stock issued for compensation -- -- -- 54,408
Common stock issued with exercise of stock options -- -- -- 22,999
Common stock issued in exchange for
licensing agreement -- -- -- (1,309,000)
Dividends accrued on preferred stock not
yet converted (315,000) -- -- (315,000)
Stock options granted -- -- (1,340,625) --
Collection of stock subscriptions -- 21,250 -- 33,750
Amortization of deferred compentsation -- -- 1,418,938 1,418,938
Net loss (6,981,710) -- -- (6,981,710)
----------- ----------- ----------- -----------
Balance at June 30, 1998 (27,336,655) (14,309) (1,300,812) 3,326,143
----------- ----------- ----------- -----------
See accompanying notes to the financial statements.
F-8
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- -------------- --------------- -------------
Balance at June 30, 1998 611 6,110,000 36,493,544 23,983,073 1,884,846
----------- ----------- ----------- ----------- -----------
Preferred stock issued - satisfaction of debt 138 1,380,000 -- -- (161,348)
Conversion of preferred stock to common stock (153) (1,530,000) 4,865,034 1,972,296 (442,296)
Common stock sold -- -- 200,000 60,000 --
Common stock issued - exchange for services
and compensation -- -- 719,442 301,210 --
Common stock issued - repayment of debt -- -- 2,974,043 1,196,992 --
Common stock issued in exchange for loan fees -- -- 480,000 292,694 --
Common stock issued with exercise of stock options -- -- 65,612 124,464 --
Common stock issued in satisfaction of
licensing agreement payable -- -- 3,500,000 1,890,000 --
Redeemable preferred stock sold, deemed dividend -- -- -- -- --
Dividends accrued-preferred stock not yet converted -- -- -- -- --
Stock options granted -- -- -- -- 209,625
Amortization of deferred compentsation -- -- -- -- --
Net loss -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at June 30, 1999 596 5,960,000 49,297,675 29,820,729 1,490,827
----------- ----------- ----------- ----------- -----------
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
-------------- ------------- --------------- -------------
Balance at June 30, 1998 (27,336,655) (14,309) (1,300,812) 3,326,143
----------- ----------- ----------- -----------
Preferred stock issued - satisfaction of debt (492,857) -- -- 725,795
Conversion of preferred stock to common stock -- -- -- --
Common stock sold -- -- -- 60,000
Common stock issued - exchange for services
and compensation -- -- -- 301,210
Common stock issued - repayment of debt -- -- -- 1,196,992
Common stock issued in exchange for loan fees -- -- -- 292,694
Common stock issued with exercise of stock options -- -- -- 124,464
Common stock issued in satisfaction of
licensing agreement payable -- -- -- 1,890,000
Redeemable preferred stock sold, deemed dividend (127,117) -- -- (127,117)
Dividends accrued-preferred stock not yet converted (329,176) -- -- (329,176)
Stock options granted -- -- (209,625) --
Amortization of deferred compentsation -- -- 1,510,437 1,510,437
Net loss (6,807,194) -- -- (6,807,194)
----------- ----------- ----------- -----------
Balance at June 30, 1999 (35,092,999) (14,309) -- 2,164,248
----------- ----------- ----------- -----------
See accompanying notes to the financial statements.
F-9
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
-----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- --------------- --------------- -------------
Balance at June 30, 1999 596 5,960,000 49,297,675 29,820,729 1,490,827
------------ ------------ ------------ ------------ ------------
Conversion of convertible debentures -- -- 4,060,398 3,958,223 --
Conversion of preferred stock to common, net (596) (5,960,000) 45,415,734 7,313,334 (648,885)
Common stock sold -- -- 100,000 157,000 --
Common stock issued - exchange for services
and compensation, net of cancelled shares -- -- 137,000 (18,675) --
Common stock issued - repayment of debt
and accrued interest -- -- 5,061,294 1,067,665 --
Common stock issued in exchange for
interest and loan fees -- -- 7,297 2,408 --
Common stock issued with exercise of stock options -- -- 1,281,628 395,810 157,988
Common stock issued with exercise of warrants -- -- 150,652 121,563 97,850
Issuance of note payable with warrants at a discount -- -- -- -- 500,000
Dividends accrued-preferred stock not yet converted -- -- -- -- --
Net loss -- -- -- -- --
------------ ------------ ------------ ------------ ------------
Balance at June 30, 2000 -- -- 105,511,678 42,818,057 1,597,780
------------ ------------ ------------ ------------ ------------
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
---------------- ------------- -------------- -------------
Balance at June 30, 1999 (35,092,999) (14,309) -- 2,164,248
------------ ------------ --- ------------
Conversion of convertible debentures -- -- -- 3,958,223
Conversion of preferred stock to common, net -- -- -- 704,449
Common stock sold -- -- -- 157,000
Common stock issued - exchange for services
and compensation, net of cancelled shares -- -- -- (18,675)
Common stock issued - repayment of debt
and accrued interest -- -- -- 1,067,665
Common stock issued in exchange for
interest and loan fees -- -- -- 2,408
Common stock issued with exercise of stock options -- (13,599) -- 540,199
Common stock issued with exercise of warrants -- -- -- 219,413
Issuance of note payable with warrants at a discount -- -- -- 500,000
Dividends accrued-preferred stock not yet converted (145,950) -- -- (145,950)
Net loss (8,022,929) -- -- (8,022,929)
------------ ------------ --- ------------
Balance at June 30, 2000 (43,261,878) (27,908) -- 1,126,051
------------ ------------ --- ------------
** See Note 15 for a detailed breakdown by Series.
See accompanying notes to the financial statements.
F-10
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
-----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- --------------- --------------- -------------
Balance at June 30, 2000 -- -- 105,511,678 42,818,057 1,597,780
---- ----------- ----------- ----------- -----------
Preferred stock sold, including dividends 500 5,000,000 -- -- 708,130
Conversion of preferred stock to common, net (500) (5,000,000) 5,664,067 5,580,531 (708,130)
Common stock issued - line of equity transactions -- -- 3,407,613 3,143,666 --
Common stock issued - exchange for services
and compensation -- -- 153,500 227,855 --
Common stock issued - repayment of debt
and accrued interest -- -- 810,000 1,393,200 --
Common stock issued with exercise of stock options -- -- 3,781,614 1,868,585 --
Common stock issued with exercise of warrants -- -- 99,375 119,887 --
Dividends accrued-preferred stock -- -- -- -- --
Net loss -- -- -- -- --
---- ----------- ----------- ----------- -----------
Balance at June 30, 2001 -- -- 119,427,847 55,151,781 1,597,780
==== =========== =========== =========== ===========
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
---------------- ------------- -------------- -------------
Balance at June 30, 2000 (43,261,878) (27,908) -- 1,126,051
------------ -------- --- -----------
Preferred stock sold, including dividends (708,130) -- -- 5,000,000
Conversion of preferred stock to common, net -- -- -- (127,599)
Common stock issued - line of equity transactions -- -- -- 3,143,666
Common stock issued - exchange for services
and compensation -- -- -- 227,855
Common stock issued - repayment of debt
and accrued interest -- -- -- 1,393,200
Common stock issued with exercise of stock options -- 13,599 -- 1,882,184
Common stock issued with exercise of warrants -- -- -- 119,887
Dividends accrued-preferred stock (422,401) -- -- (422,401)
Net loss (8,593,829) -- -- (8,593,829)
------------ -------- --- -----------
Balance at June 30, 2001 (52,986,238) (14,309) -- 3,749,014
============ ======== === ===========
** See Note 15 for a detailed breakdown by Series.
See accompanying notes to the financial statements.
F-11
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
-----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- --------------- --------------- -------------
Balance at June 30, 2001 -- -- 119,427,847 55,151,781 1,597,780
---- ----------- ----------- ----------- -----------
Common stock issued - line of equity transactions -- -- 11,607,866 6,213,805 --
Common stock issued - exchange for services
and compensation -- -- 560,000 294,350 --
Net loss -- -- -- -- --
---- ----------- ----------- ----------- -----------
Balance at June 30, 2002 -- $ -- 131,595,713 61,659,936 $ 1,597,780
Common stock issued - line of equity transactions -- -- 29,390,708 8,737,772 --
Common stock issued - exchange for services
and compensation -- -- 2,007,618 970,653 --
Payment of subscriptions receivable -- -- -- -- --
Net loss -- -- -- -- --
---- ----------- ----------- ----------- -----------
Balance at June 30, 2003 -- -- 162,994,039 71,368,361 1,597,780
---- ----------- ----------- ----------- -----------
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
---------------- ------------- -------------- -------------
Balance at June 30, 2001 (52,986,238) (14,309) -- 3,749,014
------------ -------- --- -----------
Common stock issued - line of equity transactions -- -- -- 6,213,805
Common stock issued - exchange for services
and compensation -- -- (117,600) 176,750
Net loss (7,677,560) -- -- (7,677,560)
------------ -------- --- -----------
Balance at June 30, 2002 (60,663,798) (14,309) -- 2,462,009
Common stock issued - line of equity transactions -- -- -- 8,737,772
Common stock issued - exchange for services
and compensation -- -- 117,600 1,088,253
Payment of subscriptions receivable -- 14,309 -- 14,309
Net loss (8,180,524) -- -- (8,180,524)
------------ -------- --- -----------
Balance at June 30, 2003 (68,844,322) -- -- 4,121,819
------------ -------- --- -----------
** See Note 15 for a detailed breakdown by Series.
See accompanying notes to the financial statements.
F-12
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Stockhoders' Equity (Continued)
From December 10, 1993 (date of inception) to June 30, 2004
Preferred Stock (**) Common Stock Additional
-----------------------------------------------------------
Number of Number of Paid-in
Shares Amount Shares Amount Capital
------------- ------------- --------------- --------------- -------------
Balance at June 30, 2003 -- -- 162,994,039 71,368,361 1,597,780
---- ----------- ----------- ----------- -----------
Common stock issued - line of equity transactions -- -- 8,630,819 6,541,700 --
Common stock issued - exchange for services
and compensation -- -- 734,785 832,950 --
Common stock issued - exercise of stock options -- -- 967,769 492,701 --
Net loss -- -- -- -- --
---- ----------- ----------- ----------- -----------
Balance at June 30, 2004 -- $ -- 173,327,412 $ 79,235,712 $ 1,597,780
==== =========== =========== ============ ===========
Deficit
Accumulated
During the
Development Subscriptions Deferred
Stage Receivable Compensation Total
---------------- ------------- -------------- -------------
Balance at June 30, 2003 (68,844,322) -- -- 4,121,819
------------ -------- --- -----------
Common stock issued - line of equity transactions -- -- -- 6,541,700
Common stock issued - exchange for services
and compensation -- -- (117,600) 832,950
Common stock issued - exercise of stock options -- -- -- 492,701
Net loss (8,402,959) -- -- (8,402,959)
------------ -------- --- -----------
Balance at June 30, 2004 $(77,247,281) $ -- $ -- $ 3,586,211
============ ======== === ===========
** See Note 15 for a detailed breakdown by Series.
See accompanying notes to the financial statements.
F-13
INSERT STATEMENT OF CASH FLOWS PAGE F-14
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Cash Flows
From Inception
(December 10,
Year Ended Year Ended Year Ended 1993) to
June 30, 2004 June 30, 2003 June 30, 2002 June 30, 2004
------------- ------------- ------------- -----------------
Net loss $ (8,402,959) $ (8,180,524) $ (7,677,560) $ (70,399,521)
------------- ------------- ------------- --------------
Adjustments to reconcile net loss to net cash
used for operating activities:
Depreciation and amoritization 175,715 240,329 246,871 2,233,569
Gain on sale of fixed assets 5,669 (11,254) - (5,585)
Amoritization of deferred compensation - - - 4,064,250
Noncash interest, compensation and consulting service 1,524,650 1,827,425 805,555 16,867,760
(Increase) decrease in loans receivable - employees (28,040) 16 6,929 (68,181)
(Increase) decrease in inventory, net 202,151 913,901 (120,992) 1,248,139
(Increase) decrease in prepaid expenses (35,857) 27,985 (8,095) (64,579)
(Increase) decrease in other assets - 131,909 (52,697) (306,618)
(Increase) decrease in accounts payable and
accrued expenses (235,522) (300,554) 446,928 735,863
(Increase) decrease in other current liabilities (40,000) (178,250) (262,200) 974,486
-------- --------- --------- -------
Total adjustments 1,568,766 2,651,507 1,062,299 25,679,104
---------- ---------- ---------- ----------
Net cash used for operating activities (6,834,193) (5,529,017) (6,615,261) (44,720,417)
----------- ----------- ----------- ------------
Cash flows from investing activities:
Proceeds from sale of property & equipment 18,603 11,254 29,857
Prototype equipment - - - (2,799,031)
Capital expenditures (334,264) (43,314) (78,055) (4,406,500)
--------- -------- -------- -----------
Net cash used for investing activities (315,661) (32,060) (78,055) (7,175,674)
--------- -------- -------- -----------
Cash flows from financing activities:
Repayment of capital lease obligation - - (4,056) (50,289)
Proceeds from convertible debenture - - - 3,240,000
Proceeds from (repayments) loan payable, net - (1,153,310) 1,100,000 2,595,029
Proceeds from issuance of preferred stock - - - 18,039,500
Proceeds from exercise of stock options 492,701 - 492,701
Net proceeds from issuance of common stock 5,850,000 7,881,000 5,585,000 28,133,504
---------- ---------- ---------- ----------
Net cash provided by financing activities 6,342,701 6,727,690 6,680,944 52,450,445
---------- ---------- ---------- ----------
Net increase (decrease) in cash and cash equivalents (807,153) 1,166,613 (12,372) 554,354
Cash and cash equivalents at beginning of period 1,361,507 194,894 207,266 -
---------- -------- -------- -
Cash and cash equivalents at end of period $ 554,354 $ 1,361,507 $ 194,894 $ 554,354
========== ============ ========== =========
(Continued)
See accompanying notes to the financial statements.
F-14
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Statement of Cash Flows (Continued)
From Inception
(December 10,
Year Ended Year Ended Year Ended 1993) to
June 30, 2004 June 30, 2003 June 30, 2002 June 30, 2004
------------- ------------- ------------- -----------------
Supplemental disclosures of cash flow information:
Cash paid for interest $ 5,916 $ 131,145 $ 5,104 $ 215,884
========== ========== ========== ==========
Supplemental disclosures of noncash investing
and financing activities:
Issuance of common stock and options
in exchange for services $ 450,000 $ 841,853 $ 176,750 $6,306,350
========== ========== ========== ==========
Issuance of common stock as loan fees in
connection with loans to the Company $ - $ - $ - $ 293,694
========== ========== ========== ==========
Issuance of common stock as satisfaction of
loans payable and accrued interest $ - $ - $ - $3,398,965
========== ========== ========== ==========
Issuance of common stock as satisfaction of
certain accounts payable $ - $ - $ - $ 257,892
========== ========== ========== ==========
Issuance of common stock in
exchange for property and equipment $ - $ - $ - $ 89,650
========== ========== ========== ==========
Issuance of common stock and other current
liability in exchange for patent
liceensing agreement $ - $ - $ - $ 581,000
========== ========== ========== ==========
Issuance of common stock for
compensation $ 382,950 $ 128,800 $ 117,600 $2,577,938
========== ========== ========== ==========
Issuance of common stock through
exercise of incentive stock options $ 492,701 $ - $ - $3,610,403
========== ========== ========== ==========
Issuance of common stock as
payment for preferred stock dividends $ - $ - $ - $ 507,645
========== ========== ========== ==========
Acquisition of property and equipment
through the issuance of a capital
lease payable $ - $ - $ - $ 50,289
========== ========== ========== ==========
See accompanying notes to the financial statements.
F-15
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements
(1) BACKGROUND
The Company, ("Imaging Diagnostic Systems, Inc.") was organized in the state of
New Jersey on November 8, 1985, under its original name of Alkan Corp. On April
14, 1994, a reverse merger was effected between Alkan Corp. and the Florida
corporation of Imaging Diagnostic Systems, Inc. ("IDSI-Fl."). IDSI-Fl. was
formed on December 10, 1993. (See Note 3) Effective July 1, 1995 the Company
changed its corporate status to a Florida corporation.
The Company is in the business of developing medical imaging devices based upon
the combination of the advances made in medical optical technology and the
unique knowledge of medical imaging devices held by the founders of the Company.
Previously, the technology for these imaging devices had not been available. The
initial Computed Tomography Laser Mammography ("CTLM(R)") prototype had been
developed with the use of "Ultrafast Laser Imaging TechnologyTM", and this
technology was first introduced at the "RSNA" scientific assembly and conference
during late November 1994. The completed CTLM(R) device was exhibited at the
"RSNA" conference November 1995. The Company has continued to develop its
CTLM(R) technology and to exhibit its latest clinical images produced by the
newest generation of the CTLM(R) at the "RSNA" conferences held annually, in
Chicago, commencing on the Sunday following Thanksgiving and running for five
days.
The initial CTLM(R) prototype produced live images of an augmented breast on
February 23, 1995. From the experience gained with this initial prototype, the
Company continued its research and development resulting in new hardware and
software enhancements.
The Company is currently in a development stage and is in the process of raising
additional capital through the use of its Fourth Private Equity Credit
Agreement. There is no assurance that once the development of the CTLM(R) device
is completed and finally receives Federal Drug Administration marketing
clearance, that the Company will achieve a profitable level of operations.
(Continued)
F-16
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Use of estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
(b) Revenue Recognition
Revenue from sales of medical imaging products is recorded for
international sales upon the passing of title and risks of
ownership, which occurs upon the shipment of goods. In the U.S.
market, when PMA approval is received, revenue will be recorded
upon installation of the CTLM(R) System and acceptance by the
customer.
(c) Cash and cash equivalents
Holdings of highly liquid investments with original maturities
of three months or less and investment in money market funds are
considered to be cash equivalents by the Company.
(d) Inventory
Inventories, consisting principally of raw materials,
work-in-process and completed units under testing, are carried
at the lower of cost or market. Cost is determined using the
first-in, first-out (FIFO) method.
Due to recent technological advances resulting in overall lower
costs for certain inventory components, the Company has reduced
these components of its inventory to their net realizable value.
The inventory valuation adjustments are reflected in the
statement of operations and amounted to $586,510, $910,444,
$547,942, and $3,235,001, for the years ended June 30, 2004,
2003 and 2002, and for the period December 10, 1993 (date of
inception) to June 30, 2004, respectively.
(Continued)
F-17
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
(e) Prototype equipment
The direct costs associated with the final CTLM(R) prototypes
have been capitalized. On June 17, 1996 the Company's Director
of Research and Development and the Director of Engineering
decided to discontinue with the development of the then current
generation proprietary scanner and data collection system
(components of the prototype CTLM(R) device) and to begin
development of a third generation scanner and data collection
system. As a result, certain items amounting to $677,395 were
reclassified as follows: $512,453 as research and development
expense and $164,942 as computer and lab equipment. The original
amortization period of two years was increased to five years to
provide for the estimated period of time the clinical equipment
would be in service to gain FDA approval.
During the fiscal year ended June 30, 1998, the costs associated
with the various pre-production units available for sale have
been reclassified as inventory and the remaining costs which
will no longer benefit future periods were expensed to research
and development costs.
(f) Property, equipment and software development costs
Property and equipment are stated at cost, less accumulated
depreciation and amortization. Depreciation and amortization are
computed using straight-line methods over the estimated useful
lives of the related assets.
Under the criteria set forth in Statement of Financial
Accounting Standards No. 86, capitalization of software
development costs begins upon the establishment of technological
feasibility for the product. The establishment of technological
feasibility and the ongoing assessment of the recoverability of
these costs requires considerable judgment by management with
respect to certain external factors, including, but not limited
to, anticipated future gross product revenues, estimated
economic life and changes in software and hardware technology.
After considering the above factors, the Company has determined
that software development costs, incurred subsequent to the
initial acquisition of the basic software technology, should be
properly expensed. Such costs are included in research and
development expense in the accompanying statements of
operations.
(Continued)
F-18
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
(g) Research and development
Research and development expenses consist principally of
expenditures for equipment and outside third-party consultants,
which are used in testing and the development of the Company's
CTLM(R) device, product software and compensation to specific
company personnel. The non-payroll related expenses include
testing at outside laboratories, parts associated with the
design of initial components and tooling costs, and other costs
which do not remain with the developed CTLM(R) device. The
software development costs are with outside third-party
consultants involved with the implementation of final changes to
the developed software. All research and development costs are
expensed as incurred.
(h) Net loss per share
In 1998, the Company adopted SFAS No. 128, ("Earnings Per
Share"), which requires the reporting of both basic and diluted
earnings per share. Basic net loss per share is determined by
dividing loss available to common shareholders by the weighted
average number of common shares outstanding for the period.
Diluted loss per share reflects the potential dilution that
could occur if options or other contracts to issue common stock
were exercised or converted into common stock, as long as the
effect of their inclusion is not anti-dilutive.
(i) Patent license agreement
The patent license agreement will be amortized over the
seventeen-year life of the patent, the term of the agreement.
(Continued)
F-19
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
(j) Stock-based compensation
The Company adopted Statement of Financial Accounting Standards
No. 123. "Accounting for Stock-Based Compensation" ("SFAS 123"),
in fiscal 1997. As permitted by SFAS 123, the Company continues
to measure compensation costs in accordance with Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees", but provides pro forma disclosures of net loss and
loss per share as if the fair value method (as defined in SFAS
123) had been applied beginning in fiscal 1997.
(k) Long-lived assets
Effective July 1, 1996, the Company adopted the provisions of
Statement of Financial Accounting Standards No. 121. "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of" ("SFAS 121"). This statement requires
companies to write down to estimated fair value long-lived
assets that are impaired. The Company reviews its long-lived
assets for impairment whenever events or changes in
circumstances indicate that the carrying value of an asset may
not be recoverable. In performing the review of recoverability
the Company estimates the future cash flows expected to result
from the use of the asset and its eventual disposition. If the
sum of the expected future cash flows is less than the carrying
amount of the assets, an impairment loss is recognized. The
Company has determined that no impairment losses need to be
recognized through the fiscal year ended June 30, 2004.
In August of 2001, the Company adopted the provisions of
Statement of Financial Accounting Standards No. 144, Accounting
for the Impairment or Disposal of Long-Lived Assets ("SFAS
144"), which addresses accounting and financial reporting for
the impairment and disposal of long-lived assets. This statement
is effective for the Company beginning July 1, 2002. The Company
does not believe that the adoption of SFAS 144 will have a
significant impact on its financial position and results of
operations.
(Continued)
F-20
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
(l) Income taxes
Effective December 10, 1993, the Company adopted the method of
accounting for income taxes pursuant to the Statement of
Financial Accounting Standards No. 109 "Accounting for Income
Taxes" ("SFAS 109"). SFAS 109 requires an asset and liability
approach for financial accounting and reporting for income
taxes. Under SFAS 109, the effect on deferred taxes of a change
in tax rates is recognized in income in the year that includes
the enactment date.
(m) Intangible assets
Intangible assets, consisting of the patent license agreement
and UL and CE approvals are reflected in "Other Assets" on the
balance sheet, net of accumulated amortization (Note 7). The
patent license agreement has a fixed life of seventeen years and
will continue to be amortized over its remaining useful life.
The UL and CE approvals are subject to amortization and will be
reviewed for potential impairment whenever events or
circumstances indicate that carrying amounts may not be
recoverable, in accordance with Statement of Financial
Accounting Standards No. 142 "Goodwill and Other Intangible
Assets" ("SFAS 142"). The Company has adopted SFAS 142 for its
fiscal year beginning July 2001. As of June 30, 2004, the
Company has determined that there is no impairment loss that
needs to be recognized at this time with respect to the UL and
CE approvals.
(n) Deemed preferred stock dividend
The accretion resulting from the incremental yield embedded in
the conversion terms of the convertible preferred stock is
computed based upon the discount from market of the common stock
at the date the preferred stock was issued. The resulting deemed
preferred stock dividend subsequently increases the value of the
common shares upon conversion.
(Continued)
F-21
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
(o) Discount on convertible debt
The discount which arises as a result of the allocation of
proceeds to the beneficial conversion feature upon the issuance
of the convertible debt increases the effective interest rate of
the convertible debt and will be reflected as a charge to
interest expense. The amortization period will be from the date
of the convertible debt to the date the debt first becomes
convertible.
(p) Comprehensive income
SFAS 130, "Reporting Comprehensive Income", requires a full set
of general purpose financial statements to be expanded to
include the reporting of "comprehensive income". Comprehensive
income is comprised of two components, net income and other
comprehensive income. For the period from December 10, 1993
(date of inception) to June 30, 2004, the Company had no items
qualifying as other comprehensive income.
(q) Impact of recently issued accounting standards
Statement of Financial Accounting Standards No. 148, "Accounting
for Stock-Based Compensation--Transition and Disclosure" ("SFAS
148"), amends SFAS 123, "Accounting for Stock-Based
Compensation." In response to a growing number of companies
announcing plans to record expenses for the fair value of stock
options, SFAS 148 provides alternative methods of transition for
a voluntary change to the fair value based method of accounting
for stock-based employee compensation. In addition, SFAS 148
amends the disclosure requirements of SFAS 123 to require more
prominent and more frequent disclosures in financial statements
about the effects of stock-based compensation. The Statement
also improves the timeliness of those disclosures by requiring
that this information be included in interim as well as annual
financial statements.
(Continued)
F-22
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
In the past, companies were required to make pro forma
disclosures only in annual financial statements. The transition
guidance and annual disclosure provisions of SFAS 148 are
effective for fiscal years ending after December 15, 2002, with
earlier application permitted in certain circumstances. The
interim disclosure provisions are effective for financial
reports containing financial statements for interim periods
beginning after December 15, 2002.
(r) Reclassifications
Certain amounts in the prior period financial statements have
been reclassified to conform with the current period
presentation.
(3) MERGER
On April 14, 1994, IDSI-Fl. acquired substantially all of the issued and
outstanding shares of Alkan Corp. The transaction was accounted for as a reverse
merger in accordance with Accounting Principles Board Opinion #16, wherein the
shareholders of IDSI-Fl. retained the majority of the outstanding stock of Alkan
Corp. after the merger. (see Note 17)
As reflected in the Statement of Stockholders' Equity, the Company recorded the
merger with the public shell at its cost, which was zero, since at that time the
public shell did not have any assets or equity. There was no basis adjustment
necessary for any portion of the merger transaction as the assets of IDSI-Fl.
were recorded at their net book value at the date of merger. The 178,752 shares
represent the exchange of shares between the companies at the time of merger.
As part of the transaction, the certificate of incorporation of Alkan was
amended to change its name to Imaging Diagnostic Systems, Inc.
(Continued)
F-23
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(4) GOING CONCERN
The Company is currently a development stage company and its continued existence
is dependent upon the Company's ability to resolve its liquidity problems,
principally by obtaining working capital through its Fourth Private Equity
Credit Agreement and if not available, then through debt financing and/or other
equity capital. The Company has yet to generate a positive internal cash flow,
and until significant sales of its product begins, the Company is totally
dependent upon equity and debt funding.
As a result of these factors, there exists substantial doubt about the Company's
ability to continue as a going concern. However, management of the Company
believes that its Fourth Private Equity Credit Agreement should provide the
funding necessary to complete the FDA and other regulatory processes necessary
to receive FDA marketing clearance and to commercialize the CTLM(R) both in the
International and Domestic markets. In the event that we are unable to utilize
the Fourth Private Equity Credit Agreement we would seek and negotiate with
outside entities for the funding necessary to achieve FDA marketing clearance
and commercialization of the CTLM(R) product. To date, management has been able
to raise the necessary capital to reach this stage of product development and
has been able to fund any capital requirements. However, there is no assurance
that once the development of the CTLM(R) device is completed and finally
receives FDA marketing clearance, that the Company will achieve a profitable
level of operations.
(5) INVENTORIES
Inventories consisted of the following:
June 30,
--------------------------------
2004 2003
-------------- --------------
Raw materials $ 1,100,112 $ 1,307,052
Work-in process 93,869 49,784
Completed units under testing 1,163,883 655,439
------------- -------------
$ 2,357,864 $ 2,012,275
============ ============
The raw materials inventory is reflected net of inventory valuation adjustments
to the net realizable value for certain components. The valuation adjustments
are reflected in the statement of operations and amounted to $586,410, $910,444,
$547,942, and $3,235,001, for the years ended June 30, 2004, 2003 and 2002, and
for the period December 10, 1993 (date of inception) to June 30, 2004,
respectively.
(Continued)
F-24
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(6) PROPERTY AND EQUIPMENT
The following is a summary of property and equipment, less accumulated
depreciation:
June 30,
---------------------------------
2004 2003
--------------- ---------------
Furniture and fixtures $ 262,264 $ 260,880
Building and land 2,086,330 2,086,330
Clinical equipment 30,714 30,714
Computers, equipment and software 333,535 349,268
CTLM(R) software costs 352,932 352,932
Trade show equipment 298,400 -
Laboratory equipment 212,560 222,560
----------- ------------
3,576,735 3,302,684
Less: accumulated depreciation (1,275,640) (1,173,346)
------------- -------------
Totals $ 2,301,095 $ 2,129,338
============= ============
The estimated useful lives of property and equipment for purposes of computing
depreciation and amortization are:
equipment and trade show equipment 5-7 years
Building 40 years
CTLM(R) software costs 5 years
Telephone equipment, acquired under a long-term capital lease at a cost of
$50,289, is included in furniture and fixtures. The net unamortized cost of the
CTLM(R) software at June 30, 2004 and 2003 are $0 and $0, respectively, which
represents the net realizable value of the CTLM(R) software at the end of each
period presented.
Amortization expense related to the CTLM(R) software for each period presented
in the statement of operations is as follows:
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(7) OTHER ASSETS
Other assets consist of the following:
June 30,
-------------------------
2004 2003
----------- -----------
Patent license agreement, net of accumulated
amortization of $205,059 and $170,882 respectively $ 375,942 $ 410,118
UL and CE approvals, net of accumulated
amortization of $8,225 and $8,225, respectively 430,302 430,302
---------- ----------
Totals $ 806,244 $ 840,420
========== ==========
During June 1998, the Company finalized an exclusive Patent License Agreement
with its former chief executive officer. (See Note 21) The officer was the owner
of patents issued on December 2, 1997 which encompassed the technology of the
CTLM(R). Pursuant to the terms of the agreement, the Company was granted the
exclusive right to modify, customize, maintain, incorporate, manufacture, sell,
and otherwise utilize and practice the Patent, all improvements thereto and all
technology related to the process, throughout the world. The license shall apply
to any extension or re-issue of the Patent. The term of license is for the life
of the Patent and any renewal thereof, subject to termination, under certain
conditions. As consideration for the License, the Company issued to the officer
7,000,000 shares of common stock (See Note 17). The License agreement has been
recorded at the historical cost basis of the chief executive officer, who owned
the patent.
(8) ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses consist of the following:
The Company has borrowed a total of $475,407, from an unrelated third-party on
an unsecured basis. The loan accrues interest at a rate of 6% per annum and is
payable on demand. The Company has repaid $175,000 as of June 30, 2004. Accrued
interest of $126,549 is reflected in accrued expenses on the balance sheet.
Based on its review of this transaction, Company management has disputed the
validity of the debt.
(Continued)
F-27
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(11) OTHER OPERATING EXPENSES
Other operating expenses as follows:
From Inception
(December 10,
Year Ended Year Ended Year Ended 1993) to
June 30, 2004 June 30, 2003 June 30, 2002 June 30, 2004
------------- -------------- ------------- ---------------
Certification expenses $ 51,359 $ 38,814 $ 45,735 $ 135,908
Advertising and promotion expenses 137,274 62,325 173,956 1,369,519
Clinical expenses 51,647 56,024 102,178 741,862
Consulting expenses 402,156 377,272 380,049 4,659,521
Insurance expenses 448,909 382,932 316,256 2,036,325
Inventory restocking costs - - - 377,006
Professional fees 430,813 512,779 405,236 3,554,638
Sales and property taxes 61,252 49,632 54,405 565,337
Stockholder expenses 214,197 128,391 178,303 860,841
Trade show expenses 222,646 143,889 160,806 1,507,845
Travel and subsistence costs 324,239 238,322 552,875 2,339,348
Rent expense 12,449 8,630 11,435 337,419
Loan placement expenses and fees - - 15,000 671,494
Liquidated damages (income) costs - - - 140,000
Settlement expenses 450,000 841,853 176,750 1,468,603
Death benefit expenses - - 286,225 286,225
------- --------- ---------- ---------
Total other operating expenses 2,806,941 2,840,863 2,859,209 21,051,891
========= ========= ========== ==========
F-28
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(12) EQUITY LINE OF CREDIT
On August 17, 2000 the Company finalized a financing agreement with a private
institutional equity investor, which contains two component parts, a $25 million
Private Equity Agreement and a private placement of 500 shares of Series K
convertible preferred stock as bridge financing in the amount of $5,000,000 (See
Note 16). On May 15, 2002, the Company entered into a second private equity
agreement, which replaced the original Private Equity Agreement. The terms of
the second Private Equity Agreement were substantially equivalent to the terms
of the original agreement, except that (i) the commitment period is three years
from the effective date of a registration statement covering the second Private
Equity Agreement shares, (ii) the minimum amount we must draw through the end of
the commitment period is $2,500,000, (iii) the minimum stock price requirement
has been reduced to $.20, and (iv) the minimum average trading volume has been
reduced to $40,000.
On October 29, 2002, the Company entered into a new "Third Private Equity Credit
Agreement" which the Company intends to supplement the second Private Equity
Agreement. The terms of the Third Private Equity Credit Agreement are
substantially equivalent to the terms of the prior agreement, in that (i) the
commitment period is three years from the effective date of a registration
statement covering the Third Private Equity Credit Agreement shares, (ii) the
maximum commitment is $15,000,000, (iii) the minimum amount we must draw through
the end of the commitment period is $2,500,000, (iv) the minimum stock price
requirement has been reduced to $.10, and (v) the minimum average trading volume
in dollars has been reduced to $20,000. The conditions to draw under this
private equity line, as described above, may materially limit the draws
available to the Company. On November 7, 2002 the Company filed a registration
statement on Form S-2 to register 5,500,000 shares underlying the Third Private
Equity Credit Agreement, which was declared effective by the SEC on November 21,
2002. On December 30, 2002 the Company filed a registration statement on Form
S-2 to register an additional 9,750,000 shares underlying the Third Private
Equity Credit Agreement, which was declared effective by the SEC on January 16,
2003. On April 11, 2003 the Company filed a registration statement on Form S-2
to register an additional 9,800,000 shares underlying the Third Private Equity
Credit Agreement, which was declared effective by the SEC on May 13, 2003.
The Private Equity Agreement commits the investor to purchase up to $25 million
of common stock subject to certain conditions pursuant to Regulation D over the
course of 12 months after an effective registration of the shares. The timing
and amounts of the purchase by the investor are at the sole discretion of the
Company. However, they do have to draw down a minimum of $10 million from the
credit line over the twelve-month period. The purchase price of the shares of
common stock are set at 91% of the market price. The market price, as defined in
the agreement, is the average of the three lowest closing bid prices of the
common stock over the ten day trading period beginning on the put date and
ending on the trading day prior to the relevant closing date of the particular
tranche.
On January 9, 2004, the Company entered into a new "Fourth Private Equity Credit
Agreement" which replaces the prior private equity agreements. The terms of the
Fourth Private Equity Credit Agreement are more favorable to the Company than
the terms of the prior Third Private Equity Credit
(Continued)
F-29
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(12) EQUITY LINE OF CREDIT (Continued)
Agreement. The new, more favorable terms are: (i) The put option price is 93% of
the three lowest closing bid prices in the ten day trading period beginning on
the put date and ending on the trading day prior to the relevant closing date of
the particular tranche, while the prior Third Private Equity Credit Agreement
provided for 91%, ii) the commitment period is two years from the effective date
of a registration statement covering the Fourth Private Equity Credit Agreement
shares, while the prior Third Private Equity Credit Agreement was for three
years, (iii) the maximum commitment is $15,000,000, (iv) the minimum amount the
Company must draw through the end of the commitment period is $1,000,000, while
the prior Third Private Equity Credit Agreement minimum amount was $2,500,000,
(v) the minimum stock price requirement is now controlled by the Company as it
has the option of setting a floor price for each put transaction (the previous
minimum stock price in the Third Private Equity Credit Agreement was fixed at
$.10), (vi) there are no fees associated with the Fourth Private Equity Credit
Agreement; the prior private equity agreements required the payment of a 5%
consulting fee, which was subsequently lowered to 4% by mutual agreement in
September 2001, and (vii) the elimination of the requirement of a minimum
average daily trading volume in dollars. The previous trading volume requirement
in the Third Private Equity Credit Agreement was $20,000.
On January 30, 2004, the Company filed a registration statement with respect to
5,000,000 shares of its common stock to be issued pursuant to the Fourth Private
Equity Credit Agreement. This registration statement became effective March 4,
2004, at which time the Third Private Equity Credit Agreement was terminated,
and the Company began drawing under the Fourth Private Equity Credit Agreement.
On June 21, 2004 the Company filed a registration statement on Form S-2 to
register an additional 9,000,000 shares underlying the Fourth Private Equity
Credit Agreement, which was declared effective by the SEC on June 29, 2004.
These financing agreements have no warrants attached to either the bridge
financing or the private equity line. Furthermore, the Company was not required
to pay the investor's legal fees, but the Company previously paid a 5%
consulting fee for the money funded in all prior transactions up until the
approval of the Fourth Private Equity Credit Agreement. The Company sold
$2,840,000 of common stock under the terms of the agreement during the year
ended June 30, 2001. The total shares issued by the Company amounted to
3,407,613. The Company incurred $139,985 of consulting fees and recorded
$303,666 of deemed interest expense as a result of the 9% discount off of the
market price. During the year ended June 30, 2002, an additional $5,585,000 of
common stock was sold under the terms of the equity credit line agreement, and
the Company issued a total of 11,607,866 shares of common stock. The Company
incurred $296,250 of consulting fees and recorded $628,805 of deemed interest
expense as a result of the 9% discount off of the market price. During the year
ended June 30, 2003, an additional $7,881,000 of common stock was sold under the
terms of the equity credit line agreement, and the Company issued a total of
29,390,708 shares of common stock. The Company incurred $211,800 of consulting
fees and recorded $856,772 of deemed interest expense as a result of the 9%
discount off of the market price. During the year ended June 30, 2004, an
additional $5,850,000 of common stock was sold under the terms of the equity
(Continued)
F-30
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(12) EQUITY LINE OF CREDIT (Continued)
credit line agreement, and the Company issued a total of 8,630,819 shares of
common stock. The Company incurred $188,000 of consulting fees which was solely
from the Third Private Equity Credit Agreement and recorded a total of $691,701
of deemed interest expense of which $555,897 is a result of the 9% discount off
the market price under the Third Private Equity Credit Agreement and $135,804 is
a result of the 7% discount off the market price under the Fourth Private Equity
Credit Agreement.
(13) LEASES
The Company leases certain office equipment under operating leases expiring in
future years. Minimum future lease payments under the non-cancelable operating
lease having a remaining term in excess of one year as of June 30, 2004 are as
follows:
Year ending June 30, Amount
2005 $ 5,604
2006 4,159
Thereafter 2,492
---------
Total minimum future lease payments $ 12,255
=========
(14) INCOME TAXES
No provision for income taxes has been recorded in the accompanying financial
statements as a result of the Company's net operating losses. The Company has
unused tax loss carryforwards of approximately $57,159,000 to offset future
taxable income. Such carryforwards expire in years beginning 2014. The deferred
tax asset recorded by the Company as a result of these tax loss carryforwards is
approximately $22,580,000 and $19,950,000 at June 30, 2004 and 2003,
respectively. The Company has reduced the deferred tax asset resulting from its
tax loss carryforwards by a valuation allowance of an equal amount as the
realization of the deferred tax asset is uncertain. The net change in the
deferred tax asset and valuation allowance from July 1, 2003 to June 30, 2004
was an increase of approximately $2,630,000.
(Continued)
F-31
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(15) REDEEMABLE CONVERTIBLE PREFERRED STOCK
On March 17, 1999, the Company finalized the private placement to foreign
investors of 35 shares of its Series G Redeemable Convertible Preferred Stock at
a purchase price of $10,000 per share and two year warrants to purchase 65,625
shares of the Company's common stock at an exercise price of $.50 per share. The
agreement was executed pursuant to Regulation D as promulgated by the Securities
Act of 1933, as amended. A total of 43,125 warrants were exercised during the
year ended June 30, 2000, and an additional 9,375 warrants were exercised during
the year ended June 30, 2001.
The Series G Preferred Stock had no dividend provisions. The preferred stock was
convertible, at any time, for a period of two years thereafter, in whole or in
part, without the payment of any additional consideration, into fully paid and
nonassessable shares of the Company's no par value common stock based upon the
"conversion formula". The conversion formula stated that the holder of the
Series G Preferred Stock would receive shares determined by dividing (i) the sum
of $10,000 by the (ii) "Conversion Price" in effect at the time of conversion.
The "Conversion Price" shall be equal to the lesser of $.54 or seventy-five
percent (75%) of the Average Closing Price of the Company's common stock for the
ten-day trading period ending on the day prior to the date of conversion.
In connection with the sale, the Company issued three preferred shares to an
unaffiliated investment banker for placement and legal fees, providing net
proceeds to the Company of $350,000. The shares underlying the preferred shares
and warrant are entitled to demand registration rights under certain conditions.
Pursuant to the Registration Rights Agreement ("RRA") the Company was required
to register 100% of the number of shares that would be required to be issued if
the Preferred Stock were converted on the day before the filing of the S-2
Registration Statement. In the event the Registration Statement was not declared
effective within 120 days, the Series G Holders had the right to force the
Company to redeem the Series G Preferred Stock at a redemption price of 120% of
the face value of the preferred stock. The Registration Statement was declared
effective on July 29, 2000. During the year ended June 30, 2000, the Series G
Preferred Stock was converted into 3,834,492 shares of the Company's common
stock.
(Continued)
F-32
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK
On April 27, 1995, the Company amended the Articles of Incorporation to provide
for the authorization of 2,000,000 shares of no par value preferred stock. The
shares were divided out of the original 50,000,000 shares of no par value common
stock. All Series of the convertible preferred stock are not redeemable and
automatically convert into shares of common stock at the conversion rates three
years after issuance.
The Company issued 4,000 shares of "Series A Convertible Preferred Stock"
("Series A Preferred Stock") on March 21, 1996 under a Regulation S Securities
Subscription Agreement. The agreement called for a purchase price of $1,000 per
share, with net proceeds to the Company, after commissions and issuance costs,
amounting to $3,600,000.
The holders of the Series A Preferred Stock could have converted up to 50% prior
to May 28, 1996, and may convert their remaining shares subsequent to May 28,
1996 without the payment of any additional consideration, into fully paid and
nonassessable shares of the Company's no par value common stock based upon the
"conversion formula". The conversion formula states that the holder of the
Preferred Stock will receive shares determined by dividing (i) the sum of $1,000
plus the amount of all accrued but unpaid dividends on the shares of Convertible
Preferred Stock being so converted by the (ii) "Conversion Price". The
"Conversion Price" shall be equal to seventy-five percent (75%) of the Market
Price of the Company's common stock; provided, however, that in no event will
the "Conversion Price" be greater than the closing bid price per share of common
stock on the date of conversion.
The agreement provides that no fractional shares shall be issued. In addition,
provisions are made for any stock dividends or stock splits that the Company may
issue with respect to their no par value common stock. The Company is also
required to reserve and keep available out of its authorized but unissued common
stock such number of shares of common stock as shall be available to effect the
conversion of all of the outstanding shares of Series A Convertible Preferred
Stock. The holders of the Series A Preferred Stock are also entitled to receive
a five percent (5%) per share, per annum dividend out of legally available funds
and to the extent permitted by law. These dividends are payable quarterly on the
last business day of each quarter commencing with the calendar quarter next
succeeding the date of issuance of the Series A Preferred Stock. Such dividends
shall be fully cumulative and shall accrue, whether or not declared by the Board
of Directors of the Company, and may be payable in cash or in freely tradeable
shares of common stock.
The Series A Preferred Stockholders shall have voting rights similar to those of
the regular common stockholders, with the number of votes equal to the number of
shares of common stock that would be issued upon conversion thereof. The Series
A Preferred Stock shall rank senior to any other class of capital stock of the
Company now or hereafter issued as to the payment of dividends and the
distribution of assets on redemption, liquidation, dissolution or winding up of
the Company.
(Continued)
F-33
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
As of June 30, 1996, 1,600 shares of the Series A Preferred Stock had been
converted into a total 425,416 shares (including accumulated dividends) of the
Company's common stock. The remaining 2,400 shares of Series A Preferred Stock
were converted into 1,061,202 shares (including accumulated dividends) of the
Company's common stock during the fiscal year ended June 30, 1997.
The Company issued 450 shares of "Series B Convertible Preferred Stock" ("Series
B Preferred Stock") and warrants to purchase up to an additional 112,500 shares
of common stock on December 17, 1996 pursuant to Regulation D and Section 4(2)
of the Securities Act of 1933. The agreement called for a purchase price of
$10,000 per share, with proceeds to the Company amounting to $4,500,000.
The holders of the Series B Preferred Stock could have converted up to 34% of
the Series B Preferred Stock 80 days from issuance (March 7, 1997), up to 67% of
the Series B Preferred Stock 100 days from issuance (March 27, 1997), and may
convert their remaining shares 120 days from issuance (April 19, 1997) without
the payment of any additional consideration, into fully paid and nonassessable
shares of the Company's no par value common stock based upon the "conversion
formula". The conversion formula states that the holder of the Series B
Preferred Stock will receive shares determined by dividing (i) the sum of
$10,000 by the (ii) "Conversion Price" in effect at the time of conversion. The
"Conversion Price" shall be equal to eighty-two percent (82%) of the Market
Price of the Company's common stock; provided, however, that in no event will
the "Conversion Price" be greater than $3.85. The warrants are exercisable at
any time for an exercise price of $5.00 and will expire five years from the date
of issue.
The agreement provides that no fractional shares shall be issued. In addition,
provisions are made for any stock dividends or stock splits that the Company may
issue with respect to their no par value common stock. The Company is also
required to reserve and keep available out of its authorized but unissued common
stock such number of shares of common stock as shall be available to effect the
conversion of all of the outstanding shares of Convertible Preferred Stock. The
holders of the Series B Preferred Stock are also entitled to receive a seven
percent (7%) per share, per annum dividend out of legally available funds and to
the extent permitted by law. These dividends are payable quarterly on the last
business day of each quarter commencing with the calendar quarter next
succeeding the date of issuance of the Series B Preferred Stock. Such dividends
shall be fully cumulative and shall accrue, whether or not declared by the Board
of Directors of the Company, and may be payable in cash or in freely tradeable
shares of common stock.
The Series B Preferred Stockholders shall have voting rights similar to those of
the regular common stockholders, with the number of votes equal to the number of
shares of common stock that would be issued upon conversion thereof. The Series
B Preferred Stock shall rank senior to any other class of capital stock of the
Company now or hereafter issued as to the payment of dividends and the
distribution of assets on redemption, liquidation, dissolution or winding up of
the Company.
(Continued)
F-34
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
On September 4, 1998, the Company received a notice of conversion from the
Series B Holders. The Series B Holders filed a lawsuit against the Company on
October 7, 1998. The Company was served on October 19, 1998. The lawsuit alleged
that the Company has breached its contract of sale to the Series B Holders by
failing to convert the Series B Holders and failure to register the common stock
underlying the Preferred Stock. The Series B Holders demanded damages in excess
of $75,000, to be determined at trial, together with interest costs and legal
fees. On April 6, 1999, the Series B Holders sold their preferred stock to an
unaffiliated third party ("the Purchaser") with no prior relationship to the
Company, or the Series B Holders. As part of the purchase agreement, the Series
B Holders were required to dismiss the lawsuit with prejudice and the Company
and the Series B Holders exchanged mutual general releases (see Series I).
As of June 30, 2000, the Series B Preferred Stock has been converted into
30,463,164 shares of the Company's common stock, and 60 shares were canceled at
the request of the holder.
During the years ended June 30, 1999 and 1998 the Company issued a total of six
Private Placements of convertible preferred stock (see schedule incorporated
into Note 15). The Private Placements are summarized as follows:
Series C Preferred Stock
On October 6, 1997, the Company finalized the private placement to foreign
investors of 210 shares of its Series C Convertible Preferred Stock at a
purchase price of $10,000 per share and warrants to purchase up to 160,000
shares of the Company's common stock at an exercise price of $1.63 per
share, and warrants to purchase up to 50,000 shares of the Company's common
stock at an exercise price of $1.562 per share. The agreement was executed
pursuant to Regulation S as promulgated by the Securities Act of 1933, as
amended. As of June 30, 2001, 40,000 warrants at the $1.63 exercise price
were exercised, and the remaining 140,000 warrants had expired. The
remaining 50,000 warrants ($1.562 exercise price) are outstanding as of June
30, 2001.
The Series C Preferred Stock is convertible, at any time, commencing 45 days
from the date of issuance and for a period of three years thereafter, in
whole or in part, without the payment of any additional consideration, into
fully paid and nonassessable shares of the Company's no par value common
stock based upon the "conversion formula". The conversion formula states
that the holder of the Series C Preferred Stock will receive shares
determined by dividing (i) the sum of $10,000 by the (ii) "Conversion Price"
in effect at the time of conversion.
(Continued)
F-35
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
The "Conversion Price" shall be equal to seventy-five percent (75%) of the
Average Closing Price of the Company's common stock; however, in no event
will the "Conversion Price" be greater than $1.222. Pursuant to the
Regulation S documents, the Company was also required to escrow an aggregate
of 3,435,583 shares of its common stock (200% of the number of shares the
investor would have received had the shares been converted on the closing
date of the Regulation S sale).
In connection with the sale, the Company paid an unaffiliated investment
banker $220,500 for placement and legal fees, providing net proceeds to the
Company of $1,879,500.
Series D Preferred Stock
On January 9, 1998, the Company finalized the private placement to foreign
investors of 50 shares of its Series D Convertible Preferred Stock at a
purchase price of $10,000 per share and warrants to purchase up to 25,000
shares of the Company's common stock at an exercise price of $1.22 per
share. The agreement was executed pursuant to Regulation S as promulgated by
the Securities Act of 1933, as amended. As of June 30, 2001 the warrants had
expired.
The Series D Preferred Stock is convertible, at any time, commencing 45 days
from the date of issuance and for a period of three years thereafter, in
whole or in part, without the payment of any additional consideration, into
fully paid and nonassessable shares of the Company's no par value common
stock based upon the "conversion formula". The conversion formula states
that the holder of the Series D Preferred Stock will receive shares
determined by dividing (i) the sum of $10,000 by the (ii) "Conversion Price"
in effect at the time of conversion. The "Conversion Price" shall be equal
to seventy-five percent (75%) of the Average Closing Price of the Company's
common stock.
In connection with the sale, the Company issued four preferred shares to an
unaffiliated investment banker for placement fees and paid legal fees of
$5,000, providing net proceeds to the Company of $495,000. The shares
underlying the preferred shares and warrant are entitled to demand
registration rights under certain conditions.
Series E Preferred Stock
On February 5, 1998, the Company finalized the private placement to foreign
investors of 50 shares of its Series E Convertible Preferred Stock at a
purchase price of $10,000 per share and warrants to purchase up to 25,000
shares of the Company's common stock at an exercise price of $1.093 per
share. The agreement was executed pursuant to Regulation S as promulgated by
the Securities Act of 1933, as amended. As of June 30, 2001 the warrants had
expired.
(Continued)
F-36
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
The Series E Preferred Stock is convertible, at any time, commencing 45 days
from the date of issuance and for a period of three years thereafter, in
whole or in part, without the payment of any additional consideration, into
fully paid and nonassessable shares of the Company's no par value common
stock based upon the "conversion formula".
The conversion formula states that the holder of the Series E Preferred
Stock will receive shares determined by dividing (i) the sum of $10,000 by
the (ii) "Conversion Price" in effect at the time of conversion. The
"Conversion Price" shall be equal to seventy-five percent (75%) of the
Average Closing Price of the Company's common stock.
In connection with the sale, the Company issued four preferred shares to an
unaffiliated investment banker for placement fees and paid legal fees of
$5,000, providing net proceeds to the Company of $495,000. The shares
underlying the preferred shares and warrant are entitled to demand
registration rights under certain conditions.
Series F Preferred Stock
On February 20, 1998, the Company finalized the private placement to foreign
investors of 75 shares of its Series F Convertible Preferred Stock at a
purchase price of $10,000 per share. The agreement was executed pursuant to
Regulation S as promulgated by the Securities Act of 1933, as amended.
The Series F Preferred Shares pay a dividend of 6% per annum, payable in
Common Stock at the time of each conversion and are convertible, at any
time, commencing May 15, 1999 and for a period of two years thereafter, in
whole or in part, without the payment of any additional consideration, into
fully paid and nonassessable shares of the Company's no par value common
stock based upon the "conversion formula". The conversion formula states
that the holder of the Series F Preferred Stock will receive shares
determined by dividing (i) the sum of $10,000 by the (ii) "Conversion Price"
in effect at the time of conversion. The "Conversion Price" shall be equal
to seventy percent (70%) of the Average Closing Price of the Company's
common stock.
In connection with the sale, the Company paid an unaffiliated investment
banker $50,000 for placement and legal fees, providing net proceeds to the
Company of $700,000. The shares underlying the preferred shares and warrant
are entitled to demand registration rights under certain conditions.
(Continued)
F-37
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
Series H Preferred Stock
On June 2, 1998, the Company finalized the private placement to foreign
investors of 100 shares of its Series H Convertible Preferred Stock at a
purchase price of $10,000 per share and Series H-"A" warrants to purchase up
to 75,000 shares of the Company's common stock at an exercise price of $1.00
per share, and Series H-"B" warrants to purchase up to 50,000 shares of the
Company's common stock at an exercise price of $1.50 per share. The
agreement was executed pursuant to Regulation D as promulgated by the
Securities Act of 1933, as amended. As of June 30, 2001 none of the warrants
had been exercised.
The Series H Preferred Stock is convertible, at any time, for a period of
two years thereafter, in whole or in part, without the payment of any
additional consideration, into fully paid and nonassessable shares of the
Company's no par value common stock based upon the "conversion formula". The
conversion formula states that the holder of the Series H Preferred Stock
will receive shares determined by dividing (i) the sum of $10,000 by the
(ii) "Conversion Price" in effect at the time of conversion. The "Conversion
Price" shall be equal to the lesser of $.53 or seventy-five percent (75%) of
the Average Closing Price of the Company's common stock for the ten-day
trading period ending on the day prior to the date of conversion.
In connection with the sale, the Company issued eight preferred shares and
paid $10,000 to an unaffiliated investment banker for placement and legal
fees, providing net proceeds to the Company of $990,000. The shares
underlying the preferred shares and warrant are entitled to demand
registration rights under certain conditions.
The Company was in technical default of the Registration Rights Agreement
("RRA"), which required the S-2 Registration Statement to be declared
effective by October 2, 1998. Pursuant to the RRA, the Company was required
to pay the Series H holders, as liquidated damages for failure to have the
Registration Statement declared effective, and not as a penalty, 2% of the
principal amount of the Securities for the first thirty days, and 3% of the
principal amount of the Securities for each thirty day period thereafter
until the Company procures registration of the Securities. On March 25,
1999, the Company issued 424,242 shares of common stock as partial payment
of the liquidated damages. The cumulative liquidated damages expense for the
years ended June 30, 2001 amounted to $140,000.
(Continued)
F-38
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
Series I Preferred Stock
On April 6, 1999, the Company entered into a Subscription Agreement with the
Purchaser of the Series B Preferred Stock whereby the Company agreed to
issue 138 shares of its Series I, 7% Convertible Preferred Stock
($1,380,000). The consideration for the subscription agreement was paid as
follows:
1. Forgiveness of approximately $725,795 of accrued interest
(dividends) in connection with the Series B Convertible Preferred
stock. The Company recorded the forgiveness of the accrued
interest (dividends) by reducing the accrual along with a
reduction in the accumulated deficit.
2. Settlement of all litigation concerning the Series B
Convertible Preferred stock.
3. Cancellation of 112,500 warrants that were issued with the
Series B Convertible Preferred stock.
4. A limitation on the owner(s) of the Series B Convertible
Preferred stock to ownership of not more than 4.99% of the
Company's outstanding common stock at any one time.
The Series I Preferred stock pays a 7% premium, to be paid in cash or freely
trading common stock at the Company's sole discretion, upon conversion.
The Series I Preferred Stock is convertible, at any time, in whole or in
part, without the payment of any additional consideration, into fully paid
and nonassessable shares of the Company's no par value common stock based
upon the "conversion formula". The conversion formula states that the holder
of the Series I Preferred Stock will receive shares determined by dividing
(i) the sum of $10,000 by the (ii) "Conversion Price" in effect at the time
of conversion. The "Conversion Price" shall be equal to seventy-five percent
(75%) of the Average Closing Price of the Company's common stock.
Pursuant to the Series I designation and the Subscription Agreement, the
Series I Holder, or any subsequent holder of the Preferred Shares, is
prohibited from converting any portion of the Preferred Stock which would
result in the Holder being deemed the beneficial owner of 4.99% or more of
the then issued and outstanding common stock of the Company.
(Continued)
F-39
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
Series K Preferred Stock
On July 17, 2000, the Company finalized the private placement to foreign
investors of 500 shares of its Series K Convertible Preferred Stock at a
purchase price of $10,000 per share. The agreement was executed in
accordance with and in reliance upon the exemption from securities
registration by Rule 506 under Regulation D as promulgated by the Securities
Act of 1933, as amended.
The Company was obligated to pay a 9% dividend on the convertible preferred
in cash or common stock at its option semi-annually, on June 30, and
December 31, of each calendar year or upon conversion date. The Company also
had the option of redeeming the convertible preferred solely through the use
of the private equity line by paying cash with the following redemption
premiums:
Days from closing 0-120 121-180 180
Redemption price as a % of Principal 105% 107.5% 110%
If the Company, for whatever reason, was unable to redeem the convertible
preferred according to the above schedule, the holder has the right to convert
the convertible preferred into common stock at a price equal to 87.5% of the
average of the three lowest closing bid prices (which need not be consecutive)
of the twenty consecutive trading days prior to the conversion date. The
agreement further provides that the Company register the underlying common
shares in a registration statement as soon as possible after the closing date,
and must use their best efforts to file timely and cause the registration
statement to become effective within 120 days from the closing date. The
registration statement was effective on December 13, 2000.
The entire amount of the Series K Convertible Preferred Stock was converted or
redeemed by the Company during the year ended June 30, 2001 into 5,664,067
shares of common stock, including 219,225 shares as payment of the 9% accrued
dividend.
The agreements provided that no fractional shares shall be issued. In addition,
provisions were made for any stock dividends or stock splits that the Company
may issue with respect to their no par value common stock. The Company was also
required to reserve and keep available out of its authorized but unissued common
stock such number of shares of common stock as shall be available to effect the
conversion of all of the outstanding shares of Convertible Preferred Stock. The
preferred stockholders shall not be entitled to vote on any matters submitted to
the stockholders of the Company, except as to the necessity to vote for the
authorization of additional shares to effect the conversion of the preferred
stock. The holders of any outstanding shares of preferred stock shall have a
preference in distribution of the Company's property available for distribution
to the holders of any other class of capital stock, including but not limited
to, the common stock, equal to $10,000 consideration per share.
(Continued)
F-40
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) CONVERTIBLE PREFERRED STOCK (Continued)
The following schedule reflects the number of shares of preferred stock that
have been issued, converted and are outstanding as of June 30, 2003, including
certain additional information with respect to the deemed preferred stock
dividends that were calculated as a result of the discount from market for the
conversion price per share:
(Continued)
F-41
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(16) Convertible Preferred Stock (Continued)
Series A Series B Series C Series D
Shares Amount Shares Amount Shares Amount Shares Amount
---------- ------------- -------- ------------- -------- ------------- -------- ------------
Balance at June 30, 1995 - $ - - $ - - $ - - $ -
Sale of Series A 4,000 3,600,000
Series A conversion (1,600) (1,440,000)
---------- -------------
Balance at June 30, 1996 2,400 2,160,000
Sale of Series B 450 4,500,000
Series A conversion (2,400) (2,160,000)
---------- ------------- -------- -------------
Balance at June 30, 1997 - - 450 4,500,000
Sale of preferred stock
(Series C - H) 210 2,100,000 54 540,000
Conversion of preferred stock (210) (2,100,000) (25) (250,000)
---------- ------------- -------- ------------- -------- ------------- -------- ------------
Balance at June 30, 1998 - - 450 4,500,000 - - 29 290,000
Sale of Series I
Conversion of preferred stock (60) (600,000) (29) (290,000)
---------- ------------- -------- ------------- -------- ------------- -------- ------------
Balance at June 30, 1999 - - 390 3,900,000 - - - -
Conversion of preferred stock, net (390) (3,900,000)
---------- ------------- -------- ------------- -------- ------------- -------- ------------
Balance at June 30, 2000 - - - - - - - -
Sale of Series K
Conversion of preferred stock
---------- ------------- -------- ------------- -------- ------------- -------- ------------
Balance at June 30, 2001 - $ - - $ - - $ - - $ -
========== ============= ======== ============= ======== ============= ======== ============
Additional information:
Discount off market price 25% 18% 25% 25%
============= ============= ============= ============
Fair market value-issue rate $ 8.31 $ 3.25 $ 1.63 $ 0.99
============= ============= ============= ============
Deemed preferred stock dividend $1,335,474 $ 998,120 $ 705,738 $182,433
============= ============= ============= ============
Series E Series F Series H Series I
Shares Amount Shares Amount Shares Amount Shares Amount
-------- ----------- -------- ----------- ------- ------------ ---------- -------------
Balance at June 30, 1995 - $ - - $ - - $ - - $ -
Sale of Series A
Series A conversion
Balance at June 30, 1996
Sale of Series B
Series A conversion
Balance at June 30, 1997
Sale of preferred stock
(Series C - H) 54 540,000 75 750,000 108 1,080,000
Conversion of preferred stock (30) (300,000) (75) (750,000)
-------- ----------- -------- ----------- ------- ------------
Balance at June 30, 1998 24 240,000 - - 108 1,080,000
Sale of Series I 138 1,380,000
Conversion of preferred stock (24) (240,000) (40) (400,000)
-------- ----------- -------- ----------- ------- ------------ ---------- -------------
Balance at June 30, 1999 - - - - 68 680,000 138 1,380,000
Conversion of preferred stock, net (68) (680,000) (138) (1,380,000)
-------- ----------- -------- ----------- ------- ------------ ---------- -------------
Balance at June 30, 2000 - - - - - - - -
Sale of Series K
Conversion of preferred stock
-------- ----------- -------- ----------- ------- ------------ ---------- -------------
Balance at June 30, 2001 - $ - - $ - - $ - - $ -
======== =========== ======== =========== ======= ============ ========== =============
Additional information:
Discount off market price 25% 30% 25% 25%
=========== =========== ============ =============
Fair market value-issue rate $ 1.07 $ 1.24 $ 0.57 $ 0.38
=========== =========== ============ =============
Deemed preferred stock dividend $182,250 $318,966 $351,628 $ 492,857
=========== =========== ============ =============
Series K Total
Shares Amount Shares Amount
----------- ------------- --------- -------------
Balance at June 30, 1995 - $ - - $ -
Sale of Series A 4,000 3,600,000
Series A conversion (1,600) (1,440,000)
--------- -------------
Balance at June 30, 1996 2,400 2,160,000
Sale of Series B 450 4,500,000
Series A conversion (2,400) (2,160,000)
------- -----------
Balance at June 30, 1997 450 4,500,000
Sale of preferred stock
(Series C - H) 501 5,010,000
Conversion of preferred stock (340) (3,400,000)
--------- -------------
Balance at June 30, 1998 611 6,110,000
Sale of Series I 138 1,380,000
Conversion of preferred stock (153) (1,530,000)
----------- ------------- --------- -------------
Balance at June 30, 1999 - - 596 5,960,000
Conversion of preferred stock, net (596) (5,960,000)
----------- ------------- --------- -------------
Balance at June 30, 2000 - - - -
Sale of Series K 50 5,000,000 50 5,000,000
Conversion of preferred stock (50) (5,000,000) (50) (5,000,000)
----------- ------------- --------- -------------
Balance at June 30, 2001 - $ - - $ -
=========== ============= ========= =============
Additional information:
Discount off market price 12.5%
=============
Fair market value-issue rate $ 1.13
=============
Deemed preferred stock dividend $ 708,130
=============
(Continued)
F-42
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK
On June 8, 1994, at a special meeting of shareholders of the Company, a one for
one hundred reverse stock split was approved reducing the number of issued and
outstanding shares of common stock from 68,875,200 shares to 688,752 shares
(510,000 shares of original stock, for $50,000, and the 178,752 shares acquired
in the merger). In addition, the board of directors approved the issuance of an
additional 27,490,000 shares of common stock that had been provided for in the
original merger documents. However, during April, 1995 the four major
shareholders agreed to permanently return 12,147,480 of these additional shares.
Therefore, the net additional shares of common stock issued amounts to
15,342,520 shares, and the net additional shares issued as a result of this
transaction have been reflected in the financial statements of the Company (See
Statement of Stockholders' Equity).
The Company has sold 1,290,069 shares of its common stock through Private
Placement Memorandums dated April 20, 1994 and December 7, 1994, as subsequently
amended. The net proceeds to the Company under these Private Placement
Memorandums were approximately $1,000,000. In addition, the Company has sold
690,722 shares of "restricted common stock" during the year ended June 30, 1995.
These shares are restricted in terms of a required holding period before they
become eligible for free trading status. As of June 30, 1995, receivables from
the sale of common stock during the year amounted to $523,118. During the year
ended June 30, 1996, 410,500 shares of the common stock related to these
receivables were canceled and $103,679 was collected on the receivable. The
unpaid balance on these original sales and other subsequent sales of common
stock, in the amount of $35,559, as of June 30, 1997, is reflected as a
reduction to stockholder's equity on the Company's balance sheet.
During the year ended June 30, 1995, 115,650 shares of common stock were issued
to satisfy obligations of the Company amounting to $102,942, approximately $.89
per share. The stock was recorded at the fair market value at the date of
issuance.
In addition, during the year ended June 30, 1995, wages accrued to the officers
of the Company in the amount of $151,000, were satisfied with the issuance of
377,500 shares of restricted common stock. Compensation expense has been
recorded during the fiscal year pursuant to the employment agreements with the
officers. In addition, during the year ended June 30, 1995, 75,000 shares of
restricted common stock were issued to a company executive pursuant to an
employment agreement. Compensation expense of $78,750 was recorded in
conjunction with this transaction.
(Continued)
F-43
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
During the year ended June 30, 1996, the Company sold, under the provisions of
Regulation S, a total of 700,471 shares of common stock. The proceeds from the
sale of these shares of common stock amounted to $1,561,110. The Company issued
an additional 2,503,789 shares ($4,257,320) of its common stock as a result of
the exercise of stock options issued in exchange for services rendered during
the year. Cash proceeds associated with the exercise of these options and the
issuance of these shares amounted to $1,860,062, with the remaining $2,397,258
reflected as noncash compensation. These 2,503,789 shares were issued at various
times throughout the fiscal year. The stock has been recorded at the fair market
value at the various grant dates for the transactions. Compensation, aggregating
$2,298,907, has been recorded at the excess of the fair market value of the
transaction over the exercise price for each of the transactions.
As of June 30, 1996, there were a total of 425,416 shares of common stock issued
as a result of the conversion of the Series A Convertible Preferred Stock and
the related accumulated dividends (See Note 16).
Common stock issued to employees as a result of the exercise of their incentive
stock options and their non-qualified stock options during the fiscal year ended
June 30, 1996 amounted to 1,187,900, of which 996,400 shares were issued
pursuant to the provisions of the non-qualified stock option plan and were
exercised in a "cash-less" transaction, resulting in compensation to the
officers of $567,164. Compensation cost was measured as the excess of fair
market value of the shares received over the value of the stock options tendered
in the transaction. The excess of fair market value at July 15, 1995
approximated $.57 per share on the 996,400 shares issued.
During the year ended June 30, 1997, the Company issued a total of 1,881,295
shares ($5,461,589) of its common stock. The conversion of Series A Convertible
Preferred Stock, including accrued dividends (See Note 16), accounted for the
issuance of 1,081,962 shares ($2,808,643). The remaining 799,333 shares were
issued as follows:
1. Services rendered by independent consultants in exchange for
31,200 shares. Research and development expenses of $90,480 were
charged as the fair market value at November 20, 1996 was $2.90
per share.
2. On December 20, 1996, bonus stock was issued to Company
employees, 3,200 shares. Compensation expense of $10,463 was
charged as the fair market value at that date was $3.27 per
share.
3. On January 3, 1997 bonus stock was issued to the officers of
the Company, 350,000 shares. Compensation expense of $907,900
was charged, as the fair market value at that date was $2.59 per
share.
(Continued)
F-44
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
4. On February 13, 1997, 4,000 shares were issued to an outside
consultant in exchange for services performed. Consulting
services of $11,500 were recorded, representing the fair market
value ($2.88 per share) on that date.
5. Services rendered by an independent consultant during June
1997 in exchange for 199,000 shares. Consulting expenses of
$548,149 were charged, as the fair market value on the date of
the transaction was approximately $2.75 per share.
6. Exercise of incentive stock options comprised of 27,000
shares ($33,750) exercised and paid for at $1.25 per share, and
334,933 shares ($1,103,203) acquired in the exchange for options
tendered in a cash-less transaction.
7. The Company repurchased 150,000 shares ($52,500), which had
been previously acquired by one of its employees.
During the year ended June 30, 1998, the Company issued a total of 11,588,460
shares ($8,583,721) of its common stock. The conversion of Convertible Preferred
Stock (see Note 16) accounted for the issuance of 6,502,448 shares ($4,984,684).
The remaining 5,056,012 shares were issued as follows:
1. Services rendered by independent consultants in exchange for
100,000 shares. Consulting expenses of $221,900 were charged as
the fair market value at July 10, 1997 was $2.22 per share.
2. Services rendered by an independent consultant in exchange
for 200,000 shares. Consulting expenses of $400,000 were charged
as the fair market value at August 20, 1997 was $2.00 per share.
3. Services rendered by an independent consultant in exchange
for 40,000 shares. Consulting expenses of $67,480 were charged
as the fair market value at September 4, 1997 was $1.69 per
share.
4. Services rendered by a public relations company in exchange
for 166,000 shares. Public relations expenses of $269,750 were
charged as the fair market value at October 24, 1997 was $1.63
per share.
5. On December 15, 1997, bonus stock was issued to Company
employees, for 39,300 shares. Compensation expense of $41,658
was charged as the fair market value at that date was $1.06 per
share.
(Continued)
F-45
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
6. Services rendered by an independent consultant in exchange
for 250,000 shares. Consulting expenses of $320,000 were charged
as the fair market value at January 7, 1998 was $1.28 per share.
7. Services rendered by an independent consultant during May
1998 in exchange for 200,000 shares. Consulting expenses of
$140,000 were charged, as the fair market value on that date was
$.70 per share.
8. The Company sold 500,000 shares on May 15, 1998 in a
Regulation D offering at $.40 per share, and received cash
proceeds of $200,000.
9. On June 5, 1998, the Company issued to its chief executive
officer 3,500,000 shares ($1,890,000) as consideration for an
exclusive Patent License Agreement (see Note 7). The market
value of the stock on this date was $.54 per share. The excess
of the fair market value of the common stock over the historical
cost basis of the patent license was recorded as a distribution
to the shareholder; recorded as a reduction to additional
paid-in capital of $3,199,000.
10. On June 11, 1998, the Company issued 25,000 shares to its
corporate counsel as additional bonus compensation. Legal
expenses of $12,750 were recorded as the market value of the
stock on that date was $.51 per share.
11. A total of 65,712 non-qualified stock options were exercised
and proceeds of $22,999 ($.35 per share) was received by the
Company.
On July 10, 1998, the majority shareholders of the Company authorized, by
written action, the Company's adoption of an Amendment to the Company's Articles
of Incorporation increasing the Company's authorized shares of common stock from
48,000,000 shares to 100,000,000 shares. The Florida Statutes provide that any
action to be taken at an annual or special meeting of shareholders may be taken
without a meeting, without prior notice and without a vote, if the action is
taken by a majority of outstanding stockholders of each voting group entitled to
vote. On August 5, 1998, the Company filed an Information Statement with the
Securities and Exchange Commission with regard to the Written Action. The
Majority Shareholders consent with respect to the Amendment was effective on
February 18, 1999. The number of authorized shares was further increased to
150,000,000 shares during the shareholders annual meeting held on May 10, 2000,
and increased again during the 2002 annual meeting to 200,000,000 shares,
effective January 3, 2003.
During the year ended June 30, 1999, the Company issued a total of 12,804,131
shares ($5,837,656) of its common stock. The conversion of Convertible Preferred
Stock (see Note 16) accounted for the issuance of 4,865,034 shares ($1,972,296).
The remaining 7,939,097 shares were issued as follows:
(Continued)
F-46
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
1. The Company sold 200,000 shares on August 5, 1998 in a
Regulation D offering at $.30 per share, and received cash
proceeds of $60,000.
2. In June 1999, the Company issued to its chief executive
officer 3,500,000 shares ($1,890,000), representing the balance
of shares to be issued as consideration for the exclusive Patent
License Agreement (see Note 7).
3. On November 9, 1998, the Company issued 15,000 shares to its
corporate counsel as additional bonus compensation. Legal
expenses of $10,800 were recorded as the market value of the
stock on that date was $.72 per share.
4. A total of 65,612 non-qualified stock options were exercised
and proceeds of $22,964 ($.35 per share) was received by the
Company. An additional $101,500 was received this year for stock
sold in the prior year.
5. A total of 480,000 shares were issued in connection with
loans that were received by the Company. The total loan fee
expenses (based on the market value of the stock at the date of
issuance) charged to the statement of operations for the year
was $292,694, or an average of $.61 per share.
6. A total of 2,974,043 shares were issued as repayment of
various accounts payable and loans payable during the year. A
total of $1,196,992 (average of $.40 per share) of debts were
satisfied through the issuance of the stock.
7. On December 11, 1998, bonus stock was issued to Company
employees, for 130,200 shares. Compensation expense of $79,422
was charged as the fair market value at that date was $.61 per
share.
8. On March 26, 1999, the Company issued 424,242 shares of stock
as partial-payment ($140,000) on the liquidated damages in
connection with Series H Preferred Stock. The fair market value
at that date was $.33 per share.
9. During the year a total of 150,000 shares were issued for to
various independent parties for services rendered to the
Company. Expenses of $81,788 were charged, or an average price
of $.50 per share.
(Continued)
F-47
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
During the year ended June 30, 2000, the Company issued a total of 56,214,003
shares ($12,997,328) of its common stock. The conversion of Convertible
Debentures accounted for the issuance of 4,060,398 shares ($3,958,223), the
conversion of Redeemable Convertible Preferred Stock (see Note 15) accounted for
the issuance of 3,834,492 shares ($507,115), and the conversion of Convertible
Preferred Stock (see Note 16) accounted for the issuance of 41,581,242 shares
($6,806,219). The remaining 6,737,871 shares were issued as follows:
1. The Company sold 100,000 shares on April 27, 2000 in a
Regulation D offering at $1.57 per share, and received cash
proceeds of $157,000.
2. A total of 5,061,294 shares were issued as repayment of
various loans payable during the year. A total of $1,067,665
(average of $.21 per share) of debts were satisfied through the
issuance of the stock.
3. On November 12, 1999, bonus stock was issued to Company
employees, for 145,000 shares. Compensation expense of $12,325
was charged as the fair market value at that date was $.09 per
share. The company also canceled 8,000 shares, which had been
previously issued to an independent contractor for consulting
services. A reduction of $31,000 was recorded to consulting
expenses for the year.
4. A total of 7,297 shares were issued in connection with a loan
that was received by the Company. The total loan fee expense and
interest charged to income amounted to $2,408 during the year.
5. During the year at total of 150,652 shares were issued for
the exercise of warrants. On March 21, 2000, the Company
received $100,000 for the exercise of 107,527 warrants at an
exercise price of $.93 per share. The Company recorded a charge
to consulting expense, as the fair market value at the date the
warrants were issued was $1.84. The Company also received
$21,563 from the exercise of 43,125 of Series G Preferred Stock
warrants during the last quarter of the fiscal year.
6. Exercise of 1,281,628 incentive stock options, ($395,810)
exercised and paid for at prices ranging from $.13 per share to
$1.13 per share.
During the year ended June 30, 2001, the Company issued a total of 13,916,169
shares ($12,333,724) of its common stock. The conversion of Convertible
Preferred Stock (see Note 16) accounted for the issuance of 5,664,067 shares
($5,580,531), and the common stock issued through the equity line of credit (See
Note 12) accounted for the issuance of 3,407,613 shares ($3,143,666). The
remaining 4,844,489 shares were issued as follows:
(Continued)
F-48
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
1. A total of 810,000 shares were issued as repayment of a loan
payable during the year. (See Note 10) A total of $530,000 of
debt was satisfied through the issuance of the stock, and an
additional $863,200 was charged as interest expense as the fair
market value of the stock at the date of issuance was $1.72 per
share.
2. On December 7, 2000, 143,500 shares of bonus stock were
issued to Company employees. Compensation expense of $219,555
was charged as, the fair market value of the common stock at
that date was $1.53 per share. The Company also issued 10,000
shares on May 17, 2001. Consulting services of $8,300 was
charged, as the fair market value of the stock was $.83 per
share.
3. During the year a total of 99,375 shares of common stock were
issued for the exercise of warrants. The Company received $4,687
from the exercise of 99,375 Series G Preferred Stock warrants.
On August 10, 2000, the Company received $65,200 for the
exercise of 40,000 Series C Preferred Stock warrants at an
exercise price of $1.63 per share.
4. Common stock issued to officers as a result of the exercise
of their incentive stock options and their non-qualified stock
options amounted to 3,755,414 shares. The options were exercised
in a "cash-less" transaction, resulting in compensation to the
officers of $1,848,566. An additional 26,200 shares were issued
to employees upon the exercise of their incentive stock options
during the year, at exercise prices ranging from $.35 per share
to $.60 per share.
During the year ended June 30, 2002, the Company issued a total of 12,167,866
shares ($6,508,155) of its common stock. The common stock issued through the
equity line of credit (See Note 12) accounted for the issuance of 11,607,866
shares ($6,213,805). The remaining 560,000 shares were issued as follows:
1. On November 21, 2001, 210,000 shares of bonus stock were
issued to Company employees. Deferred compensation of $117,600
was charged as, the fair market value of the common stock at
that date was $.56 per share, and the stock will not be
physically delivered to the employees until January 2003.
2. A total of 350,000 shares were issued in conjunction with the
settlement on March 22, 2002 of a lawsuit. Settlement expense of
$176,750 has been charged on the statement of operations, as the
fair market value of the stock at the date of issuance was $.51
per share.
(Continued)
F-49
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
During the year ended June 30, 2003, the Company issued a total of 31,398,326
shares ($9,708,425) of its common stock. The common stock issued through the
equity line of credit (See Note 12) accounted for the issuance of 29,390,708
shares ($8,737,772). The remaining 2,007,618 shares were issued as follows:
1. During December 2002, 258,500 shares of bonus stock were
issued to Company employees. Compensation of $62,425 was charged
as, the fair market value of the common stock on the dates of
issuance averaged $.24 per share. In addition, the Company
recorded an adjustment for deferred compensation, which resulted
in a reduction to common stock for $73,500.
2. A total of 1,194,118 shares were issued in conjunction with
the settlement on June 5, 2003 of a lawsuit. Settlement expense
of $841,853 has been charged on the statement of operations, as
the fair market value of the stock at the date of issuance was
$.70 per share.
3. During the year a total of 555,000 shares were issued to
various parties for services rendered to the Company. Expenses
of $139,875 were charged, or an average price of $.25 per share.
During the year ended June 30, 2004, the Company issued a total of 10,333,373
shares ($7,867,351) of its common stock. The common stock issued through the
equity line of credit (See Note 12) accounted for the issuance of 8,630,819
shares ($5,850,000). The remaining 1,702,554 shares were issued as follows:
1. During November 2003, 401,785 shares were issued in
conjunction with the settlement on September 18, 2003 of a
lawsuit. Settlement expense of $450,000 has been charged on the
statement of operations as the fair market value of the stock at
the date of the settlement agreement was $1.12 per share.
2. During January 2004, 333,000 shares of bonus stock were
issued to Company employees. Compensation of $382,950 was
charged as the fair market value of the common stock on the date
of issuance was $1.15 per share.
(Continued)
F-50
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(17) COMMON STOCK (Continued)
3. Common stock issued to directors as a result of the exercise
of their incentive stock options amounted to 450,000 shares
during the year. The Company received $262,500 from the exercise
of 450,000 option shares. The exercise prices ranging from $.55
per share to $.65 per share.
4. Common stock issued to employees as a result of the exercise
of their incentive stock options amounted to 517,769 shares
during the year. The Company received $230,201 from the exercise
of 517,769 option shares. The exercise prices ranging from $.19
per share to $.65 per share.
(18) STOCK OPTIONS
During July 1994, the Company adopted a non-qualified Stock Option Plan (the
"Plan"), whereby officers and employees of the Company may be granted options to
purchase shares of the Company's common stock. Under the plan and pursuant to
their employment contracts, an officer may be granted non-qualified options to
purchase shares of common stock over the next five calendar years, at a minimum
of 250,000 shares per calendar year. The exercise price shall be thirty-five
percent of the fair market value at the date of grant. On July 5, 1995 the Board
of Directors authorized an amendment to the Plan to provide that upon exercise
of the option, the payment for the shares exercised under the option may be made
in whole or in part with shares of the same class of stock. The shares to be
delivered for payment would be valued at the fair market value of the stock on
the day preceding the date of exercise. The plan was terminated effective July
1, 1996, however the officers will be issued the options originally provided
under the terms of their employment contracts.
On March 29, 1995, the incentive stock option plan was approved by the Board of
Directors and adopted by the shareholders at the annual meeting. This original
plan was revised and on January 3, 2000 the Board of Directors adopted the
Company's "2000 Non-Statutory Plan", and the plan was subsequently approved by
the shareholders on May 10, 2000 at the annual meeting. This plan provides for
the granting, exercising and issuing of incentive stock options pursuant to
Internal Revenue Code Section 422. The Company may grant incentive stock options
to purchase up to 4,850,000 shares of common stock of the Company. This Plan
also allows the Company to provide long-term incentives in the form of stock
options to the Company's non-employee directors, consultants and advisors, who
are not eligible to receive incentive stock options. In January 2002, our Board
replaced the 1995 Plan and 2000 Plan with a new combined stock option plan, the
2002 Incentive and Non-Statutory Stock Option Plan (the "2002 Plan"), which
provides for the grant of incentive and non-statutory options to purchase an
aggregate of 6,340,123 shares of Common Stock. Upon approval of the 2002 Plan at
the next shareholders' meeting, all options outstanding under the 1995 and 2000
Plans will remain outstanding; however, no new options will be granted under
those plans. The Board of Directors or a company established compensation
committee has direct responsibility for the administration of these plans.
(Continued)
F-51
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
The exercise price of the non-statutory stock options shall be equal to no less
than 50% of the fair market value of the common stock on the date such option is
granted.
On February 4, 2004, the Board of Directors adopted the Company's 2004
Non-Statutory Stock Option Plan (the "2004 Plan"), which was adopted by the
shareholders on March 24, 2004 at the annual meeting, to provide a long-term
incentive for employees, non-employee directors, consultants, attorneys and
advisors of the Company. The maximum number of options that may be granted under
the 2004 Plan shall be options to purchase 8,432,392 shares of Common Stock (5%
of our issued and outstanding common stock as of February 4, 2004). Options may
be granted under the 2004 Plan for up to 10 years after the date of the 2004
Plan. The 2004 Non-Statutory Stock Plan replaced the 2002 Incentive and
Non-Statutory Stock Option Plan.
In accordance with the provisions of APB No. 25, the Company records the
discount from fair market value on the non-qualified stock options as a charge
to deferred compensation at the date of grant and credits additional paid-in
capital. The compensation is amortized to income over the vesting period of the
options. In addition, the Company is periodically accruing compensation on the
officers' incentive stock options in accordance with the provisions of FASB
Interpretation No. 28 ("Accounting for Stock Appreciation Rights and Other
Variable Stock Option or Award Plans").
Transactions and other information relating to the plans are summarized as
follows:
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
Outstanding at June 30, 1998 701,896 2.42 1,884,288 2.66
Granted 786,635 .48 750,000 .43
Exercised - (65,612) .35
Canceled (82,500) 3.37 -
-------------- -------------
Outstanding at June 30, 1999 1,406,031 .53 ** 2,568,676 2.24
Granted 3,139,459 .34 -
Exercised (770,702) .37 (318,676) .35
Canceled (64,334) .47 -
-------------- -------------
Outstanding at June 30, 2000 3,710,454 .42 2,250,000 2.35
Granted 1,915,700 2.59 -
Exercised (3,030,964) .32 (750,000) .31
Canceled (279,982) .60 (1,500,000) 2.75
------------- --------------
Outstanding at June 30, 2001 2,315,208 2.38 -
Granted 6,839,864 .68 -
Exercised - -
Canceled (2,695,482) 1.17 -
------------ --------------
Outstanding at June 30, 2002 6,459,590 1.57 -
Granted 1,459,705 .38 -
Exercised - -
Canceled (56,788) .74 -
------------- --------------
Outstanding at June 30, 2003 7,862,507 1.19 -
Granted 1,576,620 1.12 31,748 .69
Exercised (517,769) .44 -
Canceled (97,525) .78 -
-------------
Outstanding at June 30, 2004 8,823,833 1.26 31,748 .69
=========== =============
** On June 25, 1999, the exercise price of 502,225 outstanding incentive stock
options was restated to $.60 per share. The Company has recorded compensation of
$330,569 during the fiscal year ended June 30, 1999 as a result of this
repricing, in accordance with the guidelines discussed in the proposed FASB
interpretation of APB Opinion No. 25.
(Continued)
F-53
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
Director Plan:
Incentive Stock Options Non Statutory Stock Options
-------------------------------- ----------------------------
Shares Wtd. Avg. Price Shares Wtd. Avg.
------------- ---------------- ------------- ------------
Price
Outstanding at June 30, 2000 -0-
Granted 150,000 $.65
Exercised -
Canceled -
------------
Outstanding at June 30, 2001 150,000 .65
Granted 300,000 .55
Exercised -
Canceled -
-----------
Outstanding at June 30, 2002 450,000 .58
Granted 400,000 .18
Exercised -
Canceled -
-------------
Outstanding at June 30, 2003 850,000 .40 -
Granted 100,000 1.07 700,000 .76
Exercised (450,000) .58 -
Canceled - -
------------- --------
Outstanding at June 30, 2004 500,000 .39 700,000 .76
=========== ========
At June 30, 2004, 2003 and 2002, 7,053,586, 4,941,985 and 2,244,045
respectively, of the employee incentive stock options were vested and
exercisable. The employee stock options vest at various rates over periods up to
ten years. At June 30, 2004, 2003 and 2002, 650,000, 575,000 and 300,000,
respectively, of the director stock options were vested and exercisable. Shares
of authorized common stock have been reserved for the exercise of all options
outstanding. The following summarizes the option transactions that have
occurred:
On July 5, 1994 the Company issued non-qualified options to its officers and
directors to purchase an aggregate of 750,000 shares of common stock at 35%
of the fair market value at the date of grant. Compensation expense of
$567,164 was recorded during the year ended June 30, 1996 as a result of the
discount from the market value.
(Continued)
F-54
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
On November 7, 1994, the Company granted 300,000 non-qualified options to
its general counsel, currently a vice-president of the Company, at an
exercise price of $0.50 per share. Deferred compensation of $150,000 was
recorded on the transaction and is being amortized over the vesting period.
The options were all exercised as of June 30, 1997.
On March 30, 1995, the Company granted to the director of engineering, a
non-qualified option to purchase up to 150,000 shares of common stock per
year, or a total of 450,000 shares, during the period March 30, 1995 and
ending March 31, 1999. The exercise price shall be $0.35 per share. The
options do not "vest" until one year from the anniversary date. Deferred
compensation of $472,500 was recorded on the transaction and is being
amortized over the vesting period. The Company also granted the individual,
incentive options to purchase 75,000 shares of common stock at an exercise
price of $1.40 per share. The options originally expired on March 30, 1998,
but were reissued on March 30, 1998 for two years.
On July 5, 1995 the Company issued non-qualified options to its officers and
directors to purchase an aggregate of 750,000 shares of common stock at 35%
of the fair market value at the date of grant. Compensation expense was
recorded during the year ended June 30, 1996 as a result of the discount
from the market value.
On September 1, 1995, the Company issued to its three officers and directors
incentive options to purchase 107,527 shares, individually, at an exercise
price of $0.93 per share (110% of the fair market value). The options expire
on September 1, 1999.
On September 1, 1995, the Company issued to an employee incentive options to
purchase 119,047 shares of common stock at an exercise price of $0.84 per
share. The options expire on September 1, 1999
At various dates during the fiscal year ended June 30, 1996, the Company
issued to various employees incentive options to purchase 328,681 shares of
common stock at prices ranging from $0.81 to $8.18. In all instances, the
exercise price was established as the fair market value of the common stock
at the date of grant, therefore no compensation was recorded on the issuance
of the options. In most cases, one-third of the options vest one year from
the grant date, with one-third vesting each of the next two years. The
options expire in ten years from the grant date.
On July 4, 1996, the Company issued to its three officers and directors
incentive options to purchase 22,883 shares, individually, at an exercise
price of $4.37 per share (110% of the fair market value). The options expire
on July 4, 2001.
(Continued)
F-55
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
On July 5, 1996 the Company issued non-qualified options to its officers and
directors to purchase an aggregate of 750,000 shares of common stock at 35%
of the fair market value at the date of grant. Deferred compensation of
$1,891,500 was recorded on the transaction and is being amortized over the
remaining term of the employment contracts (three years).
At various dates during the year ended June 30, 1997, the Company issued to
various employees incentive options to purchase 264,778 shares of common
stock at prices ranging from $2.56 to $3.81. In all instances, the exercise
price was established as the fair market value of the common stock at the
date of grant, therefore no compensation was recorded on the issuance of the
options. In most cases, one-third of the options vest one year from the
grant date, with one-third vesting each of the next two years. The options
expire in ten years from the grant date.
On July 4, 1997, the Company granted to its three officers and directors
incentive options to purchase 34,000 shares, individually, at an exercise
price of $2.94 per share (110% of the fair market value). The options expire
on July 4, 2002.
On July 5, 1997, the Company issued non-qualified options to its officers
and directors to purchase 750,000 shares of common stock at 35% of the fair
market value at the date of grant. Deferred compensation of $1,340,625 was
recorded on the transaction and is being amortized over the remaining term
of the employment contract (two years).
At various dates during the year ended June 30, 1998, the Company issued to
various employees incentive options to purchase 204,905 shares of common
stock at prices ranging from $.55 to $2.60. In all instances, the exercise
price was established as the fair market value of the common stock at the
date of grant, therefore no compensation was recorded on the issuance of the
options. In most cases, one-third of the options vest one year from the
grant date, with one-third vesting each of the next two years. The options
expire in ten years from the grant date.
On July 5, 1998, the Company issued non-qualified options to its officers
and directors to purchase 750,000 shares of common stock at 35% of the fair
market value at the date of grant. Deferred compensation of $622,500 was
recorded on the transaction and is being amortized over the remaining term
of the employment contract (one year).
(Continued)
F-56
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
At various dates during the year ended June 30, 1999, the Company issued to
various employees incentive options to purchase 786,635 shares of common
stock at prices ranging from $.46 to $.60. In all instances, the exercise
price was established as the fair market value of the common stock at the
date of grant, therefore no compensation was recorded on the issuance of the
options. In most cases, one-third of the options vest one year from the
grant date, with one-third vesting each of the next two years. The options
expire in ten years from the grant date.
At various dates during the year ended June 30, 2000, the Company issued to
its officers and various employees incentive options to purchase 3,139,459
shares of common stock at prices ranging from $.23 to $4.38. The exercise
price was established as the fair market value of the common stock at the
date of grant for employees, and 110% of the fair market value at the date
of grant for officers, therefore no compensation was recorded on the
issuance of the options. The officers' options vested immediately, while the
employees' options vest one-third from the grant date, with one-third
vesting each of the next two years. The options expire in five years from
the grant date.
At various dates during the year ended June 30, 2001, the Company issued to
its officers and various employees incentive options to purchase 1,915,700
shares of common stock at prices ranging from $.65 to $2.85. The exercise
price was established as the fair market value of the common stock at the
date of grant for employees, and 110% of the fair market value at the date
of grant for officers, therefore no compensation was recorded on the
issuance of the options. The officers' options vested immediately, while the
employees' options vest one-third from the grant date, with one-third
vesting each of the next two years. The options expire in five years from
the grant date.
In addition, on November 20, 2000 the Company granted to each director a
stock option to purchase 50,000 shares (an aggregate of 150,000 shares) of
the Company's common stock at an exercise price of $.65 per share. The
option expires in ten years and shall become exercisable on a quarterly
pro-rata basis (12,500 shares) from the date of grant. The option is not
intended to be an incentive stock option pursuant to Section 422 of the
Internal Revenue Code.
At various dates during the year ended June 30, 2002, the Company issued to
its officers and various employees incentive options to purchase 6,839,864
shares of common stock at prices ranging from $.50 to $.93. The exercise
price was established as the fair market value of the common stock at the
date of grant for employees, and 110% of the fair market value at the date
of grant for officers, therefore no compensation was recorded on the
issuance of the options.
(Continued)
F-57
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
Vesting for certain of the officers' options is immediately, while the other
officers' options and the employees' options vest over varying periods up to
three years from the date of grant. The options expire from four to ten
years from the grant date.
In addition, on November 20, 2001 the Company granted to each director a
stock option to purchase 100,000 shares (an aggregate of 300,000 shares) of
the Company's common stock at an exercise price of $.55 per share. The
option expires in ten years and shall become exercisable on a quarterly
pro-rata basis (25,000 shares) from the date of grant. The option is not
intended to be an incentive stock option pursuant to Section 422 of the
Internal Revenue Code.
At various dates during the year ended June 30, 2003, the Company issued to
its officers and various employees incentive options to purchase 1,459,705
shares of common stock at prices ranging from $.19 to $.79. The exercise
price was established as the fair market value of the common stock at the
date of grant for employees, and 110% of the fair market value at the date
of grant for officers, therefore no compensation was recorded on the
issuance of the options. Vesting for certain of the officers' options is
immediately, while the other officers' options and the employees' options
vest over varying periods up to three years from the date of grant. The
options expire from four to ten years from the grant date.
In addition, at various dates during the year ended June 30, 2003 the
Company granted to each new director a stock option to purchase 100,000
shares (an aggregate of 400,000 shares) of the Company's common stock at
exercise price ranging from $.20 to $.25 per share. The option expires in
ten years and shall become exercisable on a quarterly pro-rata basis (25,000
shares) from the date of grant. The option is not intended to be an
incentive stock option pursuant to Section 422 of the Internal Revenue Code.
At various dates during the year ended June 30, 2004, the Company issued to
its officers and various employees incentive options to purchase 1,576,620
shares of common stock at prices ranging from $.81 to $1.25. At various
dates during the year ended June 30, 2004, the Company issued to various
employees Non-Statutory options to purchase 31,748 shares of common stock at
prices ranging from $.39 to $.78. The exercise price was established as the
fair market value of the common stock at the date of grant for employees,
and 110% of the fair market value at the date of grant for an officer,
therefore no compensation was recorded on the issuance of the options.
Vesting for certain of the officers' options is immediate, while the other
officers' options and the employees' options vest over varying periods up to
five years from the date of grant. The options expire from four to ten years
from the grant date.
(Continued)
F-58
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
In addition, at various dates during the year ended June 30, 2004, the
Company issued to its Directors stock options to purchase 100,000 shares of
the Company's common stock at prices ranging from $1.03 to $1.11. At various
dates during the year ended June 30, 2004, the Company issued to its
Directors Non-Statutory options to purchase 700,000 shares of common stock
at prices ranging from $.69 to $.88. The options expire in ten years and
shall become exercisable on a quarterly pro-rata basis (50,000 shares) from
the date of grant. Options issued to the Directors are not intended to be
incentive stock options pursuant to Section 422 of the Internal Revenue
Code.
The following table summarizes information about all of the stock options
outstanding at June 30, 2004:
At June 30, 2004, the Company has issued options pursuant to four different
stock option plans, which have been previously described. The Company applies
APB Opinion No. 25 and related Interpretations in accounting for its plans.
Accordingly, no compensation cost has been recognized for its fixed stock option
plans with respect to its employees, however compensation has been recorded with
respect to its officers due to their provisions of utilizing "additional
incentive stock options" to exercise their incentive stock options, and acquire
shares of common stock. The compensation cost that has been charged against
income for the officers was $(178,250) and $(262,200) for 2003 and 2002,
respectively.
(Continued)
F-59
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(18) STOCK OPTIONS (Continued)
The weighted average Black-Scholes value of options granted during 2004, 2003
and 2002 was $.49, $.19 and $.36 per option, respectively. Had compensation cost
for the Company's fixed stock-based compensation plan been determined based on
the fair value at the grant dates for awards under this plan consistent with the
method of SFAS 123, the Company's pro forma net loss and pro forma net loss per
share would have been as indicated below:
From
Inception
(December 10,
Year Ended Year Ended Year Ended 1993) to
June 30, 2004 June 30, 2003 June 30, 2002 June 30, 2003
------------- ------------- ------------- --------------
Net loss to common shareholders -
As reported $ (8,402,959) $ (8,180,524) $ (7,677,560) $ (68,844,322)
============= ============= ============== =============
Pro forma $ (7,221,569) $ (7,328,944) $ (7,031,083) $ (65,582,880)
============= ============= ============== =============
Basic and diluted loss per share -
As reported $ (.05) $ (.06) $ (.06) $ (1.10)
============== ============== ============== ==============
Pro forma $ (.04) $ (.05) $ (.06) $ (1.05)
============== ============== ============== ==============
For purposes of the preceding proforma disclosures, the weighted average fair
value of each option has been estimated on the date of grant using the
Black-Scholes options-pricing model with the following weighted average
assumptions used for grants in 2004, 2003 and 2002, respectively: no dividend
yield; volatility of 75.65%, 107.8% and 79.2%; risk-free interest rate of 4%, 4%
and 5%; and an expected term of five years.
(19) CONCENTRATION OF CREDIT RISK
During the year, the Company has maintained cash balances in excess of the
Federally insured limits. The funds are with a major money center bank.
Consequently, the Company does not believe that there is a significant risk in
having these balances in one financial institution. The cash balance with the
bank at June 30, 2004 was $578,880.
(Continued)
F-60
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(20) FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying values of cash and cash equivalents, receivables, accounts payable
and accrued liabilities approximated their fair values due to the short maturity
of these instruments. The fair value of the Company's debt obligations is
estimated based on the quoted market prices for the same or similar issues or on
current rates offered to the Company for debt of the same remaining maturities.
At June 30, 2004 and 2003, the aggregate fair value of the Company's debt
obligations approximated its carrying value.
(21) COMMITMENTS AND CONTINGENCIES
On August 29, 1999, the Company entered into five-year employment agreements
with Richard Grable (CEO), Allan Schwartz (Executive Vice President) and Linda
Grable (President). Under these agreements, base annual salaries were as
follows: Richard Grable, $286,225; Linda Grable, $119,070; and Allan Schwartz,
$119,070. In addition, each person received a car allowance of $500 per month.
Each employment agreement provided for performance bonuses, health insurance,
car allowances, and other customary benefits, and a cost of living adjustment of
7% per annum. No bonuses were paid to date to the three executives during the
five-year terms of their respective employment agreements. Upon the expiration
of Mr. Schwartz's employment agreement on August 29, 2004, he entered into a
one-year Employment Extension Agreement on August 30, 2004 which provides for an
annual salary of $185,000 and options to purchase up to an aggregate of 500,000
shares of the Company's common stock at an exercise price of $.30 per share, in
accordance with the Company's 2004 Non-Statutory Stock Option Plan. These
options shall vest on August 30, 2005.
At a special meeting of the Board of Directors held on August 28, 2001 the
Board, with Linda Grable abstaining, voted to grant a death benefit of one
year's salary ($286,225) to Richard Grable's beneficiary in recognition of his
services as a co-founder, CEO and inventor of the CTLM(R). This benefit was paid
to Linda Grable as beneficiary in installments with the final payment made on
April 15, 2004.
On August 15, 2001, the Company entered into a three-year employment agreement
with Edward Horton, Chief Operating Officer, at an annual salary of $110,000.
The COO was also granted 500,000 incentive stock options at an exercise price of
$.77 per share, the fair market value at the date of the grant, which vested
ratably over the three-year period. Upon the expiration of his employment
agreement on August 15, 2004, the Company entered into a one-year employment
agreement with Mr. Horton at an annual salary of $125,000. He was also granted
175,000 non-statutory stock options at an exercise price of $.28, the fair
market value at the date of the grant, which will vest at the end of the
one-year period.
(Continued)
F-61
IMAGING DIAGNOSTIC SYSTEMS, INC.
(a Development Stage Company)
Notes to Financial Statements (Continued)
(21) COMMITMENTS AND CONTINGENCIES (Continued)
On December 1, 2001, the Company entered into a new three-year employment
agreement with Linda Grable (appointed to CEO upon the death of Richard Grable).
Under this agreement, Ms. Grable received an annual base salary of $280,000. Ms.
Grable received incentive options to purchase up to an aggregate of 2,250,000
shares of the Company's common stock at an exercise price of $.60 per share. The
incentive stock options vested at 750,000 shares per year starting December 1,
2002. In addition, she also received a car allowance of $500 per month. On April
15, 2004, Ms. Grable retired as CEO and Chairman of the Board. As part of her
Retirement Agreement the Board of Directors agreed to pay out the remainder of
her employment agreement and continue coverage of her health insurance through
its expiration on December 15, 2005. The total amount due for the un-expired
term of her agreement is $466,667 (based on her salary of $280,000 per year).
Payments are made on the 15th and 30th of each month. Payments will continue to
be made through December 15, 2005.
On September 15, 2003, the Company entered into a three-year employment
agreement with Deborah O'Brien, Senior Vice-President, at an annual salary of
$95,000. The Senior Vice-President was also granted 302,000 incentive stock
options at an exercise price of $1.13 per share, the fair market value at the
date of the grant, which will vest ratably over the three-year period.
On July 8, 2004, the Company entered into a three-year employment agreement with
Timothy Hansen, its new Chief Executive Officer, commencing on July 26, 2004 at
an annual salary of $210,000 and appointed him a Director of the Company. Mr.
Hansen was granted 1,500,000 non-statutory stock options at an exercise price of
$.38, the fair market value at the date of the grant, which will vest over the
three-year period in accordance with the table below:
Date of Vesting No. of Option Shares
--------------- --------------------
July 8, 2005 500,000
January 8, 2006 250,000
July 8, 2006 250,000
January 8, 2007 250,000
July 8, 2007 250,000
Mr. Hansen also received 100,000 restricted shares of our common stock. The
executive will receive a $500 car allowance per month along with pre-approved
living expenses for a three-month period and moving expenses.
The Company has entered into agreements with various distributors located
throughout Europe, Asia and South America to market the CTLM(R) device. The
terms of these agreements range from eighteen months to three years. The Company
has the right to renew the agreements, with renewal periods ranging from one to
five years.
F-62
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
As required by Rule 13a-15 under the Exchange Act, within the 90 days prior to
the filing date of this report, we carried out an evaluation of the
effectiveness of the design and operation of our disclosure controls and
procedures. This evaluation was carried out under the supervision and with the
participation of the Company's management, including our Chief Executive Officer
along with our Chief Financial Officer. Based upon that evaluation, our Chief
Executive Officer along with our Chief Financial Officer concluded that our
disclosure controls and procedures are effective. There have been no significant
changes in our internal controls or in other factors, which could significantly
affect internal controls subsequent to the date we carried out our evaluation.
Disclosure controls and procedures are controls and other procedures that are
designed to ensure that information required to be disclosed in our reports
filed or submitted under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Securities and Exchange
Commission's rules and forms. Disclosure controls and procedures include,
without limitation, controls and procedures designed to ensure that information
required to be disclosed in our reports filed under the Exchange Act is
accumulated and communicated to management, including the Company's Chief
Executive Officer and Chief Financial Officer as appropriate, to allow timely
decisions regarding required disclosure.
ITEM 9B. OTHER INFORMATION
None.
36
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following table sets forth certain information concerning our directors and
executive officers:
Name* Age Position Year Elected or Appointed
---- --- -------- -------------------------
Tim Hansen 60 Chief Executive Officer and Director 2004
Allan L. Schwartz 62 Executive Vice-President, Chief 1994
Financial Officer and Director
Edward R. Horton 46 Chief Operating Officer 2001
Deborah O'Brien 40 Senior Vice-President 2003
Sherman Lazrus 71 Director 2002
Patrick J. Gorman 50 Director 2003
Edward Rolquin 75 Director 2003
Jay S. Bendis 57 Director 2003
* Linda B. Grable, our former Chairman and Chief Executive Officer, retired on
April 15, 2004
Allan Schwartz and Linda Grable are our founders and as such may be deemed
"promoters" and "parents" as defined in the Rules and Regulations promulgated
under the Securities Act, as those terms are defined in the rules and
regulations promulgated under the Securities Act. Directors serve until the next
meeting of shareholders. Officers serve at the pleasure of the Board of
Directors.
We have adopted a Code of Ethics pursuant to Section 406 of the Sarbanes-Oxley
Act of 2002 that applies to our principal executive officer, principal financial
officer, principal accounting officer or controller, or persons performing
similar functions.
Tim Hansen
Tim Hansen was appointed our Chief Executive Officer and a Director of the
Company by the Board of Directors in July 2004. Prior to his appointment as CEO
and Director of IDSI, Mr. Hansen served as General Manager of Radiation
Management Services, a business of Cardinal Health, Inc. (NYSE:CAH) of Dublin,
Ohio from January 2002 to July 2004. From August 2001 to January 2002 he served
as the President of Syncor Radiation Management in Cleveland, Ohio, a division
of Syncor International Corporation (NASDAQ:SCOR) of Woodland Hills, CA.
Cardinal Health acquired Syncor in January 2003. From April 2000 to August 2001
Mr. Hansen was a consultant to Inovision, LLC serving as President of Inovision
Radiation Measurements in Cleveland, Ohio. He also served as President of
Cleaner Foods, Inc. of Cleveland, OH and a Director of Kliniki St. Paul of
Warsaw, Poland from March 2000 to August 2001. From 1982 to 2000 Mr. Hansen held
several high-level executive positions with Picker International, Inc. of
Cleveland, Ohio. From 1999 to 2000 he served as President of Picker Medical
Systems, a leading manufacturer of diagnostic imaging systems including CT and
MRI scanners, nuclear medicine imagers and X-Ray systems. Picker International
was a wholly owned subsidiary of G.E.C. plc/Marconi Medical Systems with $1.6
billion in annual sales. Philips Medical Systems acquired Marconi in October
2001. Prior to Picker, Mr. Hansen was Vice President of Sales, Service and
Marketing for Xonics Medical Systems, Inc. of Des Plaines, IL; National Sales
Manager, Manager, Business Planning and Marketing Manager, X-Ray and CT for
General Electric Medical Systems of Milwaukee, WI; and Regional Sales Manager
for Smith Kline Instruments, a subsidiary of Smith Kline and French. Mr. Hansen
holds a Bachelor of Science degree in Economics from the University of
Wisconsin-Milwaukee.
37
Allan L. Schwartz
Mr. Schwartz is Executive Vice-President and Chief Financial Officer of the
Company and is responsible for its financial affairs. He has a wide range of
management, marketing, field engineering, construction, and business development
experience. Prior to joining the Company as a founder in 1993, he developed the
Chronometric Trading System for analyzing stock market trends using neural
networks and developed pre-engineered homes for export to Belize, Central
America for S.E. Enterprises of Miami, Florida. In 1991 he formed Tron
Industries, Inc. for the development of low-voltage neon novelty items and
self-contained battery powered portable neon. He is a graduate of C.W. Post
College of Long Island University with a B.S. in Business Administration.
Previous innovations by Mr. Schwartz before relocating to Florida have included
the use of motion detection sensors in commercial burglar alarm systems for
Tron-Guard Security Systems. Inc. and the use of water reclamation systems with
automatic carwash equipment. Mr. Schwartz has been a Director and Officer of the
Company since its inception.
Edward R. Horton
Mr. Horton was appointed Chief Operating Officer by the Board of Directors in
August 2001 and is responsible for all operational activities including the
planning, purchasing, production, quality assurance, engineering and
distribution functions. Mr. Horton began his career almost 20 years ago in the
medical device industry beginning with Bristol Myers as a manufacturing
engineer. He then became the VP of Manufacturing and Operations for Microtek
Medical Inc. in 1993. From 1997 to 2001 he was a co-founder and Vice President
of Operations for Deka Medical, Inc. bringing the company from a start-up to a
revenue producing company with over $23 million in annual sales in just 4 years.
Mr. Horton holds a B.S. degree in Industrial Engineering from Bradley University
and a M.B.A. from University of North Florida.
Deborah O'Brien
Deborah O'Brien was appointed Senior Vice President on September 15, 2003. Ms.
O'Brien has been employed at IDSI since 1995. During her tenure, she has held
the positions of Director of Investor Relations, Vice President of Corporate
Communications and most recently, since September 2001, Vice President of
Business Development. Her responsibilities have included developing and
executing a strategic corporate communications campaign, managing internal
communications, outside public relations, marketing, and clinical applications.
In addition, Ms. O'Brien was directly responsible for the development and
establishment of consumer and industry awareness of our CTLM(R) System via a
media outreach which targeted industry publications, national network
television, radio, nationally-circulated publications and high traffic internet
sites. As Vice President of Business Development, she was closely involved with
various regulatory and marketing projects and played an integral role in the
development and preparation of our PMA Application. She also supervised and
managed the collection of clinical data for the PMA process. Prior to joining
IDSI, she worked for seven years in the financial arena, managing investor
accounts, and in the medical device industry, marketing medical equipment. Ms.
O'Brien began her career in the mortgage loan industry as an account executive
with Citibank.
38
Sherman Lazrus
Mr. Lazrus has been a Director since December 2002 and serves as a member of the
Compensation Committee. On April 15, 2004, the Board of Directors appointed him
Co-Chairman of the Board. He has enjoyed a distinguished career with nearly 40
years' experience in government and private sector health care and health care
finance. He was elected to the Board of Directors of Emergency Filtration
Products, Inc., Las Vegas, NV (OTCBB: EMFP) in December 1998, and appointed as
Interim Chief Executive Officer in June 2001 and appointed Chairman of the Board
of Directors in August 2002. He continues to serve in these positions. Mr.
Lazrus presently also serves as President of American Medical Capital, a
division of American Medical Enterprises, LLC located in Bethesda, Maryland, a
financial services and investment banking company specializing in the healthcare
industry, a position he has held since 1991. Mr. Lazrus was initially employed
with the Federal Government and while at the Department of Health, Education and
Welfare in 1964 he was involved with the development of the Medicare and
Medicaid Programs and served as the Director of Policy Coordination for the two
programs. Also while employed by the Federal Government, Mr. Lazrus served from
1965 to 1966 in the office of the Director of the National Institute of Health
and was involved in planning activities in areas involving biomedical research.
He later administered the Social Security Administration's Disability Insurance
Research Programs as Director of Program Analysis. Mr. Lazrus's final Federal
Government position encompassed the administration of the military health care
system serving as the Deputy Assistant Secretary of Defense from 1974 to 1976.
In this position he was the Federal Government's senior career health official.
Mr. Lazrus also served in the State of Maryland's Governor's office as Director
of the Governor's Study Group on Vocational Rehabilitation from 1966 to 1968 and
later developed a comprehensive human services delivery system for the City of
Washington, D.C. from 1968 to 1972. While in the private sector, Mr. Lazrus from
1976 to 1978 was Vice President of American Medical International Inc., a major
NYSE hospital corporation, which owned and operated numerous hospitals around
the world. The company is now known as Tenet Healthcare Corporation. As a
developer Mr. Lazrus was responsible for the development of various Washington
D.C. area office buildings, shopping centers, industrial warehouses and
residential communities. Mr. Lazrus attended George Washington University where
he received A.A., B.A. and M.B.A. degrees.
Patrick J. Gorman
Mr. Gorman, a Certified Public Accountant practicing in West Islip, New York,
has been a Director since January 2003 and serves as Chairman of the Audit
Committee. He has enjoyed a distinguished 25-year career in both public and
private accounting. From 1991 to the present he has worked in private practice,
serving both publicly traded and privately held companies, specializing in
taxation. Mr. Gorman served as Corporate Tax Manager for Axsys Technologies,
Inc. in Deer Park, New York from 1987 to 1990 and Controller/Tax Manager for
Computer Associates in Jericho, New York from 1983 to 1986. Prior to joining
Computer Associates, he served as Tax Manager with Ernst & Young in Melville,
New York and Tax Accountant for Arthur Andersen in New York City. Mr. Gorman
holds a MS in taxation from Long Island University and is a member of the
NYSSCPA and the AICPA.
Edward Rolquin
Mr. Rolquin of Naples, Florida, a consultant and retired corporate executive,
has been a Director since February 2003 and serves as a member of the
Compensation Committee. He has enjoyed a distinguished 48-year career in
management, sales and finance with international experience in the medical
industry. From 1989 to 1995, he served as a consultant for the Chinese
government on various import, export and technology transfer projects. From 1984
to 1992 Mr. Rolquin was the Founder and President of JR Micrographics in
Huntington, NY that specialized in medical records management. He has served in
a management and consultant capacity while working with major international
companies such as Anaconda Copper Mining Company in Chile and El Salvador from
1952 to 1984, Mobil Oil from 1976 to 1984, Cerro Corp., (an international mining
company in Peru) from 1962 to 1978, and Esso (Standard Oil) from 1957 to 1968.
Mr. Rolquin was responsible for equipping five hospitals for Anaconda, a 100-bed
hospital in Chile for Cerro Corp., a 50-bed dispensary for Mobil Oil, and a
hospital for Esso.
Jay S. Bendis
Mr. Bendis of Akron, Ohio, has been a Director since February 2003 and serves as
a member of the Audit Committee and is Chairman of the Compensation Committee.
On April 15, 2004, the Board of Directors appointed him Co-Chairman of the
Board. He has over 30 years experience in sales and marketing and is currently
39
President of Transfer Technology Consultants, Akron, OH, where he specializes in
transferring new product concepts through to commercialization working with
established and start-up companies in both domestic and international markets.
He is also a partner in the Crystal Corridor Group, Hudson, OH, which works with
Kent State University's Liquid Crystal Institute in facilitating liquid crystal
technology. From 1995 to 2000, Mr. Bendis was Vice President of Sales and
Marketing and a Director of American Bio Medica Corp. a public company in
Kinderhook, NY, which develops and markets on-site drug abuse diagnostic kits.
From 1993 to 1999, he was the President and co-founder of Emerging Technology
Systems, Akron, OH, which is a research and development company specializing in
developing new concept medical devices. From 1990 to 1992, he was a co-founder
and Vice President of Sales and Marketing and a Director for Scientific Imaging
Instruments of Trumbull, CT. From 1985 to 1990, he served as National Sales
Manager of the XANAR Laser Corp., Colorado Springs, CO, a division of Johnson &
Johnson, where he directed its national sales force and developed its marketing
strategy for integrating high power lasers into the hospital market. From 1979
to 1984, he was the Sales and Marketing Manager for the IVAC Corp., San Diego,
CA, a division of Eli Lilly Corp. and has had sales and management experiences
with XEROX and A.M. International. He has also served as a member of the Edison
BioTechnology Center Advisory Council for the State of Ohio. Mr. Bendis
presently serves on the Boards of several private companies and earned his B.A.
in Marketing/Management from Kent State University.
AUDIT COMMITTEE
The Board of Directors has elected Patrick J. Gorman as Chairman of the Audit
Committee. In addition, the Board has determined that Mr. Gorman is an "audit
committee financial expert," as defined under new SEC regulations, who is
independent of management of the Company. Jay S. Bendis also serves as a member
of the Audit Committee.
COMPENSATION COMMITTEE
The Board of Directors has elected Jay S. Bendis as Chairman of the Compensation
Committee. Sherman Lazrus and Edward Rolquin also serve as members of the
Compensation Committee.
COMPENSATION OF DIRECTORS
Each director who is not an employee of the Company receives a quarterly
retainer of $2,000 and $600 per diem fees for days in which a Board meeting is
attended or a non-employee board member is otherwise required to visit the
Company or spend a significant amount of a day on Company matters. Non-employee
directors are also reimbursed for travel expenses. Through December 2003,
non-employee directors were eligible to receive options to purchase 100,000
shares per year of our common stock, vesting at 25,000 shares per quarter of
service to the Company. Those options were issued pursuant to our 2002 Incentive
and Non-Statutory Stock Option Plan. In December 2003, the Board voted to
increase the amount of options that non-employee directors are eligible to
receive from 100,000 to 200,000 shares per year, vesting at 50,000 shares per
quarter of service to the Company. The new option structure will take effect on
each non-employee director's respective anniversary date. The option price will
be at the Fair Market Value (FMV) on each respective director's anniversary
date. All future options will be granted under the 2004 Non-Statutory Stock
Option Plan, which was adopted on March 24, 2004 by the stockholders at our
annual meeting.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires our directors and
executive officers, and persons who own more than 10 percent of our common
stock, to file with the SEC initial reports of ownership and reports of changes
in ownership, furnishing us with copies of all Section 16(a) forms they file. To
the best of our knowledge, based solely on review of the copies of such reports
furnished to us, all Section 16(a) filing requirements applicable to our
officers and directors were complied with during the year ended June 30, 2004.
40
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth the compensation awarded to, earned by or paid to
our Chief Executive Officer and other executive officers for services rendered
to us during fiscal 2004, 2003 and 2002. No other person during these years, who
served as one of our executive officers, had a total annual salary and bonus in
excess of $100,000. Also, see "Stock Option Plan-Option/SAR Grants in Last
Fiscal Year".
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term Compensation
Name & Principal
Position Fiscal Year Salary Other Annual Restricted Securities/Underlying
Compensation Stock Awards Option/SARs
Linda B Grable, CEO 2002 $218,648 500,000
and Director 2003 $280,000 750,000
(1) 2004 $353,994 (1) 1,500,000 (1)
Richard J. Grable, 2002 $35,778
CEO and Director (2)
John d'Auguste 2002 $73,769
President (3)
Allan L. Schwartz, 2002 $134,836 500,000
Exec. V.P., CFO and 2003 $144,275 500,000
Director (4) 2004 $190,619 (4) 500,000 (4)
Edward R. Horton 2002 $96,673
COO(5) 2003 $113,300 166,667
2004 $117,950 (5) 166,667
Deborah O'Brien 2004 $98,692 (6) 66,667
Senior V. Pres. (6)
(1) Ms. Grable retired on April 15, 2004. Under her retirement agreement
Ms. Grable is entitled to receive her $280,000 annual salary through
December 2005. Salary recorded for f/y 2004 includes $3,200 of non-cash
compensation for Christmas stock bonus, $47,704 in accrued wages payable as
of 6/30/02 to Linda B. Grable as heir to the estate of Richard J. Grable
and $19,890 in accrued wages payable as of 6/30/02 to Linda B. Grable.
(2) Mr. Grable passed away on August 13, 2001.
(3) Mr. d'Auguste commenced employment on August 15, 2001 and resigned on
March 14, 2002.
(4) Salary recorded for f/y 2004 include $3,200 of non-cash compensation
for Christmas stock bonus, $19,890 in accrued wages payable as of 6/30/02
to Allan L. Schwartz and $10,000 additional wages while serving as Interim
CEO.
(5) Mr. Horton commenced employment on August 15, 2001. Wages recorded for
f/y 2004 include $1,775 of non-cash compensation for Christmas stock bonus.
(6) Ms. O'Brien was appointed Senior Vice President on September 15, 2003.
Wages recorded for f/y 2004 include $3,075 of non-cash compensation for
Christmas stock bonus.
EMPLOYMENT AGREEMENTS
On August 29, 1999, we entered into five-year employment agreements with Richard
Grable, Allan Schwartz and Linda Grable. Under these agreements, base annual
salaries, are as follows: Richard Grable, $286,225; Linda Grable, $119,070; and
Allan Schwartz, $119,070. In addition, each person received a car allowance of
$500 per month. Each employment agreement provide for performance bonuses,
health insurance, car allowances, and other customary benefits, and a cost of
living adjustment of 7% per annum. No bonuses were paid to the three executives
during the five-year terms of their respective employment agreements. Upon the
expiration of Mr. Schwartz's employment agreement on August 29, 2004, he entered
into a one-year Employment Extension Agreement on August 30, 2004 which provides
for an annual salary of $185,000 and options to purchase up to an aggregate of
500,000 shares of our common stock at an exercise price of $.30 per share, in
accordance with our 2004 Non-Statutory Stock Option Plan. These options shall
vest on August 30, 2005.
41
At a special meeting of the Board of Directors held on August 28, 2001 the
Board, with Linda Grable abstaining, voted to grant a death benefit of one
year's salary ($286,225) to Richard Grable's beneficiary in recognition of his
services as a co-founder, CEO and inventor of the CTLM(R). On April 15, 2004, we
paid the balance due of this death benefit to Linda Grable, as beneficiary of
Richard Grable.
On August 15, 2001, we entered into a three-year employment agreement with
Edward Horton, our Chief Operating Officer at an annual salary of $110,000. The
COO was also granted 500,000 incentive stock options at an exercise price of
$.77 per share, the fair market value at the date of the grant, which will vest
ratably over the three-year period. Upon the expiration of his employment
agreement on August 15, 2004, we entered into a one-year employment agreement
with Mr. Horton at an annual salary of $125,000. He was also granted 175,000
non-statutory stock options at an exercise price of $.28, the fair market value
at the date of the grant, which will vest at the end of the one-year period.
On December 1, 2001, we entered into a new three-year employment agreement with
Linda Grable. Under this agreement, Ms. Grable received an annual base salary of
$280,000. Ms. Grable received incentive options to purchase up to an aggregate
of 2,250,000 shares of our common stock at an exercise price of $.60 per share.
The incentive stock options were scheduled to vest at 750,000 shares per year
starting December 1, 2002. In addition, she received a car allowance of $500 per
month. On April 15, 2004, Ms. Grable retired as CEO and Chairman of the Board.
As part of her Retirement Agreement, the Board of Directors agreed to pay out
the remainder of her employment agreement and continue coverage of her health
insurance through its expiration on December 15, 2005. The total amount due for
the unexpired term of her agreement was $466,667 (based on her salary of
$280,000 per year). Payments are made on the 15th and 30th of each month which
is our normal payroll schedule. The payments will continue through December 15,
2005.
On September 15, 2003, we entered into a three-year employment agreement with
Deborah O'Brien, our Senior Vice-President at an annual salary of $ 95,000. The
Senior Vice-President was also granted 302,000 incentive stock options at an
exercise price of $1.13 per share, the fair market value at the date of the
grant, which will vest ratably over the three-year period.
On July 8, 2004, we entered into a three-year employment agreement with Timothy
Hansen, our new Chief Executive Officer, commencing on July 26, 2004 at an
annual salary of $210,000 and appointed him a Director of the Company. Mr.
Hansen was granted 1,500,000 non-statutory stock options at an exercise price of
$.38, the fair market value at the date of the grant, which will vest over the
three-year period in accordance with the table below:
Date of Vesting No. of Option Shares
--------------- --------------------
July 8, 2005 500,000
January 8, 2006 250,000
July 8, 2006 250,000
January 8, 2007 250,000
July 8, 2007 250,000
Mr. Hansen also received 100,000 restricted shares of our common stock. He will
receive a $500 car allowance per month along with pre-approved living expenses
for a three-month period and moving expenses.
42
The following table sets forth certain information with regard to the
Options/SAR grants by the Company to management for the fiscal year ended June
30, 2004. Linda B. Grable, Allan L. Schwartz, Edward Horton and Deborah O'Brien
did not exercise any options during fiscal 2004.
Option/SAR Grants in Last Fiscal Year
No. of % of Total
Securities Options Granted Exercise or Market Price
Underlying to Employees In Base Price On Date of Expiration
Name Options Fiscal Year ($/Share) Grant Date
---- Granted ---------- --------- --------- --------
-------
Allan L. Schwartz 500,000 31% $1.21 $1.10 8/30/2009
Deborah O'Brien 302,000 19% $1.13 $1.13 2/1/2013
Stock Option Plans
Our 1995 Stock Option Plan was approved by our Board of Directors and adopted by
the shareholders at the March 1995 annual meeting. The plan provided for the
granting, exercising and issuing of incentive options pursuant to Internal
Revenue Code, Section 422.
On August 30, 1999, we established an equity incentive plan. The shareholders
had to approve this plan within one year. The maximum number of shares that
could be granted under this plan is 15,000,000 shares of common stock and
5,000,000 shares of preferred stock. The series, rights and preferences of the
preferred stock were to be determined by our Board of Directors. This plan also
included any stock available for future stock rights under our 1995 Stock Option
Plan. On January 3, 2000 the Board of Directors decided to replace this equity
incentive plan and adopted our 2000 Non-Statutory Stock Option Plan so as to
provide a critical long-term incentive for employees, non-employee directors,
consultants, attorneys and advisors of the Company. On May 10, 2000 our
shareholders approved the 2000 Non-Statutory Stock Option Plan, which was
replaced with our 2002 Incentive and Non-Statutory Stock Option Plan approved by
our shareholders on March 13, 2002. Our Board of Directors has direct
responsibility for the administration of the plan.
On February 4, 2004, the Board of Directors adopted our 2004 Non-Statutory Stock
Option Plan (the "2004 Plan"), which was adopted by the shareholders on March
24, 2004 at our annual meeting to provide a long-term incentive for employees,
non-employee directors, consultants, attorneys and advisors of the Company and
its subsidiaries. The maximum number of options that may be granted under the
2004 Plan shall be options to purchase 8,432,392 shares of Common Stock (5% of
our issued and outstanding common stock as of February 4, 2004). Options may be
granted under the 2004 Plan for up to 10 years after the date of the 2004 Plan.
The 2004 Non-Statutory Stock Plan replaced the 2002 Incentive and Non-Statutory
Stock Option Plan.
43
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table shows the beneficial ownership of our common stock as of
September 17, 2004 regarding:
o each person that we know of who beneficially owns more than 5% of the
outstanding shares of our common stock,
o each current director and executive officer, and
o all executive officers and directors as a group.
Name and Address Number of Shares Owned % of Outstanding
of Beneficial Owner Beneficially (1)(2) Shares of Common Stock
------------------- ---------------------- ---------------------
Linda B. Grable 19,660,274(3) 11.0%
Timothy B. Hansen 100,000(4) <0.1%
6531 NW 18th Court
Plantation, FL 33313
Allan L. Schwartz 6,942,510(5) 3.9%
6531 NW 18th Court
Plantation, FL 33313
Edward Horton 512,500(6) 0.3%
6531 NW 18th Court
Plantation, FL 33313
Deborah O'Brien 835,000(7) 0.5%
6531 NW 18th Court
Plantation, FL 33313
Sherman Lazrus 260,000(8) 0.2%
Patrick J. Gorman 1,016,160(9) 0.6%
Edward Rolquin 210,000(8) 0.1%
Jay S. Bendis 265,000(8) 0.2%
All officers and directors 10,141,170(10) 5.7%
as a group (8 persons)
All beneficial owners 29,801,444(11) 16.7%
Listed above (9 persons)
(1) Except as indicated in the footnotes to this table, based on
information provided by such persons, the persons named in the table
above have sole voting power and investment power with respect to all
shares of common stock shown beneficially owned by them.
(2) Percentage of ownership is based on 178,435,040 shares of common stock
outstanding as of September 10, 2004 plus each person's options that
are exercisable within 60 days. Shares of common stock subject to
stock options that are exercisable within 60 days as of September 10,
2004 are deemed outstanding for computing the percentage of that
person and the group.
(3) Based on the last filing of record includes 3,250,000 shares subject
to options and 16,410,274 shares owned by Linda B. Grable.
(4) Mr. Hansen was issued 100,000 restricted shares pursuant to his
employment agreement dated July 8, 2004.
44
(5) Includes 2,500,000 shares subject to options and 9,000 shares owned by
the wife of Allan L. Schwartz, Carolyn Schwartz, of which he disclaims
beneficial ownership.
(6) Includes 500,000 shares subject to options.
(7) Includes 325,000 shares subject to options.
(8) Includes 250,000 shares of options owned by Sherman Lazrus, 200,000
shares of options owned by Edward Rolquin and 200,000 shares of
options owned by Jay S. Bendis.
(9) Includes 250,000 shares subject to options and 183,356 shares owned by
the wife of Patrick J. Gorman, Diana Gorman, of which he disclaims
beneficial ownership.
(10) Includes 4,225,000 shares subject to options held by, Allan Schwartz ,
Edward Horton, Deborah O'Brien, Sherman Lazrus, Patrick J. Gorman,
Edward Rolquin and Jay S. Bendis. Also includes 9,000 shares owned by
the wife of Allan L. Schwartz, Carolyn Schwartz, of which he disclaims
beneficial ownership and 183,356 shares owned by the wife of Patrick
J. Gorman, Diana Gorman, of which he disclaims beneficial ownership.
(11) Includes all of the shares in footnote 10 plus 3,250,000 shares
subject to options held by Linda B. Grable.
Dividend Policy
To date, we have not declared or paid any dividends with respect to our common
stock, and the current policy of the Board of Directors is to retain any
earnings to provide for our growth. We do not anticipate paying cash dividends
on our common stock in the foreseeable future.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The late Richard Grable and Linda Grable were husband and wife. Linda Grable
continues to be a "control person" as a result of her control of a substantial
portion of our outstanding stock.
In June 1998, we finalized an exclusive patent license agreement with Richard
Grable. Mr. Grable was the owner of the patent which encompasses the technology
for the CTLM(R). IDSI and Mr. Grable had previously entered into an oral
agreement for the exclusive license for the patent that was never memorialized
in written form. The term of the license is for the life of the patent (17
years) and any renewals, subject to termination, under specific conditions. As
consideration for this license, we issued to Mr. Grable 7,000,000 shares of
common stock. In addition, we agreed to pay Mr. Grable a royalty based upon a
percentage, ranging from 6% to 10%, of the net selling price (the dollar amount
earned from our sale, both international and domestic, before taxes minus the
cost of the goods sold and commissions or discounts paid) of all the products
and goods in which the patent is used. Mr. Grable agreed that these royalty
provisions will not apply to any sales and deliveries of CTLM(R) systems made by
IDSI prior to receipt of the PMA for the CTLM(R). In addition, following
issuance of the PMA, IDSI and Mr. Grable agreed that he would be paid guaranteed
minimum royalties of at least $250,000 per year based on the sales of the
products and goods in which the CTLM(R) patent is used. Upon Mr. Grable's death
in August 2001, his interest in the patent license agreement passed to his
estate, of which Linda Grable is the principal beneficiary.
In May 2002, Charlton loaned us $350,000 in order to partially cover our
short-term working capital needs. This loan is evidenced by a promissory note
dated May 29, 2002, due August 1, 2002, and bearing interest at a rate of 2% per
month. The loan is secured by a pledge of 1,000,000 shares of our common stock,
500,000 each by our Chief Executive Officer, Linda B. Grable, and by our
Executive Vice President and Chief Financial Officer, Allan L. Schwartz, and is
personally guaranteed by Ms. Grable and Mr. Schwartz. As of the date of this
report we have paid back this note in full.
In May 2002, Linda B. Grable loaned us an aggregate of $10,000. On June 12,
2002, we paid back the loans in full with cash without interest.
In November 2002, Linda B. Grable loaned us $81,000. On May 21, 2003, we paid
back the loan in full with cash without interest.
45
On April 15, 2004, Ms. Grable retired as CEO and Chairman of the Board. As part
of her Retirement Agreement, the Board of Directors agreed to pay out the
remainder of her employment agreement and continue coverage of her health
insurance through its expiration on December 15, 2005. The total amount due for
the unexpired term of her agreement was $466,667 (based on her salary of
$280,000 per year). Payments are made on the 15th and 30th of each month which
is our normal payroll schedule. The payments will continue through December 15,
2005.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
For the Fiscal Years ended June 30, 2004 and 2003, we paid audit fees totaling
$24,715 and $22,685, respectively, and paid fees for tax services totaling
$2,000 and $2,000 respectively.
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) Exhibits
EXHIBIT DESCRIPTION
3.1 Articles of Incorporation (Florida)- Incorporated by reference to
Exhibit 3(a) of our Form 10-KSB for the fiscal year ending June 30, 1995
3.2 Amendment to Articles of Incorporation (Designation of Series A
Convertible Preferred Shares) - Incorporated by reference to Exhibit 3.
(i). 6 of our Form 10-KSB for the fiscal year ending June 30, 1996. File
number 033-04008.
3.3 Amendment to Articles of Incorporation (Designation of Series B
Convertible Preferred Shares). Incorporated by reference to our
Registration Statement on Form S-1 dated July 1, 1997.
3.4 Amendment to Articles of Incorporation (Designation of Series C
Convertible Preferred Shares). Incorporated by reference to our Form 8-K
dated October 15, 1997.
3.5 Amendment to Articles of Incorporation (Designation of Series D
Convertible Preferred Shares). Incorporated by reference to our Form 8-K
dated January 12, 1998.
3.6 Amendment to Articles of Incorporation (Designation of Series E
Convertible Preferred Shares). Incorporated by reference to our Form 8-K
dated February 19,1998.
3.7 Amendment to Articles of Incorporation (Designation of Series F
Convertible Preferred Shares). Incorporated by reference to our Form 8-K
dated March 6, 1998.
3.8 Amendment to Articles of Incorporation (Designation of Series H
Convertible Preferred Shares). Incorporated by reference to our
Registration Statement on Form S-2 File Number 333-59539.
3.9 Certificate of Dissolution - is incorporated by reference to Exhibit
(3)(a) of our Form 10-KSB for the fiscal year ending June 30, 1995.
3.10 Articles of Incorporation and By- Laws (New Jersey) -are incorporated by
reference to Exhibit 3 (i) of our Form 10-SB, as amended, file number
0-26028, filed on May 6, 1995 ("Form 10-SB").
3.11 Certificate and Plan of Merger - is incorporated by reference to Exhibit
3(i) of the Form 10-SB.
3.12 Certificate of Amendment - is incorporated by reference to Exhibit 3(i)
of the Form 10-SB.
3.13 Amended Certificate of Amendment-Series G Designation.
3.14 Certificate of Amendment-Series I Designation
3.15 Amended Certificate of Amendment-Series B Designation
3.16 Certificate of Amendment-Series K Designation. Incorporated by reference
to our Form 10-KSB for the fiscal year ending June 30, 2000 filed on
September 14, 2000.
10.2 Patent Licensing Agreement. Incorporated by reference to our
Registration Statement on Form S-2, File Number 333-59539.
10.3 Incentive Stock Option Plan - is incorporated by reference to Exhibit
10(b) of the Form 10-SB.
10.27 Consulting Agreement by and between IDSI and Anthony Giambrone, dated
January 26, 2000. Incorporated by reference to our Post-Effective
Amendment No. 4 to Registration on Form S-2, File Number 333-60405.
46
10.28 Employment Agreement(s) for Richard J. Grable, Allan L. Schwartz and
Linda B. Grable signed August 30, 1999. Incorporated by reference to our
Post-Effective Amendment No. 4 to Registration on Form S-2, File Number
333-60405.
10.29 2000 Non-Statutory Stock Option Plan Incorporated by reference to our
Form 10-KSB for the fiscal year ending June 30, 2000 filed on September
14, 2000.
10.40 Distribution Agreement between IDSI and Medical Imaging Systems, Inc.
10.41 Distribution Agreement between IDSI and Medical Imaging Services, Ltd.
10.42 Employment Agreement with John d'Auguste, President. Incorporated by
reference to our Form 10-QSB for the quarter ending September 30, 2001,
filed on November 13, 2001.
10.43 Employment Agreement with Ed Horton, Chief Operating Officer.
Incorporated by reference to our Form 10-QSB for the quarter ending
September 30, 2001, filed on November 13, 2001.
10.44 Employment agreement with Linda B. Grable, Chief Executive Officer.
Incorporated by reference to our Form 10-QSB for the quarter ending
September 30, 2001, filed on November 13, 2001.
10.45 2002 Incentive and Non-Statutory Stock Option Plan. Incorporated by
reference to our Schedule 14A proxy statement filed on February 7, 2002.
10.47 Amendment dated as of November 15, 2001, to Amended Private Equity
Credit Agreement, dated as of November 30, 2000 between IDSI and
Charlton Avenue LLC. The Amended Private Equity Credit Agreement is
incorporated by reference to our Amendment No. 2 to registration on Form
S-2, File Number 333-46546, and the Amendment to the Amended Private
Equity Agreement is incorporated by reference to our Form 10-QSB for the
quarter ending March 31, 2002, filed on May 15, 2002.
10.48 Private Equity Agreement between IDSI and Charlton Avenue, LLC dated as
of May 15, 2002. Incorporated by reference to our Form 10-QSB for the
quarter ending March 31, 2002, filed on May 15, 2002.
10.49 Registration Rights Agreement between IDSI and Charlton Avenue, LLC
dated as of May 15, 2002. Incorporated by reference to our Form 10-QSB
for the quarter ending March 31, 2002, filed on May 15, 2002.
10.50 $350,000 Promissory Note dated May 21, 2002, from IDSI to Charlton
Avenue, LLC. Incorporated by reference to our Amendment No. 1 to our
Registration on Form S-2, File Number 333-88604 filed on June 28, 2002.
10.51 $750,000 Balloon Promissory Note and Mortgage from IDSI to Peter
Wolofsky, incorporated by reference to our Form 8-K filed on June 25,
2002.
10.52 Private Equity Agreement between IDSI and Charlton Avenue LLC dated as
of May 15, 2002, with exhibits. Incorporated by reference to our
Amendment No. 1 to our Registration on Form S-2, File Number 333-88604
filed on June 28, 2002.
10.53 Amendment dated as of July 18, 2002, to Private Equity Agreement dated
as of May 15, 2002 between IDSI and Charlton Avenue LLC. Incorporated by
reference to our Amendment No. 2 to our Registration on Form S-2, File
Number 333-88604 filed on July 18, 2002.
10.54 Letter of Intent between IDSI and Sanotech Group Srl. dated January 8,
2002.
10.55 Distributorship Agreement between IDSI and JAMCO Medical Inc. dated
March 22, 2002.
10.56 Financial Services Consulting Agreement between Linda B. Grable and
iCapital Finance, Inc. dated September 19, 2002.
10.57 Third Private Equity Credit Agreement between IDSI and Charlton Avenue
LLC dated as of October 29, 2002, with exhibits.
10.58 Registration Rights Agreement between IDSI and Charlton Avenue LLC dated
as of October 29, 2002. Incorporated by reference to our Form S-2, File
Number 333-101070 filed on November 7, 2002
10.59 Termination letter of distributorship agreement between IDSI and JAMCO
Medical Inc. dated May 28, 2003.
10.60 Employment Agreement with Deborah O'Brien, Senior Vice President dated
September 15, 2003.
10.61 Fourth Private Equity Credit Agreement between IDSI and Charlton Avenue
LLC, dated as of January 9, 2004, with exhibits. Incorporated by
reference to our Form S-2, File Number 333-112377 filed on January 30,
2004.
10.62 Registration Rights Agreement between IDSI and Charlton Avenue, LLC
dated as of January 9, 2004. Incorporated by reference to our Form S-2,
File Number 333-112377 filed on January 30, 2004.
47
10.63 Retirement Agreement between IDSI and Linda B. Grable dated April 15,
2004. Incorporated by reference to our Form S-2, File Number 333-116694
filed on June 21, 2004.
10.64 Employment Agreement with Timothy B. Hansen, Chief Executive Officer
dated July 8, 2004.
10.65 Employment Agreement with Edward Horton, Chief Operating Officer dated
August 15, 2004.
10.66 One-Year Employment Extension Agreement with Allan L. Schwartz,
Executive Vice President and Chief Financial Officer dated August 30,
2004.
14.1 Code of Ethics for Senior Financial Officers
31.1 Certification by Chief Executive Officer Pursuant to 18 U.S.C. Section
1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
31.2 Certification by Chief Financial Officer Pursuant to 18 U.S.C. Section
1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
32.1 Certification by Chief Executive Officer Pursuant to 18 U.S.C. Section
1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
32.2 Certification by Chief Financial Officer Pursuant to 18 U.S.C. Section
1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of
2002
(b) Reports on Form 8-k
A Form 8-K was filed on August 27, 2003, stating that we are in receipt
of a letter from the FDA stating that it has completed its review of
the Company's PreMarket approval application (PMA). The FDA, in its
letter, outlined deficiencies in the PMA submission, which must
resolved before the FDA's review could be completed. The FDA stated
that until these deficiencies are resolved, the PMA application is not
approvable in its current form. The FDA identified measures to make the
PMA approvable and the Company will amend its PMA application to
address the deficiencies in the letter.
A Form 8-K was filed on August 28, 2003, stating that Schering AG of
Berlin, Germany announced, through a press release today, that their
innovative method for breast cancer detection shows positive results in
their clinical phase 1 study. The fluorescent dyes used in the clinical
study were used in conjunction with our proprietary Computed Tomography
Laser Breast Imaging System (CTLM(R)).
A Form 8-K was filed on November 13, 2003, stating that we received
notification from Health Canada Medical Device Bureau that they have
issued a Medical Device License for our Computed Tomography Laser
Breast Imaging System (CTLM(R)) in accordance with Medical Device
Regulation, Section 36.
A Form 8-K was filed on February 2, 2004, stating that we received a
warning letter from the FDA specifically regarding the biomonitoring
section of an inspection conducted August 13th through August 18th,
2003 at our facility and that we would submit our response to the FDA
on or before February 9, 2004, as well as continue to prepare
supplementary information to support our PMA application.
A Form 8-K was filed on February 10, 2004, stating that we timely
submitted our response to the warning letter from the FDA regarding the
biomonitoring inspection.
A Form 8-K was filed on March 25, 2004, stating that at our Fiscal Year
2004 Annual Meeting of Stockholders, Dr. Eric Milne, Chief Radiologist
reported that a scientific paper from the University of Vienna,
(authors D. Floery, C. Riedl, W. Matzek, S. Jaromi, M.H. Fuchsjaeger
and T. Helbich, M.D.), describing the typical vascular appearances of
breast cancers imaged by our CTLM(R) Breast Imaging System at the
University of Vienna, Allgemeines Hospital was presented at the recent
exhibition at the European Congress of Radiology (ECR) held in Vienna.
The paper has been nominated for "Best and Original Paper for Breast
Imaging" by the ECR. Ms. Deborah O'Brien, Senior Vice-President
announced that we would recognize revenues of at least $540,000 for the
third quarter ending March 31, 2004. She also informed the shareholders
that the FDA agreed with our request to have an extension of time to
respond to the FDA's August 22, 2003 letter regarding our pre-market
approval application.
48
A Form 8-K was filed on March 29, 2004, stating that our responses to
the FDA's warning letter of the biomonitoring inspection addressed each
of the issues and no further response is necessary at this time.
A Form 8-K was filed on April 16, 2004, stating that Linda B. Grable,
CEO, Chairman of the Board and co-founder, has retired effective April
15, 2004. The Board of Directors appointed Jay S. Bendis and Sherman
Lazrus as Co-Chairmen of the Board and has begun an immediate search
for a new CEO. Meanwhile, the Board appointed Allan L. Schwartz,
Executive Vice President and Chief Financial Officer, to serve as
interim CEO until a new CEO is appointed.
A Form 8-K was filed on July 13, 2004, stating that Tim Hansen was
appointed by the Board of Directors to serve as the new Chief Executive
Officer and Board member. Mr. Hansen has served in top-level executive
positions in the medical imaging industry over a 30-year period and was
notably President of Picker Medical Systems, a leading company in the
diagnostic imaging market. Most recently, Mr. Hansen was with Cardinal
Health, Inc. as the general manager of the Radiation Management
Services, a leading provider of medical imaging quality assurance
instruments and solutions.
49
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, Imaging Diagnostic Systems, Inc. has duly caused this
report to be signed on our behalf by the undersigned, thereunto duly authorized,
IMAGING DIAGNOSTIC SYSTEMS, INC.
By: /s/Timothy B. Hansen
Timothy B. Hansen, Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Annual Report on Form 10-K has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/Timothy B. Hansen Chief Executive Officer September 17, 2004
--------------------
Timothy B. Hansen and Director
/s/Allan L. Schwartz Director, Executive Vice-President, September 17, 2004
--------------------
Allan L. Schwartz and Chief Financial Officer
(Principal Accounting and Financial
Officer)
/s/ Jay S. Bendis Co-Chairman of the Board September 17, 2004
-----------------
Jay S. Bendis and Director
/s/ Sherman Lazrus Co-Chairman of the Board September 17, 2004
--------------------
Sherman Lazrus and Director
/s/ Patrick J. Gorman Director September 17, 2004
---------------------
Patrick J. Gorman
/s/ Edward Rolquin Director September 17, 2004
------------------
Edward Rolquin
50
EXHIBIT 10.64
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated July 8, 2004 between Imaging Diagnostic
Systems, Inc., a Florida corporation (the "Company"), and Timothy Hansen (the
"Executive").
WITNESSETH:
WHEREAS, The Company is engaged in the business of developing laser-based
medical optical imaging devices; and
WHEREAS, the Company has the intent to market and sell its products and
services to clients and potential clients throughout the world; and
WHEREAS, the Executive has expertise, in the medical device and imaging
industries; and
WHEREAS, the Company wishes to enter into an Employment Agreement to employ
the Executive as its Chief Executive Officer, charged with all the
responsibilities and duties as set forth in the Company's bylaws for both the
CEO and President; and
WHEREAS, the Company wishes to nominate the Executive to be a member of the
Board of Directors,
WHEREAS, in the course of the Executive's employment, the Executive will
have access to and acquire knowledge of valuable trade secrets, confidential
information and other proprietary information belonging and relating to the
Company and its business, and which the Company has a legitimate interest in
protecting; and
WHEREAS, the Company and Executive are willing to accept such employment
and render such services, all upon and subject to the terms and conditions
contained in this Employment Agreement (the "Agreement");
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth in this Agreement, and intending to be legally bound, the Company and
the Executive agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive and the Executive
hereby accepts employment upon the terms and condition hereinafter set forth.
2. TERM & TERMINATION.
i. Term. The Company hereby employs the Executive, and the Executive
hereby accepts employment with the Company, for a period
commencing on July 26, 2004 and ending three (3) years from that
date (the "Term").
ii. Termination without Cause. The Company may terminate the
Executive's employment without Cause. Such termination will
become effective upon the dated specified in such notice,
provided that such date is at least 60 days from the date of
specified in such notice. Upon such termination without cause:
(1) for the remainder of the term of this Agreement or for a
period of 36 months following such termination, which ever
is greater the Company will continue to pay the Executive
annual salary pursuant to Section 3(1).
(2) the Company will continue to maintain for such period, for
the benefit of the Executive, the employee health insurance
program in effect on the date of such termination.
(3) all options that were scheduled to vest will vest
immediately and will remain exercisable for a period of ten
(10) years from the date of this agreement.
(4) The compensation payments and other consideration to which
the Executive is entitled on termination without cause it
not be diminished or otherwise affected by any employment
thereafter obtained or income thereafter earned by Executive
nor will Company maintain that it is entitled to mitigation
of amounts owed under this section for any reason.
iii. Termination for Cause. The Company may terminate the Executive
pursuant to the terms of this Agreement at any time for cause by
giving written notice of termination. Such termination shall
become effective upon the giving of such notice, except that
termination based upon cause shall not become effective unless
Executive shall fail to correct such breach within 30 days of
receipt of written notice hereof. Upon such termination the
Executive shall have no right to compensation, commission, bonus,
benefits or reimbursement pursuant to this contract, for any
period subsequent to the termination. Further, the Executive
shall have no right to any non-unvested stock options. For
purposes of this section, "cause" shall mean; (1) the Executive
is convicted of a felony; (2) the Executive, in carrying out his
duties hereunder, has been found in a civil action by the
Company, to have committed willful gross negligence or willful
2
gross misconduct resulting, in either case, in material harm to
the Company; (3) the Executive misappropriates Company funds or
otherwise defrauds the Company; (4) the Executive materially
breaches any provision of this Agreement, which results in
material harm to the Company; (5) the Executive materially fails
to perform his duties under section four (4) resulting in
material harm to the Company.
iv. Death or Disability. Upon the death or disability of the
Executive, the Executive shall be entitled to and the company
will pay the remaining amount of compensation from the date of
death or from the date of disability through the termination of
this Agreement. (For purposes of this Section, "disability" shall
mean that for a period of six (6) months in any 12-month period
the Executive is incapable of substantially fulfilling his duties
because of physical, mental or emotional incapacity from injury,
sickness or disease. Should the Executive be rendered disabled,
the Company will continue to maintain for the benefit of the
employee, the employee benefit programs referred to in Section
2(b) that were in effect on the date of the disability.
v. Special Termination. In the event that (i) the executive, with or
without a change in title or formal corporate action, shall no
longer exercise all of his customary duties and responsibilities
and shall no longer possess substantially all the authority
customary for a CEO in a publicly traded company as set forth; or
(ii) the Company materially breaches this Agreement or the
performance of its duties and obligations hereunder; or (iii) any
entity or person not now an executive officer of the Company
become either individually or as part of a group the beneficial
owner of 20% or more of the Company's common stock, the
Executive, by written notice to the Company, may elect to deem
the Executive's employment hereunder to have been terminated by
the Company without cause under Section 2(ii) hereof, in which
event the Executive shall be entitled to the Compensation
payments, options and benefits set forth in this agreement.
vi. Voluntary Termination. The Executive, on 30 days prior written
notice to the Company, may terminate his employment voluntarily.
Upon such termination, the Company will pay the Executive's
compensation through the date of such termination. After such
date, the Executive shall no longer be entitled to receive
compensation, reimbursement, non-vested stock options or
benefits.
vii. Continuing Effect. Notwithstanding any termination of this
Agreement at the end of the Term or otherwise, the provisions of
Sections 7,8,9,10,11 and 12 shall remain in full force and effect
and the provisions of these Sections shall be binding upon the
legal representatives, successors and assigns of the Executive.
3
3. COMPENSATION.
1) The Company will pay the Executive an annual base salary of
$210,000 per annum in equal semi-monthly installments. Salary
will be reviewed annually, but at a minimum will increase (but
not decrease) by an increase in the Consumer Price Index-All
Urban Wage Earnings (or similar index) from year - to -year.
2) During the term of his employment, the Executive and his spouse
shall be entitled to participate in employee benefits plans or
programs of the Company, if any, to the extent the Executive is
eligible to participate hereunder.
a) The Company's Comprehensive Group Insurance Program
maintained by the Company.
3) The Company will reimburse or advance funds to the Executive for
all reasonable travel, entertainment and miscellaneous expenses
incurred in connection with the performance of duties under this
Agreement, provided that the Executive properly account for such
expenses tot the Company in accordance with the Company's
practices.
4) The Company shall pay the Executive a $500 per month car
allowance, a telephone card, cellular phone, and major credit
card.
5) The Company shall reimburse the Executive for pre-approved
housing rental expenses for a period not to exceed three months.
6) The Company shall reimburse the Executive for pre-approved moving
expenses.
7) The Executive shall receive incentive options to purchase up to
an aggregate of 1,500,000 shares of the Company's common stock at
an exercise price of $ .38 per share. The options shall vest as
follows:
(a) Options to purchase up to 500,000 shares may be exercised
after 12 months (July 8, 2005) of continuous employment.
(b) Options to purchase up to 250,000 shares may be exercised
after 18 months (January 8, 2006) of continuous employment.
(c) Options to purchase up to 250,000 shares may be exercised
after 24 months (July 8, 2006) of continuous employment.
(d) Options to purchase up to 250,000 shares may be exercised
after 30 months (January 8, 2007) of continuous employment.
(e) Options to purchase up to 250,000 shares may be exercised
after 36 months (July 8, 2007) of continuous employment.
The Company during the term of this Plan, shall file pursuant to a
registration statement on Form S-8, which immediately becomes effective upon its
filing, that number of Shares as shall be sufficient to satisfy the requirements
of the Plan. However, the inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
4
legal counsel to be necessary for the lawful issuance and sale of any Share
hereunder, shall relieve the Company of any liability relating to the failure to
issue or sell such Shares as to which such requisite authority shall not have
been obtained.
8) The Executive shall receive 100,000 restrictive legended
shares of the Company's common stock.
In the event that the Company experiences a change of control, defined as a
sale of the Company, the Company is acquired by another company or similar
situation, then all options vest immediately. (Please see stock option agreement
for specific details.) In the event the Executive is terminated without cause,
all options will vest. In the event the Executive is terminated with cause only
that portion of the option exercisable at the time of such termination of
employment may thereafter be exercised. It may not be exercised more than three
(3) months after said termination or after the expiration of the option, which
ever is sooner.
9) The Executive will be entitled to nine (9) paid holidays and
six (6) weeks of vacation for each 12-month period without
loss of compensation or other benefits to which she is
entitled under this Agreement, to be taken at such times as
the Executive may select and the affairs of the Company may
permit.
4. DUTIES.
(a) General Duties. The Executive shall be employed as the Chief Executive
officer with duties and responsibilities that are customary for such Executive,
subject to the direction of the Board of Directors and as directed by the
company by-laws for both the CEO and President. The Executive will use the
standard of care befitting of such an executive in performing duties and in
discharging responsibilities pursuant to this Agreement, which duties and
responsibilities shall be discharged competently, carefully, and faithfully.
(b) Extent of Services. The Executive will devote all of time, attention
and energies during normal business hours (exclusive of periods of sickness and
disability and of such normal holiday and vacation periods as have been
established by the Company) to the affairs of the Company. The Executive will
not enter the employ of, or serve as a consultant to, or in any way perform any
services with or without compensation to any persons, business or organization
without the prior consent of the board of directors of the Company; provided,
that the Executive shall be permitted to devote a limited amount of his time,
without compensation, to charitable or similar organizations.
5. PLACE OF PERFORMANCE. The Executive hereby acknowledges that the
Company's existing and potential clients are located throughout the world and
that the Company is actively engaged in marketing and selling its products and
services to such clients throughout the world.
5
6. NON-DISCLOSURE OF INFORMATION. The Executive recognizes and acknowledges
that the Company's trade secrets and proprietary information and processes,
("Confidential Business and Technical Information") as they may exist from time
to time, are valuable, special and unique assets of the Company's business,
access to and knowledge of which are essential to the performance of the
Executive's duties hereunder.
The Executive will not, during or after the term of his employment by the
Company, in whole or in part, disclose such Confidential Business and Technical
Information to any person, firm, corporation, association or entity for any
reason or purpose whatsoever, nor shall the Executive make use of any such
Confidential Business and Technical Information for his own purposes or for the
benefit of any person, firm, corporation or entity except the Company under any
circumstances during or after the term of his employment, provided that after
the term of his employment these restrictions shall not apply to such secrets,
information and processes which are then in the public domain provided that the
Executive was not responsible, directly or indirectly, for such secrets,
information or processes entering the public domain without the Company's
consent.
In the event an action is instituted and prior knowledge is an issue, it
shall be the obligation of the Executive to prove by clear and convincing
evidence that the Confidential Business and Technical Information disclosed was
in the public domain, was already known by the Recipient, or was developed
independently by the Recipient. The Executive agrees to hold as the Company's
property, all memoranda, books, papers, letters, formulas and other data, and
all copies thereof and there from, in any way relating to the Company's business
and affairs, whet made by him or otherwise coming into his possession, and upon
termination of his employment, or on demand of the Company, at any time, to
deliver the same to the Company.
7. NON-COMPETITION AGREEMENT.
(a) The Executive acknowledges and agrees that, pursuant to Florida Statute
Section 542.335, based on having access to and acquiring knowledge of highly
sensitive and valuable trade secrets, and confidential or proprietary
information belonging or relating to the Company, the Executive would be in a
position to cause serous and irreparable harm to the Company in the event that,
following the termination of his employment hereunder, the Executive were to
compete with or be involved in an enterprise which competes with the Company,
engages in the same business as the Company, or performs research and
development in the field of medical optical imaging.
(b) Until termination of his/ employment and for a period of 24 months
commencing on the date of termination, the Executive, directly or indirectly, in
association with or as a stockholder, director, officer, consultant, executive,
partner, joint venture, member or otherwise of or through any person, firm,
corporation, partnership, association or entity, covenants that the Executive
will not compete with the Company or any of its affiliates in the design,
manufacture, construction, offer, sale or marketing of products or services that
are competitive with the products or services offered by the Company, within the
United States or anywhere in the world. The Executive covenants and agrees that
during his employment and for a period of 24 months immediately following the
6
termination of such employment, the Executive will not, either individually or
in partnership or jointly or in conjunction with any person, firm, business,
corporation, partnership joint venture, entity, syndicate or association, as an
executive, principal, agent, officer director consultant, advisor, distributor,
dealer, contractor, trustee, lender, shareholder or in any manner or capacity
whatsoever, directly or indirectly, be employed by, render services to, carry on
or be engaged in, or be concerned with or be interested in or advise, lend money
to, guarantee the debts or obligations of, or in any manner participate in the
management, operation or control of any business which is directly competitive
with the business of the Company, engages in the same business as the company or
performs research and development in the medical optical imaging field with any
entity located anywhere in the world.
(c) For the purposes of this paragraph a business shall be deemed to be in
"direct competition" or "directly competitive" with the Company if such business
is engaged in developing, manufacturing, marketing, selling, or distributing
medical optical imaging devices.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive acknowledges
that during his employment he will learn and will have access to confidential
information regarding the Company and its affiliates, including without
limitation (i) confidential or secret plans, programs, documents, agreements or
material relating to the business, services or activities of the Company and its
affiliates and (ii) trade secrets, market reports, customer investigations,
customer lists and or similar information that is proprietary information of the
Company or its affiliates (collectively referred to as "confidential
information"). The Executive acknowledges that such confidential information as
is acquired and used by the Company or its affiliates is a special, valuable and
unique asset. All records, files, materials and confidential information
obtained by the Executive in the course of his employment with the Company are
confidential and proprietary and shall remain the exclusive property of the
Company or its affiliates, as the case may be. The Executive will not, except in
connection with and as required by his performance of his duties under this
Agreement, for any reason use for his own benefit or the benefit of any person
or entity with which he may be associated or disclose any such confidential
information to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever without the prior written consent of the board
of directors of the Company, unless such confidential information previously
shall have become public knowledge through no action by or omission of the
Executive.
9. NON-SOLICITATION OF EXECUTIVES
The Executive covenants and agrees that while he is employed by the Company
and for a period of twenty-four (24) months immediately following the
termination of such employment, he will not, directly or indirectly, in any
manner whatsoever, on his own behalf, or on behalf of any person, firm,
business, corporation, partnership, joint venture, entity, syndicate or
association solicit, induce or cause, or attempt to induce or cause any person
who was any executive or consultant or in relationship with, or to cease
providing services to the Company.
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10. REASONABLENESS OF CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION
OBLIGATION AND COVENANTS
(a) The Executive hereby acknowledges and confirms that the obligations and
covenants set out in the above paragraphs are reasonable and necessary to
protect the legitimate interests of the Company. Without limiting the generality
of the foregoing, the Executive hereby acknowledges and confirms that given,
among other things, the nature and international scope of the Company's
operations and of the employment duties to be performed by the Executive
hereunder, the geographic scope and duration of the restrictions set fourth
above are reasonable and necessary to protect the legitimate interests of the
Company.
(b) The Executive further acknowledges and agrees that these obligations
and covenants will not preclude him from becoming gainfully employed following
their termination of his employment in his/ profession.
11. INVENTIONS.
(a) The Executive hereby sells, transfers and assigns to the Company or to
any person, or entity designated by the Company, all of the entire right, title
and interest of the Executive in and to all inventions, ideas, disclosures and
improvements, whether patented or unpatented, and copyrightable material, made
or conceived by the Executive, solely or jointly, or in whole part, during the
term hereof which (i) relate to methods, apparatus, designs, products, processes
or devices sold, leased, used or under construction or development by the
Company or any subsidiary, or (ii) otherwise relate to or pertain to the
business, functions or operations of the Company or any subsidiary, or (iii)
arise wholly or partly from the efforts of the Executive during the term hereof,
which relate to Company's products. The Executive shall communicate promptly and
disclose to the Company, in such form as the Company requests, all information,
details and data pertaining to the aforementioned inventions, ideas, disclosures
and improvements; and, whether during the term hereof or thereafter, the
Executive shall execute and deliver to the Company such formal transfers and
assignments and such other papers and documents as may be required of the
Executive at the Company's expense to permit the Company or any person or entity
designated by the Company to file and prosecute the patent applications and, as
to copyrightable material, to obtain copyright thereon. Any invention by the
Executive within one (1) year following the termination of the Agreement shall
be deemed to fall within the provisions of the paragraph unless proven by the
Executive to have been first conceived and made following such termination.
(b) No Payment. The Executive acknowledges and agrees that no separate or
additional payment will be required to be made to him in consideration of his
undertakings in this Section.
12. EQUITABLE RELIEF.
(a) The Company and the Executive recognize that the services to be
rendered under this Agreement by the Executive are special, unique and of
extraordinary character, and that in the event of the breach by the Executive of
8
the terms and conditions of this Agreement or if the Executive, without the
prior consent of the Board of Directors of the Company, shall leave his
employment for any reason and take any action in violation of Section 6, Section
7, Section 8, or Section 9, the Company will be entitled to institute and
prosecute proceedings in any court of competent jurisdiction referred to in
Section 11(b) below, to enjoin the Executive from breaching the provisions of
Section 6 or Section 7, or Section 8. In such action, the Company will not be
required to plead or prove irreparable harm or lack of an adequate remedy at
law. Nothing contained in this Section 11 shall be construed to prevent the
Company from seeking such other remedy in arbitration in case of any breach of
this Agreement by the Executive, as the Company may elect.
(b) Any proceeding or action must be commenced in state court in Broward
County, Florida where the Company maintains its principal offices. The Executive
and the Company irrevocably and unconditionally submit to the jurisdiction of
such court and agree to take any and all future action necessary to submit to
the jurisdiction of such courts. The Executive and the Company irrevocably waive
any objection that they now have or hereafter or hereafter may have to the
laying of venue of any suit, action or proceeding brought in any such court and
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Final
judgment against the Executive or the Company in any such suit shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment, a
certified or true copy or which shall be conclusive evidence of the fact and the
amount of any liability of the Executive or the Company therein described, or by
appropriate proceedings under any applicable treaty or otherwise.
13. ASSIGNMENT. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assignee shall acquire
all or substantially all of the assets and business of the Company. The
Executive's obligations hereunder may not be assigned or alienated and any
attempt to do so by the Executive will be void.
14. SEVERABILITY.
(a) The Executive expressly agrees that the character, duration and
geographical scope of the provisions set forth in this Agreement are reasonable
in light of the circumstances, as they exist on the date hereof. Should a
decision, however, be made at a later date by a court of competent jurisdiction
that the character, duration or geographical scope of such provisions is
unreasonable, then it is the intention and the agreement of the Executive and
the Company that this Agreement shall be construed by the court in such a manner
as to impose only those restrictions on the Executive's conduct that are
reasonable in the light of the circumstances and as are necessary to assure to
the Company the benefits of this Agreement. If, in any judicial proceeding, a
court shall refuse to enforce all of the separate covenants deemed included
herein because taken together they are more extensive than necessary to assure
to the Company the intended benefits of this Agreement, it is expressly
understood and agreed by the parties hereto that the provisions of this
Agreement that, if eliminated, would permit the remaining separate provisions to
9
be enforced in such proceeding shall be deemed eliminated, for the purposes of
such proceeding, from this Agreement.
(b) If any provision of this Agreement otherwise is deemed to be invalid or
unenforceable or is prohibited by the laws of the state or jurisdiction where it
is to be performed, this Agreement shall be considered divisible as to such
provision and such provision shall be inoperative in such state or jurisdiction
and shall not be part of the consideration moving from either of the parties to
the other The remaining provisions of this Agreement shall be valid and binding
and of like effect as though such provision were not included.
15. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
To the Company: Imaging Diagnostic Systems, Inc.
6531 N.W. 18th Court
Plantation, Florida 33313
To the Executive: Timothy Hansen
6531 N.W. 18th Court
Plantation, Florida 33313
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
16. COUNTERPART. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
17. ARBITRATION. Except for any controversy or claim seeking equitable
relief as provided in Section 11 of this Agreement, any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof or any other dispute between the parties, shall be
submitted to one arbitrator and settled by arbitration in Broward County,
Florida, in accordance with the rules, then obtaining, of the American
Arbitration Association. Any reward made by such arbitrator shall be final,
binding and conclusive on all parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
10
18. ATTORNEYS FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to
reasonable attorneys fees, costs and expenses.
19. GOVERNING LAW. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties with respect to the subject matter hereof. Neither this Agreement
nor any provision hereof may be changed, waived, discharged or terminated
orally, except by a statement in writing signed by the party or parties against
which enforcement or the change, waiver discharge or termination is sought.
21. ADDITIONAL DOCUMENTS. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
22. SECTION AND PARAGRAPH HEADINGS. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
23. WAIVER OF BREACH. A waiver by the Company or the Executive of a breach
of any provision of the Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement
as this day of July 8, 2004.
Imaging Diagnostic Systems, Inc. Executive
/s/ Jay S. Bendis /s/ Timothy Hansen
---------------------------- ---------------------------
Jay S. Bendis Timothy Hansen, CEO
Co-Chairman of the Board of Directors
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EXHIBIT 10.65
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated August 15, 2004 between Imaging
Diagnostic Systems, Inc., a Florida corporation (the "Company"), and Ed Horton
(the "Executive").
WITNESSETH:
WHEREAS, The Company is engaged in the business of developing laser-based
medical optical imaging devices; and
WHEREAS, the Company has the intent to market and sell its products and
services to clients and potential clients throughout the world; and
WHEREAS, the Executive has expertise, in the medical device and imaging
industries; and
WHEREAS, the Company wishes to extend the Employment Agreement to employ
the Executive as its Chief Operating Officer, charged with all the
responsibilities and duties legally required by the State of Florida and to
oversee various broad and specific aspects of its business; and
WHEREAS, in the course of the Executive's employment, the Executive will
continue to have access to and acquire knowledge of valuable trade secrets,
confidential information and other proprietary information belonging and
relating to the Company and its business, and which the Company has a legitimate
interest in protecting; and
WHEREAS, the Company and Executive are willing to extend the employment and
render such services, all upon and subject to the terms and conditions contained
in this Employment Agreement (the "Agreement");
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth in this Agreement, and intending to be legally bound, the Company and
the Executive agree as follows:
1. EMPLOYMENT. The Company hereby continues the employment of the Executive
and the Executive hereby accepts employment upon the terms and condition
hereinafter set forth.
2. TERM & TERMINATION.
i. Term. The Company hereby continues the employment of the
Executive, and the Executive hereby accepts employment with the
Company, for a period commencing on August 15, 2004 and ending
one (1) year from that date (the "Term").
ii. Termination without Cause. The Company may terminate the
Executive's employment without Cause. Such termination will
become effective upon the dated specified in such notice,
provided that such date is at least 60 days from the date of
specified in such notice. Upon such termination without cause:
(1) for the remainder of the term of this Agreement or for a
period of 12 months following such termination, which ever
is greater the Company will continue to pay the Executive
annual salary pursuant to Section 3(1).
(2) the Company will continue to maintain for such period, for
the benefit of the Executive, the employee benefit programs,
referred to in Section 2(b) were in effect on the date of
such termination.
(3) All options that were scheduled to vest will vest and will
remain exercisable for a period of ten (10) years from the
date of this agreement.
iii. Termination for Cause. The Company may terminate the Executive
pursuant to the terms of this Agreement at any time for cause by
giving written notice of termination. Such termination shall
become effective upon the giving of such notice, except that
termination based upon cause shall not become effective unless
Executive shall fail to correct such breach within 30 days of
receipt of written notice hereof. Upon such termination the
Executive shall have no right to compensation, commission, bonus,
benefits or reimbursement pursuant to this contract, for any
period subsequent to the termination. Further, the Executive
shall have no right to any non-unvested stock options. For
purposes of this section, "cause" shall mean; (1) the Executive
is convicted of a felony; (2) the Executive, in carrying out his
duties hereunder, has been found in a civil action by the
Company, to have committed willful gross negligence or willful
gross misconduct resulting, in either case, in material harm to
the Company; (3) the Executive misappropriates Company funds or
otherwise defrauds the Company; (4) the Executive materially
breaches any provision of this Agreement; (5) the Executive
materially fails to perform his duties under section four (4)
resulting in harm to the Company.
iv. Death or Disability. Upon the death or disability of the
Executive, the Executive shall be entitled to and the company
will pay the remaining amount of compensation from the date of
death or from the date of disability through the termination of
this Agreement. (For purposes of this Section, "disability" shall
mean that for a period of six (6) months in any 12-month period
the Executive is incapable of substantially fulfilling his duties
2
because of physical, mental or emotional incapacity from injury,
sickness or disease. Should the Executive be rendered disabled,
the Company will continue to maintain for the benefit of the
employee, the employee benefit programs referred to in Section
2(b) that were in effect on the date of the disability.
v. Special Termination. In the event that (i) the executive, with or
without a change in title or formal corporate action, shall no
longer exercise all of his duties and responsibilities and shall
no longer possess substantially all the authority set forth in
Section 2; or (ii) the Company materially breaches this Agreement
or the performance of its duties and obligations hereunder; or
(iii) any entity or person not now an executive officers of the
Company become either individually or as part of a group the
beneficial owner of 20% or more of the Company's common stock,
the Executive e, by written notice to the Company, may elect to
deem the Executive's employment hereunder to have been terminated
by the Company without cause under Section 2(ii) hereof, in which
event the Executive shall be entitled to the Compensation payable
pursuant to Section 3(1).
vi. Voluntary Termination. The Executive, on 30 days prior written
notice to the Company, may terminate his employment voluntarily.
Upon such termination, the Company will pay the Executive's
compensation through the date of such termination. After such
date, the Executive shall no longer be entitled to receive
compensation, reimbursement, non-vested stock options or
benefits.
vii. Continuing Effect. Notwithstanding any termination of this
Agreement at the end of the Term or otherwise, the provisions of
Sections 7,8,9,10,11 and 12 shall remain in full force and effect
and the provisions of these Sections shall be binding upon the
legal representatives, successors and assigns of the Executive.
3. COMPENSATION.
1) The Company will pay the Executive an annual base salary of $125,000 per
annum in equal semi-monthly installments, salary will be reviewed annually.
2) During the term of his employment, the Executive shall be entitled to
participate in employee benefits plans or programs of the Company, if any, to
the extent the Executive is eligible to participate hereunder.
a) The Company's Comprehensive Group Insurance Program maintained by
the Company.
3) The Company will reimburse or advance funds to the Executive for all
reasonable travel, entertainment and miscellaneous expenses incurred in
connection with the performance of duties under this Agreement, provided that
the Executive properly account for such expenses tot the Company in accordance
with the Company's practices.
3
4) The Company shall provide a cellular phone, and major credit card.
5) The Executive shall receive options to purchase up to an aggregate of
175,000 shares of the Company's common stock at an exercise price of $ 0.28 per
share. The options shall vest as follows:
(i) Options to purchase up to 175,000 shares may be exercised after
12 months (August 15, 2005) of continuous employment.
In the event that the Company experiences a change of control, defined as a
sale of the Company, the Company is acquired by another company or similar
situation, then all options vest immediately. (Please see Non-Statutory Stock
Option Agreement 2004 for specific details.) In the event the Executive is
terminated without cause, all options will vest.
In the event the Executive is terminated with cause only that portion of
the option exercisable at the time of such termination of employment may
thereafter be exercised. It may not be exercised more than three (3) months
after said termination or after the expiration of the option, which ever is
sooner.
6) The Executive will be entitled to nine (9) paid holidays and four (4)
weeks of vacation for each 12-month period without loss of compensation or other
benefits to which she is entitled under this Agreement, to be taken at such
times as the Executive may select and the affairs of the Company may permit.
4. DUTIES.
(a) General Duties. The Executive shall be employed as the Chief Operating
Officer with duties and responsibilities that are customary for such Executive,
subject to the direction of the Board of Directors and the CEO and as directed
by the company by-laws. The Executive will use the standard of care befitting of
such an executive in performing duties and in discharging responsibilities
pursuant to this Agreement, which duties and responsibilities shall be
discharged competently, carefully, and faithfully.
(b) Corporate Code of Conduct. The Executive agrees to adhere to the
Company's Corporate Code of Conduct.
(b) Extent of Services. The Executive will devote all of time, attention
and energies during normal business hours (exclusive of periods of sickness and
disability and of such normal holiday and vacation periods as have been
established by the Company) to the affairs of the Company. The Executive will
not enter the employ of, or serve as a consultant to, or in any way perform any
services with or without compensation to any persons, business or organization
without the prior consent of the board of directors of the Company; provided,
that the Executive shall be permitted to devote a limited amount of his time,
without compensation, to charitable or similar organizations.
5. PLACE OF PERFORMANCE. The Executive hereby acknowledges that the
Company's existing and potential clients are located throughout the world and
that the Company is actively engaged in marketing and selling its products and
services to such clients throughout the world.
4
6. NON-DISCLOSURE OF INFORMATION. The Executive recognizes and acknowledges
that the Company's trade secrets and proprietary information and processes,
("Confidential Business and Technical Information") as they may exist from time
to time, are valuable, special and unique assets of the Company's business,
access to and knowledge of which are essential to the performance of the
Executive's duties hereunder.
The Executive will not, during or after the term of his employment by the
Company, in whole or in part, disclose such Confidential Business and Technical
Information to any person, firm, corporation, association or entity for any
reason or purpose whatsoever, nor shall the Executive make use of any such
Confidential Business and Technical Information for his own purposes or for the
benefit of any person, firm, corporation or entity except the Company under any
circumstances during or after the term of his employment, provided that after
the term of his employment these restrictions shall not apply to such secrets,
information and processes which are then in the public domain provided that the
Executive was not responsible, directly or indirectly, for such secrets,
information or processes entering the public domain without the Company's
consent.
In the event an action is instituted and prior knowledge is an issue, it
shall be the obligation of the Executive to prove by clear and convincing
evidence that the Confidential Business and Technical Information disclosed was
in the public domain, was already known by the Recipient, or was developed
independently by the Recipient. The Executive agrees to hold as the Company's
property, all memoranda, books, papers, letters, formulas and other data, and
all copies thereof and there from, in any way relating to the Company's business
and affairs, whet made by him or otherwise coming into his possession, and upon
termination of his employment, or on demand of the Company, at any time, to
deliver the same to the Company.
7. NON-COMPETITION AGREEMENT.
(a) The Executive acknowledges and agrees that, pursuant to Florida Statute
Section 542.335, based on having access to and acquiring knowledge of highly
sensitive and valuable trade secrets, and confidential or proprietary
information belonging or relating to the Company, the Executive would be in a
position to cause serous and irreparable harm to the Company in the event that,
following the termination of his employment hereunder, the Executive were to
compete with or be involved in an enterprise which competes with the Company,
engages in the same business as the Company, or performs research and
development in the field of medical optical imaging.
(b) Until termination of his/ employment and for a period of 24 months
commencing on the date of termination, the Executive, directly or indirectly, in
association with or as a stockholder, director, officer, consultant, executive,
partner, joint venture, member or otherwise of or through any person, firm,
corporation, partnership, association or entity, covenants that the Executive
will not compete with the Company or any of its affiliates in the design,
manufacture, construction, offer, sale or marketing of products or services that
5
are competitive with the products or services offered by the Company, within the
United States or anywhere in the world. The Executive covenants and agrees that
during his employment and for a period of 24 months immediately following the
termination of such employment, the Executive will not, either individually or
in partnership or jointly or in conjunction with any person, firm, business,
corporation, partnership joint venture, entity, syndicate or association, as an
executive, principal, agent, officer director consultant, advisor, distributor,
dealer, contractor, trustee, lender, shareholder or in any manner or capacity
whatsoever, directly or indirectly, be employed by, render services to, carry on
or be engaged in, or be concerned with or be interested in or advise, lend money
to, guarantee the debts or obligations of, or in any manner participate in the
management, operation or control of any business which is directly competitive
with the business of the Company, engages in the same business as the company or
performs research and development in the medical optical imaging field with any
entity located anywhere in the world.
(c) For the purposes of this paragraph a business shall be deemed to be in
"direct competition" or "directly competitive" with the Company if such business
is engaged in developing, manufacturing, marketing, selling, or distributing
medical optical imaging devices.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive acknowledges
that during his employment he will learn and will have access to confidential
information regarding the Company and its affiliates, including without
limitation (i) confidential or secret plans, programs, documents, agreements or
material relating to the business, services or activities of the Company and its
affiliates and (ii) trade secrets, market reports, customer investigations,
customer lists and or similar information that is proprietary information of the
Company or its affiliates (collectively referred to as "confidential
information"). The Executive acknowledges that such confidential information as
is acquired and used by the Company or its affiliates is a special, valuable and
unique asset. All records, files, materials and confidential information
obtained by the Executive in the course of his employment with the Company are
confidential and proprietary and shall remain the exclusive property of the
Company or its affiliates, as the case may be. The Executive will not, except in
connection with and as required by his performance of his duties under this
Agreement, for any reason use for his own benefit or the benefit of any person
or entity with which he may be associated or disclose any such confidential
information to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever without the prior written consent of the board
of directors of the Company, unless such confidential information previously
shall have become public knowledge through no action by or omission of the
Executive.
9. NON-SOLICITATION OF EXECUTIVES
The Executive covenants and agrees that while he is employed by the Company
and for a period of twenty-four (24) months immediately following the
termination of such employment, he will not, directly or indirectly, in any
manner whatsoever, on his own behalf, or on behalf of any person, firm,
business, corporation, partnership, joint venture, entity, syndicate or
association solicit, induce or cause, or attempt to induce or cause any person
who was any executive or consultant or in relationship with, or to cease
providing services to the Company.
6
10. REASONABLENESS OF CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION
OBLIGATION AND COVENANTS
(a) The Executive hereby acknowledges and confirms that the obligations and
covenants set out in the above paragraphs are reasonable and necessary to
protect the legitimate interests of the Company. Without limiting the generality
of the foregoing, the Executive hereby acknowledges and confirms that given,
among other things, the nature and international scope of the Company's
operations and of the employment duties to be performed by the Executive
hereunder, the geographic scope and duration of the restrictions set fourth
above are reasonable and necessary to protect the legitimate interests of the
Company.
(b) The Executive further acknowledges and agrees that these obligations
and covenants will not preclude him from becoming gainfully employed following
their termination of his employment in his/ profession.
11. INVENTIONS.
(a) The Executive hereby sells, transfers and assigns to the Company or to
any person, or entity designated by the Company, all of the entire right, title
and interest of the Executive in and to all inventions, ideas, disclosures and
improvements, whet patented or unpatented, and copyrightable material, made or
conceived by the Executive, solely or jointly, or in whole part, during the term
hereof which (i) relate to methods, apparatus, designs, products, processes or
devices sold, leased, used or under construction or development by the Company
or any subsidiary, or (ii) otherwise relate to or pertain to the business,
functions or operations of the Company or any subsidiary, or (iii) arise wholly
or partly from the efforts of the Executive during the term hereof. The
Executive shall communicate promptly and disclose to the Company, in such form
as the Company requests, all information, details and data pertaining to the
aforementioned inventions, ideas, disclosures and improvements; and, whet during
the term hereof or thereafter, the Executive shall execute and deliver to the
Company such formal transfers and assignments and such other papers and
documents as may be required of the Executive at the Company's expense to permit
the Company or any person or entity designated by the Company to file and
prosecute the patent applications and, as to copyrightable material, to obtain
copyright thereon. Any invention by the Executive within one (1) year following
the termination of the Agreement shall be deemed to fall within the provisions
of the paragraph unless proven by the Executive to have been first conceived and
made following such termination.
(b) No Payment. The Executive acknowledges and agrees that no separate or
additional payment will be required to be made to her in consideration of her
undertakings in this Section..
12. EQUITABLE RELIEF.
(a) The Company and the Executive recognize that the services to be
rendered under this Agreement by the Executive are special, unique and of
extraordinary character, and that in the event of the breach by the Executive of
7
the terms and conditions of this Agreement or if the Executive, without the
prior consent of the Board of Directors of the Company, shall leave his
employment for any reason and take any action in violation of Section 6, Section
7, Section 8, or Section 9, the Company will be entitled to institute and
prosecute proceedings in any court of competent jurisdiction referred to in
Section 11(b) below, to enjoin the Executive from breaching the provisions of
Section 6 or Section 7, or Section 8. In such action, the Company will not be
required to plead or prove irreparable harm or lack of an adequate remedy at
law. Nothing contained in this Section 11 shall be construed to prevent the
Company from seeking such other remedy in arbitration in case of any breach of
this Agreement by the Executive, as the Company may elect.
(b) Any proceeding or action must be commenced in state court in Broward
County, Florida we the Company maintains its principal offices. The Executive
and the Company irrevocably and unconditionally submit to the jurisdiction of
such court and agree to take any and all future action necessary to submit to
the jurisdiction of such courts. The Executive and the Company irrevocably waive
any objection that they now have or hereafter or hereafter may have to the
laying of venue of any suit, action or proceeding brought in any such court and
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Final
judgment against the Executive or the Company in any such suit shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment, a
certified or true copy or which shall be conclusive evidence of the fact and the
amount of any liability of the Executive or the Company therein described, or by
appropriate proceedings under any applicable treaty or otherwise.
13. ASSIGNMENT. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the assets and business of the Company. The Executive's
obligations hereunder may not be assigned or alienated and any attempt to do so
by the Executive will be void.
14. SEVERABILITY.
(a) The Executive expressly agrees that the character, duration and
geographical scope of the provisions set forth in this Agreement are reasonable
in light of the circumstances, as they exist on the date hereof. Should a
decision, however, be made at a later date by a court of competent jurisdiction
that the character, duration or geographical scope of such provisions is
unreasonable, then it is the intention and the agreement of the Executive and
the Company that this Agreement shall be construed by the court in such a manner
as to impose only those restrictions on the Executive's conduct that are
reasonable in the light of the circumstances and as are necessary to assure to
the Company the benefits of this Agreement. If, in any judicial proceeding, a
court shall refuse to enforce all of the separate covenants deemed included
herein because taken together they are more extensive than necessary to assure
to the Company the intended benefits of this Agreement, it is expressly
understood and agreed by the parties hereto that the provisions of this
Agreement that, if eliminated, would permit the remaining separate provisions to
be enforced in such proceeding shall be deemed eliminated, for the purposes of
such proceeding, from this Agreement.
8
(b) If any provision of this Agreement otherwise is deemed to be invalid or
unenforceable or is prohibited by the laws of the state or jurisdiction we it is
to be performed, this Agreement shall be considered divisible as to such
provision and such provision shall be inoperative in such state or jurisdiction
and shall not be part of the consideration moving from either of the parties to
the other The remaining provisions of this Agreement shall be valid and binding
and of like effect as though such provision were not included.
14. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
To the Company: Imaging Diagnostic Systems, Inc.
6531 N.W. 18th Court
Plantation, Florida 33313
To the Executive: Ed Horton
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
15. COUNTERPART. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
16. ARBITRATION. Except for any controversy or claim seeking equitable
relief as provided in Section 11 of this Agreement, any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof or any other dispute between the parties, shall be
submitted to one arbitrator and settled by arbitration in Fort Lauderdale,
Florida, in accordance with the rules, then obtaining, of the American
Arbitration Association. Any reward made by such arbitrator shall be final,
binding and conclusive on all parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
17. ATTORNEYS FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to
reasonable attorneys fees, costs and expenses.
18. GOVERNING LAW. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whet relating to its
execution, its validity, the obligations provided therein or performance shall
9
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties her with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
20. ADDITIONAL DOCUMENTS. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
21. SECTION AND PARAGRAPH HEADINGS. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
22. WAIVER OF BREACH. A waiver by the Company or the Executive of a breach
of any provision of the Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as this 15th day of August 2004.
Imaging Diagnostic Systems, Inc. Executive
/s/ Jay S. Bendis /s/ Ed Horton
---------------------------- ---------------------------
Jay S. Bendis, Co-Chairman of the Board Ed Horton
Imaging Diagnostic Systems, Inc. (the "Company"), desiring to afford an
opportunity to the Grantee named below to purchase certain shares of common
stock of the Company's, to provide the Grantee with an added incentive as an
employee, director or consultant of the Company hereby grants to Grantee, and
the Grantee hereby accepts, an option to purchase the number of such shares
optioned as specified below, during the term ending at midnight (prevailing
local time at the Company's principal offices) on the expiration date of this
Option specified below, at the option exercise price specified below, subject to
and upon the following terms and conditions:
1. Identifying Provisions: As used in this Option, the following terms
shall have the following respective meanings.
(a) Grantee: Ed Horton
(b) Date of grant: August 15, 2004
(c) Number of shares optioned: 175,000
(d) Option exercise price per share: $0.28
(e) Expiration Date: August 15, 2014
This Option is not intended to be an incentive stock option pursuant to
Section 422 of the Internal Revenue Code --- ("Sec. 422 Qualified Shares").
2. Timing of Purchases:
(a) August 14, 2005: 175,000
3. Restrictions on Exercise: The following additional provisions shall
apply to the exercise of this Option:
Termination of Employment. If the Grantee's employment by the
Company or any of its subsidiaries is terminated for any reason other than death
only that portion of this Option exercisable at the time of such termination of
employment may thereafter be exercised, and it may not be exercised more than
three months after such termination or after the expiration date of this Option,
whichever date is sooner, except as provided for in the Grantees' Employment
Agreement.
(ii) Death of Grantee. If the Grantee shall die during the
term of this Option, the Grantee's legal representative or representatives, or
the person or persons entitled to do so under the Grantee's last will and
testament or under applicable intestate laws, shall have the right to exercise
this Option, but only for the number of shares as to which the Grantee was
entitled to exercise this Option in accordance with Section 2 hereof on the date
of his death, and such right shall expire and this Option shall terminate one
(1) year after the date of the Grantee's death or on the expiration date of this
Option, whichever date is sooner. In all other respects, this Option shall
terminate upon such death.
11
(iii) Continuity of Employment. This Option shall not be
exercisable by the Grantee in any part unless at all times beginning with the
date of grant and ending no more than one year prior to the date of exercise,
the Grantee has, except for military service leave, sick leave or other bona
fide leave of absence (such as temporary employment by the United States
Government) been in the continuous employ of the Company, except that such
period shall be one (1) year following any termination of the Grantee's
employment by reason of his permanent and total disability.
4. Non-Transferable. The Grantee may not transfer his Option except by
will or the laws of descent and distribution. This Option shall not be otherwise
transferred, assigned, pledged, hypothecated or disposed of in any way, whether
by operation of law or otherwise, and shall be exercisable during the Grantee's
lifetime only by the Grantee or his guardian or legal representative.
5. Adjustments and Corporate Reorganization. Subject to any required
action by the shareholders of the Company, the number of Shares covered by each
outstanding Option, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of any
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Shares subject to an Option.
In the event of the proposed dissolution or liquidation of the Company, the
Option will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Committee. The Committee may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Committee and give each Grantee the right to
exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of the proposed sale of all or substantially all of the assets of the Company,
or the merger of the Company with or into another corporation in a transaction
in which the Company is not the survivor, the Option shall be assumed or an
equivalent option shall be substituted by such successor corporation or a parent
or subsidiary of such successor corporation, unless the Committee determines, in
the exercise of its sole discretion and in lieu of such assumption or
substitution, that the Grantee shall have the right to exercise the Option as to
all of the Optioned Stock, including Shares as to which the Option would not
otherwise be exercisable. If the Committee makes an Option fully exercisable in
lieu of assumption or substitution in the event of such a merger or sale of
assets, the Committee shall notify the Grantee that the Option shall be fully
exercisable for a period of 30 days from the date of such notice, and the Option
will terminate upon the expiration of such period.
6. Exercise, Payment For and Delivery of Stock: This Option may be
exercised by the Grantee or other person then entitled to exercise it by giving
four business days' written notice of exercise to the Company specifying the
number of shares to be purchased and the total purchase price. The option price
shall become immediately due upon exercise of the option and, subject to the
instrument evidencing the grant, shall be payable in one of the following
alternative forms specified below:
(a) full payment in cash or check drawn to the Company's order;
12
(b) full payment in shares of Common Stock held for at least six (6) months and
valued at fair market value on the Exercise Date (as such term is defined
below);
(c) full payment in a combination of shares of Common Stock held for at least
six (6) months and valued at fair market value on the Exercise Date and cash or
check; or
(d) full payment through a broker-dealer sale and remittance procedure provided
that sale of the Optioned stock is permitted as a result of an effective
registration statement under the Securities Act of 1933, as amended, and
compliance with all applicable securities laws, pursuant to which the Grantee
(i) shall provide irrevocable written instructions to a Company-designated
brokerage firm to effect the immediate sale of the purchased shares and remit to
the Company, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate option price payable for the purchased
shares plus all applicable Federal and State income taxes required to be
withheld by the Company in connection with such purchase and (ii) shall provide
written directives to the Company to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the sale
transaction.
For purposes of this subparagraph (2), the Exercise Date shall be the date on
which written notice of the option exercise is delivered to the Company. Except
to the extent the sale and remittance procedure is utilized in connection with
the exercise of the option, payment of the option price for the purchased shares
must accompany such notice.
The fair market value per share of Common Stock on any relevant date under the
Plan shall be determined in accordance with the following provisions:
(a) If the Common Stock is not at the time listed or admitted to trading on any
national stock exchange but is traded on the Nasdaq National Market, the fair
market value shall be the closing selling price per share of Common Stock on the
date in question, as such price is reported by the National Association of
Securities Dealers on the Nasdaq National Market System or any successor system.
If there is no reported closing selling price for the Common Stock on the date
in question, then the closing selling price on the last preceding date for which
such quotation exists shall be determinative of fair market value.
(b) If the Common Stock is at the time listed or admitted to trading on any
national stock exchange, then the fair market value shall be the closing selling
price per share of Common Stock on the date in question on the stock exchange
determined by the Committee to be the primary market for the Common Stock, as
such price is officially quoted in the composite tape of transactions on such
exchange. If there is no reported sale of Common Stock on such exchange on the
date in question, then the fair market value shall be the closing selling price
on the exchange on the last preceding date for which such quotation exists.
(c) If the Common Stock is quoted on the Nasdaq Small Cap Market, or any
similar system of automated dissemination of quotations of securities process in
common use, the fair market value shall be the mean between the closing bid and
asked quotations for the Common Stock on such date.
(d) If neither clause (a), (b) or (c) is applicable, then the fair market value
shall be the mean between the closing bid and asked quotations for the Common
Stock as reported by the National Quotation Bureau, Inc., if at least two
securities dealers have inserted both bid and asked quotations for Common Stock
on at least five of the ten preceding business days.
13
7. Rights in Shares Before Issuance and Delivery. No person shall be
entitled to the privileges of stock ownership in respect of any shares issuable
upon exercise of this Option, unless and until such shares have been issued to
such person as fully paid shares.
8. Requirements of Law and of Stock Exchanges. By accepting this
Option, the Grantee represents and agrees for himself and his transferees by
will or the laws of descent and distribution that, unless a registration
statement under the Securities Act of 1933 is in effect as to shares purchased
upon any exercise of this Option, (i) any and all shares so purchased shall be
acquired for his personal account and not with a view to or for sale in
connection with any distribution, and (ii) each notice of the exercise of any
portion of this Option shall be accompanied by a representation and warranty in
writing, signed by the person entitled to exercise the same, that the shares are
being so acquired in good faith for his personal account and not with view to or
for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered unless and until, in the
opinion of counsel for the Company, such securities may be issued and delivered
without causing the Company to be in violation of or incur liability under any
federal, state or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Stock Option Plan. This Option is subject to, and the Company and
the Grantee agree to be bound by, all of the terms and conditions of the
Company's 2004 Non-Statutory Stock Option Plan under which this Option was
granted, as the same shall have been amended from time to time in accordance
with the terms thereof, provided that no such amendment shall deprive the
Grantee, without his consent, of this Option or any of his rights hereunder.
Pursuant to said Plan, the board of directors of the Company or its Committee
established for such purposes is vested with final authority to interpret and
construe the Plan and this Option, and is authorized to adopt rules and
regulations for carrying out the Plan. A copy of the Plan in its present form is
available for inspection during business hours by the Grantee or other persons
entitled to exercise this Option at the Company's principal office.
10. Notices. Any notice to be given to the Company shall be addressed to
the Company in care of its Secretary at its principal office, and any notice to
be given to the Grantee shall be addressed to him at the address given beneath
his signature hereto or at such other address as the Grantee may hereafter
designate in writing to the company. Any such notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
registered or certified, and deposited, postage and registry of certification
fee prepaid, in a post office or branch post office regularly maintained by the
United States Postal Service.
11. Laws Applicable to Construction. This Agreement has been executed
and delivered by the Company in the State of Florida, and this Agreement shall
be construed and enforced in accordance with the laws of said State.
IN WITNESS WHEREOF, the Company has granted this Option on August 15, 2004;
IMAGING DIAGNOSTIC SYSTEMS, INC. ACCEPTED
/s/ Jay S. Bendis /s/ Ed Horton
------------------------------ --------------------------
By: Jay S. Bendis, Co-Chairman of the Board By: Ed Horton
and Chairman of the Compensation Committee.
EXHIBIT 10.66
EMPLOYMENT EXTENSION
AGREEMENT
This Employment Extension Agreement (the "Extension") is made and entered on
this 30th day of August 2004 by and between Imaging Diagnostic systems, Inc.
(the "Company") and Allan L. Schwartz (the "Executive") to extend an Employment
Agreement previous entered into by the Company and the Executive on August 30,
1999 (the "Agreement"), which is attached hereto.
Now, therefore, it is agreed as follows:
1. The above-described Agreement is hereby extended for a period of one
year commencing on August 30, 2004 and ending on August 30, 2005.
2. The Company will pay the Executive an annual salary of $185,000 during
the term of this Extension.
3. The Executive shall receive options to purchase up to an aggregate of
500,000 shares of the Company's common stock at an exercise price of
$0.30 per share, in accordance with the Company's 2004 Non-Statutory
Stock Option Plan. These options shall vest on August 30, 2005.
4. All terms, provisions and covenants of the above-described Agreement
shall remain in full force for the duration of the extended term,
except as noted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
Imaging Diagnostic Systems, Inc. Executive
/s/ Jay S. Bendis /s/ Allan L. Schwartz
------------------------------------ ----------------------------
Jay Bendis, Co-Chairman of the Board Allan L. Schwartz
Imaging Diagnostic Systems, Inc. (the "Company"), desiring to afford an
opportunity to the Grantee named below to purchase certain shares of common
stock of the Company's, to provide the Grantee with an added incentive as an
employee, director or consultant of the Company hereby grants to Grantee, and
the Grantee hereby accepts, an option to purchase the number of such shares
optioned as specified below, during the term ending at midnight (prevailing
local time at the Company's principal offices) on the expiration date of this
Option specified below, at the option exercise price specified below, subject to
and upon the following terms and conditions:
1. Identifying Provisions: As used in this Option, the following terms
shall have the following respective meanings.
(a) Grantee: Allan L. Schwartz
(b) Date of grant: August 30, 2004
(c) Number of shares optioned: 500,000
(d) Option exercise price per share: $0.30
(e) Expiration Date: August 30, 2014
This Option is not intended to be an incentive stock option pursuant to
Section 422 of the Internal Revenue Code ("Sec. 422 Qualified Shares").
2. Timing of Purchases:
(a) August 30, 2005: 500,000
3. Restrictions on Exercise: The following additional provisions shall
apply to the exercise of this Option:
Termination of Employment. If the Grantee's employment by the
Company or any of its subsidiaries is terminated for any reason other than death
only that portion of this Option exercisable at the time of such termination of
employment may thereafter be exercised, and it may not be exercised more than
three months after such termination or after the expiration date of this Option,
whichever date is sooner, except as provided for in the Grantees' Employment
Agreement.
(ii) Death of Grantee. If the Grantee shall die during the
term of this Option, the Grantee's legal representative or representatives, or
the person or persons entitled to do so under the Grantee's last will and
testament or under applicable intestate laws, shall have the right to exercise
this Option, but only for the number of shares as to which the Grantee was
entitled to exercise this Option in accordance with Section 2 hereof on the date
of his death, and such right shall expire and this Option shall terminate one
(1) year after the date of the Grantee's death or on the expiration date of this
Option, whichever date is sooner. In all other respects, this Option shall
terminate upon such death.
2
(iii) Continuity of Employment. This Option shall not be
exercisable by the Grantee in any part unless at all times beginning with the
date of grant and ending no more than one year prior to the date of exercise,
the Grantee has, except for military service leave, sick leave or other bona
fide leave of absence (such as temporary employment by the United States
Government) been in the continuous employ of the Company, except that such
period shall be one (1) year following any termination of the Grantee's
employment by reason of his permanent and total disability.
4. Non-Transferable. The Grantee may not transfer his Option except by
will or the laws of descent and distribution. This Option shall not be otherwise
transferred, assigned, pledged, hypothecated or disposed of in any way, whether
by operation of law or otherwise, and shall be exercisable during the Grantee's
lifetime only by the Grantee or his guardian or legal representative.
5. Adjustments and Corporate Reorganization. Subject to any required
action by the shareholders of the Company, the number of Shares covered by each
outstanding Option, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of any
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Shares subject to an Option.
In the event of the proposed dissolution or liquidation of the Company, the
Option will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Committee. The Committee may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Committee and give each Grantee the right to
exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of the proposed sale of all or substantially all of the assets of the Company,
or the merger of the Company with or into another corporation in a transaction
in which the Company is not the survivor, the Option shall be assumed or an
equivalent option shall be substituted by such successor corporation or a parent
or subsidiary of such successor corporation, unless the Committee determines, in
the exercise of its sole discretion and in lieu of such assumption or
substitution, that the Grantee shall have the right to exercise the Option as to
all of the Optioned Stock, including Shares as to which the Option would not
otherwise be exercisable. If the Committee makes an Option fully exercisable in
lieu of assumption or substitution in the event of such a merger or sale of
assets, the Committee shall notify the Grantee that the Option shall be fully
exercisable for a period of 30 days from the date of such notice, and the Option
will terminate upon the expiration of such period.
3
6. Exercise, Payment For and Delivery of Stock: This Option may be
exercised by the Grantee or other person then entitled to exercise it by giving
four business days' written notice of exercise to the Company specifying the
number of shares to be purchased and the total purchase price. The option price
shall become immediately due upon exercise of the option and, subject to the
instrument evidencing the grant, shall be payable in one of the following
alternative forms specified below:
(a) full payment in cash or check drawn to the Company's order;
(b) full payment in shares of Common Stock held for at least six (6) months and
valued at fair market value on the Exercise Date (as such term is defined
below);
(c) full payment in a combination of shares of Common Stock held for at least
six (6) months and valued at fair market value on the Exercise Date and cash or
check; or
(d) full payment through a broker-dealer sale and remittance procedure provided
that sale of the Optioned stock is permitted as a result of an effective
registration statement under the Securities Act of 1933, as amended, and
compliance with all applicable securities laws, pursuant to which the Grantee
(i) shall provide irrevocable written instructions to a Company-designated
brokerage firm to effect the immediate sale of the purchased shares and remit to
the Company, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate option price payable for the purchased
shares plus all applicable Federal and State income taxes required to be
withheld by the Company in connection with such purchase and (ii) shall provide
written directives to the Company to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the sale
transaction.
For purposes of this subparagraph (2), the Exercise Date shall be the date on
which written notice of the option exercise is delivered to the Company. Except
to the extent the sale and remittance procedure is utilized in connection with
the exercise of the option, payment of the option price for the purchased shares
must accompany such notice.
The fair market value per share of Common Stock on any relevant date under the
Plan shall be determined in accordance with the following provisions:
(a) If the Common Stock is not at the time listed or admitted to trading on any
national stock exchange but is traded on the Nasdaq National Market, the fair
market value shall be the closing selling price per share of Common Stock on the
date in question, as such price is reported by the National Association of
Securities Dealers on the Nasdaq National Market System or any successor system.
If there is no reported closing selling price for the Common Stock on the date
in question, then the closing selling price on the last preceding date for which
such quotation exists shall be determinative of fair market value.
(b) If the Common Stock is at the time listed or admitted to trading on any
national stock exchange, then the fair market value shall be the closing selling
price per share of Common Stock on the date in question on the stock exchange
determined by the Committee to be the primary market for the Common Stock, as
such price is officially quoted in the composite tape of transactions on such
exchange. If there is no reported sale of Common Stock on such exchange on the
date in question, then the fair market value shall be the closing selling price
on the exchange on the last preceding date for which such quotation exists.
4
(c) If the Common Stock is quoted on the Nasdaq Small Cap Market, or any
similar system of automated dissemination of quotations of securities process in
common use, the fair market value shall be the mean between the closing bid and
asked quotations for the Common Stock on such date.
(d) If neither clause (a), (b) or (c) is applicable, then the fair market value
shall be the mean between the closing bid and asked quotations for the Common
Stock as reported by the National Quotation Bureau, Inc., if at least two
securities dealers have inserted both bid and asked quotations for Common Stock
on at least five of the ten preceding business days.
7. Rights in Shares Before Issuance and Delivery. No person shall be
entitled to the privileges of stock ownership in respect of any shares issuable
upon exercise of this Option, unless and until such shares have been issued to
such person as fully paid shares.
8. Requirements of Law and of Stock Exchanges. By accepting this
Option, the Grantee represents and agrees for himself and his transferees by
will or the laws of descent and distribution that, unless a registration
statement under the Securities Act of 1933 is in effect as to shares purchased
upon any exercise of this Option, (i) any and all shares so purchased shall be
acquired for his personal account and not with a view to or for sale in
connection with any distribution, and (ii) each notice of the exercise of any
portion of this Option shall be accompanied by a representation and warranty in
writing, signed by the person entitled to exercise the same, that the shares are
being so acquired in good faith for his personal account and not with view to or
for sale in connection with any distribution.
No certificate or certificates for shares of stock purchased upon
exercise of this Option shall be issued and delivered unless and until, in the
opinion of counsel for the Company, such securities may be issued and delivered
without causing the Company to be in violation of or incur liability under any
federal, state or other securities law, any requirement of any securities
exchange listing agreement to which the Company may be a party, or any other
requirement of law or of any regulatory body having jurisdiction over the
Company.
9. Stock Option Plan. This Option is subject to, and the Company and
the Grantee agree to be bound by, all of the terms and conditions of the
Company's 2004 Non-Statutory Stock Option Plan under which this Option was
granted, as the same shall have been amended from time to time in accordance
with the terms thereof, provided that no such amendment shall deprive the
Grantee, without his consent, of this Option or any of his rights hereunder.
Pursuant to said Plan, the board of directors of the Company or its Committee
established for such purposes is vested with final authority to interpret and
construe the Plan and this Option, and is authorized to adopt rules and
regulations for carrying out the Plan. A copy of the Plan in its present form is
available for inspection during business hours by the Grantee or other persons
entitled to exercise this Option at the Company's principal office.
10. Notices. Any notice to be given to the Company shall be addressed to
the Company in care of its Secretary at its principal office, and any notice to
be given to the Grantee shall be addressed to him at the address given beneath
his signature hereto or at such other address as the Grantee may hereafter
designate in writing to the company. Any such notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
registered or certified, and deposited, postage and registry of certification
fee prepaid, in a post office or branch post office regularly maintained by the
United States Postal Service.
5
11. Laws Applicable to Construction. This Agreement has been executed
and delivered by the Company in the State of Florida, and this Agreement shall
be construed and enforced in accordance with the laws of said State.
IN WITNESS WHEREOF, the Company has granted this Option on August 30, 2004;
IMAGING DIAGNOSTIC SYSTEMS, INC. ACCEPTED
/s/ Jay S. Bendis /s/ Allan L. Schwartz
------------------------------ ------------------
By: Jay S. Bendis, Co-Chairman of the Board By: Allan L. Schwartz
and Chairman of the Compensation Committee.
6
EXHIBIT 31.1
CERTIFCATION BY CHIEF EXECUTIVE OFFICER
PURSUANT TO EXCHANGE ACT SECTIONS 13(a) & 15(d)
AS REQUIRED BY
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Timothy Hansen, certify that:
1. I have reviewed this annual report on Form 10-K of Imaging Diagnostic
Systems, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this annual
report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we
have:
a) designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the effectiveness of
the disclosure controls and procedures based on our evaluation as of the
Evaluation Date;
5) The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
annual report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and
material weaknesses.
CERTIFCATION BY CHIEF FINANCIAL OFFICER
PURSUANT TO EXCHANGE ACT SECTIONS 13(a) & 15(d)
AS REQUIRED BY
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Allan L. Schwartz, certify that:
1. I have reviewed this annual report on Form 10-K of Imaging Diagnostic
Systems, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this annual
report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we
have:
a) designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the effectiveness of
the disclosure controls and procedures based on our evaluation as of the
Evaluation Date;
5) The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
annual report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and
material weaknesses.
Date: September 17, 2004 /s/ Allan L. Schwartz
---------------------
Allan L. Schwartz
Executive Vice President and
Chief Financial Officer
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. ss. 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Imaging Diagnostic Systems, Inc. (the
"Company") on Form 10-K for the period ending June 30, 2004, as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I, Timothy
Hansen, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C.
ss. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
that, to the best of my knowledge and belief:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material
respects, the financial condition and result of operations of the Company.
CERTIFICATION PURSUANT TO
18 U.S.C. ss. 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Imaging Diagnostic Systems, Inc. (the
"Company") on Form 10-K for the period ending June 30, 2004, as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I, Allan
L. Schwartz, Chief Financial Officer of the Company, certify, pursuant to 18
U.S.C. ss. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, that, to the best of my knowledge and belief:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material
respects, the financial condition and result of operations of the Company.
/s/ Allan L. Schwartz
---------------------
Allan L. Schwartz
Chief Financial Officer
September 17, 2004
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