EXHIBIT 10.3
CONSENT AND AGREEMENT
THIS CONSENT AND AGREEMENT made and entered into as of the 24th day of
April, 2006, by and between LIFESTREAM TECHNOLOGIES, INC., a Nevada corporation,
having an office at 000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx 0000, Xxxxx X, Xxxx
Xxxxx, Xxxxx 00000 ("Lifestream") LIFENEXUS, INC., a Nevada corporation, having
an office at 000 Xxxxxxxxxx Xxxx., Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
("LifeNexus").
W I T N E S S E T H:
WHEREAS, Lifestream and LifeNexus are parties to a certain Patent
License Agreement dated October 1, 2005 (the "Patent License Agreement"), (which
was filed as exhibit 10.37 to Form 8-K filed on October 14, 2005 and is hereby
incorporated by reference); and
WHEREAS, Lifestream and LifeNexus are parties to a certain Trademark
License Agreement dated October 1, 2005 (the "Trademark License Agreement"),
(which was filed as exhibit 10.38 to Form 8-K filed on October 14, 2005 and is
hereby incorporated by reference); and
WHEREAS, Lifestream is entering into a Patent and Trademark Assignment
and License Assumption Agreement of even date herewith with RAB Special
Situations (Master) Fund Limited ("RAB"), substantially in the form of Exhibit C
to this Agreement (the "Assignment and Assumption Agreement"), pursuant to which
(a) Lifestream is conveying to RAB all of Lifestream's right, title and interest
in and to the Patent License Agreement and to the patent applications described
on Exhibit A to the Patent License Agreement (the "Patents"), (b) Lifestream is
conveying to RAB all of Lifestream's right, title and interest in and to the
Trademark License Agreement and to the trademarks described on Exhibit B to the
Trademark License Agreement (the "Trademarks"), and (c) RAB is assuming all of
Lifestream's obligations under the Patent License Agreement and the Trademark
License Agreement; and
WHEREAS, Lifestream has requested LifeNexus to provide, and LifeNexus
desires to provide, LifeNexus' consent to the transactions contemplated by the
Assignment and Assumption Agreement, upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration for the promises and covenants herein
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledge, the parties hereto, intending to be
legally bound, agree as follows:
1. Consent to Transactions. Pursuant to Section 1.5 of the Patent
License Agreement and Section 1.5 of the Trademark License Agreement, as
applicable, LifeNexus hereby consents to:
(a) Lifestream's assignment to RAB of Lifestream's entire
right, title and interest in and to the Patents pursuant to the Assignment and
Assumption Agreement;
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(b) Lifestream's assignment to RAB of Lifestream's entire
right, title and interest in and to the Patent License Agreement pursuant to the
Assignment and Assumption Agreement;
(c) Lifestream's assignment to RAB of Lifestream's entire
right, title and interest in and to the Trademarks pursuant to the Assignment
and Assumption Agreement; and
(d) Lifestream's assignment to RAB of Lifestream's entire
right, title and interest in and to the Trademark License Agreement pursuant to
the Assignment and Assumption Agreement.
2. Waiver by LifeNexus. In connection with the transactions
contemplated by the Assignment and Assumption Agreement, LifeNexus hereby
waives:
(a) the application of Section 1.6 of the Patent License
Agreement;
(b) the application of Section 1.6 of the Trademark License
Agreement;
(c) the right of first refusal under Section 4.1 of the Patent
License Agreement; and
(d) the right of first refusal under Section 4.1 of the
Trademark License Agreement.
3. Confirmation of Obligations. LifeNexus hereby confirms its
obligations as licensee under the Patent License Agreement and Trademark License
Agreement and agrees to fully and faithfully perform its obligations under the
Patent License Agreement and Trademark License Agreement from and after the date
hereof.
4. Acknowledgement. LifeNexus hereby acknowledges that all references
to Lifestream under the Patent License Agreement and the Trademark License
Agreement shall, commencing on the date hereof, refer to RAB, whose address for
notices under Section 6.1 of the Patent License Agreement and Section 6.1 of the
Trademark License Agreement shall be as follows:
RAB Special Situations (Master) Fund Limited
c/o RAB Capital plc
0 Xxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Telephone: 00(0) 00 0000 0000
Facsimile: 00 (0) 00 0000 0000
Email: xx@xxxxxx.xxx
Attention: Xxxxxx Xxxxxxx
5. Miscellaneous.
(a) All written notices, correspondence or other
communications under this Agreement shall be delivered to the addresses of
record first written above. Either party may change its address of record with
written notice.
(b) This Agreement, together with the Exhibits and Schedules
hereto, constitute the entire understanding of the parties with respect to the
subject matter hereof, supercedes all previous express or implied promises or
understandings related to the subject matter hereof and ma not be varied,
amended or supplemented except by a writing of even or subsequent date executed
by both parties and containing express reference to this Agreement.
(c) The failure of either party to enforce at any time any of
the provisions of this Agreement, or any rights in respect thereto, shall in no
way be considered a waiver of such provisions, rights or elections with respect
to subsequent events or in any way to affect the validity and the enforceability
of this Agreement.
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(d) In the event that any provision of this Agreement is
declared invalid or legally unenforceable by a court of competent jurisdiction
from which no appeal is or can be taken, the invalid provision shall be deemed
replaced by a similar but valid and legally enforceable provision as near in
effect as the invalid or legally unenforceable provision, and the remainder of
this Agreement shall be deemed modified to conform thereto and will remain in
effect.
(e) This Agreement is binding upon and inure to the benefit of
the parties and their respective heirs, successors and permitted assigns and
neither party will transfer the obligations under this Agreement without the
prior written consent of the other party and which consent shall not be
unreasonably withheld.
(f) This Agreement may be executed by facsimile, and in one or
more counterparts, each of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Lifestream and RAB have executed this Agreement as
of the date and year first above written.
LIFESTREAM TECHNOLOGIES, INC.
By:
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Name:
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Title:
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LIFENEXUS, INC.
By:
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Name:
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Title:
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