exv10w26






Exhibit 10.26




Purchasing Agreement for the XT250 System



This Agreement is entered into by XStream Systems, Inc., (hereinafter XSI), having its
principle office at 10305 10 2nd Terrace, Suite 101, Sabastlan, FL 32958; and Altec Mec
cal, Inc. (hereinafter AMI), having its principle office at
223 Cooper Lane, Suite A,
Easley, South Carolina 29642.




Article I




1.1



The following proposal is the basic terms and conditions for an agreement between XStream
Systems, Inc. (XSI) and Altec Medical, Inc. (AMI) for the
purchase of XSI’s XT250 system by AMI
and for AMI to provide consulting services to XS as it relates to the Implementation,
development and overall execution of the commercial application into the pharmaceutical distribution marketplace.




1.2



This proposal is based on initial installation for the Test Period described below to begin
before October 1, 2008 and the purchase of the system by
November 14, 2008.




1.3



XSI and AMI will enter into the attached Mutual Non-Disclosure Agreement (Attachment I) barring
either party from disclosing the terms and conditions of the Purchasing Agreement and any other
confidential information.




Article II AMI’s Purchase of the XT250




2.1



AMI agrees
to the purchase of XSI’s XT 250 system for the manufacturer’s suggested retail
price of $179,000.




2.2



AMI has the option of using XSI’s third party, financial services provider to obtain the
necessary financing and terms




2.3



AMI will have a 45 day test period following the installation of the XT250 Following the 45 day test period AMI must make full payment to XSI for the system.




2.4



XSI will add up to 20 new drug signatures per month to the Standard MRSE Library for drugs
provided by AMI. XSI will be allowed to share and Standard MRSE
Library with all XSI customers. XSI
may extend this period of MRSE signature development given AMI’s ability to provide XSI access to
pharmaceuticals.




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2.4.1



Following the development phase, XSI will provide to AMI, 20 new drug signatures annually for
drugs provided by AMI. XSI will be allowed to share the Standard MRSE Library with all XSI
customers.




2.5



AMI will have access to the Standard MRSE Library throughout the life of the system.




2.6



The
purchase price of the system includes a one year warranty on parts and labor
(Attachment II).




2.7



XSI will upgrade the purchased XT250 with all system software updates for the life of the
XT250 system and to an 80 watt X-ray source when and as they become commercially available given
AMI’s willingness to serve as a Test Site for the testing of the system software and 80 watt X-ray
source enhancements.




Article III
— AMI Consulting Services Agreement




3.1



XSI will pay a monthly consulting services fee for twelve months following the purchase of
the XT250 system to AMI for the Implementation, development, marketing and overall execution of
the commercial application into the pharmaceutical distribution
marketplace. The specific terms and
conditions of the Consulting Services Agreement will listed in a separate Attachment. (Attachment
III)




Article IV — Sales Referral Bonus




4.1



XSI will
offer AMI a $1,000 sale referral bonus for systems purchased through leads
provided, endorsed and introduced to XSI by AMI, following the installation and full payment of
the system.




Article V




5.1



This construction, validity, performance and effect of this entire Agreement shall be
governed by the laws of Florida.




5.2



This Agreement sets forth the entire agreement and understanding between XSI and AMI as to the
subject matter thereof and merges a prior discussions between them.




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5.3



If any provision of this Agreement shall be held to be invalid, such invalidity shall not
affect any other provisions of this Agreement, but the remainder hereof shall be
effective as though such invalid provisions had not been contained herein.




5.4



This Agreement may be executed in any number of counterparts, any one of which shall be
deemed to be the original without the production of the others.




The Effective Date of this Agreement is Sept. 22, 2008.




	 	 	 	 	 	 	 	 	 	 	 
	XStream Systems, Inc.	 	 	 	Altec Medical, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Clock
 

	 	 
	 	By:
	 	/s/ Michael J. Cox
 

	 	 
	Name:

	 	Alan Clock
	 	 	 	Name:
	 	Michael J. Cox	 	 
	Title:

	 	SVP
	 	 	 	Title:
	 	President	 	 






3









 





Attachment I

Mutual Confidentiality Agreement

XStream Systems, Inc. and Altec Medical, Inc.



THIS
MUTUAL CONFIDENTIALITY AGREEMENT (herein “Agreement”)
is made on the ___ day of ______
2008, by and between XStream Systems Inc., (herein “XStream Systems”), a corporation with offices
located at 10305
02nd Terrace, St, 101, Sebastian FL 32958 and Altec Medical, Incorporated with
offices located at 223 Cooper Lane, Easley, South Carolina 29642 (herein “AMI”).




          WHEREAS, XStream Systems and “AMI” each possess certain proprietary, financial, technical,
systems and business information related to their respective operations, products, and services
(the “Confidential Information”); and




          WHEREAS, The Parties each desire to receive Confidential Information from the others for the
sole purpose of analyzing such Confidential Information and for us in discussions about a possible
business relationship by and among them (the “Purpose”); and




          WHEREAS, The Parties each desire to provide Confidential Information to the others to
facilitate the Purpose; and




          WHEREAS, The Parties wish to ensure that the Confidential Information is not disclosed to
third parties or misused in any way, now or in the future; and




          NOW THEREFORE, in consideration of the mutual agreement and covenants contained herein and
other good and valuable consideration, receipt of which is hereby acknowledged the Parties hereto,
intending to be legally bound hereby, agree as follows;




     1. As used in this Agreement, Confidential information shall mean, but shall not be limited to,
software and software designs, financial information, marketing strategies, customer lists, client
information, proprietary services proprietary software including, but not limited to XStream
Systems purchasing and contract data and other information provided to one Party by the other
Party whether written, oral, graphic, or by other means. Confidential information shall not
include any material,



4









 




whether written, oral, graphic or by other means that (a) at the time such information is provided
to one Party by the other Party is in public domain or (b) after any Party provides such
information to the other, it becomes part of public domain other than by breach of this Agreement
by a Party or by breach of any other known agreement or confidentiality obligation by a third
party, or (c) was previously available to the non-disclosing Party as demonstrated by written
evidence in the possession of the non-disclosing Party.




     II. All Confidential Information delivered by any Party pursuant to this Agreement, shall be
and shall remain the property of the Party providing such information to the others.
Confidential Information, and copies thereof, as well as notes, analysis, memoranda, and other
documents prepared by any Party that contain or refer to Confidential Information shall be promptly
returned or destroyed upon request of the Party that disclosed or provided such Confidential
information to the other Party.



     III.
The Parties agree and will maintain in confidence all Confidential Information. In this
regard, the Parties agree to disclose Confidential Information only to those of their officers,
employees, representatives or agents who are directly concerned with the use of said Confidential
Information for the Purpose and the Parties shall take all reasonable precautions to prevent such
Confidential Information from being disclosed to any unauthorized person, firm, or company. Upon
disclosing Confidential Information to their officers, employees, representatives or agents, the
Parties shall advise said officers, employees, representatives or agents of the confidential nature
thereof, and shall take all reasonable precautions to prevent the unauthorized disclosure of such
Confidential Information by such officers, employees, representatives or agents.



     IV. The Parties agree [illegible] to use Confidential Information for any purpose other than
the Purpose without first obtaining the express written consent of each disclosing Party whose
Confidential Information will be used for any purpose other than the Purpose.



     V. This Agreement can be terminated by either Party, at any time, with or without cause, upon
written notice to the other Party at the above listed addresses. Each Party’s confidentiality
obligations under this Agreement shall continue for a period of three (3) years after the date of
termination of this Agreement.



     VI. It is hereby acknowledged that no Party shall incur any liability merely for evaluating,
examining, and considering the other’s Confidential Information. It is also acknowledged that no
Party represents or warrants the accuracy of the information provided to the others. Nothing in
this Agreement shall be construed as representing any commitment by either Party to enter into any
subsequent agreement, venture, or other relationship.



     VII. The Parties agree this written Agreement embodies the entire understanding between them
and supersedes and replaces any and all prior understandings, agreements or arrangements, whether
oral or written relating to the Confidential Information.
Modifications to this Agreement only
become effective when such modifications are in writing, signed by both Parties.



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     VIII. The Parties hereby agree that all Confidential Information provided to their officers,
employees, representatives or agents by the other Party prior to the execution of this Agreement
shall become subject to the terms and conditions contained in this Agreement.



     IX. In the event a Party is requested or required in any judicial or administrative proceeding
(by oral questions, interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any Confidential
Information, the Parties
hereby agree they will promptly notify the other Party of such request or requirement to the other
Party may seek an appropriate protective order or move compliance with certain provisions
of this Agreement. If, in the absence of a protective order of the receipt of a waiver hereunder,
the Party asked to disclose Confidential Information is, in the written opinion of such Party’s
counsel, compelled to disclose the Confidential Information to a
tribunal or else stand liable
for contempt or suffer other censure or significant penalty, such Party may disclose such
Confidential Information to such tribunal; provided, however, that in any such case at the
disclosing Party shall give the other Party written notice of the information to be disclosed as
[illegible] advance of its disclosure as is practicable; (b) only that portion of the Confidential
Information which is legally required to be disclosed will be disclosed; and (c) upon the
non-disclosing Parties, request, the disclosing Party shall make reasonable efforts to assist in
obtaining assurances that confidential treatment will be afforded the Confidential Information that
must be disclosed. The Party asked to disclose Confidential Information shall not be liable for the
disclosure of Confidential information pursuant to the preceding sentences unless such disclosure
was caused by, or resulted from, a previous breach of the terms of this Agreement by that
Party.



     X. Each Party hereby agrees to promptly notify the other Party in writing if they become aware
of any breach of this Agreement.



     XI. The Parties understand and agree that money damages would not be sufficient to remedy any
breach of this Agreement by the other Party or their officers, employees, representatives or agents
and any party shall be entitled to equitable relief, including injunction and specific
performance, as a remedy for any such breach, in addition to all other remedies available at law
or equity. In addition, the breaching Party shall pay for a reasonable attorneys’ fees and costs
incurred by the non-breaching Party when enforcing any of the terms
of this Agreement.



     XII.
This Agreement is a personal, indivisible, non-transferable Agreement and may not be
assigned or transferred by any Party in whole or in part and shall be interpreted, construed, and
enforced in accordance with the laws of the State of Florida.



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          IN WITNESS WHEREOF, the Parties intending to be legally bound hereby, have executed and
delivered this Agreement as of the 22 day of 9 2008.




	 	 	 	 	 	 	 	 	 	 	 
	XStream Systems Inc., Inc.	 	 	 	Altec Medical, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Clock
 

	 	 
	 	By:
	 	/s/ Michael J. Cox
 

	 	 
	Title:

	 	SVP
	 	 	 	Title:
	 	President	 	 
	Date:

	 	9/22/08
	 	 	 	Date:
	 	9/22/08	 	 







7











 





Attachment III

Consulting Services Agreement

XStream Systems, Inc. and Altec Medical, Inc.



This
Attachment documents the Terms and Conditions of the Consulting Services Agreement
between XStream Systems, Inc. and Altec Medical, Inc. as a result purchase of the XT250
System.




AIII 1.1



XSI will pay a monthly consulting services fee for twelve months following the purchase of
the XT250 system to AMI for the implementation, development, marketing and overall execution
of the commercial application into the pharmaceutical distribution marketplace.




AIII 1.2



This consulting fee will be based on a minimum of 32 hours of consulting services per
month.




AIII 1.3



The monthly consulting fee will be $1,000.




AIII 1.4



This
monthly consulting fee will be paid within 30 days of the date of the invoice detailing
from AMI.




AIII 1.5



XSI will
also provide an extended warranty for the XT250 system of an additional two
years from the standard one year warranty included with the purchase of the system.




AIII 1.6



Within
30 days of the execution of the Purchasing Agreement, XSI and AMI will mutually
develop a tactical and strategic plan for the Consulting Services
Agreement that limits
the specific expectations and objectives the engagement. That document will become part of
the Consulting Services Agreement via an addendum.




	 	 	 	 	 	 	 	 	 	 	 
	XStream Systems, Inc.	 	 	 	Altec Medical, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Clock
 

	 	 
	 	By:
	 	/s/ Michael J. Cox
 

	 	 
	Name:

	 	Alan Clock
 

	 	 
	 	Name:
	 	Michael J. Cox
 

	 	 
	Title:

	 	SVP
 

	 	 
	 	Title:
	 	President
 

	 	 






8









 











Attachment II




XT250 Material Identification System



One Year Limited Warranty


XStream
Systems, Inc. referred to hereafter as XSI, warrants as
limited herein to the
original purchaser of the XT250 Material Identification System that
each new XT250 System will be free from defects in material and service when correctly installed and maintained. XSI will
repair or replace at XSI’s sole option any defective or
non-conforming product or part.
This warranty shall only cover defects arising from normal usage. XSI assumes no responsibility
whatsoever if the XT250 System should failed during the warranty
period by reason of:





(a)
Repairs, modifications or alterations by any other party than
XSI and/or
XSI’s authorized service centers




(b) Use
in conjunction with equipment not provided or authorized by XSI.




(c) Equipment
subject to unusual physical, thermal or electric stress, improper
installation, misuse, abuse, accident or negligence in use, acts of
nature, storage,
transportation or handling, alteration, tampering, NTF (No Trouble
Found) or faulty
repair.




(d) Items
requiring repair or replacement due to normal
wear and tear.




(e) Any
cause not related to a product defect.


The
duration of the warranty provided [ILLEGIBLE] will begin at the earlier of, 1) the date of
completed installation or 2) (30) thirty days after the shipment
from the manufacture date of
installation is the date XStream Systems Inc. has installed the system and it is operational



XSI
makes no further warranties or representations, express or implied except those contained herein.
No representations or dealer is authorized to assume any other liability regarding the XT250
Material Identification System. XSI’s liability is hereby limited to the purchase price of the
produced XSI shall in no event the liable for direct, indirect, special or consequential damages,
including any cost or expense of providing substitute equipment or
service during periods of
malfunction or non-use pending repairs. This warranty may not be
transferred.








9









 







If there is a any implied warranty granted prior state law, including warranties of
merchantability or fitness for a particular purpose, such are limited in duration from the
earlier of, 1) the date of completed installation or 2) (30) thirty days after the shipment from
the manufacturer to the life such warranties expire by state law or after (1) one year, whichever
occurs first. Some states do not allow limitations on how long an implied warranty lasts, and/or do
not allow the limitations. so the exclusions above may not apply to you. This warranty gives you
specific legal rights and you may have other rights which vary from state to state.



Should the
XT250 System fail to operate under the terms of this limited warranty, please contact
your distributor or XSI at 1-800-597-1191.



COUNTRIES OTHER THAN THE UNITED STATES: Customers who have purchased the XT250 Material
Identification System exported from the United States should contact your distributor to obtain
warranty policies for your country. If the distributor cannot be
contacted, please call XSI
directly.




XStream Systems, Inc. USA. 1-800-597-1191




PRODUCT SUPPORT



Thank
you for purchasing the XT250 Material Identification System. We offer multiple
levels of service which are available to you. Service options include call center support,
labor, preventative maintenance and parts, depending on which level
you choose. For additional
information regarding  the warranty and/or service of your XT250 System, please contact your
distributor directly or call 1-800-597-1191.








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Attachment III-Amendment A

Consulting Services Agreement

XStream Systems, Inc. and Altec Medical, Inc.



This is an amendment to Attachment III of the Consulting Services Agreement between
XStream Systems, Inc. and Altec Medical, Inc.


The amendment adds to the original Attachment regarding the Terms and Conditions of the Consulting Services Agreement between XStream Systems, Inc. and Altec Medical, Inc. as a result purchase of
the XT250 System.


Amendment
A AIII 2.1


Changing
the wording of the AIII 1.3 from:


The monthly consulting fee will be $1,000.


Will now read:


The monthly consulting fee will be $2,000.


Amendment A AIII 2.2


Adding verbiage to AIII 1.6 which now reads:


Within 30 days of the execution of the Purchasing Agreement, XSI and
AMI will mutually develop a tactical and strategic plan for the Consulting Services Agreement that lists the
specific expectations and objectives the engagement. That document will become part of the
Consulting Services Agreement via an addendum.


Will include:


The
specific expectations and objectives for the engagement between XSI and AMI will
include MRSE development, test data collection, product development assistance, technical
assistance, market expertise, pharmaceutical expertise and other mutually identified and
agreed upon assistance.


This amendment to Attachment will be added to the Master Purchasing Agreement based on the
execution of the document by the authorized signatures below:




	 	 	 	 	 	 	 	 	 	 	 
	XStream Systems, Inc.	 	 	 	Altec Medical, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Clock
 

	 	 	 	By:
	 	/s/ Michael Cox
 

	 	 
	Name:

	 	Alan Clock
 

	 	 
	 	Name:
	 	Michael Cox
 

	 	 
	Title:

	 	SVP
 

	 	 
	 	Title:
	 	President
 

	 	 
	Date:

	 	11/18/08
 

	 	 
	 	Date:
	 	11/18/08