exv10w21






Exhibit 10.21




LETTER OF INTENT




XSTREAM SYSTEMS AND EASTMAN KODAK COMPANY COLLABORATION AGREEMENT



This Letter of Intent dated September 23, 2009, confirms the intended relationship between XStream
Systems, Inc. (XSI) and Eastman Kodak Company (Kodak) (the “LOI”). Both parties agree to negotiate
the details of the intended collaboration agreement and attachments on or before October 30, 2009
in a definitive agreement signed by both parties. The conditions of this Letter of Intent are to be
kept strictly confidential between XSI and Kodak under a Non-Disclosure Agreement executed by
parties.



This Letter of Intent summarizes the following principles which are not intended to be binding
unless and until the parties execute any definitive Agreement(s) in form and substance satisfactory
to both parties, but which are to form the basis of the negotiation in good faith of such
definitive agreement(s):





	 	1)	 	Kodak and XSI agree to hold a planning meeting in September or in the first two weeks
of October 2009, to develop a plan detailing the following points:






	 	a)	 	List of immediate joint sales prospects with near term potential of purchasing
an integrated Kodak/XSI security solution
	 
	 	b)	 	Areas of responsibility for Kodak and for XSI






	 	2)	 	Both parties to investigate the licensing possibilities of cross marketing products
	 
	 	3)	 	Both parties to investigate the possibility of co-marketing their products to customers
desiring Transit Security Authority (TSA) certification of their own site as a Certified
Cargo Screening Facility.
	 
	 	4)	 	Kodak may provide XSI with Kodak Corporate Engineering contacts that XSI as a
potential resource for new XSI product development
	 
	 	5)	 	Kodak to have the opportunity to visit XSI to observe a setup representative of current
product instrumentation.
	 
	 	6)	 	XSI agrees to execute a definitive agreement to exclusively purchase Kodak product(s)
under terms and conditions to be mutually agreed upon by the parties.




This Letter of Intent sets forth certain non-binding understandings between XSI and Kodak. It
reflects and summarizes the mutual understandings of parties’ discussions to date and does not
constitute a complete statement of or a legally binding agreement with respect to any term





 









 







or condition nor does it impose on either party an enforceable obligation to negotiate towards an
agreement.



This LOI is made under and shall be construed according to the laws, other than choice of law
provisions, of the State of New York.



Neither party makes any representations or warranties, expressed or implied, of any kind including
without limitation, with respect to the accuracy or completeness of any oral or written
information, data or disclosure delivered to the other party. Any representations or warranties
shall be made, if at all, only in definitive written agreements that may be entered into hereafter
with respect to the potential cooperation under discussion.



This LOI may not be modified, amended or waived except by a written instrument duly executed
by both parties.



The exchange of confidential information hereunder will be governed by the terms and conditions of
the Confidential Disclosure Agreement between the parties having an Effective Date of August 3,
2009, and any other confidentiality agreements executed during the term of this LOI between the
parties,.



Without prejudice to the other conditions precedent that the parties may agree to include in any
definitive agreement, it is expressly understood that the definitive agreement(s) shall only become
legally binding and enforceable upon the parties after both parties have obtained the proper
internal signature(s) and approval(s) in that respect and after all necessary governmental,
administrative or any other consent(s), approval(s) or clearance(s) have been obtained. The parties
will use reasonable commercial efforts to negotiate in good faith and, subject to the completion of
successful negotiations, execute the definitive Agreement(s) by October 30, 2009. Notwithstanding
anything in this LOI to the contrary, this LOI shall not be deemed to create any agreement that the
parties will ultimately agree on or execute any definitive agreement(s).



Neither party shall have any obligation to enter into any further agreement with the other party
except as it, in its sole judgment, may deem advisable. It is understood and accepted by and
between the parties that any binding understanding and/or agreement regarding the potential
business relationship between them will be subject to the evaluation of legal compliance issues
and, as the case may be, to approvals of competent authorities internally and/or externally. It is
understood that no patent, copyright, trademark or other proprietary right or license is granted by
this LOI.



Neither of the parties shall assign, or transfer, either in whole or in part, this LOI or any of
its rights, duties or obligations hereunder to any person or entity, without prior express approval
of the other party.





 









 







In the event that any one or more of the provision(s) contained in the LOI be held invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired thereby. In such case, the
parties shall negotiate in good faith such amendments to this LOI as may be reasonably required to
overcome such invalid provision(s).



This LOI constitutes the complete and entire understanding and agreement among the parties with
respect to its subject matter and cancels and supersedes any previous understanding or agreement
among them regarding said matter.



Nothing in this LOI shall be deemed to create a partnership or agency between the parties hereto
nor to entitle either of the parties to act on behalf of the other party.



Neither party shall incur any liability by reason of having not realized the cooperation
contemplated by this LOI.



This LOI shall be effective as of the date first written above, and shall continue in effect until
either party gives written notice to the other party of its decision to terminate this LOI which
written notice shall not occur before October 30, 2009. Upon such termination, each party’s
obligations under this LOI shall cease; provided however, that each party’s confidentiality
obligations shall survive termination according to the terms of any relevant confidentiality
agreements.



Please review, sign and date the Letter of Intent to confirm our mutual understandings and return a
signed copy to Patricia A. Earl at p.earl@xstreamsystems.net.




	 	 	 	 	 	 	 
	AGREED TO AND ACCEPTED:	 	 	 	 
	 
	 	 	 	 	 	 
	XSTREAM SYSTEMS, INC.	 	EASTMAN KODAK COMPANY
	 
	 	 	 	 	 	 
	By:

	 	/s/ Patricia A. Earl
	 	By:
	 	/s/ Robert Taylor
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Title:

	 	 V.P. Business Development
	 	Title:
	 	G. M. KODAK SECURITY SOLUTIONS
	 
	 	 	 	 	 	 
	Date:

	 	August 31, 2009
	 	Date:
	 	28 Sept. ’09