exv10w18






Exhibit
10.18




XT250 Pilot Program Agreement




Between




AmerisourceBergen and XStream Systems Inc.



This agreement is made by and between AmerisourceBergen Drug Corporation  of
Chesterbrook, Pennsylvania, a Delaware  Corporation (hereinafter referred to as
“ABC”) and XStream Systems of Sebastian, a Florida Corporation (hereinafter referred to as
“Company”), to allow the Company to place their technology at an ABC pilot test site(s) to
demonstrate the effectiveness of their XT250 Material Identification System, and continue product
research for 90 days with the possibility of a 90 day extension starting July 18 , 2009
under the following terms and conditions:





	1.	 	ABC will provide the Company adequate personnel, as determined by ABC in its sole
discretion, to successfully complete the agreed upon goals and objectives of the independent
Pilot.
	 
	2.	 	ABC will provide the Company reasonable, adequate and appropriate space at ABC
locations, as determined by ABC in its sole discretion, for the setup of their pilot
instrument including one heavy duty table. For purposes of this Agreement, the two initial
pilot test sites will be established at: i) 172 Cahaba Valley Parkway, Pelham, AL, and ii)
2100 Directors Row, Orlando, FL.
	 
	3.	 	The Company will provide one XT250 Material Identification System (hereinafter referred to as
the Unit”), one barcode scanner, one printer, and one UPS system at no cost to ABC.
	 
	4.	 	ABC will allow the Company communication access to the Unit remotely through the
internet connection exclusively for the purposes set forth herein. Company covenants and
agrees that (A) neither Company nor any of its personnel will gain or attempt to gain access
to ABC information services functions or modalities other than to the extent necessary
hereunder and (B) Company will not allow any of its personnel to gain access to the ABC
network who does not reasonably require such access to the ABC network for purposes hereunder.
Company is responsible for protecting the authentication method of all of its personnel to
the ABC environment and network and preventing any misuse of the ID and access method provided
by ABC to Company. Company hereby agrees to terminate the access to ABC’s network promptly
upon the termination of this Agreement.
	 
	5.	 	ABC will provide employees of the Company reasonable supervised access into the
facility during normal work hours (M-F 8am — 6 pm) for the installation process and as
required for maintenance and service with prior reasonable notice.
	 
	6.	 	Company shall require its employees and subcontractors to comply with all rules established
by ABC regarding the conduct of its own employees, including approved material handling




 









 












	 	 	procedures, and any other environmental, health and safety and security rules, while on ABC’s
premises.
	 
	7.	 	ABC  will allow the unit to be run 24/7 during the install time period.
	 
	8.	 	After 180 days, or if this contract is terminated earlier, ABC will have the option
to assume full ownership of the Unit and peripherals for a discounted price. This sale will
include a one year warranty covering all labor and parts. Upon transference of ownership,
this contract will terminate.
	 
	9.	 	This contract may be terminated immediately by either party for any reason. Termination
notice shall be in writing. Upon termination the Company shall remove the Unit and peripherals
within 10 days.
	 
	10.	 	During the term of this contract, the Company will assume all responsibilities and costs for
maintenance, repair, and servicing of the Unit.
	 
	11.	 	ABC employees will be provided with an awareness training session to cover all
aspects of the technology and unit operation at no cost.
	 
	12.	 	The Company will be responsible for all State filings, licenses, permits and paperwork
necessary to install the Unit at ABC‘s facility.
	 
	13.	 	The Unit will be owned by the Company, and ABC will not be liable for any misfortunes
toward the instrument or the Company’s employees at ABC‘s facilities. For the
duration of this Agreement, Company will maintain insurance coverage at the levels set forth
in Exhibit A attached hereto and made a part hereof. ABC shall not be liable for any damage
or loss to the Unit, regardless of cause, including but not limited to damages arising from
ABC’s negligence, theft, or catastrophic loss.
	 
	14.	 	Company shall indemnify, defend and hold ABC and its affiliates, directors, employees, agents
and representatives harmless from any and all claims, damages, liabilities, costs and expenses
arising out of relating to: 1) Company’s acts or omissions in the installation, maintenance or
handling of the Unit, or in the performance of this Agreement, 2) any defects in the Unit,
3) the infringement of any equipment, machine, content, or materials provided by Company to
ABC upon any patent, copyright, trademark or other intellectual property right of a third
party, 4) Company’s use or possession of MRSE substances provided hereunder, or 5) the
degradation or alteration of pharmaceuticals exposed to the Unit. Such obligations will
pertain to all legal fees and other costs incurred by ABC in defending any claims. Company
further agrees to immediately notify ABC of adverse results as it continues ongoing
degradation analysis conducted on various pharmaceuticals.
	 
	15.	 	ABC WILL NOT BE LIABLE TO COMPANY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF
PROFIT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN
REASONABLY FORESEEN.




 









 












	16.	 	There is no obligation or commitment on the part of ABC to endorse the Unit or the
Company.
	 
	17.	 	At its own expense, the Company will conduct research on substances of importance to
ABC, and develop material recognition software engine (“MRSE”) signatures on
substances to be delivered with the unit and additional MRSE signatures on substances of
ABCs’ choosing delivered to ABC within 60 days of the units’ installation.
All data, documents, information, and other materials provided by or on behalf of ABC to
Company, or acquired or learned by Company from ABC’s files or documents or employees,
representatives, agents or customers (collectively, “ABC Data”) which is received, computed,
developed, used, collected or stored pursuant to this Agreement shall be the exclusive
property of ABC.
	 
	18.	 	ABC will provide, at its discretion, access to the initial MRSE substances as soon as
possible to the Company so that these substances may be included in the Pilot. Company shall
be solely responsible for all substances in its possession and all unused substances shall be
returned to ABC.
	 
	19.	 	Both parties acknowledge that the Company is entering into this agreement due to the special,
unique and extraordinary know how and skills of ABC. Accordingly, this agreement may
not be transferred, sold or assigned to any other individual, corporation, partnership or
joint venture without the Company’s prior approval. Notwithstanding the foregoing, the
Company shall be notified in writing of ABC’s intention to liquidate its business,
sell its assets, or sell or transfer more than 50% of the capital stock of the business, no
less than twenty (20) business days prior to the occurrence of same. In no event will the
Company be bound to continue this agreement under the same terms and conditions to your
transferee, successor or majority stockholder is no longer personally and actively involved in
providing services to ABC.
	 
	20.	 	The terms of the Mutual Non-Disclosure Agreement executed by the parties on or about June
9th, 2009 are incorporated by reference and shall govern the disclosure and receipt of all
information obtained from the other party hereunder with respect to all trade secrets,
proprietary matters, business procedures, customer lists, needs of customers, manufacturing
processes and all matters which are competitive and confidential in nature.
	 
	21.	 	Company will not use ABC’s name or marks, nor will it refer to or identify ABC in any
advertising, publicity or promotional materials, without ABC’s prior written consent as to the
content and manner of distribution, which may be withheld by ABC in its sole and absolute
discretion.
	 
	22.	 	No provision of this Agreement will be deemed waived and no breach excused unless such waiver
or consent is in writing and signed by the party claimed to have waived or consented.
	 
	23.	 	This agreement is being made by each of the parties after each party has had an opportunity
to fully review, analyze, and obtain legal counsel with respect to this agreement and all of
its terms.
	 
	24.	 	Nothing in this agreement shall be constructed to constitute ABC  as a partner,
broker affiliate or employee of the Company.




 









 












	25.	 	This agreement forms the entire understanding between the parties. It cancels and supersedes
all prior agreements and understandings.
	 
	26.	 	There shall be no change, amendment or modification of any of the terms of this agreement
unless it is reduced in writing and signed by both parties.
	 
	27.	 	This agreement shall be governed by the laws of the State of Delaware.





	 	 	 	 	 	 	 
	July 17, 2009

	 	 
	 	July 23, 2009
	 	 
	 

	 	 	 	 	 	 
	Date

	 	 	 	Date	 	 
	 
	 	 	 	 	 	 
	/s/ Brian Mayo

	 	 	 	/s/ Shay Reid	 	 
	 

	 	 	 	 	 	 
	Brian Mayo

President and CEO

XStream Systems Inc.

	 	 	 	Shay Reid

VP, Operations

AmerisourceBergen Drug Corporation