exv10w15






Exhibit 10.15




XStream Systems, Inc.




CONSULTING AGREEMENT




     This CONSULTING AGREEMENT (this “Agreement) is made, entered into and effective as of the 3rd
day of November, 2005 by and between XStream Systems, Inc., a Delaware corporation (“XStream”), and
William E. Mayo (“Consultant”).



RECITAL:




     The Board of Directors of XStream (the “Board”) believes it is in XStream’s best interest to
engage the services of Consultant as Chairman of XStream’s Scientific Advisory Board, and
Consultant accepts such engagement, pursuant to the terms and conditions of this Agreement.



     Consultant is a full time employee of Rutgers, The State University of New Jersey (“Rutgers”)
and is bound by the policies of Rutgers. NOW, THEREFORE, in consideration of the foregoing recital
and the covenants, agreements, representations, warranties, terms and conditions set forth in this
Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, XStream and Consultant, intending to be legally bound, hereby agree as follows:



     1. Services. XStream hereby hires Consultant for services as Chairman of the

 Scientific Advisory Board of XStream, and Consultant hereby accepts, all upon the terms and
conditions contained in this Agreement.



          A. Consultant’s Representation. Consultant represents, warrants and
covenants to XStream that Consultant is not bound, nor will Consultant become bound, by any
covenant, contract, agreement or other obligation that may or does prevent Consultant in any manner
from (i) performing Consultant’s duties as Chairman of XStream’s Scientific Advisory Board, and/or
(ii) fulfilling Consultant’s obligations pursuant to this Agreement.




     2. Service Period. Unless sooner terminated pursuant to the terms and conditions of
this Agreement, the term of this Agreement shall commence on the date first above written, and
expire twenty-four (24) months from such date.



     3. Compensation.



          A. Base Fee. Consultant shall be entitled to receive a fee during the term of
this Agreement of:





	 	•	 	At a rate of $48.00 (Forty Eight Dollars)
per hour for a maximum of $100,000 (One Hundred Thousand Dollars) per
year payable in accordance with the normal consultant policies of
XStream.
	 
	 	•	 	The Base Fee shall not be subject to any appropriate withholding taxes.
	 
	 	•	 	The Consultant will be responsible for appropriate handling of all Taxes.





               (i) Increases to Base Fee. The Board shall review the Base Fee on



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not less than an annual basis. The Board, in its sole and absolute discretion, may elect to
increase the Base Fee at any time, but shall not ever decrease the Base Fee below its
then-current amount. Any increase in the Base Fee shall constitute an amendment to this
Agreement solely as to the amount of the Base Fee, without waiver or modification of any other
terms or conditions of this Agreement.




          B. Stock Options. Subject to XStream’s Stock Option Plan and attendant
forms of Stock Option Agreements, Consultant shall be granted:





	 	•	 	Twenty-Five Thousand (25,000) non-qualified stock options (“Stock Options”) at a strike
price of Ten (.10) Cents for the purchase of shares of common stock in XStream.
	 
	 	•	 	Five Thousand (5,000) of these shares will be immediately vested upon the signing of
this contract.
	 
	 	•	 	The remaining Twenty Thousand (20,000) shares will vest over four years, starting from
December 27, 2004.
	 
	 	•	 	One quarter of these remaining shares (5,000 shares) will be vested as of
December 27, 2005.
	 
	 	•	 	Thereafter, Four Hundred Sixteen and two thirds (416 2/3) shares will vest each month.





     4. Business Expenses and Reimbursements. Consultant shall be entitled to
reimbursement by XStream for ordinary and necessary business expenses incurred by
Consultant in the performance of Consultant’s duties (collectively, “Business Expenses”),
which
such Business Expenses shall be approved by XStream in its sole and absolute discretion,
and
further provided that:



          A. Each such Business Expense is of a nature qualifying it as a deductible
expense on the Federal Income Tax Return for XStream as a business expense, and not as
deductible compensation to Consultant; and




          B. Consultant furnishes XStream with adequate records and other
documentary evidence required by applicable statues, regulations and XStream’s policies
for
the substantiation of such Business Expenses as a deductible business expense of XStream,
and not as deductible compensation to Consultant.




     5. “Key Person” Insurance. XStream shall have the right to obtain on the life of


Consultant, pay all premium amounts related to, and maintain, “key person” insurance
naming
XStream as beneficiary. Selection of such insurance policy shall be in the sole and
absolute
discretion of the Board. Consultant shall cooperate fully with XStream, the Board, and
the
insurer in applying for, obtaining and maintaining such life insurance, by executing and
delivering such further and other documents as XStream, the Board and/or the insurer may
request from time to time, and doing all matters and things which may be convenient or
necessary to obtaining such insurance, including, without limitation, submitting to any
physical
examinations and providing any medical information required by the insurer.



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     6. Duties. Consultant shall utilize Consultant’s best efforts to do all of the
following:



          A. Performance Requirements. Consultant shall perform all duties in
connection with Consultant’s position as Chairman of the Scientific Advisory Board of
XStream,
or as otherwise designated by the Board, including, without limitation, participation in
the
general overall management of XStream, and other such duties that as from time to time
may
be delegated or assigned to Consultant by the Board;




          B. Direction and Control of the Board. Consultant shall at all times report
to, and Consultant’s activities shall at all times be subject to the direction and
control of, the
Board;




          C. Adherence to Policies and Rules. Consultant shall abide by all by-laws, policies, rules and regulations as
may be established from time to time by XStream,
the
shareholders of XStream and/or the Board; and




          D. Devotion of Professional Efforts. Consultant shall devote a maximum
of Twenty (20%) Percent of Consultant’s business and professional time, efforts, energy
and
skills to the performance of Consultant’s duties pursuant to this Agreement.




               (i) Exceptions. Notwithstanding Section 6(D), Consultant may: (a)
invest Consultant’s personal assets in businesses in which Consultant’s participation is
solely that of a passive investor, provided, however the form or manner of such investment
shall not require services on the part of Consultant that conflict with Consultant’s duties
pursuant to this Agreement; and (b) Consultant shall be permitted to serve other public or
private organizations, including without limitation, on the board of directors of such
organizations, so long as such service does not compromise Consultant’s devotion of time and
efforts to XStream, and does not present a conflict of interest with regard to XStream.



     7. Termination of Consultant’s Services with XStream.



          A. Termination by Consultant Without “Good Reason”. Consultant,
upon at least sixty (60) days prior written notice to XStream, shall have the right to
terminate
Consultant’s services with XStream at any time, for any reason or for no reason. Upon
such
termination by Consultant, XStream shall pay Consultant all Base Fee, Stock Options and
Business Expenses, which are due and accrued through the effective date of termination.
All
such amounts shall be payable to Consultant within ten (10) days of the effective date of
termination of Consultant’s services with XStream.




          B. Termination by Consultant for “Good Reason”. Consultant, effective
immediately upon written notice to XStream, shall have the right to terminate
Consultant’s
services with XStream at any time, for any one of the following reasons (collectively
“Good
Reason”):




               (i) XStream’s violation or breach of any material provision of this Agreement,
including, without limitation, Consultant being required to report to, or otherwise being
subject to the direction and control of any other officer(s) and/or authority(ies) other than
the Board;



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               (ii) Material changes to Consultant’s title, working conditions or duties such that
Consultant’s power, duties or working conditions are diminished, reduced or otherwise changed to
include powers, duties or working conditions which are inconsistent with Consultant’s title and
duties as set forth in this Agreement;



               (iii) Relocation of Consultant’s services location outside of the State of New Jersey;



               (iv) XStream’s failure to obtain in writing assumption of its right and obligations
pursuant to this Agreement within fifteen (15) days of a Change in Control (as defined in Section
7(G) below); and/or



               (vi) The deterioration of Consultant’s relationship with the Board and/or XStream’s
officers, as determined by Consultant in Consultant’s sole discretion, so as to make the
performance of Consultant’s duties as set forth in this Agreement impossible or impracticable.


Following written notification by Consultant setting forth the specific nature of such Good Reason
and XStream’s failure to cure to the satisfaction of Consultant within fifteen (15) days (or longer
in the event that such request cannot be reasonably responded to within a shorter period of time
and further provided that XStream has exercised good faith and due diligence in curing) of such
notification.



Upon such termination by Consultant for Good Reason, XStream shall pay Consultant all Base Fee,
Stock Options and Business Expenses, which are due, have accrued, or will otherwise become due or
accrue through the end of the term of this Agreement (as if Consultant’s services with XStream was
not prematurely terminated). All such amounts shall be payable to Consultant within ten (10) days
of the effective date of termination of Consultant’s services with XStream.




     C. Termination Upon Consultant’s Death. In the event of the death of
Consultant during the term of this Agreement, Consultant’s services with XStream shall
terminate effective as of the date of Consultant’s death. XStream will pay Consultant’s estate
all
Base Fee, Stock Options, and Business Expenses, which are due and accrued through the date
of Consultant’s death. All such amounts shall be payable to Consultant’s estate within ten
(10)
days of Consultant’s death.



     D. Termination by XStream Without “Cause”. XStream, upon at least
sixty (60) days’ prior written notice to Consultant, shall have the right to terminate
Consultant’s
services with XStream at any time, for any reason or for no reason. Upon such termination by
XStream, XStream shall pay Consultant all Base Fee, Stock Options, and Business Expenses,
which are due, have accrued, or will otherwise become due or accrue through the end of the
term of this Agreement (as if Consultant’s services with XStream was not prematurely
terminated). All such amounts shall be payable to Consultant within ten (10) days of the
effective date of termination of Consultant’s services with XStream.



     E. Termination by XStream for Cause. XStream, effective immediately
upon written notice to Consultant, shall have the right to terminate Consultant’s services
with
XStream at any time, for Cause (as defined below). Upon such termination by XStream,

XStream shall pay Consultant all Base Fee, Stock Options, and Business Expenses, which are



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due and accrued through the effective date of termination of Consultant’s services with
XStream. All such amounts shall be payable to Consultant within ten (10) days of the effective
date of termination of Consultant’s services with XStream.




               (i) Cause. For purposes of this Agreement, “Cause” shall mean
Consultant’s
(a) conviction of a felony or of any crime involving moral turpitude, and/or (b) being found
guilty or otherwise pleading guilty to willful gross neglect or willful gross misconduct in
performing Consultant’s duties pursuant to this Agreement.



          F. Termination Upon Change of Control. In the event of Consultant’s
termination of services with XStream upon, due to, or as a direct or indirect result of a
Change
of Control (as defined below), provided that Consultant complies with Sections 7(H), 8, 9
and
11, Consultant shall receive the following:




               (i) Severance. Consultant shall receive all Base Fee, Stock Options and
Business Expenses, which are due, have accrued, or will otherwise become due or accrue through
the end of the term of this Agreement (as if Consultant’s services with XStream was not
prematurely terminated). All such amounts shall be payable to Consultant within ten (10) days
of the effective date of termination of Consultant’s services with XStream; and



               (ii) Acceleration of Stock Options. Immediately prior to the effective
date of the Change of Control, one hundred (100%) percent of all outstanding Stock Options
granted by XStream to Consultant together with any options issued in a tender offer in
exchange for such outstanding Stock Options shall fully vest and shall be exercisable by
Consultant for a period of one (1) year following the effective date of the termination of
Consultant’s services with XStream.



          G. Definition of “Change of Control”. For purposes of this Agreement,
“Change of Control” means when:




               (i) Any “person” (as defined by the Securities Exchange Act of 1934),
other than a trustee or other fiduciary holding securities of XStream under an employee
benefit plan of XStream, becomes the “beneficial owner” (as defined by Rule 13(d)(3)
promulgated under the Securities Exchange Act of 1934), directly or indirectly, of securities
of XStream representing fifty (50%) percent or more of (a) the outstanding shares of common
stock of XStream or (b) the combined voting power of XStream’s then-outstanding securities.



               (ii) XStream is a party to a merger or consolidation, or series of related
transactions, which results in the then outstanding voting securities immediately prior
thereto to fail to continue to represent at least fifty (50%) percent of the combined voting
power of XStream’s voting securities or such surviving or other entity outstanding immediately
after such merger or consolidation;



               (iii) There is a sale or disposition of all or substantially all of XStream’s
assets, or consummation of any transaction or series of transactions having a similar effect,
unless at least fifty (50%) percent of the combined voting power of the voting securities of
the acquiring entity is held by persons who held the option securities of XStream immediately
prior to such transaction or series of transactions;



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               (iv) There is a dissolution or liquidation of XStream, unless after such liquidation or
dissolution all or substantially all of the assets of XStream are held in an entity at least fifty
(50%) percent of the combined voting power of the voting securities of which is held by persons who
held the voting securities of XStream immediately prior to such liquidation or dissolution; and/or



               (v) Any transaction or series of related transactions that has the substantial
effect of any one or more of the foregoing occurrences.



          H. Release. XStream may condition the payments required pursuant to Section 7(F)
upon delivery by Consultant of a signed mutual release of known and unknown claims related to
Consultant’s services with XStream.




     8. Nonsolicitation and Noncompetition.



          A. Nonsolicitation. Consultant shall not, at any time during the term of this
Agreement, and for twelve (12) months after the effective date of the expiration or
termination of
the term of this Agreement, directly or indirectly, contact or proposition, or otherwise
attempt to
induce, nor accept the initiative of a third party in such regard, alone or by combining or
conspiring with a third party, any employees, agents, consultants, representatives,
contractors,
vendors, suppliers, distributors, manufacturers, clients, customers or other business contacts
of
XStream to terminate or modify their relationship with, or compete against, XStream.




          B. Noncompetition. Consultant shall not, at any time during the term of this
Agreement, and for twelve (12) months after the effective date of the expiration or
termination of
the term of this Agreement, directly or indirectly, personally or as an owner, officer,
director,
partner, employee, member, agent, consultant, representative, independent contractor, or in
any
other capacity whatsoever of any corporation or other commercial entity, own, manage, operate,
control or conduct any business or enterprise, or any other business in direct or indirect
competition with XStream or its affiliates and subsidiaries (“Competitive Business”). Any
Competitive Business conducted through Internet, wireless or other similar telecommunication
media that is viewable or usable anywhere within the world is prohibited pursuant to this
Agreement.




     9. Confidentiality.



          A. The Confidential Information. During the term of this Agreement,
Consultant may have access to, be trusted or become acquainted with, and/or may acquire,
knowledge and/or possession or control of various confidential, trade secret and/or
proprietary
information of XStream and/or its clients and customers, including, without limitation, trade
secrets, know-how, inventions (whether or not patentable), computer programs, techniques,
processes, ideas, schematics, testing procedures, internal documentation, design and function
specifications, product requirements, problem reports, analysis and performance information,
client and customer lists, lead sheets and other technical, business, product, marketing and
financial information, plans and data (collectively, the “Confidential Information”).




          B. Exclusions from the Confidential Information. The Confidential
Information shall not include information that: (i) becomes public without breach of this
Agreement by Consultant; (ii) was received by Consultant from a third party not under any
obligation of confidentiality to XStream; or (iii) is required to be disclosed by Consultant
by law




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or a final order of a court or other governmental agency or authority of competent jurisdiction;
provided, however, reasonable notice prior to any such disclosure shall be given to XStream to
allow sufficient time to obtain injunctive relief, protective order or similar remedy.




          C. Non-disclosure of the Confidential Information. At all times from the
date of this Agreement, Consultant shall: (i) not use or disclose (except as expressly
authorized
by this Agreement) the Confidential Information without the prior written consent of XStream;
(ii)
take all reasonable measures to maintain the Confidential Information in confidence; (iii)
disclose the Confidential Information only to those who (a) have a confidentiality obligation
in
writing with XStream and (b) are necessary for Consultant to perform Consultant’s duties
pursuant to this Agreement; and (iv) promptly report to XStream any violation of the
foregoing.




          D. Consultant’s Acknowledgements. Consultant acknowledges and
agrees that the Confidential Information, and all copies and manifestations of the same, are,
and shall remain at all times, the exclusive property of XStream and/or its clients and
customers. Consultant acknowledges and agrees that the Confidential Information is a special
and unique asset of XStream and/or its clients and customers, created and/or obtained by
XStream and/or its clients or customers at considerable time and/or expense, from which
XStream and/or its clients and customers may or does derive independent economic value from
the Confidential Information not being generally known to the public or third parties.




          E. Return of XStream Property. Consultant shall return, immediately upon
XStream’s request, or the effective date of the termination of Consultant’s services with
XStream: (i) all copies and manifestations of the Confidential Information that Consultant may
have or has access to; (ii) all documents, other materials and equipment provided by XStream
and/or its clients and customers; and (iii) all documents and materials that Consultant
prepared
during Consultant’s services with XStream (collectively, the “XStream Property”). Consultant
acknowledges and agrees that the XStream Property is, and shall remain at all times, the
exclusive property of XStream.




     10. Works-Made-for-Hire.



          A. Results Deemed Works-Made-for-Hire. Excluding any RU Work, the
results of Consultant’s services pursuant to this Agreement, including, without limitation,
any
works of authorship resulting from the performance of Consultant’s duties during Consultant’s
services with XStream and any works in progress (collectively, “Results”), shall be deemed
works-made-for-hire for the benefit of XStream. XStream shall be deemed the sole owner
throughout the universe of any and all such Results, whether or not now or hereafter known,
existing, contemplated, recognized or developed, with the right to use the same in perpetuity
in
any manner XStream, in its sole and absolute discretion, determines, without any further
payment to Consultant whatsoever.



Consultant is an employee of Rutgers and his first obligation is to Rutgers. As such, 1) any
conflict of schedule will provide Rutgers priority and 2) any work made at Rutgers, funded by
Rutgers, proprietary information that should be or is disclosed to Rutgers as per Rutgers policies,
or work that is sponsored by a third party to Rutgers (“RU Work”) will be outside the scope of this
Agreement and title to such work shall remain with Rutgers.




          B. Assignment and Waiver. Excluding any RU Work, if, for any reason,
any of such Results shall not be legally deemed a work-made-for-hire, and/or there are any




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rights which do not accrue to XStream pursuant to this Section, then Consultant hereby irrevocably
assigns and agrees to assign to XStream any and all of Consultant’s right, title and interest
thereto, including, without limitation, any and all copyrights, patents, trade secrets, trademarks
and/or other rights of whatsoever nature therein, whether or not now or hereafter known, existing,
contemplated, recognized or developed, and XStream shall have the right to use the same in
perpetuity throughout the universe in any manner it determines, in its sole discretion, without any
further payment to Consultant whatsoever. To the extent Consultant has any rights in the Results
that cannot be assigned in the manner described above, Consultant hereby unconditionally and
irrevocably waives the enforcement of such rights. This Section is subject to, and shall not be
deemed to limit, restrict or constitute any waiver by XStream of, any rights of ownership to which
XStream may be entitled by operation of law.




          C. Further Assurances. Consultant shall, from time to time, as may be requested
by XStream, do any and all things which XStream may deem useful, necessary or desirable to
establish or document XStream’s exclusive ownership of any and all rights in any Results,
including, without limitation, the execution of appropriate invention, copyright, trademark, and/or
patent applications or assignments.




     11. Non-Disparagement. Consultant shall not, in any communications in any media,
criticize, ridicule or make any statement which disparages or is derogatory of XStream, XStream’s
products or services, or any of XStream’s present, former or future shareholders, officers,
directors, employees, affiliates and/or subsidiaries.



     12. Equitable Relief. XStream has entered into this Agreement in order to obtain the
benefit of Consultant’s unique skills, talent, and experience. The parties enter into this
Agreement with the understanding that the provisions of Sections 1(A), 8, 9, 10 and 11 are
material terms of this Agreement, and that the Base Fee to be paid to Consultant pursuant to this
Agreement has been based in part on the value to XStream of those Sections. Consultant acknowledges
and agrees that any breach or threatened breach of Section 1(A), 8, 9, 10 and 11 will result in
irreparable damage to XStream and, accordingly, XStream may obtain injunctive relief, a decree of
specific performance and/or any other equitable relief for any breach or threatened breach of
Sections 1(A), 8, 9, 10 and 11, in addition to any other remedies available to XStream, without
being required to show any actual damage, or to post an injunction bond.



     13. Reasonableness of Restrictions. The parties agree that the restrictions and
remedies contained in Section 8, 9, 10, 11 and 12 are reasonable, recognizing the competitive
nature of the business of XStream, the nationwide and worldwide scope of similar businesses, the
specialized expertise and knowledge Consultant possesses, the unique and extraordinary nature of
Consultant’s services, and the importance to XStream of the Confidential Information to which
Consultant may be exposed during Consultant’s services with XStream. In addition, Consultant hereby
acknowledges and agrees that the faithful observance by Consultant of the covenants contained in
this Agreement will not cause Consultant any undo hardship, financial or otherwise, and that the
enforcement of each of the covenants contained in Sections 1(A), 8, 9,
10 and 11 will not impair Consultant’s ability to obtain services. Therefore, it is Consultant’s
intention and the intention of XStream that the restrictions and remedies contained in Sections 1(A), 8, 9, 10, 11 and 12 shall be enforceable to the fullest extent permissible by law. If it shall
be found by a court of competent jurisdiction that any such restriction or remedy is unenforceable
but would be enforceable if some part thereof were deleted or the period or geographical area of
application reduced, then such restriction or remedy shall apply with such modification as shall be
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Consultant is prohibited from engaging in certain activities pursuant to this Agreement shall
be extended by the length of time during which Consultant is in breach of the terms of any
provision of this Agreement.




     14. Indemnification.



          A. Indemnification of Consultant. XStream agrees that if Consultant is
made a party, or is threatened to be made a party, to any action, suit or proceeding,
whether
civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact
that
Consultant is or was a director, officer or employee of XStream or is or was serving at
the
request of XStream as a director, officer, member, employee or agent of another
corporation,
partnership, joint venture, trust or other enterprise, including service with respect to
employee
benefit plans, whether or not the basis of such Proceeding is Consultant’s alleged action
in an
official capacity while serving as a director, officer, member, employee or agent,
Consultant
shall be indemnified and held harmless by XStream to the fullest extent legally permitted
or
authorized by XStream’s Articles of Incorporation, Bylaws or resolutions of the Board or,
if
greater, by the laws of the State of Florida, against all cost, expense, liability and
loss (including,
without limitation, attorney’s fees, judgments, fines, ERISA excise taxes or other
liabilities or
penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered
by
Consultant in connection therewith, and such indemnification shall continue as to
Consultant
even if Consultant has ceased to be a director, member, employee or agent of XStream or
other
entity and shall inure to the benefit of Consultant’s heirs, executors and
administrators.




          B. Advancement of Costs. XStream shall advance to the Consultant all
reasonable costs and expenses incurred by Consultant in connection with a Proceeding
within
twenty (20) days after receipt by XStream of a written request for such advance. Such
request
shall include an undertaking by Consultant to repay the amount of such advance if it
shall
ultimately be determined that Consultant is not entitled to be indemnified against such
costs and
expenses; provided that the amount of such obligation to repay shall be limited to the
after-tax
amount of any such advance except to the extent Consultant is able to offset such taxes
incurred on the advance by the tax benefit, if any, attributable to a deduction for the
repayment.




          C. No Presumption of Standard of Conduct. Neither the failure of
XStream (including the Board, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any Proceeding concerning payment of amounts
claimed by Consultant under Section 14(B) above that indemnification of Consultant is
proper
because he has met the applicable standard of conduct, nor a determination by XStream
(including the Board, independent legal counsel or stockholders) that Consultant has not
met
such applicable standard of conduct, shall create a presumption in any judicial
proceeding that
Consultant has not met the applicable standard of conduct.




          D. Liability Insurance. XStream shall maintain a liability insurance policy
covering Consultant in an amount of no less than $5 million.




     15. Survival. Consultant’s obligations under Sections 1(A), 8, 9, 10, 11, 14 and
16 shall remain in full force and effect for the entire period provided in such Sections,
notwithstanding the expiration or termination of Consultant’s services with XStream.



     16. Miscellaneous.



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          A. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by both XStream and
Consultant and making specific reference to this Agreement.




          B. Assignability; Binding Nature. This Agreement shall be binding upon
and inure to the benefit of XStream and Consultant and their respective successors, heirs
(in
the case of Consultant) and assigns. Rights or obligations of XStream pursuant to this
Agreement may be assigned or transferred by XStream pursuant to a merger or consolidation
in which XStream is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of XStream, provided that the assignee or transferee is the
successor to all or substantially all of the assets of XStream and such assignee or transferee
assumes the liabilities, obligations and duties of XStream, as contained in this Agreement,
either contractually or as a matter of law. XStream further agrees that, in the event of a
sale of assets or liquidation as described in the preceding sentence, it shall take whatever
action it reasonably can in order to cause such assignee or transferee to expressly assume the
liabilities, obligations and duties of XStream hereunder. No rights or obligations of
Consultant under this Agreement may be assigned or transferred by Consultant other than his
rights to compensation and benefits, which may be transferred only by will or operation of
law.




          C. Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and be
enforceable
by the parties and their respective administrators, executors, legal representatives,
heirs,
successors and permitted assigns.




          D. Severability. If any part of this Agreement or any other Agreement
entered into pursuant to this Agreement is contrary to, prohibited by, or deemed invalid
under,
applicable law or regulation, such provision shall be inapplicable and deemed omitted to
the
extent so contrary, prohibited or invalid, but the remainder of this Agreement shall not
be
invalidated thereby and shall be given full force and effect so far as possible.




          E. Waivers. The failure or delay of any party at any time to require
performance by the other party of any provision of this Agreement shall not affect the
right of
such party to require performance of that provision or to exercise any right, power or
remedy
hereunder, and any waiver by any party of any breach of any provision of this Agreement
shall
not be construed as a waiver of any continuing or succeeding breach of such provision, a
waiver
of the provision itself or a waiver of any right, power or remedy under this Agreement.
No notice
to or demand on any party in any case shall, of itself, entitle such party to any other
or further
notice or demand in similar or other circumstances.




          F. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including electronic
transmission)
and shall be (as elected by the party giving such notice) hand delivered by messenger or
courier
service, electronically transmitted, or mailed (airmail if international) by registered
or certified
mail (postage prepaid), return receipt requested, addressed to:




If to Consultant:




William E. Mayo 
35
Hutchinson Road

Allentown, NJ 08501




Consultant’s Agreement 11/3/2005


Company Confidential





10









 








XStream Systems, Inc.




	 	 	 
	Telefax: (609) 758-5708
	 	 
	 
	 	 
	If to XStream:

	 	With a Copy to:
	 
	 	 
	XStream Systems Inc.

	 	Gunster, Yoakley & Stewart P.A.
	2046 Treasure Coast Plaza #324

	 	777 South Flagler Drive, Suite 500 East
	Vero Beach, FL 32960

	 	West Palm Beach, FL 33401
	Telefax: (772) 231-8738

	 	Telefax: (561) 655-5677
	Attention: CEO

	 	Attention: David G. Bates, Esquire





or to such other address as any party may designate by notice complying with the terms of this
Section. Each such communication shall be deemed delivered (i) on the date delivered if hand
delivered; (ii) on the date of transmission with confirmed answer back if by electronic
transmission; and (iii) on the date upon which the return receipt is signed or delivery is refused
or the notice is designated by the postal authorities as not deliverable, as the case may be, if
mailed.




          G. Governing Law. This Agreement and all transactions contemplated by this
Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of
the State of Florida, without regard to principles of conflicts of law.




          H. Jurisdiction and Venue. The parties acknowledge that a substantial portion
of the negotiations, anticipated performance and execution of this Agreement occurred or shall
occur in Indian River County, Florida. Any civil action or legal proceeding arising out of or
relating pursuant to this Agreement shall be brought in the courts of record of the State of
Florida in Indian River County or the United States District Court, Southern District of Florida.
Each party consents to the jurisdiction of such court in any such civil action or legal proceeding
and waives any objection to the laying of venue of any such civil action or legal proceeding in
such court. Service of any court paper may be effected on such party by mail or in such other
manner as may be provided under applicable laws, rules of procedure or local rules.




          I. Enforcement Costs. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provisions of this Agreement, the successful or prevailing
party or parties shall be entitled to recover reasonable attorney’s fees, court costs and all
reasonable expenses even if not taxable as court costs (including, without limitation, all such
fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition
to any other relief to which such party or parties may be entitled.




          J. Headings for Reference Only. The headings contained in this
Agreement are for convenience of reference only and shall not limit or otherwise affect in any way
the meaning or interpretation of this Agreement.




          K. Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY ITS
OWN COUNSEL, OR HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, WITH RESPECT TO THIS AGREEMENT.




          L. Construction. This Agreement is a negotiated document and shall not be
construed more strongly against any party regardless of who is responsible for its preparation.




Consultant’s Agreement 11/3/2005

Company Confidential





11









 








XStream Systems, Inc.




          M. Agreement May Be Signed in Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Confirmation of execution by electronic
transmission of a facsimile signature page shall be binding on a party so confirming.




          N. Entire Agreement. This Agreement represents the entire understanding and agreement
between the parties with respect to its subject matter, and supersedes all other negotiations,
understandings and representations (if any) made by and between the parties.




     XStream and Consultant have each executed this Agreement as of the day and year first above
written.



	 	 	 
	 

	 	XStream:
	 
	 	 
	 

	 	XStream Systems, Inc.
	 
	 	 
	 

	 	/s/ Brian T. Mayo
	 

	 	 
	 

	 	Print Name: Brian T. Mayo
	 

	 	Title: President






	 	 	 	 	 
	 

	 	Date:
	 	11/7/05
	 

	 	 	 	 





	 	 	 
	 

	 	Consultant:
	 
	 	 
	 

	 	/s/ William E. Mayo
	 

	 	 
	 

	 	Print Name: William E. Mayo






	 	 	 	 	 
	 

	 	Date:
	 	11/3/05
	 

	 	 	 	 





Consultant’s Agreement 11/3/2005


Company Confidential





12