exv10w27






Exhibit 10.27




FORM OF ESCROW AGREEMENT




     THIS ESCROW AGREEMENT (as the same may be amended or modified from time to time pursuant
hereto, this “Agreement”) is made and entered into as of                            , 2010, by and among
XStream Systems, Inc., a Delaware corporation (the “Company”), W.R. Hambrecht + Co., LLC, a
Delaware limited liability company (“Underwriter”, and together with the Company, sometimes
referred to individually as “Party” or collectively as the “Parties”), and JPMorgan Chase Bank,
National Association (the “Escrow Agent”). All capitalized terms not herein defined shall have the
meaning ascribed to them in that certain Registration Statement on Form S-1 (File No. 333-163046)
(as amended from time to time, the “Registration Statement”) filed by the Company with the U.S.
Securities and Exchange Commission.



     WHEREAS, pursuant to the terms of the Registration Statement, the Company desires to offer and
sell in its initial public offering (the “Offering”) a minimum  of 3,333,334 shares of common stock,
$0.0001 par value (“Shares”) equal to gross proceeds of $20,000,000 (“Minimum Amount”) and a
maximum of 5,000,000 Shares (“Maximum Amount”);



     WHEREAS,
unless the Minimum Amount is sold following the closing of the
auction, pricing and by the end
of the T+3 period (the third trading day after pricing) (the “Termination Date”), the Offering shall terminate and all funds shall be
returned to the purchasers of the Shares (“Investors”) in the Offering without interest;



     WHEREAS, the Company and Underwriter desire to establish an escrow account with the Escrow
Agent into which the Company and Underwriter shall instruct Investors introduced to the Company by
Underwriter to deposit funds by wire transfer to JPMorgan Chase Bank, N.A., to the escrow account
titled “JPMorgan as Escrow Agent for XStream Systems, Inc.”, Attention : Greg Kupchynsky,
Telephone: 212.623.6812, which account information is set forth on Schedule 3 hereto, and Escrow
Agent is willing to accept said funds subject to the terms and conditions set forth herein.



     NOW THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:



1.     Appointment. The Parties hereby appoint the Escrow Agent as their escrow agent for the
purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the terms and
conditions set forth herein. Contemporaneously herewith, the Parties have established an escrow
account with the Escrow Agent, which escrow account is entitled “XStream Systems, Inc. IPO Escrow
Account” (the “Escrow Account”). The Underwriter will instruct purchasers of the Shares to transfer
funds for deposit to the Escrow Account by wire transfer payable to “JPMorgan Chase Bank as Escrow
Agent for XStream Systems, Inc.”



2.     Fund. In compliance with Rule 10b-9 and Rule 15c2-4 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), all funds received from Investors in payment for the Shares
shall be forwarded to the Escrow Agent, by the Underwriter no later than noon (Eastern time) the
next business day after receipt, to be deposited into the Escrow Account. The Escrow Agent agrees
to hold all monies so deposited in the Escrow Account (the “Escrow Deposit”) for the benefit of the
Parties hereto and the Investors until authorized to disburse such monies under the terms of this Agreement. The
Escrow Agent shall hold the
Escrow Deposit and, subject to the terms and conditions hereof, shall hold the Escrow Deposits in a
non-interest bearing account (the “Fund”) as directed in Section 3.



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3.     No Investment of Fund. During the term of this Agreement, the Fund shall not be
invested in a JPMorgan Money Market Deposit Account nor a successor or similar investment offered
by the Escrow Agent, unless otherwise instructed by the Parties and as shall be acceptable to the
Escrow Agent.



4.     Disposition and Termination. (a) The Fund shall be paid by the Escrow Agent in
accordance with the following:



     (i) In the event that the Company and the Underwriter advise the Escrow Agent in writing that
the Offering has been terminated (the “Termination Notice”), the Escrow Agent shall promptly return
the funds paid by each Investor to said Investor without interest or offset. The Underwriter shall
provide to the Escrow Agent an electronic spreadsheet or list in a form acceptable to the Escrow
Agent containing the amount received from each Investor whose funds have been deposited with the
Escrow Agent (with respect to each Investor the “Investor Investment Amount”) along with the name
and address of each Investor. The aggregate of all Investor Investment Amounts shall be equal to
the amount of the Fund on the offering closing date.



     (ii) Provided that the Escrow Agent does not receive the Termination Notice in accordance with
paragraph 4(a)(i) and there is the Minimum Amount deposited into the Escrow Account on or prior to
the Termination Date, the Escrow Agent shall, upon written notification from the Parties, promptly
inform the Company and the Underwriter of the Minimum Amount that has been deposited in the
account on such date. Then upon receipt of written instructions in a form and substance
satisfactory to the Escrow Agent, received from the Company and Underwriter, pay the Fund in
accordance with such written instructions, such payment or payments to be made by wire transfer as
soon as practicable after receipt of such written instructions. The Parties agree among themselves
that, such instructions will not be provided by the Company and Underwriter unless
all closing conditions pursuant to the Underwriting Agreement by and between the Company and the
Underwriter have been met and, including without limitation, the conditions that the Company have
received confirmation from the NYSE Amex that the Shares will be listed on the NYSE Amex and that
the Minimum Amount has been received by the Escrow Agent.  After receipt of the aforementioned confirmation,
 the Parties will send written release instructions to the Escrow Agent via facsimile, in accordance with
Section 10, herein.  The Company understands and agrees that the Company shall not have rights to or be
entitled to any Investor funds on deposit in the Fund and no such Investor funds shall become the property
of the Company except following the release of the funds to the Company by the Escrow Agent pursuant to
Section 4 of this Agreement.



     (iii) If by (x) 3:00 PM Eastern time on the Termination Date, the total amount of the Fund is
less than the Minimum Amount, or (y) 5:00 PM Eastern Time on the Termination Date, the Escrow Agent
has not received written instructions from the Company and the Underwriter regarding the
disbursement of the Fund, then the Escrow Agent shall be directed to return the Fund to the
Investors pro rata without interest and/or offset, and in accordance with the Investor release
requirements referenced in Section 4.(a), (i) herein.



     (iv) The Escrow Agent shall not be required to pay any uncollected funds or any funds that are
not available for withdrawal.



     (v) If the Termination Date or any date that is a deadline under this Agreement for giving the
Escrow Agent notice or instructions or for the Escrow Agent to take action is not a Banking Day,
then such date shall be the Banking Day immediately subsequent to that date.



(b) Upon delivery of the Fund by the Escrow Agent, this Agreement shall terminate, subject to the
provisions of Section 8(b).



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5.     Escrow Agent. (a) The Escrow Agent shall have only those duties as are specifically
and expressly provided herein, which shall be deemed purely ministerial in nature, and no other
duties shall be implied. The Escrow Agent shall neither be responsible for, nor chargeable with,
knowledge of, nor have any requirements to comply with, the terms and conditions of any other
agreement, instrument or document between the Parties, in connection herewith, if any, including
without limitation the Underwriting Agreement by and between the Company and the Underwriter dated
the date set forth in the Company’s Rule 424 final prospectus filed as a part of the Registration
Statement (the “Underlying Agreement”), nor shall the Escrow Agent be required to determine if any
person or entity has complied with the Underlying Agreement, nor shall any additional obligations
of the Escrow Agent be inferred from the terms of the Underlying Agreement, even though reference
thereto may be made in this Agreement. In the event of any conflict between the terms and
provisions of this Agreement, those of any Underlying Agreement, any schedule or exhibit attached
to the Agreement, or any other agreement among the Parties, the terms and conditions of this
Agreement shall control. The Escrow Agent may rely upon and shall not be liable for acting or
refraining from acting upon any written notice, document, instruction or request furnished to it
hereunder and believed by it to be genuine and to have been signed or presented by the proper Party
or Parties without inquiry and without requiring substantiating evidence of any kind. The Escrow
Agent shall not be liable to any Party, any beneficiary or other person for refraining from acting
upon any instruction setting forth, claiming, containing, objecting to, or related to the transfer
or distribution of the Fund, or any portion thereof, unless such instruction shall have been
delivered to the Escrow Agent in accordance with Section 11 below and the Escrow Agent has been
able to satisfy any applicable security procedures as may be required thereunder. The Escrow Agent
shall be under no duty to inquire into or investigate the validity, accuracy or content of any such
document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any
payments which may be due it or the Fund, including, without limitation, the Escrow Deposit nor
shall the Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness
of any amounts deposited with it hereunder.



(b) The Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by
it in good faith except to the extent that a final adjudication of a court of competent
jurisdiction determines that the Escrow Agent’s gross negligence or willful misconduct was the
primary cause of any loss to either Party. The Escrow Agent may execute any of its powers and
perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may
consult with counsel, accountants and other skilled persons to be selected and retained by it. The
Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in
accordance with, or in reliance upon, the advice or opinion of any such counsel, accountants or
other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is
some ambiguity as to its duties or rights hereunder or shall receive instructions, claims or
demands from any Party hereto which, in its opinion, conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be
to keep safely all property held in escrow until it shall be given a direction in writing by the
Parties which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent or by a
final and non-appealable order or judgment of a court of competent jurisdiction. The Parties agree
to pursue any redress or recourse in connection with any dispute without making the Escrow Agent a
party to the same. Anything in this Agreement to the contrary notwithstanding, in no event shall
the Escrow Agent be liable for special, incidental, punitive, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent
has been advised of the likelihood of such loss or damage and regardless of the form of action.



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6.     Succession. (a) The Escrow Agent may resign and be discharged from its duties or
obligations hereunder by giving thirty (30) days advance notice in writing of such resignation to
the Parties specifying a date when such resignation shall take effect. If the Parties have failed
to appoint a successor
escrow agent prior to the expiration of thirty (30) days following receipt of the notice of
resignation, the Escrow Agent may petition any court of competent jurisdiction for the appointment
of a successor escrow agent or for other appropriate relief, and any such resulting appointment
shall be binding upon all of the parties hereto. Escrow Agent’s sole responsibility after such
thirty (30) day notice period expires shall be to hold the Fund (without any obligation to reinvest
the same) and to deliver the same to a designated substitute escrow agent, if any, or in accordance
with the directions of a final order or judgment of a court of competent jurisdiction, at which
time of delivery Escrow Agent’s obligations hereunder shall cease and terminate, subject to the
provisions of Section 8(b). In accordance with Section 8(b), the Escrow Agent shall have the right
to withhold an amount equal to any amount due and owing to the Escrow Agent, plus any costs and
expenses the Escrow Agent shall reasonably believe may be incurred by the Escrow Agent in
connection with the termination of the Agreement.



     (b) Any entity into which the Escrow Agent may be merged or converted or with which it may be
consolidated, or any entity to which all or substantially all the escrow business may be
transferred, shall be the Escrow Agent under this Agreement without further act.



7.     Compensation and Reimbursement. The Parties agree jointly and severally (a) to pay the
Escrow Agent upon execution of this Agreement and from time to time thereafter reasonable
compensation for the services to be rendered hereunder, along with any fees or charges for
accounts, including those levied by any governmental authority which the Escrow Agent may impose,
charge or pass-through, which unless otherwise agreed in writing shall be as described in Schedule
2 attached hereto, and (b) to pay or reimburse the Escrow Agent upon request for all expenses,
disbursements and advances, including, without limitation reasonable attorney’s fees and expenses,
incurred or made by it in connection with the performance, modification and termination of this
Agreement. The obligations contained in this Section 7 shall survive the termination of this
Agreement and the resignation, replacement or removal of the Escrow Agent.



     8.     Indemnity. (a) The Parties shall jointly and severally indemnify, defend and hold
harmless the Escrow Agent and its affiliates and their respective successors, assigns, directors,
agents and employees (the “Indemnitees”) from and against any and all losses, damages, claims,
liabilities, penalties, judgments, settlements, litigation, investigations, costs or expenses
(including, without limitation, the fees and expenses of outside counsel and experts and their
staffs and all expense of document location, duplication and shipment)(collectively “Losses”)
arising out of or in connection with (i) the Escrow Agent’s execution and performance of this
Agreement, tax reporting or withholding, the enforcement of any rights or remedies under or in
connection with this Agreement, or as may arise by reason of any act, omission or error of the
Indemnitee, except in the case of any Indemnitee to the extent that such Losses are finally
adjudicated by a court of competent jurisdiction to have been primarily caused by the gross
negligence or willful misconduct of such Indemnitee, or (ii) its following any instructions or
directions, whether joint or singular, from the Parties, except to the extent that its following
any such instruction or direction is expressly forbidden by the terms hereof. The indemnity
obligations set forth in this Section 8(a) shall survive the resignation, replacement or removal of
the Escrow Agent or the termination of this Agreement.



(b) The Parties hereby grant the Escrow Agent a lien on, right of set-off against and security
interest in, the Fund for the payment of any claim for indemnification, fees, expenses and amounts
due to the Escrow Agent or an Indemnitee. In furtherance of the foregoing, the Escrow Agent is
expressly authorized and directed, but shall not be obligated, to charge against and withdraw from
the Fund for its own account or for the account of an Indemnitee any amounts due to the Escrow
Agent or to an Indemnitee under either Sections 6(a), 7 or 8(a) of this Agreement.



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9.     Patriot Act Disclosure/Taxpayer Identification Numbers/Tax Reporting.




(a) Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”)
requires the Escrow Agent to implement reasonable procedures to verify the identity of any person
that opens a new account with it. Accordingly, the Parties acknowledge that Section 326 of the USA
PATRIOT Act and the Escrow Agent’s identity verification procedures require the Escrow Agent to
obtain information which may be used to confirm the Parties identity including without limitation
name, address and organizational documents (“identifying information”). The Parties agree to
provide the Escrow Agent with and consent to the Escrow Agent obtaining from third parties any such
identifying information required as a condition of opening an account with or using any service
provided by the Escrow Agent.



(b) Certification and Tax Reporting. The Parties have provided the Escrow Agent with their
respective fully executed Internal Revenue Service (“IRS”) Form W-8, or W-9 and/or other required
documentation. All income earned under this Agreement, if any, shall be allocated to the Company
and reported, as and to the extent required by law, by the Escrow Agent to the IRS, or any other
taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned from the
Escrow Deposit by the Company whether or not said income has been distributed during such year.
Escrow Agent shall withhold any taxes it deems appropriate in the absence of proper tax
documentation or as required by law, and shall remit such taxes to the appropriate authorities.
The Parties hereby represent to the Escrow Agent that (i) there is no sale or transfer of an United
States Real Property Interest as defined under IRC Section 897(c) in the underlying transaction
giving rise to this Agreement; and (ii) such underlying transaction does not constitute an
installment sale requiring tax reporting or withholding of imputed interest or original issue
discount to the IRS or other taxing authority.



10.     Notices. All communications hereunder shall be in writing and except for
communications from the Parties setting forth, claiming, containing, objecting to, or in any way
related to the transfer or distribution of funds, including but not limited to funds transfer
instructions (all of which shall be specifically governed by Section 11 below), shall be deemed to
be duly given after it has been received and the receiving party has had a reasonable time to act
upon such communication if it is sent or served:



     (a) by facsimile;

     (b) by overnight courier; or

     (c) by prepaid registered mail, return receipt requested;




to the appropriate notice address set forth below or at such other address as any party hereto may
have furnished to the other parties in writing by registered mail, return receipt requested.



	 	 	 
	If to the Company

	 	XStream Systems, Inc.
	 

	 	10305 102nd Terrace, Suite 101
	 

	 	Sebastian, FL 32958
	 

	 	Attention: Dennis K. Cummings, Chief Financial Officer
	 

	 	Tel. No.: (772) 646-6208
	 

	 	Fax No.: (772) 589-4622
	 
	 	 
	With copies to

	 	Greenberg Traurig, P.A.
	 

	 	5100 Town Center Circle, Suite 400
	 

	 	Boca Raton, FL 33486
	 

	 	Attention: Bruce C. Rosetto, Esq.
	 

	 	Tel. No.: (561) 955-7625
	 

	 	Fax No.: (561) 367-6225






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	If to Underwriter

	 	W.R. Hambrecht + Co., LLC
	 

	 	Pier 1, Bay 3
	 

	 	San Francisco, CA 94111
	 

	 	Attention: Peter Morrissey Esq.
	 

	 	Tel No.:
	 

	 	Fax No.:
	 
	 	 
	With copies to

	 	Katten Muchin Rosenman LLP
	 

	 	575 Madison Avenue
	 

	 	New York, NY 10022
	 

	 	Attention: David A. Pentlow, Esq.
	 

	 	Tel. No.: (212) 940-6412
	 

	 	Fax No.: (212) 894-5912
	 
	 	 
	If to the Escrow Agent

	 	JPMorgan Chase Bank, N.A.
	 

	 	Escrow Services
	 

	 	4 New York Plaza, 21st Floor
	 

	 	New York, N.Y. 10004
	 

	 	Attention: Greg Kupchynsky
	 

	 	Fax No. (212) 623.6168
	 

	 	Phone: (212) 623.6812






Notwithstanding the above, in the case of communications delivered to the Escrow Agent, such
communications shall be deemed to have been given on the date received by an officer of the Escrow
Agent or any employee of the Escrow Agent who reports directly to any such officer at the
above-referenced office. In the event that the Escrow Agent, in its sole discretion, shall
determine that an emergency exists, the Escrow Agent may use such other means of communication as
the Escrow Agent deems appropriate. For purposes of this Agreement, “Business Day” shall mean any
day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice
address set forth above is authorized or required by law or executive order to remain closed.



11.     Security Procedures. Notwithstanding anything to the contrary as set forth in Section
10, any instructions setting forth, claiming, containing, objecting to, or in any way related to
the transfer or distribution of funds, including but not limited to any such funds transfer
instructions that may otherwise be set forth in a written instruction permitted pursuant to Section
4 of this Agreement, may be given to the Escrow Agent only by confirmed facsimile and no
instruction for or related to the transfer or distribution of the Fund, or any portion thereof,
shall be deemed delivered and effective unless the Escrow Agent actually shall have received such
instruction by facsimile at the number provided to the Parties by the Escrow Agent in accordance
with Section 10 and as further evidenced by a confirmed transmittal to that number.



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(a) In the event funds transfer instructions are so received by the Escrow Agent by facsimile, the
Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the
person or persons designated on Schedule 1 hereto, and the Escrow Agent may rely upon the
confirmation of
anyone purporting to be the person or persons so designated. The persons and telephone numbers for
call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent.
If the Escrow Agent is unable to contact any of the authorized representatives identified in
Schedule 1, the Escrow Agent is hereby authorized both to receive written instructions from and
seek confirmation of such instructions by telephone call-back to any one or more of the Company or
Underwriter’s executive officers, (“Executive Officers”), as the case may be, which shall include
the titles of Co-Chief Executive Officer and Chief Financial Officer, as the Escrow Agent may
select. Such “Executive Officer” shall deliver to the Escrow Agent a fully executed incumbency
certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any
such officer. The Escrow Agent and the beneficiary’s bank in any funds transfer may rely solely
upon any account numbers or similar identifying numbers provided by the Company or Underwriter to
identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The
Escrow Agent may apply any of the Fund for any payment order it executes using any such identifying
number, even when its use may result in a person other than the beneficiary being paid, or the
transfer of funds to a bank other than the beneficiary’s bank or an intermediary bank designated.



(b) The Company acknowledges that the Escrow Agent is authorized to use the funds transfer
instructions on Schedule 3 hereto to disburse any funds due to the Company under this Agreement
without a verifying call-back as set forth in Section 11(a) above:



	 	 	 
	The Company’s Bank account information:

	 	[Bank name:
	 

	 	Bank Address:
	 

	 	ABA number:
	 

	 	Account name:
	 

	 	Account number:          ]
	 

	 	See Schedule 3






Underwriter acknowledges that the Escrow Agent is authorized to use the following funds transfer
instructions on Schedule 3 hereto to disburse any funds due to Underwriter under this Agreement
without a verifying call-back as set forth in Section 11(a) above:



	 	 	 
	Underwriter’s Bank account information:

	 	[Bank name:
	 

	 	Bank Address:
	 

	 	ABA number:
	 

	 	Account name:
	 

	 	Account number:          ]
	 

	 	See Schedule 3






(c) In addition to their respective funds transfer instructions as set forth in Section 11(b)
above, the Company acknowledges that repetitive funds transfer instructions may be given to the
Escrow Agent for one or more beneficiaries where only the date of the requested transfer, the
amount of funds to be transferred, and/or the description of the payment shall change within the
repetitive instructions (“Standing Settlement Instructions”). Accordingly, the Company shall
deliver to Escrow Agent such specific Standing Settlement Instructions only for each respective
beneficiary as set forth in Schedule 1, by facsimile in accordance with this Section 11. Escrow
Agent may rely solely upon such Standing Settlement Instructions and all identifying information
set forth therein for each beneficiary. Escrow Agent and the Company agree that such Standing
Settlement Instructions shall be effective as the funds transfer instructions of the Company,
without requiring a verifying callback, whether or not authorized, if
such Standing Settlement Instructions are consistent with previously authenticated Standing
Settlement Instructions for that beneficiary.



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(d) The Parties acknowledge that the security procedures set forth in this Section 11 are
commercially reasonable.



12.     Compliance with Court Orders. In the event that any escrow property shall be attached,
garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by
an order of a court, or any order, judgment or decree shall be made or entered by any court order
affecting the property deposited under this Agreement, the Escrow Agent is hereby expressly
authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered
or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether
with or without jurisdiction, and in the event that the Escrow Agent obeys or complies with any
such writ, order or decree it shall not be liable to any of the parties hereto or to any other
person, entity, firm or corporation, by reason of such compliance notwithstanding such writ, order
or decree be subsequently reversed, modified, annulled, set aside or vacated.



13.     Miscellaneous. Except for changes to funds transfer instructions as provided in
Section 11, the provisions of this Agreement may be waived, altered, amended or supplemented, in
whole or in part, only by a writing signed by the Escrow Agent and the Parties. Neither this
Agreement nor any right or interest hereunder may be assigned in whole or in part by the Escrow
Agent or any Party, except as provided in Section 6, without the prior consent of the Escrow Agent
and the other Parties.
Notwithstanding the preceding sentence, the Company shall have no assignable interest in or rights
to the Investor funds under this Agreement prior to release of the funds under Section 4.
This Agreement shall be governed by and construed under the laws of the
State of Florida. Each Party and the Escrow Agent irrevocably waives any objection on the grounds
of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of
process by mail or in any other manner permitted by applicable law and consents to the jurisdiction
of the courts located in the State of Florida. To the extent that in any jurisdiction either Party
may now or hereafter be entitled to claim for itself or its assets, immunity from suit, execution
attachment (before or after judgment), or other legal process, such Party shall not claim, and it
hereby irrevocably waives, such immunity. The Escrow Agent and the Parties further hereby waive
any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating
to this Agreement. No party to this Agreement is liable to any other party for losses due to, or
if it is unable to perform its obligations under the terms of this Agreement because of, acts of
God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure,
or other causes reasonably beyond its control. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. All signatures of the parties to this Agreement may be transmitted by
facsimile, and such facsimile will, for all purposes, be deemed to be the original signature of
such party whose signature it reproduces, and will be binding upon such party. If any provision of
this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a
jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions thereof, and any
such prohibition or unenforceability in such jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction. A person who is not a party to this
Agreement, including, but not limited to an Investor, shall have no right to instruct the Escrow
Agent. The Parties represent, warrant
and covenant that each document, notice, instruction or request provided by such Party to Escrow
Agent shall comply with applicable laws and regulations. Where, however, the conflicting
provisions of any such applicable law may be waived, they are hereby irrevocably waived by the
parties hereto to the fullest extent permitted by law, to the end that this Agreement shall be
enforced as written. Except as expressly provided in Section 8 above, nothing in this Agreement,
whether express or implied, shall be construed to


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give to any person or entity other than the Escrow Agent and the Parties any legal or equitable
right, remedy, interest or claim under or in respect of this Agreement or any funds escrowed
hereunder.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth
above.



	 	 	 	 	 
	THE COMPANY: XSTREAM SYSTEMS, INC.

 	 
	By:  	 
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	UNDERWRITER: W.R. HAMBRECHT + CO., LLC

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION



as Escrow Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




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