Exhibit 10.3
PLEDGE ESCROW
AGREEMENT
THIS PLEDGE ESCROW
AGREEMENT (the “
Agreement ”), dated September 30, 2009, by
and among Geoffrey C. Weber, as Trustee of the Pak-It
Members’ Trust, (the “ Secured Party ”),
310 Holdings, Inc., a Nevada corporation, (the “
Company ”), John Bordynuik (the “
Affiliate ”) and Anslow & Jaclin, LLP the escrow
agent for the Affiliate and Secured Party (the “ Escrow
Agent ”).
A. The
Affiliate has pledged as security the Company’s common stock,
$0.001 par value per share (“ Common Stock ”)
and 100% of the membership units of Pak-It (as defined herein) (the
“Units”), in accordance with that certain Unit Purchase
and Exchange Agreement, dated as of the date hereof (the “
Unit Purchase Agreement ”), by and among the Company,
Pak-It, LLC (“ Pak-It ”) and the Pak-It, LLC
Unitholders (the “ Pak-It Unitholders ”), and
certain Note, Liability Note, other papers, agreements, documents,
instruments and certificates necessary to carry out the purposes
thereof (collectively, the “ Transaction Documents
”).
B. As
an inducement to the Pak-It Unitholders to enter into the Unit
Purchase Agreement, the Affiliate desires to place the Escrow
Property (as hereinafter defined) into escrow for the benefit of
the Secured Party in the event that the Company fails to satisfy
certain conditions in accordance with the Unit Purchase
Agreement.
C. Pursuant
to the requirements of the Unit Purchase Agreement the Affiliate
and the Secured Party have agreed to establish an escrow (the
“ Escrow ”) on the terms and conditions set
forth in this Agreement and the Escrow Agent has agreed to act as
escrow agent pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE
, the Affiliate, the Secured Party
and the Escrow Agent, hereby agree that, in consideration of the
mutual promises and covenants contained herein, the Escrow Agent
shall hold in escrow and shall distribute Escrow Property in
accordance with, and subject to, the provisions of this
Agreement:
1.
Appointment . The Affiliate and Secured Party
hereby appoint the Escrow Agent as each party’s respective
escrow agent for the purposes set forth herein, and the Escrow
Agent hereby accepts such appointment.
2.
Escrow . Concurrently with the closing of the
Unit Purchase Agreement, the Affiliate shall deliver to the Escrow
Agent a total of 10,000,000 shares of Common Stock of the Company,
with the stock powers executed in blank, medallion signature
guaranteed, or in other form and substance acceptable for transfer
and the Units in form and substance acceptable for
transfer. The Escrow Agent shall not be under any duty
or obligation to solicit the deposit of the Escrow Property to the
Escrow. The foregoing property plus all dividends and
other distributions and payments thereon, if any (collectively the
“ Distributions ”) received by the Escrow Agent,
less any property distributed or paid in accordance with this
Agreement, are collectively referred to herein as the “
Escrow Property .”
3.
Investment of Escrow Property . During the term
of this Agreement, the Escrow Agent shall not invest or liquidate
the Escrow Property and any distribution of all or part of the
Escrow Property shall be conducted in accordance with
Section 4 below.
4.
Distribution of Escrow Property . The Escrow
Agent shall release the Escrow Property upon receipt of notice from
the Secured Party and Affiliate of the satisfaction of the terms of
the Transaction Documents. Promptly upon delivery by Secured
Party to the Escrow Agent of notice that an Event of Default
(as defined in the Note and Liability Note) has occurred or that
the conditions to the Note and Liability Note have been met, the
Escrow Agent shall disburse the Escrow Property to the
respective parties in accordance with the instructions set forth in
such notice.
(a) Upon receipt by the
Escrow Agent of a request for distribution of the Escrow Property
by the Company or the Affiliate, without the approval of the
Secured Party, the Escrow Agent shall provide notice to the Secured
Party of such demand. The Secured Party shall contest the release
or provide approval of the release of the Escrow Property within
ten (10) business days. In the event the Secured
Party contests the release of the Escrow Property, the Escrow Agent
shall interplead the Escrow Property in a court of valid
jurisdiction, unless the parties agree to an extension to resolve
the release of the Escrow Property.
5.
Termination . Unless the Escrow Agent earlier
resigns, this Agreement shall terminate, subject to the provisions
of Section 8 hereof, upon final distribution of all
property in the Escrow Property by the Escrow Agent.
(a) The
Escrow Agent undertakes to perform only those duties expressly set
forth herein and no duties shall be implied.
(b) The
Escrow Agent shall have no liability under and no duty to inquire
as to the provisions of any agreement of the Affiliate and/or the
Secured Party other than this Agreement.
(c) The
Escrow Agent may rely upon and shall not be liable for acting or
refraining from acting upon any written notice, 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.
(d) The
Escrow Agent shall be under no duty to inquire into or investigate
the validity, accuracy or content of any document.
(e) The
Escrow Agent shall not be liable for any action taken or omitted by
it in good faith except to the extent that a court of competent
jurisdiction determines that the Escrow Agent’s gross
negligence or willful misconduct was the primary cause of any loss
to the Affiliate.
(f) The
Escrow Agent may consult with legal counsel of its choosing as to
any matter relating to this Agreement and the Escrow Agent shall
not incur any liability in acting in good faith in accordance with
advice from such counsel.
(g) Anything
in this Agreement to the contrary notwithstanding, in no event
shall the Escrow Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but
not limited to lost profits and/or savings), even if the Escrow
Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(h) The
Escrow Agent may resign at any time by giving
