PLEDGE ESCROWAGREEMENT

 

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”).

WHEREAS:

 

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.

 

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.”

 

 

 

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.

6.           Escrow Agent.

(a)           The Escrow Agent undertakes to perform only those duties expressly set forth herein and no duties shall be implied.

(d)           The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any document.

 

(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 the Affiliate and the Secured Party thirty (30) calendar days’ prior written notice thereof.

(j)           The Escrow Agent shall not be obligated to institute legal proceedings of any kind and shall not be required to defend any legal proceeding instituted against it or in respect to the Escrow Property.

 

7.           Fees.  The Company agrees to (i) pay the Escrow Agent reasonable compensation for the services to be rendered hereunder, which shall be as described in Schedule I attached hereto, and (ii) pay or reimburse the Escrow Agent upon request for all reasonable expenses, disbursements and advances, including reasonable attorneys’ fees and expenses, incurred or made by it in connection with the preparation execution, delivery, performance, modification and/or termination of this Agreement.  This Section 7 shall survive the termination of this Agreement and the resignation of the Escrow Agent.

 

8.           Indemnity.  The Company will indemnify and hold the Secured Party and their directors, officers, shareholders, partners, employees and agents and the Escrow Agent (each, an “Investor Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”) that the Secured Party may suffer or incur as a result of or relating to any misrepresentation, breach or inaccuracy of any representation, warranty, covenant or agreement made by the Company in any of the Transaction Documents.  In addition to the indemnity contained herein, the Company will reimburse the Secured Party for its reasonable legal and other expenses (including the cost of any investigation, preparation and travel in connection therewith) incurred in connection therewith, as such expenses are incurred.  In the event of any litigation or dispute arising from this agreement, the parties agree that the party who is awarded the most money shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional award of the full amount of the attorneys' fees and expenses paid by said prevailing party in connection with the litigation and/or dispute without reduction or apportionment based upon the individual claims or defenses  giving rise to the fees and expenses.  Nothing herein shall restrict or impair a court's power to award fees and expenses for frivolous or bad faith pleading.

 

 

 

Conduct of Indemnification Proceedings.  Promptly after receipt by any Person (the “Indemnified Person”) of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume the payment of all fees and expenses; provided, however, that the failure of any Indemnified Person so to notify the Company shall not relieve the Company of its obligations hereunder except to the extent that the Company is materially prejudiced by such failure to notify.  In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall have mutually agreed to the retention of such counsel; or (ii) in the reasonable judgment of counsel to such Indemnified Person representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.  The Company shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld, but if settled with such consent, or if there be a final judgment for the plaintiff, the Company shall indemnify and hold harmless such Indemnified Person from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.  Without the prior written consent of the Indemnified Person, which consent shall not be unreasonably withheld, the Company shall not effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Person from all liability arising out of such proceeding.

 

9.           Taxes.  It is understood that the Escrow Agent shall be responsible for income reporting only with respect to income earned on the Escrow Property and will not be responsible for any other reporting.

10.           Notices.  Any communication, notice or document required or permitted to be given under this Agreement shall be given in writing and shall be deemed received (i) when personally delivered to the relevant party at such party’s address as set forth below, (ii) if sent by mail (which must be certified or registered mail, postage prepaid) or overnight courier, when received or rejected by the relevant party at such party’s address indicated below, or (iii) if sent by facsimile, when confirmation of delivery is received by the sending party:

If to the Affiliate or Company, to:

310 Holdings, Inc.

Attn: John Bordynuik

4536 Portage Road, Niagara Falls

Ontario, Canada L2E 6A8

Phone: (289) 668-7222

with a copy to (which shall not constitute notice):

 

 

 

Anslow & Jaclin, LLP

Attn: Kristina Trauger, Esq.

195 Route 9 South, Suite 204

Manalapan, New Jersey 07726

Phone: (732) 409-1212

Facsimile: (732) 577-1188

If to the Secured Party:

Pak-It, LLC

  Attn: Geoffrey C. Weber

  221 Turner Street

  Clearwater, FL 33756                                                                    

Phone: (727) 449-1476

Facsimile: (727) 449-1846

With a copy to (which shall not constitute notice):

Macfarlane, Ferguson & McMullen, P.A.

625 Court Street, Suite 200

Clearwater, FL 33756

Attn: J. Paul Raymond, Esq.

Phone: (727) 441-8966

Facsimile: (727) 442-8470

If to the Escrow Agent:

Anslow & Jaclin, LLP

195 Route 9 South, Suite 204

Manalapan, NJ 07726

tel.:(732) 409-1212

fax.:(732) 577-1188

11.           Miscellaneous

 

 

 

 

 

(d)           This Agreement may be executed by each of the parties hereto by facsimile signature and in any number of counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same agreement.

 

(e)           The headings contained in this Agreement are for convenience of reference only and shall have no effect on the interpretation or operation hereof.

 

(f)           The Company shall be intended third party beneficiaries of this Agreement to the same extent as if they were parties hereto, and shall be entitled to enforce the provisions hereof.

(g)           If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible.

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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement by the authorized officer named below.

 

 

 

 

 

 

 

 

 

 

 

By: /s/ Gregg Jaclin

Name: Gregg Jaclin

Title:    Partner

Dated:  09/30/09