ESCROW AGREEMENT
Exhibit 10.2
THIS ESCROW AGREEMENT, (the
"Agreement") made this 1st day of October, 2009, by and among 310 Holdings,
Inc., a Nevada Corporation, with offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxx. (“Company”), Xxxxxx Xxxxxxx of Clearwater,
Florida (“Executive”) and the law firm of XxxXxxxxxx,
Xxxxxxxx & XxXxxxxx with offices at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000 ("Escrow Agent").
WHEREAS, On October 1, 2009,
Company and Executive entered into an Employment Agreement (herein “Employment
Agreement”) whereby Executive was hired as Chief Financial Officer of Company,
all as more fully described in the Employment Agreement, a copy of which is
attached hereto as Exhibit "A", and
WHEREAS, pursuant
to Paragraph 5 (d) of the Employment Agreement, Company has agreed to deposit
the sum of $144,000 with Escrow Agent (The "Funds") representing a severance
amount to be paid to Executive under circumstances as set forth in the
Employment Agreement; and
WHEREAS, Escrow Agent is
agreeable to act as escrow agent under this Agreement and to disburse the Funds
in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the mutual covenants and promises set for the below, the
parties agree:
1. Establishment of Escrow
Account.
1.1. An
escrow account shall be established under this Agreement by
Company with Executive at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000, who shall hold, invest and distribute the Funds from time to time as
hereinafter set forth (the "Escrow Account").
2.1.
Disbursements.
2.1. The
Escrow Agent shall disburse all or a portion of the Funds in accordance with the
following:
(a) Upon
receipt of written demand from Executive for release to him of the Funds due to
his being terminated Without Cause as defined in the Employment Agreement, which
notice shall contain evidence that a copy of same has been sent to Company in
accordance with the notice provisions of this Escrow Agreement, within fifteen
(15) business days of Escrow Agent's receipt of the written demand, a check in
the amount of the principal sum of the Funds shall be released to
Executive and a check in the amount of accrued interest shall be released to
Company.
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(b) If,
prior to the release of the Funds pursuant to the provisions of 2.1
(a) hereinabove, the Escrow Agent receives written notice from
Company of a dispute between Company and Executive regarding the release of the
Funds, the Escrow Agent shall not release the Funds until this dispute has been
settled or resolved and notification thereof has been furnished to Escrow Agent
by both Company and Executive.
(d) The
Escrow Agent shall, at any time, make distribution of the Funds upon written
direction duly executed by both Company and Executive. The disbursement shall be
in the amount set forth in such written direction.
(e ) Upon
the anniversary of the 36th
month following the execution of this Escrow Agreement, provided it has not
previously released the Funds, Escrow Agent shall release all of the Fund (both
principal and accrued interest) to Company.
3. Escrow Agent's
Responsibility.
3.1. Upon
disbursement of all or any portion of the Funds in accordance with this
Agreement, Escrow Agent shall have no further responsibility with respect to the
amounts so disbursed. In this regard, it is expressly agreed and understood that
in no event shall the aggregate amount of disbursements from the Escrow Account
by Escrow Agent exceed the amounts deposited by Company in the Escrow Account
plus accrued interest, as provided herein.
3.2. Escrow
Agent shall invest the Fund's principal in an interest bearing money market
account at a State or Federally chartered bank.
3.3. Company
and Executive understand and agree that the duties of Escrow Agent are purely
ministerial in nature. Company and Executive further agree that:
(a) Escrow Agent shall not be liable for any
action taken or omitted hereunder or under this Agreement except in the
case of its bad faith, gross negligence or willful misconduct.
(b) Escrow
Agent shall furnish to Company and Executive an
accounting of the receipts in, and disbursements from, the Escrow Accounts, as
requested.
(c) All
interest accrued in the Escrow Account shall belong to the Company and may be
disbursed to the Company at any time upon request of the Company.
(d) Escrow
Agent shall be entitled to a reasonable fee for any services required of him
arising out of this Escrow Agreement other than the ministerial act of holding
the Funds and disbursing same in accordance with this Escrow
Agreement.
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3.4. The
Escrow Agent may resign as Escrow Agent at any time upon thirty (30) days prior
written notice to Company and Executive. In the case of the Escrow Agent's
resignation, its only duty shall be to hold and dispose of the Escrow Account in
accordance with the original provisions of this Agreement until such successor
escrow agent shall be appointed. Company and Executive shall jointly
consent and appoint such successor escrow agent. Upon such appointment, the
Escrow Agent's only duty shall be to pay over to the successor escrow agent the
Funds in escrow pursuant to this Agreement less any portion thereof previously
paid out in accordance with this Agreement, if any.
3.5. Company
agrees to indemnify Escrow Agent and its members and agents (herein the
"Indemnitees") against, and to hold them harmless of and from, any and all loss,
liability, cost, damage and expense, any and all loss, limitation, reasonable
attorneys' fees, except in the case of Escrow Agent's bad faith, gross
negligence, or willful misconduct, which the Indemnitees may suffer or incur by
reason of any action, claim or proceeding brought by any party against the
Indemnitees, arising out of or relating in any way to this Agreement, or the
performance of its duties hereunder.
4. Miscellaneous.
4.1. This
Agreement encompasses the entire Agreement of the parties and shall not be
modified except by an instrument in writing signed by the parties.
4.2. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida and the proper venue and jurisdiction for any action or claim
with respect to this Agreement or any document delivered pursuant hereto shall
be in the appropriate court in Pinellas County, Florida, except as for provided
in section 4.3.
4.3. In
the event of the receipt of conflicting instructions prior to discharge of the
Escrow Agent, Escrow Agent shall commence an arbitration before a single
arbitrator in Clearwater, Florida acceptable to Escrow Agent under the rules of
the American Arbitration Association, whose decision shall be final. Upon
receipt of a final decision from the arbitrator, the Escrow Agent shall comply
therewith and upon such compliance shall be discharged from all further
liability. The decision of the arbitrator shall be final, and may be reduced to
judgment by any party hereto or the Escrow Agent. The arbitration must be
resolved with 90 days of a request for arbitration. Company and Executive shall
pay their own attorney fees and legal costs. The aforementioned parties shall
split the Escrow Agent's and arbitrator's reasonable fees and
costs.
4.4. All
notice required to be given in connection with this Agreement shall be sent via
certified mail or overnight express with receipt and addressed as
follows:
If to:
Company
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Xx.
Xxxx Xxxxxxxxx, President
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000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxx,
Mass
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With copy
to:
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Xxxxxx
+ Jaclin, LLP
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000
Xxxxx 0 Xxxxx, Xxxxx 000
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Xxxxxxxxx,
Xxx Xxxxxx, 00000
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Attention:
Xxxxx X. Xxxxxx, Esq.
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Email:
xxxxxxx@xxxxxxxxx.xxx
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If to
Executive:
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Xxxxxx
Xxxxxxx
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Insert
Address
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If to Escrow
Agent:
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XxxXxxxxxx,
Xxxxxxxx & XxXxxxxx
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000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000
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Attention:
J. Xxxx Xxxxxxx
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(000)
000-0000
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(000)
000-0000 (Fax)
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IN WITNESS WHEREOF, this
Agreement has been executed this 1st day of October, 2009.
Witnesses:
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COMPANY
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310
Holdings, Inc., a Delaware corporation
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By: /s/ Xxxx
Xxxxxxxxx
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Name:
Xxxx Xxxxxxxxx, President
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EXECUTIVE
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/s/ Xxxxxx Xxxxxxx | ||
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Xxxxxx
Xxxxxxx
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ESCROW
AGENT
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XxxXxxxxxx,
Xxxxxxxx & XxXxxxxx, PA
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By: /s/
X.
Xxxx
Xxxxxxx
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X.
Xxxx Xxxxxxx
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4
EXHIBIT
“B”
DRAW
REQUEST
DRAW
REQUEST
# _____________________
DATE ____________________________
Pursuant to the Escrow Agreement
dated ,
200___, by and among the West Hampton, LLC, a Florida limited liability company,
the Environmental Protection Commmission of Hillsborough County, andXxxxxx X. XxXxxxxx,
Xx., as Escrow Agent, Escrow Agent is authorized to disburse $ United
States Dollars to:
For
the purpose of paying:
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This draw request may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute only one instrument.
Approved this ______________ day of
_______________________, 200__.
West Hampton, LLC
By: __________________________
Name: ________________________
Its ___________________________
Environmental Protection
Commission
of Hillsborough County
By: ___________________________
Xxxxxxx X. Xxxxxxx, Ph.D.
Executive Director