PROCEEDS ESCROW AGREEMENT
Exhibit
10.1
THIS
PROCEEDS ESCROW AGREEMENT (the "Agreement") is made and entered into this
18th
day of July, 2007, by and between AFTERMARKET ENTERPRISES, INC., a Nevada
corporation (the "Company"), and ESCROW SPECIALISTS, Salt Lake City, Utah
(the
"Escrow Agent").
Premises
The
Company proposes to offer for sale to the general public in certain states
up to
1,000,000 shares of common stock, par value $0.001, at an offering price
of
$0.25 per share (the "Shares"), pursuant to the registration provisions of
the
Securities Act of 1933, as amended, and pursuant to a registration statement
on
Form SB-2 (the "Registration Statement"), SEC File No. 333-141676, on file
with
the Securities and Exchange Commission (the "Commission"). The Company will
offer the Shares for sale through its officers and directors on a "best efforts,
all or none" basis in accordance with the terms of the prospectus (the
"Prospectus") included in the Registration Statement. In accordance with
the
terms of the Prospectus, the Company desires to provide for the escrow of
the
minimum subscription payments for Shares until the amount, as set forth below,
has been received.
Agreement
NOW,
THEREFORE, the parties hereto agree as follows:
1.
Until
termination of this Agreement, all funds collected by the Company from
subscriptions for the purchase of Shares in the subject offering shall be
deposited promptly with the trust department of the Escrow Agent, in a separate
bank account for the Company, but in any event no longer than noon of the
next
business day following receipt.
2.
Concurrently with transmitting funds to the trust department of the Escrow
Agent, the Company shall also deliver to the Escrow Agent a schedule setting
forth the name and address of each subscriber whose funds are included in
such
transmittal, the number of Shares subscribed for, and the dollar amount paid.
All funds so deposited shall remain the property of the subscriber and shall
not
be subject to any lien or charges by Escrow Agent, or judgments or creditors'
claims against the Company until released to it in the manner hereinafter
provided.
3.
If at
any time prior to the expiration of the minimum offering period, as specified
in
paragraph 4, $75,000 has been deposited pursuant to this Agreement, the Escrow
Agent shall promptly confirm the receipt of such funds to the Company and
on
written request of the Company, promptly transmit the balance to the Company
(such event is hereinafter referred to as the "Closing"). Thereafter, the
Escrow
Agent shall continue to accept deposits from the Company and transmit without
further request or instruction the balance to the Company until the offering
is
terminated.
4.
If
within 120 days after the effective date of the Registration Statement, the
Company has not deposited $75,000 in good funds with the Escrow Agent, the
Escrow Agent shall so notify the Company and shall promptly transmit to those
investors who subscribed for the purchase of the Shares the amount of money
each
such investor so paid. The Escrow Agent shall furnish to the Company an
accounting for the refund in full to all subscribers.
5.
If at
any time prior to the termination of the escrow the Escrow Agent is advised
by
the Commission that a stop order has been issued with respect to the
Registration Statement, the Escrow Agent shall, 20 days after the date of
any
such stop order, return all funds to the respective subscribers unless it
receives written notice within such 20-day period that the stop order has
been
lifted.
6.
It is
understood and agreed that the duties of the Escrow Agent are entirely
ministerial, being limited to receiving monies from the Company and holding
and
disbursing such monies in accordance with this Agreement. The Escrow Agent
shall
have no obligation to invest the offering proceeds.
7.
The
Escrow Agent acts hereunder as a depository only, and is not responsible
or
liable in any manner whatsoever for the sufficiency, correctness, genuineness,
or validity of any instrument deposited with it, or with respect to the form
or
execution of the same, or the identity, authority or rights of any person
executing or depositing the same.
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8.
The
Escrow Agent shall not take any action pursuant to additional escrow
instructions not included herein unless such instructions are in writing
and
have been signed by the Company.
9.
The
Escrow Agent shall not be required to take or be bound by notice of any default
of any person or to take such default involving any expense or liability,
unless
notice in writing is given to an officer of the Escrow Agent of such default
by
the undersigned or any of them, and unless it is indemnified in a manner
satisfactory to it against any expense or liability arising
therefrom.
10.
The
Escrow Agent shall not be liable for acting on any notice, request, waiver,
consent, receipt, or other paper or document believed by the Escrow Agent
to be
genuine and to have been signed by the proper party or parties.
11.
The
Escrow Agent shall not be liable for any error of judgment or for any act
done
or step taken or omitted by it in good faith, or for any mistake of fact
or law,
or for anything which it may do or refrain from doing in connection herewith,
except its own willful misconduct.
12.
The
Escrow Agent shall not be answerable for the default or misconduct of any
agent,
attorney, or employee appointed by it if such agent attorney or employee
shall
have been selected with reasonable care.
13.
The
Escrow Agent may consult with legal counsel in the event of any dispute or
question as to the consideration of the foregoing instructions or the Escrow
Agent's duties hereunder, and the Escrow Agent shall incur no liability and
shall be fully protected in acting in accordance with the opinion and
instructions of such counsel.
14.
In
the event of any disagreement between the Company and the Escrow Agent and/or
any other person, resulting in adverse claims and/or demands being made in
connection with or for any papers, money, or property involved herein or
affected hereby, the Escrow Agent shall be entitled at its option to refuse
to
comply with any such claim, or demand so long as such disagreement shall
continue and, in so refusing, the Escrow Agent shall not be or become liable
to
the undersigned or any of them or to any person named in the foregoing
instructions for the failure or refusal to comply with such conflicting or
adverse demands, and the Escrow Agent shall be entitled to continue to so
refrain and refuse to so act until (a) the rights of adverse claimants have
been
fully adjudicated in a court assuming and having jurisdiction of the parties
and
the securities, monies, papers, and property involved herein or affected
hereby;
and/or (b) all differences shall have been adjusted by agreement and the
Escrow
Agent shall have been notified in writing signed by all of the interested
parties.
15.
The
Escrow Agent reserves the right to resign hereunder, upon ten (10) days prior
written notice to the Company. In the event of said resignation, and prior
to
the effective date thereof, the Company, by written notice to the Escrow
Agent,
shall designate a successor escrow agent to assume the responsibilities of
the
Escrow Agent under this Agreement, and the Escrow Agent immediately shall
deliver any undisbursed offering proceeds to such successor escrow agent.
If the
Company shall fail to designate such a successor escrow agent within such
time
period, the Escrow Agent may deliver any undisbursed offering proceeds into
the
registry of any court having jurisdiction.
16.
The
consideration for its agreement to act as the Escrow Agent is $ 100.00, the
receipt of which is hereby acknowledged for the first 25 checks received
and
$1.00 for each check after 25. In addition, if $75,000 is not received in
escrow
within the escrow period and the Escrow agent is required to return funds
to
investors as provided in section 4, the Escrow Agent shall receive a fee
of
$5.00 per check for such services. The fee agreed on for services rendered
hereunder is intended as full compensation for the Escrow Agent's services
as
contemplated by this Agreement; however, in the event that the conditions
of
this Agreement are not fulfilled, the Escrow Agent renders any material service
not contemplated by this Agreement, there is any assignment of interest in
the
subject matter of this Agreement, there is any material modification hereof,
any
material controversy arising hereunder, or the Escrow Agent is made a party
to
or justifiably intervenes in any litigation pertaining to this Agreement
or the
subject matter hereof, the Escrow Agent shall be reasonably compensated for
such
extraordinary expenses, including reasonable attorneys' fees, occasioned
by any
delay, controversy, litigation, or event. Any additional compensation to
the
Escrow Agent arising as a result of litigation pertaining to this Agreement
and
any other additional compensation to the Escrow Agent shall be paid by the
Company.
17.
This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns, including any successor
to
the Escrow Agent in the event of its liquidation; provided, however, that
no
party may assign this Agreement or any interest herein without the prior
written
consent of the other parties.
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18.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Utah and the laws of the United States applicable to the State
of
Utah.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective duly authorized officers, as of the date first above
written.
a
Nevada
Corporation
Xxxx
Xxxxxxx
President
I,
Xxxxxx
Xxxxxxx, a duly authorized officer of the Escrow Agent, hereby acknowledge
receipt of this Agreement and agree to act as Escrow Agent in accordance
with
said Agreement and on the terms and conditions above set forth this ______
day
of _______________, 2007.
ESCROW
SPECIALISTS
Xxxxxx
Xxxxxxx
Duly
Authorized Officer
