Exhibit 10.2
PURCHASE AGREEMENT
BETWEEN
SHAREHOLDERS OF FRANCHISE CAPITAL CORPORAITON
A NEVADA PUBLIC CORPORATION
AND
XX. XXXXXXX XXXXXX
AGREEMENT, made this 30th day of August 2005, by and between Franchise Capital
Corporation ("FCC") and Xx. Xxxxxxx Xxxxxx ("XX. XXXXXX").
RECITALS
WHEREAS, FCC is the Managing member and 100% owner of Kokopelli Franchise
Company, LLC and desires to sell 10% of its holdings in Kokopelli Franchise
Company, LLC to XX. XXXXXX.
WHEREAS, XX. XXXXXX desires to purchase 10% and become a member of Kokopelli
Franchise Company, LLC from FCC, the manager and currently the only member of
Kokopelli Franchise Company, LLC in exchange for $50,000.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein,
THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF FCC
FCC hereby represents and warrants to XX. XXXXXX that:
2.1 FCC will transfer to XX. XXXXXX 10% of its membership in Kokopelli
Franchise Company, LLC in exchange for $50,000.
2.2 FCC Organization. FCC is a corporation duly organized, validly existing
and in good standing under the laws of Nevada, has all necessary corporate
powers to own its property and to carry on its business as now owned and
operated by it, and is duly qualified to do business and is in good standing in
each of the states where its business requires qualification.
2.3 Kokopelli Franchise Company, LLC. Kokopelli Franchise Company, LLC is
duly organized, validly existing and in good standing under the laws of Arizona,
has all necessary powers to own its property and to carry on its business as now
owned and operated by it, and is duly qualified to do business and is in good
standing in each of the states where its business requires qualification.
Page 1 of 7
2.4 Capital. Management of FCC own 100% control of Kokopelli Franchise
Company, LLC and therefore have the right to vote for the completion of this
transaction. FCC represents that there are no other issued and outstanding open
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities, or other agreements or commitments obligating FCC in regards to
Kokopelli Franchise Company, LLC.
2.5 Financial Statements. The most recent financial statements of Kokopelli
Franchise Company, LLC are attached as Exhibit A. The financial statements have
been prepared in accordance with generally accepted accounting principles and
practices consistently followed by Kokopelli Franchise Company, LLC throughout
the period indicated, and fairly represent the financial position of each as of
the date of the balance sheet included in the financial statements.
2.6 Investigation of Financial Condition. Without in any manner reducing or
otherwise mitigating the representations contained herein, XX. XXXXXX and/or its
attorneys shall have the opportunity to meet with the accountants and attorneys
to discuss the financial condition of Kokopelli Franchise Company, LLC. FCC
shall make available to XX. XXXXXX and/or its attorney all books and records of
Kokopelli Franchise Company, LLC, once reasonable notice of such request has
been given.
2.7 Authority. The Board of Directors of FCC have authorized the execution
of this Agreement and the consummation of transactions contemplated herein, and
FCC has full power and authority to execute, deliver, and perform this Agreement
and this Agreement is a legal, valid and binding obligation of FCC, and is
enforceable in accordance with its terms and conditions.
2.8 Ability to Carry Out Obligations. The execution and delivery of this
Agreement by FCC of its obligations hereunder in the time and in the manner
contemplated will not cause, constitute or conflict with or result in (a) any
breach or violation of any of the provisions or constitute a default under any
license, indenture, mortgage, charter, instrument, articles of incorporation,
bylaws, or other agreement or instrument to which either is a party, or by which
it may be bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would permit any party to any
agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of FCC, or (c) any event that would result in
the creation or imposition of any lien, charge, or encumbrance on any asset of
FCC.
2.9 Full Disclosure. None of the representations and warranties made by FCC
herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by either, or on their behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
2.10 Good Title. Other than as described in Exhibit A, Fit-n-Healthy has
good and marketable title to all of its property free and clear of any liens,
claims and encumbrances of any nature, form or description.
2.11 Indemnification. FCC and Kokopelli Franchise Company, LLC agrees to
defend and hold XX. XXXXXX harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
Page 2 of 7
recoveries, and deficiencies, including interest, penalties, and reasonable
attorney's fees, that it shall incur or suffer, which arise out of, result from
or relate to any breach of, or failure by FCC to perform any of its
representations, warranties, covenants and agreements in this Agreement or in
any exhibit or other instrument furnished or to be furnished by FCC under this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XX. XXXXXX
XX. XXXXXX hereby represents and warrants to FCC that:
3.1 XX. XXXXXX will assume 10% ownership and become a member in Kokopelli
Franchise Company, LLC in exchange for $50,000.
3.2 Financial Ability. XX. XXXXXX is an individual who has the necessary
wherewithall to complete this agreement through his legal counsel.
3.3 Authority. XX. XXXXXX has authorized the execution of this Agreement
and the consummation of transactions contemplated herein through his legal
counsel. XX. XXXXXX'x legal counsel has full power and authority to execute,
deliver, and perform this Agreement and this Agreement is a legal, valid and
binding obligation of XX. XXXXXX, and is enforceable in accordance with its
terms and conditions.
3.4 Ability to Carry Out Obligations. The execution and delivery of this
Agreement by XX. XXXXXX and the performance by XX. XXXXXX of his obligations
hereunder in the time and in the manner contemplated will not cause, constitute
or conflict with or result in (a) any breach or violation of any of the
provisions or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaws, or other agreement or
instrument to which XX. XXXXXX is a party, or by which it may be bound, nor will
any consents or authorizations of any party other than those hereto be required
except approvals required by law, if any, (b) an event that would permit any
party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of XX. XXXXXX, or (c) any event
that would result in the creation or imposition of any lien, charge, or
encumbrance on any asset of XX. XXXXXX.
3.5 Full Disclosure. None of the representations and warranties made by XX.
XXXXXX herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by XX. XXXXXX, or on his behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
3.6 Indemnification. XX. XXXXXX agrees to defend and hold FCC and Kokopelli
Franchise Company, LLC harmless against and in respect to any and all claims,
demands, losses, costs, expenses, obligations, liabilities, damages, recoveries,
and deficiencies, including interest, penalties, and reasonable attorney's fees,
that it shall incur or suffer, which arise out of, result from or relate to any
breach of, or failure by XX. XXXXXX to perform any of its respective
Page 3 of 7
representations, warranties, covenants and agreements in this Agreement or in
any exhibit or other instrument furnished or to be furnished by XX. XXXXXX under
this Agreement.
ARTICLE III
COVENANTS
4.1 Investigative Rights. From the date of this Agreement until the Closing
date, FCC shall provide the other full access during normal business hours to
all properties, books, contracts, commitments, and records of Kokopelli
Franchise Company, LLC for the purpose of examining same.
4.2 Conduct of Business. Prior to the Closing, Kokopelli Franchise Company,
LLC shall conduct its business in the normal.
ARTICLE IV
CONDITIONS PRECEDENT TO XX. XXXXXX'X PERFORMANCE
5.1 Conditions. XX. XXXXXX'x obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article V. XX. XXXXXX may waive any of these conditions in whole or in part
without prior notice; provided however, that no such waiver of a condition shall
constitute a waiver by XX. XXXXXX of any other condition of or any of XX.
XXXXXX'x other rights or remedies, at law or in equity, if FCC shall be in
default of any of their representations, warranties, or covenants under this
Agreement.
5.2 FCC Performance. FCC shall have performed, satisfied and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
5.3 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by FCC in this Agreement or in any
written statement that shall be delivered to XX. XXXXXX by FCC under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
ARTICLE V
CONDITIONS PRECEDENT TO FCC PERFORMANCE
6.1 Conditions. FCC obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article VI. FCC may waive any of these conditions in whole or in part without
prior notice; provided however, that no such waiver of a condition shall
constitute a waiver by FCC of any other condition of or any of FCC other rights
Page 4 of 7
or remedies, at law or in equity, if XX. XXXXXX shall be in default of any of
their representations, warranties, or covenants under this Agreement.
6.2 XX. XXXXXX Performance. XX. XXXXXX shall have performed, satisfied and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before the Closing Date.
6.3 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by XX. XXXXXX in this Agreement or
in any written statement that shall be delivered to FCC by XX. XXXXXX under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
ARTICLE VI
CLOSING
7.1 Closing. The Closing of this transaction shall be held at a place and
on a date mutually acceptable to the parties.
At the Closing the parties shall deliver the following in form acceptable
to counsel to the parties or as set forth herein:
By XX. XXXXXX:
A. A check in the amount of $50,000 United States currency.
By FCC:
A. 10% of its membership in Kokopelli Franchise Company, LLC.
ARTICLE VII
REMEDIES
8.1 Legal Action and Costs. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
8.2 Termination. In addition to the other remedies, any of the parties
hereto may terminate this Agreement, without liability:
(i) upon the failure of any condition not otherwise waived by the
parties; or
Page 5 of 7
(ii) upon mutual consent of the respective boards of directors of XX.
XXXXXX and FCC.
ARTICLE VIII
MISCELLANEOUS
9.1 Captions and Headings. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
9.2 No Oral Change. This Agreement and any provisions hereof, may not be
waived, changed, modified or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or, discharge is sought.
9.3 Non-Waiver. Except as other wise expressly provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
such waiver is charged.
9.4 Time of Essence. Time is of the essence of this Agreement and each and
every part hereof.
9.5 Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings and merges any all such prior discussions and/or agreements
herein.
9.6 Choice of Law. This Agreement and its application shall be governed by
the laws of the State of Arizona.
9.7 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
9.8 Notices. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid, and
properly addressed as follows:
XX. XXXXXX Representative:
------------------------
------------------------
------------------------
Page 6 of 7
FCC Representative:
------------------------
------------------------
------------------------
9.9 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives successors and assigns of each of the
parties to this Agreement.
9.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
Closing of this Agreement.
9.11 Brokers. The parties hereto represent that no finder's fee has been
paid or is payable by any party.
9.12 Expenses. Each party will pay its own legal, accounting and any other
out-of-pocket expenses reasonably incurred in connection with this transaction,
whether or not the transaction contemplated hereby is consummated.
9.13 Facsimile Signatures as Originals. Original signatures transmitted by
facsimile communication shall constitute originals for the purpose of validly
executing this Agreement.
AGREED TO AND ACCEPTED as of the date first above written.
Xx Xxxxxx:
By
-------------------------------------
Xx. Xxxxxxx Xxxxxx
Franchise Capital Corporation:
By
-------------------------------------
Xxxxxx X. Xxxxxxx, President & C.E.O.
Page 7 of 7
