Aero Performance Products Inc (fka AERP)

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FCCN -- Franchise Capital Corp.
Com ($0.0001)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


FORM 8-K


CURRENT REPORT


Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934


Date of Report (Date of earliest event reported) September 12, 2006


Commission File Number: 333-72392




FRANCHISE CAPITAL CORPORATION

(Exact name of registrant as specified in its charter)

Nevada

(State or other jurisdiction of

incorporation or organization)




98-0353403

(IRS Employer Identification No.)

43180 Business Park Drive, Suite 202

Temecula, CA 92590

(Address of principal executive offices)

[phone]

(Registrant’s telephone number)


ITEM 2.01 ACQUISITION OR DISPOSITION OF ASSETS


On September 6, 2006, the Board of Directors of Franchise Capital Corporation approved the transfer of assets through a Transfer Agreement with Roger Enfield. The Transfer Agreement was consummated on September 12, 2006. The property transferred was Franchise Capital Corporation’s 72.5% interest in Comstock Jake’s Franchise Company, LLC and 100% interest in Kirby Foo’s Franchise Company, LLC.


Pursuant to the terms of the Transfer Agreement, Robert Enfield agrees to acquire Franchise Capital Corporation’s interest and the Concepts from Franchise Capital Corporation, in exchange for the assumption of all related liabilities of the Concepts which include notes payables to Roger Enfield totaling $100,000. A copy of the Transfer Agreement is filed as Exhibit 10.1 to this report.



ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICER



On September 6, 2006, the Company accepted the resignations of Robert Madia and Donald Schwall from the Board of Directors. At this time, no one has been chosen to fill the vacancies left by the resignation of Mr. Madia and Mr. Schwall.




On September 12, 2006, the Company accepted the resignation of Edward Heisler as the Company’s Chief Executive Officer, President, Chief Compliance Officer, Chief Financial Officer and Chairman of the Board of Directors. Effective as of the same date to fill the vacancies created by the resignation of Edward Heisler, the Company’s remaining board member, Robert McCoy, appointed Steven R. Peacock as the Company’s Interim Chief Executive Officer, Interim President, Interim Chief Compliance Officer, and Interim Chief Financial Officer. Also, on this date, to fill the vacancy created by the resignation of Edward Heisler, Robert McCoy was appointed Chairman of the Board of Directors. The Board of Directors now consists of one independent director, Robert McCoy.



Biographical and Other Information Regarding Steven R. Peacock



Steven R. Peacock has over thirty years of experience in seeking out and identifying emerging growth investment opportunities, both startup companies and work out assignments and is skilled at analyzing management structure and setting up programs for raising capital. He has working knowledge of taking companies through the process of becoming publicly traded, as well as assistance with strategic planning, corporate communications including shareholder relations and internet marketing as well as an extensive background in SEC requirements and filings utilizing broad network of legal, accounting, insurance, Internet technology and public relations affiliates. In addition to his work with and in publicly traded companies, Mr. Peacock has a background in the real estate development industry and in minor league professional sports development, primarily soccer, in both American and European venues. Mr. Peacock has an extensive operating knowledge of the Business Development Company process, having operated the first BDC on the west coast from 1998 to 2000. From 2001 to 2003, Mr. Peacock acted as a consultant for Peak Solutions, a firm offering a variety of consulting, management and financing services to the small business community, both public and private. From 2004 to 2005, Mr. Peacock served as a member of the Board of Directors of BDC Capital, Inc. and as Secretary, Chief Operating Officer and a member of the Board of Directors of CLX Investment Company. Mr. Peacock also served as Chief Executive Officer and Chief Financial Officer of Entertainment Capital Corporation from 2005 to 2006. From 2004 to present, Mr. Peacock has served as managing partner of Javelin Advisory Group, Inc., a business consulting company located in Temecula, California with the core focus of assisting businesses with a number of vital services, which include bringing businesses into compliance with SEC requirements, assisting in the raising of necessary capital, evaluating potential acquisitions and providing management expertise.



Compensation agreement with Steven R. Peacock



The Company has not entered into an employment agreement with Mr. Peacock.



ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS




Exhibit Number






Description

10.1





Transfer Agreement between Franchise Capital Corporation and Roger Enfield.






SIGNATURES




Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned here unto duly authorized.




Date: September 18, 2006


Franchise Capital Corporation


By: /s/ Steven R. Peacock

Steven R. Peacock, Interim Chief Executive Officer








EXHIBIT 10.1


BETWEEN

ROGER ENFIELD

CREDITOR

AND

FRANCHISE CAPITAL CORPORATION

A NEVADA PUBLIC CORPORATION


AGREEMENT, made this 12 th day of September 2006, by and between Franchise Capital Corporation (“FCC”) and Roger Enfield (“ENFIELD”).


RECITALS


WHEREAS, FCC is the managing member and 72.5% owner in Comstock Jake’s Franchise Company, LLC, and the managing member and 100% owner of Kirby Foo’s Franchise Company, LLC which are considered portfolio companies of FCC.


WHEREAS, the Restaurants operate concepts (Concepts) Comstock Jake’s ® and Kirby Foo’s Asian Grill ® which offer to the public franchise restaurant concepts. The Concepts include, among other things: all assets, including specific trademarks or service marks, including without limitation, trademarks, logos and related commercial symbols and slogans, and recipes and related liabilities.


WHEREAS, other third parties, as individuals and entities, are owners of the remaining membership interests in the Concepts and are as listed in Exhibit B.


WHEREAS, ENFIELD agrees to acquire FCC’s interest and the Concepts from FCC, in exchange for the assumption of all related liabilities of the Concepts which include notes payables to ENFIELD totaling $100,000, as listed on Exhibit A, consistent with the following terms.


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 ENFIELD that:


1.1 FCC will transfer to ENFIELD its manager positions and ownership in each of the Concepts including, without limitation, all hard assets including company owned and operated stores, specific trademarks or service marks, including without limitation, trademarks, logos and related commercial symbols and slogans, and recipes in exchange for the assumption of all related liabilities which include notes payables to ENFIELD totaling $100,000 as listed on Exhibit A.





1.2 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.


1.3 Concepts Organization. The Concepts are LLC’s duly organized, validly existing and in good standing under the laws of Arizona, have all necessary corporate powers to own their property and to carry on their business as now owned and operated by them, and are duly qualified to do business and are in good standing in each of the states where their business requires qualification.


1.4 Capital. Management of FCC owns control of the Concepts and therefore has 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 the Concepts.


1.5 Financial Statements. The most recent financial statements of the Concepts are attached as Exhibit A. The financial statements have been prepared in accordance with generally accepted accounting principles and practices consistently followed by the Concepts 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.


1.6 Investigation of Financial Condition. Without in any manner reducing or otherwise mitigating the representations contained herein, ENFIELD and/or its attorneys shall have the opportunity to meet with the accountants and attorneys to discuss the financial condition of the Concepts. FCC shall make available to ENFIELD and/or its attorney all books and records of the Concepts, once reasonable notice of such request has been given.


1.7 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.


1.8 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.





1.9 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.


1.10 Good Title. Other than as described in Exhibit A, the Concepts have good and marketable title to all of its property free and clear of any liens, claims and encumbrances of any nature, form or description.


1.11 Indemnification. FCC and the Concepts agrees to defend and hold ENFIELD harmless against and in respect of 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 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 ENFIELD


ENFIELD hereby represents and warrants to FCC that:



2.1 ENFIELD will acquire FCC’s position in the Concepts including, without limitation, all hard assets including company owned and operated stores, specific trademarks or service marks, including without limitation, trademarks, logos and related commercial symbols and slogans, and recipes in exchange for the assumption of all related liabilities which include notes payables totaling $100,000, as listed on Exhibit A.


2.2 Financial Ability. ENFIELD has the necessary wherewithal to complete this agreement through its legal counsel.


2.3 Authority. ENFIELD has authorized the execution of this Agreement and the consummation of transactions contemplated herein through its legal counsel. ENFIELD’s 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 ENFIELD, and is enforceable in accordance with its terms and conditions.




2.4 Ability to Carry Out Obligations. The execution and delivery of this Agreement by ENFIELD and the performance by ENFIELD 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 ENFIELD 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 ENFIELD, or (c) any event that would result in the creation or imposition of any lien, charge, or encumbrance on any asset of ENFIELD.


2.5 Full Disclosure. None of the representations and warranties made by ENFIELD herein, or in any exhibit, certificate or memorandum furnished or to be furnished by ENFIELD, or on its behalf, contains or will contain any untrue statement of material fact, or omit any material fact the omission of which would be misleading.



2.6 Indemnification. ENFIELD agrees to defend and hold FCC and the Concepts 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 ENFIELD to perform any of its respective representations, warranties, covenants and agreements in this Agreement or in any exhibit or other instrument furnished or to be furnished by ENFIELD under this Agreement.


ARTICLE III


COVENANTS



3.1 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 the Concepts for the purpose of examining same.


3.2 Conduct of Business. Prior to the Closing, the Concepts shall conduct their business in the normal course and FCC, and the Restaurants, shall not sell, pledge or assign any assets without the prior written consent of ENFIELD. Neither ENFIELD nor the Concepts shall amend their articles of incorporation or Bylaws, declare dividends, redeem or sell stock or other securities, incur additional or newly-funded liabilities, acquire or dispose of fixed assets or settle or discharge any balance sheet receivable other than in the normal course of business.


3.3 Required Corporate Action by ENFIELD. ENFIELD and its officers and directors shall cause a meeting to be held as soon as practicable for the purpose of voting on the approval of this Agreement.


ARTICLE IV



CONDITIONS PRECEDENT TO ENFIELD'S PERFORMANCE


4.1 Conditions. ENFIELD's obligations hereunder shall be subject to the satisfaction, at or before the Closing, of all the conditions set forth in this Article IV. ENFIELD 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 ENFIELD of any other condition of or any of ENFIELD's 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.


4.2 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.


4.3 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 ENFIELD 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


5.1 Conditions. FCC obligations hereunder shall be subject to the satisfaction, at or before the Closing, of all the conditions set forth in this Article V. 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 or remedies, at law or in equity, if ENFIELD shall be in default of any of their representations, warranties, or covenants under this Agreement.


5.2 ENFIELD Performance. ENFIELD 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 ENFIELD in this Agreement or in any written statement that shall be delivered to FCC by ENFIELD under this Agreement shall be true and accurate on and as of the Closing Date as though made at that time.


ARTICLE VI


CLOSING


6.1 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 ENFIELD:


ENFIELD will acquire FCC’s position in the Concepts including, without limitation, all hard assets including company owned and operated stores, specific trademarks or service marks, including without limitation, trademarks, logos and related commercial symbols and slogans, and recipes in exchange for the assumption of all related liabilities which include notes payables to ENFIELD totaling $100,000, as listed on Exhibit A.


By FCC:


FCC will transfer to ENFIELD its manager positions and ownership in each of the Concepts including, without limitation, all hard assets including company owned and operated stores, specific trademarks or service marks, including without limitation, trademarks, logos and related commercial symbols and slogans, and recipes in exchange for the assumption of all related liabilities which include notes payables to ENFIELD totaling $100,000 as listed on Exhibit A.


ARTICLE VII


REMEDIES


7.1 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.


7.2 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


(ii) upon mutual consent of the respective boards of directors of ENFIELD and FCC.


ARTICLE VIII


MISCELLANEOUS




8.1 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.


8.2 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.


8.3 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.


8.4 Time of Essence. Time is of the essence of this Agreement and each and every part hereof.


8.5 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.


8.6 Choice of Law. This Agreement and its application shall be governed by the laws of the State of Arizona.


8.7 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.


8.8 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:





ENFIELD Representative:


Roger Enfield

25435 Spring Creek

Sun Lakes, AZ 85248




FCC Representative:

Edward C. Heisler

Franchise Capital Corporation

43180 Business Park Drive Suite 202

Temecula, CA 92590




8.9 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.


8.10 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.


8.11 Brokers. The parties hereto represent that no finder's fee has been paid or is payable by any party.


8.12 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.


8.13 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.



Roger Enfield:



By: /s/ Roger Enfield

Roger Enfield





Franchise Capital Corporation:



By: /s/ Edward C. Heisler

Edward C. Heisler, President & C.E.O.











Exhibit A


Financial Statements of the Restaurants






















Comstock Jakes Franchise Company, LLC Financial Statements



























Kirby Foo’s Franchise Company, LLC Financial Statements

















Exhibit B


Third Party Members to the Restaurants



Comstock Jake’s Franchise Company, LLC –


Alexis Group, LLC – 25% Owner


Roger Enfield – 2.5% Owner




Kirby Foo’s Franchise Company, LLC –


No third party owners










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