ITEM 1
THE FRANCHISOR, AND ANY
PARENTS, PREDECESSORS AND AFFILIATES
The Franchisor
FreshBerry Franchise System,
LLC ("we", "us" or "FreshBerry ") is the
Franchisor and maintains its principal place of business at 8801 S. Yale, Suite
400, Tulsa, Oklahoma 74137. We were formed as a limited liability company in Oklahoma on April 17, 2007.
FreshBerry Franchise System,
LLC is a franchising company which promotes and sells franchises for the
operation of units known as "FreshBerry" ("Units" or
"Franchised Business"). We will begin offering franchises in mid-2007
and do not offer franchises in any other line of business. We do not own or
operate a business of the type being franchised.
Our agents for service of process are listed in Exhibit
I.
Our Parent, Affiliates and
Predecessors
We have no predecessors.
Our parent is Beautiful Brands
International, LLC, an Oklahoma limited liability company formed on February
21, 2007 and located at 8801 S. Yale, Suite 400, Tulsa, Oklahoma 74137. It is a non-operating holding company, the shares of which are owned by the founders of
Camille''s, and on February 21, 2007, it acquired 100% of the stock of each
franchisor brand: FreshBerry Franchise System, LLC, Camille''s Franchise System
LLC and Coney Beach Franchise System, LLC. It does not offer franchises in this
or any other line of business and does not operate a business of the type being
franchised. Our parent will not provide any products or services to our franchisees,
nor will it guaranty our performance under our Franchise Agreements.
We have three affiliates:
Camille''s Franchise System, L.L.C. was the franchisor of the "Camille''s
Sidewalk Caf�" restaurant concept. It was formed on February 3, 2000 and franchising
of Camille''s Sidewalk Caf� restaurants was turned over to them by its
predecessor. On January 2, 2002 it elected to change from a limited liability
company, Camille''s Franchise System, L.L.C, to a corporation, Camille''s
Franchise System, Inc. ("CFS"), for tax purposes. CFS did business
under the names "Camille''s Sidewalk Caf�" and "Camille''s Franchise
System" and none other. On February 21, 2007, CFS was dissolved and all
franchising activities of the Camille''s Sidewalk Caf� restaurants were turned over
to Camille''s Franchise System, LLC. The restaurants offered by this affiliate
feature wraps, sandwiches, baked goods, gourmet coffees, smoothies and other
beverages on a dine-in, take-out and delivery basis. Camille''s Franchise
System, LLC and its predecessors have offered franchises since January 1999.
Camille''s Franchise System, LLC does not offer franchises in any other line of
business.
Coney Beach Franchise System, LLC is
the franchisor of the "Coney Beach" restaurant concept. It maintains
its principal place of business at 8801 S. Yale, Suite 400, Tulsa, Oklahoma 74137. It was formed in Oklahoma on February 21, 2007. The restaurants offered by
this affiliate feature a specialized menu that includes such things as, gourmet
hot dogs, "coney" dogs, bratwurst, polish sausages, gourmet burgers,
sandwiches, breakfast sandwiches, chili, soups, salads, fries, ice cream and
other desserts, beer and other beverages, as well as providing catering and
delivery services. It began offering franchises in early 2007 and does not
offer franchises in any other line of business and does not operate a business
of the type being franchised.
FreshBerry, Inc. is an Oklahoma corporation incorporated on April 17, 2007. It maintains its principal place of
business at 8801 S. Yale, Suite 400, Tulsa, Oklahoma 74137. It will own and
operate the first FreshBerry Unit in Tulsa, Oklahoma, which is scheduled to
open in Summer 2007. FreshBerry, Inc. will not offer franchises in this or any
other line of business.
The Franchise Offered
If we approve your application
to become a franchisee, you will sign a franchise agreement ("Franchise
Agreement"). Under a Franchise Agreement, we will grant you the right, and
you will accept the responsibility, to establish and operate a Unit at an
agreed upon location (the "Approved Location"). (In this Disclosure
Document, we use the term "you" to refer to individuals,
partnerships, corporations and limited liability companies, and the direct and
indirect owners of partnerships, corporations and limited liability companies.)
We may also offer area
development agreements ("Area Development Agreements") to qualified
individuals, corporations, partnerships and limited liability companies
("Area Developer") in the United States. If you sign an Area
Development Agreement, we will grant you the right, and you will accept the
responsibility, to establish an agreed-upon number of Units within an
agreed-upon designated area (the "Exclusive Area"), under an
agreed-upon timetable (the "Minimum Performance Schedule"). Each Unit
will be constructed and operated under a separate Franchise Agreement. The
Franchise Agreement for the first Unit developed under the Area Development
Agreement will be in the form attached to the Area Development Agreement. The
Franchise Agreement for each additional Unit developed will be in the form of
the Franchise Agreement we generally offer to new franchisees at that time.
From time to time we will enter
into franchise agreements, area development agreements and other similar
arrangements in which a franchisee or area developer will open and operate
Units at public transportation facilities, department stores, hardware stores,
service station/convenience stores, toll roads, airports, military bases,
shopping malls, and other non-traditional settings.
We also offer qualified
applicants the right to become a "FreshBerry" development agent
("Development Agent"), within a defined geographic area (the
"Development Area"). If you qualify to serve as a Development Agent,
you will sign our Development Agent Agreement ("DAA") which is
attached to this Disclosure Document as Exhibit 4410. The Development Agent
will be advertising for new franchisees on our behalf, developing and assisting
franchisees of ours who are operating within the Development Area, and
utilizing our business systems, formats, methods, specifications, standards,
operating procedures, operating assistance, and Proprietary Marks. The new
franchisee will enter into an individual Franchise Agreement with us and not
the Development Agent. The Development Agent must own a minimum of two
"FreshBerry" Units in the Development Area.
The System
We have developed and own a unique
system for Unit operation (the "System"). The Units feature a
specialized menu including, among other things, Natural Frozen Yogurt with
fresh fruits, cereals, chocolates, candies and other toppings, smoothies,
coffee, and other beverages on a dine-in, take�out, catering and delivery
basis. The System''s distinguishing characteristics include distinctive exterior
and interior design, decor, color scheme and furnishings; uniform standards,
specifications and procedures for operations; quality and uniformity of
products and services offered; procedures for management and inventory control;
training and assistance; and advertising and promotional programs, all of which
may be periodically changed, improved and further developed by us.
The System is identified by the
service mark "FreshBerry Natural Frozen Yogurt" (see Item 13), and
any other trade names, service marks and trademarks that we may designate
otherwise in writing for use with the System (the "Proprietary
Marks"). The Proprietary Marks are owned by our owner and affiliate
Beautiful Brands International, Inc., which has licensed them to us so that we
may sub-license them to our franchisees. You must conduct the Franchised
Business according to our Confidential Operating Manual (the "Manual"),
a copy of which we will lend to you for the term of the Franchise Agreement.
You may offer only those services and sell only those items and products that
we specify or approve.
A Unit is typically located in
one of the following types of settings: a food court in a shopping mall, an
in-line shopping center, or an in-line urban unit. A typical Unit requires a
site between 500 to 1,000 square feet in size.
Market and Competition
You will offer your products to
the general public. You can expect to compete in your market with locally owned
units, as well as with national and regional Unit chains. The market for
Natural Frozen Yogurt is well established and very highly competitive. Natural
Frozen Yogurt units compete on the basis of factors such as price, service,
Unit location and food quality. These businesses are often affected by other
factors as well, such as changes in consumer taste, economic conditions,
population and travel patterns. To the extent your Unit may be located in a
non-traditional setting as described above, or that your Unit is located near
another Unit, you may appear to or actually compete with other FreshBerry
Units.
Industry Specific
Regulations
The Restaurant industry is
heavily regulated. Many of the laws, rules and regulations that apply to
business generally, such as the Americans With Disabilities Act, Federal Wage
and Hour Laws and the Occupational Safety and Health Act, also apply to Units.
However, other laws, rules and regulations have particular applicability to
Units.
The U.S. Food and Drug
Administration, the U.S. Department of Agriculture and state and local health
departments administer and enforce laws and regulations that govern food
preparation and service and Unit sanitary conditions. State and local agencies
inspect units to ensure that they comply with these laws and regulations.
The federal Clean Air Act and
various implementing state laws require certain state and local areas to meet
national air quality standards limiting emissions of ozone, carbon monoxide and
particulate matters, including caps on emissions from commercial food
preparation. Some areas have also adopted or are considering proposals that
would regulate indoor air quality.
The United States enacted the
"Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001" (the "USA Patriot
Act"). We are required to comply with the USA Patriot Act. To help us
comply with the USA Patriot Act, we ask you in the Franchise Agreement to
confirm for us that neither you nor your directors, officers, shareholders,
partners, members, employees, or agents are suspected terrorists or persons
associated with suspected terrorists or are under investigation by the U.S. government for criminal activity. You may review the Patriot Act and related
regulations at:
http://www.treasury.gov/offices/enforcement/ofac/sdn
You must comply with all local,
state and federal laws that apply to your Unit operations, including health,
sanitation, no smoking, EEOC, OSHA, discrimination, employment, and sexual
harassment laws. The Americans with Disabilities Act of 1990 requires readily
accessible accommodations for disabled people and may affect your building
construction, site design, entrance ramps, doors, seating, bathrooms, drinking
facilities, etc. You must also obtain real estate permits, licenses and
operational licenses. There may be other laws applicable to your business and
we urge you to make further inquiries about these laws.
You should consider these laws and regulations when
evaluating your purchase of a franchise.
Development Agent Program
The sale of franchises is
governed by rules enacted by the Federal Trade Commission ("FTC"), 16
C.F.R. �� 436.1 et seq. (the "FTC Rule"). You must comply with the
disclosure requirements required by the FTC Rule. Further, in the states of
California, Hawaii, Illinois, Indiana, Maryland, Minnesota, New York, North
Dakota, Rhode Island, South Dakota, Virginia, Washington and Wisconsin we are
required to register the Disclosure Document before the offer or sale of any
franchise. The Disclosure Document must be registered with the various
authorities before the offer or sale of any franchise in that particular state,
and the States of Illinois, New York, Washington and California require that
you register as a subfranchisor (see Items 6 and 7). Other states may require
you to register as a franchise broker or subfranchisor. We shall provide you,
at no cost to you, with your initial supply of copies of our applicable
Disclosure Document. Additional Disclosure Documents shall be provided at our
cost of production, charged back to you.
In California, Illinois and Washington, when you submit your registration as a subfranchisor, you will be
required to submit your own Disclosure Document, including your own financial
statements. You must maintain these registrations until you have satisfied your
development obligations on the Development Schedule, attached as Exhibit G to
the DAA. You will not need to maintain these registrations if you are not
actively selling franchises for us.
