================================================================================
As filed with the Securities and Exchange Commission on January 19, 2000
Registration no. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________________
FORM S-8
Registration Statement
Under the Securities Act of 1933
____________________________________
BERENS INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
NEVADA 87-05065948
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
701 N. Post Oak Road, Suite 350 Marc I. Berens
Houston, Texas 77024 701 N. Post Oak Road, Suite 350
(713) 682-7400 Houston, Texas 77024
(Address, including zip code, and (713) 682-7400
telephone number, including (Name, address, including zip code,
area code, of registrant's and telephone number, including
principal executive offices) area code, of agent for service)
G. JAMIESON BRYAN NON-QUALIFIED OPTION AGREEMENT
SHERONDA HOLMES NON-QUALIFIED OPTION AGREEMENT
KEVIN WILLCUTTS NON-QUALIFIED OPTION AGREEMENT
(Full Title of the Plans)
_________________
copy to:
Thomas C. Pritchard
Brewer & Pritchard, P.C.
1111 Bagby, 24th Floor
Houston, Texas 77002
Phone (713) 209-2950
Fax (713) 659-2430
_________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ------------------------ ------------------ ------------------ ------------------ -------------
<S> <C> <C> <C> <C>
Common Stock, par value
.001 per share. . . . . 60,500 $ 1.00 $ 60,500 $ 16
------------------ ------------------ ------------------ -------------
TOTAL $ 16
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<FN>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the number of shares of
the issuer's Common Stock registered hereunder will be adjusted in the event of stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant
to Rule 457(h), on the basis of the high and low prices of the Common Stock as reported by
the OTC Electronic Bulletin Board on January 14, 2000.
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the company with the SEC are
Incorporated herein by reference:
1. The company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act of 1934, or, either (1) the company's latest
prospectus filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the company's latest fiscal year for which such
statements have been filed, or (2) the company's effective registration
statement on Form 10-SB filed under the Exchange Act containing audited
financial statements for the company's latest fiscal year;
2. All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above; and
3. The description of the common stock that is contained in a
registration statement or amendment thereto filed under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to the registration statement which indicates that
all shares of common stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part thereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Brewer & Pritchard, P.C., counsel to the company, has passed upon the
legality under the law of the State of Nevada, the state in which the company is
incorporated, of the common stock of the company being offered hereby.
Principals of Brewer & Pritchard, P.C. own 4,000 shares of the company's common
stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 78.7502 of the Nevada General Corporation Law allows the Company to
indemnify any person who was or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding by reason of the
fact that he or she is or was a director, officer, employee, or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee, or agent of any corporation, partnership, joint venture,
trust or other enterprise. The Company may advance expenses in connection with
defending any such proceeding, provided the indemnitee undertakes to pay any
amounts if it is later determined that the person was not entitled to be
indemnified by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
II-1
<PAGE>
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration
statement:
EXHIBIT NO. IDENTIFICATION OF EXHIBIT
- ------------ ---------------------------
4.1(2) - Common Stock Specimen
5.1(1) - Opinion Regarding Legality
10.1(1) - G. Jamieson Bryan Non-Qualified Option Agreement
10.2(1) - Sheronda Holmes Non-Qualified Option Agreement
10.3(1) - Kevin Willcutts Non-Qualified Option Agreement
23.1(1) - Consent of Counsel (included in Exhibit 5.1)
23.2(1) - Consent of Ham, Langston, & Brezina, independent public
accountants
_____________________
(1) Filed herewith.
(2) Filed previously on registration statement Form 10-SB SEC File No.0-22711
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
i. To include any prospectus required by Section
10(a)(3) of the Securities Act;
ii. To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low
or high and of the estimated maximum offering
range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement; and
iii. To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i)
and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the
information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or
furnished to the SEC by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration
statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 17th day of January
2000.
BERENS INDUSTRIES, INC.
By: /s/ Marc I. Berens .
------------------------------
MARC I. BERENS, Chief Executive Officer
____________________________
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
- --------- ----- ----
/s/ Marc I. Berens Chief Executive Officer January 17, 2000
- ---------------------- and Director
MARC I. BERENS
/s/ Yolana Berens Director January 17, 2000
- --------------------
YOLANA BERENS
/s/ William Ranshaw Director January 17, 2000
- ----------------------
WILLIAM RANSHAW
II-4
<PAGE>
Exhibit 5.1
January 17, 2000
Mr. Marc Ivan Berens
Berens Industries, Inc.
701 N. Post Oak Road, Suite 350
Houston, Texas 77024
Re: Berens Industries, Inc.
Registration Statement on Form S-8
Gentlemen:
We have represented Berens Industries, Inc., a Nevada corporation
("Company"), in connection with the preparation of a registration statement
filed with the Securities and Exchange Commission on Form S-8 ("Registration
Statement") relating to the proposed issuance of up to 60,500 shares ("Shares")
of the Company's common stock, par value $.001 per share ("Common Stock") upon
the exercise of options issued pursuant to certain agreements ("Plans") attached
as exhibits to the Registration Statement. In this connection, we have examined
originals or copies identified to our satisfaction of such documents, corporate
and other records, certificates, and other papers as we deemed necessary to
examine for purposes of this opinion, including but not limited to the Plans,
the Certificate of Incorporation of the Company, the Bylaws of the Company, and
resolutions of the Board of Directors of the Company.
We are of the opinion that the Shares will be, when issued pursuant to the
Plans, legally issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement.
Very truly yours,
BREWER & PRITCHARD, P.C.
[SIGNATURE OF BREWER & PRITCHARD, P.C. APPEARS HERE]
<PAGE>
Exhibit 10.1
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement (this "Agreement") is entered into
between Berens Industries, Inc., a Nevada corporation (the "Company"), and G.
Jamieson Bryan (the "Optionee") this 28th day of October, 1999. This Agreement
is in consideration of the Optionee's employment with the Company. In
consideration of the mutual promises and covenants made herein, the parties
hereby agree as follows:
1. GRANT OF OPTION. The Company grants to the Optionee an option (this
"Option") to purchase from the Company all or any part of a total of 50,000
shares (collectively, the "Option Shares) of the common stock, par value $0.001
per share, of the Company (the "Common Stock"), at a price of $.01 per share.
The Option is granted as of the date hereof.
2. CHARACTER OF OPTION. This Option is not an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
3. TERM. This Option will expire at the close of business, on July 19,
2004, (the "Option Termination Date").
4. CONDITIONS PRECEDENT. The Company will not issue or deliver any
certificate for Option Shares pursuant to the exercise of this Option prior to
fulfillment of all of the following conditions:
(a) The admission of the Option Shares to listing on all stock
exchanges on which the Common Stock is then listed, unless the Company
determines in its sole discretion that such listing is neither necessary nor
advisable;
(b) The completion of any registration or other qualification of the
sale of the Option Shares under any federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory body that the Company in its sole discretion deems necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any federal
or state governmental agency that the Company in its sole discretion determines
to be necessary or advisable.
5. VESTING. Subject to the provisions of this Agreement, the Option
will vest in its entirety upon execution of this Agreement (all of such fully
vested Option Shares being hereinafter referred to collectively as the "Vested
Shares"). The Optionee shall have the right to exercise this Option with respect
to all Vested Shares at any time and from time to time until the Option
Termination Date, provided that this Option may not be exercised with respect to
any fractional shares.
<PAGE>
6. PROCEDURE FOR EXERCISE. Exercise of this Option or a portion hereof
shall be effected by the Optionee's giving of written notice to the Company at
the offices of the Company located at 701 N. Post Oak Road, Suite 350, Houston,
Texas 77024, and paying the purchase price prescribed in Section Iabove for the
---------
Option Shares to be acquired pursuant to the exercise.
7. PAYMENT OF PURCHASE PRICE. The purchase price for any Option Shares
purchased will be paid at the time of exercise of this Option either (i) in
cash, (ii) by certified or cashier's check, or (iii) in any other form of valid
consideration, as permitted by the Company in its sole discretion at the time of
exercise.
8. ACCELERATION IN CERTAIN EVENTS. Notwithstanding any provision of
this Option Agreement to the contrary, the following provisions will apply:
(a) Mergers and Reorganizations. If the Company or its shareholders
enter into an agreement to dispose of all or substantially all of the assets of
the Company by means of a sale, merger or other reorganization, liquidation or
otherwise in a transaction in which the Company is not the surviving
corporation, this Option will become immediately exercisable with respect to the
full number of shares subject to this Option during the period commencing as of
the date of the agreement to dispose of all or substantially all of the assets
of the Company and ending when the disposition of assets contemplated by that
agreement is consummated; provided, however, that no Option will be immediately
exercisable under this Section on account of any agreement of merger or other
reorganization when the shareholders of the Company immediately before the
consummation of the transaction will own at least fifty percent of the total
combined voting power of all classes of stock entitled to vote of the surviving
entity immediately after the consummation of the transaction. This Option will
not become immediately exercisable if the transaction contemplated in the
agreement is a merger or reorganization in which the Company will survive.
(b) Change in Control. In the event of a change in control of the
Company, this Option will become immediately exercisable. The term "change in
control" for purposes of this Section refers to the acquisition after the
effective date of this Option Agreement of the beneficial ownership of 50% or
more of the outstanding voting securities of the Company by any person or by
persons acting as a group within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than an
acquisition by (i) a person or group meeting the requirements of clauses (i) and
(ii) of Rule 13d-1(b)(1) promulgated under the Exchange Act, or (ii) any
employee pension benefit plan (within the meaning of Section 3(2) of ERISA) of
the Company or of its Subsidiaries (as outlined in Section 424(f) of the Code),
including a trust established pursuant to such plan); provided, however, that no
change in control will be deemed to have occurred (i) if prior to the
acquisition of, or offer to acquire, 50% or more of the voting securities of the
Company, the full Board of Directors of the Company has adopted by not less than
two-thirds vote a resolution specifically approving such acquisition or offer or
(ii) from (A) a transfer of the Company's voting securities by any person who
beneficially owns more than 50% of the Company's outstanding voting securities
on the effective date of this Option (an "Existing Holder") to (i) a member of
the Existing Holder's immediate family (within the meaning of Rule 16a-1(e) of
the Exchange Act) either during the Existing Holder's lifetime or by will or the
laws of descent and distribution; (ii) any trust as to which an Existing Holder
<PAGE>
or a member (or members) of an Existing Holder's immediate family (within the
meaning of Rule 16a-l(e) of the Exchange Act) is the beneficiary; (iii) any
trust as to which an Existing Holder is the settlor with sole power to revoke;
(iv) any entity over which an Existing Holder has the power, directly or
indirectly, to direct or cause the direction of the management and policies of
the entity, whether through the ownership of voting securities, by contract or
otherwise; or (v) any charitable trust. foundation or corporation under Section
501(c)(3) of the Code that is funded by an Existing Holder, or any corporation
or other entity all the voting securities of which are owned by such a
charitable trust, foundation or corporation; or (B) the acquisition of voting
securities of the Corporation by either (i) an Existing Holder or (ii) a person,
trust or other entity described in the foregoing clauses (A)(i)-(v) of this
clause (ii). The term "person" for purposes of this Section refers to an
individual or a corporation. partnership. trust, association joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or any other
form of entity not specifically listed herein.
9. TAX WITHHOLDING.
(a) Condition Precedent. The issuances of Option Shares pursuant to the
exercise of this Option are subject to the condition that if at any time the
Company determines, in its discretion, that the satisfaction of withholding tax
or other withholding liabilities under any federal, state or local law is
necessary or desirable as a condition of, or in connection with such issuances,
then the issuances will not be effective unless the withholding has been
effected or obtained in a manner acceptable to the Company.
(b) Manner of satisfying Withholding Obligation. When the Optionee is
required
to pay to the Company an amount required to be withheld under applicable income
tax laws in connection with the purchase of Option Shares upon exercise of this
Option, such payment may be made (i) in cash, (ii) by check, or (iii) in any
other form of valid consideration, as permitted by the Company in its
discretion.
10. TRANSFERABILITY. This Option shall not be transferable other than
pursuant to a qualified domestic relations order, by will or by the laws of
descent and distribution.
11. ADJUSTMENT. If the outstanding Common Stock is increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities through merger, consolidation, combination, exchange of shares, other
reorganization, recapitalization, reclassification, stock dividend, stock split
or reverse stock split, an appropriate and proportionate adjustment will be made
in the number or kind of shares purchasable under any unexercised portion of
this Option. Any such adjustment will be made without change in the aggregate
purchase price applicable to the unexercised portion of this Option, but with a
corresponding adjustment in the purchase price for each Option Share purchasable
under this Option. The foregoing adjustments and the manner of application of
the foregoing provisions will be determined solely by the Company, and any such
adjustment may provide for the elimination of fractional share interests.
<PAGE>
12. AMENDMENT. This Agreement may be amended by an instrument in
writing signed by both the Company and the Optionee.
13. COMPLIANCE WITH SECURITIES LAWS. Option Shares will not be issued
unless the issuance and delivery of the Option Shares (and the exercise of this
Option, if applicable) compiles with all relevant provisions of federal and
state law, including, without limitation, the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder and the requirements
of any stock exchange upon which the Option Shares may then be listed, and will
be further subject to the approval of counsel for the Company with respect to
such compliance. The Optionee agrees to furnish evidence satisfactory to the
Company, including, without limitation, a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition or otherwise, and a representation that the Option Shares are
being acquired only for investment and without any present intention to sell or
distribute the Option Shares in violation of any federal or state law, rule or
regulation. Further, the Optionee consents to the imposition of a legend on the
certificate representing the Option Shares issued pursuant to the exercise of
this option restricting their transferability as required by law or by this
Section.
<PAGE>
14. MISCELLANEOUS. This Agreement will be construed and enforced in
accordance with the laws of the State of Texas, excluding any principle or
provision thereof that would require application of the laws of any other
jurisdiction, and will he binding upon and inure to the benefit of any successor
or assign of the Company and any executor, administrator, trustee, guarantor or
other legal representative of the Optionee.
THE COMPANY:
NATIONAL AIR CORPORATION
By: /s/ Marc I. Berens
---------------------------------
Marc I. Berens, President
THE OPTIONEE:
/s/ G. Jamieson Bryan
---------------------------------
G. Jamieson Bryan
<PAGE>
Exhibit 10.2
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement (this "Agreement") is entered into
between Berens Industries, Inc., a Nevada corporation (the "Company"), and
Sheronda Holmes (the "Optionee") this 20th day of December, 1999. This Agreement
is in consideration of the Optionee's employment with the Company. In
consideration of the mutual promises and covenants made herein, the parties
hereby agree as follows:
1. GRANT OF OPTION. The Company grants to the Optionee an option (this
"Option") to purchase from the Company all or any part of a total of 500 shares
(collectively, the "Option Shares) of the common stock, par value $0.001 per
share, of the Company (the "Common Stock"), at a price of $.01 per share. The
Option is granted as of the date hereof.
2. CHARACTER OF OPTION. This Option is not an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
3. TERM. This Option will expire at the close of business, on July 19,
2004, (the "Option Termination Date").
4. CONDITIONS PRECEDENT. The Company will not issue or deliver any
certificate for Option Shares pursuant to the exercise of this Option prior to
fulfillment of all of the following conditions:
(a) The admission of the Option Shares to listing on all stock
exchanges on which the Common Stock is then listed, unless the Company
determines in its sole discretion that such listing is neither necessary nor
advisable;
(b) The completion of any registration or other qualification of the
sale of the Option Shares under any federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory body that the Company in its sole discretion deems necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any federal
or state governmental agency that the Company in its sole discretion determines
to be necessary or advisable.
5. VESTING. Subject to the provisions of this Agreement, the Option
will vest in its entirety upon execution of this Agreement (all of such fully
vested Option Shares being hereinafter referred to collectively as the "Vested
Shares"). The Optionee shall have the right to exercise this Option with respect
to all Vested Shares at any time and from time to time until the Option
Termination Date, provided that this Option may not be exercised with respect to
any fractional shares.
<PAGE>
6. PROCEDURE FOR EXERCISE. Exercise of this Option or a portion hereof
shall be effected by the Optionee's giving of written notice to the Company at
the offices of the Company located at 701 N. Post Oak Road, Suite 350, Houston,
Texas 77024, and paying the purchase price prescribed in Section Iabove for the
---------
Option Shares to be acquired pursuant to the exercise.
7. PAYMENT OF PURCHASE PRICE. The purchase price for any Option Shares
purchased will be paid at the time of exercise of this Option either (i) in
cash, (ii) by certified or cashier's check, or (iii) in any other form of valid
consideration, as permitted by the Company in its sole discretion at the time of
exercise.
8. ACCELERATION IN CERTAIN EVENTS. Notwithstanding any provision of
this Option Agreement to the contrary, the following provisions will apply:
(a) Mergers and Reorganizations. If the Company or its shareholders
enter into an agreement to dispose of all or substantially all of the assets of
the Company by means of a sale, merger or other reorganization, liquidation or
otherwise in a transaction in which the Company is not the surviving
corporation, this Option will become immediately exercisable with respect to the
full number of shares subject to this Option during the period commencing as of
the date of the agreement to dispose of all or substantially all of the assets
of the Company and ending when the disposition of assets contemplated by that
agreement is consummated; provided, however, that no Option will be immediately
exercisable under this Section on account of any agreement of merger or other
reorganization when the shareholders of the Company immediately before the
consummation of the transaction will own at least fifty percent of the total
combined voting power of all classes of stock entitled to vote of the surviving
entity immediately after the consummation of the transaction. This Option will
not become immediately exercisable if the transaction contemplated in the
agreement is a merger or reorganization in which the Company will survive.
(b) Change in Control. In the event of a change in control of the
Company, this Option will become immediately exercisable. The term "change in
control" for purposes of this Section refers to the acquisition after the
effective date of this Option Agreement of the beneficial ownership of 50% or
more of the outstanding voting securities of the Company by any person or by
persons acting as a group within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than an
acquisition by (i) a person or group meeting the requirements of clauses (i) and
(ii) of Rule 13d-1(b)(1) promulgated under the Exchange Act, or (ii) any
employee pension benefit plan (within the meaning of Section 3(2) of ERISA) of
the Company or of its Subsidiaries (as outlined in Section 424(f) of the Code),
including a trust established pursuant to such plan); provided, however, that no
change in control will be deemed to have occurred (i) if prior to the
acquisition of, or offer to acquire, 50% or more of the voting securities of the
Company, the full Board of Directors of the Company has adopted by not less than
two-thirds vote a resolution specifically approving such acquisition or offer or
(ii) from (A) a transfer of the Company's voting securities by any person who
beneficially owns more than 50% of the Company's outstanding voting securities
on the effective date of this Option (an "Existing Holder") to (i) a member of
the Existing Holder's immediate family (within the meaning of Rule 16a-1(e) of
the Exchange Act) either during the Existing Holder's lifetime or by will or the
laws of descent and distribution; (ii) any trust as to which an Existing Holder
or a member (or members) of an Existing Holder's immediate family (within the
<PAGE>
meaning of Rule 16a-l(e) of the Exchange Act) is the beneficiary; (iii) any
trust as to which an Existing Holder is the settlor with sole power to revoke;
(iv) any entity over which an Existing Holder has the power, directly or
indirectly, to direct or cause the direction of the management and policies of
the entity, whether through the ownership of voting securities, by contract or
otherwise; or (v) any charitable trust. foundation or corporation under Section
501(c)(3) of the Code that is funded by an Existing Holder, or any corporation
or other entity all the voting securities of which are owned by such a
charitable trust, foundation or corporation; or (B) the acquisition of voting
securities of the Corporation by either (i) an Existing Holder or (ii) a person,
trust or other entity described in the foregoing clauses (A)(i)-(v) of this
clause (ii). The term "person" for purposes of this Section refers to an
individual or a corporation. partnership. trust, association joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or any other
form of entity not specifically listed herein.
9. TAX WITHHOLDING.
(a) Condition Precedent. The issuances of Option Shares pursuant to the
exercise of this Option are subject to the condition that if at any time the
Company determines, in its discretion, that the satisfaction of withholding tax
or other withholding liabilities under any federal, state or local law is
necessary or desirable as a condition of, or in connection with such issuances,
then the issuances will not be effective unless the withholding has been
effected or obtained in a manner acceptable to the Company.
(b) Manner of satisfying Withholding Obligation. When the Optionee is
required
to pay to the Company an amount required to be withheld under applicable income
tax laws in connection with the purchase of Option Shares upon exercise of this
Option, such payment may be made (i) in cash, (ii) by check, or (iii) in any
other form of valid consideration, as permitted by the Company in its
discretion.
10. TRANSFERABILITY. This Option shall not be transferable other than
pursuant to a qualified domestic relations order, by will or by the laws of
descent and distribution.
11. ADJUSTMENT. If the outstanding Common Stock is increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities through merger, consolidation, combination, exchange of shares, other
reorganization, recapitalization, reclassification, stock dividend, stock split
or reverse stock split, an appropriate and proportionate adjustment will be made
in the number or kind of shares purchasable under any unexercised portion of
this Option. Any such adjustment will be made without change in the aggregate
purchase price applicable to the unexercised portion of this Option, but with a
corresponding adjustment in the purchase price for each Option Share purchasable
under this Option. The foregoing adjustments and the manner of application of
the foregoing provisions will be determined solely by the Company, and any such
adjustment may provide for the elimination of fractional share interests.
12. AMENDMENT. This Agreement may be amended by an instrument in
writing signed by both the Company and the Optionee.
<PAGE>
13. COMPLIANCE WITH SECURITIES LAWS. Option Shares will not be issued
unless the issuance and delivery of the Option Shares (and the exercise of this
Option, if applicable) compiles with all relevant provisions of federal and
state law, including, without limitation, the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder and the requirements
of any stock exchange upon which the Option Shares may then be listed, and will
be further subject to the approval of counsel for the Company with respect to
such compliance. The Optionee agrees to furnish evidence satisfactory to the
Company, including, without limitation, a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition or otherwise, and a representation that the Option Shares are
being acquired only for investment and without any present intention to sell or
distribute the Option Shares in violation of any federal or state law, rule or
regulation. Further, the Optionee consents to the imposition of a legend on the
certificate representing the Option Shares issued pursuant to the exercise of
this option restricting their transferability as required by law or by this
Section.
<PAGE>
14. MISCELLANEOUS. This Agreement will be construed and enforced in
accordance with the laws of the State of Texas, excluding any principle or
provision thereof that would require application of the laws of any other
jurisdiction, and will he binding upon and inure to the benefit of any successor
or assign of the Company and any executor, administrator, trustee, guarantor or
other legal representative of the Optionee.
THE COMPANY:
NATIONAL AIR CORPORATION
By: /s/ Marc I. Berens
-------------------------------
Marc I. Berens, President
THE OPTIONEE:
/s/ Sheronda Holmes
-------------------------------
Sheronda Holmes
<PAGE>
Exhibit 10.3
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement (this "Agreement") is entered into
between Berens Industries, Inc., a Nevada corporation (the "Company"), and Kevin
Willcutts (the "Optionee") this 20th day of December, 1999. This Agreement is in
consideration of the Optionee's employment with the Company. In consideration
of the mutual promises and covenants made herein, the parties hereby agree as
follows:
1. GRANT OF OPTION. The Company grants to the Optionee an option (this
"Option") to purchase from the Company all or any part of a total of 10,000
shares (collectively, the "Option Shares) of the common stock, par value $0.001
per share, of the Company (the "Common Stock"), at a price of $.01 per share.
The Option is granted as of the date hereof.
2. CHARACTER OF OPTION. This Option is not an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
3. TERM. This Option will expire at the close of business, on July 19,
2004, (the "Option Termination Date").
4. CONDITIONS PRECEDENT. The Company will not issue or deliver any
certificate for Option Shares pursuant to the exercise of this Option prior to
fulfillment of all of the following conditions:
(a) The admission of the Option Shares to listing on all stock
exchanges on which the Common Stock is then listed, unless the Company
determines in its sole discretion that such listing is neither necessary nor
advisable;
(b) The completion of any registration or other qualification of the
sale of the Option Shares under any federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory body that the Company in its sole discretion deems necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any federal
or state governmental agency that the Company in its sole discretion determines
to be necessary or advisable.
5. VESTING. Subject to the provisions of this Agreement, the Option
will vest in its entirety upon execution of this Agreement (all of such fully
vested Option Shares being hereinafter referred to collectively as the "Vested
Shares"). The Optionee shall have the right to exercise this Option with respect
to all Vested Shares at any time and from time to time until the Option
Termination Date, provided that this Option may not be exercised with respect to
any fractional shares.
<PAGE>
6. PROCEDURE FOR EXERCISE. Exercise of this Option or a portion hereof
shall be effected by the Optionee's giving of written notice to the Company at
the offices of the Company located at 701 N. Post Oak Road, Suite 350, Houston,
Texas 77024, and paying the purchase price prescribed in Section Iabove for the
---------
Option Shares to be acquired pursuant to the exercise.
7. PAYMENT OF PURCHASE PRICE. The purchase price for any Option Shares
purchased will be paid at the time of exercise of this Option either (i) in
cash, (ii) by certified or cashier's check, or (iii) in any other form of valid
consideration, as permitted by the Company in its sole discretion at the time of
exercise.
8. ACCELERATION IN CERTAIN EVENTS. Notwithstanding any provision of
this Option Agreement to the contrary, the following provisions will apply:
(a) Mergers and Reorganizations. If the Company or its shareholders
enter into an agreement to dispose of all or substantially all of the assets of
the Company by means of a sale, merger or other reorganization, liquidation or
otherwise in a transaction in which the Company is not the surviving
corporation, this Option will become immediately exercisable with respect to the
full number of shares subject to this Option during the period commencing as of
the date of the agreement to dispose of all or substantially all of the assets
of the Company and ending when the disposition of assets contemplated by that
agreement is consummated; provided, however, that no Option will be immediately
exercisable under this Section on account of any agreement of merger or other
reorganization when the shareholders of the Company immediately before the
consummation of the transaction will own at least fifty percent of the total
combined voting power of all classes of stock entitled to vote of the surviving
entity immediately after the consummation of the transaction. This Option will
not become immediately exercisable if the transaction contemplated in the
agreement is a merger or reorganization in which the Company will survive.
(b) Change in Control. In the event of a change in control of the
Company, this Option will become immediately exercisable. The term "change in
control" for purposes of this Section refers to the acquisition after the
effective date of this Option Agreement of the beneficial ownership of 50% or
more of the outstanding voting securities of the Company by any person or by
persons acting as a group within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than an
acquisition by (i) a person or group meeting the requirements of clauses (i) and
(ii) of Rule 13d-1(b)(1) promulgated under the Exchange Act, or (ii) any
employee pension benefit plan (within the meaning of Section 3(2) of ERISA) of
the Company or of its Subsidiaries (as outlined in Section 424(f) of the Code),
including a trust established pursuant to such plan); provided, however, that no
change in control will be deemed to have occurred (i) if prior to the
acquisition of, or offer to acquire, 50% or more of the voting securities of the
Company, the full Board of Directors of the Company has adopted by not less than
two-thirds vote a resolution specifically approving such acquisition or offer or
(ii) from (A) a transfer of the Company's voting securities by any person who
beneficially owns more than 50% of the Company's outstanding voting securities
on the effective date of this Option (an "Existing Holder") to (i) a member of
the Existing Holder's immediate family (within the meaning of Rule 16a-1(e) of
the Exchange Act) either during the Existing Holder's lifetime or by will or the
laws of descent and distribution; (ii) any trust as to which an Existing Holder
or a member (or members) of an Existing Holder's immediate family (within the
meaning of Rule 16a-l(e) of the Exchange Act) is the beneficiary; (iii) any
<PAGE>
trust as to which an Existing Holder is the settlor with sole power to revoke;
(iv) any entity over which an Existing Holder has the power, directly or
indirectly, to direct or cause the direction of the management and policies of
the entity, whether through the ownership of voting securities, by contract or
otherwise; or (v) any charitable trust. foundation or corporation under Section
501(c)(3) of the Code that is funded by an Existing Holder, or any corporation
or other entity all the voting securities of which are owned by such a
charitable trust, foundation or corporation; or (B) the acquisition of voting
securities of the Corporation by either (i) an Existing Holder or (ii) a person,
trust or other entity described in the foregoing clauses (A)(i)-(v) of this
clause (ii). The term "person" for purposes of this Section refers to an
individual or a corporation. partnership. trust, association joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or any other
form of entity not specifically listed herein.
9. TAX WITHHOLDING.
(a) Condition Precedent. The issuances of Option Shares pursuant to the
exercise of this Option are subject to the condition that if at any time the
Company determines, in its discretion, that the satisfaction of withholding tax
or other withholding liabilities under any federal, state or local law is
necessary or desirable as a condition of, or in connection with such issuances,
then the issuances will not be effective unless the withholding has been
effected or obtained in a manner acceptable to the Company.
(b) Manner of satisfying Withholding Obligation. When the Optionee is
required
to pay to the Company an amount required to be withheld under applicable income
tax laws in connection with the purchase of Option Shares upon exercise of this
Option, such payment may be made (i) in cash, (ii) by check, or (iii) in any
other form of valid consideration, as permitted by the Company in its
discretion.
10. TRANSFERABILITY. This Option shall not be transferable other than
pursuant to a qualified domestic relations order, by will or by the laws of
descent and distribution.
11. ADJUSTMENT. If the outstanding Common Stock is increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities through merger, consolidation, combination, exchange of shares, other
reorganization, recapitalization, reclassification, stock dividend, stock split
or reverse stock split, an appropriate and proportionate adjustment will be made
in the number or kind of shares purchasable under any unexercised portion of
this Option. Any such adjustment will be made without change in the aggregate
purchase price applicable to the unexercised portion of this Option, but with a
corresponding adjustment in the purchase price for each Option Share purchasable
under this Option. The foregoing adjustments and the manner of application of
the foregoing provisions will be determined solely by the Company, and any such
adjustment may provide for the elimination of fractional share interests.
<PAGE>
12. AMENDMENT. This Agreement may be amended by an instrument in
writing signed by both the Company and the Optionee.
13. COMPLIANCE WITH SECURITIES LAWS. Option Shares will not be issued
unless the issuance and delivery of the Option Shares (and the exercise of this
Option, if applicable) compiles with all relevant provisions of federal and
state law, including, without limitation, the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder and the requirements
of any stock exchange upon which the Option Shares may then be listed, and will
be further subject to the approval of counsel for the Company with respect to
such compliance. The Optionee agrees to furnish evidence satisfactory to the
Company, including, without limitation, a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition or otherwise, and a representation that the Option Shares are
being acquired only for investment and without any present intention to sell or
distribute the Option Shares in violation of any federal or state law, rule or
regulation. Further, the Optionee consents to the imposition of a legend on the
certificate representing the Option Shares issued pursuant to the exercise of
this option restricting their transferability as required by law or by this
Section.
<PAGE>
14. MISCELLANEOUS. This Agreement will be construed and enforced in
accordance with the laws of the State of Texas, excluding any principle or
provision thereof that would require application of the laws of any other
jurisdiction, and will he binding upon and inure to the benefit of any successor
or assign of the Company and any executor, administrator, trustee, guarantor or
other legal representative of the Optionee.
THE COMPANY:
NATIONAL AIR CORPORATION
By: /s/ Marc I. Berens
---------------------------------
Marc I. Berens, President
THE OPTIONEE:
/s/ Kevin Willcutts
---------------------------------
Kevin Willcutts
<PAGE>
HAM,
LANGSTON &
BREZINA, L.L.P.
Certified Public Accountants
- --------------------------------------------------------------------------------
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
Berens Industries, Inc.
We consent to the use of our Report dated August 25, 1999, relating to the
financial statements of BerensGallery.com, Inc. as of June 15, 1999 incorporated
by reference herein.
/s/ Ham, Langston & Brezina, L.L.P.
January 17, 2000
Houston, Texas
<PAGE>
