-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H9JfHXT50ibri9b6tilmPSAM/bpc0E5u04TO2A/fBlkVFXFt6gweZBR1lLpf6Jlj Dt0NTcRM60IJYbfcAg1Rcg== 0000899243-99-002062.txt : 19991018 0000899243-99-002062.hdr.sgml : 19991018 ACCESSION NUMBER: 0000899243-99-002062 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19991008 EFFECTIVENESS DATE: 19991008 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERENS INDUSTRIES INC CENTRAL INDEX KEY: 0000768216 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 870565948 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-88689 FILM NUMBER: 99725693 BUSINESS ADDRESS: STREET 1: 701 NORTH POST OAK ROAD STREET 2: SUITE 350 CITY: HOUSTON STATE: TX ZIP: 77024 BUSINESS PHONE: 7136827400 MAIL ADDRESS: STREET 1: 5525 S 900 EAST STREET 2: SUITE #10 CITY: SALT LAKE CITY STATE: UT ZIP: 84117 FORMER COMPANY: FORMER CONFORMED NAME: NATIONAL AIR CORP DATE OF NAME CHANGE: 19970521 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on October 8, 1999 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 organization) Identification Number) 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) THOMAS C. PRITCHARD CONSULTING AGREEMENT MANFRED STERNBERG NON-QUALIFIED OPTION AGREEMENT STEPHANIE GUSTAFSON NON-QUALIFIED OPTION AGREEMENT DEBRA TRITT 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 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 - ----------------------------------------------------------------------------------------------------------- Common Stock, par value $.001 per share................. 66,750 $2.625 $175,219 $49 - ----------------------------------------------------------------------------------------------------------- TOTAL $49 ===========================================================================================================
(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 October 7, 1999. 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 50,000 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. II-1 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Any restricted securities to be offered or resold pursuant to this registration statement were issued pursuant to an exemption under Section 4(2) of the Securities Act, as a non-public offering of securities. 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) -- Thomas C. Pritchard Consulting Agreement 10.2(1) -- Manfred Sternberg Non-Qualified Option Agreement 10.3(1) -- Stephanie Gustafson Non-Qualified Option Agreement 10.4(1) -- Debra Tritt 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 II-2 Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (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 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 1st day of October, 1999. 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 October 1, 1999 - ------------------- and Director MARC I. BERENS /s/ Yolana Berens Director October 1, 1999 - ------------------- YOLANA BERENS /s/ William Ranshaw Director October 1, 1999 - -------------------- WILLIAM RANSHAW II-4 EX-5.1 2 OPINION OF BREWER & PRITCHARD, P.C. EXHIBIT 5.1 October 8, 1999 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 66,750 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] EX-10.1 3 CONSULTING AGREEMENT EXHIBIT 10.1 CONSULTING AGREEMENT This Consulting Agreement dated September 20, 1999 ("Agreement") is by and between, BERENS INDUSTRIES, INC., a Nevada corporation ("Company") and THOMAS C. PRITCHARD, P.C., an individual ("Consultant"). W I T N E S S E T H: WHEREAS, Consultant desires to provide certain consulting services to the Company; and WHEREAS, the Company and Consultant desire to set forth in writing the terms and conditions of their agreement; NOW, THEREFORE, in consideration of the premises and the mutual covenants, agreements, and considerations herein contained, the parties hereto agree as follows:: 1. Engagement. Subject to the terms and provisions of this Agreement, the Company hereby affirms the engagement of Consultant, as an independent contractor, to provide general legal services. 2. Compensation. For certain services performed by Consultant for the Company, the Company will issue to Consultant 10,000 shares of common stock of the Company pursuant to a S-8 Registration Statement. 3. Status Reports. At the Company's written request, Consultant shall prepare and submit to the Company a written status report describing the status of any sales of the Company Common Stock sold hereby. 4. Term. The term of this Agreement shall commence on the date herein and shall continue in full force and effect for a period of six months. 5. Miscellaneous. (a) Assignment. All of the terms, provisions and conditions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned or transferred by either party, nor shall any interest herein be assigned, transferred, pledged or hypothecated by either party without the prior written consent of the other party. (b) Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas. (c) Entire Agreement, Amendments and Waivers. This Agreement constitutes the entire agreement of the parties hereto and expressly supersedes all prior and contemporaneous understandings and commitments, whether written or oral, with respect to the subject matter hereof. No variations, modifications, changes or extensions of this Agreement or any other terms hereof shall be binding upon any party hereto unless set forth in a document duly executed by such party or an authorized agent or such party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. BERENS INDUSTRIES, INC. By________________________________________ Name______________________________________ Title_____________________________________ THOMAS C. PRITCHARD ___________________________________________ EX-10.2 4 NONQUALIFIED STOCK OPTION AGREEMENT (STERNBERG) EXHIBIT 10.2 NONQUALIFIED STOCK OPTION AGREEMENT This Nonqualified Stock Option Agreement (this "Agreement") is entered into between National Air Corporation, a Nevada corporation (the "Company"), and Manfred Sternberg (the "Optionee") this ____ day of July, 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 26,750 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 1 Termination Date, provided that this Option may not be exercised with respect to any fractional shares. 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 I above 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 2 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 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 3 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. 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. 4 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/ Manfred Sternberg ------------------------------------- Manfred Sternberg ---------------------------------- 5 EX-10.3 5 NONQUALIFIED STOCK OPTION AGREEMENT (GUSTAFSON) EXHIBIT 10.3 NONQUALIFIED STOCK OPTION AGREEMENT This Nonqualified Stock Option Agreement (this "Agreement") is entered into between National Air Corporation, a Nevada corporation (the "Company"), and Stephanie Gustafson (the "Optionee") this 23/rd/ day of July, 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 20,000 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 1 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. 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 I above 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 2 (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 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, 3 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. 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. 4 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/ Stephanie Gustafson ------------------------------------------ Stephanie Gustafson 5 EX-10.4 6 NONQUALIFIED STOCK OPTION AGREEMENT (TRITT) EXHIBIT 10.4 NONQUALIFIED STOCK OPTION AGREEMENT This Nonqualified Stock Option Agreement (this "Agreement") is entered into between National Air Corporation, a Nevada corporation (the "Company"), and Debra Tritt (the "Optionee") this ____ day of July, 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 26,750 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 1 Termination Date, provided that this Option may not be exercised with respect to any fractional shares. 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 I above 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 2 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 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 3 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. 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. 4 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/ Debra Tritt --------------------------------------- Debra Tritt 5 EX-23.2 7 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS EXHIBIT 23.2 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. October 8, 1999 Houston, Texas -----END PRIVACY-ENHANCED MESSAGE-----