-----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, E8GrQTmh3MHFV74W0DEtKyf759Jvq27U5T2n3IjUlIrkQv2sGAvs311gWfi5/Ze2 xhd3RwLj5+GoYH+JJVQCxQ== 0001015402-01-501947.txt : 20010730 0001015402-01-501947.hdr.sgml : 20010730 ACCESSION NUMBER: 0001015402-01-501947 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20010723 ITEM INFORMATION: ITEM INFORMATION: ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20010727 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERENS INDUSTRIES INC CENTRAL INDEX KEY: 0000768216 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 870565948 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-22711 FILM NUMBER: 1690202 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 8-K 1 doc1.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): July 23, 2001 BERENS INDUSTRIES, INC. (Exact name of registrant as specified in its charter) NEVADA 0-22711 87-05065948 (State or other jurisdiction (Commission File (IRS Employer or incorporation) Number) Identification No.) 701 North Post Oak Rd., Suite 630 Houston, Texas 77024 (Address of principal executive offices, including zip code) Registrant's telephone number, including area code 713-682-7400 Items 1. & 2. Change in Control of Registrant and Acquisition or Disposition Of Assets On July 23, 2001, we entered into a Stock Exchange Agreement with the shareholders of Solis Communications, Inc. Pursuant to the Stock Exchange Agreement, we acquired all of the issued and outstanding shares of Solis Communication, which became our wholly-owned subsidiary. In exchange, we issued an aggregate of 600 shares of our new Series A Convertible Non-Redeemable Preferred Stock to the three shareholders of Solis, who are Robert Davis, Jeff Olexa and Manfred Sternberg. The Series A Preferred Stock is immediately convertible into our common stock. The Series A Preferred Stock has full voting power for the equivalent number of shares of common stock into which it is convertible. On a fully converted basis, the former shareholders of Solis beneficially own an aggregate of approximately 140,000,000 shares of our common stock, or approximately 88% of our common stock. Each of the three former shareholders of Solis directly own 200 shares of our Series A Preferred Stock at this time. We do not presently have enough authorized shares of common stock to convert all of the Series A Preferred Stock. Therefore, we intend to either have a shareholder meeting to reverse split our common stock on a one for five basis (1:5 reverse split) or to file with the Securities and Exchange Commission and deliver to our shareholders the appropriate Information Statement pursuant to Section 14C of the Securities Exchange Act of 1934. In additon, in connection with such a shareholder meeting or shareholder consent, we anticipate the selection of a total of four directors (including our two present directors, Jeffrey Hansen and Robert Davis), the changing of our name to Crescent Communications, Inc., and retaining and ratifying the selection of Ham, Langston & Brezina as our independent auditors for the year ending December 31, 2001. Our Board of Directors appointed Robert Davis as a new Director, and Marc Ivan Berens resigned as a Director as a condition of the Stock Exchange Agreement. Our Board presently consists of Jeffrey Hansen and Robert Davis. At the time of the Stock Exchange Agreement, we entered into a Stock Redemption Agreement with Yolana Partnership, Ltd. ("Yolana"), one of our significant shareholders, whereby Yolana has returned to us for cancellation 7,000,000 shares of our common stock. In addition, Yolana signed a one-year lock-up letter on another 7,000,000 of our shares that it owns. We also entered into an Escrow Agreement with Yolana whereby Yolana has escrowed 2,000,000 of our shares that it owns. Pursuant to the terms of the Escrow Agreement, if we receive an aggregate of $150,000 from certain types of financings by January 10, 2002, then the escrowed shares will be returned to Yolana. If we do not receive $150,000 then Yolana may contribute the difference to us and receive the escrowed shares. If we do not receive the $150,000 or Yolana does not contribute the difference by the end of the escrow period then we will take possession of the escrowed shares for cancellation. We also entered into an Option and Distribution Agreement with the former shareholders of Solis and Yolana which provides that we may, in the future, under certain circumstances, including raising an additional $600,000, undertake the spin off of our Artmovement.com, Inc. subsidiary. If we do undertake a spin off of Artmovement.com the former shareholders of Solis have agreed, assuming that Yolana pays for the costs related to the spin off, including any costs of registration, to sell the shares which they would receive from the spin off to Yolana. Solis Communication, Inc. is a Texas Corporation that is in the co-location hosting and connectivity systems business. Solis was originally founded by Robert Davis to capitalize on the telecommunications' industry economic downturn by providing affordable co-location facilities to Internet Service Providers. Item 5. Other Biographies of our present Directors and Executive Officers. ------------------------------------------------------------------- Robert Davis, age 43, has been a Director since July 2001. Mr. Davis received a BBA in Finance from Texas A&M University in 1980. Mr. Davis is also involved in the energy industry having founded several successful companies, including Upland Energy, Inc. in 1985, MPH Production Co. in 1988, and. Laguna Rig Service, Inc. in 1999. Mr. Davis has been the President of Upland Energy, Inc. since its incorporation and has primarily been involved in the oil and gas business since that time. Our Board has appointed Manfred Sternberg as our Chief Executive Officer, Chief Financial Officer, Treasurer and Secretary. Mr. Sternberg, age 40, is a graduate of Tulane University and Louisiana State University School of Law. Mr. Sternberg is licensed to practice law in Texas and Louisiana and is Board Certified in Consumer Law by the Texas Board of Legal Specialization. He has been engaged in the general practice of law since 1987. He has been primarily engaged in civil litigation and providing general counsel to several small companies in the Houston area. He has worked for his own law firm for the last ten years. Mr. Sternberg was the Chief Executive Officer of Crescent Services Corp. in January 2001, when an involuntary bankruptcy proceeding under Chapter 7 of the Bankruptcy Code was commenced against Crescent Services Corp. in a case styled In re: Crescent Services, Inc., Number 01-30189-H4-11, U.S. Bankruptcy Court, Southern District of Texas. Shortly thereafter, this was converted into a Chapter 11 debtor-in-possession proceeding. Manfred Sternberg was the Chief Executive Officer, Director and sole shareholder of Crescent. In July 2001, we purchased certain assets of Crescent for the cash sum of $150,000. Crescent remains in bankruptcy at this time. Our Board also has appointed Jeff Olexa as our President. Mr. Olexa, age 41, has 17 years experience in technical and consultative selling in the telecommunications and internet industries. Prior to the purchase by Berens of the Crescent Services Corp. operating company, Mr. Olexa had been employed by Crescent Services Corp since March 1999 in varying capacities, and most recently as President. Between 1990 and 1999, he was employed by National Business Group, a nation-wide integration company where he served as Regional Director over the South Central Region. From 1986 to 1989 he worked for CXR Telecom. Prior to his private sector experience, Mr. Olexa was in the armed forces where he maintained an Air Force telecommunication facility. This facility utilized wireless communications, including line-of-site microwave communications and other broadband technologies between Greece, Turkey and Italy. Item 7. Financial Statements and Exhibits (a) The Financial Statements and the pro forma financial information required to be filed under this item will be filed no later than October 8, 2001. (b) Exhibits: 4.1 Series A Preferred Stock Designation Certificate 10.1 Stock Exchange Agreement 10.2 Stock Redemption Agreement 10.3 Escrow Agreement 10.4 Option and Distribution Agreement 10.5 Lock-Up Letter SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. BERENS INDUSTRIES, INC. By: ---------------------------------------------- /s/ Manfred Sternberg, Chief Executive Officer and Chief Financial Officer Manfred Sternberg, Chief Executive Officer and Chief Financial Officer Dated: July 23, 2001 EX-4.1 2 doc2.txt EXHIBIT 4.1 FILED # C173-85 JULY 19, 2001 IN THE OFFICE OF DEAN HELLER, SECRETARY OF STATE CERTIFICATE OF THE DESIGNATION, PREFERENCES, RIGHTS AND LIMITATIONS OF SERIES A CONVERTIBLE NON-REDEEMABLE PREFERRED STOCK OF BERENS INDUSTRIES, INC. Berens Industries, Inc., (hereinafter referred to as the "Corporation" or "Company"), a corporation organized and existing under the laws of the State of Nevada, DOES HEREBY CERTIFY: That, the Articles of Incorporation of the Corporation authorizes the issuance of 10,000,000 shares of Preferred Stock, $.00l par value per share, and expressly vests in the Board of Directors of the Corporation the authority to issue any or all of said shares in one or more series and by resolution or resolutions to establish the designation, number, full or limited voting powers, or the denial of voting powers, preferences and relative, participating, optional, and other special rights and the qualifications, limitations, restrictions and other distinguishing characteristics of each series to be issued: RESOLVED, that pursuant to the authority conferred upon the Board of Directors by the Articles of Incorporation, the Series A Convertible Non-Redeemable Preferred Stock, par value $.00l ("Series A Convertible Preferred Stock"), is hereby authorized and created, said series to consist of up to 600 shares, with a stated value of $1,000.00 per share of Series A Convertible Preferred Stock. The voting powers, preferences and relative, participating, optional and other special rights, and the qualifications, limitations or restrictions thereof shall be as follows: 1. NO DIVIDENDS ON SERIES A CONVERTIBLE PREFERRED STOCK. There are ------------------------------------------------------- no dividends on Series A Convertible Preferred Stock. 2. CONVERSION OF SERIES A CONVERTIBLE PREFERRED STOCK INTO COMMON STOCK -------------------------------------------------------------------- (a) Each holder of shares of Series A Convertible Preferred Stock may, at his option and at any time and from time to time, convert any or all such shares, into fully paid and non-assessable shares of the Corporation's Common Stock at a conversion ratio of 233,975 shares of Common Stock for each share of Series A Convertible Preferred Stock. Fractional conversions are permitted. (b) To exercise his conversion privilege, the holder of any shares of Series A Convertible Preferred Stock shall surrender to the Corporation during regular business hours at the principal executive offices of the Corporation or the offices of the transfer agent for the Series A Convertible Preferred Stock or at such other place as may be designated by the Corporation, the certificate or certificates for the shares to be converted, duly endorsed for transfer to the Corporation (if required by it), accompanied by written notice stating that the holder irrevocably elects to convert such shares. Conversion shall be deemed to have been effected on the date when such delivery is made, and such date is referred to herein as the "Conversion Date." Within five (5) business days after the date on which such delivery is made, the Corporation shall issue and send (with receipt to be acknowledged) to the holder thereof or the holder's designee, at the address designated by such holder, a certificate or certificates for the number of full and fractional shares of Common Stock to which the holder is entitled as a result of such conversion. The holder shall be deemed to have become a stockholder of record of the number of shares of Common Stock into which the shares of Series A Convertible Preferred Stock have been converted on the applicable Conversion Date unless the transfer books of the Corporation are closed on that date, in which event he shall be deemed to have become a stockholder of record of such shares on the next succeeding date on which the transfer books are open. Upon conversion of only a portion of the number of shares of Series A Convertible Preferred Stock represented by a certificate or certificates surrendered for conversion, the Corporation shall within three (3) business days after the date on which such delivery is made, issue and send (with receipt to be acknowledged) to the holder thereof or the holder's designee, at the address designated by such holder, a new certificate covering the number of shares of Series A Convertible Preferred Stock representing the unconverted portion of the certificate or certificates so surrendered. (c) The Corporation shall at all times reserve for issuance and maintain available, out of its authorized but unissued Common Stock, solely for the purpose of effecting the conversion of the Series A Convertible Preferred Stock, the full number of shares of Common Stock deliverable upon the conversion of all Series A Convertible Preferred Stock from time to time outstanding. The Corporation shall from time to time (subject to obtaining necessary director and stockholder action), in accordance with the laws of the State of Nevada, increase the authorized number of shares of its Common Stock if at any time the authorized number of shares of its Common Stock remaining unissued shall not be sufficient to permit the conversion of all of the shares of Series A Convertible Preferred Stock at the time outstanding. (d) If any shares of Common Stock to be reserved for the purpose of conversion of shares of Series A Convertible Preferred Stock require registration or listing with, or approval of, any governmental authority., stock exchange or other regulatory body under any federal or state law or regulation or otherwise, including registration under the Securities Act of 1933, as amended, and appropriate state securities laws, before such shares may be validly issued or delivered upon conversion, the Corporation will in good faith and as expeditiously as possible meet such registration, listing or approval, as the case may be. (e) All shares of Common Stock which may be issued upon conversion of the shares of Series A Convertible Preferred Stock will upon issuance by the Corporation be validly issued, fully paid and non-assessable and free from all taxes, liens and charges with respect to the issuance thereof. (f) In case any shares of Series A Convertible Preferred Stock shall be converted pursuant hereto, or purchased or otherwise acquired by the Corporation, the shares so converted, purchased or acquired shall be 2 restored to the status of authorized but unissued shares of preferred stock, without designation as to class or series, and may thereafter be reissued, but not as shares of Series A Convertible Preferred Stock. (g) The conversion ratio of the Series A Convertible Preferred Stock into Common Stock of the Corporation shall be subject to adjustment from time to time as follows: (i) Stock Splits, Dividends and Combinations. In the event that the Corporation shall at any time subdivide the outstanding shares of Common Stock, or shall pay or make a dividend or distribution on any class of capital stock of the Corporation in Common Stock, the conversion ratio in effect immediately prior to such subdivision or the issuance of such dividend shall be proportionately decreased, and in case the Corporation shall at any time combine the outstanding shares of Common Stock, the conversion ratio in effect immediately prior to such combination shall be proportionately increased, effective at the close of business on the date of such subdivision, dividend or combination, as the case may be. (ii) Non-Cash Dividends, Stock Purchase Rights, Capital Reorganization and dissolutions. In the event: (a) that the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend, or any other distribution, payable otherwise than in cash; or (b) that the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase any shares of stock of any class or other securities, or to receive any other rights; or (c) of any capital reorganization of the Corporation, reclassification of the capital stock of the Corporation (other than a subdivision or combination of its outstanding shares of Common Stock), consolidation or merger of the Corporation with or into another corporation, share exchange for all outstanding shares of Common Stock under a plan of exchange to which the Corporation is a party, or conveyance of all or substantially all of the assets of the Corporation to another corporation; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Corporation; then, and in any such case, the Corporation shall cause to be mailed to the holders of record of the outstanding Series A Convertible Preferred Stock, at least 10 days prior to the date hereinafter 3 specified, a notice stating the date on which (x) a record is to be taken for the purpose of such dividend, distribution or rights, or (y) such reclassification, reorganization, consolidation, merger, share exchange, conveyance, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which holders of Corporation securities of record shall be entitled to exchange their shares of Corporation securities for securities or other property deliverable upon such reclassification, reorganization, consolidation, merger, share exchange, conveyance, dissolution, liquidation or winding up. 3. VOTING OF SERIES A CONVERTIBLE PREFERRED STOCK ---------------------------------------------------- The shares of Series A Convertible Preferred Stock shall be entitled to vote, together with the shares of the Corporation's Common Stock, on all matters presented at any annual or special meeting of stockholders of the Corporation, or may act by written consent in the same manner as the holders of the Corporation's Common Stock, upon the following basis: each holder of Preferred Stock shall be entitled to cast such number of votes for each share of Series A Convertible Preferred Stock held by such holder on the record date fixed for such meeting. or on the effective date of such written consent, as shall be equal to the number of shares of the Corporation's Common Stock into which each of such holder's shares of Series A Convertible Preferred Stock is convertible immediately after the close of business on the record date fixed for such meeting or the effective date of Such written consent. The Series A Convertible Preferred Stock and any other stock having voting tights shall vote together as one class, except as provided by law. 4. LIQUIDATION RIGHTS ------------------- (a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of Series A Convertible Preferred Stock then outstanding shall be entitled to receive out of assets of the Corporation available for distribution to stockholders, before any distribution of assets is made t holders of any other class of capital stock of the Corporation, an amount equal to $1 .000.00 per share ("Liquidation Amount"). (b) A consolidation or merger of the Corporation (in the event that the Corporation is not the surviving entity) or sale of all or substantially all of the corporation's assets shall be regarded as a liquidation, dissolution or winding up of the affairs of the Corporation within the meaning herein. In the event of such a liquidation as contemplated herein, the holders of Series A Convertible Preferred Stock shall be entitled to receive an amount equal to the Liquidation Amount. (c) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation which involves the distribution of assets other than cash, the Corporation shall promptly engage competent independent appraisers to determine the value of the assets to be distributed to the holders of shares of this Series A Convertible Preferred Stock other preferred stock, and the holders of 4 shares of Common Stock. The Corporation shall, upon receipt of such appraiser's valuation, give prompt written notice to each holder of shares of Series A Convertible Preferred Stock of the appraiser's valuation. 5. NO REDEMPTION BY THE CORPORATION. ------------------------------------- Series A Convertible Preferred Stock is not redeemable by the Corporation. [[[SIGNATURES ON FOLLOWING PAGE)]]] 5 IN Witness Whereof, Berens Industries, Inc., has caused Its corporate seal to be hereunto affixed and this certificate to be signed by Marc I. Berens, its president and Jeffrey Hansen, its secretary, this I 3" day of 2001. BERENS Industries, Inc. By /S/ Marc I. Berens ------------------------------- Marc I. Berens, President By /S/ Jeffrey Hansen ------------------------------- Jeffrey Hansen, Secretary THE STATE OF FLORIDA COUNTY OF HARRIS FLORIDA BEFORE ME, the undersigned authority, on this day personally appeared Marc I. Berens, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL of office this 13th day of July, 2001. - ----------------------------------------- HENRY J. RAMCE /S/ HENRY J. RAMCE SEAL Notary Public-State of Florida -------------------------------- My Commission Expires Feb 25, 2005 NOTARY PUBLIC IN AND FOR Commission # CC986067 THE STATE OF FLORIDA - ----------------------------------------- THE STATE OF FLORIDA COUNTY OF HARRIS FLORIDA BEFORE ME, the undersigned authority, on this day personally appeared Jeffrey Hansen, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL of office this 16th day of July, 2001. - ----------------------------------------- Barbara C. Fullerton /S/ Barbara C. Fullerton SEAL Notary Public-State of Texas -------------------------------- My Commission Expires NOTARY PUBLIC IN AND FOR November 13, 2003 THE STATE OF TEXAS - ----------------------------------------- 6 EX-10.1 3 doc3.txt EXHIBIT 10.1 STOCK EXCHANGE AGREEMENT ------------------------ This Stock Exchange Agreement (the "Agreement"), dated as of July19, 2001, is by and among Berens Industries, Inc., a Nevada corporation ("Berens"), and each of the persons or entities whose names appear and who are identified as stockholders on the signature page hereof (individually, a "Stockholder" and collectively the "Stockholders"), such persons or entities being registered holders of capital stock of Solis Communications Corporation, a Texas corporation ("Solis"), and Mr. Marc Ivan Berens who is a control person of Berens ("Mr. Berens"). R E C I T A L S --------------- WHEREAS, each Stockholder is the record and beneficial owner of the number of shares of common stock of Solis indicated in the table set forth as Exhibit "A" to this Agreement (which shares are hereinafter collectively referred to as the "Solis Stock"); WHEREAS, Berens desires to acquire from the Stockholders, and the Stockholders desire to convey to Berens, all of the issued and outstanding Solis Stock owned by the Stockholders in exchange for shares of Series A Convertible Non-Redeemable Preferred Stock, $.001 par value per share, of Berens (the "Berens Stock"), the designation certificate of which is attached hereto as Exhibit "B", all on the terms and conditions set forth below; NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements and the respective representations and warranties herein contained in this Agreement, and on the terms and subject to the conditions set forth in this Agreement, the parties hereto, intending to be legally bound, hereby agree as follows: ARTICLE I EXCHANGE OF SHARES Section 1.1 Solis Stock. At the Closing (as defined below), each ------------ Stockholder shall transfer, convey and deliver to Berens the number of shares of Solis Stock set forth opposite their name on Exhibit A hereto, and shall deliver to Berens stock certificates representing the Solis Stock, duly endorsed to Berens or accompanied by duly executed stock powers in form and substance satisfactory to Berens. Section 1.2 Berens Stock. At the Closing, in exchange for each share ------------- of Solis Stock transferred to Berens, Berens shall issue and deliver to each Stockholder the number of shares of Berens Stock set forth opposite their name on Exhibit A hereto. The transaction by which the transfer shall take place is referred to in this Agreement as the "Exchange". ARTICLE II THE CLOSING The Closing of the transactions contemplated by this Agreement (the "Closing") shall take place at 2:00 p.m. on July 19, 2001 (the "Closing Date"), at the offices of Axelrod, Smith & Kirshbaum, 5300 Memorial Drive, Suite 700, Houston, Texas 77007 or at such other time and place as agreed upon among the parties hereto. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS Each of the Stockholders hereby severally represents and warrants to Berens as follows: Section 3.1 Ownership of the Solis Stock. Each Stockholder owns, -------------------------------- beneficially and of record, that number of shares of Solis Stock set forth opposite the Stockholder's name on Exhibit A hereto; except for restrictions imposed by federal and state securities laws, (i) such shares are owned by such Stockholder free and clear of any liens, claims, equities, charges, options, rights of first refusal, voting agreements or encumbrances; (ii) the Stockholder has the unrestricted right and power to transfer, convey and deliver full ownership of such shares without the consent or agreement of any other person and without any designation, declaration or filing with any governmental authority; and, (iii) upon the transfer of such shares to Berens as contemplated herein, Berens will receive good and valid title thereto, free and clear of any liens, claims, equities, charges, options, rights of first refusal, encumbrances or other restrictions. Section 3.2 Organization. If the Stockholder is either a corporation, ------------ limited liability company or partnership, it represents and warrants that it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation, with full power and authority and all necessary governmental and regulatory licenses, permits and authorizations to carry on the businesses in which it is engaged, to own the properties that it owns currently and will own at the Closing, and to perform its obligations under this Agreement. If the Stockholder is a corporation, limited liability company or partnership it is qualified as a foreign corporation, foreign limited liability company or foreign partnership (which ever the case may be) and is in good standing in each jurisdiction in which the failure to qualify would have material adverse effect on the business, properties or condition (financial or otherwise) of the corporate, limited liability company or partnership Stockholder. Section 3.3 Authorization. If the Stockholder is a person, then he or ------------- she is of the full age of majority, with full power, capacity and authority to enter into this Agreement and perform the obligations contemplated hereby by and for himself or herself and his or her spouse, if any. If the Stockholder is a corporation, limited liability company or partnership, then all corporate, limited liability company or partnership action on the part of the corporate, limited liability company or partnership Shareholder necessary for the authorization, execution, delivery and performance of this Agreement and the transactions contemplated hereby has been taken or will be taken prior to the Closing. All action on the part of the Stockholder necessary for the authorization, execution, delivery and performance of this Agreement by the Stockholder has been taken or will be taken prior to the Closing. This Agreement constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to bankruptcy, insolvency, reorganization, and other laws of general application relating to or affecting creditors' rights and to general equitable principles. Section 3.4 Pending Claims. There is no claim, suit, action or --------------- proceeding, whether judicial, administrative or otherwise, pending or, to the best of the Stockholder's knowledge, threatened that would preclude or restrict the transfer to Berens of the Solis Stock owned by the Stockholder or the performance of this Agreement by the Stockholder. Section 3.5 No Default. The execution, delivery and performance of ----------- this Agreement by the Stockholder does not and will not constitute a violation or default under or conflict with any contract, agreement, understanding or commitment to which such Stockholder is a party or by which such Stockholder is bound. Section 3.6 Acquisition of Stock for Investment. Each Stockholder --------------------------------------- understands that the issuance of Berens Stock will not have been registered under the Securities Act of 1933, as amended (the "Act"), or any state securities acts, and, accordingly, are restricted securities, and that he/she represents and warrants to Berens that his/her present intention is to receive and hold the Berens Stock for investment only and not with a view to the distribution or resale thereof. Additionally, the Stockholder understands that any sale by the Stockholder of any of the Berens Stock received under this Agreement will, under current law, require either (a) the registration of the Berens Stock under the Act and applicable state securities acts; (b) compliance with Rule 144 of the Act; or (c) the availability of an exemption from the registration requirements of the Act and applicable state securities acts. Unless a Registration Statement had been filed to register the Berens Stock, the Stockholder hereby agrees to execute, deliver, furnish or otherwise provide to Berens an opinion of counsel reasonably acceptable to Berens prior to any subsequent transfer of the Berens Stock, that such transfer will not violate the registration requirements of the federal or state securities acts. The Stockholder further agrees to execute, deliver, furnish or otherwise provide to Berens any documents or instruments as may be reasonably necessary or desirable in order to evidence and record the Berens Stock acquired hereby. To assist in implementing the above provisions, the Stockholder hereby consents to the placement of the legend, or a substantially similar legend, set forth below, on all certificates representing ownership of the Berens Stock acquired hereby until the Berens Stock has been sold, transferred, or otherwise disposed of, pursuant to the requirements hereof. The legend shall read substantially as follows: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES ACTS. THESE SECURITIES MUST BE ACQUIRED FOR INVESTMENT, ARE RESTRICTED AS TO TRANSFERABILITY, AND MAY NOT BE SOLD, , HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION AND QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM." Section 3.7 Stockholder Access to Information. The Stockholder hereby --------------------------------- confirms and represents that he/she: (a) has been afforded the opportunity to ask questions of and receive answers from representatives of Berens concerning the business and financial condition, properties, operations and prospects of Berens and has asked such questions as he/she desires to ask and all such questions have been answered to the full satisfaction of the Stockholder; (b) has such knowledge and experience in financial and business matters so as to be capable of evaluating the relative merits and risks of the transactions contemplated hereby; (c) has had an opportunity to engage and is represented by an attorney of his/her choice; (d) has had an opportunity to negotiate the terms and conditions of this Agreement; (e) has been given adequate time to evaluate the merits and risks of the transactions contemplated hereby; and (f) has been provided with and given an opportunity to review all SEC filings available on www.sec.gov. Section 3.8 Disclosure. To the best of the Stockholder's knowledge, no ---------- representation or warranty of the Stockholder contained in this Agreement (including the exhibits and schedules hereto) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. Section 3.9 Indemnification by Stockholder The Stockholder recognizes ------------------------------ that the Exchange being conducted with Berens is based, to a material degree, upon the representations and warranties of Stockholder as set forth and contained herein and the Stockholder hereby agrees to indemnify and hold harmless Berens against all damages, costs, or expenses (including reasonable attorney's fees) arising as a result of any breach of representation or warranty or omission made herein by the Stockholder. If any action is brought against Berens in respect of which indemnity may be sought against the Stockholder pursuant to the foregoing paragraph, Berens shall promptly notify the Stockholder in writing of the institution of such action (but the omission to so notify the Stockholder shall not relieve it from any liability that it may have to Berens except to the extent the Stockholder is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure), and the Stockholder shall assume the defense of such action, including the employment of counsel to be chosen by the Stockholder to be reasonably satisfactory to Berens, and payment of expenses. Berens shall have the right to employ the Stockholder's or their own counsel in any such case, but the fees and expenses of such counsel shall be at Berens expense, unless the employment of such counsel shall have been authorized in writing by the Stockholder in connection with the defense of such action, or the Stockholder shall not have employed counsel to take charge of the defense of such action, or counsel employed by the Stockholder shall not be diligently defending such action, or Berens shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Stockholder, or that representation of Berens by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case the Stockholder shall not have the right to direct the defense of such action on behalf of Berens), in any of which event such fees and expenses shall be borne by the Stockholder. Anything in this paragraph to the contrary notwithstanding, the Stockholder shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without the Stockholder's written consent, which consent shall not be unreasonably withheld. The Stockholder shall not, without the prior written consent of Berens effect any settlement of any proceeding in respect of which Berens is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Berens from all liability on claims that are the subject matter of such proceeding. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SOLIS Solis hereby represents and warrants to Berens as follows: Section 4.1 Organization and Capitalization. Solis is a corporation --------------------------------- duly organized, validly existing and in good standing under the laws of the State of Texas, with full power and authority and all necessary governmental and regulatory licenses, permits and authorizations to carry on the businesses in which it is engaged, to own the properties that it owns currently and will own at the Closing. Solis is qualified as a foreign corporation and is in good standing in each jurisdiction in which the failure to qualify would have a material adverse effect on the business, properties or condition (financial or otherwise) of Solis. Solis does not have any subsidiaries or any other investments or ownership interest in any corporation, partnership, joint venture or other business enterprise. The authorized capital stock of Solis consists of 100,000 shares of common stock of which 100,000 shares are validly issued and outstanding. There are no shares of preferred stock of Solis authorized or outstanding. All of such issued and outstanding shares of Solis Stock have been duly authorized and validly issued and are fully paid and non-assessable. The Stockholders own 100% of the capital stock of Solis. None of the shares were issued in violation of any preemptive rights. There are no existing warrants, options, rights of first refusal, conversion rights, calls, commitments or other agreements of any character pursuant to which Solis is or may become obligated to issue any of its stock or securities. Solis has no obligation to repurchase, reacquire or redeem any of its outstanding capital stock. Section 4.2 At the time of the Closing, Solis will own and have at least $255,000.00 in cash and other tangible assets as set forth on Schedule 4.2. Section 4.3 Litigation. There are no actions, suits or proceedings, ---------- formal or informal, pending or, to the best knowledge of Solis, threatened against Solis, nor is Solis subject to any order, judgment or decree, except in all cases, whether known or unknown. Section 4.4 Taxes. Solis has filed all federal tax returns and reports ----- due or required to be filed, and has paid all taxes, interest payments and penalties, if any, required to be paid with respect thereto. Solis has made adequate provision for the payment of all taxes accruable for all periods ending on or before the Closing Date to any taxing authority and is not delinquent in the payment of any material tax or governmental charge of any nature. Section 4.5 Compliance with Laws. Solis is, and at all times prior to -------------------- the date hereof has been, to the best of its knowledge, in compliance with all statutes, orders, rules, and regulations applicable to it or to the ownership of its assets or the operation of its business, except for failures to be in compliance that would not have a material adverse effect on the business, properties, condition (financial or otherwise) or prospects of Solis, and Solis has no basis to expect to receive, and has not received, any order or notice of any such violation or claim of violation of any such statute, order, rule, ordinance or regulation. Section 4.6 Books and Records. The books of account, minute books, ------------------- stock record books and other records of Solis, all of which have been made available to Berens, are accurate and complete in all material respects and have been maintained in accordance with sound business practices. Section 4.7 Title to Properties; Encumbrances. Solis has good title to --------------------------------- all of its properties and assets, real and personal, tangible and intangible, that are material to the condition (financial or otherwise), business, operations or prospects of Solis, free and clear of all mortgages, claims, liens, security interests, charges, leases, encumbrances and other restrictions of any kind and nature, except (i) as disclosed in the financial statements of Solis, (ii) statutory liens not yet delinquent, and (iii) such liens consisting of zoning or planning restrictions, imperfections of title, easements, pledges, charges and encumbrances, if any, as do not materially detract from the value or materially interfere with the present use of the property or assets subject thereto or affected thereby. Section 4.8 Disclosure. To the best of Solis's knowledge, no ---------- representation or warranty of Solis contained in this Agreement (including the exhibits and schedules hereto) contains any untrue statement or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. Section 4.9 Employee Benefit Plans . Solis is not a party to any ------------------------ employee benefit plan. Section 4.10 No Pending Transactions . Except for the transactions ------------------------- contemplated by this Agreement, Solis is not a party to or bound by or the subject of any agreement, undertaking, commitment or discussions or negotiations with any person that could result in (i) the sale, merger, consolidation or recapitalization of Solis or any of its Subsidiaries or material investees, (ii) the sale of all or substantially all of the assets of Solis or any of its Subsidiaries, or (iii) a change of control of more than five percent of the outstanding capital stock of Solis or any of its Subsidiaries. Section 4.11 Indemnification by Solis. Solis recognizes that the -------------------------- Exchange being conducted with Berens is based, to a material degree, upon the representations and warranties of Solis as set forth and contained herein and Solis hereby agrees to indemnify and hold harmless Berens against all damages, costs, or expenses (including reasonable attorney's fees) arising as a result of any breach of representation or warranty or omission made herein by Solis. If any action is brought against Berens in respect of which indemnity may be sought against Solis pursuant to the foregoing paragraph, Berens shall promptly notify Solis in writing of the institution of such action (but the omission to so notify Solis shall not relieve it from any liability that it may have to Berens except to the extent Solis is materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure), and Solis shall assume the defense of such action, including the employment of counsel to be chosen by Solis to be reasonably satisfactory to Berens, and payment of expenses. Berens shall have the right to employ Solis' or their own counsel in any such case, but the fees and expenses of such counsel shall be at Berens expense, unless the employment of such counsel shall have been authorized in writing by Solis in connection with the defense of such action, or Solis shall not have employed counsel to take charge of the defense of such action, or counsel employed by Solis shall not be diligently defending such action, or Berens shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Solis, or that representation of Berens by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case Solis shall not have the right to direct the defense of such action on behalf of Berens), in any of which event such fees and expenses shall be borne by Solis. Anything in this paragraph to the contrary notwithstanding, Solis shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without Solis' written consent, which consent shall not be unreasonably withheld. Solis shall not, without the prior written consent of Berens effect any settlement of any proceeding in respect of which Berens is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of Berens from all liability on claims that are the subject matter of such proceeding. ARTICLE V REPRESENTATIONS AND WARRANTIES OF BERENS AND MR. MARC IVAN BERENS Berens, and Mr. Marc Ivan Berens ("Mr. Berens") as a control person of Berens, hereby represent and warrant to the Stockholders as follows: Section 5.1 Organization and Capitalization. Berens is a corporation -------------------------------- duly organized, validly existing and in good standing under the laws of the State of Nevada, with full power and authority and all necessary governmental and regulatory licenses, permits and authorizations to carry on the businesses in which it is engaged, to own the properties that it owns currently and will own at the Closing, and to perform its obligations under this Agreement. Berens is qualified as a foreign corporation and is in good standing in each jurisdiction in which the failure to qualify would have a material adverse effect on the business, properties or condition (financial or otherwise) of Berens. Berens does not have any subsidiaries or any other investments or ownership interest in any corporation, partnership, joint venture or other business enterprise, except as set forth in Schedule 5.1. Immediately prior to the Closing Date the authorized capital stock of Berens consists of (i) 50,000,000 shares of common stock, $.001 par value per share, of which 26,143,495 shares are validly issued and outstanding, and (ii) 10,000,000 shares of preferred stock $.001 par value per share, none of which are issued and outstanding. All of such issued and outstanding shares of the stock of Berens have been and all of the shares of Berens Stock to be issued hereby will be, at the Closing, duly authorized and validly issued and are and will be at the Closing fully paid and non-assessable. None of the shares that were issued and none of the shares to be issued hereby will be in violation of any preemptive rights. Berens has no obligation to repurchase, reacquire or redeem any of its outstanding capital stock. There are no outstanding Berens derivative securities (options, warrants, convertibles, rights and the like). Section 5.2 Subsidiaries. Artmovement.com, Inc., Auctionzplus.com, ------------ Inc. and Berensgallery.com, Inc., all of which are Nevada corporations, are the only subsidiaries. All of the outstanding capital stock of, or other ownership interests in, each Subsidiary is owned by Berens, directly or indirectly, free and clear of any lien or any other limitation or limitation or restriction (including restrictions on the right to vote). All outstanding shares of the capital stock of any Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable and are free of any preemptive rights. There are no outstanding securities of any Subsidiary convertible into or evidencing the right to purchase or subscribe for any shares of capital stock of any Subsidiary, there are no outstanding or authorized options, warrants, calls, subscriptions, rights, commitments or any other agreements of any character obligating any Subsidiary to issue any shares of its capital stock or any securities convertible into or evidencing the right to purchase or subscribe for any shares of such stock, and there are no agreements or understandings with respect to the voting, sale, transfer or registration of any shares of capital stock of any Subsidiary. Section 5.3 Authorization. All corporate action on the part of Berens ------------- necessary for the authorization, execution, delivery and performance of this Agreement by Berens has been taken or will be taken prior to the Closing. Berens has the requisite corporate power and authority to execute, deliver and perform this Agreement. This Agreement has been duly executed and delivered by Berens, and constitutes a valid and binding obligation of Berens, enforceable against Berens in accordance with its terms, subject to bankruptcy, insolvency, reorganization, and other laws of general application relating to or affecting creditors' rights and to general equitable principles. Section 5.4 Litigation. There are no claims, actions, suits or ---------- proceedings, formal or informal, pending or, to the best knowledge of Berens or Mr. Berens, threatened against Berens, nor is Berens subject to any order, judgment or decree. Section 5.5 SEC Reports. During the last twelve months, Berens has ------------ filed with the SEC all of the reports required to be filed with the SEC pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended. Berens has filed with the SEC, its Form 10-KSB for the year ended December 31, 2000, and its Form 10-QSB for the quarter ended March 31, 2001. To the best of Berens and Mr. Berens knowledge, as of their respective dates, the SEC Filings did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Section 5.6 Taxes. Except for 941 payroll taxes of approximately ----- $86,000, Berens has filed all federal, state or local tax returns and reports due or required to be filed and has paid all taxes, interest payments and penalties, if any, required to be paid with respect thereto, and has made adequate provision for the payment of all taxes accruable for all periods ending on or before the Closing Date to any taxing authority and is not delinquent in the payment of any material tax or governmental charge of any nature. Section 5.7 Financial Information. Berens has delivered to the ---------------------- Stockholders the audited balance sheet of Berens as of December 31, 2000, together with the related statements of income, changes in shareholder's equity and cash flow for the years then ended, including the related notes, all certified by Ham, Langston & Brezina, certified public accountants. In addition, Berens has delivered to the Stockholders its interim unaudited financial statements as filed with the SEC for the three month periods ended March 31, 2001 (the audited and unaudited balance sheet and interim financial statements are collectively referred to the as the "Financial Statements"). Such Financial Statements, including the related notes, are in accordance with the books and records of Berens and fairly present the financial position of Berens and the results of operations and changes in financial position of Berens as of the dates and for the periods indicated, in each case in conformity with generally accepted accounting principles applied on a consistent basis. Except as, and to the extent reflected or reserved against in the Financial Statements, Berens as of the date of the financial statements has no material liability or obligation of any nature, whether absolute, accrued, continued or otherwise, not fully reflected or reserved against in the Financial Statements. As of the Closing Date, except as set forth in Schedule 5.7, there will not have been any adverse change in the financial condition or other operations, business, properties or assets of Berens from that reflected in the latest financial statements of Berens furnished to the Stockholders pursuant hereto. Section 5.8 Compliance with Laws. Berens is, and at all times prior to -------------------- the date hereof has been, to the best of Berens and Mr. Berens knowledge, in compliance with all statutes, orders, rules, ordinances and regulations applicable to it or to the ownership of its assets or the operation of its businesses, except for failures to be in compliance that would not have a material adverse effect on the business, properties, condition (financial or otherwise) or prospects of Berens and Berens and Mr. Berens have no basis to expect, nor has received, any order or notice of any such violation or claim of violation of any such statute, order, rule, ordinance or regulation. Section 5.9 Title to Properties; Encumbrances. Berens has good and ------------------------------------ marketable title to all of its properties and assets, real and personal, tangible and intangible, that are material to the condition (financial or otherwise), business, operations or prospects of Berens, free and clear of all mortgages, claims, liens, security interests, charges, leases, encumbrances and other restrictions of any kind and nature, except (i) as disclosed in the Financial Statements of Berens, (ii) statutory liens not yet delinquent, and (iii) such liens consisting of zoning or planning restrictions, imperfections of title, easements, pledges, charges and encumbrances, if any, as do not materially detract from the value or materially interfere with the present use of the property or assets subject thereto or affected thereby. Section 5.10 Disclosure. To the best of Berens and Mr. Berens ---------- knowledge, no representation or warranty of Berens or Mr. Berens contained in this Agreement (including the exhibits and schedules hereto) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. Section 5.11 No Default. The execution, delivery and performance of ----------- this Agreement by Berens does not and will not constitute a violation or default under or conflict with any contract, agreement, understanding or commitment to which it is a party or by which it is bound or the Certificate of Incorporation or By-Laws of Berens or any statute, regulation, law, ordinance, judgment, decree, writ, injunction, order or ruling of any government entity, except that there will not be a sufficient number of shares of Berens common stock authorized if all shares of the preferred stock issued in the transaction contemplated hereby are converted. Section 5.12 Material Agreements; Action. Except for the debt of ----------------------------- approximately $33,000 owed to Yolana Berens, there are no material contracts, agreements, commitments, understandings or proposed transactions, whether written or oral, to which Berens or any of its Subsidiaries is a party or by which it is bound that involve or relate to: (i) any of their respective officers, directors, stockholders or partners or any Affiliate thereof; (ii) the sale of any of the assets of Berens or any of its Subsidiaries other than in the ordinary course of business; (iii) covenants of Berens or any of its Subsidiaries not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with Berens or any of its Subsidiaries in any line of business or in any geographical area; (iv) the acquisition by Solis or any of its Subsidiaries of any operating business or the capital stock of any other Person; (v) the borrowing of money or (vi) the expenditure of more than $25,000 in the aggregate or the performance by Berens or any Subsidiary extending for a period more than one year from the date hereof, other than in the ordinary course of business. There have been made available to Solis and its representatives true and complete copies of all such agreements. All such agreements are in full force and effect. Neither Berens nor any of its Subsidiaries is in default under any such agreements nor is any other party to any such agreements in default thereunder in any respect. Section 5.13 Pending Claims. There is no claim, suit, action or --------------- proceeding, whether judicial, administrative or otherwise, pending or, to the Berens and Mr. Berens knowledge, threatened that would preclude or restrict the transfer to the Stockholders of the Berens Stock or the performance of this Agreement by Berens. Section 5.14 Insurance . Berens and its Subsidiaries maintain adequate --------- insurance with respect to their respective businesses and are in compliance with all material requirements and provisions thereof. Section 5.15 Employee Benefit Plans . Berens is not a party to any ------------------------ employee benefit plan. Section 5.16 No Pending Transactions . Except for the transactions ------------------------- contemplated by this Agreement, neither Berens nor any Subsidiary is a party to or bound by or the subject of any agreement, undertaking, commitment or discussions or negotiations with any person that could result in (i) the sale, merger, consolidation or recapitalization of Berens or any Subsidiary, (ii) the sale of all or substantially all of the assets of Berens or any Subsidiary, or (iii) a change of control of more than five percent of the outstanding capital stock of Berens or any Subsidiary. Section 5.17 No Undisclosed Liabilities . To the best of Berens and ---------------------------- Mr. Berens knowledge, neither Berens nor or any Subsidiary has any obligation or liability (contingent or otherwise) that would be required to be reflected in the financial statements of the Company in accordance with GAAP except as reflected in Berens Balance Sheet, in Schedule 5.7, or incurred in the ordinary course of business in an amount not in excess of $7,500. Section 5.18 Indemnification by Berens and Mr. Berens. Berens and Mr. ---------------------------------------- Berens recognize that the Exchange being conducted with the Stockholders is based, to a material degree, upon the representations and warranties of Berens and Mr. Berens as set forth and contained herein and Berens and Mr. Berens (collectively the "Indemnifying Parties") hereby agree to jointly and severally indemnify and hold harmless the Stockholders against all damages, costs, or expenses (including reasonable attorney's fees) arising as a result of any breach of representation or warranty or omission made herein by the Indemnifying Parties. If any action is brought against Solis or the Stockholders (collectively the "Indemnified Parties") in respect of which indemnity may be sought against the Indemnifying Parties pursuant to the foregoing paragraph, the Indemnified Parties shall promptly notify the Indemnifying Parties in writing of the institution of such action (but the omission to so notify the Indemnifying Parties shall not relieve the Indemnifying Parties from any liability that the Indemnifying Parties may have to such Indemnified Parties except to the extent the Indemnifying Parties are materially prejudiced or otherwise forfeit substantive rights or defenses by reason of such failure), and the Indemnifying Parties shall assume the defense of such action, including the employment of counsel to be chosen by the Indemnifying Parties to be reasonably satisfactory to the Indemnified Parties, and payment of expenses. The Indemnified Parties shall have the right to employ the Indemnifying Parties counsel, or the Indemnified Parties' own counsel in any such case, but the fees and expenses of such counsel shall be at the Indemnified Party's expense, unless the employment of such counsel shall have been authorized in writing by the Indemnifying Parties in connection with the defense of such action, or the Indemnifying Parties shall not have employed counsel to take charge of the defense of such action, or counsel employed by the Indemnifying Parties shall not be diligently defending such action, or the Indemnified Parties shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnifying Parties, or that representation of such Indemnified Party and the Indemnifying Parties by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which case the Indemnifying Parties shall not have the right to direct the defense of such action on behalf of the Indemnified Parties), in any of which event such fees and expenses shall been borne by the Indemnifying Parties. Anything in this paragraph to the contrary notwithstanding, the Indemnifying Parties shall not be liable for any settlement of, or any expenses incurred with respect to, any such claim or action effected without the Indemnifying Parties' written consent, which consent shall not be unreasonably withheld. The Indemnifying Parties shall not, without the prior written consent of the Indemnified Parties effect any settlement of any proceeding in respect of which any Indemnified Parties is a party and indemnity has been sought hereunder unless such settlement includes an unconditional release of such Indemnified Parties from all liability on claims that are the subject matter of such proceeding. ARTICLE VI CLOSING; DELIVERY Section 6.1(a) Closing Documents of the Stockholders. The obligations of ------------------------------------- Berens to effect the transactions contemplated hereby are subject to the delivery by the Stockholders at Closing of certificates evidencing their Solis Stock duly endorsed for transfer by the Stockholders to Berens as contemplated by this Agreement, in form and substance satisfactory to counsel for Berens. Section 6.1(b) Closing Documents of Berens. The obligations of the ------------------------------ Stockholders to effect the transactions contemplated hereby are subject to Berens delivering to the Stockholders either (i) certificates evidencing Berens Stock, duly executed for issuance by Berens to the Stockholders as contemplated by this Agreement or (ii) letter of instructions from a duly authorized officer of Berens to American Registrar & Transfer (Berens's transfer agent), instructing the transfer agent to duly issue stock certificates evidencing the shares of Berens Stock to the Stockholders, all as contemplated by this Agreement, in form and substance satisfactory to counsel for the Stockholders. Section 6.1(c) Conditions to the Obligations of Berens and the ------------------------------------------------------ Stockholders. The obligations of Berens and the Stockholders to effect the transactions contemplated hereby are further subject to the following condition: (i) No action, suit or proceeding by or before any court or any governmental or regulatory authority shall have been commenced or threatened, and no investigation by any governmental or regulatory authority shall have been commenced or threatened, seeking to restrain, prevent or challenge the transactions contemplated hereby or seeking judgments against Berens or the Stockholders. (ii) The representations and warranties of Berens, the Stockholders and Mr. Berens set forth in this Agreement shall be true and correct in all material respects on the Closing Date. (iii) Berens, the Stockholders and Mr. Berens shall have performed and complied with all agreements, obligations, covenants and conditions required by this Agreement to be performed or complied with on or prior to the Closing Date. (iv) The parties shall have received corporate resolutions of the Board of Directors of Berens, certified by an officer of Berens, which approves the transactions contemplated herein and authorizes the execution, delivery and performance of this Agreement and the documents referred to herein to which it is or is to be a party dated as of the Closing Date. (v) The Board of Directors of Berens shall have appointed one additional director to its Board of Directors. (vi) The following related transactions or events shall have taken place prior to Closing: (a) Yolana Partnership Ltd. shall have executed a letter containing instructions to cancel certificate #1948 in the amount of 7,000,000 shares of common stock pursuant to the stock redemption agreement attached hereto as Exhibit "C"; (a) The Escrow Agreement attached hereto as Exhibit "D" shall have been executed; (b) Marc Berens resigns as a director of Berens; (c) Robert Davis shall be appointed as a director of Berens; and (d) Yolana Partnership Ltd. shall have entered into a letter agreement attached hereto as Exhibit "E". ARTICLE VII POST CLOSING COVENANTS Shareholders Meeting. Immediately subsequent to the Closing of the --------------------- transactions contemplated herein Berens covenants and agrees that it will take all steps necessary to call and conduct and Meeting of Shareholders for the purpose of (i) changing its name, (ii) election of directors to its Board of Directors, and (iii) authorizing a 1 for 5 reverse stock split of its shares of common stock outstanding. ARTICLE VIII MISCELLANEOUS Section 8.1 Notices. All notices and other communications provided ------- for herein shall be in writing and shall be deemed to have been duly given to the following persons, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, or overnight air courier guaranteeing next day delivery: (a) If to Berens: Marc Berens 701 N. Post Oak Rd., Suite 350 Houston, Texas 77024 With a copy to: Thomas L. Pritchard Brewer & Pritchard Three Riverway, 18th Floor Houston, Texas 77056 If to Mr. Berens: Marc Berens 701 N. Post Oak Rd., Suite 350 Houston, Texas 77024 With a copy to: Thomas L. Pritchard Brewer & Pritchard Three Riverway, 18th Floor Houston, Texas 77056 (b) If to the Stockholders, to: The addresses listed on Exhibit A, attached hereto. With a copy to: Robert D. Axelrod Axelrod, Smith & Kirshbaum 5300 Memorial Drive, Suite 700 Houston, Texas 77007 If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it. Section 8.2 Assignment. Neither this Agreement nor any of the rights, ---------- interests or obligations hereunder shall be assigned by any of the parties without the prior written consent of the other parties, which consent will not be unreasonably withheld. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective heirs, personal representatives, successors and assigns. Section 8.3 Counterparts. This Agreement may be executed in any number ------------ of counterparts, which taken together shall constitute one and the same instrument and each of which shall be considered an original for all purposes. Section 8.4 Section Headings. The section headings contained in this ----------------- Agreement are for convenient reference only and shall not in any way affect the meaning or interpretation of this Agreement. Section 8.5 Entire Agreement. This Agreement, the documents to be ----------------- executed hereunder and the exhibits and schedules attached hereto constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties pertaining to the subject matter hereof, and there are no warranties, representations or other agreements among the parties in connection with the subject matter hereof except as specifically set forth herein or in documents delivered pursuant hereto. No supplement, amendment, alteration, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the parties hereto. All of the exhibits and schedules referred to in this Agreement are hereby incorporated into this Agreement by reference and constitute a part of this Agreement. Section 8.6 Validity. The invalidity or unenforceability of any -------- provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. Section 8.7 Survival. The respective representations, warranties, -------- covenants and agreements set forth in this Agreement shall survive the Closing for a period of two (2) years from the execution hereof. Section 8.8 Public Announcements. The parties hereto agree that prior -------------------- to making any public announcement or statement with respect to the transactions contemplated by this Agreement, the party desiring to make such public announcement or statement shall consult with the other parties hereto and exercise their best efforts to (i) agree upon the text of a joint public announcement or statement to be made by all of such parties or (ii) obtain approval of the other parties hereto to the text of a public announcement or statement to be made solely by the party desiring to make such public announcement; provided, however, that if any party hereto is required by law to make such public announcement or statement, then such announcement or statement may be made without the approval of the other parties. Section 8.9 Gender. All personal pronouns used in this Agreement shall ------ include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural, and vice versa, whenever appropriate. Section 8.10 Choice of Law. This Agreement shall be governed by, and -------------- construed in accordance with, the laws of the State of Texas, without regard to principles of conflict of laws. Section 8.11 Costs and Expenses. Each of the parties hereto shall each ------------------ pay their own respective fees and disbursements incurred in connection with this Agreement. [Signatures Appear On The Next Page] IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to be executed effective as of the day and year first above written. Berens Industries, Inc. By: ------------------------------------ /s/ Marc Berens, President --------------------------------------- /s/ Mr. Marc Berens, individually STOCKHOLDERS: --------------------------------------- /s/ Robert Davis Address: ------------------------------- --------------------------------------- --------------------------------------- --------------------------------------- /s/ Jeff Olexa Address: ------------------------------- --------------------------------------- --------------------------------------- --------------------------------------- /s/ Manfred Sternberg Address: ------------------------------- --------------------------------------- --------------------------------------- EX-10.2 4 doc4.txt EXHIBIT 10.2 STOCK REDEMPTION AGREEMENT THIS STOCK REDEMPTION AGREEMENT, made and entered into as of the date set forth below, by and between Berens Industries, Inc., a Nevada corporation (hereinafter referred to as "Buyer") and Yolana Partnership, Ltd, a Texas limited partnership (hereinafter referred to as the "Seller'). W I T N E S S E T H WHEREAS, the Seller owns 16400,000 shares of the outstanding shares of common stock of the Buyer; and WHEREAS, the Seller still owes $350,000 for 7,000,0410 shares which it owns; and WHERAS, the Seller desires to sell and return 7,0011,000 shares of such common stock (the "Shares") to Buyer and Buyer desires to purchase and redeem the Shares on the terms and subject to the conditions set forth herein; NOW THERFFORE, in consideration of the promises and the mutual covenants act forth below and other good and valuable consideration, the receipt and adequacy of which arc hereby acknowledged, and intending to be legally bound, the parties hereto do hereby a3ree as follows: 1. PURCHASE AND SALE OP SHARES 1.01 Purchase and Sale of Shares. Subject to the term; and conditions set forth herein, effective the date on which all transactions described herein are completed and closed (the "Closing Date') Seller shall sell to the Buyer, and the Buyer shall purchase and redeem from Seller the Shares. Seller shall transfer all of its right, title, and interest in and to the Shares being conveyed by it to Buyer free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against the Shares. 1.02 Purchase Price. The purchase price of the Sharer (hereinafter referred to as the "Purchase Price") shall be the cancellation of a subscription receivable in the amount of $350,000. 2. REPRESENTATIONS AND WARRANTIES OF THE SELLER 2.01 Brokers. Seller has not made any agreement for arrangement which would result in any broker, tinder, agent or other poison or entity having any claim for any fee, commission, or payment against Buyer or Seller in connection with the negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. 2.02 Ownership of Shares. Seller is the record and beneficial owners of all of the Shares and has good and valid title to such Shares free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against such Shares. Such Shares are not subject to any option, right, proxy, voting agreement, voting trust, or any other agreement, understanding, or arrangement affecting the Shares. 2.03 Authorization, etc. Seller has the power, authority, and capacity to enter into this Agreement and to carry out the transactions contemplated hereby, and this Agreement has been duly executed and delivered by Seller. 1 2.04 No Consent Required. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental or public body or authority or other party on the part of Seller is required for seller to execute and deliver this Agreement and perform its obligations hereunder. 3. RESENTATIONS AND WAR1ANTIES OF BUYER Buyer hereby represents and warrants to, and agrees with, the Seller as follows: 3.01 Brokers. Buyer has not made any agreement or arrangement which would result in any broker, finder, agent or other person or entity having any claim for any fee, commission, or payment against Seller in connection with the negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby. 3.02 Authorization, etc. Buyer has the power, authority, and capacity to enter into this Agreement and to carry out the transactions contemplated hereby, and this Agreement has been duly executed and delivered by Buyer. 3.03 No Consent Required. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental or public body or authority is required for Buyer to execute and deliver this Agreement and perform its obligations hereunder. 4. INDEMNIFICATION 4.01 Buyer's Claims. The Seller shall indemnify and hold harmless Buyer, its successors and assigns, and their respective officers, directors, employees, shareholders, agents, and affiliates against any and all damages, claims, losses, liabilities, and expenses actually incurred by Buyer, including, without limitation, legal, accounting, and other expenses, which may arise out of any breach of any of the representations or warranties made in this Agreement by the Sellers (hereinafter referred to as a "Claim" or "Claims"). 4.02 Seller's Claims. Buyer shall indemnify and hold harmless Seller and its assigns, agents, and affiliates against any and all damages, claims, leases, liabilities and expenses, including without limitation, legal accounting, and other expenses actually incurred by Seller, which may arise out of any breach of my of the representations or warranties made in this Agreement by Buyer, and for any liabilities or obligations of the Buyer now existing or arising hereafter. 5. MISCELLANEOUS 5.01 Future Assistance. Each party hereto shall assist the others in fulfilling the intent and purposes of this Agreement and shall take all such further action as shall be reasonably necessary to effectively convey the Shares to Buyer and allow far the timely reporting of the transaction to all governmental and taxing authorities. 5.02 Other Documents. This Agreement is being closed simultaneously with the following additional agreements: Stock Purchase Agreement among this Buyer and SOLIS; the Asset Purchase Agreement by and between Buyer and Crescent Services Corporation; and the Escrow Agreement by and between Buyer and Seller. 2 5.03 Expenses. Each party hereto will pay its own expenses in connection with the transactions contemplated hereby, whether or not such transactions shall be consummated, and the Seller shall not charge any such expenses to the Buyer. 5.04 Survival of Agreements. All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement and the sale and delivery of the Shares pursuant hereto. 5.05 Certain Rules of Interpretation. Any information disclosed in any schedule attached hereto or any certificate furnished in connection herewith shall be deemed disclosed wherever otherwise required, and for all purposes, under this Agreement, whether or not specific reference was made thereto. Inclusion of any information in a schedule or exhibit shall not be deemed an admission as to the materiality of such information or otherwise alter or affect the provisions of the representation or warranty to which the schedule or exhibit relates. 5.06 Parties in Interest. All covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. 5.07 Law Governing. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS. 5.05 Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and may not ho modified or amended except in writing. 5.09 Counterparts. This Agreement, including all agreements executed and delivered hereunder, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 5.10 Time. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the Seller and the Buyer has executed this Agreement or caused this Agreement to be executed on its behalf by its duly authorized representative, as of the day and year first above written. BUYER: SELLER: BERENS INDUSTRIES, INC. YOLANA PARTNERSHIP, LTD. Simkeva, Inc., as General Partner By: Marc I. Berens By: Jeff Hansen -------------------------- ------------------------------------ Marc I. Berens, President Jeff Hansen, President 3 EX-10.3 5 doc5.txt EXHIBIT 10.3 ESCROW AGREEMENT This Escrow Agreement (hereinafter the "Escrow Agreement") is made and entered into this 19th day of July, 2001, by and among Berens Industries, Inc., a Nevada corporation ("Berens"), Yolana Partnership, LTD., a Texas limited partnership that is a control person of Berens ("Yolana" or the "Shareholder"), and Robert D. Axelrod, P.C., as the Escrow Agent ("Escrow Agent"). WHEREAS, Yolana is a control person of Berens and desires to facilitate Berens' acquisition of the capital stock of Solis Communications Corporation, a Texas corporation, ("Solis") because such a stock acquisition will benefit Berens directly and Yolana indirectly. WHEREAS, Berens has entered into that certain Stock Exchange Agreement dated as of July 19, 2001, by and among Berens, and the stockholders of Solis, and Mr. Marc Ivan Berens who is a control person of Berens ("Mr. Berens"), to which this Escrow Agreement is Exhibit "D" (the "Stock Exchange Agreement"). WHEREAS, the Stock Exchange Agreement requires that Yolana deposits into escrow 2,000,000 shares of Berens common stock (the "Escrow Stock" or "Escrow Shares") and that this Escrow Agreement be executed, delivered and performed prior to the execution of the Stock Exchange Agreement. WHEREAS, in connection with the execution of the Stock Exchange Agreement it is necessary to establish an escrow for the Escrow Stock. WHEREAS, the Parties desire that Robert D. Axelrod, P.C. serve as the Escrow Agent in connection with this Escrow Agreement. The defined terms herein have the same meaning as the defined terms in the Stock Exchange Agreement of even date herewith by and among the Parties. NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants and obligations herein contained, the Parties agree hereto as follows: 1. Escrow of Escrow Stock. At the time of executing this Escrow ------------------------- Agreement, the Shareholder shall deliver to the Escrow Agent the following: a. Certificates representing the Escrow Stock which is 2,000,000 shares of common stock of Berens; b. Stock powers for the Escrow Shares, fully executed by the Shareholder covering the certificates delivered in escrow (the "Stock Powers"). The Stock Powers, along with the Escrow Stock, shall hereinafter be collectively referred to as the "Escrowed Documents." c. The Shareholder, by the delivery of the 2,000,000 Escrow Shares to the Escrow Agent, does hereby acknowledge and represent that the Escrow Shares are owned, beneficially and of record, by the Shareholder, free and clear of any liens, claims, equities, charges, options, rights of first refusal or encumbrances and, further, acknowledges and represents that it has the unrestricted right and power to transfer, convey and deliver full ownership of the Escrow Shares without the consent, agreement or joinder of any other person and without any designation, declaration or filing with any governmental authority. 2. Conditions for Release from Escrow. The Escrow Agent is hereby -------------------------------------- instructed to receive and hold the Escrow Shares in escrow until January 10, 2002, unless extended thereafter for 30 days pursuant to Section 2(c) below. (a) On January 10, 2002, the Chief Financial Officer of Berens shall send written notice (the "Escrow Notice") to the Escrow Agent and the Shareholder, informing them of the amount of funds, if any, that has been received by Berens from debt financings, equity financings, or net proceeds from litigation received by Berens in connection with litigation that was initiated by Berens prior to the Closing Date, excluding (i) any litigation initiated by Artmovement.com, Inc., and (ii) any funds received from George Speaks. (b) If the Escrow Notice sets forth that Berens has received greater than $150,000 by January 10, 2002 in connection with the sources of funds listed in Section 2(a), then the Escrow Agent shall release, within five (5) business day of the Escrow notice, the Escrow Documents to the Shareholder. (c) If Berens receives less than $150,000 by January 10, 2002 pursuant to sources listed in Section 2(a), the Escrow Agent shall release within five (5) business days of the Escrow Notice, the number of Escrow Shares equal to 2,000,000 times a fraction, the numerator of which is the amount received pursuant to sources provided in Section 2(a) and the denominator of which is $150,000. In addition, the Shareholder shall have thirty (30) days from January 10, 2002 to make up the difference between the amount received pursuant to Section 2(a) and $150,000 ("Differential Amount"). Shareholder shall have the right to pay the Differential Amount or any portion thereof in cash at the price of the greater of five cents ($.05) per share of Common Stock or the average of the current closing price of the shares of common stock of Berens for the 10 days prior to January 10, 2002. Notwithstanding the foregoing, the Differential Amount or any portion thereof may be paid at terms no less favorable than the terms under which Berens raised capital, if any, pursuant to Section 2(a). (d) Upon receipt of the Differential Amount or any portion thereof, the CFO shall instruct the Escrow Agent to release the number of Escrow Shares equal to 2,000,000 times a fraction, the numerator of which is the amount of Differential Amount paid by the Shareholder and the denominator of which is $150,000. 3. Escrow Period and Delivery. The escrow period shall commence on the -------------------------- date of the execution of this Escrow Agreement, which shall be the same date as the date of the Closing of the Stock Exchange Agreement, and shall continue until the final disposition of the Escrowed Documents in accordance with the terms of this Escrow Agreement (the "Termination"). Once the Escrow Agent has delivered the Escrowed Documents in accordance with the terms of this Escrow Agreement, its duties pursuant to this Escrow Agreement shall be completed and it shall have no further responsibility whatsoever hereunder. 4. The Shareholder hereby agrees that as long as the Escrow Stock is held in escrow pursuant to this Escrow Agreement, it will not take any action to cancel, sell, pledge, assign, dispose of or otherwise transfer the Escrow Stock, except as otherwise provided by this Escrow Agreement. If Berens declares a cash dividend or stock dividend or if Berens splits or subdivides its shares of common stock or issues any shares of its common stock in a reclassification, then any cash dividend or stock dividend to which the Shareholder would be entitled shall be issued directly to the Escrow Agent to hold in escrow in accordance with the terms and conditions of this Escrow Agreement. 5. The Escrow Agent is hereby authorized to exchange the share certificates delivered to it for any number and any denomination of share certificates that the Escrow Agent, in its sole discretion, requires to enable it to release the Escrow Stock from time to time, as required pursuant to this Escrow Agreement. 6. The Escrow Agent shall have no duties or obligations other than those specifically set forth herein or required by law. The acceptance by the Escrow Agent of its duties under this Escrow Agreement is subject to the terms and conditions hereof, which shall govern and control with respect to its rights, duties, liabilities and immunities. 7. Berens and the Shareholder understand and agree that the Escrow Agent is not a principal, participant, or beneficiary of the underlying transactions which necessitate this Escrow Agreement. The Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in acting or refraining from acting on any instrument reasonably believed by it to be genuine and to have been signed or presented by the proper Party or Parties, their officers, representatives or agents. As long as the Escrow Agent has acted in good faith or on the advice of counsel or has not been guilty of willful misconduct, the Escrow Agent shall have no liability under, or duty to inquire beyond the terms and provisions of this Escrow Agreement, and it is agreed that its duties are purely ministerial in nature. The Escrow Agent shall in no event be liable for any exemplary or consequential damages, the Parties understanding that this limitation is provided for in view of the fact that Escrow Agent will receive no compensation (other than reimbursement for expenses), for its services hereunder. 8. The Escrow Agent shall not be obligated to take any legal actions hereunder against any third party who is not a party to this Escrow Agreement which might, in the Escrow Agent's judgment, involve any expense or liability, unless the Escrow Agent shall have been furnished with reasonable indemnity. 9. The Escrow Agent is not bound in any way by any other contract or agreement between or among the Parties hereto whether or not the Escrow Agent has knowledge thereof of its terms and conditions and the Escrow Agent's only duty, liability and responsibility shall be to hold and deal with the Escrowed Documents as herein directed. 10. The Escrow Agent shall not be bound by any modification, amendment, termination, cancellation, rescission or supersession of this Escrow Agreement unless the same shall be in writing and signed by all of the other Parties hereto and, if its duties as Escrow Agent hereunder are affected thereby, unless it shall have given prior written consent thereto. 11. The Parties hereto each jointly and severally agree to indemnify the Escrow Agent against and hold the Escrow Agent harmless from anything which the Escrow Agent may do or refrain from doing in connection with its performance or non-performance as Escrow Agent under this Escrow Agreement and any and all losses, costs, damages, expenses, claims and reasonable attorneys' fees suffered or incurred by the Escrow Agent as a result of, in connection with or arising from or out of the acts of omissions of the Escrow Agent in performance of or pursuant to this Escrow Agreement, except such acts or omissions as may result from the Escrow Agent's willful misconduct. 12. In the event of any disagreement between Berens and the Shareholder or any or either of them concerning this Escrow Agreement or between them, or demands being made in connection with the Escrow Stock, or in the event that the Escrow Agent is in doubt as to what action the Escrow Agent should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, as long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue so to refrain from acting until: a. the rights of Berens and the Shareholder shall have been fully and finally adjudicated by a court of competent jurisdiction; or b. all differences shall have been adjusted and all doubt resolved by agreement between Berens and the Shareholder, and the Escrow Agent shall have been notified thereof in writing signed by all Parties. 13. Should the Escrow Agent become involved in litigation in any manner whatsoever on account of this Escrow Agreement or the Escrow Stock, the Parties hereto (other than Escrow Agent), hereby bind and obligate themselves, their heirs, personal representatives, successors, assigns to pay Escrow Agent, in addition to any charge made hereunder for acting as Escrow Agent, reasonable attorneys' fees incurred by Escrow Agent, and any other disbursements, expenses, losses, costs and damages in connection with or resulting from such actions, unless such litigation is the direct result of the Escrow Agent's own willful misconduct. 14. The terms of these instructions are irrevocable by the undersigned unless such revocation is consented to in writing by each of Berens and the Shareholder. 15. The terms herein shall be binding upon the Escrow Agent and its successors, and upon Berens and the Shareholder. 16. The Escrow Agent may resign as escrow agent in respect of the Escrow Stock by giving written notice to Berens and the Shareholder. The resignation of the Escrow Agent shall be effective, and the Escrow Agent shall cease to be bound by this Escrow Agreement, thirty (30) days following the date such notice of resignation is given. Berens and the Shareholder shall, before the effective date of the resignation of the Escrow Agent, appoint another escrow holder who shall be acceptable to them and that such an appointment, when made, shall be binding on them. Upon appointment by the new escrow holder, the Escrow Agent shall deliver the Escrowed Documents to the new escrow holder whereupon the Escrow Agent shall not be liable for the completion of any further acts pursuant to this Escrow Agreement. In the event that Berens and the Shareholder do not appoint a new escrow holder prior to the expiration of the thirty (30) day period, the Escrow Agent shall be entitled to make application to a court of competent jurisdiction in the State of Texas to be relieved of the obligations upon it and/or to interplead the Escrowed Documents into such court and for directions with respect to the delivery of the Escrowed Documents. The Escrow Agent shall be entitled to act in accordance with the direction of the court without any further liability whatsoever to any other Party. 17. The Escrow Agent will not receive any compensation for the performance of its services in connection with this Escrow Agreement except for the reimbursement of any and all out-of-pocket expenses incurred by the Escrow Agent in connection with the performance of its services hereunder. 18. All notices and other communications provided for herein shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, or overnight air courier guaranteeing next day delivery: (a) If to Berens: Berens Industries, Inc. 701 N. Post Oak, Suite 350 Houston, Texas 77056 Fax: (713) 682-7204 With a copy to: Robert D. Axelrod Axelrod, Smith & Kirshbaum 5300 Memorial Drive, Suite 700 Houston, Texas 77007 Fax: (713) 552-0202 (b) If to Yolana Partnership, Ltd. Yolana Partnership, Ltd. 701 N. Post Oak Road, Suite 350 Houston, Texas, 77024 With copies to: Brewer & Pritchard, P.C. Three Riverway, Suite 1800 Houston, Texas 77056 Fax: (713) 659-5302 (c) If to Escrow Agent to: Robert D. Axelrod, P.C. c/o Axelrod, Smith & Kirshbaum 5300 Memorial Drive, Suite 700 Houston, Texas 77007 Fax: (713) 552-0202 All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; three days after being deposited in the mail, postage prepaid, sent certified mail, return receipt requested, if mailed; and the next day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it. 19. The Shareholders' voting rights for the Escrowed Shares shall not be affected while the Escrowed Shares are held in escrow pursuant to this Escrow Agreement. 20. This Escrow Agreement shall be construed according to the laws of the State of Texas and the Parties submit themselves to the exclusive jurisdiction of the courts of the State of Texas in the event of any dispute. 21. This Escrow Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same. 22. The Escrow Agent and any stockholder, director, officer, partner or employee of the Escrow Agent may have a pecuniary interest in any transaction in which the Parties may be interested, or contract with or lend money to a party or otherwise act as fully and freely with a party as though it were not Escrow Agent under this Agreement. In other words, this Escrow Agreement shall not prevent the Escrow Agent from performing any other activity which it would normally perform. Additionally, nothing herein shall preclude the Escrow Agent from acting in any other capacity for either of the Parties. SPECIFICALLY, THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE ESCROW AGENT AND EMPLOYEES OF THE ESCROW AGENT SERVE AS LEGAL COUNSEL TO SOLIS, TO THE STOCKHOLDERS OF SOLIS IN CONNECTION WITH THE STOCK EXCHANGE AGREEMENT AND MAY ACT IN THE FUTURE AS LEGAL COUNSEL TO BERENS. THE PARTIES EXPRESSLY WAIVE ANY CONFLICT OF INTEREST WHICH MAY ARISE FROM SUCH LEGAL REPRESENTATION AND SERVING AS ESCROW AGENT HEREUNDER. FURTHER, THE SHAREHOLDER EXPRESSLY AGREES THAT SERVING AS ESCROW AGENT WILL IN NO WAY PRECLUDE ESCROW AGENT OR ANY EMPLOYEE OR PARTNER OF ESCROW AGENT FROM CONTINUING TO SERVE AS LEGAL COUNSEL TO THE STOCKHOLDERS OF SOLIS, SOLIS OR IN THE FUTURE TO SERVE AS LEGAL COUNSEL TO BERENS. [SIGNATURES ON FOLLOWING PAGE] IN WITNESS WHEREOF, the Parties hereto have executed this Escrow Agreement effective as of the day and year first above written. BERENS INDUSTRIES, INC. By: ---------------------------------------------- /s/ Marc Ivan Berens, President SHAREHOLDER: YOLANA PARTNERSHIP, LTD. By: /s/ Jeffrey Hansen Simkova, L.L.C., General Partner of Yolana Partnership, Ltd. By: ---------------------------------------------- /s/ Jeffrey Hansen, President of Simkova, L.L.C. ROBERT D. AXELROD, P.C., AS THE ESCROW AGENT By: ---------------------------------------------- /s/ Robert D. Axelrod, President EX-10.4 6 doc6.txt EXHIBIT 10.4 OPTION AND DISTRIBUTION AGREEMENT THIS OPTION AND DISTRIBUTION AGREEMENT ("Agreement"), dated the 19th day of July, 2001, is by and between Berens Industries, a Nevada Corporation ("Parent"), Artmovement.com, Inc., a Nevada corporation and wholly-owned subsidiary of the Parent ("Subsidiary"), Yolana Partnership, Ltd. ("Yolana"), and Manfred Steinberg, Robert Davis, and Jeff Olexa (the "Majority Shareholders"). RECITALS -------- WHEREAS, Parent owns 100% of the capital stock of Subsidiary which consists of 12,960,000 shares of Subsidiary common stock (the "Sub Common Stock"); WHEREAS, Parent and Subsidiary have determined that they may, in the future, elect to distribute the shares of Sub Common Stock to the stockholders of Parent (the "Distribution"); WHEREAS, Parent and Subsidiary have determined that if they elect to distribute the shares of Sub Common Stock to the stockholders that they will register with the Securities and Exchange Commission ("Commission") the Sub Common Stock under the Securities Act of 1933, as amended ("Securities Act") or the Securities Exchange Act of 1934, as amended ("Exchange Act"), as determined by the Parent (the "Registration"), upon the occurrence of certain conditions provided herein; WHEREAS, Manfred Steinberg, Robert Davis, and Jeff Olexa will own all of the Series A Preferred Stock ("Preferred Stock") of the Parent ("Parent Preferred Stock") upon the Closing of the Stock Exchange Agreement (the "Majority Shareholders"); WHEREAS, the Majority Shareholders each desire to grant to Yolana an option to purchase shares of Sub Common Stock to which they may be entitled to receive in the Distribution which are derived from the Preferred Stock; and WHEREAS, this Agreement is contemplated in the Stock Exchange Agreement by and between the Parent, Solis Communications Corporation ("Solis"), the Majority Shareholders, and Marc I. Berens dated July 19, 2001 ("Stock Exchange Agreement"), and the Escrow Agreement by and between the Parent, Yolana and Robert D. Axelrod, P. C., dated July 19, 2001 ("Escrow Agreement"). NOW, THEREFORE, in consideration of the premises and the respective representations, covenants, agreements and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS All terms not defined herein shall have the meanings set forth in the Stock Exchange Agreement and Escrow Agreement. 1 ARTICLE II DISTRIBUTION OF SUB COMMON STOCK Section 2.1. CAPITAL RAISING EFFORTS. In the event that Parent receives prior to January 10, 2002: (a) $600,000 (including amounts received by the Parent pursuant to Section 2(a) of the Escrow Agreement) in debt or equity financing or from litigation initiated by the Parent prior to the Closing Date (excluding any litigation initiated by the Subsidiary or any funds received from George Speaks), or (b) $75,000 from litigation initiated by Subsidiary prior to the Closing Date (as defined in the Stock Exchange Agreement), Parent shall (i) file within forty-five (45) days of January 10,2002 and use its best efforts to render an effective registration statement under the Securities Act or Exchange Act for the purpose of distributing the Sub Common Stock to the shareholders of the Parent ("Registration Statement") and (ii) shall use its best efforts to answer all comments received from the Commission with respect to the Registration Statement or any amendment thereto as soon as commercially reasonable. If the Parent is required to file a Registration Statement pursuant to this Section 2.1, Yolana shall reimburse the Parent for all expenses incurred in connection with the Registration and Distribution of the Sub Common Stock, including but not limited to professional fees, distribution fees, blue sky fees, and all filing fees not later than the effective date of the Registration Statement ("Effective Date"). Section 2.2. RECORD DATE. In the event that the conditions provided in Sections 2.1 is completed, Parent shall establish a record date for the determination of shareholders entitled to receive shares of Sub Common Stock in the Distribution ("Record Date"). ARTICLE III TERMS OF DISTRIBUTION Section 3.1. COOPERATION. Parent and Subsidiary shall cooperate in preparing, filing with the Commission and causing to become effective any registration statements or amendments thereto that are appropriate. Section 3.2. BLUE SKY LAWS. Parent and Subsidiary shall take all such action as may be necessary or appropriate under the securities or blue sky laws of states or other political subdivisions of the United States in connection with the transactions contemplated by this Agreement. Section 3.3. DISTRIBUTION DATE. Subsidiary's board of directors may, in its discretion, establish the distribution date and any appropriate procedures in connection with the Distribution. Section 3.4. DELIVERY OF CERTIFICATES. On the distribution date, Parent shall deliver to the distribution agent, as determined by Subsidiary, a certificate or certificates representing all of the then outstanding shares of Sub Common Stock held by Parent, endorsed in blank, and shall instruct the distribution agent to distribute to each holder of record of Parent Common Stock on the Record Date a certificate or certificates representing such holder of record's allotted share(s) of Sub Common Stock as determined by Subsidiary's board of directors. Subsidiary agrees to provide all certificates for shares of Sub Common Stock that the distribution agent shall require in order to effect the Distribution. 2 Section 3.5. INDEMNIFICATION. Subsidiary agrees to indemnify and hold harmless Parent from all claims, demands or causes of action arising out of the Distribution hereunder. ARTICLE 1V OPTION TO PURCHASE SHARES Section 4.1. OPTION. Each Majority Shareholder grants to Yolana, or its assigns, the option to purchase all the Sub Common Stock which it may be entitled to receive by reason of its ownership of shares of the Parent Preferred Stock (including shares of Parent Preferred Stock which it receives by reason of dividend or stock split), for an aggregate exercise price equal to the par value of the Sub Common Stock to be distributed to the Majority Shareholder (the "Option"). Section 4.2. VESTING; TERMINATION OF OPTION. The Option set forth herein shall vest and be valid only in the event that (i) the conditions set forth in Section 2.1(a) or (b) are met and (ii) Yolana has reimbursed the Parent in full for all of the expenses of the Registration and Distribution of the Sub Common Stock as required by Section 2.1 not later than the Effective Date of the Registration Statement. The Option, if vested, will expire ten (10) days after the Effective Date of the Registration Statement. Section 4.3. EXERCISE OF OPTION. Yolana may exercise the Option by providing written notice to each of the Majority Shareholders of its intent to exercise the Option, along with payment in an amount equal to (i) the par value of the Sub Common Stock ($.001 per share) times (ii) the number of shares of Sub Common Stock which are to be distributed to the Majority Shareholders based upon their ownership of the Parent Preferred Stock. Section 4.4. RESTRICTIONS ON TRANSFER. Each Majority Shareholder hereby agrees not to offer, sell, contract to sell or otherwise transfer, pledge or dispose of, directly or indirectly, any Parent Preferred Stock for a period of six months from the Closing Date ("Lock Up Period"), and represents and warrants that he will keep his shares of Parent Preferred Stock, free and clear of any interests, security interest, claims, liens, pledges, penalties, charges, encumbrances, buy-sell agreements, and any other rights of any party whatsoever of every kind and character during the Lock Up Period. If Parent is required to file a Registration Statement pursuant to Section 2.1, each Majority Shareholder agrees to extend the Lock Up Period for the lesser of (a) three (3) months from the initial filing date of the Registration Statement or (b) ten (10) days after the Effective Date of the Registration Statement ("Extended Lock Up Period"). After the Lock Up Period or the Extended Lock Up Period, if applicable, has expired any stop transfer orders placed on the Majority Shareholders' Parent securities shall be removed and the Majority Shareholders may dispose of their shares. Section 4.5. STOP TRANSFER ORDER. Each Majority Shareholder consents to placing stop-transfer orders with the transfer agent of the Parent's securities with respect to any Parent Preferred Stock which are registered in such shareholder's name, or which are beneficially owned or controlled by such shareholder, during the Lock Up Period or Extended Lock Period. [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.] 3 IN WITNESS WHEREOF the undersigned hereby executes this agreement the ___ day of July, 2001. BERENS INDUSTRIES, INC. MAJORITY SHAREHOLDER: By: /S/ Marc I. Berens By: /S/ Jeff Olexa ------------------------------ --------------------------- Marc I. Berens, President Jeff Olexa ARTMOVEMENT.COM, INC. By: /S/ Robert Davis --------------------------- Robert Davis By: /S/ Marc I. Berens By: /S/ Manfred Sternberg ------------------------------ --------------------------- Marc I. Berens, President Manfred Sternberg Yolana Partnership, Ltd. By: ______________________________ Jeffrey Hansen, President of Simkova, LLC, General Partner 4 EX-10.5 7 doc7.txt EXHIBIT 10.5 July 18, 2001 Berens Industries, Inc. 701 N. Post Oak Road, Suite 350 Houston, Texas 77024 Dear Sirs: Pursuant to Section 6.1(c)(vi) of the Stock Exchange Agreement by and between Berens Industries, Inc. ("BEII"), Solis Communications Corporation, and the shareholders of Solis Communications Corp., I hereby agree and acknowledge that I have pledged 7,000,000 shares of BEII common stock to secure debts ("Pledged Shares"). Manfred Sternberg is aware that such shares have been pledged. If the Pledged Shares are returned within one year from the date hereof, I agree that I will not sell in any public or private transaction any of the Pledged Shares owned by Yolana Partnership, Ltd. I hereby consent to placing a stop transfer order with the transfer agent of BEII and placing a restrictive legend on any certificate representing any of the Pledged Shares. Sincerely, /S/ Jeffrey Hansen ----------------------------------- Jeffrey Hansen, President Simkova, LLC, as General Partner of Yolana Partnership, Ltd. Agreed and Acknowledged: /S/ Manfred Sternberg - ----------------------- Manfred Sternberg Date: 7/19/01 ------- -----END PRIVACY-ENHANCED MESSAGE-----