REORGANIZATION AGREEMENT
This Reorganization Agreement ("Agreement") is made and entered into this
_____ day of December, 1999, between and among (i) Berens Industries, Inc., a
Nevada corporation, which is referred to herein as "Company," (ii)
Artmovement.com, Inc., a Nevada corporation, which is referred to herein as
"Artmovement," and (iii) those persons identified in Schedule A-1 attached
hereto, who are the beneficial owners of 12,960,000 shares of common stock of
Artmovement, $.001 par value per share, which constitutes 100% of the issued and
outstanding capital stock of Artmovement (the "Artmovement Shareholders").
WHEREAS, the Artmovement Shareholders, as set forth in Schedule A-1 hereto,
own and have the right to sell, transfer and convey, 12,960,000 shares of
Artmovement's common stock which constitutes one hundred percent (100%) of the
issued and outstanding capital stock of Artmovement; and
WHEREAS, the Company wishes to acquire one hundred percent (100%) of the
issued and outstanding capital stock of Artmovement, including those shares
presently held by the Artmovement Shareholders, as set forth in Schedule A-1
hereto on a share for share basis; and
WHEREAS, the Artmovement Shareholders have agreed to deliver 12,960,000
shares of Artmovement's common stock which constitutes one hundred percent
(100%) of the issued and outstanding shares of common stock of Artmovement to
the Company in exchange for 12,960,000 newly issued shares of the Company's
$.001 par value per share common stock; and
WHEREAS, the parties hereto wish to formalize the above mentioned
agreements and thereafter accomplish such exchange on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties hereto have agreed and by these
presents do hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES BY ARTMOVEMENT AND THE ARTMOVEMENT
SHAREHODLERS. Artmovement and the Artmovement Shareholders, hereby jointly and
severally make the following express representations and warranties to the
Company:
A. Artmovement is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada and has the
corporate power to own its property and carry on its business in the State
of Nevada. Copies of Artmovement's Certificate of Incorporation and By-Laws
have heretofore been furnished to the Company by Artmovement and/or the
Artmovement Shareholders, and all such copies are true, correct and
complete copies of the original Articles of Incorporation and By-Laws
including all amendments thereto.
B. Artmovement has the corporate authority to issue a total of
15,000,000 shares of common stock, of which 12,960,000 shares have been
issued and are outstanding.
C. The Artmovement Shareholders have full power and authority to
exchange the 12,960,000 shares of Artmovement's common stock which are held
by them upon the terms and conditions provided for in this Agreement, and
said shares of common stock have been duly and validly issued and will be
free and clear of any lien or other encumbrance on the Closing Date
specified herein.
D. Artmovement is not involved in any pending or threatened litigation
which would, or might, materially affect its financial condition and which
has not been disclosed to the Company in writing.
E. Artmovement has good and marketable title to all of the property
and assets free and clear of any and all liens, encumbrances or
restrictions, except for:
(1) taxes and assessments which may become due and payable in the
ordinary course of business; and
(2) easements or other minor restrictions with respect to its
property which do not materially affect the present use of such
property.
F. There are no unpaid assessments or proposed assessments of State or
Federal income taxes pending against Artmovement and all liabilities for
Federal and State income or franchise taxes, as shown on the tax returns
filed, or to be filed, by Artmovement, have been paid or the liability
therefor has been provided for and all Federal and State income or
franchise taxes for periods subsequent to the periods covered by said
returns likewise have been paid or adequately accrued; except where the
failure to pay would not have a material adverse effect on the business of
Artmovement.
G The Artmovement Shareholders are acquiring the common stock of the
Company, solely for their own accounts, for investment, and not with a view
to any subsequent "distribution" thereof within the meaning of the Act. The
Artmovement Shareholders understand that the Company's common stock has not
been registered under the Act or securities laws of any State ("State Act")
by reason of the specific exemptions therefrom, which exemptions depend in
part upon their subjective investment intent as expressed herein.
H. The Artmovement Shareholders hereby acknowledge that:
(1) They are an "Accredited Investor" as such term is defined in
Regulation D promulgated under the Act, or they have such knowledge
and experience in financial and business matters that they are capable
of evaluating the merits and risks of the proposed exchange of
Artmovement's securities for securities of the Company, and
(2) They are able to bear the economic risks of the investment in
the Company'ssecurities and they are able to protect their own
interests in an investment of this nature.
Artmovement and the Artmovement Shareholders further represent and warrant
that all of the representations and warranties set forth above are true as of
the date of this Agreement, shall be true at the Closing Date and shall survive
the Closing for a period of one year from the Closing Date.
2. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company hereby
makes the following express representations and warranties to Artmovement and
the Artmovement Shareholders:
A. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada and has the
corporate power to own its properties and carry on its business as now
being conducted. Certified copies of the Company's Articles of
Incorporation and By-Laws have heretofore been furnished to Artmovement by
the Company, and all such copies are true, correct and complete copies of
the original Articles of Incorporation and By-Laws including all amendments
thereto.
B. The Company has the corporate authority to issue a total of
50,000,000 shares of $.001 par value per share common stock, of which
4,500,000 shares are presently issued and outstanding. The Company has the
corporate authority to issue a total of 10,000,000 shares of $.001 par
value per share preferred stock, of which no shares are presently issued
and outstanding. The Company has outstanding options to purchase an
aggregate of 798,750 shares of Company common stock.
C. The Company has the corporate power and authority to execute and
perform all of its duties and obligations under the terms of this Agreement
and to issue and deliver to the Artmovement Shareholders, those shares of
its $.001 par value per share common stock that are required to be issued
and delivered under the terms of this Agreement
D. The execution and delivery of this Agreement, and the issuance of
the Company's $.001 par value per share common stock required to be issued
hereunder, will have been duly authorized by all necessary corporate action
and neither the execution nor delivery of this Agreement nor the issuance
of the Company's $.001 par value per share common stock, nor the
performance, observance or compliance with the terms and provisions of this
Agreement will violate any provision of law, any order of any court or
other governmental agency, the Articles of Incorporation or By-Laws of the
Company or any indenture, agreement or other instrument to which the
Company is a party, or by which it is bound or by which any of its property
is bound.
e I. The Company is not involved in any pending or threatened
litigation which would, or might, materially affect its financial condition
and which has not been disclosed to Artmovement and the Artmovement
Shareholders in writing.
F. The Company has duly and timely filed or prior to Closing will file
with any federal, state, local or foreign governmental taxing authority,
body or agency, all federal, state, local and foreign tax returns,
declarations, reports estimates, informational returns and statements
(collectively ("Returns") required to be filed or sent by or on behalf of
the Company, at or prior to the date of Closing, and all such Returns are
or will be true, correct and complete. There are no unpaid assessments or
proposed assessments of State or Federal income taxes pending against the
Company. All liabilities for Federal and State income or franchise taxes,
as shown on the tax returns filed, or to be filed, by the Company, have
been paid or the liability therefor has been provided for and all Federal
and State income or franchise taxes for periods subsequent to the periods
covered by said returns likewise have been paid or adequately accrued;
except where the failure to pay would not have a material adverse effect on
the business of the Company.
G. The shares of the Company's $.001 par value per share common stock
which will be delivered to the Artmovement Shareholders pursuant to the
terms of this Agreement will, on delivery in accordance with the terms
hereof, be duly authorized, validly issued and fully paid and non
assessable.
H. Except as set forth in the audited balance sheet of the Company as
set forth in the Company's SEC filings, the Company has no material claims
against it, liabilities or indebtedness, contingent or otherwise. The
Company does not know or have reason to know of any basis for the assertion
against the Company of any liability of any material nature or in any
material amount not fully reflected or reserved against in the Company's
audited balance sheet.
The Company further represents and warrants that all of the representations
and warranties set forth above are true as of the date of this Agreement, shall
be true at the Closing Date and shall survive the closing for a period of one
year from the Closing Date.
3. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company hereunder shall be subject to the following conditions:
A. The Company shall not have discovered any material error,
misstatement or omission in any of the representations and warranties made
by Artmovement, and/or the Artmovement Shareholders herein and all the
terms and conditions of this Agreement to be performed and complied with
have been performed and complied with.
B. There shall have been no substantial adverse changes in the
financial condition, business or operations of Artmovement from the date of
this Reorganization Agreement, until the Closing Date, except for changes
resulting from operations in the usual and ordinary course of its business,
and between such dates no business and assets of Artmovement shall have
been materially adversely affected as the result of any fire, explosion,
earthquake, flood, accident, strike, lockout, combination of the workmen,
taking over of any such assets by any governmental authorities, riot,
activities of armed forces, or Acts of God or of the public enemies.
4. CONDITIONS TO THE OBLIGATIONS OF THE ARTMOVEMENT SHAREHOLDERS AND
ARTMOVEMENT. The obligations of the Artmovement Shareholders and Artmovement
hereunder are subject to the following conditions:
A. The Artmovement Shareholders and Artmovement shall not have
discovered any material error or misstatement in any of the representations
and warranties made by the Company herein and all the terms and conditions
of this Agreement to be performed and complied with by the Company have
been performed and complied with.
B. There shall have been no substantial adverse changes in the
financial condition, business or operations of the Company, except for
changes resulting from those operations in the usual ordinary course of the
business, and no business and assets of the Company shall have been
materially adversely affected as the result of any fire, explosion,
earthquake, flood, accident, strike, lockout, combination of the workmen,
taking over of any such assets by any governmental authorities, riot,
activities of armed forces, or Acts of God or of the public enemies.
5. CLOSING DATE. The Closing of this Agreement ("Closing Date") shall
take place on or before____________________.
6. EXCHANGE OF SECURITIES. Subject to the terms and conditions set
forth herein, At the time of the Closing referred to in Section 5 hereof, the
Company will issue and deliver, or cause to be issued and delivered to the
Artmovement Shareholders identified in Schedule A-1 hereto certificates
evidencing the ownership of the securities as designated therein and
concurrently therewith the Artmovement Shareholders identified in Schedule A-1
hereto shall directly or through their agent deliver or cause to be delivered to
the Company, certificates evidencing the ownership of securities as designated
therein, all duly endorsed to the Company.
7. ACTIONS AT THE CLOSING. At the Closing of this Agreement, the
Company and the Artmovement Shareholders will each deliver, or cause to be
delivered to the other, the securities to be exchanged in accordance with
Section 6 of this Agreement and each party shall pay any and all Federal and
State taxes required to be paid in connection with the issuance and the delivery
of their own securities. All stock certificates shall be in the name of the
party to which the same are deliverable. In addition to the above mentioned
exchange of certificates, the following transactions will take place at the
Closing Date.
THE COMPANY WILL DELIVER TO THE ARTMOVEMENT SHAREHOLDERS AND ARTMOVEMENT:
A. Duly certified copies of corporate resolutions and other corporate
proceedings taken by the Company to authorize the execution, delivery and
performance of this Agreement;
B. A certificate executed by a principal officer of the Company
attesting to the fact that all of the foregoing representations and
warranties of the Company are true and correct as of the Closing Date and
that all of the conditions to the obligations of the Artmovement
Shareholders, which are to be performed by the Company have been performed
as of the Closing Date;
THE ARTMOVEMENT SHAREHOLDERS AND ARTMOVEMENT WILL DELIVER TO THE COMPANY:
A. Duly certified copies of corporate resolutions and other corporate
proceedings taken by Artmovement to authorize the execution, delivery and
performance of this Agreement;
B. A certificate of corporate good standing for Artmovement from the
Secretary of State of the State of Nevada which shall be dated no more than
60 days prior to the Closing Date; and
C. A certificate by a principal officer of Artmovement that each of
the representations and warranties of the Artmovement are true and correct
as of the Closing Date and that all of the conditions to the obligations of
the Company which are to be performed by Artmovement and have been
performed as of the Closing Date.
D. An incumbency certificate including the Company's Articles of
Incorporation (including any amendments thereto), By-Laws (including any
amendments thereto), and Corporate Resolutions.
8. CONDUCT OF BUSINESS. Between the date hereof and the Closing Date,
Artmovement shall conduct its business in the same manner in which it has
heretofore been conducted and the Shareholders will not permit Artmovement to
(1) enter into any contract, other than in the ordinary course of business, or
(2) declare or make any distribution in the nature of a dividend or return of
capital to the Artmovement Shareholder's, without first obtaining the written
consent of the Company.
9. FUTURE REGISTRATION. The Artmovement Shareholders understand that
because the Company's common stock has not been registered under the Act or any
State Act, they must hold the Company's common stock indefinitely, and cannot
dispose of any or all of them unless such they are subsequently registered under
the Act and any applicable State Act, or exemptions from registration are
available. The Artmovement Shareholders further understand that the Company
may, as a condition to the transfer of any of the shares of the Company's common
stock requires that the request for transfer be accompanied by an opinion of
counsel, in form and substance satisfactory to the Company, provided at such
Artmovement Shareholder's expense, to the effect that the proposed transfer does
not result in violation of the Act or any applicable State Act, unless such
transfer is covered by an effective registration statement under the Act and is
in compliance with all applicable State Acts.
10. TRANSFERABILITY. All shares of the Company's common stock which are
issued to the Artmovement Shareholders, pursuant to the terms of this Agreement
shall be "restricted securities" within the meaning of Rule 144 of the Act. The
Company shall issue stop transfer instructions to the transfer agent for its
common stock and shall place the following legend on the certificates
representing such stock.
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED PURSUANT TO A
TRANSACTION EFFECTED IN RELIANCE UPON AN EXEMPTION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND HAVE NOT BEEN THE SUBJECT TO A REGISTRATION
STATEMENT UNDER THE ACT OR ANY STATE SECURITIES ACT. THE SECURITIES MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR APPLICABLE
EXEMPTION THEREFROM UNDER THE ACT OR ANY APPLICABLE STATE SECURITIES ACT."
11. ACCESS TO INFORMATION. Concurrently herewith, the Company has
delivered to the Artmovement Shareholders correct and complete copies of all
documents and records requested by the Shareholders. In addition, the
Artmovement Shareholders have had the opportunity to ask questions of, and
received answers from, officers and directors of the Company, and persons acting
on its behalf concerning such information and the terms and conditions of the
Agreement, and have received sufficient information relating to the Company to
enable them to make an informed decision with respect to the acquisition of the
common stock.
12. NO SOLICITATION. At no time were the Artmovement Shareholders
presented with or solicited by any leaflet, public promotion meeting, circular,
newspaper or magazine article, radio or television advertisement, or any other
form of general advertising in connection with their acquisition of the
Company's common stock.
13. EXPENSES. The Artmovement Shareholders and Artmovement and the
Company shall each pay their respective expenses incident to this Agreement and
the transactions contemplated hereby, including all fees of their counsel and
accountants, whether or not such transactions shall be consummated.
14. FINDERS. The Artmovement Shareholders and Artmovement shall
indemnify and hold the Company harmless against and with respect to all claims
or brokerage or other commissions relative to this Agreement or the transactions
contemplated hereby, based on any agreements, arrangements, or understandings
claimed to have been made by the Artmovement Shareholders and Artmovement with
any third party. The Company shall indemnify and hold the Artmovement
Shareholders and Artmovement harmless against and with respect to all claims for
brokerage or other commissions relative to this Agreement or the transactions
contemplated hereby, based in any agreements, arrangements, or understandings
claimed to have been made by the Company with any third party. Except as
provided in Schedule C, each party to this Agreement represents and warrants to
each other party that it has not dealt with and does not know of any person,
firm or corporation asserting a brokerage, finder's or similar claim in
connection with the making or negotiation of this Agreement or the transactions
contemplated hereby.
15. ATTORNEY'S FEES. In the event of any litigation among the parties
related to this Agreement, the prevailing party shall be entitled to reasonable
attorney's fees and costs to be fixed by the court, said fees to include appeal
and collection of judgment.
16. MISCELLANEOUS.
A. This Agreement shall be controlled, construed and enforced in
accordance with the laws of the State of Texas, excluding any principle or
provision thereof that would require application of the laws of any other
jurisdiction.
B. This Agreement shall not be assignable by either party without
prior written consent of the other.
C. All paragraph headings herein are inserted for convenience only.
This Agreement may be executed in several counterparts, each of which shall
be deemed an original, which together shall constitute one and the same
instrument.
D. This Agreement sets forth the entire understanding between the
parties, there being no terms, conditions, warranties or representations
other than those contained herein, and no amendments hereto shall be valid
unless made in writing and signed by the parties hereto.
E. This Agreement shall be binding upon and shall inure to the benefit
of the heirs, executors, administrators and assigns of the Artmovement
Shareholders and Artmovement and upon the successors and assigns of the
Company.
F. All notices, requests, instructions, or other documents to be given
hereunder shall be in writing and sent by registered mail:
IF TO ARTMOVEMENT SHAREHOLDERS OR ARTMOVEMENT:
____________________________
____________________________
____________________________
____________________________
IF TO THE COMPANY:
Marc I. Berens
Berens Industries, Inc.
701 N. Post Oak Road, Suite 350
Houston, Texas 77024
WITH COPIES TO:
Brewer & Pritchard P.C.
Attention: Thomas Pritchard, Esq.
1111 Bagby Street
Suite 2450
Houston, Texas 77002
G. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute the same
instrument.
REORGANIZATION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
Berens Industries, Inc., a
Nevada corporation
By:________________________
Print Name:_________________
Title:_______________________
REORGANIZATION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
ARTMOVEMENT.COM, INC., A NEVADA CORPORATION
By:_______________________
Print Name:________________
Title:_____________________
ARTMOVEMENT.COM, INC.
COUNTERPART
REORGANIZATION AGREEMENT SIGNATURE PAGE
ARTMOVEMENT.COM, INC. SHAREHOLDER
The undersigned, in his, her or its capacity as the beneficial owner of
_______________ shares of common stock of Artmovement.com, Inc., a Nevada
corporation (the "Company"), hereby joins in and executes the Reorganization
between and among National Air Corporation, the Company and those Shareholders
of the Company that shall execute and deliver this Counterpart Signature Page to
the Reorganization Agreement.
The undersigned hereby grants a Special Power of Attorney to the duly
authorized officers of the Company and constitutes and appoints such officers as
his, her or its true and lawful Attorney-In -Fact with full power and authority
to act in his, her or its name, place and stead to execute, acknowledge and
swear to the Reorganization Agreement on his, her or its behalf if, as and when
such Reorganization Agreement is executed by the Company.
Such officers and the Company are also specifically authorized and
empowered to attach this Signature Page to the executed Reorganization Agreement
with the same force and legal effect as would obtain if the undersigned had
personally performed such act. The Power of Attorney granted hereby shall be
deemed to be a power coupled with an interest, which is irrevocable and shall
survive the death, incompetency or incapacity of the undersigned.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart Signature
Page in the City of ____________ State of _____________ this ________ day of
_________ 1999.
_________________________________
Signature
________________________________
Name Printed
________________________________
Street Address
_______________________________
City, State, Zip