EXHIBIT
2
AGREEMENT
AND PLAN OF REORGANIZATION
AGREEMENT AND
PLAN OF REORGANIZATION among GABRIEL TECHNOLOGIES, CORPORATION, a
Delaware corporation ("Gabriel Tech"), GABRIEL TECHNOLOGIES, LLC, a
Nebraska Limited Liability Corporation, (“Gabriel
LLC”), and Keith Feilmeier, as Sole Manager of Gabriel under
the Management Agreement and as the authorized representative of
all of the Member of Gabriel LLC
(“Members”).
Whereas,
Gabriel Tech wishes to acquire and Members wish to transfer all of
the issued and outstanding Membership Certificates
(“Certificates”) of Gabriel LLC in a transaction
intended to qualify as a reorganization within the meaning of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended (the "Exchange").
Now,
therefore, Gabriel Tech, Gabriel LLC, and the Members adopt this
Plan of Reorganization and agree as follows:
1.
EXCHANGE OF
STOCK
1.1.
NUMBER OF
SHARES. The Members agree to transfer to Gabriel Tech at the
Closing (defined below) the number of Membership Certificates
evidencing their ownership in Gabriel LLC shown opposite their
names in Exhibit “A”, in exchange for 10,000,000 shares
of voting common stock of Gabriel Tech, having a $0.001 par
value per share.
1.2.
EXCHANGE OF
CERTIFICATES. Members, as holders of the outstanding
Membership Certificates representing ownership of Gabriel LLC shall
surrender such Certificates for cancellation to Gabriel Tech, and
shall receive in exchange a Certificate or Certificates
representing the number of full shares of Gabriel Tech common stock
into which the Membership Certificates of Gabriel LLC so
surrendered shall have been converted. The transfer of
Gabriel LLC Membership Certificates by the Members shall be
effected by the delivery to Gabriel Tech at the closing of the
Certificates representing the transferred Membership Certificates
endorsed in blank or accompanied by lawful powers of transfer
executed in the name of Gabriel Tech.
1.3.
FRACTIONAL
SHARES. Fractional shares of Gabriel Tech common stock shall
not be issued, but in lieu thereof Gabriel Tech shall round up
fractional shares to the next highest whole number.
1.4.
FURTHER
ASSURANCES. At the Closing and from time to time thereafter, the
Members shall execute such additional instruments and take such
other action as Gabriel Tech may request in order more effectively
to sell, transfer, and assign the transferred Membership
Certificates to Gabriel Tech and to confirm Gabriel Tech's title
thereto.
2.
CLOSING
2.1.
MANNER.
The Closing contemplated herein shall be held at the offices
of Heskett & Heskett, of 501 South Johnstone, Suite 501,
Bartlesville, Oklahoma, without requiring the meeting of the
parties hereof, on the 29 th day of July, 2004.
All proceedings to be taken and all documents to be executed
at the Closing shall be deemed to have been taken, delivered and
executed simultaneously, and no proceeding shall be deemed taken
nor documents deemed executed or delivered until all have been
taken, delivered and executed. The date of Closing may be
accelerated or extended by agreement of all the parties to this
Agreement.
2.2.
EXECUTION OF
DOCUMENTS. Any copy, facsimile telecommunication or other
reliable reproduction of this agreement or any signature required
thereon may be used in lieu of an original writing or transmission
or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire
original writing or transmission or original signature.
3.
UNEXCHANGED
CERTIFICATES. Until surrendered, each outstanding
Membership Certificate that prior to the Closing represented
Gabriel LLC Membership Certificates shall be deemed for all
purposes, other than the payment of dividends or other
distributions, to evidence ownership of Gabriel Tech common stock
into which it was converted. No dividend or other
distribution shall be paid to the holders of Membership
Certificates of Gabriel LLC.
4.
REPRESENTATIONS
AND WARRANTIES OF GABRIEL TECH
Gabriel Tech
represents and warrants as follows:
4.1.
CORPORATE
ORGANIZATION AND GOOD STANDING. Gabriel Tech is a corporation
duly organized, validly existing, and in good standing under the
laws of the State of Delaware, and is qualified to do business as a
foreign corporation in each jurisdiction, if any, in which its
property or business requires such qualification.
4.2.
REPORTING
COMPANY STATUS. Gabriel Tech has filed with the Membership
Certificates and Exchange Commission a registration statement on
Form 10-SB which became effective pursuant to the Membership
Certificates Exchange Act of 1934 and is a reporting company
pursuant to Section 12(g) thereunder. Gabriel Tech is
currently in default of its annual and quarterly
reports.
4.3.
CAPITALIZATION.
Gabriel Tech's authorized shares of common stock and
preferred stock are as follows, to-wit:
Common
60,000,000
$
0.001 par value
4.4.
ISSUED STOCK.
All the outstanding shares of its common stock (262,339) are
duly authorized and validly issued, fully paid and
non-assessable.
4.5.
STOCK RIGHTS.
Except as set out by the Order Confirming First Modified Plan
of Liquidation by the Bankruptcy Court in Case No. 03-27973-KCF in
the District of New Jersey, there are no stock grants, options,
rights, warrants or other rights to purchase or obtain Gabriel Tech
common or preferred stock issued or committed to be
issued.
4.6.
CORPORATE
AUTHORITY. Gabriel Tech has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver,
perform and conclude the transactions contemplated by this
agreement and all other agreements and instruments related to this
agreement.
4.7.
AUTHORIZATION.
Execution of this agreement has been duly authorized and
approved by Gabriel Tech's Board of Directors.
4.8.
SUBSIDIARIES.
Gabriel Tech has no subsidiaries.
4.9.
ABSENCE OF
UNDISCLOSED LIABILITIES. Except as may be set out by Exhibit
4.5, Gabriel Tech does not have at that date any liabilities or
obligations (secured, unsecured, contingent, or otherwise) of a
nature customarily reflected in a corporate balance sheet prepared
in accordance with generally accepted accounting
principles.
4.10.
NO MATERIAL
CHANGES. There has been no material adverse change in the
business, properties, or financial condition of Gabriel Tech since
the date of the Gabriel Tech Financial Statements.
4.11.
LITIGATION.
Except as may be set out by attached schedule, there is not,
to the knowledge of Gabriel Tech, any pending, threatened, or
existing litigation, bankruptcy, criminal, civil, or regulatory
proceeding or investigation, threatened or contemplated against
Gabriel Tech or against any of its officers.
4.12.
CONTRACTS.
Except as may be set out by attached schedule, Gabriel Tech
is not a party to any material contract not in the ordinary course
of business that is to be performed in whole or in part at or after
the date of this agreement.
4.13.
TITLE.
Gabriel Tech has no real property or other property, except for the
listed account included in the Gabriel Tech Financial Statements.
4.14.
NO VIOLATION.
Consummation of the Exchange will not constitute or result in
a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment,
decree, law, or regulation to which any property of Gabriel Tech is
subject or by which Gabriel Tech is bound.
5.
REPRESENTATIONS
AND WARRANTIES OF THE MEMBERS
The Members,
individually, represent and warrant as follows:
5.1.
TITLE TO
MEMBERSHIP CERTIFICATES. The Members are the owners, free and clear
of any liens and encumbrances, of the number of Membership
Certificates which are listed in the attached Exhibit
“A” and which they have contracted to
exchange.
5.2.
MEMBERS
RIGHTS. Members disclaim any options, rights, warrants or other
rights to purchase or obtain additional Membership
Certificates.
5.3.
MEMBERS
CERTIFICATES. Members shall transfer herewith all Membership
Certificates of Gabriel LLC owned legally or beneficially by
Members.
5.4.
LITIGATION.
There is no litigation or proceeding pending, or to Members'
knowledge threatened, against or relating to Membership
Certificates of Gabriel LLC held by the Members.
6.
REPRESENTATIONS
AND WARRANTIES OF GABRIEL LLC
Gabriel LLC
represents and warrants as follows:
6.1.
ORGANIZATION
AND GOOD STANDING. Gabriel LLC is a Limited Liability Company
duly organized, validly existing, and in good standing under the
laws of the State of Nebraska and is qualified to do business in
any state in which its property or business requires such
qualification.
6.2.
CAPITALIZATION.
Gabriel LLC's ownership consists of Membership Certificates,
of which 10,000,000 Certificates evidencing ownership interest are
outstanding.
6.3.
ISSUED
CERTIFICATES. All the issued and outstanding Membership
Certificates are duly authorized and validly issued, fully paid and
non-assessable.
6.4.
MEMBERS
RIGHTS. Except as may be set out by attached schedule, there
are no stock grants, options, rights, warrants or other rights to
purchase or obtain Gabriel LLC Certificates issued or committed to
be issued.
6.5.
AUTHORITY.
Gabriel LLC has all requisite power and authority to own,
operate and lease its properties, to carry on its business as it is
now being conducted and to execute, deliver, perform and conclude
the transactions contemplated by this agreement and all other
agreements and instruments related to this agreement.
6.6.
AUTHORIZATION.
Execution of this agreement has been duly authorized and
approved by the Manager and the Members.
6.7.
SUBSIDIARIES.
Except as may be set out by attached schedule, Gabriel LLC
has no subsidiaries.
6.8.
ABSENCE OF
UNDISCLOSED LIABILITIES. Gabriel LLC does not have any
liabilities or obligations (secured, unsecured, contingent, or
otherwise) of a nature customarily reflected in a corporate balance
sheet prepared in accordance with generally accepted accounting
principles.
6.9.
NO MATERIAL
CHANGES. Except as may be set out by attached schedule, there
has been no material adverse change in the business, properties, or
financial condition of Gabriel LLC since the date of the Gabriel
LLC Financial Statements.
6.10.
LITIGATION.
There is not, to the knowledge of Gabriel LLC, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated
against Gabriel LLC or against any of its officers.
6.11. TAX
RETURNS. Except as may be set out by attached schedule, all
required tax returns for federal, state, county, municipal, local,
foreign and other taxes and assessments have been properly prepared
and filed by Gabriel LLC for all years for which such returns are
due unless an extension for filing any such return has been filed.
Any and all federal, state, county, municipal, local, foreign
and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts have
been paid or provided for. The provisions for federal and
state taxes reflected in the Gabriel LLC Financial Statements are
adequate to cover any such taxes that may be assessed against
Gabriel LLC in respect of its business and its operations during
the periods covered by the Gabriel LLC Financial Statements and all
prior periods.
6.12.
NO VIOLATION.
Consummation of the Exchange will not constitute or result in
a breach or default under any provision of any chart
