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EXHIBIT 10.1
AGREEMENT
This
Agreement (this “ Agreement
”) is dated effective as of April 25th, 2008 (the
“ Effective
Date ”) by and between GABRIEL TECHNOLOGIES
CORPORATION , a Delaware corporation (the “
Company
”) and NICHOLAS A. FEGEN
(the “ Consultant
”). The Company and Consultant are sometimes
hereinafter referred to individually as a “ Party
” and collectively as the “ Parties
”.
RECITALS:
WHEREAS , the Consultant has in the past (a) served as an
independent contractor providing business development, financial
consulting, investor relations, strategic planning, and other
services to the Company, and (b) acted as a non-exclusive finder in
connection with the sale by the Company of its debt or equity
securities (a “ Transaction
”) to one or more “accredited investors” (as
defined in Rule 501 of Regulation D promulgated by the Securities
and Exchange Commission) (each, an “ Investor
”), (such services are referred to as the “Consulting
Services” );
WHEREAS , the Company and Consultant desire to settle in
full all outstanding obligations of the Company to the Consultant
for Consulting Services rendered through the Effective Date
pursuant to the terms of this Agreement;
WHEREAS, pursuant to those certain Subscription Agreements
dated November 1, 2004 and December 1, 2004, Consultant purchased
1,000,000 shares of the Company’s common stock, par value
$.001 per share (the “ Common
Stock ”), at an aggregate purchase price of $2,500,000
(the “ Purchase
Price ”);
WHEREAS, as of the date hereof, $1,470,000 of the Purchase
Price (the “ Subscription
Receivable ”) remains unpaid, which represents the
Purchase Price for 588,000 of the 1,000,000 shares of Common Stock
(the “ Unpaid
Shares ”); and
WHEREAS, the Company is willing to forgive the Subscription
Receivable in exchange for Consultant’s agreement to reduce
by 588,000 stock equivalent units the number of stock equivalent
units that the Company would otherwise have issued to Consultant
for Consulting Services, on the terms and subject to the conditions
contained herein.
NOW, THEREFORE , in consideration of the foregoing premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the
Consultant hereby agree as follows:
1.
COMPENSATION AND
CANCELLATION OF SUBSCRIPTION RECEIVABLE . In
consideration of, and in full settlement of all obligations of
the Company for any and all Consulting Services rendered by
the Consultant, the Company shall issue to Consultant, within
3 Business Days after the Effective Date, 308,650 stock
equivalent units of the Company (“ Units
”). Concurrent with execution of this Agreement and the
issuance of the Units, the Parties shall enter into a Stock
Equivalent Unit Participation Agreement (“ Participation
Agreement ”) in form of Exhibit A
attached hereto. The Units shall not be certificated, will be
governed by this Agreement and the Participation Agreement,
and will be represented solely by an account to be maintained
by the Company as set forth in the Participation
Agreement
The
Parties acknowledge and agree that the compensation provided
for in this Section 3 shall be the sole and exclusive
compensation to be received by Consultant for any and all
prior services rendered to the Company up to and including the
Effective Date. Any agreement between the Consultant and the
Company is terminated, effective immediately, at no cost to
either party
2.
NONDISCLOSURE OF
PROPRIETARY INFORMATION . Consultant
acknowledges that he has received information relating to the
Company’s and any of its affiliates’ assets,
operations, clients, and past, present, and future businesses,
including without limitation developments, technical data,
intellectual property, specifications, designs, ideas, product
plans, research and development, personal information,
financial information, customer lists, business methods and
operations, strategic plans, marketing plans and pricing
information, all of which are proprietary to the Company and
involve trade secrets, know-how, techniques, and combinations
of known information of a character regarded by the Company as
confidential, as well as other information that the Company
has indicated to be confidential or which, by the nature of
the information or the circumstances of its disclosure,
Consultant ought reasonably to consider confidential (all of
the foregoing, collectively, the “ Proprietary
Information ”). The Proprietary
Information does not include information which (i) at the time
it is disclosed by the Consultant was already in the public
domain; (ii) is subsequently published or publicly disclosed
by persons other than Consultant through no fault of
Consultant; (iii) is subsequently acquired by Consultant from
a third party having no obligation of confidentiality toward
the Company with respect to such information; or (iv) is known
to Consultant at the time of disclosure, provided that
Consultant shall have the burden of establishing such prior
knowledge by competent written proof. If Consultant is
compelled by law to disclose Confidential Information, he
shall use his best efforts to give the Company 10 days prior
written notice of compelled disclosure and shall limit such
disclosure to the extent legally possible.
Consultant
agrees that Consultant will not disclose any Proprietary
Information to any person or entity, except with the
Company’s consent, and that, similarly, without the
Company’s consent, will not use such information for the
benefit of any person or entity other than the Company at any
time. Consultant agrees that Consultant will deposit with or
return to the Company all copies (in any media, including,
without limitation, electronic storage media) of documents,
records, notebooks or any other information or documentation
of the Company’s Proprietary Information, and all
derivatives thereof, whether the Proprietary Information or
documentation that was developed or prepared by Consultant or
by others. Consultant acknowledges that this covenant of
nondisclosure is an integral part of this Agreement and is
given in consideration of the engagement of Consultant and the
other consideration granted in this Agreement.
3.
COMPANY’S
REPRESENTATIONS . Company represents and
warrants with and to Consultant as follows
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(a)
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The
Company is free to enter into this Agreement and to perform each of
its terms and covenants hereunder.
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(b)
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The
Company is not restricted nor prohibited, contractually or
otherwise, from entering into and performing this Agreement, and
the Company’s execution and performance of this Agreement is
not a violation or breach of any other agreements between the
Company and any other person or entity.
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(c)
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This
Agreement is a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms.
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4.
CONSULTANT
REPRESENTATIONS . Consultant represents and
warrants with and to the Company as follows:
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(a)
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Consultant
is free to enter into this Agreement and to perform each of its
terms and covenants hereunder.
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(b)
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Consultant
is not restricted nor prohibited, contractually or otherwise, from
entering into and performing this Agreement, and Consultant’s
performance of this Agreement, and the receipt of compensation
hereunder, is not a violation or breach of any federal, state or
local order, law or regulation of any governmental body, or a
violation or breach of any agreements between Consultant and any
other person or entity.
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(c)
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This
Agreement is a legal, valid and binding agreement of Consultant,
enforceable in accordance with its terms.
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(d)
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Neither
Consultant nor any agent of Consultant has: (i) participated in any
negotiations between any Investor and the Company; (ii) handled any
funds from any Investor; (ii) made any recommendations to a
potential Investor regarding the Company or an investment in the
Company; (iii) participated in any advertisement, endorsement or
solicitation regarding an Investor’s investment in the
Company; (iv) participated in the preparation or distribution of
any materials relating to the investment by an Investor in the
Company; (v) performed any independent analysis or due diligence or
rendeedr any advice regarding the valuation of an investment by any
Investor in the Company; (vi) assisted any Investor in obtaining
any financing for investment by any Investor in the Company; (vii)
been associated with or subject to the direction, control or
supervision of the Company; or (viii) been, engaged in the business
of effecting transactions in securities for the account of
others.
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(e)
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Neither
Consultant nor any agent of Consultant is an officer, director,
controlling person or employee of the Company or any of its
affiliates.
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(f)
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Consultant
is not, and was not at the time of any Transaction, required to
register with the United States Securities and Exchange Commission
as a Broker or Dealer (as such terms are defined in Section 3
of the Securities Exchange Act of 1934, as amended) in order to
consummate the transactions described in this
Agreement.
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(g)
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Consultant
recognizes that acquiring the Units involves a high degree of risk
and is suitable only for persons of adequate financial means who
have no need for liquidity of the Units;
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(h)
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Consultant
(i) is competent to understand and does understand the nature of
the Units, and (ii) is able to bear the economic risk of the
Units;
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(i)
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Consultant
is an accredited investor as defined in Rule 501 of Regulation D
promulgated by the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the “ Act
”);
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(j)
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Consultant
has significant prior investment experience, including investment
in nonlisted and nonregistered securities, and recognizes the
highly speculative nature of this investment, and is able to bear
the economic risk hereby assumed;
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(k)
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All
information regarding the Company which was requested or desired by
Consultant has been furnished, all other documents which could be
reasonably provided have been made available for inspection and
review, and Consultant believes that such information is sufficient
to make an informed decision with respect to its acquiring the
Units;
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(l)
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Consultant
is acquiring the Units for its own account, for investment, and not
for distribution or resale to others; and
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(m)
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Consultant
may not assign or transfer the Units except by will, by the laws of
descent and distribution, or pursuant to a qualified domestic
relations order as defined in the Internal Revenue Code of 1986, as
amended .
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5.
INDEMNIFICATION BY
CONSULTANT . Consultant agrees to indemnify,
defend, and shall hold harmless the Company, its subsidiaries,
directors, officers, employees and agents, from and against any and
all claims, demands, causes of action, debts or liabilities,
including reasonable attorneys’ fees (collectively, “
Damages
”), to the extent that any such Damages is based upon or
arises out of (i) a breach of any of Consultant’s
representations and warranties contained herein, (ii) the gross
negligence or willful misconduct of Consultant, or (iii) a
violation of any federal or state laws by Consultant.
6.
SEVERABILITY AND
SAVINGS CLAUSE . If any one or more of the
provisions contained in this Agreement is for any reason (i)
objected to, contested or challenged by any court, government
authority, agency, department, commission or instrumentality of the
United States or any state or political subdivision thereof, or any
securities industry self-regulatory organization (collectively,
“ Governmental
Authority ”), or (ii) held to be invalid, illegal or
unenforceable in any respect, the Parties hereto agree to negotiate
in good faith to modify such objected to, contested, challenged,
invalid, illegal or unenforceable provision. It is the intention of
the Parties that there shall be substituted for such objected to,
contested, challenged, invalid, illegal or unenforceable provision
a provision as similar to such provision as may be possible and yet
be acceptable to any objecting Governmental Authority and be valid,
legal and enforceable. Further, should any provisions of this
Agreement ever be reformed or rewritten by a judicial body, those
provisions as rewritten will be binding, but only in that
jurisdiction, on Consultant and the Company as if contained in the
original Agreement. The invalidity, illegality or unenforceability
of any one or more provisions hereof will not affect the validity
and enforceability of any other provisions hereof.
7.
SUCCESSORS;
ASSIGNMENT . This Agreement and the rights and
obligations under this Agreement shall be binding upon and inure to
the benefit of the Parties to this Agreement and their respective
successors and permitted assigns. Neither this Agreement nor any
rights or benefits under this Agreement may be assigned by either
Party to this Agreement without the other Party’s prior
written consent.
8.
ENTIRE AGREEMENT;
AMENDMENT . This Agreement and the Participation
Agreement supersede any and all other agreements, either oral or in
writing, between the Parties with respect to the engagement and
compensation of the Consultant by the Company (including any
previously executed agreement that has not been fully performed by
both Parties), and contains all of the covenants and agreements
between the Parties with respect thereto. This Agreement can only
be amended by the Parties in writing, executed by the Party against
whom enforcement of any modifications may be sought.
9.
GOVERNING LAW
. This Agreement will be governed and construed in
accordance with the laws of Omaha, Nebraska, without resort to the
conflict of law principles thereof. Any lawsuit brought
to enforce or interpret this Agreement must be filed and
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