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Exhibit 10.1
UNITS PURCHASE AGREEMENT
THIS AGREEMENT (“
Agreement ”) is made and entered into as of the
__ day of October, 2007 by and between ELLIOTT BROIDY,
RICHARD SELBY, JAMES H. ZUKIN, BRADLEY H. MINDLIN, LARS HENS,
MATAN CASPY, NORMAN F. SIEGEL, Trustee of the Norman F.
Siegel Living Trust dated July 26, 2005, as amended, BRADLEY
H. MINDLIN, Trustee of the Broidy Siblings United Trust FBO
Rachel Golda Broidy, BRADLEY H. MINDLIN, Trustee of the
Broidy Siblings United Trust FBO Lauren Hannah Broidy, and
BRADLEY H. MINDLIN, Trustee of the Broidy Siblings United
Trust FBO Nathaniel David Broidy (hereinafter collectively
referred to as “ Buyer ” or
“Buyers”) and GABRIEL TECHNOLOGIES CORPORATION, a
Delaware corporation (“ Seller
”). The parties to this Agreement are
sometimes referred to herein individually as a “
Party ” and collectively as the “
Parties ”.
W
I T N E S S E T H:
WHEREAS, Seller is the
owner of Nine Thousand Three Hundred and Sixty Eight (9,368)
of the Class A Membership Units (each individually a “
Unit ” and collectively the “ Units
”) of Resilent, LLC, a Nebraska limited liability
company, (the “ Company ”).
WHEREAS, Buyer has agreed
to purchase, in the percentages as set forth on Exhibit
“A” , and Seller has agreed to
sell the Units, as more particularly set forth herein, at a
total purchase price of $40 per Unit; and
WHEREAS, the Parties to
this Agreement desire to memorialize their respective rights
and obligations in connection with said purchase and sale in
this written instrument.
NOW THEREFORE, in
consideration of the foregoing, and the mutual covenants and
promises contained herein, the receipt and sufficiency of
which are hereby acknowledged, the Parties to this Agreement
hereby agree as follows:
1.
Purchase and Sale of Units .
Buyer agrees to purchase
and Seller agrees to sell to Buyer the Units, subject to the
remaining terms and provisions of this
Agreement.
2.
Purchase Price and Manner of Payment .
In
consideration of the foregoing purchase and sale, Buyer agrees
to pay to Seller Forty Dollars ($40) per Unit, or a total sum
of Three Hundred Seventy Four Thousand Seven Hundred and
Twenty Dollars ($374,720) as the purchase price for the Units
(the “Purchase Price”). The Purchase
Price shall be paid in accordance with Section 11 of this
Agreement and subject to the provisions of Section 8 of this
Agreement.
3.
Closing Date .
It is specifically
understood and agreed that the effective date of this
Agreement shall be as of the date of closing of the
transactions contemplated hereby (the “ Closing
Date ”) as more fully described in Section 11 of
this Agreement. The Parties agree that all
equitable right, title and interest in and to the Units shall
pass to Buyer as of the Closing Date even though a change in
record title may not be accomplished until a later
date. The Parties agree to take all steps as may
be necessary and appropriate in order to accomplish the
transfer of legal title to the Units and consummate the other
portions of this Agreement as expeditiously as
possible. The Closing Date shall be on or before
October 10, 2007 and shall occur in the offices of
Buyer’s counsel, Lamson, Dugan and Murray, LLP, 10306
Regency Parkway Drive, Omaha, Nebraska, 68114.
4.
Representations, Warranties and Covenants of Seller
.
Seller
represents, warrants and covenants to Buyer as follows, each
of which shall be true and correct as of the date of this
Agreement and as of the Closing Date:
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(a)
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Seller
has sole and exclusive ownership of all of the
Units. There are no judgments, liens, or other
encumbrances upon the Units except as set forth on Schedule
4(a).
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(b)
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Seller
has carefully reviewed the transactions contemplated by this
Agreement. After reviewing and discussing the matter,
Seller’s Board of Directors has agreed that it is in the best
interests of Seller to enter into this Agreement. A true
and correct copy of the Resolution of Seller’s Board of
Directors approving and authorizing Seller to enter into this
Agreement is attached hereto as Exhibit
“B”.
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(c)
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Seller
has all requisite power and authority to enter into this Agreement,
to sell the Units hereunder and to carry out and perform its other
obligations under the terms of this Agreement.
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(d)
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This
Agreement has been duly executed and delivered by Seller and
constitutes the valid and legally binding obligation of Seller,
enforceable in accordance with its terms. Seller is not
required to give any notice to, make any filing with or obtain any
authorization, consent or approval of any authority or person in
order for the Parties to consummate the transactions contemplated
by this Agreement. All corporate actions on the part of
Seller and any applicable third party necessary for the purchase
and sale of the Units hereunder have been taken.
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(e)
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Neither
the execution or delivery of this Agreement, nor the consummation
of the transactions contemplated herein will violate any provision
of the Articles of Incorporation, Bylaws or any other agreement or
instrument to which Seller is a party, or to which the Units are
subject.
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(f)
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No
authorization, approval or consent of any court or governmental
instrumentality is or will be necessary in order to make the
execution and delivery of this Agreement or the consummation of the
transaction contemplated herein legally enforceable against
Seller.
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(g)
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Seller
has good and marketable title to the Units and, as of the Effective
Date, will transfer and convey same to Buyer free and clear of all
options, proxies, voting trusts, voting agreements, judgments,
pledges, charges, rights of first refusal or first offer, claims,
transfer restrictions, liens, security interests and other
encumbrances of every kind or nature whatsoever, other than those
items listed on Schedule 4(a), whether arising by agreement,
operation of law or otherwise, except those imposed by this
Agreement or securities laws generally .
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(h)
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Seller
has had the opportunity to receive all information deemed necessary
by Seller in order to evaluate the fairness of the terms of this
Agreement. Seller acknowledges that Seller has had representation
on the Board of Directors of the Company and has thorough knowledge
of the financial condition and operations of the
Company.
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