Unassociated Document


    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

     

    
      
         

      

      
        1

        
          

        

      

      
         

      

    

     

    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

     

    
      	
               
      

            	
              (a)

            	
              The
      Company is free to enter into this Agreement and to perform each of its
      terms and covenants hereunder.

            


    

     

    
      	
               
      

            	
              (b)

            	
              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.

            


    

     

    
      	
               
      

            	
              (c)

            	
              This
      Agreement is a legal, valid and binding agreement of the Company,
      enforceable in accordance with its
terms.

            


    

     

    4.    CONSULTANT
REPRESENTATIONS.  Consultant represents and warrants with and
to the Company as follows:

     

    
      	
               
      

            	
              (a)

            	
              Consultant
      is free to enter into this Agreement and to perform each of its terms and
      covenants hereunder.

            


    

     

    
      	
               
      

            	
              (b)

            	
              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.

            


    

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              (c)

            	
              This
      Agreement is a legal, valid and binding agreement of Consultant,
      enforceable in accordance with its
terms.

            


    

     

    
      	
               
      

            	
              (d)

            	
              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.

            


    

     

    
      	
               
      

            	
              (e)

            	
              Neither
      Consultant nor any agent of Consultant is an officer, director,
      controlling person or employee of the Company or any of its
      affiliates.

            


    

     

    
      	
               
      

            	
              (f)

            	
              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.

            


    

     

    
      	
               
      

            	
              (g)

            	
              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;

            


    

    


    
      	
               
      

            	
              (h)

            	
              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;

            


    

    


    
      	
               
      

            	
              (i)

            	
              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”);

            


    

    


    
      	
               
      

            	
              (j)

            	
              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;

            


    

    


    
      	
               
      

            	
              (k)

            	
              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;

            


    

    


    
      	
               
      

            	
              (l)

            	
              Consultant
      is acquiring the Units for its own account, for investment, and not for
      distribution or resale to others;
and

            


    

     

    
      	
               
      

            	
              (m)

            	
              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 prosecuted in the state court (or federal court
if the requirements of federal jurisdiction are met), as the case may be,
sitting in Douglas County, Nebraska, and each of the Parties hereby voluntarily
submits to the jurisdiction of such court for such purpose and hereby
voluntarily waives any defense or objection to the exercise of such jurisdiction
by any such court.

     

    10.    NOTICES.  All
notices or other communications which are required or permitted hereunder shall
be in writing and sufficient if (i) personally delivered, (ii) sent by
nationally-recognized overnight carrier or (iii) sent by registered or certified
mail, postage prepaid, return receipt requested, addressed to the addresses set
forth below each Party’s name on the signature page hereto, or to such other
address as the Party to whom notice is to be given may have furnished to each
other Party in accordance herewith. Any such communication shall be deemed to
have been given (i) when delivered, if personally delivered, (ii) on the first
Business Day after dispatch, if sent by nationally recognized overnight courier
and (iii) on the third Business Day following the date on which the piece of
mail containing such communication is posted, if sent by mail. As used in this
Agreement, “Business
Day” means a day that is not a Saturday, Sunday or a day on which banking
institutions in the city to which the notice or communication is to be sent are
not required to be open.

     

    
      
         

      

      
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    11.    THIRD PARTY
BENEFICIARY.  No person, firm, group or corporation is a third
party beneficiary of this Agreement.

     

    12.    COUNTERPARTS; ELECTRONIC
DELIVERY.  This Agreement may be executed in any number of
original counterparts, each of which having been so executed and delivered shall
be deemed an original and all of which, collectively, shall constitute one
agreement; it being understood and agreed that the signature pages may be
detached from one or more such counterparts and combined with the signature
pages from any other counterparts in order that one or more fully executed
originals may be assembled.  A copy of an executed counterpart
signature page signed by a Party may be delivered by facsimile or other
electronic transmission and, upon such delivery, a print out of the transmitted
signature of such Party will have the same effect as if a counterpart of this
Agreement bearing an original signature of that Party had been delivered to the
other Party.

     

     

    [signature
page follows]

     

    
      
         

      

      
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    IN
WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement
in Omaha, Nebraska effective as of the day and year first above
written.

     

     

    
      
        	 	
                COMPANY:

                GABRIEL TECHNOLOGIES
      CORPORATION

              	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Ronald
      Gillum	 
	 	 	Name:
      RONALD GILLUM	 
	 	 	Title:
      President	 
	 	 	Address: 4538
      S. 140th
      Street, Omaha, NE  68137	 


      



    
      
        	 	CONSULTANT:	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Nicholas
      A. Fegen	 
	 	 	Name:
      NICHOLAS A. FEGEN	 
	 	 	Address: 675
      Southfork Drive, Waukee, IA  50263	 
	 	 	 	 


      

    

    


    
      
         

      

      
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    EXHIBIT
A

    


    FORM
OF STOCK EQUIVALENT UNIT PARTICIPATION AGREEMENT

     

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

     

    GABRIEL
TECHNOLOGIES CORPORATION

    STOCK
EQUIVALENT UNIT

    PARTICIPATION
AGREEMENT

    


    STOCK EQUIVALENT UNIT PARTICIPATION
AGREEMENT (this “Agreement”) entered
into this 25th day of April, 2008 (the “Effective Date”),
between GABRIEL TECHNOLOGIES
CORPORATION, a Delaware corporation (the “Corporation”), and
NICHOLAS A. FEGEN (the
“Holder”).

     

    WHEREAS, the Holder has
provided Consulting Services to the Corporation resulting in an obligation (the
“Obligation”)
of the Corporation to Holder as more specifically described in that certain
Agreement dated effective April 25th, 2008 (the “Obligation Exchange
Agreement”), and has agreed to exchange such Obligation for 308,650 Units (as
defined below); and

     

    WHEREAS, the Corporation and
the Holder desire to memorialize and set out their respective rights and
obligations with respect to the Units.

     

    NOW, THEREFORE, in
consideration of the mutual premises and undertakings set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:

     

    1.    Definitions.  The
following words have the following meanings for purposes of this
Agreement.

     

    (a)    “Change of Control”
means the earliest date upon which one of the following events
occurs:

     

    (i)    Acquisition
by any individual, entity, or group (within the meaning of Section 13(d)(3) or
14(d)(2)  of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)
(a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of either (A) the Shares (as defined below) or (B)
the combined voting power of the then-outstanding voting securities of the
Corporation entitled to vote generally in the election of directors of the
Corporation; provided, however, that for purposes of this Subsection (i), the
following acquisitions shall not constitute a Change of Control: (A) any
acquisition directly from the Corporation, (B) any acquisition by the
Corporation, (C) any acquisition by any employee  benefit plan (or
related trust) sponsored or maintained by the Corporation or any affiliated
company, or (D) any acquisition by any corporation pursuant to a transaction
that complies with clauses (A), (B), or (C) of Subsection (ii)
below);

     

    (ii)    Consummation
of a reorganization, merger, consolidation or sale or other disposition of all
or a significant part of the assets (other than in the ordinary course of
business) of the Corporation or of any of the Corporation’s wholly or partly
owned subsidiary companies, including without limitation Trace Technologies,
LLC, a Nebraska limited liability company (a “Business
Combination”), in each case, unless, following
such Business Combination, (A) all or substantially all of the individuals and
entities that were the beneficial holders of the Shares (as defined below)
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 60% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities entitled to vote
generally in the election of 

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

       

      directors,
as the case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of such Business
Combination, owns the Corporation or all or substantially all of the
Corporation‘s assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership of the Shares immediately
prior to such Business Combination, (B) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan (or
related trust) of the Corporation or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 35% or more of,
respectively, the then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then-outstanding voting securities of such corporation, except to the extent
that such ownership existed prior to the Business Combination, and (C) at least
a majority of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Corporation’s Board at the
time of the execution of the initial agreement or of the action of the Board
providing for such Business Combination; or

       

      (iii)    Approval by
the stockholders of the Corporation of a complete liquidation or dissolution of
the Corporation.

    

     

    (b)    “Dividend Distribution
Date” means the date on which the Corporation pays a cash dividend to the
holder of a Share.

     

    (c)    “Settlement Date”
means the date upon which the Stockholders of the Corporation receive proceeds
resulting from a Change of Control.

     

    (d)    “Share” means one
share and “Shares” means more
than one share of the Corporation’s issued and outstanding common stock, $0.001
par value, as the same is constituted from time to time.

     

    (e)    “Stockholder” means a
holder of Shares.

     

    (f)    “Unit” means a
contractual right of the Holder to receive a certain amount or value of property
from the Corporation equal to a certain amount or value of property received by
a Stockholder with respect to a Share, in accordance with the terms and
conditions of this Agreement.

    


    2.    Acknowledgement of Receipt
of Units and Cancellation of Obligation.

     

    (a)    The Holder
hereby acknowledges receipt of 308,650 Units from the Corporation under the
Obligation Exchange Agreement and agrees that such Units shall be subject to the
terms and conditions of this Agreement.  Holder further acknowledges
and agrees that such Units were received in exchange for the cancellation of the
Corporation’s Obligation, as described in the Obligation Exchange
Agreement.

     

    (b)    The
Corporation hereby acknowledges the issuance of 308,650 Units to the Holder under the Obligation
Exchange Agreement and agrees that such Units shall be subject to the terms and
conditions of this Agreement.  The Corporation further
acknowledges and agrees that such Units were issued in exchange for the
cancellation of the Corporation’s Obligation, as described in the Obligation
Exchange Agreement.

     

    
      
         

      

      
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    3.    Rights of
Holders of Units.  In accordance with the terms of this
Agreement, on the Settlement Date and each Dividend Distribution Date, if any,
the Holder of a Unit, with respect to each Unit held, shall be entitled to
receive an amount equal to the value of the amount paid or distributed to each
Stockholder with respect to each Share, in the form of cash or, at the election
of the Corporation, other property with a value equal to the property otherwise
distributable or payable under the terms of this Agreement.  Any such
amount or distribution to which a Holder becomes entitled shall be paid or made
by the Corporation to such Holder within five (5) Business Days (as defined
below) of such Settlement Date or Dividend Distribution Date.  By way
of illustration of the amounts or distributions to which a Holder may become
entitled, if on the Settlement Date, a Stockholder of the Corporation receives
$1.00 for each Share held by such Stockholder, then Holder will receive a cash
payment equal to $1.00 times the number of Units held by
Holder.  Similarly, if on the Settlement Date, each Stockholder of the
Corporation receives 5 shares of common stock of the acquiring company, with a
value of $2.00, for each Share held by such Stockholder, then Holder will
receive, at the Corporation’s election, either (a) a cash payment equal to $2.00
times the number of Units held by Holder, or (b) 5 shares of common stock of the
acquiring company for each Unit held by Holder.  Likewise, if on the
Dividend Distribution Date, each Stockholder of the Corporation receives a
Dividend Distribution Payment of $0.25 per Share in cash, then Holder will
receive a cash payment equal to $0.25 times the number of Units held by the
Holder.  The Corporation shall have the right to deduct, from any
payment or distribution hereunder, any taxes required by law to be withheld from
the Holder with respect to such payment or distribution and, in furtherance
thereof, Holder shall provide any documentation or completed form as may be
requested by Corporation related to or in connection with the determination of
any such withholding.  For the avoidance of doubt, amounts will only
be payable or distributable under this Agreement upon the occurrence of an event
specifically described herein and, further, no amount shall be payable or
distributable to a Holder upon the mere change in value of a Share in the
absence of such occurrence.

     

    4.    No Rights
as a Stockholder.  The Holder, in
its capacity as a Holder of Units, shall have no rights as a Stockholder of the
Corporation.  No Shares or other equity interest in the Corporation
shall be issued pursuant to this Agreement.

     

    5.    Adjustments to Units; No
Limitation on Corporation Action.

     

    (a)    In the event
of a change in the number of Shares by reason of the Corporation implementing
any stock dividend or split, recapitalization, merger, consolidation, spin-off,
reorganization, combination or exchange of shares or other similar corporate
change, so long as such change does not result in a Change of Control, the
Corporation shall adjust the number of Units issued to Holder in the Holder’s
Account (as defined in Section 7) as is necessary and appropriate and, further,
any such adjustment made shall be conclusive and binding on the parties
hereto.

     

    (b)    Notwithstanding the
foregoing, the issuance by the Corporation of shares of its capital stock of any
class, or securities convertible into shares of capital stock of any class,
either in connection with a direct sale or upon the exercise of rights or
warrants to subscribe therefor, or upon conversion of shares or obligations of
the Corporation convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number of Units covered by this Agreement.

     

    (c)    For the
avoidance of doubt and without limiting the generality of the foregoing, the
existence of the Units shall not affect in any manner the right or power of the
Corporation to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Corporation’s capital
structure or its business; (ii) any merger or consolidation of the Corporation;
(iii) the dissolution or liquidation of the Corporation; (iv) any sale, transfer
or assignment of all or any part of the assets or business of the Corporation;
or (v) any other corporate act or proceeding, whether of a similar character or
otherwise.

     

    
      
         

      

      
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    6.    Representations
and Warranties of Holders of Units.  As of the
Effective Date and the date of execution of the Obligation Exchange Agreement,
the Holder represents and warrants that:

     

    (a)    The Holder
has had access to all information regarding the Corporation and its present and
prospective business, assets, liabilities and financial condition that the
Holder reasonably considers important in connection with the Units, this
Agreement, and the Obligation Exchange Agreement, and the Holder has had ample
opportunity to ask questions of the Corporation’s representatives (and any such
questions have been answered to Holder’s satisfaction) concerning such
matters.

     

    (b)    The Holder is
fully aware of: (i) the highly speculative nature of the future potential
financial returns on or from the Units, (ii) the financial risks and hazards
involved in the future potential financial returns on or from the Units, and
(iii) the tax consequences of executing and participating in this Agreement and
the Obligation Exchange Agreement.

     

    (c)    The
Corporation has made no representations or warranties to the Holder with respect
to the tax consequences (including, without limitation, the federal, state and
local income tax consequences) related to or that could arise from executing and
participating in this Agreement and the Obligation Exchange Agreement, and the
Holder is in no manner relying on the Corporation or its representatives for an
assessment of such tax consequences.

     

    (d)    The Holder
has been advised that Holder should consult with his own attorney, accountant,
and/or tax advisor regarding the decision to enter into and participate in this
Agreement and the Obligation Exchange Agreement and the tax, financial, and/or
other consequences thereof, and, further, the Corporation has no responsibility
to take or refrain from taking any action or actions in order to achieve a
certain tax or financial result for the Holder.

     

    7.    Stock
Equivalent Unit Account.  Each Unit shall
be evidenced by an entry on the books of the Corporation (an “Account”).  Each
Account shall be the record of Units issued to Holder pursuant to the Obligation
Exchange Agreement and this Agreement and shall be solely for accounting
purposes.  Amounts payable or distributable hereunder shall be paid or
distributed exclusively from the general assets of the Corporation, and no
Holder entitled to payment or distribution hereunder shall have any claim,
right, security interest, or other interest in any fund, trust, account,
insurance contract, or asset of the Corporation from which a payment or
distribution may be made.  The rights of a Holder of a Unit hereunder
shall be solely those of an unsecured creditor of the
Corporation.  The Corporation’s liability for payments or
distributions hereunder, if any, shall be evidenced only by this
Agreement.

     

    8.    Restriction
on Transfer.  The Units may not
be assigned or transferred 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.  If the Holder dies,
the Units shall transfer to a person who acquired the right to the Units by
bequest or inheritance. The Units shall not be subject to execution, attachment
or similar process.  Any attempted assignment or transfer of the Units
contrary to the provisions hereof, and the levy of any execution, attachment or
similar process upon the Units, shall be null and void and without
effect.

     

    9.    Notices.  All notices or
other communications which are required or permitted hereunder shall be in
writing and sufficient if (i) personally delivered, (ii) sent by
nationally-recognized overnight courier or (iii) sent by registered or certified
mail, postage prepaid, return receipt requested, addressed as
follows:

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

     

    if to the
Holder, to the address set forth on the signature page hereto; and

     

    if to the
Corporation, to:

     

    Gabriel
Technologies Corporation

    Attention:
Ronald Gillum

    4538 S.
140th
Street

    Omaha,
NE  68137

     

    or to
such other address as the party to whom notice is to be given may have furnished
to each other party in writing in accordance herewith.  Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, (ii) on the first Business Day (as hereinafter defined)
after dispatch, if sent by nationally-recognized overnight courier and (iii) on
the third Business Day following the date on which the piece of mail containing
such communication is posted, if sent by mail.  As used herein, “Business Day” means a
day that is not a Saturday, Sunday or a day on which banking institutions in the
city to which the notice or communication is to be sent are not required to be
open.

     

    10.    No
Waiver.  No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other or subsequent breach or condition, whether of like or different
nature.

     

    11.    Holder
Undertaking / Indemnification.  The Holder hereby
agrees to take whatever additional actions and execute whatever additional
documents the Corporation or its counsel may in their reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Holder pursuant to the express
provisions of this Agreement.  Holder agrees to hold the Corporation,
its subsidiary companies, officers, directors, employees and agents and their
respective heirs, representatives, successors, and assigns harmless and to
indemnify them against all liabilities, costs, and expenses (including
reasonable attorneys’ fees) incurred by them as a result of any
misrepresentation made by Holder herein or any other breach or violation by
Holder of this Agreement or the Obligation Exchange Agreement.

     

    12.    Governing
Law.  This Agreement
shall be governed by and construed, enforced and interpreted in accordance with
the laws of the State of Nebraska (without regard to principles of conflicts of
laws).  The Parties consent to the sole and exclusive jurisdiction of
the state courts and U.S. federal courts having jurisdiction in Douglas County,
Nebraska for any dispute arising out of this Agreement.

     

    13.    Counterparts.  This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.

     

    14.    Entire
Agreement.  This Agreement,
with the Obligation Exchange Agreement, constitutes the entire agreement between
the parties with respect to the subject matter hereof, and supersedes all prior
written or oral negotiations, commitments, representations and agreements with
respect thereto.

     

    [remainder
of page intentionally left blank -- signature page follows]

     

    
      
         

      

      
        12

        
          

        

      

      
         

      

    

     

    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth above.

     

     

    
      
        	 	GABRIEL
      TECHNOLOGIES CORPORATION	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Ronald
      E. Gillum	 
	 	 	Name:
      Ronald E. Gillum	 
	 	 	Title:
      President	 
	 	 	 	 


      

    

    
 

    
      
        	 	HOLDER:	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Nicholas
      A. Fegen	 
	 	 	Name:
      Nicholas A. Fegen	 
	 	 	      
                Address: 675 [illegible] Dr.,
      Waukee,
      Ia.
      50263

              	 
	 	 	 	 


      

    

     

     

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