AGREEMENT AND PLAN OF MERGER between EPILOGUE CORPORATION, a
Delaware corporation ("Epilogue"), and NEXTPATH TECHNOLOGIES, INC.,
a Nevada corporation ("NextPath"), Epilogue and NextPath being
sometimes referred to herein as the "Constituent Corporations."
WHEREAS, the board of directors of each Constituent
Corporation deems it advisable that the Constituent Corporations
merge into a single corporation in a transaction intended to qualify
as a reorganization within the meaning of Section368(a)(1)(A) of the
Internal Revenue Code of 1986, as amended ("the Merger");
NOW, THEREFORE, in consideration of the premises and the
respective mutual covenants, representations and warranties herein
contained, the parties agree as follows:
1. SURVIVING CORPORATION. Epilogue shall be merged with and
into NextPath which shall be the surviving corporation in accordance
with the applicable laws of its state of incorporation.
2. MERGER DATE. The Merger shall become effective (the
"Merger Date") upon the completion of:
2.1. Adoption of this agreement by Epilogue pursuant to the
General Corporation Law of Delaware and by NextPath pursuant to
Nevada Revised Statutes and the Nevada General Corporation Law; and
2.2. Execution and filing by NextPath of Articles of Merger
with the Department of State of the State of Nevada in accordance
with the Nevada Revised Statutes.
2.3. Execution and filing by Epilogue of a Certificate of
Merger with the Secretary of State of the State of Delaware in
accordance with the General Corporation Law of Delaware.
3. TIME OF FILINGS. The Articles of Merger shall be filed
with the Department of State of the State of Nevada and the
Certificate of Merger shall be filed with the Secretary of State of
Delaware upon the approval, as required by law, of this agreement by
the Constituent Corporations and the fulfillment or waiver of the
terms and conditions herein.
4. GOVERNING LAW. The surviving corporation shall be
governed by the laws of the State of incorporation of NextPath.
5. CERTIFICATE OF INCORPORATION. The Articles of
Incorporation of NextPath shall be the Articles of Incorporation of
the surviving corporation from and after the Merger Date, subject to
the right of NextPath to amend its Articles of Incorporation in
accordance with the laws of the State of its incorporation.
6. BYLAWS. The Bylaws of the surviving corporation shall be
the Bylaws of NextPath as in effect on the date of this agreement.
7. BOARD OF DIRECTORS AND OFFICERS. The officers and
directors of NextPath, or such other persons as shall be selected by
it, shall be the officers and directors of the surviving corporation
following the Merger Date.
8. NAME OF SURVIVING CORPORATION. The name of the surviving
corporation will continue as "Nextpath Technologies, Inc." unless
changed by NextPath.
9. CONVERSION. The mode of carrying the Merger into effect
and the manner and basis of converting the shares of Epilogue into
shares of NextPath are as follows:
9.1. The aggregate number of shares of Epilogue Common
Stock issued and outstanding on the Merger Date shall, by virtue of
the Merger and without any action on the part of the holders
thereof, be converted into an aggregate of 150,000 shares of
NextPath Common Stock adjusted by any increase for fractional shares
and reduced by any Dissenting Shares (defined below).
The NextPath Common Stock to be issued hereunder ("the
NextPath Shares") will be issued pursuant to Rule 506 of the General
Rules and Regulations of the Securities and Exchange Commission,
will be restricted as to transferability pursuant to Rule 144
thereof, and will bear substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "ACT") AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF
WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
NextPath agrees to file a registration statement covering
the NextPath Shares with the Securities and Exchange Commission
within six months of the effective date of this Agreement.
9.2. Upon completion of the Merger, there shall be
30,122,031 shares of NextPath Common Stock issued and outstanding,
subject to such adjustments, held as follows: 150,000 common shares
held by the former shareholders of Epilogue and 29,972,031 common
shares held by the other shareholders of NextPath.
9.3. All outstanding Common or Preferred Stock of Epilogue
and all warrants, options or other rights to its Common or Preferred
Stock shall be retired and canceled as of the Merger Date.
9.4. Each share of Epilogue Common Stock that is owned by
Epilogue as treasury stock shall, by virtue of the Merger and
without any action on the part of Epilogue, be retired and canceled
as of the Merger Date.
9.5. Each certificate evidencing ownership of shares of
NextPath Common Stock issued and outstanding on the Merger Date or
held by NextPath in its treasury shall continue to evidence
ownership of the same number of shares of NextPath Common Stock.
9.6. NextPath Common Stock shall be issued to the holders
of Epilogue Common Stock in exchange for their shares on a pro rata
basis in accordance with each holder's relative ownership of the
Epilogue Common Stock that is being exchanged.
9.7. The shares of NextPath Common Stock to be issued in
exchange for Epilogue Common Stock hereunder shall be
proportionately reduced by any shares owned by Epilogue
shareholders who shall have timely objected to the Merger (the
"Dissenting Shares") in accordance with the provisions of the
General Corporation Law of Delaware, as provided therein.
10. EXCHANGE OF CERTIFICATES. As promptly as practicable
after the Merger Date, each holder of an outstanding certificate or
certificates theretofore representing shares of Epilogue Common
Stock (other than certificates representing Dissenting Shares) shall
surrender such certificate(s) for cancellation to the party
designated herein to handle such exchange (the "Exchange Agent"),
and shall receive in exchange a certificate or certificates
representing the number of full shares of NextPath Common Stock into
which the shares of Epilogue Common Stock represented by the
certificate or certificates so surrendered shall have been
converted. Any exchange of fractional shares will be rounded up to
the next highest number of full shares. NextPath may, in its
discretion, require a bond in customary form before issuing any
share certificate where a corresponding share certificate has not
been delivered by a shareholder of Epilogue because of loss or other
reason.
11. UNEXCHANGED CERTIFICATES. Until surrendered, each
outstanding certificate that prior to the Merger Date represented
Epilogue Common Stock (other than certificates representing
Dissenting Shares) shall be deemed for all purposes, other than the
payment of dividends or other distributions, to evidence ownership
of the number of shares of NextPath Common Stock into which it was
converted. No dividend or other distribution payable to holders of
NextPath Common Stock as of any date subsequent to the Merger Date
shall be paid to the holders of outstanding certificates of Epilogue
Common Stock; provided, however, that upon surrender and exchange of
such outstanding certificates (other than certificates representing
Dissenting Shares), there shall be paid to the record holders of the
certificates issued in exchange therefor the amount, without
interest thereon, of dividends and other distributions that would
have been payable subsequent to the Merger Date with respect to the
shares of NextPath Common Stock represented thereby.
12. EFFECT OF THE MERGER. On the Merger Date, the separate
existence of Epilogue shall cease (except insofar as continued by
statute), and it shall be merged with and into NextPath. All the
property, real, personal, and mixed, of each of the Constituent
Corporations, and all debts due to either of them, shall be
transferred to and vested in NextPath, without further act or deed.
NextPath shall thenceforth be responsible and liable for all the
liabilities and obligations, including liabilities to holders of
Dissenting Shares, of each of the Constituent Corporations, and any
claim or judgment against either of the Constituent Corporations may
be enforced against NextPath.
13. REPRESENTATIONS AND WARRANTIES OF EPILOGUE. Epilogue
represents and warrants that:
13.1. CORPORATE ORGANIZATION AND GOOD STANDING. Epilogue
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.
13.2. REPORTING COMPANY STATUS. Epilogue has filed with
the Securities and Exchange Commission a registration statement on
Form 10-SB which became effective pursuant to the Securities
Exchange Act of 1934 on August 16, 1999 and is a reporting company
pursuant to Section12(g) thereunder.
13.3. REPORTING COMPANY FILINGS. Epilogue has timely filed
and is current on all reports required to be filed by it pursuant to
Section13 of the Securities Exchange Act of 1934.
13.4. CAPITALIZATION. Epilogue's authorized capital stock
consists of 120,000,000 shares of Common Stock, $.0001 par value, of
which 5,000,000 shares are issued and outstanding, and 20,000,000
shares of non-designated preferred stock of which no shares are
designated or issued.
13.5. ISSUED STOCK. All the outstanding shares of its
Common Stock are duly authorized and validly issued, fully paid and
non-assessable.
13.6. STOCK RIGHTS. Except as set out by attached
schedule, there are no stock grants, options, rights, warrants or
other rights to purchase or obtain Epilogue Common or Preferred
Stock issued or committed to be issued.
13.7. CORPORATE AUTHORITY. Epilogue 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.
13.8. SUBSIDIARIES. Epilogue has no subsidiaries.
13.9. FINANCIAL STATEMENTS. Epilogue's financial
statements dated June 7, 1999, copies of which will have been
delivered by Epilogue to NextPath prior to the Merger Date (the
"Epilogue Financial Statements"), fairly present the financial
condition of Epilogue as of the date therein and the results of its
operations for the periods then ended in conformity with generally
accepted accounting principles consistently applied.
13.10. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the
extent reflected or reserved against in the Epilogue Financial
Statements, Epilogue did 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.
13.11. NO MATERIAL CHANGES. There has been no material
adverse change in the business, properties, or financial condition
of Epilogue since the date of the Epilogue Financial Statements.
13.12. LITIGATION. There is not, to the knowledge of
Epilogue, any pending, threatened, or existing litigation,
bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Epilogue or
against any of its officers.
13.13. CONTRACTS. Epilogue 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.
13.14. TITLE. Epilogue has good and marketable title to
all the real property and good and valid title to all other property
included in the Epilogue Financial Statements. The properties of
Epilogue are not subject to any mortgage, encumbrance, or lien of
any kind except minor encumbrances that do not materially interfere
with the use of the property in the conduct of the business of
Epilogue.
13.15. TAX RETURNS. All required tax returns for federal,
state, county, municipal, local, foreign and other taxes and
assessments have been properly prepared and filed by Epilogue 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 Epilogue
Financial Statements are adequate to cover any such taxes that may
be assessed against Epilogue in respect of its business and its
operations during the periods covered by the Epilogue Financial
Statements and all prior periods.
13.16. NO VIOLATION. Consummation of the Merger 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
Epilogue is subject or by which Epilogue is bound.
14. REPRESENTATIONS AND WARRANTIES OF NEXTPATH. NextPath
represents and warrants that:
14.1. CORPORATE ORGANIZATION AND GOOD STANDING. NextPath
is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Nevada and is qualified to
do business as a foreign corporation in each jurisdiction, if any,
in which its property or business requires such qualification.
14.2. CAPITALIZATION. NextPath's authorized capital stock
consists of100,000,000 shares of Common Stock, $.001 par value, of
which 29,972,031 shares are issued and outstanding, and 1,000,000
shares of preferred stock, of which none are issued and outstanding.
14.3. ISSUED STOCK. All the outstanding shares of its
Common Stock are duly authorized and validly issued, fully paid and
non-assessable.
14.4. STOCK RIGHTS. There are no stock grants, options,
rights, warrants or other rights to purchase or obtain NextPath
Common or Preferred Stock issued or committed to be issued.
14.5. CORPORATE AUTHORITY. NextPath 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.
14.6. SUBSIDIARIES. Except as set out in Disclosure
Schedule 14.6, NextPath has no subsidiaries.
14.7. FINANCIAL STATEMENTS. NextPath's financial
statements dated December 31, 1998 copies of which will have been
delivered by NextPath to Epilogue prior to the Merger Date (the
"NextPath Financial Statements"), fairly present the financial
condition of NextPath as of the date therein and the results of its
operations for the periods then ended in conformity with generally
accepted accounting principles consistently applied.
14.8. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the
extent reflected or reserved against in the NextPath Financial
Statements, NextPath did 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.
14.9. NO MATERIAL CHANGES. There has been no material
adverse change in the business, properties, or financial condition
of NextPath since the date of the NextPath Financial Statements.
14.10. LITIGATION. Except as set out in Disclosure
Schedule 14.10, there is not, to the knowledge of NextPath, any
pending, threatened, or existing litigation, bankruptcy, criminal,
civil, or regulatory proceeding or investigation, threatened or
contemplated against NextPath or against any of its officers.
14.11. CONTRACTS. NextPath is not a party to any material
contract not in the ordinary course of business or in the course of
its proposed acquisitions that is to be performed in whole or in
part at or after the date of this Agreement.
14.12. TITLE. NextPath has good and marketable title to
all the real property and good and valid title to all other property
included in the NextPath Financial Statements. The properties of
NextPath are not subject to any mortgage, encumbrance, or lien of
any kind except minor encumbrances that do not materially interfere
with the use of the property in the conduct of the business of
NextPath.
14.13. TAX RETURNS. All required tax returns for federal,
state, county, municipal, local, foreign and other taxes and
assessments have been properly prepared and filed by NextPath 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 NextPath
Financial Statements are adequate to cover any such taxes that may
be assessed against NextPath in respect of its business and its
operations during the periods covered by the NextPath Financial
Statements and all prior periods.
14.14. NO VIOLATION. Consummation of the Merger 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
NextPath is subject or by which NextPath is bound.
15. CONDUCT OF EPILOGUE PENDING THE MERGER DATE. Epilogue
covenants that between the date of this Agreement and the Merger Date:
15.1. No change will be made in Epilogue's Articles of
Incorporation or bylaws.
15.2. Epilogue will not make any change in its authorized
or issued capital stock, declare or pay any dividend or other
distribution or issue, encumber, purchase, or otherwise acquire any
of its capital stock other than as provided herein.
15.3. Epilogue will use its best efforts to maintain and
preserve its business organization, employee relationships, and
goodwill intact, and will not enter into any material commitment
except in the ordinary course of business.
16. CONDUCT OF NEXTPATH PENDING THE MERGER DATE. NextPath
covenants that between the date of this Agreement and the Merger Date:
16.1. No change will be made in NextPath's Articles of
incorporation or bylaws.
16.2. NextPath will not make any change in its authorized
or issued capital stock, declare or pay any dividend or other
distribution or issue, encumber, purchase, or otherwise acquire any
of its capital stock otherwise than as provided herein.
16.3. NextPath will use its best efforts to maintain and
preserve its business organization, employee relationships, and
goodwill intact, and will not enter into any material commitment
except in the ordinary course of business.
17. CONDITIONS PRECEDENT TO OBLIGATION OF EPILOGUE.
Epilogue's obligation to consummate the Merger shall be subject to
fulfillment on or before the Merger Date of each of the following
conditions, unless waived in writing by Epilogue:
17.1. NEXTPATH'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of NextPath set forth herein shall be
true and correct at the Merger Date as though made at and as of that
date, except as affected by transactions contemplated hereby.
17.2. NEXTPATH'S COVENANTS. NextPath shall have performed
all covenants required by this agreement to be performed by it on or
before the Merger Date.
17.3. APPROVAL. This agreement shall have been approved by
NextPath in such manner as is required by law including all
appropriate action by directors and, if required, by shareholders.
17.4. SUPPORTING DOCUMENTS OF NEXTPATH. NextPath shall
have delivered to Epilogue supporting documents in form and
substance satisfactory to Epilogue to the effect that:
(i) NextPath is a corporation duly organized, validly
existing, and in good standing.
(ii) NextPath's authorized and issued capital stock is as
set forth herein.
(iii) The execution and adoption of this agreement have
been duly authorized by NextPath in such manner as is required by
law including all appropriate action by directors and, if required,
by shareholders.
18. CONDITIONS PRECEDENT TO OBLIGATION OF NEXTPATH.
NextPath's obligation to consummate the Merger shall be subject to
fulfillment on or before the Merger Date of each of the following
conditions, unless waived in writing by NextPath:
18.1. EPILOGUE'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Epilogue set forth herein shall be
true and correct at the Merger Date as though made at and as of that
date, except as affected by transactions contemplated hereby.
18.2. EPILOGUE'S COVENANTS. Epilogue shall have performed
all covenants required by this agreement to be performed by it on or
before the Merger Date.
18.3. APPROVAL. This Agreement shall have been approved by
Epilogue in such manner as is required by law including all
appropriate action by directors and, if required, by shareholders.
18.4. SUPPORTING DOCUMENTS OF EPILOGUE. Epilogue shall
have delivered to NextPath supporting documents in form and
substance satisfactory to NextPath to the effect that:
(i) Epilogue is a corporation duly organized, validly
existing, and in good standing.
(ii) Epilogue's authorized and issued capital stock is as
set forth herein.
(iii) The execution and adoption of this Agreement have
been duly authorized by Epilogue in such manner as is required by
law including all appropriate action by directors and, if required,
by shareholders.
19. ACCESS. From the date hereof to the Merger Date,
NextPath and Epilogue shall provide each other with such information
and permit each other's officers and representatives such access to
its properties and books and records as the other may from time to
time reasonably request. If the Merger is not consummated, all
documents received in connection with this agreement shall be
returned to the party furnishing such documents, and all information
so received shall be treated as confidential.
20. CLOSING.
20.1. The transfers and deliveries to be made pursuant to
this agreement (the "Closing") shall be made by and take place at
the offices of the Exchange Agent or other location designated by
the Constituent Corporations without requiring the meeting of the
parties hereof. 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.
20.2. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission required by
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.
20.3. At the Closing, Epilogue shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to
NextPath:
(i) A list of the holders of record of the shares of
Epilogue Common Stock being exchanged, with an itemization of the
number of shares held by each, the address of each holder, and the
aggregate number of shares of NextPath Common Stock to be issued to
each holder;
(ii) Evidence of the execution and adoption of this
Agreement in such manner as is required by law including all
appropriate action by directors and , if required, by shareholders;
(iii) Certificate of the Secretary of State of Delaware as
of a recent date as to the good standing of Epilogue;
(iv) Certified copies of the resolutions of the board of
directors of Epilogue authorizing the execution of this agreement
and the consummation of the Merger;
(v) The Epilogue Financial Statements;
(vi) Secretary's certificate of incumbency of the officers
and directors of Epilogue;
(vii) Any document as may be specified herein or required
to satisfy the conditions, representations and warranties enumerated
elsewhere herein; and
(viii) the share certificates for the outstanding Common
Stock of Epilogue to be exchanged hereunder or, where any such
certificate is not delivered, an affidavit of lost certificate or
other reason for non-delivery.
20.4. At the Closing, NextPath shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to
Epilogue:
(i) A list of its shareholders of record;
(ii) Evidence of the execution and adoption of this
Agreement in such manner as is required by law including all
appropriate action by directors and, if required, by shareholders;
(iii) Certificate of the Secretary of State of its state of
incorporation as of a recent date as to the good standing of NextPath;
(iv) Certified copies of the resolutions of the board of
directors of NextPath authorizing the execution of this agreement
and the consummation of the Merger;
(v) The NextPath Financial Statements;
(vi) Secretary's certificate of incumbency of the officers
and directors of NextPath;
(vii) Any document as may be specified herein or required
to satisfy the conditions, representations and warranties enumerated
elsewhere herein; and
(viii) the share certificates of NextPath to be delivered to
the shareholders of Epilogue hereunder, in proper names and
amounts, and bearing legends, if any, required and appropriate under
applicable securities laws.
21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Constituent Corporations set
out herein shall survive the Merger Date.
22. ARBITRATION.
22.1. SCOPE. The parties hereby agree that any and all
claims (except only for requests for injunctive or other equitable
relief) whether existing now, in the past or in the future as to
which the parties or any affiliates may be adverse parties, and
whether arising out of this agreement or from any other cause, will
be resolved by arbitration before the American Arbitration
Association within the District of Columbia.
22.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The
parties hereby irrevocably consent to the jurisdiction of the
American Arbitration Association and the situs of the arbitration
(and any requests for injunctive or other equitable relief) within
the District of Columbia. Any award in arbitration may be entered
in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
22.3. APPLICABLE LAW. The law applicable to the arbitration
and this agreement shall be that of the State of Nevada, determined
without regard to its provisions which would otherwise apply to a
question of conflict of laws.
22.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and
discovery in regard to any matters which are the subject of the
arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the
Federal Rules of Civil Procedure, as they then exist, as may be
modified by the arbitrator consistent with the desire to simplify
the conduct and minimize the expense of the arbitration.
22.5. RULES OF LAW. Regardless of any practices of
arbitration to the contrary, the arbitrator will apply the rules of
contract and other law of the jurisdiction whose law applies to the
arbitration so that the decision of the arbitrator will be, as much
as possible, the same as if the dispute had been determined by a
court of competent jurisdiction.
22.6. FINALITY AND FEES. Any award or decision by the
American Arbitration Association shall be final, binding and
non-appealable except as to errors of law or the failure of the
arbitrator to adhere to the arbitration provisions contained in this
agreement. Each party to the arbitration shall pay its own costs
and counsel fees except as specifically provided otherwise in this
agreement.
22.7. MEASURE OF DAMAGES. In any adverse action, the parties
shall restrict themselves to claims for compensatory damages and\or
securities issued or to be issued and no claims shall be made by any
party or affiliate for lost profits, punitive or multiple damages.
22.8. COVENANT NOT TO SUE. The parties covenant that under
no conditions will any party or any affiliate file any action
against the other (except only requests for injunctive or other
equitable relief) in any forum other than before the American
Arbitration Association, and the parties agree that any such action,
if filed, shall be dismissed upon application and shall be referred
for arbitration hereunder with costs and attorney's fees to the
prevailing party.
22.9. INTENTION. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever
arising, whether in regard to this Agreement or any other matter,
from whatever cause, based on whatever law, rule or regulation,
whether statutory or common law, and however characterized, be
decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable
relief. This Agreement shall be interpreted in conformance with
this stated intent of the parties and their affiliates.
22.10. SURVIVAL. The provisions for arbitration contained
herein shall survive the termination of this agreement for any reason.
23. GENERAL PROVISIONS.
23.1. FURTHER ASSURANCES. From time to time, each party
will execute such additional instruments and take such actions as
may be reasonably required to carry out the intent and purposes of
this agreement.
23.2. WAIVER. Any failure on the part of either party
hereto to comply with any of its obligations, agreements, or
conditions hereunder may be waived in writing by the party to whom
such compliance is owed.
23.3. BROKERS. Each party agrees to indemnify and hold
harmless the other party against any fee, loss, or expense arising
out of claims by brokers or finders employed or alleged to have been
employed by the indemnifying party.
23.4. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been given
if delivered in person or sent by prepaid first-class certified
mail, return receipt requested, or recognized commercial courier
service, as follows:
If to Epilogue, to:
Epilogue Corporation
1504 R Street, N.W.
Washington, D.C. 20009
If to NextPath, to:
Nextpath Technologies, Inc.
114 South Churton Street, Suite 101
Hillsborough, North Carolina 27278
24. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Nevada.
25. ASSIGNMENT. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their successors and
assigns; provided, however, that any assignment by either party of
its rights under this agreement without the written consent of the
other party shall be void.
26. COUNTERPARTS. This agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Signatures sent by facsimile transmission
shall be deemed to be evidence of the original execution thereof.
27. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent
shall be Cassidy & Associates, Washington, D.C. The Closing shall
take place upon the fulfillment by each party of all the conditions
of Closing required herein, but not later than 15 days following
execution of this Agreement unless extended by mutual consent of the
parties.
28. REVIEW OF AGREEMENT. Each party acknowledges that it
has had time to review this Agreement and, as desired, consult with
counsel. In the interpretation of this agreement, no adverse
presumption shall be made against any party on the basis that it has
prepared, or participated in the preparation of, this Agreement.
29. SCHEDULES. All schedules attached hereto, if any,
shall be acknowledged by each party by signature or initials thereon.
30. EFFECTIVE DATE. This effective date of this agreement
shall be November 11, 1999.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER
BETWEEN EPILOGUE CORPORATION AND
NEXTPATH TECHNOLOGIES, INC.
IN WITNESS WHEREOF, the parties have executed this Agreement.
EPILOGUE CORPORATION
By: /s/ James M. Cassidy
President
NEXTPATH TECHNOLOGIES, INC.
By: /s/ James R. Ladd,
President