Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
November 12, 1999
Date of Report
(Date of Earliest Event Reported)
NEXTPATH TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
114 South Churton Street
Suite 101
Hillsborough, N.C. 27278
(Address of principal executive offices)
919/644-0600
919/644-1115 (fax)
Registrant's telephone number
EPILOGUE CORPORATION
1504 R Street, N.W.
Washington, D.C. 20009
(Former name and former address)
Nevada 000-26425 84-1402416
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
(a) Pursuant to an Agreement and Plan of Merger (the "Merger
Agreement") dated as of November 11, 1999 between Epilogue
Corporation, a Delaware corporation ("Epilogue"), and NextPath
Technologies, Inc., a Nevada corporation ("NextPath" or the "Company"),
all the outstanding shares of common stock of Epilogue were exchanged for
150,000 shares of common stock of NextPath in a transaction in which
NextPath was the surviving company.
The Merger Agreement was adopted by the unanimous consent of
the Board of Directors of Epilogue and approved by the unanimous consent
of the shareholders of Epilogue on November 11, 1999. The Merger
Agreement was adopted by the unanimous consent of the Board of Directors
of NextPath on November 11, 1999.
Prior to the merger, Epilogue had 5,000,000 shares of common
stock outstanding which shares were exchanged for 150,000 shares of
common stock of NextPath. By virtue of the merger, NextPath acquired
100% of the issued and outstanding common stock of Epilogue.
The officers of NextPath will continue as officers of the successor
issuer. See "Management" below. The officers, directors, and by-laws of
NextPath will continue without change as the officers, directors, and by-
laws of the successor issuer.
A copy of the Merger Agreement is filed as an exhibit to this Form
8-K and is incorporated in its entirety herein. The foregoing description is
modified by such reference.
(b) The following table contains information regarding the
shareholdings of NextPath's current directors and executive officers and
those persons or entities who beneficially own more than 5% of its common
stock (giving effect to the exercise of the warrants held by each such person
or entity):
Amount of Common Percent of
Stock Beneficially Common Stock
Name Owned Beneficially
Owned (1)
James R. Ladd 2,613,000 7%
President, Chief Executive
Officer, Treasurer and Director
David A. Nuttle 500,000 (2) 1.7%
Director
Frederic F. Wolfer, Jr. 100,000 *
Vice President and Secretary
Douglas A. McClain 1,583,000 5.3%
Director
All directors and 4,796,000 16%
executive officers as
a group (4 persons)
* Less than 1% percent
(1) Based upon 29,972,031 outstanding shares of common stock
(subsequent to the effectiveness of the merger).
(2) The 500,000 shares are owned by Needful Provisions, Inc., a non-
profit organization, of which Mr. Nuttle is the owner and deemed to
be the beneficial owner of the shares owned by it.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
(a) The consideration exchanged pursuant to the Merger Agreement
was negotiated between Epilogue and NextPath.
In evaluating NextPath as a candidate for the proposed merger,
Epilogue used criteria such as the value of the assets of NextPath and its
subsidiaries, the anticipated operations and acquisitions, material contracts,
business name and reputation, quality of management, and current and
anticipated operations. Epilogue determined that the consideration for the
merger was reasonable.
(b) NextPath intends to continue to develop its business focusing on
renewable food production systems and waste disposal, precision
technologies and Internet and e-commerce areas with active acquisition
strategies.
BUSINESS
NextPath was incorporated in Nevada on April 30, 1997 under the
name Peak Development, Inc. which was changed to FSC Holdings, Inc.
on May 7, 1997. On January 27, 1998, Compact Power International, Inc.
merged into the Company and the Company changed its name to Hyperion
Technologies, Inc. which was subsequently changed to NextPath
Technologies, Inc. on July 23, 1999.
The Company is a development stage company designed to serve as
a holding company that identifies, acquires, operates and manages state-of-
the-art technology companies which have the potential to capture specific
market niches. NextPath anticipates that it will work closely with its
subsidiaries in management, operations, and finances to build value in
preparation for possible future spin-offs.
NextPath has six wholly-owned subsidiaries of which one is
operating. The five non-operating subsidiaries have been created by
NextPath to merge with acquisition companies. Laser Wireless, Inc.,
discussed below, is the operating subsidiary.
ACQUISITION CRITERIA
NextPath intends to target existing private companies that it
perceives to have the following characteristics:
State-of-the-art technologies that are already in the market or require
little research and development investment to become market ready;
Strong growth potential with improved marketing;
Compatible or complementary technology with the technologies of
at least one other company owned or to be acquired by NextPath.
TARGETED MARKET SECTORS
NextPath has designed its business plan to pursue acquisitions,
licenses, franchises and corporate strategic alliances that will enable it to
participate in three main market sectors: (1) precision technology, (2)
Internet/E-commerce, and (3) environmental and agricultural.
CURRENT AND ANTICIPATED ACQUISITIONS
PRECISION TECHNOLOGY GROUP
On October 18, 1999, NextPath acquired Laser Wireless, Inc, a
Pennsylvania company, as a wholly-owned subsidiary engaged in the
business of designing and manufacturing a wireless laser communication
technology which can transmit video, voice, and data through the
atmosphere on a beam of light for distances up to 2.5 kilometers. This
capability offers a solution for private communications where a leased line
cannot be used such as property separated by physical barriers (rivers,
highways, parking lots, etc.) which prevent the use of conventional cables.
Laser Wireless system is DC powered which will enable battery or
solar cell operation. The Laser Wireless system features automatic beam
steering which provides automatic adjustment of shifts in the laser beam
alignment due to changes in atmospheric temperatures causing expansion
and contraction of buildings and poles on which the system is mounted.
NextPath is finalizing negotiations to acquire two additional
companies in the precision technology field.
One company, a New Mexico company located in Albuquerque,
New Mexico, is an advanced technology company providing custom real-
time motion control and electronic solutions which expertise includes
gimbals (positioning devices), camera and electro-optical system design,
embedded software development and system engineering and development.
It serves a diverse customer base providing systems ranging from
commercial helicopter airborne camera mounts to space-qualified control
electronics. NextPath anticipates acquiring this company as a wholly-
owned subsidiary and anticipates finalization of the acquisition within the
next several weeks. NextPath is finalizing the financing of this acquisition
through outside sources. Until completed, there is a possibility that the
acquisition will not be closed.
NextPath is finalizing the acquisition of a New Mexico engineering
and manufacturing company specializing in providing innovative solutions
primarily based on its patented technology for rotary drive systems used in
military, industrial, aerospace, medical and research areas for such
applications as positioning antennas and rotating large observatory
telescopes. Antenna positioners are the devices that point antennas at a
target. Portable antennas such as those used by the military, space craft or
television crews require positioners that can lay the antenna flat during
transit and then accurately point it at the target. To keep an antenna
correctly pointed the positioner must be extremely stiff. NextPath believes
that this company's patented rotary drive provides the stiffest drive on the
market. This company also produces and sells other products including a
20 lb. capacity tilt gimbal. NextPath anticipates acquiring this company as a
wholly-owned subsidiary and anticipates finalization of the acquisition
within the next several weeks. NextPath is finalizing the financing of this
acquisition through outside sources. Until completed, there is a possibility
that the acquisition will not be closed.
There is no assurance that NextPath will finalize these or any
negotiations or will complete an acquisition or other business combination
for these companies or any other company.
INTERNET AND E-COMMERCE GROUP
NextPath is in discussions with several companies that, if acquired,
will form the nucleus of its Internet and e-commerce group.
NextPath has entered into a preliminary agreement with Universal
Systems Solutions, Inc. ("USSI") to acquire up to 30% of its outstanding
shares. USSI is developing Global Certified Mail ("GCM"), an on-line
certified mail system providing customers with certified mail capabilities
directly over the Internet. The customer inputs correspondence on the
GCM website, GCM prints the letter, automatically produces the required
certification and return-receipt forms and mails the letter. NextPath
believes that USSI is the only private company certified and approved by
the U.S. Postal Service to offer certified mail services
NextPath is in discussions to acquire a company which designs and
implements Intranets, which are closed networks within a client company,
and Extranets, which are private networks between or among a limited
number of companies. These Internet, Intranet and Extranet services may
include interactive Web-based finance and accounting software, human
resources and sales automation functions. NextPath has entered into a
preliminary agreement for the acquisition of this company.
There is no assurance that NextPath will finalize these or any
negotiations or will close an acquisition or other business combination for
this company or any other company. NextPath utilizes cash and/or its own
securities to finance the acquisition. In transactions in which NextPath
agrees to acquire a company for cash, it will have to locate financing from
third-party sources such as banks or other lending sources or it will have to
raise cash through the sale of its securities. There is no assurance that such
funding will be available to NextPath when required to close a transaction
or if available on terms acceptable to NextPath.
ENVIRONMENTAL TECHNOLOGIES AND VENTURES
Through the acquisition of one of more companies, NextPath
intends to be engaged in environmental clean-up operations, organic
farming, and the use and development of renewable fuels by developing
MicroEconomic Systems ("MES"). An MES will convert undesirable
environmental pollutants such as PCBs, hospital wastes, tires, municipal
wastes and sewage, into steam for heating and cooling an integrated
greenhouse which is used to grow organic vegetables, herbs, algae,
fertilizer, fish farms and other agricultural and aquacultural products. An
MES is expected to be productive year-round and not be seasonal in nature.
NextPath has had preliminary discussions with companies in this field.
OTHER BUSINESSES
The Company also holds 1,000 shares of non-voting Series A
Preferred Stock of United Paper, Inc., a Texas corporation, an independent
paper distributor to newspapers, publishing companies, and other paper
users. Each share of Series A Preferred Stock has the right to priority
mandatory cumulative dividends of $120 per year.
RELATED TRANSACTIONS
One of more of the officers, directors or shareholders of an
acquisition company may be affiliated with or an officer or director of
NextPath. The Company does not have a policy against acquiring a
company affiliated with any of its officers or directors.
BUSINESS STRATEGY
NextPath anticipates that it will acquire several companies in each of
its designated areas. NextPath will acquire such companies through
exchange of securities and/or cash. NextPath intends to raise the funds
required for its anticipated acquisitions through the sale of its securities
or through borrowings from banks or other financial institutions. NextPath
does not have any agreements or arrangements for such borrowing and
there is no assurance that funds will be available when required for a
potential acquisition.
In formulating its business strategies, NextPath has utilized the
services of International Profit Associates ("IPA"), which provides
management development, valuation and consultation services to over
70,000 companies worldwide. IPA is assisting NextPath in a wide range of
activities including evaluating potential acquisitions to securing financing.
NextPath anticipates that IPA will be actively involved in developing the
corporate infrastructure for NextPath after the acquisitions are complete.
COMPETITION
NextPath anticipates that it will primarily acquire companies that are
in the developmental or active growth phase which companies will likely
face strong competition in their respective markets from larger, more well-
financed or more-established companies. There is no assurance that any
company that NextPath acquires will be able to successful compete with
such companies.
PATENTS AND TRADEMARKS
NextPath has no patents or trademarks but anticipates that one or
more of the companies that it may acquire will have patent protection for
proprietary technology.
EMPLOYEES
The Company has 4 employees.
PROPERTY
NextPath maintains its administrative offices at 114 South Churton
Street, Suite 101, Hillsborough, North Carolina 27278 under a monthly
lease of $1,565 per month for approximately 1,000 square feet.
The Company anticipates that each of the companies that it acquires
as subsidiaries will retain their own administrative offices and production
facilities.
LITIGATION
There is no outstanding litigation in which the Company is involved.
DESCRIPTION OF SECURITIES
The Company has an authorized capitalization of 100,000,000
shares of common stock, $.001 par value per share of which 29,972,031
shares are issued and outstanding and 1,000,000 shares of preferred stock,
$.001 par value per share, of which no shares have been designated or
issued.
MARKET FOR NEXTPATH'S SECURITIES
NextPath has been a non-reporting publicly traded company with
certain of its securities exempt from registration under the Securities Act
of 1933 pursuant to Rules 504 and 506 of Regulation D of the General Rules
and Regulations of the Securities and Exchange Commission. NextPath's
common stock has been quoted on the NASD OTC Bulletin Board
originally under the symbol "HYPE" and since July, 1999, under the
symbol "NPTK". The Nasdaq Stock Market has implemented a change in
its rules requiring all companies trading securities on the NASD OTC
Bulletin Board to become reporting companies under the Securities
Exchange Act of 1934.
The Company was required to become a reporting company by the
close of business on December 15, 1999. NextPath has effected the merger
with Epilogue and has become a successor issuer thereto in order to comply
with the reporting company requirements implemented by the Nasdaq Stock
Market.
The following table represents the average prices for the Company's
common stock for the following periods:
Quarter Ending High Bid Low Bid
June, 1998 $ .50 $ .38
September, 1998 .44 .38
December, 1998 .63 .38
March, 1999 1.00 .44
June, 1999 2.38 .88
September, 1999 7.25 1.86
Bid prices for the OTC Bulletin Board reflect inter-dealer prices, do
not include retail mark-ups, mark-downs and commissions, and do not
necessarily reflect actual transactions.
MANAGEMENT
Name Age Title
James R. Ladd 53 President, Chief
Executive Officer,
Treasurer and Director
David A. Nuttle 63 Director
Frederic F. Wolfer, Jr. 61 Vice President and
Secretary
Douglas A. McClain 48 Director
All directors of the Company hold office until the next annual
meeting of shareholders or until their successors are elected and qualified.
At present, the Company's Bylaws provide for not less than one nor more
than five directors. Currently, there are three directors of the Company.
The Bylaws permit the Board of Directors to fill any vacancy and such
director may serve until the next annual meeting of shareholders or until his
successor is elected and qualified. Officers serve at the discretion of the
Board of Directors.
James R. Ladd has served as the President, Chief Executive Officer,
Treasurer and a director since 1998. From 1996 to 1998, Mr. Ladd
worked as an independent consultant assisting new companies in early
developmental stages. From 1992 to 1996, Mr. Ladd served as Chief
Executive Officer, President and Chairman of Demeter BioTechnologies,
Ltd. (now Demegen, Inc.), a Durham, North Carolina biotechnology
company.
David A. Nuttle has served as a director since 1998. From 1990 to
1997, Mr. Nuttle was self-employed and worked on assorted new
technological inventions and processes. Mr. Nuttle received a Bachelor of
Science degree from Kansas State University in 1958.
Frederic F. Wolfer has served as Vice President and Secretary since
November, 1999. From 1991 to 1998, Mr. Wolfer was founder and served
as Chief Executive Officer of Controlled Environment Technologies, Inc.,
a technology consulting firm. In 1997, Mr. Wolfer served as the Country
Director for Russia at the Citizens Network for Foreign Affairs,
Washington, D.C. Mr. Wolfer received a Bachelor of Arts degree from
University of North Carolina at Chapel Hill in 1960, a Masters of Arts
Degree from Central Washington State University, Ellensburg,
Washington, in 1973, and pursued Ph.D. studies at George Washington
University, Washington, D.C. from 1978 to 1983.
Douglas A. McClain, has served as a director since November,
1999. Since 1997, Mr. McClain has served as a senior executive at IPA
Advisory and Intermediary Services, Buffalo Grove, Illinois. From 1993 to
1997, Mr. McClain served as a private consultant to small businesses.
From 1969 to 1970, Mr. McClain attended the Georgia Institute of
Technology and from 1972 to 1973, Mr. McClain attended the Mount
Royal Theology Seminary, Baltimore, Maryland.
EXECUTIVE COMPENSATION
Mr. Ladd, President and Chief Executive Officer, has not received
any compensation for his services in 1999. No officer or director has
received in excess of $100,000 in compensation in 1999.
RISK FACTORS
NEXTPATH IS CURRENTLY OPERATING AT A LOSS. Until the recent
acquisition of Laser Wireless, Inc., NextPath has had no operations or
revenues and NextPath has borrowed funds or sold its securities to begin its
operations. Its ability to develop operations is dependent upon its ability
to acquire companies for which it will need to raise capital through the
placement of its securities or from other debt or equity financing. If the
Company is not able to raise such financing or to obtain alternative sources
of funding, management will be required to curtail operations. There is no
assurance that the Company will be able to continue to operate if additional
sales cannot be generated.
NEXTPATH HAS A LIMITED OPERATING HISTORY. NextPath has only a
limited history of operations which to date have not been profitable. Its
operations are subject to the risks and competition inherent in the
establishment of a relatively new business enterprise. There can be no
assurance that future operations will be profitable. Revenues and profits,
if any, will depend upon various factors, including market acceptance of its
concepts, market awareness, reliability and acceptance of the Internet,
dependability of its distribution network, and general economic conditions.
There is no assurance that NextPath will achieve its expansion goals and the
failure to achieve such goals would have an adverse impact on it.
POSSIBLE INABILITY TO FINANCE ACQUISITIONS. In transactions in which
NextPath agrees to acquire a company for cash, it will have to locate
financing from third-party sources such as banks or other lending sources or
it will have to raise cash through the sale of its securities. There is no
assurance that such funding will be available to NextPath when required to
close a transaction or if available on terms acceptable to NextPath.
OPERATION OF LASER WIRELESS BUSINESS INVOLVES THE USE OF LASERS.
The Company's subsidiary, Laser Wireless, utilizes lasers. Although the
lasers are of relatively low power and to be located in unpopulated areas
such as rooftops, and the laser devices are marked with "hazard" signs,
there can be no assurance that passersby will not cross the path of a laser,
causing damage to the eyes or causing other health hazards.
UNFORESEEN RISKS OF ACQUIRED COMPANIES. Companies that may be
acquired by NextPath or with which NextPath enters into business
relationships may face competition from more-established or better financed
companies. In addition, any one or more of these companies may produce
or manufacture equipment, technology or other goods that pose inherent
risks in production or operation. It is impossible to foresee these risks
herein, but the Company will consider such risks before entering into any
business combination.
THE COMPANY'S ACQUISITION PROGRAM MAY LEAD TO UNDERTAIN
LIABILITIES. NextPath is currently engaged in an active acquisition program.
Although the Company prudently evaluates all potential acquisitions, the
acquisition of going concerns could potentially lead to the acquisition of the
target company's liabilities, including patent and trademark infringement
claims, product liability claims, breach of contract claims, or shareholder
derivative claims. There can be no assurance that any companies that the
Company acquires are free of potential liabilities.
COMPETITION FROM LARGER AND MORE ESTABLISHED COMPANIES MAY
HAMPER MARKETABILITY. NextPath and its subsidiaries may face intense
competition from similar, more well-established competitors, including
national, regional and local companies possessing substantially greater
financial, marketing, personnel and other resources than NextPath.
NextPath may not be able to market or sell its products if faced with direct
product competition from these larger or more established companies.
PATENTS, TRADEMARK PROTECTION AND PROPRIETARY MARKS.
Notwithstanding any potential registration of patents and certain trade
names with the United States Patent Office and the United States
Trademark Office, there is no assurance that NextPath or its subsidiaries
would be able to enforce against use of any of the proprietary products or
marks of its subsidiaries. There is also no assurance that NextPath will be
able to prevent competitors from using the same or similar products,
names, marks, concepts or appearances of it or its subsidiaries or that it
will have the financial resources necessary to protect its marks against
infringing use.
ISSUANCE OF FUTURE SHARES MAY DILUTE INVESTORS' SHARE VALUE. The
Articles of Incorporation as amended of NextPath authorizes the issuance of
100,000,000 shares of common stock. The future issuance of all or part of
the remaining authorized common stock may result in substantial dilution in
the percentage of the Company's common stock held by its then existing
shareholders. Moreover, any common stock issued in the future may be
valued on an arbitrary basis by NextPath. The issuance of the Company's
shares for future services or acquisitions or other corporate actions may
have the effect of diluting the value of the shares held by investors, and
might have an adverse effect on any trading market.
CURRENT TRADING MARKET FOR THE COMPANY'S SECURITIES.
NextPath's common stock is traded on the OTC Bulletin Board operated by
Nasdaq under the symbol NPTK. NextPath did not file a registration
statement with the Securities and Exchange Commission and has not been a
reporting company under the Securities Exchange Act of 1934. The
Nasdaq Stock Market has implemented a change in its rules requiring all
companies trading securities on the OTC Bulletin Board to be registered as
a reporting company. The Company was required to become a reporting
company by the close of business on December 15, 1999. NextPath has
effected the merger with Epilogue and has become a successor issuer
thereto in order to comply with the reporting company requirements
implemented by the Nasdaq Stock Market.
PENNY STOCK REGULATION. The Company's common stock may be
deemed a penny stock. Penny stocks generally are equity securities with a
price of less than $5.00 per share other than securities registered on certain
national securities exchanges or quoted on the Nasdaq Stock Market,
provided that current price and volume information with respect to
transactions in such securities is provided by the exchange or system. The
Company's securities may be subject to "penny stock rules" that impose
additional sales practice requirements on broker-dealers who sell such
securities to persons other than established customers and accredited
investors (generally those with assets in excess of $1,000,000 or annual
income exceeding $200,000 or $300,000 together with their spouse). For
transactions covered by these rules, the broker-dealer must make a special
suitability determination for the purchase of such securities and have
received the purchaser's written consent to the transaction prior to the
purchase. Additionally, for any transaction involving a penny stock, unless
exempt, the "penny stock rules" require the delivery, prior to the
transaction, of a disclosure schedule prescribed by the Commission relating
to the penny stock market. The broker-dealer also must disclose the
commissions payable to both the broker-dealer and the registered
representative and current quotations for the securities. Finally, monthly
statements must be sent disclosing recent price information on the limited
market in penny stocks. Consequently, the "penny stock rules" may restrict
the ability of broker-dealers to sell the Company's securities. The
foregoing required penny stock restrictions will not apply to the Company's
securities if such securities maintain a market price of $5.00 or greater. As
of the date of this report, the trading price of NextPath's common stock is
in excess of $5.00 per share, although there can be no assurance that the
price of the Company's securities will maintain such a level.
COMPUTER SYSTEMS REDESIGNED FOR YEAR 2000. Many existing
computer programs use only two digits to identify a year in such program's
date field. These programs were designed and developed without
consideration of the impact of the change in the century for which four
digits will be required to accurately report the date. If not corrected, many
computer applications could fail or create erroneous results by or following
the year 2000 (the "Year 2000 problem"). Many of the computer programs
containing such date language problems have been corrected by the
companies or governments operating such programs. Many of the
Company's potential operations are highly dependent on computers and the
Internet. The Company cannot predict with certainty what will be the
effect of the Year 2000 problem on the Internet or electronic commerce.
The Company does not know what steps, if any, have been taken by any of
its potential suppliers in regard to the Year 2000 problems. It is impossible
to predict if the basic utilities serving the Company or suppliers will
continue uninterrupted.
ITEM 3. BANKRUPTCY OR RECEIVERSHIP
Not applicable.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM 5. OTHER EVENTS
Successor Issuer Election.
Upon effectiveness of the merger, pursuant to Rule 12g-3(a) of the
General Rules and Regulations of the Securities and Exchange Commission,
NextPath became the successor issuer to Epilogue Corporation for reporting
purposes under the Securities Exchange Act of 1934 and elects to reports
under the Act effective November 12, 1999.
ITEM 6. RESIGNATIONS OF DIRECTORS AND EXECUTIVE OFFICERS
The President and sole director of Epilogue Corporation, James M.
Cassidy, resigned such offices as a result of the merger with NextPath.
The officers and directors of NextPath will continue as the officers and
directors of the successor issuer.
ITEM 7. FINANCIAL STATEMENTS
No financial statements are filed herewith. The Registrant shall file
financial statements by amendment hereto not later than 60 days after the
date that this Current Report on Form 8-K must be filed.
ITEM 8. CHANGE IN FISCAL YEAR
The Company has a December 31 year end.
EXHIBITS
2.1 Agreement and Plan of Merger between Epilogue Corporation and
NextPath Technologies, Inc., dated as of November 11, 1999
3.1* Articles of Incorporation of NextPath Technologies, Inc., as
amended
3.2* By-Laws of NextPath Technologies, Inc.
21.1 List of Subsidiaries of NextPath Technologies, Inc.
24.1* Consent of accountants
27.1* Financial Data Schedule
______
* To be filed by amendment
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this Current Report on Form 8-K to be
signed on its behalf by the undersigned hereunto duly authorized.
NEXTPATH TECHNOLOGIES, INC.
By /s/ James Ladd
President,
Chief Executive Officer
Date: November 11, 1999
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
SUBSIDIARIES OF NEXTPATH TECHNOLOGIES, INC.
(AS OF NOVEMBER 11, 1999)
NAME DATE FORMED STATE OF INCORPORATION
Willow Systems, Inc. 10/12/99 Delaware
Sagebrush Technology, Inc. 10/12/99 Delaware
Laser Wireless, Inc. 10/12/99 Delaware
Laser Wireless, Inc. 3/2/98 Pennsylvania
Global Certified Mail, Inc. 10/14/99 Delaware
PriMedium, Inc. 10/14/99 Delaware
