AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
This Amendment, (the "Amendment"), dated as of the ______ day of May, 2002,
by and between New Horizon Education, Inc., a Utah corporation ("New Horizon"),
Phase One, LLC, a Utah Limited Liability Company ("Phase One") and American
Hospital Resources, Inc., a Delaware corporation ("AHR") and the shareholders,
or their nominees, of AHR ("Shareholders"), with reference to the following:
WHEREAS, the parties listed above entered into an Agreement and Plan of
Reorganization (the "Reorganization") dated April 3, 2002, and
WHEREAS, the parties desire to modify the terms of the escrow provisions of
Article 2, Paragraphs 2.02(b) and (c) and Paragraph 2.03(a), (b), (c), and (d)
of the Reorganization and
WHEREAS, Paragraph 12.03 of the Reorganization provides for an amendment of
the Reorganization by mutual agreement in writing signed by each party,
therefore the parties agree to the following:
1.01 The Reorganization shall be closed as soon as possible pursuant to
the original terms with the escrow provisions to be amended as follows:
(a) New Horizon shall place 3,196,873 restricted common shares of New
Horizon stock in escrow and Phase One, LLC shall place 12,867,400 shares of New
Horizon stock in escrow upon Xxxxxxx'x exercise of the option to purchase the
Phase One, LLC New Horizon Stock (collectively the "Xxxxxxx Group Stock") to be
released as follows:
(1) Xxxxxxx Group shall receive the Xxxxxxx Group Stock based on a
weighted average formula. For example, when Xxxxxxx Group can evidence the
$1,500,000 EBITDA identified in Paragraph 2.03(a) of the Reorganization,
Xxxxxxx Group shall receive 50% of the Xxxxxxx Group Stock.
(2) When Xxxxxxx Group can show evidence of $15,300,000 in revenues,
Xxxxxxx Group shall receive 25% of the Xxxxxxx Group Stock.
(3) When Xxxxxxx Group raises $3,000,000 cash, Xxxxxxx Group shall
receive 25% of the Xxxxxxx Group Stock.
(4) In the event Xxxxxxx Group does not meet the milestones set out
above, Xxxxxxx Group would receive shares based on a percentage of the
milestones. For example, if Xxxxxxx Group can evidence only $500,000 of the
EBITDA, then Xxxxxxx Group shall receive 1/3 of 50% of the Xxxxxxx Group
Stock. If Xxxxxxx Group can only evidence $5,100,000 in revenues, then
Xxxxxxx Group would receive 1/3 of 25% of the Xxxxxxx Group Stock. If
Xxxxxxx Group cannot show evidence of any cash raised, then Xxxxxxx Group
would receive 0 of 25% of the Xxxxxxx Group Stock.
(5) The weighted average formula would continue until all of the
Xxxxxxx Group Stock has been disbursed.
1.02 In the event all shares are not distributed within ninety (90)
days from the date of this Amendment, the parties agree that the Xxxxxxx Group
shall be limited to one board member on the board of directors of New Horizon
until such time as all shares are distributed. In any event, the parties agree
that the board of directors of New Horizon shall have at least one independent
director on the board at all times.
2.0 Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of Utah excluding the conflicts of
laws.
3.0 Notices. All notices necessary or appropriate under this
Agreement shall be effective when personally delivered or deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, and addressed to the parties last known address which addresses
are currently as follows:
If to New Horizon If to AHR
Xx. Xxxxxxxxxxx X. Xxxxxxx Xx. Xxxxxxxxxxx X. Xxxxxxx
0000 Xxx Xxxxx 0000 Xxx Xxxxx
Xxxxx Xxx, XX 00000 Xxxxx Xxx, XX 00000
If to Phase One
Mr. Xxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxxx, XX 00000
With copies to:
Xxxxxx X. Xxxxxxxxx, Esq.
609 Judge Building
0 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, XX 00000
4.0 Amendment and Waiver. The parties hereby may, by mutual
agreement in writing signed by each party, amend this Agreement in any
respect. Any term or provision of this Agreement may be waived in writing
signed by an authorized officer at any time by the party which is entitled to
the benefits thereof, such waiver right shall include, but not be limited to,
the right of either party to:
(a) Extend the time for the performance of any of the obligations of
the other;
(b) Waive any inaccuracies in representations by the other contained
in this Agreement or in any document delivered pursuant hereto;
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(c) Waive compliance by the other with any of the covenants contained
in this Agreement, and performance of any obligations by the other; and
(d) Waive the fulfillment of any condition that is precedent to the
performance by the party so waiving of any of its obligations under this
Agreement.
Any writing on the part of a party relating to such amendment,
extension or waiver as provided in this Section shall be valid if
authorized or ratified by the Board of Directors of such party.
5.0 Remedies not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies
by New Horizon or AHR shall not constitute a waiver of the right to pursue
other available remedies.
6.0 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.0 Benefit. This Agreement shall be binding upon, and inure to the
benefit of, the respective successors and assigns of New Horizon and AHR and
its shareholders.
8.0 Entire Agreement. This Amendment and the Reorganization along with
the Schedules and Exhibits of the Reorganization, represent the entire agreement
of the undersigned regarding the subject matter hereof, and supersedes
all prior written or oral understandings or agreements between the parties.
9.0 AHR shall bear all expenses incurred in connection with the
negotiation, execution, closing, and performance of this Amendment , including
counsel fees and accountant fees.
10.0 Captions and Section Headings. Captions and section headings used
herein are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
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Executed as of the date first written above.
New Horizon Education, Inc. American Hospital Resources, Inc.
By: __________________________ By: _________________________
Xxxxxxxxxxx X. Xxxxxxx, President Xxxxxxxxxxx X. Xxxxxxx, President
Phase One, LLC
By:___________________________
Xxxx Xxxx, Managing Member
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