EXHIBIT 99.3
EXHIBIT B
FORM OF
AMENDED AND RESTATED
PROMISSORY NOTE
U.S [$____________] Santa Barbara, California
March 1, 2002
FOR VALUE RECEIVED, THE PLASTIC SURGERY COMPANY, a Georgia corporation
(hereinafter referred to as "Obligor"), promises to pay to
[_________________________] (hereinafter referred to as "Holder"), the principal
sum of [___________________________________________ ($__________)], which shall
accrue at a rate of 5% per annum from the date hereof, on the principal sum of
this Note from time to time outstanding. This Note shall be payable in monthly
installments of interest only on the first day of each month commencing on April
1, 2002. On August 28, 2002 (the "Maturity Date"), the Obligor shall pay to the
Holder [_________________________________ ($__________)] to reduce the principal
of this Note (the "Cash Payment") and the remaining balance of the principal and
any unpaid interest then outstanding shall be converted into common stock of the
Obligor as provided by Section 6 of this Note.
Except as otherwise provided in this Note, any payments on this Note
shall be made in lawful money of the United States of America, and all notices
by Obligor to the Holder shall be sent by first class mail and if so sent shall
be deemed received by Holder seventy-two (72) hours after being deposited in the
U.S. mails provided that it is mailed by certified mail, return receipt
requested, and postage prepaid and properly addressed to Holder, at
[___________________________________________], or at such other place, in the
United States, as the Holder shall designate in writing to the Obligor from time
to time hereafter.
1. SERIES AND DENOMINATIONS. This Note is one of a series of unsecured
convertible promissory notes in the aggregate principal amount of One Million
Ninety-Three Thousand Eight Hundred Thirty-Three Dollars and Nineteen Cents
($1,093,833.19) (the "Convertible Notes") issued under and pursuant to that
certain Stock Purchase Agreement (the "Stock Purchase Agreement"), dated
November 15, 2000, as amended, by and among the Obligor, the Florida Center, the
Holder, and the holders of the other Convertible Notes. This Note and each of
the other Convertible Notes were subsequently amended and restated on March 1,
2002 pursuant to the terms of that certain Loan Agreement dated December 31,
2001 (the "Loan Agreement").
2. PARI PASSU STATUS. Any payment of principal of and interest on this
Note shall rank pari passu with the other Convertible Notes. Any such payment on
this Note and the other Convertible Notes shall be made on a pro rata basis as
applied to the principal and interest under this Note and the other Convertible
Notes and no such note shall be paid in full at any time prior to the payment in
full of this Note or any of the other Convertible Notes.
3. NATURE OF NOTE; USURY. The Obligor acknowledges that this Note
evidences purchase money indebtedness arising out of a business transaction. In
no event and upon no contingency shall Obligor be required to pay interest on
this Note in excess of the maximum rate allowed by law. It is the intention of
the parties hereto to conform strictly to the usury laws now in force that would
apply to this Note. Accordingly, notwithstanding anything to the contrary in
this Note or any other agreement entered into in connection herewith, it is
agreed that all charges that constitute interest that are contracted for,
chargeable or receivable under this Note or otherwise in connection with this
transaction shall, under no circumstances, exceed the maximum amount of interest
permitted by law, and any excess shall be deemed a mistake in calculation and
canceled automatically and, if theretofore paid, shall be, at the Holder's
election, either refunded to Obligor or credited on the unpaid principal of this
Note.
4. PREPAYMENTS AND APPLICATION OF PAYMENTS. This Note may be prepaid in
whole or in part without notice, premium or penalty. Partial prepayments shall
be applied to the installment payments of principal and interest hereunder in
the chronological order in which they come due until this Note is paid in full.
Any prepayments made hereunder, shall be credited first to accrued and unpaid
interest payable on the principal balance of this Note from time to time
outstanding and then to the reduction of principal.
5. EVENTS OF DEFAULT. Upon the occurrence and during the continuance of
an Event of Default (as hereinafter defined), the Holders of this Note shall be
entitled, by written notice to the Obligor, to declare this Note to be, and upon
such declaration this Note shall be and become immediately due and payable, in
addition to any other rights or remedies they may have under the laws of the
State of Florida. The occurrence of any of the following events shall constitute
an "Event of Default":
(a) PAYMENT OF NOTE. Obligor shall fail to pay any principal
or interest owing on this Note within ten (10) days after the due date of such
payment.
(b) BREACH OF COVENANTS. Obligor shall fail or neglect to
perform, keep or observe any covenant or obligation of Obligor contained in this
Note (other than failure to pay principal or interest of this Note which is
dealt with specifically in Paragraph 5(a) above), the Stock Purchase Agreement
or the Loan Agreement and the breach of any such covenant or obligation is not
cured within forty-five (45) days after Obligor's receipt of notice of such
breach from Holders.
(c) INSOLVENCY, ETC. Obligor shall suffer the appointment of a
receiver, trustee, custodian or similar fiduciary for all or substantially all
of its assets, or any petition for an order for relief shall be filed by or
against Obligor under any applicable bankruptcy law, and such appointment or
proceeding, as the case may be, is not controverted within thirty (30) days, or
is not dismissed within sixty (60) days, after such appointment or the
commencement of such proceeding (as the case may be).
6. AUTOMATIC CONVERSION.
(a) If the Maturity Date occurs prior to the payment in full
of this Note and Obligor makes the Cash Payment, the entire remaining balance of
the principal then outstanding of this Note after the Cash Payment (the
"Convertible Amount") shall automatically convert into a number of shares of
common stock of Obligor (the "Conversion Shares") equal to the result obtained
by dividing the Convertible Amount by $0.59, which is the average closing price
per share as quoted on the American Stock Exchange for the five trading days
ending one day prior to the date of the Loan Agreement.
(b) No later than ten (10) days prior to the Maturity Date,
the Holder must cause the original of this Note to be delivered to Obligor. As
soon as practicable after the Maturity date, Obligor shall cause its transfer
agent to mail to Holder a stock certificate or certificates representing the
Conversion Shares.
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(c) Concurrently with the delivery of this Note to the Obligor
for conversion, the Holder shall execute and deliver to the Obligor a letter
agreement in form and substance satisfactory to Obligor, confirming that the
Holder is acquiring the Conversion Shares for her own account and for investment
and not with a view to the resale or distribution thereof and agreeing to comply
with restrictions on transferability of the Conversion Shares imposed by
applicable federal and state securities laws.
7. COSTS AND EXPENSES OF COLLECTION. If this Note is collected by or
through an attorney at law, Obligor shall pay all of the Holder's reasonably
incurred costs of collection, including, without limitation, Holder's reasonable
attorneys' fees.
8. WAIVERS BY OBLIGOR. Except as otherwise provided elsewhere in this
Note, Obligor waives presentment for payment, protest, notice of dishonor and
protest and consents to any extensions of time with respect to any payment due
under this Note, and to the addition or release of any party. No waiver of any
payment under this Note shall operate as a waiver of any other payment.
9. EFFECT OF DELAY OR WAIVER BY HOLDER. No delay or failure of the
Holder of this Note in the exercise of any rights or remedy provided for
hereunder shall be deemed a waiver of any other right or remedy which the Holder
may have.
10. NOTICES TO OBLIGOR. Any notice or demand to the Obligor shall be by
First Class Mail, addressed to Obligor, The Plastic Surgery Company, 509 E.
Montecito Street, Santa Barbara, CA 93101, Attention: President, or such other
address as may be designated in writing by Obligor to the Holder and shall be
deemed to have been received seventy-two (72) hours after its deposit,
postage-prepaid, with the United States Postal Service.
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11. GOVERNING LAW/HEADINGS. Obligor and Holder have agreed that,
notwithstanding any laws to the contrary of any jurisdiction in which this Note
is sought to be construed or enforced, this Note shall be governed by, construed
according to and enforced under the internal laws of the state of Florida,
without regard to its choice of laws, to the same extent as if this Note had
been made, the obligations of the Obligor hereunder were to be performed, and
Holder received the payments due it hereunder, entirely in the state of Florida.
The Paragraph headings in this Note are for convenience of reference only and
shall not be considered in, nor shall they affect, the interpretation or
application of any of the provisions of this Note.
OBLIGOR:
The Plastic Surgery Company,
a Georgia corporation
By:
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Print Name:
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Title:
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ACCEPTED and AGREED to this 1st day of March, 2002:
By:________________________________
[_________________]
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