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EXHIBIT 2.2
FORM OF AMENDMENT TO THE FORM OF AGREEMENT AND
PLAN OF REORGANIZATION
THIS AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT (this "Amendment"), dated as of ________, 1999, by and among The
Plastic Surgery Company, a Georgia corporation ("PSC"), formerly known as Better
Image, Inc., ________________________ (the "Company") and
_______________________, a resident of the State of ________________ (the
"Shareholders").
WHEREAS, the Company, the Shareholders and PSC entered into that
certain Agreement and Plan of Reorganization dated as of ______________________,
whereby the Company, the Shareholders and PSC agreed to effect the Merger upon
the terms and conditions set forth therein (the "Original Agreement");
WHEREAS, the Company, the Shareholders and PSC desire to amend the
Original Agreement as set forth in this Amendment relating to the termination
provisions of the Original Agreement and the merger of the Company into PSC,
subject to the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
amend the Original Agreement as follows:
1. Amendment of Original Agreement. The parties agree that Section 1.8,
Section 7.5 and Section 10 of the Original Agreement shall be amended and
restated in their entirety as follows:
1.8 EXCHANGE OF CERTIFICATES REPRESENTING SHARES OF COMPANY COMMON
STOCK.
(a) On the Closing Date, (i) the Shareholders, as the holders of all
outstanding certificates representing shares of Company common stock,
shall, upon surrender of such certificates, be entitled to receive the
Merger Consideration and (ii) until the certificates representing
Company common stock have been surrendered by Shareholders and replaced
by certificates representing PSC common stock, the certificates for
Company common stock shall, for all purposes, be deemed to evidence
ownership of PSC common stock in such share amounts as will be issued
pursuant to Annex I.
(b) The Shareholders shall deliver to PSC on the Closing Date the
certificates representing Company common stock owned by them, duly
endorsed in blank by the Shareholders, or accompanied by blank stock
powers, and with all necessary transfer tax and other revenue stamps
(if any), acquired at the Shareholders' expense. The Shareholders agree
to cure any deficiencies with respect to the endorsement of the
certificates or other documents of conveyance with respect to such
Company common stock or with respect to the stock powers accompanying
any Company Common Stock. Simultaneous with such delivery on the
Closing Date, the Shareholders shall receive in exchange therefor a
certificate representing that number of shares of PSC common stock and
the
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amount of any cash such Shareholder is entitled to receive pursuant to
Sections 1.7 and 1.8(c) hereof.
(c) Notwithstanding Section 1.7 or any other provision of this
Section 1.8, no fractional shares of PSC common stock will be issued.
SECTION 7.5 INITIAL PUBLIC OFFERING.
PSC shall have completed the IPO for the sale of at least $20,000,000
of common stock of PSC on or before September 30, 1999.
SECTION 10. TERMINATION.
This Agreement may be terminated:
(a) at any time by mutual agreement of all parties;
(b) at any time by PSC if at any time prior to the Closing Date
any representation or warranty of the Company or any Shareholder
contained in this Agreement or in any certificate or other document
executed and delivered by the Company or any Shareholder pursuant to
this Agreement is or becomes untrue or breached in any material respect
or if the Company or any Shareholder fails to comply in any material
respect with any covenant or agreement contained herein, and any such
misrepresentation, noncompliance or breach is not cured, waived or
eliminated within twenty (20) days after receipt of written notice
thereof;
(c) at any time by the Company or the Shareholders if at any time
prior to the Closing Date any representation or warranty of PSC
contained in this Agreement or in any certificate or other document
executed and delivered by PSC pursuant to this Agreement is or becomes
untrue in any material respect or PSC fails to comply in any material
respect with any covenant or agreement contained herein and such
misrepresentation, noncompliance or breach is not cured, waived or
eliminated within twenty (20) days of written notice thereof;
(d) by PSC, the Company or the Shareholders if the merger
contemplated hereby or the IPO has not been consummated by September
30, 1999; or
(e) by PSC at any time prior to September 30, 1999 if PSC
determines in its sole discretion as the result of its legal, financial
and operational due diligence with respect to the Company, that such
termination is desirable and in the best interests of Better Image.
2. Conditions of the Shareholders' and the Company's Obligations at
Closing. The parties agree that Section 7.8 of the Original Agreement shall no
longer be a condition to the Shareholders' and the Company's obligations at
Closing and shall be deleted.
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3. Miscellaneous.
a. Notices. All notices, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, mailed by certified mail, return receipt requested, sent by
overnight courier service or telecopies, telegraphed or telexed (transmission
confirmed), or otherwise actually delivered to the parties as set forth in the
Original Agreement.
b. Severability and Governing Law. Should any Section or any part
of a Section within this Amendment be rendered void, invalid or unenforceable by
any court of law for any reason, such invalidity or unenforceability shall not
void or render invalid or unenforceable any other Section or part of a Section
in this Amendment. This Amendment is made and entered into in the State of
Georgia and the internal laws of the State of Georgia (without regard to the
principles of conflicts of laws) shall govern the validity and interpretation
hereof and the performance by the parties hereto of their respective duties and
obligations hereunder.
c. Counterparts. This Amendment 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.
d. Captions and Section Headings. Section titles or captions
contained in this Amendment are inserted as a matter of convenience and for
reference purposes only, and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provisions hereof.
e. Further Assurances. Each party hereto agrees to do all acts
and to make, execute and deliver such written instruments as shall from time to
time be reasonably required to carry out the terms and provisions of this
Amendment.
f. Definitions. All capitalized terms used and not defined herein
shall have the meanings assigned to them in the Original Agreement.
g. Survival. Except as specifically modified by this Amendment,
the Original Agreement remains in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Agreement and Plan of Reorganization as of the day and year first above written.
THE PLASTIC SURGERY COMPANY
By:
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Name:
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Title:
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COMPANY:
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By:
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Name:
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Title:
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SHAREHOLDERS
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