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Exhibit 2.3
SECURED CONVERTIBLE PROMISSORY NOTE
$1,425,000
Dated: February 10, 2006
FOR VALUE RECEIVED, the undersigned, Plethora Solutions Holdings
plc
("Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to the order
of Endocare,
Inc. ("Lender"), on the earlier of (a) the date twenty-four (24)
months
following the date above written (the "Closing Date") or (b) the
date fifteen
(15) months from the Closing Date, pursuant to Section 5 of this
Note (such
earlier date, the "Note Term"): (i) the principal sum of One
Million Four
Hundred Twenty-Five Thousand Dollars ($1,425,000) plus (ii)
interest calculated
pursuant to Section 1 below.
1.
Interest. Borrower promises to pay Lender interest on the
outstanding
principal amount of this Secured Convertible Promissory Note (this
"Note") from
the Closing Date until maturity, in arrears, payable, unless
otherwise converted
into Ordinary Shares pursuant to Section 2, within thirty (30) days
of: (a) the
date on which all amounts due and payable on this Note are
converted into freely
transferable Ordinary Shares of Borrower which have been admitted
to trading on
the Alternative Investment Market of the London Stock Exchange plc
("Aim") in
the name of Lender pursuant to the terms of this Note or (b) the
Note Term (the
earlier of such dates, the "Payoff Date"), at the rate of 5% per
annum,
compounded quarterly or, if less, at the highest rate of interest
then permitted
by applicable law. In the event that any amount of principal or
interest, or any
other amount payable hereunder, is not paid in full when due
(whether at stated
maturity, by acceleration or otherwise), Borrower agrees to pay
interest on such
unpaid principal or other amount, from the date such amount becomes
due until
the date such amount is paid in full, payable on demand, an 8% per
annum rate,
compounded quarterly or, if less, at the highest rate then
permitted by
applicable law. All computations of interest shall be made on the
basis of a
year of 365 or 366 days, as the case may be, for the actual number
of days
(including the first day but excluding the last day) occurring in
the period for
which such interest is payable. In no event shall Borrower be
obligated to pay
Lender interest, charges or fees at a rate in excess of the highest
rate then
permitted by applicable law.
2.
Conversion.
(a) Lender shall have the option to convert, in full or in part, up
to
the entire amount outstanding under this Note (including the
accrued but unpaid
interest) into shares of Borrower's Ordinary Shares (the "Ordinary
Shares") at
any time or from time to time prior to the Payoff Date. The number
of Ordinary
Shares to be issued upon such conversion shall be equal to the
quotient obtained
by dividing (i) the amount outstanding under the Note that Lender
elects to
convert, by (ii) 222.4 pence sterling (the "Conversion Price").
(b) Beginning one (1) year following the Closing Date, the
entire
amount outstanding under this Note (including accrued but unpaid
interest) may
be converted into Ordinary Shares at the option of Borrower by
written notice to
Lender, and without further action by Lender, if the average mid
market closing
price of the Ordinary Shares as reported on AIM equals or exceeds
one hundred
fifty percent (150%) of the Conversion Price for twenty (20)
consecutive trading
days.
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(c) No fractional share of Ordinary Shares shall be issued upon
conversion of this Note. In lieu of any fractional share to which
Lender is
entitled (after aggregating all fractional shares of such series to
be issued at
such time to Lender), Borrower shall pay to Lender the amount of
outstanding
principal and interest that is not so converted.
(d) Ordinary Shares allotted pursuant to the conversion of the
Note
will not rank for any dividends or other distribution declared,
made or paid on
or by reference to a record date prior to the date such shares are
converted
(the "Exercise Date") but, subject thereto, will rank pari passu in
all other
respects with the Ordinary Shares in issue at the relevant Exercise
Date
provided that on any allotment falling to be made pursuant to
Section 4(d) the
Ordinary Shares to be so allotted shall not rank for any dividends
or other
distributions declared, made or paid by reference to a record date
prior to the
date of allotment.
(e) Borrower shall make applications to the London Stock Exchange
plc
for the Ordinary Shares allotted pursuant to any exercise of
conversion rights
to be admitted to trading on AIM as soon as possible. Borrower will
use all
commercially reasonable endeavors to obtain the admission thereof
as soon as
reasonably practicable after the relevant exercise date, but in no
case later
than five (5) business days after the relevant exercise date. The
Lender shall
not transfer or otherwise dispose of any Ordinary Shares otherwise
than through
the Borrower's broker and with the intention of ensuring an orderly
market in
the Lender's shares or by the acceptance of a general offer to all
of the
Lender's shareholders.
3.
Other provisions. So long as the Note remains exercisable:
(a) Borrower shall notify the Lender of the creation of any new
class
of share capital or securities convertible into share capital
except for
Ordinary Shares which carry, as compared with the existing Ordinary
Shares, no
more advantageous rights as regards voting, dividends and return of
capital or
deferred shares which at all times carry no voting rights and rank
behind all
the Ordinary Shares as regards dividends and return of capital, or
modify the
rights attaching to all or any of its Ordinary Shares or such
deferred shares;
(b) Borrower shall keep available for issue sufficient authorized
but
unissued share capital to satisfy in full (without the need for the
passing of
any resolution by its shareholders) Lender's exercise of all
remaining
unexercised amounts under this Note;
(c) Borrower shall notify the Lender of the creation of any
Ordinary
Shares credited as fully paid by way of capitalization of profits
or reserves if
as a result Borrower would on any subsequent exercise of any Notes
be obliged to
issue Ordinary Shares at a discount;
(d) If at any time an offer is made to all holders of Ordinary
Shares
(or all holders of Ordinary Shares other than the offeror and/or
any company
controlled by the offeror and/or persons acting in concert with the
offeror) to
acquire the whole or any part of the issued share capital of
Borrower and
Borrower becomes aware that as a result of such offer the right to
cast a
majority of the votes which may ordinarily be cast on a poll at a
general
meeting of Borrower has or will become vested in the offeror and/or
such persons
or companies as aforesaid, Borrower shall give notice to Lender of
such vesting
within 14 days of the date of announcement of such offer, and
Lender shall be
entitled, at any time within the period of 30
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days immediately following the date of such notice, to exercise
this Note. On
expiry of such 30 day period all the amounts under this Note then
unexercised
shall automatically expire and have no further effect. Publication
of a scheme
of arrangement under the Companies Act 1985 (as from time to time
amended or
re-enacted) providing for the acquisition by any person of the
whole or any part
of the issued share capital of Borrower shall be deemed to be the
making of an
offer for the purposes of this paragraph;
(e) If Borrower commences liquidation, whether voluntary or
compulsory
(except for the purpose of reconstruction, amalgamation or
unitization on terms
sanctioned by an extraordinary resolution of Lender), it shall
forthwith give
notice thereof to Lender; thereupon Lender will (if in such
winding-up there
shall be a surplus available for distribution amongst the holders
of the
Ordinary Shares (including for this purpose the Ordinary Shares
which would
arise on the exercise of the amount unexercised under this Note)
which, taking
into account the amounts payable on the exercise of the Note,
exceeds in respect
of each Ordinary Share a sum equal to the Conversion Price) be
treated as if
immediately before the date of such order or resolution the Note
had been
exercised in full and shall accordingly be entitled to receive out
of the assets
available on liquidation pari passu with the holders of the
Ordinary Shares such
a sum as Lende
