EXHIBIT

4.4




 








	

  No.

  A-2


  	

   


  	

  200,000

  Shares


  










 




REFOCUS

GROUP, INC.




 




WARRANT

TO PURCHASE COMMON STOCK




 




VOID

AFTER 5:30 P.M., EASTERN STANDARD




TIME, ON

THE EXPIRATION DATE




 




THIS WARRANT AND ANY SHARES ACQUIRED

UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES

ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, PLEDGED,

HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE

REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE

SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.




 




FOR VALUE RECEIVED, Refocus Group, Inc., a Delaware

corporation (the “Company”), hereby agrees to sell upon the terms and on the

conditions hereinafter set forth, but no later than 5:30 p.m., Eastern Standard

Time, on the Expiration Date (as hereinafter defined) to NBCN Clearing Inc., in trust for

Kingsdale Capital Markets Inc., (“Kingsdale”) or registered assigns

(the “Holder”), under the terms as hereinafter set forth, two hundred thousand

(200,000) fully paid and non-assessable shares of the Company’s Common Stock,

par value $.0001 per share (the “Warrant Stock”), at a purchase price per share

of Two and 50/100 Dollars ($2.50) (the “Warrant Price”), pursuant to this

warrant (this “Warrant”).  The number of

shares of Warrant Stock to be so issued and the Warrant Price are subject to

adjustment in certain events as hereinafter set forth.  The term “Common Stock” shall mean, when

used herein, unless the context otherwise requires, the stock and other

securities and property at the time receivable upon the exercise of this

Warrant.




 




This Warrant is being issued to Holder for services

rendered by Kingsdale to the Company. 

Except as expressly provided under Section 1 hereof, this Warrant shall

be interpreted in a manner consistent with the warrants issued to the

purchasers of Company securities pursuant to that certain Confidential Private

Placement Memorandum, dated October 15, 2002, as supplemented (the

“Memorandum”).  Capitalized terms used

and not otherwise defined herein shall have the respective meanings attributed

thereto in Section 10.




 




1.             Exercise

of Warrant.




 




(a) The Holder may exercise this Warrant, according to

its terms, upon and after the closing of the Second Tranche, as defined in the

Memorandum and the Subscription Agreement (the “Subscription Agreement”)

between the Company and the purchasers of Company securities pursuant to the

Memorandum, by surrendering this Warrant to the Company at the address set

forth in Section 11, the subscription form attached hereto having then been

duly executed by the Holder, accompanied by cash, certified check or




 





























 




bank draft in payment of

the purchase price, in lawful money of the United States of America, for the

number of shares of the Warrant Stock specified in the subscription form, or as

otherwise provided in this Warrant prior to 5:30 p.m., Eastern Standard Time,

on March 6, 2006 (the “Expiration Date”).




 




(b) This Warrant may be exercised in whole or in part

so long as any exercise in part hereof would not involve the issuance of

fractional shares of Warrant Stock.  If

exercised in part, the Company shall deliver to the Holder a new Warrant,

identical in form, in the name of the Holder, evidencing the right to purchase

the number of shares of Warrant Stock as to which this Warrant has not been

exercised, which new Warrant shall be signed by the Chairman and Chief

Executive Officer or the President and the Secretary or the Assistant Secretary

of the Company.  The term Warrant as

used herein shall include any subsequent Warrant issued as provided herein.




 




(c) No fractional shares or scrip representing

fractional shares shall be issued upon the exercise of this Warrant.  The Company shall pay cash in lieu of

fractions with respect to the Warrants based upon the fair market value of such

fractional shares of Common Stock (which shall be the closing price of such

shares on the exchange or market on which the Common Stock is then traded) at

the time of exercise of this Warrant.




 




(d) In the event of any exercise of the rights represented

by this Warrant, a certificate or certificates for the Warrant Stock so

purchased, registered in the name of the Holder, shall be delivered to the

Holder within a reasonable time after such rights shall have been so exercised.  The person or entity in whose name any

certificate for the Warrant Stock is issued upon exercise of the rights

represented by this Warrant shall for all purposes be deemed to have become the

holder of record of such shares immediately prior to the close of business on

the date on which the Warrant was surrendered and payment of the Warrant Price

and any applicable taxes was made, irrespective of the date of delivery of such

certificate, except that, if the date of such surrender and payment is a date

when the stock transfer books of the Company are closed, such person shall be

deemed to have become the holder of such shares at the opening of business on

the next succeeding date on which the stock transfer books are open.  Except as provided in Section 4 hereof, the

Company shall pay any and all documentary stamp or similar issue or transfer

taxes payable in respect of the issue or delivery of shares of Common Stock on

exercise of this Warrant.




 




2.             Disposition

of Warrant Stock and Warrant.




 




(a) The Holder hereby acknowledges that this Warrant

and any Warrant Stock purchased pursuant hereto are not being registered (i)

under the Act on the ground that the issuance of this Warrant is exempt from

registration under Section 4(2) of the Act as not involving any public offering

or (ii) under any applicable state securities law because the issuance of this

Warrant does not involve any public offering; and that the Company’s reliance

on the Section 4(2) exemption of the Act and under applicable state securities

laws is predicated in part on the representations hereby made to the Company by

the Holder that it is acquiring this Warrant and will acquire the Warrant Stock

for investment




 




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for its own account, with no present intention of dividing its

participation with others or reselling or otherwise distributing the same,

subject, nevertheless, to any requirement of law that the disposition of its

property shall at all times be within its control.




 




The

Holder hereby agrees that it will not sell or transfer all or any part of this

Warrant and/or Warrant Stock unless and until it shall first have given notice

to the Company describing such sale or transfer and furnished to the Company

either (i) an opinion, reasonably satisfactory to counsel for the Company, of

counsel (skilled in securities matters, selected by the Holder and reasonably

satisfactory to the Company) to the effect that the proposed sale or transfer

may be made without registration under the Act and without registration or

qualification under any state law, or (ii) an interpretative letter from the

Securities and Exchange Commission to the effect that no enforcement action

will be recommended if the proposed sale or transfer is made without

registration under the Act.




 




(b)

If, at the time of issuance of the shares issuable upon exercise of this

Warrant, no registration statement is in effect with respect to such shares

under applicable provisions of the Act, the Company may at its election require

that the Holder provide the Company with written reconfirmation of the Holder’s

investment intent and that any stock certificate delivered to the Holder of a

surrendered Warrant shall bear legends reading substantially as follows:




 




“TRANSFER OF THE

SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET

FORTH IN THE WARRANT PURSUANT TO WHICH THESE SHARES WERE PURCHASED FROM THE

COMPANY.  COPIES OF THOSE RESTRICTIONS

ARE ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY, AND NO TRANSFER OF SUCH

SHARES OR OF THIS CERTIFICATE, OR OF ANY SHARES OR OTHER SECURITIES (OR

CERTIFICATES THEREFOR) ISSUED IN EXCHANGE FOR OR IN RESPECT OF SUCH SHARES,

SHALL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS THEREIN SET FORTH

SHALL HAVE BEEN COMPLIED WITH.”




 




“THE SHARES

REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES

ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF

IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT

OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE

THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.”




 




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In addition, so long as

the foregoing legend may remain on any stock certificate delivered to the

Holder, the Company may maintain appropriate “stop transfer” orders with

respect to such certificates and the shares represented thereby on its books

and records and with those to whom it may delegate registrar and transfer

functions.




 




3.             Reservation

of Shares.  The Company hereby

agrees that at all times there shall be reserved for issuance upon the exercise

of this Warrant such number of shares of its Common Stock as shall be required

for issuance upon exercise of this Warrant. 

The Company further agrees that all shares which may be issued upon the

exercise of the rights represented by this Warrant will be duly authorized and

will, upon issuance and against payment of the exercise price, be validly

issued, fully paid and non–assessable, free from all taxes, liens,

charges and preemptive rights with respect to the issuance thereof, other than

taxes, if any, in respect of any transfer occurring contemporaneously with such

issuance and other than transfer restrictions imposed by federal and state

securities laws.




 




4.             Exchange,

Transfer, Assignment or Loss of Warrant. 

This Warrant is exchangeable, without expense, at the option of the

Holder, upon presentation and surrender hereof to the Company or at the office

of its stock transfer agent, if any, for other Warrants of different

denominations, entitling the Holder or Holders thereof to purchase in the

aggregate the same number of shares of Common Stock purchasable hereunder.  Upon surrender of this Warrant to the

Company or at the office of its stock transfer agent, if any, with the

Assignment Form annexed hereto duly executed and funds sufficient to pay any

transfer tax, the Company shall, without charge, execute and deliver a new

Warrant in the name of the assignee named in such instrument of assignment and

this Warrant shall promptly be canceled. 

This Warrant may be divided or combined with other Warrants that carry

the same rights upon presentation hereof at the office of the Company or at the

office of its stock transfer agent, if any, together with a written notice

specifying the names and denominations in which new Warrants are to be issued

and signed by the Holder hereof.




 




5.             Capital Adjustments.  This Warrant is subject to the following

further provisions:




 




(a)           Recapitalization,

Reclassification and Succession.  If

any recapitalization of the Company or reclassification of its Common

Stock or any merger or consolidation of the Company into or with a corporation

or other business entity, or the sale or transfer of all or substantially all

of the Company’s assets or of any successor corporation’s assets to any other

corporation or business entity (any such corporation or other business entity

being included within the meaning of the term “successor corporation”) shall be

effected, at any time while this Warrant remains outstanding and unexpired,

then, as a condition of such recapitalization, reclassification, merger,

consolidation, sale or transfer, lawful and adequate provision shall be made

whereby the Holder of this Warrant thereafter shall have the right to receive

upon the exercise hereof as provided in Section 1 and in lieu of the shares of

Common Stock immediately theretofore issuable upon the exercise of this

Warrant, such shares of capital stock, securities or other property as may be

issued or payable with respect to or in exchange for a number of outstanding

shares of Common




 




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Stock equal to the number of shares of Common Stock immediately

theretofore issuable upon the exercise of this Warrant immediately prior to

such recapitalization, reclassification, merger, consolidation, sale or

transfer, and in each such case, the terms of this Warrant shall be applicable

to the shares of stock or other securities or property receivable upon the

exercise of this Warrant after such consummation.




 




(b)           Subdivision or Combination of

Shares.  If the Company at any time

while this Warrant remains outstanding and unexpired shall subdivide or combine

its Common Stock, the number of shares of Warrant Stock purchasable upon exercise

of this Warrant and the Warrant Price shall be proportionately adjusted.




 




(c)           Stock Dividends and Distributions.  If the Company at any time while this

Warrant is outstanding and unexpired shall issue or pay the holders of its

Common Stock, then (i) the Warrant Price shall be adjusted in accordance with

Section 5(e) and (ii) the number of shares of Warrant Stock purchasable upon

exercise of this Warrant shall be adjusted to the number of shares of Common

Stock that Holder would have owned immediately following such action had this

Warrant been exercised immediately prior thereto.




 




If the Company shall at any time after the date of

issuance of this Warrant distribute to all holders of its Common Stock any

shares of capital stock of the Company (other than Common Stock) or evidences

of its indebtedness or assets (excluding cash dividends or distributions paid

from retained earnings or current year’s or prior year’s earnings of the

Company) or rights or warrants to subscribe for or purchase any of its securities

(excluding those referred to in the immediately preceding paragraph) (any of

the foregoing being hereinafter in this paragraph called the “Securities”),

then in each such case, the Company shall reserve shares or other units of such

securities for distribution to the Holder upon exercise of this Warrant so

that, in addition to the shares of the Common Stock to which such Holder is

entitled, such Holder will receive upon such exercise the amount and kind of

such Securities which such Holder would have received if the Holder had,

immediately prior to the record date for the distribution of the Securities,

exercised this Warrant.




 




(d)           Warrant

Price Adjustment.  Whenever the

number of shares of Warrant Stock purchasable upon exercise of this Warrant is

adjusted, as herein provided, the Warrant Price payable upon the exercise of

this Warrant shall be adjusted to that price determined by multiplying the

Warrant Price immediately prior to such adjustment by a fraction (i) the

numerator of which shall be the number of shares of Warrant Stock purchasable

upon exercise of this Warrant immediately prior to such adjustment, and (ii)

the denominator of which shall be the number of shares of Warrant Stock

purchasable upon exercise of this Warrant immediately thereafter.




 




(e)           Certain

Shares Excluded.  The number of

shares of Common Stock outstanding at any given time for purposes of the

adjustments set forth in this Section 5 shall exclude any shares then directly

or indirectly held in the treasury of the Company.




 




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(f)            Deferral

and Cumulation of De Minimis Adjustments. 

The Company shall not be required to make any adjustment pursuant to

this Section 5 if the amount of such adjustment would be less than one percent

(1%) of the Warrant Price in effect immediately before the event that would

otherwise have given rise to such adjustment. 

In such case, however, any adjustment that would otherwise have been

required to be made shall be made at the time of and together with the next

subsequent adjustment which, together with any adjustment or adjustments so

carried forward, shall amount to not less than one percent (1%) of the Warrant

Price in effect immediately before the event giving rise to such next

subsequent adjustment.




 




(g)           Duration

of Adjustment.  Following each

computation or readjustment as provided in this Section 5, the new adjusted

Warrant Price and number of shares of Warrant Stock purchasable upon exercise

of this Warrant shall remain in effect until a further computation or

readjustment thereof is required.




 




6.             Notice

to Holders.




 




(a)           Notice of Record Date.  In case:




 




(i) the Company shall take a record of the holders of

its Common Stock (or other stock or securities at the time receivable upon the

exercise of this Warrant) for the purpose of entitling them to receive any

dividend (other than a cash dividend payable out of earned surplus of the

Company) or other distribution, or any right to subscribe for or purchase any

shares of stock of any class or any other securities, or to receive any other

right;




 




(ii) of any capital reorganization of the Company, any

reclassification of the capital stock of the Company, any consolidation with or

merger of the Company into another corporation, or any conveyance of all or substantially

all of the assets of the Company to another corporation; or




 




(iii) of any voluntary dissolution, liquidation or

winding-up of the Company;




 




then, and in each such

case, the Company will mail or cause to be mailed to the Holder hereof at the time

outstanding a notice specifying, as the case may be, (i) the date on which a

record is to be taken for the purpose of such dividend, distribution or right,

and stating the amount and character of such dividend, distribution or right,

or (ii) the date on which such reorganization, reclassification, consolidation,

merger, conveyance, dissolution, liquidation or winding-up is to take place,

and the time, if any, is to be fixed, as of which the holders of record of

Common Stock (or such stock or securities at the time receivable upon the

exercise of this Warrant) shall be entitled to exchange their shares of Common

Stock (or such other stock or securities) for securities or other property

deliverable upon such reorganization, reclassification, consolidation, merger,

conveyance, dissolution or winding-up. 

Such notice shall be mailed at least fifteen (15)




 




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days prior to the record

date therein specified, or if no record date shall have been specified therein,

at least thirty (30) days prior to such specified date.




 




(b)           Certificate of Adjustment.

Whenever any adjustment shall be made pursuant to Section 5 hereof, the Company

shall promptly make a certificate signed by its Chairman and Chief Executive

Officer, its President or a Vice President and by its Treasurer or Assistant

Treasurer or its Secretary or Assistant Secretary, setting forth in reasonable

detail the event requiring the adjustment, the amount of the adjustment, the

method by which such adjustment was calculated and the Warrant Price and number

of shares of Warrant Stock purchasable upon exercise of this Warrant after

giving effect to such adjustment, and shall promptly cause copies of such

certificates to be mailed (by first class mail, postage prepaid) to the Holder

of this Warrant.




 




7.             Loss, Theft, Destruction or

Mutilation.  Upon receipt by the

Company of evidence satisfactory to it, in the exercise of its reasonable

discretion, of the ownership and the loss, theft, destruction or mutilation of

this Warrant and, in the case of loss, theft or destruction, of indemnity

reasonably satisfactory to the Company and, in the case of mutilation, upon

surrender and cancellation thereof, the Company will execute and deliver in

lieu thereof, without expense to the Holder, a new Warrant of like tenor dated

the date hereof.




 




8.             Warrant Holder Not a Stockholder.  The Holder of this Warrant, as such, shall

not be entitled by reason of this Warrant to any rights whatsoever as a

stockholder of the Company.




 




9.             Registration Rights.  This Warrant and the shares of Common Stock

issuable upon exercise of this Warrant will be accorded the same registration

rights under the Act as set forth in the Subscription Agreement.




 




10.           Definitions.  As used herein, unless the context otherwise

requires, the following terms have the respective meanings:




 




(a)           “Affiliate”:  with respect to any Person, the

following:  (i) any other Person that at

such time directly or indirectly through one or more intermediaries controls,

or is controlled by or is under common control with such first Person or (ii)

any Person beneficially owning or holding, directly or indirectly, 10% or more

of any class of voting or equity interests of the Company or any Subsidiary or

any corporation of which the Company and its Subsidiaries beneficially own or

hold, in the aggregate, directly or indirectly, 10% of more of any class of

voting or equity interests.  As used in

such definition, “controls,” “controlled by” and “under common control,” as

used with respect to an Person, shall mean the possession, directly or

indirectly, of the power to direct or cause the direction of the management

policies of such Person, whether through the ownership of voting securities, by

agreement or otherwise.




 




(b)           “Person”:  any natural person, corporation, division of

a corporation, partnership, limited liability company, trust, joint venture,

association,




 




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company, estate,

unincorporated organization or government or any agency or political

subdivision thereof.




 




(c)           “Subsidiaries”:  with respect to any Person, any corporation,

association or other business entity (whether now existing or hereafter

organized) of which at least a majority of the securities or other ownership

interests having ordinary voting power for the election of directors is, at the

time as of which any determination is being made, owned or controlled by such

Person or one or more subsidiaries of such Person.




 




11.           Notices.  Any notice required or contemplated by this

Warrant shall be deemed to have been duly given if transmitted by registered or

certified mail, return receipt requested, to the Company at 10300 North Central

Expressway, Suite 104, Dallas, Texas 75231, Attention: President, or to the

Holder at the name and address set forth in the Warrant Register maintained by

the Company.




 




12.           Choice of Law.  THIS WARRANT IS ISSUED UNDER AND SHALL FOR

ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE

STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.




 




IN

WITNESS WHEREOF, the Company has duly caused this Warrant to be signed on its

behalf, in its corporate name and by its duly authorized officers, as of this

6th day of March, 2003.




 




 




	

   


  	

  REFOCUS GROUP,

  INC.


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  Mark A. Cox


  
	

   


  	

  Vice President


  





 




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SUBSCRIPTION

FORM




 




The

undersigned, the Holder of the attached Warrant, hereby irrevocably elects to

exercise purchase rights represented by such Warrant for, and to purchase thereunder,

the following number of shares of Common Stock of REFOCUS GROUP, INC.:




 








	

  Number of Shares


  	

   


  	

  Purchase Price Per Share


  










 




The

undersigned herewith makes payment of

$                 

therefor, and requests that certificates for such shares (and any warrants or

other property issuable upon such exercise) be issued in the name of and

delivered to

                                              

whose address is

                                                               

(social security or taxpayer identification number

               )

and, if such shares shall not include all of the shares issuable under such

warrant, that a new warrant of like tenor and date for the balance of the

shares issuable thereunder be delivered to the undersigned.




 




	

   


  	

   


  	

  HOLDER:


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Signature


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Signature, if

  jointly held


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Date


  





 




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ASSIGNMENT

FORM




FOR VALUE RECEIVED,




 




 




	

   


  
	

  hereby sells,

  assigns and transfers unto


  
	

   


  
	

  Name


  
	

   


  
	

  (Please typewrite or print in block letters)


  





 




 




Social Security or

Taxpayer Identification Number




 




the right to purchase

Common Stock of REFOCUS GROUP, INC., a Delaware corporation, represented by

this Warrant to the extent of shares as to which such right is exercisable and

does hereby irrevocably constitute and appoint

                          ,

Attorney, to transfer the same on the books of the Company with full power of

substitution in the premises.




 




	

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  Witness:


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
							





 




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