EXHIBIT

4.5




 








	

  No.

  D-1


  	

   


  	

  50,000

  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 DeRemer Capital Corp. or registered assigns

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

(50,000) 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 Dollars ($2.00) (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.




 




Capitalized terms

used and not otherwise defined herein shall have the respective meanings

attributed thereto in Section 9.




 




1.             Exercise of Warrant.




 




(a) The Holder may

exercise this Warrant according to its terms 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, 2008 (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 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




 




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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.”




 




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




 




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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 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




 




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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.




 




(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.




 




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(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) 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




 




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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.             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, 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.




 




10            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.




 




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11.           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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