Exhibit 10.1


 


	
   

  	
  August 28,
  2003

  
	
   

  
	
  Verus
  Support Services Inc.

  
	
  18 East 50th
  Street, 10th Floor

  
	
  New York, NY
  10022

  



 


Gentlemen:


 


Reference is
made to that certain letter agreement, dated March 6, 2003, relating to the
Verus Contingent Subscription (the “Contingent Subscription Agreement”), from
Verus Support Services Inc. (“Verus”) to Refocus Group, Inc. (“Refocus”), and
that certain related letter agreement, dated June 11, 2003.  Defined terms used without definition in
this letter will have the meanings set forth for such terms in the Contingent
Subscription Agreement. In addition, Verus and Refocus are parties to that
certain letter agreement, dated March 6, 2003, relating to the Advisory
Engagement (the “Advisory Agreement”) pursuant to which Verus agreed to be
appointed as a non-exclusive advisor for and on behalf of Refocus (as successor
to Presby Corp).


 


As set forth
in the Contingent Subscription Agreement, Verus agreed to provide the Verus
Contingent Subscription in order to ensure that Refocus will receive at least
$1.0 million in gross proceeds in the Post-Closing Private Placement by the end
of the six-month period following the date of the Contingent Subscription
Agreement, which would be September 6, 2003. The parties now desire to amend
the terms of the Contingent Subscription Agreement to extend the date on which
Verus would be required to make the Verus Contingent Subscription from
September 6, 2003, to the earlier of (i) December 6, 2003, or (ii) the date
upon which Refocus shall secure at least $1.0 million in additional financing
from other sources (such extended time period being the “Deferral Period”).


 


In the case of
clause (ii) above, if the additional financing shall be on terms at least as
favorable as the initial private placement of Refocus completed on March 6,
2003, then, as set forth in the Contingent Subscription Agreement, Verus shall
be released from its obligation to make the Verus Contingent Subscription.  If, however, the terms of the additional
financing shall not be on terms at least as favorable as those of the private
placement, then the parties agree to negotiate in good faith to determine the
type and amount of the Verus Contingent Subscription.  Verus shall make such revised Verus Contingent Subscription
within ten (10) days after the closing date of the additional financing.  In addition, in the event of a merger,
acquisition, asset or stock purchase, or other business combination resulting
in a change of control of Refocus, Verus shall be released from its obligation
to make the Verus Contingent Subscription. 
For purposes of this letter, a “change in control” shall be deemed to
occur if any “person” or “group” (within the meaning of Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) becomes the ultimate “beneficial
owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of
more than a majority of the total voting power of common stock of Refocus.  Nothing in this letter agreement shall be
deemed to be a


 

















 


release of Verus’ obligation to
make the Verus Contingent Subscription, except as stated herein or as otherwise
agreed to in writing.


 


Pending the
performance by Verus of the Verus Contingent Subscription, or the satisfaction
of such obligation as a result of a closing of the Post-Closing Private
Placement, and as compensation for the deferral of the Verus Contingent
Subscription obligation, the parties hereby agree that monthly fees otherwise
due under the Advisory Agreement, commencing with the fee due for September
2003 and continuing during the Deferral Period, shall be waived. The Advisory
Agreement and all other terms and conditions of such agreement shall remain
valid and effective for all other purposes during the Deferral Period.  Such monthly fee payment obligation shall
commence again beginning the earlier of (i) December 6, 2003, or (ii) the first
full calendar month following the month in which Verus makes the Verus
Contingent Subscription or such obligation is otherwise satisfied.


 


This letter is
entered into by the parties hereto without prejudice to either party’s rights
to assert any claim, right or remedy in respect of the validity of the original
Contingent Subscription Agreement.


 


Please confirm
your agreement to the foregoing by signing and returning to us an executed copy
of this letter.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  REFOCUS
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Acknowledged
  and Agreed to:

  	
   

  
	
   

  	
   

  
	
  VERUS
  SUPPORT SERVICES, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
										



 


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