Exhibit
10.29.3


 


Guaranty


 


	
  Date:

  	
   

  	
  January 27, 2005

  
	
   

  	
   

  	
   

  
	
  Guarantors:

  	
   

  	
  Refocus Ocular, Inc., a Delaware corporation

  
	
   

  	
   

  	
  10300 North Central Expressway, Suite 104

  
	
   

  	
   

  	
  Dallas, Texas 75231

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PC Lens Corp, a
  Delaware corporation

  
	
   

  	
   

  	
  10300 North Central
  Expressway, Suite 104

  
	
   

  	
   

  	
  Dallas, Texas 75231

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Refocus Ocular Europe –
  SPRL, a Belgian company

  
	
   

  	
   

  	
  c/o QUA SYS

  
	
   

  	
   

  	
  Boulevard Frère Orban,
  35A

  
	
   

  	
   

  	
  4000 Liège Belgium

  
	
   

  	
   

  	
   

  
	
  Borrower:

  	
   

  	
  Refocus Group, Inc., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
  Borrower’s Mailing Address:

  	
   

  	
  10300 North Central Expressway, Suite 104

  
	
   

  	
   

  	
  Dallas, Texas 75231

  
	
   

  	
   

  	
   

  
	
  Lender:

  	
   

  	
  Medcare Investment Fund III, Ltd.

  
	
   

  	
   

  	
   

  
	
  Lender’s Mailing Address:

  	
   

  	
  c/o Mission City Management, Inc.

  
	
   

  	
   

  	
  8122 Datapoint, Suite 1000

  
	
   

  	
   

  	
  San Antonio, Texas 78229

  
	
   

  	
   

  	
   

  
	
  Guaranteed Indebtedness:

  	
   

  	
  The debt evidenced by the Secured Bridge Note dated
  January 27, 2005 in the original principal amount of $500,000, executed by
  Borrower and payable to the order of Lender, plus all interest, penalties,
  expenses, attorney’s fees, and other collection costs as provided in the
  promissory note.

  



 


1.             Each Guarantor
agrees to pay, when due or declared due, the Guaranteed Indebtedness to Lender
at Lender’s Mailing Address.


 


2.             Each Guarantor
waives (a) diligence in preserving liability of any person on the Guaranteed
Indebtedness and in collecting or bringing suit to collect the Guaranteed
Indebtedness; (b) all rights of Guarantor under chapter 34 of the Texas
Business and Commerce Code and rule 31 of the Texas Rules of Civil Procedure;
(c) protest; (d) notice of extensions,


 





















 


increases, renewals, or rearrangements of the Guaranteed Indebtedness;
and (e) notice of acceptance of this guaranty, of creation of the Guaranteed
Indebtedness, of failure to pay the Guaranteed Indebtedness as it matures, of
any other default, of adverse change in Borrower’s financial condition, of
release or substitution of collateral, of intent to accelerate, of
acceleration, and of subordination of Lender’s rights in any collateral, and
every other notice of every kind. Guarantor’s obligations under this guaranty
will not be altered nor will Lender be liable to Guarantor because of any
action or inaction of Lender in regard to a matter waived or of which notice is
waived by Guarantor in the preceding sentence.


 


3.             Each Guarantor agrees
to pay reasonable attorney’s fees and other collection costs if this guaranty
is placed in the hands of an attorney for collection. If any party retains an
attorney to enforce this guaranty, the party prevailing in litigation is
entitled to recover reasonable attorney’s fees and court and other costs.


 


4.             This guaranty is an
absolute, irrevocable, unconditional, and continuing guaranty of payment and
performance and not of collection.


 


5.             Lender need not
resort to Borrower or any other person or proceed against collateral before
pursuing its rights against a Guarantor or any other guarantor. Lender’s action
or inaction with respect to any right of Lender under the law or any agreement
will not alter the obligation of any Guarantor hereunder. Lender may pursue any
remedy against Borrower or any collateral or under any other guaranty without
altering the obligations of any Guarantor hereunder and without liability to any
Guarantor, even though Lender’s pursuit of such remedy may result in a Guarantor’s
loss of rights of subrogation or to proceed against others for reimbursement of
contribution or any other right.


 


6.             Each Guarantor will
remain liable for the Guaranteed Indebtedness even though the Guaranteed
Indebtedness may be unenforceable against or uncollectible from Borrower or any
other person because of incapacity, lack of power or authority, discharge, or
any other reason.


 


7.             Each Guarantor
consents and acknowledges that such Guarantor’s obligations will not be
released by (a) the renewal, extension, or modification of the Guaranteed
Indebtedness or the promissory note evidencing same; (b) the insolvency,
bankruptcy, liquidation, or dissolution of Borrower or any other obligor; (c)
the failure of Lender to properly obtain, perfect, or preserve any security
interest or lien in any collateral for the Guaranteed Indebtedness; (d) the
release, substitution, or addition of any collateral for the Guaranteed
Indebtedness; or (e) the failure of Lender to exercise diligence, commercial
reasonableness, or reasonable care in the preservation, enforcement, or sale of
any of the collateral.


 


8.             Lender need not
notify the Guarantors that Lender has sued Borrower, but if Lender gives
written notice to any Guarantor that it has sued Borrower, such Guarantor will
be bound by any judgment or decree, to the extent permitted by law.


 


9.             Lender may sue any
guarantor without impairing Lender’s rights against any other


 


2





















 


guarantor, with or without making Borrower a party. Lender may settle
with Borrower or any other guarantor for such amounts as it may elect or may
release Borrower or any guarantor or any collateral securing the Guaranteed
Indebtedness without impairing Lender’s right to collect the Guaranteed
Indebtedness from Guarantor.


 


10.           This guaranty binds the
Guarantors and their respective heirs, successors, and assigns, and it benefits
and may be enforced by Lender and Lender’s successors in interest. When the
context requires, singular nouns and pronouns include the plural. This guaranty
will be construed under the laws of the state of Texas, without regard to
choice-of-law rules of any jurisdiction. The provisions of this guaranty are
severable. If a court of competent jurisdiction finds that any provision of this
guaranty is unenforceable, then the remaining provisions will remain in effect
without the unenforceable parts.


 


11.           FINAL AGREEMENT:
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.


 


 


	
   

  	
  REFOCUS OCULAR, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Terence A. Walts

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PC LENS CORP

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Terence A. Walts

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REFOCUS OCULAR EUROPE – SPRL

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Terence A. Walts

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  	
   

  
								



 


3