Exhibit 4.10


 


NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON ITS EXERCISE
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS (I) PURSUANT TO
REGISTRATION UNDER THE ACT OR (II) IN COMPLIANCE WITH AN EXEMPTION THEREFROM
AND ACCOMPANIED, IF REQUESTED BY THE COMPANY, WITH AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
AN EXEMPTION THEREFROM (UNLESS SUCH TRANSFER IS TO AN AFFILIATE OF THE
REGISTERED HOLDER).


 


THIS WARRANT AND THE SHARES OF
SERIES A-3 CONVERTIBLE PREFERRED STOCK


ISSUED UPON ITS EXERCISE ARE
SUBJECT TO THE RESTRICTIONS ON


TRANSFER SET FORTH IN SECTION 4
OF THIS WARRANT


 


 


	
  Date of
  Issuance: March 1, 2005

  	
  Number of Shares of Series A-3 Convertible

  Preferred Stock:

  133,334 (subject to adjustment)

  



 


 


Refocus Group, Inc.


 


Series A-3 Convertible Stock
Purchase Warrant


 


Refocus
Group, Inc., a Delaware corporation (the “Company”),
for value received, hereby certifies that Medcare Investment Fund III, Ltd., a Texas limited partnership, or its registered
assigns (the “Registered Holder”), is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company, in whole or in part, at any time and from time to time on or after
the date of issuance on or before 11:59 p.m., San Antonio, Texas time, on February 28, 2007 and shall be void thereafter
(the “Exercise Period”), 133,334 shares of Series A-3 Convertible Preferred Stock, $0.0001
par value per share, of the Company (the “Preferred Stock”),
at an exercise price of $30.00 per
share.  The shares purchasable upon
exercise of this warrant (“Warrant”)
and the exercise price per share, each as adjusted from time to time pursuant
to the provisions of this Warrant, are hereinafter referred to as the “Warrant Shares” and the “Exercise Price,” respectively.


 


1.                                       Exercise.


 


(a)                                  This
Warrant may be exercised in whole or in part by the Registered Holder by
surrendering this Warrant, along with the purchase form appended hereto as Exhibit A
duly executed and completed by the Registered Holder or by the Registered
Holder’s duly authorized attorney, at the principal office of the Company, or
at such other office or agency as the Company may designate by notice in
writing to the Registered Holder, accompanied by cash or certified cashier’s
check payable to the Company (or wire transfer of immediately available funds),
in lawful money of the United States, of the Exercise Price payable in respect
of the number of Warrant Shares purchased upon such exercise (the “Aggregate Exercise Price”).


 


(b)                                 Each
exercise of this Warrant shall be deemed to have been effected immediately
prior to the close of business on the day on which this Warrant shall have been
surrendered to the Company as provided in subsection 1(a) above (the “Exercise Date”).  At such time, the person or persons in whose
name or names any certificates for Warrant Shares shall be issuable upon such
exercise


 


1





















 


as provided in subsection
1(c) below shall be deemed to have become the holder or holders of record
of the Warrant Shares represented by such certificates.


 


(c)                                  Within
ten (10) days after the date of exercise
of this Warrant, the Company, at its expense, will cause to be issued in the
name of, and delivered to, the Registered Holder, or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may direct, a certificate
or certificates for the number of full Warrant Shares to which the Registered
Holder shall be entitled upon such exercise plus, in lieu of any fractional
share to which the Registered Holder would otherwise be entitled, cash in an
amount determined pursuant to Section 3 hereof.  Notwithstanding the foregoing, the Registered
Holder shall be solely responsible for any income taxes payable and arising
from the issuance or exercise of this Warrant, or any ad valorem
property or intangible tax assessed against the Registered Holder.


 


(d)                                 The
Company shall assist and cooperate with any Registered Holder required to make
any governmental filings or obtain any governmental approvals prior to or in
connection with any exercise of this Warrant (including, without limitation,
making any filings required to be made by the Company).


 


(e)                                  Notwithstanding any other provision of this Warrant,
if the exercise of all or any portion of this Warrant is to be made in
connection with a registered public offering, a sale of the Company or any
other transaction or event, such exercise may, at the election of the
Registered Holder, be conditioned upon consummation of such transaction or
event in which case such exercise shall not be deemed effective until the
consummation of such transaction or event.


 


2.                                       Adjustments. 
In order to prevent
dilution of the rights granted under this Warrant and to grant the Registered
Holder certain additional rights, the Exercise Price shall be subject to
adjustment from time to time as provided in this Section 2 and the
number of Warrant Shares shall be subject to adjustment from time to time as
provided in this Section 2.


 


(a)                                  Adjustment
for Stock Splits and Combinations. 
If the Company shall at any time after the date on which this Warrant
was first issued (the “Original Issue Date”)
while this Warrant remains outstanding and unexpired in whole or in part,
effect a subdivision (by any stock split or otherwise) of the outstanding Preferred
Stock into a greater number of shares, the Exercise Price in effect immediately
before that subdivision shall be proportionately decreased and the number of
shares of Preferred Stock obtainable upon exercise of this Warrant shall be
proportionately increased.  Conversely,
if the Company shall at any time or from time to time after the Original Issue
Date combine (by reverse stock split or otherwise) the outstanding shares of Preferred
Stock into a smaller number of shares, the Exercise Price in effect immediately
before the combination shall be proportionately increased and the number of
shares of Preferred Stock obtainable upon exercise of this Warrant shall be
proportionately decreased.  Any
adjustment under this paragraph shall become effective at the close of business
on the date the subdivision or combination becomes effective.


 


(b)                                 Adjustment for Certain Dividends and Distributions.  In the
event the Company at any time, or from time to time after the Original Issue
Date while this Warrant remains outstanding and unexpired in whole or in part
shall make or issue, or fix a record date for the determination of holders of the
Company’s common stock or convertible preferred stock of any class or series or
entitled to receive, a dividend or other distribution payable in additional
shares of common stock or convertible preferred stock, then and in each such
event the Exercise Price then in effect immediately before such event shall be adjusted
as of the time of such issuance or, in the event such a record date shall have
been fixed, as of the close of business on such record date, so that the
Exercise Price will equal that price determined by multiplying the Exercise
Price then in effect by a fraction:


 


2





















 


(i)                                     the
numerator of which shall be the total number of shares of common stock and
convertible preferred stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date (on an
as-converted basis); and


 


(ii)                                  the
denominator of which shall be the total number of shares of common stock and
convertible preferred stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date (on an
as-converted basis) plus the number of shares of common stock and convertible
preferred stock issuable in payment of such dividend or distribution (on an
as-converted basis);


 


provided, however, that if
such record date shall have been fixed and such dividend is not fully paid or
if such distribution is not fully made on the date fixed therefor, the Exercise
Price shall be recomputed accordingly as of the close of business on such
record date and thereafter the Exercise Price shall be adjusted pursuant to
this paragraph as of the time of actual payment of such dividends or
distributions.


 


(c)                                  Adjustment
for Reclassification, Exchange and Substitution. If at any time after the
Original Issue Date while this Warrant remains outstanding and unexpired in
whole or in part, the Preferred Stock issuable upon exercise of this Warrant is
changed into the same or a different number of shares of any class or classes or
series of stock, this Warrant will thereafter represent the right to acquire
such number and kind of securities as would have been issuable as a result of
exercise of this Warrant and the Exercise Price therefor shall be appropriately
adjusted, all subject to further adjustment in this Section 2.


 


(d)                                 Adjustments for Other Dividends and Distributions.  In the
event the Company at any time or from time to time after the Original Issue Date
while this Warrant remains outstanding and unexpired in whole or in part shall
make or issue, or fix a record date for the determination of holders of common
stock and convertible preferred stock entitled to receive, a dividend or other
distribution payable in securities of the Company (other than shares of common
stock) or in cash or other property, then and in each such event provision
shall be made so that the Registered Holder shall receive upon exercise hereof,
in addition to the number of shares of Preferred Stock issuable hereunder, the
kind and amount of securities of the Company and/or cash and other property
which the Registered Holder would have been entitled to receive had this
Warrant been exercised into Preferred Stock on the date of such event and had
the Registered Holder thereafter, during the period from the date of such event
to and including the Exercise Date, retained any such securities receivable,
giving application to all adjustments called for during such period under this Section
2 with respect to the rights of the Registered Holder.


 


(e)                                  Adjustment
for Mergers or Reorganizations, etc. Any reorganization, recapitalization,
reclassification, consolidation, merger, sale of all or substantially all of
the Company’s assets or other transaction involving the Company in which the Preferred
Stock is converted into or exchanged for securities, cash or other property
while this Warrant remains outstanding and unexpired in whole or in part (other
than a transaction covered by subsections 2(a), 2(b) or 2(d))
is referred to herein as an “Organic Change”.
Prior to the consummation of any such Organic Change, the Company shall make
appropriate provision (in form and substance satisfactory to the Registered
Holders of a majority of the Warrants then remaining outstanding and unexpired)
(as determined in good faith by the Board of Directors of the Company and the
Registered Holders of a majority of the Warrants
then remaining outstanding and unexpired) to ensure that the Registered Holder
shall have the right to receive, in lieu of or in addition to (as the case may
be) such shares of Preferred Stock immediately acquirable and receivable upon
exercise of this Warrant, the kind and amount of securities, cash or other
property as may be issued or payable with respect to or in exchange for the
number of shares of Preferred Stock immediately acquirable and receivable upon
exercise of this Warrant had such Organic Change not taken place.  In such case,
appropriate adjustment (in form and substance satisfactory to the Registered
Holders


 


3





















 


of a majority of
the Warrants then remaining outstanding and unexpired) (as determined in good
faith by the Board of Directors of the Company and the Registered Holders of a
majority of the Warrants then remaining
outstanding and unexpired) shall be made with respect to the Registered Holder’s
rights and interests to ensure that the provisions of this Section 2
shall thereafter be applicable to the Warrants (including, in the case of any
Organic Change where the successor entity or purchasing entity is other than
the Company, an immediate reduction to the Exercise Price to the value of the Preferred
Stock reflected by the terms of the Organic Change and a corresponding increase
in the number of shares of Preferred Stock acquirable and receivable upon
exercise of this Warrant, if the value so reflected is less than the Exercise
Price then in effect immediately prior to such Organic Change).  The Company shall not effect any reorganization,
recapitalization, consolidation or merger unless, prior to the consummation
thereof, the successor entity (if other than the Company) resulting from the
consolidation or merger or the entity purchasing such assets assumes by written
instrument (in form and substance satisfactory to the Registered Holders of a
majority of the Warrants then remaining outstanding and unexpired) the
obligation to deliver to each Registered Holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to acquire; provided, that any assumption shall not
relieve the Company of its obligations hereunder.


 


(f)                                    Intentionally Omitted.


 


(g)                                 Other
Events.  If any event occurs that is
consistent with the intent of this Section 2 but not expressly
provided for by this Section 2 (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights
with equity features), then the Company’s Independent Directors will make an appropriate
adjustment in the Exercise Price and number of Warrant Shares subject to this
Warrant so as to carry out the intent of this Section 2; provided,
however, that no such adjustment will increase the Exercise Price or
decrease the number of shares of Preferred Stock obtainable as otherwise
determined pursuant to this Section 2.


 


(h)                                 Certificate
as to Adjustments.  Upon the
occurrence of each adjustment or readjustment of the Exercise Price pursuant to
this Section 2, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to
the Registered Holder a certificate setting forth such adjustment or
readjustment (including the kind and amount of securities, cash or other
property for which this Warrant shall be exercisable and the Exercise Price)
and showing in detail the facts upon which such adjustment or readjustment is
based.  The Company shall, upon the
written request at any time of the Registered Holder, promptly furnish or cause
to be furnished to the Registered Holder a certificate setting forth
(i) the Exercise Price then in effect and (ii) the number of shares
of Preferred Stock and the amount, if any, of other securities, cash or
property which then would be received upon the exercise of this Warrant, and
shall cause a copy of such certificate to be mailed (by first-class mail,
postage prepaid) to the Registered Holder.


 


3.                                       Requirements for Transfer.


 


(a)                                  This
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Act or (ii) the
Company first shall have been furnished with an opinion of legal counsel to the
effect that such sale or transfer is exempt from the registration requirements
of the Act.


 


(b)                                 Notwithstanding
the foregoing, no registration or opinion of counsel shall be required for
(i) a transfer by a Registered Holder which is a corporation to a wholly
owned subsidiary of such corporation or to a corporation owned by the same
parent entity of such corporation, a transfer by a Registered Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder


 


4





















 


which is a limited
liability company to a member of such limited liability company or a retired
member or to the estate of any such member or retired member, provided that, as
a condition to the Company effecting such transfer, the transferee in each case
agrees in writing to be subject to the terms of this Section 3, or
(ii) a transfer made in accordance with Rule 144 under the Act.


 


(c)                                  Each certificate representing Warrant Shares shall
bear a legend substantially in the following form:


 


“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH SECURITIES ARE REGISTERED
UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO AN EXEMPTION THEREFROM OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.”


 


The
foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.


 


4.                                       No Impairment.  The
Company will not, by amendment of its charter or through reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights
of the holder of this Warrant against impairment.  Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of Preferred
Stock obtainable upon the exercise of this Warrant and (b) take all such
actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Preferred
Stock upon the exercise of this Warrant.


 


5.                                       Notices of Record Date, etc.  In the
event:


 


(a)                                  the
Company shall take a record of the holders of its Preferred Stock (or other
stock or securities at the time deliverable upon the exercise of this Warrant)
for the purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares
of stock of any class or any other securities, or to receive any other right;
or


 


(b)                                 of
any Organic Change; or


 


(c)                                  of the voluntary or involuntary 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 Registered Holders at least ten (10) days prior to the record date specified therein (or such
shorter period approved by a majority of the holders) and at least ten (10) days prior to the effective date of such event specified in
clause (b) or (c) hereof a notice specifying, as the case may be,
(i) the record date for such dividend, distribution or


 


5





















 


right, and the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such Organic Change,
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 Preferred Stock (or such
other stock or securities at the time deliverable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Preferred Stock (or such
other stock or securities) for securities or other property deliverable upon
such Organic Change, dissolution, liquidation or winding-up; provided, however,
that the failure to mail such notice or any defect therein or in the mailing
thereof shall not affect the validity of the corporate action required to be
specified in such notice.  Nothing herein
shall prohibit the Registered Holder from exercising this Warrant during the
ten (10) day period commencing on the date of such notice.


 


6.                                       Reservation of Stock.  The
Company covenants that for the duration of the Exercise Period, the Company
will at all times reserve and keep available, from its authorized and unissued Preferred
Stock solely for issuance and delivery upon the exercise of this Warrant and
free of preemptive rights, such number of Warrant Shares and other securities,
cash and/or property, as from time to time shall be issuable upon the exercise
of this Warrant.  The Company further covenants
that it shall, from time to time, take all steps necessary to increase the
authorized number of shares of its Preferred Stock if at any time the
authorized number of shares of Preferred Stock remaining unissued is
insufficient to permit the exercise of this Warrant.


 


7.                                       Issuance Upon Exercise.  All
shares of Preferred Stock issuable upon exercise of this Warrant, when and if
issued for the consideration stated herein and in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable and will
be free of restrictions on transfer, other than restrictions on transfer under
any agreement between the Holder and the Company and under applicable state and
federal securities laws, and will be free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously or otherwise specified herein).  The Company shall take all such actions as
may be necessary to ensure that all such shares of Preferred Stock may be so
issued without violation of any applicable law or governmental regulation or
any requirements of any domestic stock exchange upon which shares of Preferred
Stock may be listed (except for official notice of issuance which shall be
immediately delivered by the Company upon each such issuance).


 


8.                                       Exchange of Warrants.  Upon the
surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions of
Section 3 hereof, issue and deliver to or upon the order of such Holder,
at the Company’s expense, a new Warrant or Warrants of like tenor, in the name
of the Registered Holder or as the Registered Holder may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Preferred Stock
(or other securities, cash and/or property) then issuable upon exercise of this
Warrant.


 


9.                                       Replacement of Warrants.  Upon
receipt of evidence reasonably satisfactory to the Company (an affidavit of a
Registered Holder shall be satisfactory) of the ownership and loss, theft,
destruction or mutilation of any certificate evidencing this Warrant and in the
case of loss, theft or destruction, upon delivery of an unsecured indemnity
agreement of the Registered Holder in form reasonably satisfactory to the
Company, or in the case of mutilation, upon surrender and cancellation of such
certificate, the Company shall, at its expense, execute and deliver in lieu of
such certificate, a new certificate of like kind representing the same rights
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.


 


6





















 


10.                                 Transfers, etc.


 


(a)                                  The
Company shall maintain a register at its principal executive office containing
the name and address of the Registered Holder of this Warrant.  The Registered Holder may change its or his
address as shown on the warrant register by written notice to the Company requesting
such change.


 


(b)                                 Subject
to the provisions of Section 3 hereof, this Warrant and all rights
hereunder are transferable, in whole or in part, upon surrender of this Warrant
with a properly executed assignment (in the form of Exhibit B
hereto) at the principal executive office of the Company.


 


(c)                                  Until
any transfer of this Warrant is made in the warrant register, the Company may
treat the Registered Holder as the absolute owner hereof for all purposes; provided,
however, that if and when this Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.


 


(d)                                 The
Company shall not close its books against the transfer of this Warrant or any
share of Preferred Stock issued or issuable upon the exercise of this Warrant
in any manner which interferes with the timely exercise of this Warrant.  The Company shall from time to time take all
such action as may be necessary to ensure that the par value per share of the
unissued Preferred Stock acquirable upon exercisable of this Warrant is at all
times equal to or less than the Exercise Price then in effect.


 


11.                                 Mailing of Notices, etc. Any notice, request, demand or other
communication required or permitted to be given to a party pursuant to the
provisions of this Agreement will be in writing and will be effective and
deemed given under this Agreement on the earliest of: (a) the date of personal
delivery, (b) the date of transmission by facsimile, with confirmed transmission
and receipt, (c) two (2) days after deposit with a nationally-recognized
courier or overnight service such as Federal Express, or (d) five (5) days
after mailing via certified mail, return receipt requested.  All notices not delivered personally or by
facsimile will be sent with postage and other charges prepaid and properly
addressed to the party to be notified at the address set forth for such party:


 


If
to Registered Holder:


 


Medcare
Investment Fund III, Ltd.


8122
Datapoint Drive, Suite 1000


San
Antonio, Texas  78229


Fax:
(210) 614-5841


Attn:
Tim Lyles


With a copy to (which
does not constitute notice):


 


Akin,
Gump, Strauss, Hauer & Feld, L.L.P.


300
Convent Street


Suite
1500

San Antonio, Texas 78205

Fax:  (210) 224-2035

Attn:  Alan Schoenbaum


 


7





















 


Refocus
Group, Inc.


10300
North Central Expressway, Suite 104


Dallas,
Texas  75231


Fax:  (214) 368-0332


Attn:  President


 


With
a copy to (which does not constitute notice):


 


Jenkens
& Gilchrist, P.C.


1445
Ross Avenue, Suite 3200


Dallas,
Texas  75202


Phone:  (214) 855-4500


Fax:  (214) 855-4300


Attn:  Robert W. Dockery, Esq.


 


Any party hereto (and
such party’s permitted assigns) may change such party’s address for receipt of
future notices hereunder by giving written notice to the Company and the other
parties hereto.


 


12.                                 No Rights or Liabilities as
Stockholder.  Subject to the provisions of Sections 2
and 6 hereof, until the exercise of this Warrant, the Registered Holder
shall be entitled to notice of all stockholders meetings as required to be made
to all stockholders in accordance with the Company’s bylaws, but except as
otherwise required by applicable law, shall not be entitled to vote on any
matters submitted to the stockholders for a vote.  In the event (a) the Company effects a
split of the Preferred Stock by means of a stock dividend and the Exercise
Price of and the number of Warrant Shares are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such dividend),
and (b) the Registered Holder exercises this Warrant between the record
date and the distribution date for such stock dividend, the Registered Holder
shall be entitled to receive, on the distribution date, the stock dividend with
respect to the shares of Preferred Stock acquired upon such exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.


 


13.                                 Amendment or Waiver.  Any term
of this Warrant may be amended or waived upon the written consent of the
Company and the holders of Company Warrants representing at least 66% of the
number of shares of Preferred Stock then subject to outstanding Company
Warrants; provided that any such amendment or waiver must apply to all
Company Warrants then outstanding; and provided  further that the
number of Warrant Shares subject to this Warrant, the Exercise Price of this
Warrant and the number of shares or class of stock obtainable upon exercise of
this Warrant may not be amended, and the right to exercise this Warrant may not
be waived, without the written consent of the holder of this Warrant (it being
agreed that an amendment to or waiver under any of the provisions of Section
2 of this Warrant shall not be considered an amendment of the number of
Warrant Shares or the Exercise Price). 
The Company shall promptly give notice to all holders of the Company
Warrants of any amendments effected in accordance with this Section 13.  No special consideration may be given to any
holder as inducement to waive or amend this Warrant unless such consideration
is given equally and ratably to all holders.


 


14.                                 Successors and Assigns.  This
Warrant shall be binding upon and inure to the benefit of the Registered Owner
and its assigns, and shall be binding upon any entity succeeding to the Company
by consolidation, merger or acquisition of all or substantially all of the
Company’s assets.  The Company may not
assign this Warrant or any rights or obligations hereunder without the prior
written consent of the Registered Holder. 
The Registered Holder may assign (in whole or in part) this Warrant
without the Company’s prior written consent, in which case the Company shall
subdivide the Warrant, as appropriate.


 


8





















 


15.                                 Remedies.    In the
event of a breach by the Company of any of their obligations under this
Warrant, the Registered Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant.  The Company agrees that monetary damages
would not provide adequate compensation for any losses incurred by reason of
its breach of any of the provisions of this Warrant and hereby further agrees that,
in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.


 


16.                                 Section Headings.  The
section headings in this Warrant are for the convenience of the parties and in
no way alter, modify, amend, limit or restrict the contractual obligations of
the parties.


 


17.                                 Counterparts. 
This Warrant may be
executed in two or more counterparts, each of which will be deemed an original
but all of which together will constitute one and the same instrument.


 


18.                                 Severability. 
The provisions of this
Warrant will be deemed severable and the invalidity or unenforceability of any
provision hereof will not affect the validity or enforceability of the other
provisions hereof; provided that if any provision of this Warrant, as applied
to any party or to any circumstance, is adjudged by a court, governmental body not to be enforceable in accordance with its terms, the
parties agree that the court, governmental body making
such determination will have the power to modify the provision in a manner
consistent with its objectives such that it is enforceable, and/or to delete
specific words or phrases, and in its reduced form, such provision will then be
enforceable and will be enforced.


 


19.                                 Third Parties. Nothing in this Warrant, express or implied, is
intended to confer upon any person other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Warrant.


 


20.                                 Governing Law. The laws of the State of Texas shall govern the
construction of any contracts, without reference to principles of conflict of
law, provided that the Delaware General Corporate Law will apply to all matters
of corporate law.


 


[SIGNATURE PAGE FOLLOWS]


 


9





















 


Refocus Group, Inc.


 


Series A-3 Convertible Stock
Purchase Warrant


 


Signature Page


 


IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed and attested
by its duly authorized officers under its corporate seal and to be dated the
Date of Issuance hereof.


 


 


	
   

  	
  REFOCUS GROUP,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Terence A.
  Walts

  	
   

  
	
   

  	
  Name: Terence A.
  Walts

  
	
   

  	
  Title:  President and CEO

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Mark A. Cox

  	
   

  	
   

  
	
  Secretary

  	
   

  
						



 


10





















 


EXHIBIT A


 


PURCHASE FORM


 


	
  To:

  	
  Refocus
  Group, Inc.

  	
  Dated: 

  	
   

  
	
   

  	
  10300
  North Central Expressway, Suite 104

  	
   

  
	
   

  	
  Dallas,
  Texas  75231

  	
   

  
	
   

  	
  Fax:  (214) 368-0332

  	
   

  
	
   

  	
  Attn:  President

  	
   

  



 


The undersigned, pursuant to the provisions set forth
in the attached Warrant, hereby irrevocably elects to purchase        
shares of the Preferred Stock covered by such Warrant.


 


The undersigned herewith makes payment of the full
exercise price for such shares at the price per share provided for in such
Warrant, which is $         in lawful
money of the United States.


 


	
   

  	
  MEDCARE
  INVESTMENT FUND III, LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MEDCARE
  GP CORP, INC., a Texas

  
	
   

  	
   

  	
  corporation,
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Thomas W. Lyles,
  Jr., President

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  8122
  Datapoint Drive, Suite 1000

  
	
   

  	
   

  	
  San
  Antonio, Texas  78229

  
	
   

  	
   

  	
  Fax:
  (210) 614-5841

  
					



 


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EXHIBIT B


 


ASSIGNMENT FORM


 


FOR VALUE RECEIVED, Medcare Investment Fund III, Ltd. hereby
sells, assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to the number of shares of Preferred Stock covered thereby
set forth below, unto:


 


 


	
  Name of Assignee

  	
   

  	
  Address

  	
   

  	
  No. of
  Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


	
  Dated:

  	
   

  	
   

  	
  MEDCARE INVESTMENT FUND III, LTD.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  MEDCARE
  GP CORP, INC., a Texas

  corporation, General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Thomas W. Lyles,
  Jr., President

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guaranteed:

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
   

  
							



 


The signature should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan associations and
credit unions with membership in an approved signature guarantee medallion
program) pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.


 


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