**EXHIBIT4.3**

 
| **No.  A-1** |   | **400,000  Shares** |
|--------------|--------|---------------------|

 

**REFOCUSGROUP, INC.**

 

**WARRANTTO PURCHASE COMMON STOCK**

 

**VOIDAFTER 5:30 P.M., EASTERN STANDARD**

**TIME, ONTHE EXPIRATION DATE**

 

**THIS WARRANT AND ANY SHARES ACQUIREDUPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIESACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, PLEDGED,HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THEREGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATESECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.**

 

FOR VALUE RECEIVED, Refocus Group, Inc., a Delawarecorporation (the “Company”), hereby agrees to sell upon the terms and on theconditions hereinafter set forth, but no later than 5:30 p.m., Eastern StandardTime, on the Expiration Date (as hereinafter defined) to **NBCN Clearing Inc., in trust forKingsdale Capital Markets Inc.**, (“Kingsdale”) or registered assigns(the “Holder”), under the terms as hereinafter set forth, four hundred thousand(400,000) 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 shareof Two and 50/100 Dollars ($2.50) (the “Warrant Price”), pursuant to thiswarrant (this “Warrant”).  The number ofshares of Warrant Stock to be so issued and the Warrant Price are subject toadjustment in certain events as hereinafter set forth.  The term “Common Stock” shall mean, whenused herein, unless the context otherwise requires, the stock and othersecurities and property at the time receivable upon the exercise of thisWarrant.

 

This Warrant is being issued to Holder for servicesrendered by Kingdsdale to the Company. This Warrant shall be interpreted in a manner consistent with thewarrants issued to the purchasers of Company securities pursuant to thatcertain Confidential Private Placement Memorandum, dated October 15, 2002, assupplemented (the “Memorandum”). Capitalized terms used and not otherwise defined herein shall have therespective meanings attributed thereto in Section 10.

 

1.             Exerciseof Warrant.

 

(a) The Holder may exercise this Warrant according toits terms by surrendering this Warrant to the Company at the address set forthin Section 11, the subscription form attached hereto having then been dulyexecuted by the Holder, accompanied by cash, certified check or bank draft inpayment 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 subscriptionform, or as otherwise provided in this Warrant prior to 5:30 p.m., EasternStandard Time, on March 6, 2006 (the “Expiration Date”).

 

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(b) This Warrant may be exercised in whole or in partso long as any exercise in part hereof would not involve the issuance offractional shares of Warrant Stock.  Ifexercised 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 purchasethe number of shares of Warrant Stock as to which this Warrant has not beenexercised, which new Warrant shall be signed by the Chairman and ChiefExecutive Officer or the President and the Secretary or the Assistant Secretaryof the Company.  The term Warrant asused herein shall include any subsequent Warrant issued as provided herein.

 

(c) No fractional shares or scrip representingfractional shares shall be issued upon the exercise of this Warrant.  The Company shall pay cash in lieu offractions with respect to the Warrants based upon the fair market value of suchfractional shares of Common Stock (which shall be the closing price of suchshares on the exchange or market on which the Common Stock is then traded) atthe time of exercise of this Warrant.

 

(d) In the event of any exercise of the rightsrepresented by this Warrant, a certificate or certificates for the WarrantStock so purchased, registered in the name of the Holder, shall be delivered tothe Holder within a reasonable time after such rights shall have been soexercised.  The person or entity inwhose name any certificate for the Warrant Stock is issued upon exercise of therights represented by this Warrant shall for all purposes be deemed to havebecome the holder of record of such shares immediately prior to the close ofbusiness on the date on which the Warrant was surrendered and payment of theWarrant Price and any applicable taxes was made, irrespective of the date ofdelivery of such certificate, except that, if the date of such surrender andpayment is a date when the stock transfer books of the Company are closed, suchperson shall be deemed to have become the holder of such shares at the openingof business on the next succeeding date on which the stock transfer books areopen.  Except as provided in Section 4hereof, the Company shall pay any and all documentary stamp or similar issue ortransfer taxes payable in respect of the issue or delivery of shares of CommonStock on exercise of this Warrant.

 

2.             Dispositionof Warrant Stock and Warrant.

 

(a)The Holder hereby acknowledges that this Warrant and any Warrant Stockpurchased pursuant hereto are not being registered (i) under the Act on theground that the issuance of this Warrant is exempt from registration underSection 4(2) of the Act as not involving any public offering or (ii) under anyapplicable state securities law because the issuance of this Warrant does notinvolve any public offering; and that the Company’s reliance on the Section4(2) exemption of the Act and under applicable state securities laws ispredicated in part on the representations hereby made to the Company by theHolder that it is acquiring this Warrant and will acquire the Warrant Stock forinvestment for its own account, with no present intention of dividing itsparticipation with others or reselling or otherwise distributing the same, subject,nevertheless, to any requirement of law that the disposition of its propertyshall at all times be within its control.

 

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TheHolder hereby agrees that it will not sell or transfer all or any part of thisWarrant and/or Warrant Stock unless and until it shall first have given noticeto the Company describing such sale or transfer and furnished to the Companyeither (i) an opinion, reasonably satisfactory to counsel for the Company, ofcounsel (skilled in securities matters, selected by the Holder and reasonablysatisfactory to the Company) to the effect that the proposed sale or transfermay be made without registration under the Act and without registration orqualification under any state law, or (ii) an interpretative letter from theSecurities and Exchange Commission to the effect that no enforcement actionwill be recommended if the proposed sale or transfer is made withoutregistration under the Act.

 

(b) If, at the time of issuance of the shares issuableupon exercise of this Warrant, no registration statement is in effect withrespect to such shares under applicable provisions of the Act, the Company mayat its election require that the Holder provide the Company with writtenreconfirmation of the Holder’s investment intent and that any stock certificatedelivered to the Holder of a surrendered Warrant shall bear legends readingsubstantially as follows:

 

“TRANSFER OF THESHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SETFORTH IN THE WARRANT PURSUANT TO WHICH THESE SHARES WERE PURCHASED FROM THECOMPANY.  COPIES OF THOSE RESTRICTIONSARE ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY, AND NO TRANSFER OF SUCHSHARES OR OF THIS CERTIFICATE, OR OF ANY SHARES OR OTHER SECURITIES (ORCERTIFICATES THEREFOR) ISSUED IN EXCHANGE FOR OR IN RESPECT OF SUCH SHARES,SHALL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS THEREIN SET FORTHSHALL HAVE BEEN COMPLIED WITH.”

 

“THE SHARESREPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIESACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OFIN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACTOF 1933 OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATETHAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.”

 

In addition, so long asthe foregoing legend may remain on any stock certificate delivered to theHolder, the Company may maintain appropriate “stop transfer” orders withrespect

 

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to such certificates andthe shares represented thereby on its books and records and with those to whomit may delegate registrar and transfer functions.

 

3.             Reservation of Shares.  The Company hereby agrees that at all timesthere shall be reserved for issuance upon the exercise of this Warrant suchnumber of shares of its Common Stock as shall be required for issuance uponexercise of this Warrant.  The Companyfurther agrees that all shares which may be issued upon the exercise of therights represented by this Warrant will be duly authorized and will, uponissuance and against payment of the exercise price, be validly issued, fullypaid and non–assessable, free from all taxes, liens, charges andpreemptive rights with respect to the issuance thereof, other than taxes, ifany, in respect of any transfer occurring contemporaneously with such issuanceand other than transfer restrictions imposed by federal and state securitieslaws.

 

4.             Exchange, Transfer, Assignmentor Loss of Warrant.  This Warrant isexchangeable, without expense, at the option of the Holder, upon presentationand surrender hereof to the Company or at the office of its stock transferagent, if any, for other Warrants of different denominations, entitling theHolder or Holders thereof to purchase in the aggregate the same number ofshares of Common Stock purchasable hereunder. Upon surrender of this Warrant to the Company or at the office of itsstock transfer agent, if any, with the Assignment Form annexed hereto dulyexecuted and funds sufficient to pay any transfer tax, the Company shall,without charge, execute and deliver a new Warrant in the name of the assigneenamed in such instrument of assignment and this Warrant shall promptly be canceled.  This Warrant may be divided or combined withother Warrants that carry the same rights upon presentation hereof at theoffice 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 whichnew Warrants are to be issued and signed by the Holder hereof.

 

5.             Capital Adjustments.  This Warrant is subject to the followingfurther provisions:

 

(a)           Recapitalization, Reclassificationand Succession.  If anyrecapitalization of the Company or reclassification of its Common Stock orany merger or consolidation of the Company into or with a corporation or otherbusiness entity, or the sale or transfer of all or substantially all of theCompany’s assets or of any successor corporation’s assets to any othercorporation or business entity (any such corporation or other business entitybeing included within the meaning of the term “successor corporation”) shall beeffected, 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 madewhereby the Holder of this Warrant thereafter shall have the right to receiveupon the exercise hereof as provided in Section 1 and in lieu of the shares ofCommon Stock immediately theretofore issuable upon the exercise of thisWarrant, such shares of capital stock, securities or other property as may beissued or payable with respect to or in exchange for a number of outstandingshares of Common Stock equal to the number of shares of Common Stockimmediately theretofore issuable upon the exercise of this Warrant immediatelyprior to such recapitalization,

 

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reclassification, merger,consolidation, sale or transfer, and in each such case, the terms of thisWarrant shall be applicable to the shares of stock or other securities orproperty receivable upon the exercise of this Warrant after such consummation.

 

(b)           Subdivision or Combination ofShares.  If the Company at any timewhile this Warrant remains outstanding and unexpired shall subdivide or combineits Common Stock, the number of shares of Warrant Stock purchasable uponexercise of this Warrant and the Warrant Price shall be proportionatelyadjusted.

 

(c)           Stock Dividends and Distributions.  If the Company at any time while thisWarrant is outstanding and unexpired shall issue or pay the holders of itsCommon Stock, then (i) the Warrant Price shall be adjusted in accordance withSection 5(e) and (ii) the number of shares of Warrant Stock purchasable uponexercise of this Warrant shall be adjusted to the number of shares of CommonStock that Holder would have owned immediately following such action had thisWarrant been exercised immediately prior thereto.

 

If the Company shall at any time after the date ofissuance of this Warrant distribute to all holders of its Common Stock anyshares of capital stock of the Company (other than Common Stock) or evidencesof its indebtedness or assets (excluding cash dividends or distributions paidfrom retained earnings or current year’s or prior year’s earnings of theCompany) or rights or warrants to subscribe for or purchase any of itssecurities (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 orother units of such securities for distribution to the Holder upon exercise ofthis Warrant so that, in addition to the shares of the Common Stock to whichsuch Holder is entitled, such Holder will receive upon such exercise the amountand kind of such Securities which such Holder would have received if the Holderhad, immediately prior to the record date for the distribution of theSecurities, exercised this Warrant.

 

(d)           WarrantPrice Adjustment.  Whenever thenumber of shares of Warrant Stock purchasable upon exercise of this Warrant isadjusted, as herein provided, the Warrant Price payable upon the exercise ofthis Warrant shall be adjusted to that price determined by multiplying theWarrant Price immediately prior to such adjustment by a fraction (i) thenumerator of which shall be the number of shares of Warrant Stock purchasableupon exercise of this Warrant immediately prior to such adjustment, and (ii)the denominator of which shall be the number of shares of Warrant Stockpurchasable upon exercise of this Warrant immediately thereafter.

 

(e)           Certain Shares Excluded.  The number of shares of Common Stockoutstanding at any given time for purposes of the adjustments set forth in thisSection 5 shall exclude any shares then directly or indirectly held in thetreasury of the Company.

 

(f)            Deferral and Cumulation of DeMinimis Adjustments.  The Companyshall not be required to make any adjustment pursuant to this Section 5 if theamount of such adjustment would be less than one percent (1%) of the WarrantPrice in effect 

 

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immediately before theevent that would otherwise have given rise to such adjustment.  In such case, however, any adjustment thatwould otherwise have been required to be made shall be made at the time of andtogether with the next subsequent adjustment which, together with anyadjustment or adjustments so carried forward, shall amount to not less than onepercent (1%) of the Warrant Price in effect immediately before the event givingrise to such next subsequent adjustment.

 

(g)           Durationof Adjustment.  Following eachcomputation or readjustment as provided in this Section 5, the new adjustedWarrant Price and number of shares of Warrant Stock purchasable upon exerciseof this Warrant shall remain in effect until a further computation orreadjustment thereof is required.

 

6.             Notice to Holders.

 

(a)           Notice of Record Date.  In case:

 

(i) the Company shall take a record of the holders ofits Common Stock (or other stock or securities at the time receivable upon theexercise of this Warrant) for the purpose of entitling them to receive anydividend (other than a cash dividend payable out of earned surplus of theCompany) or other distribution, or any right to subscribe for or purchase anyshares of stock of any class or any other securities, or to receive any otherright;

 

(ii) of any capital reorganization of the Company, anyreclassification of the capital stock of the Company, any consolidation with ormerger of the Company into another corporation, or any conveyance of all orsubstantially all of the assets of the Company to another corporation; or

 

(iii) of any voluntary dissolution, liquidation orwinding-up of the Company;

 

then, and in each suchcase, the Company will mail or cause to be mailed to the Holder hereof at thetime outstanding a notice specifying, as the case may be, (i) the date on whicha record is to be taken for the purpose of such dividend, distribution orright, and stating the amount and character of such dividend, distribution orright, or (ii) the date on which such reorganization, reclassification,consolidation, merger, conveyance, dissolution, liquidation or winding-up is totake place, and the time, if any, is to be fixed, as of which the holders ofrecord of Common Stock (or such stock or securities at the time receivableupon the exercise of this Warrant) shall be entitled to exchange their sharesof Common Stock (or such other stock or securities) for securities or otherproperty deliverable upon such reorganization, reclassification, consolidation,merger, conveyance, dissolution or winding-up. Such notice shall be mailed at least fifteen (15) days prior to therecord date therein specified, or if no record date shall have been specifiedtherein, 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 Companyshall promptly make a certificate signed by its

 

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Chairman and ChiefExecutive Officer, its President or a Vice President and by its Treasurer orAssistant Treasurer or its Secretary or Assistant Secretary, setting forth inreasonable detail the event requiring the adjustment, the amount of theadjustment, the method by which such adjustment was calculated and the WarrantPrice and number of shares of Warrant Stock purchasable upon exercise ofthis Warrant after giving effect to such adjustment, and shall promptly causecopies of such certificates to be mailed (by first class mail, postage prepaid)to the Holder of this Warrant.

 

7.             Loss, Theft, Destruction orMutilation.  Upon receipt by theCompany of evidence satisfactory to it, in the exercise of its reasonablediscretion, of the ownership and the loss, theft, destruction or mutilation ofthis Warrant and, in the case of loss, theft or destruction, of indemnityreasonably satisfactory to the Company and, in the case of mutilation, uponsurrender and cancellation thereof, the Company will execute and deliver inlieu thereof, without expense to the Holder, a new Warrant of like tenor datedthe date hereof.

 

8.             Warrant Holder Not a Stockholder.  The Holder of this Warrant, as such, shallnot be entitled by reason of this Warrant to any rights whatsoever as astockholder of the Company.

 

9.             Registration Rights.  This Warrant and the shares of Common Stockissuable upon exercise of this Warrant will be accorded the same registrationrights under the Act as set forth in the Subscription Agreement between theCompany and the purchasers of Company securities pursuant to the Memorandum.

 

10.           Definitions.  As used herein, unless the context otherwiserequires, the following terms have the respective meanings:

 

(a)           “Affiliate”:  with respect to any Person, thefollowing:  (i) any other Person that atsuch 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 moreof any class of voting or equity interests of the Company or any Subsidiary orany corporation of which the Company and its Subsidiaries beneficially own orhold, in the aggregate, directly or indirectly, 10% of more of any class ofvoting or equity interests.  As used insuch definition, “controls,” “controlled by” and “under common control,” asused with respect to an Person, shall mean the possession, directly orindirectly, of the power to direct or cause the direction of the managementpolicies of such Person, whether through the ownership of voting securities, byagreement or otherwise.

 

(b)           “Person”:  any natural person, corporation, division ofa corporation, partnership, limited liability company, trust, joint venture,association, company, estate, unincorporated organization or government or anyagency or political subdivision thereof.

 

(c)           “Subsidiaries”:  with respect to any Person, any corporation,association or other business entity (whether now existing or hereafterorganized) of

 

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which at least a majorityof the securities or other ownership interests having ordinary voting power forthe election of directors is, at the time as of which any determination isbeing made, owned or controlled by such Person or one or more subsidiaries ofsuch Person.

 

11.           Notices.  Any notice required or contemplated by thisWarrant shall be deemed to have been duly given if transmitted by registered orcertified mail, return receipt requested, to the Company at 10300 North CentralExpressway, Suite 104, Dallas, Texas 75231, Attention: President, or to theHolder at the name and address set forth in the Warrant Register maintained bythe Company.

 

12.           Choice of Law.  THIS WARRANT IS ISSUED UNDER AND SHALL FORALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THESTATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.

 

INWITNESS WHEREOF, the Company has duly caused this Warrant to be signed on itsbehalf, in its corporate name and by its duly authorized officers, as of this6th day of March, 2003.

 
|   | REFOCUS GROUP,  INC. |
|--------|----------------------|
|   |                 |
|   | By:                  |   |   |
|   | Mark A. Cox          |
|   | Vice President       |

 

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**SUBSCRIPTIONFORM**

 

Theundersigned, the Holder of the attached Warrant, hereby irrevocably elects toexercise purchase rights represented by such Warrant for, and to purchasethereunder, the following number of shares of Common Stock of REFOCUS GROUP,INC.:

 

| Number of Shares |   | Purchase Price Per Share |
|------------------|--------|--------------------------|

 

 

Theundersigned herewith makes payment of$                 therefor, and requests that certificates for such shares (and any warrants orother property issuable upon such exercise) be issued in the name of anddelivered to                                              whose address is                                                                (social security or taxpayer identification number               )and, if such shares shall not include all of the shares issuable under suchwarrant, that a new warrant of like tenor and date for the balance of theshares issuable thereunder be delivered to the undersigned.

 
|   |   | HOLDER:                     |
|--------|--------|-----------------------------|
|   |   |                        |
|   |   |                        |
|   |   |                        |
|   |   | Signature                   |
|   |   |                        |
|   |   |                        |
|   |   |                        |
|   |   | Signature, if  jointly held |
|   |   |                        |
|   |   |                        |
|   |   |                        |
|   |   | Date                        |

 

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**ASSIGNMENTFORM**

FOR VALUE RECEIVED,

 
|                                         |
|----------------------------------------------|
| hereby sells, assigns  and transfers unto    |
|                                         |
| Name                                         |
|                                         |
| (Please typewrite or print in block letters) |

 

 

 

Social Security orTaxpayer Identification Number

 

the right to purchaseCommon Stock of REFOCUS GROUP, INC., a Delaware corporation, represented bythis Warrant to the extent of shares as to which such right is exercisable anddoes hereby irrevocably constitute and appoint                          ,Attorney, to transfer the same on the books of the Company with full power ofsubstitution in the premises.

 
| DATED:   |   |                        |   |   |
|----------|--------|-----------------------------|--------|--------|
|     |   |                        |
|     |   |                        |
|     |   |                        |   |
|     |   | Signature                   |
|     |   |                        |
|     |   |                        |
|     |   |                        |   |
|     |   | Signature, if  jointly held |
|     |   |                        |
| Witness: |   |                        |
|     |   |                        |
|     |   |                        |   |
|     |   |                        |
|          |        |                             |        |        |  |  |

 

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