**EXHIBIT4.5**

 

| **No.  D-1** |   | **50,000  Shares** |
|--------------|--------|--------------------|

** **

**REFOCUSGROUP, INC.**

 

**WARRANTTO PURCHASE COMMON STOCK**

** **

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

**TIME, ONTHE EXPIRATION DATE**

 

**THISWARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEENREGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAYNOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUTCOMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLEFEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.**

 

FOR VALUERECEIVED, Refocus Group, Inc., a Delaware corporation (the “Company”), herebyagrees to sell upon the terms and on the conditions hereinafter set forth, butno later than 5:30 p.m., Eastern Standard Time, on the Expiration Date (ashereinafter 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 shareof Two Dollars ($2.00) (the “Warrant Price”), pursuant to this warrant (this“Warrant”).  The number of shares ofWarrant Stock to be so issued and the Warrant Price are subject to adjustment incertain events as hereinafter set forth. The term “Common Stock” shall mean, when used herein, unless the contextotherwise requires, the stock and other securities and property at the timereceivable upon the exercise of this Warrant.

 

Capitalized termsused and not otherwise defined herein shall have the respective meaningsattributed thereto in Section 9.

 

1.             Exercise of Warrant.

 

(a) The Holder mayexercise this Warrant according to its terms by surrendering this Warrant tothe Company at the address set forth in Section 11, the subscription formattached hereto having then been duly executed by the Holder, accompanied bycash, certified check or bank draft in payment of the purchase price, in lawfulmoney of the United States of America, for the number of shares of the WarrantStock specified in the subscription form, or as otherwise provided in thisWarrant prior to 5:30 p.m., Eastern Standard Time, on March 6, 2008 (the“Expiration Date”).

 

(b) This Warrantmay be exercised in whole or in part so long as any exercise in part hereofwould not involve the issuance of fractional shares of Warrant Stock.  If exercised in part, the Company shalldeliver to the Holder a new Warrant, identical in form, in the name of theHolder, evidencing the right to purchase the number of shares of

 

----

 

Warrant Stock asto which this Warrant has not been exercised, which new Warrant shall be signedby the Chairman and Chief Executive Officer or the President and the Secretaryor the Assistant Secretary of the Company. The term Warrant as used herein shall include any subsequent Warrantissued as provided herein.

 

(c) No fractionalshares or scrip representing fractional shares shall be issued upon theexercise of this Warrant.  The Companyshall pay cash in lieu of fractions with respect to the Warrants based upon thefair market value of such fractional shares of Common Stock (which shall be theclosing price of such shares on the exchange or market on which the CommonStock is then traded) at the time of exercise of this Warrant.

 

(d) In the eventof any exercise of the rights represented by this Warrant, a certificate orcertificates for the Warrant Stock so purchased, registered in the name of theHolder, shall be delivered to the Holder within a reasonable time after suchrights shall have been so exercised. The person or entity in whose name any certificate for the Warrant Stockis issued upon exercise of the rights represented by this Warrant shall for allpurposes be deemed to have become the holder of record of such sharesimmediately prior to the close of business on the date on which the Warrant wassurrendered and payment of the Warrant Price and any applicable taxes was made,irrespective of the date of delivery of such certificate, except that, if thedate of such surrender and payment is a date when the stock transfer books ofthe Company are closed, such person shall be deemed to have become the holderof such shares at the opening of business on the next succeeding date on whichthe stock transfer books are open. Except as provided in Section 4 hereof, the Company shall pay any andall documentary stamp or similar issue or transfer taxes payable in respect ofthe issue or delivery of shares of Common Stock on exercise of this Warrant.

 

2.             Disposition of Warrant Stock andWarrant.

 

(a) The Holderhereby acknowledges that this Warrant and any Warrant Stock purchased pursuanthereto are not being registered (i) under the Act on the ground that theissuance of this Warrant is exempt from registration under Section 4(2) of theAct as not involving any public offering or (ii) under any applicable statesecurities law because the issuance of this Warrant does not involve any publicoffering; and that the Company’s reliance on the Section 4(2) exemption of theAct and under applicable state securities laws is predicated in part on therepresentations hereby made to the Company by the Holder that it is acquiringthis Warrant and will acquire the Warrant Stock for investment for its ownaccount, with no present intention of dividing its participation with others orreselling or otherwise distributing the same, subject, nevertheless, to anyrequirement of law that the disposition of its property shall at all times bewithin its control.

 

The Holder herebyagrees that it will not sell or transfer all or any part of this Warrant and/orWarrant Stock unless and until it shall first have given notice to the Companydescribing such sale or transfer and furnished to the Company either (i) anopinion, reasonably satisfactory to counsel for the Company, of counsel(skilled in securities matters, selected by the Holder and reasonablysatisfactory to the Company) to

 

2

----

 

the effect that theproposed sale or transfer may be made without registration under the Act andwithout registration or qualification under any state law, or (ii) aninterpretative letter from the Securities and Exchange Commission to the effectthat no enforcement action will be recommended if the proposed sale or transferis made without registration 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 THE SHARES REPRESENTED BY THISCERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE WARRANTPURSUANT TO WHICH THESE SHARES WERE PURCHASED FROM THE COMPANY.  COPIES OF THOSE RESTRICTIONS ARE ON FILE ATTHE PRINCIPAL OFFICES OF THE COMPANY, AND NO TRANSFER OF SUCH SHARES OR OF THISCERTIFICATE, OR OF ANY SHARES OR OTHER SECURITIES (OR CERTIFICATES THEREFOR)ISSUED IN EXCHANGE FOR OR IN RESPECT OF SUCH SHARES, SHALL BE EFFECTIVE UNLESSAND UNTIL THE TERMS AND CONDITIONS THEREIN SET FORTH SHALL HAVE BEEN COMPLIEDWITH.”

 

“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOTBEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD,TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVEREGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OR AN OPINION OFCOUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOTREQUIRED UNDER SAID ACT.”

 

In addition, so long as the foregoing legend may remain on any stockcertificate delivered to the Holder, the Company may maintain appropriate “stoptransfer” orders with respect to such certificates and the shares representedthereby on its books and records and with those to whom it may delegateregistrar 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

 

3

----

 

Company further agreesthat all shares which may be issued upon the exercise of the rights representedby this Warrant will be duly authorized and will, upon issuance and againstpayment of the exercise price, be validly issued, fully paid and non–assessable,free from all taxes, liens, charges and preemptive rights with respect to theissuance thereof, other than taxes, if any, in respect of any transferoccurring contemporaneously with such issuance and other than transferrestrictions 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 theHolder, upon presentation and surrender hereof to the Company or at the officeof its stock transfer agent, if any, for other Warrants of differentdenominations, entitling the Holder or Holders thereof to purchase in theaggregate the same number of shares of Common Stock purchasable hereunder.  Upon surrender of this Warrant to theCompany or at the office of its stock transfer agent, if any, with theAssignment Form annexed hereto duly executed and funds sufficient to pay anytransfer tax, the Company shall, without charge, execute and deliver a newWarrant in the name of the assignee named in such instrument of assignment andthis Warrant shall promptly be canceled. This Warrant may be divided or combined with other Warrants that carrythe same rights upon presentation hereof at the office of the Company or at theoffice of its stock transfer agent, if any, together with a written noticespecifying the names and denominations in which new Warrants are to be issuedand signed by the Holder hereof.

 

5.             CapitalAdjustments.  This Warrant issubject to the following further 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, reclassification, merger, consolidation, saleor transfer, and in each such case, the terms of this Warrant shall beapplicable to the shares of stock or other securities or property receivableupon the exercise of this Warrant after such consummation.

 

(b)           Subdivisionor Combination of Shares.  If theCompany at any time while this Warrant remains outstanding and unexpired shallsubdivide or combine its Common

 

4

----

 

Stock, the number of shares of Warrant Stock purchasable upon exerciseof this Warrant and the Warrant Price shall be proportionately adjusted.

 

(c)           StockDividends and Distributions.  If theCompany at any time while this Warrant is outstanding and unexpired shall issueor pay the holders of its Common Stock, then (i) the Warrant Price shall beadjusted in accordance with Section 5(e) and (ii) the number of shares ofWarrant Stock purchasable upon exercise of this Warrant shall be adjusted tothe number of shares of Common Stock that Holder would have owned immediatelyfollowing such action had this Warrant been exercised immediately priorthereto.

 

If the Companyshall at any time after the date of issuance of this Warrant distribute to allholders of its Common Stock any shares of capital stock of the Company (otherthan Common Stock) or evidences of its indebtedness or assets (excluding cashdividends or distributions paid from retained earnings or current year’s orprior year’s earnings of the Company) or rights or warrants to subscribe for orpurchase any of its securities (excluding those referred to in the immediatelypreceding paragraph) (any of the foregoing being hereinafter in this paragraphcalled the “Securities”), then in each such case, the Company shall reserveshares or other units of such securities for distribution to the Holder uponexercise of this Warrant so that, in addition to the shares of the Common Stockto which such Holder is entitled, such Holder will receive upon such exercise theamount and kind of such Securities which such Holder would have received if theHolder had, 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)           CertainShares Excluded.  The number ofshares of Common Stock outstanding at any given time for purposes of theadjustments set forth in this Section 5 shall exclude any shares then directlyor indirectly held in the treasury of the Company.

 

(f)            Deferraland Cumulation of De Minimis Adjustments. The Company shall not be required to make any adjustment pursuant tothis 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 wouldotherwise have given rise to such adjustment. In such case, however, any adjustment that would otherwise have beenrequired to be made shall be made at the time of and together with the nextsubsequent adjustment which, together with any adjustment or adjustments socarried forward, shall amount to not less than one percent (1%) of the WarrantPrice in effect immediately before the event giving rise to such next subsequentadjustment.

 

5

----

 

(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.             Noticeto Holders.

 

(a)           Noticeof Record Date.  In case:

 

(i) the Company shalltake a record of the holders of its Common Stock (or other stock or securitiesat the time receivable upon the exercise of this Warrant) for the purpose ofentitling them to receive any dividend (other than a cash dividend payable outof earned surplus of the Company) or other distribution, or any right to subscribefor or purchase any shares of stock of any class or any other securities, or toreceive any other right;

 

(ii) of any capitalreorganization of the Company, any reclassification of the capital stock of theCompany, any consolidation with or merger of the Company into anothercorporation, or any conveyance of all or substantially all of the assets of theCompany to another corporation; or

 

(iii) of any voluntarydissolution, liquidation or winding-up of the Company;

 

then, and in each such case, the Company will mail or cause to bemailed to the Holder hereof at the time outstanding a notice specifying, as thecase may be, (i) the date on which a record is to be taken for the purpose ofsuch dividend, distribution or right, and stating the amount and character ofsuch dividend, distribution or right, or (ii) the date on which suchreorganization, 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 suchstock or securities at the time receivable upon the exercise of thisWarrant) shall be entitled to exchange their shares of Common Stock (or suchother stock or securities) for securities or other property deliverable uponsuch reorganization, reclassification, consolidation, merger, conveyance,dissolution or winding-up.  Such noticeshall be mailed at least fifteen (15) days prior to the record date thereinspecified, or if no record date shall have been specified therein, at leastthirty (30) days prior to such specified date.

 

(b)           Certificateof Adjustment. Whenever any adjustment shall be made pursuant to Section 5hereof, the Company shall promptly make a certificate signed by its Chairmanand Chief Executive Officer, its President or a Vice President and by itsTreasurer or Assistant Treasurer or its Secretary or Assistant Secretary,setting forth in reasonable detail the event requiring the adjustment, theamount of the adjustment, the method by which such adjustment was calculatedand the Warrant Price and number of shares of Warrant Stock purchasableupon exercise of this Warrant after giving effect to

 

6

----

 

such adjustment, and shall promptly cause copies of such certificatesto be mailed (by first class mail, postage prepaid) to the Holder of thisWarrant.

 

7.             Loss,Theft, Destruction or Mutilation. Upon receipt by the Company of evidence satisfactory to it, in theexercise of its reasonable discretion, of the ownership and the loss, theft,destruction or mutilation of this Warrant and, in the case of loss, theft ordestruction, of indemnity reasonably satisfactory to the Company and, in thecase of mutilation, upon surrender and cancellation thereof, the Company willexecute and deliver in lieu thereof, without expense to the Holder, a newWarrant of like tenor dated the date hereof.

 

8.             WarrantHolder Not a Stockholder.  TheHolder of this Warrant, as such, shall not be entitled by reason of thisWarrant to any rights whatsoever as a stockholder of the Company.

 

9.             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 which at least a majority of the securities or other ownershipinterests having ordinary voting power for the election of directors is, at thetime as of which any determination is being made, owned or controlled by suchPerson or one or more subsidiaries of such Person.

 

10            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.

 

7

----

 

11.           Choiceof Law.  THIS WARRANT IS ISSUEDUNDER AND SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS CONFLICTSOF LAW RULES.

 

IN WITNESS WHEREOF, the Company has duly caused thisWarrant to be signed on its behalf, in its corporate name and by its dulyauthorized officers, as of this 6th day of March, 2003.

 

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

 

8

----

 

**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                        |

 

9

----

 

**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: |   |                        |
|     |   |                        |
|     |   |                        |   |
|     |   |                        |
|          |        |                             |        |        |  |  |

 

10

----