Exhibit 10.20.4


 





Terence A. Walts


President & Chief
Executive Officer


Corporate Offices:  10300 North
Central Parkway, Suite 104, Dallas, TX 75231


Atlanta Office:  927 Carter
Drive NE, Atlanta, GA 30319-1049


(O) 214.368.0200 (F) 214.368.0332 (Mobile) 678.860.3725


e-mail: twalts@refocus-group.com


 




	
   

  	
   

  	
  June 30,
  2004

  






 


Verus Support Services Inc.


18 East 50th Street,
10th Floor


New York, NY 10022


 


Gentlemen:


 


Reference is
made to that certain letter agreement, dated March 6, 2003, relating to the
Verus Contingent Subscription (the “Contingent Subscription Agreement”), from
Verus Support Services Inc. (“Verus”) to Refocus Group, Inc. (“Refocus”), and
those certain related letter agreements, dated June 11, 2003, August 28, 2003
and January 6, 2004.  Defined terms used
without definition in this letter will have the meanings set forth for such
terms in the Contingent Subscription Agreement. In addition, Verus and Refocus
are parties to that certain letter agreement, dated March 6, 2003, relating to
the Advisory Engagement (the “Advisory Agreement”) pursuant to which Verus
agreed to be appointed as a non-exclusive advisor for and on behalf of Refocus
(as successor to Presby Corp).


 


As set forth
in the Contingent Subscription Agreement, Verus agreed to provide, or cause to
be provided, the Verus Contingent Subscription in order to ensure that Refocus
would receive at least $1.0 million in gross proceeds in the Post-Closing
Private Placement by the end of the six-month period following the date of the
Contingent Subscription Agreement, which would have been September 6,
2003.  In letter agreements, dated
August 28, 2003, December 4, 2003 and January 6, 2004, the parties amended the
terms of the Contingent Subscription Agreement to extend the date on which
Verus, or its affiliates or assigns, would be required to satisfy the Verus
Contingent Subscription from September 6, 2003, to the earlier of (i) June 30,
2004, or (ii) the date upon which Refocus shall secure at least $1.0 million in
additional financing from other sources. 
The parties now desire to amend the terms of the Contingent Subscription
Agreement, and to amend the terms of the Advisory Agreement, as follows:


 


1.             The date on which
Verus, or its affiliates or assigns, would be required to satisfy the Verus
Contingent Subscription (as adjusted in paragraph 2 below) is hereby further
extended from June 30, 2004, to the earlier of (i) August 31, 2004, or (ii) the
date upon which Refocus shall secure an amount of additional financing from
sources introduced to Refocus by Verus (excluding Kingsdale Capital Corporation
and its affiliates) equal to 1.25 times the amount of the balance of any Verus
Contingent Subscription amount (as adjusted in paragraph 2 below); such
additional financing shall


 

















 


be on “commercially reasonable
terms,” as further defined below, and shall be arranged by Verus for no
additional compensation payable to Verus or its affiliated companies (such
aggregate extended time period being the “Deferral Period”). For purposes of
the foregoing clause (ii), the parties agree that a financing shall be on
“commercially reasonable terms” if (A) the offering price of the securities, on
a common stock equivalent basis, shall be equal to not less than 85% of the
average of the closing sales price of Refocus common stock over the preceding
ten trading days (provided, however, that in no event may the offering price be
less than approximately $.40 per share of common stock), and involves not more
than 100% total warrant coverage and cash commissions to a qualified placement
agent not to exceed 13%, and only if Refocus determines in its sole discretion
that such a placement agent is necessary, or (B) the Board of Directors of
Refocus, in the exercise of its fiduciary duties, otherwise approves the terms
of such additional financing.  In
addition to the above-referenced financing, in the event of a merger,
acquisition, asset or stock purchase, or other business combination resulting
in a “change in control” of Refocus, Verus shall be released from its
obligation to make the Verus Contingent Subscription.  For purposes of this letter, a “change in control” shall be
deemed to occur if any “person” or “group” (within the meaning of Section 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934) becomes the ultimate “beneficial
owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of
more than a majority of the total voting power of common stock of Refocus.


 


2.             The amount of the
Verus Contingent Subscription has previously been reduced by the following: (a)
$25,000, representing the amount previously invested by Wolf Investment in
December 2003, which the parties agree was an investor introduced by Verus; (b)
$20,000, representing the amount of advisory fees otherwise payable to Verus
under the Advisory Agreement through March 6, 2004; (c) $57,100, which
represents the amount of advisory fees otherwise payable to Verus under the
Advisory Agreement as extended through June 30, 2004; and (d) $13,500, which
represents an amount equal to the value of 50,000 vested and exercisable
warrants to issue common stock of Refocus, originally issued to Verus, its
affiliates, assigns or designees, or investors in the March 2003 private
placement (currently evidenced by warrant A-44), that are hereby surrendered by
Verus for cancellation by Refocus.  The
physical warrant document to be surrendered to Refocus within five business
days.  In addition, the Verus Contingent
Subscription may be further reduced from time to time by the following:  (x) $15,000 per month from June 30, 2004
through the earlier of (i) August 31, 2004, and (ii) the date that Verus shall
have satisfied, or caused to be satisfied, its obligations under paragraph 1
above, representing the amount of advisory fees otherwise payable to Verus
under the Advisory Agreement as extended through August 31, 2004, which amount
shall be waived by Verus pursuant to paragraph 3 below; (y) an amount equal to
the aggregate number of vested and exercisable warrants to issue common stock
of Refocus, originally issued to Verus, its affiliates, assigns or designees,
or investors in the March 2003 private placement, that are surrendered by Verus
for cancellation by Refocus, times twenty-five percent (25%) of the average of
the closing sales price of Refocus common stock over the preceding ten trading
days; and (z) by forfeiture and surrender of shares of common stock of Refocus
originally issued to Verus, its affiliates, assigns or designees, or investors
in the March 2003 private placement, the value such shares based on the average
of the closing sales price of Refocus common stock over the preceding ten
trading days.


 

















 


3.             Towards the amicable
resolution of the Verus Contingent Subscription,  the parties hereby agree that the Advisory Agreement is hereby
extended upon the same terms from June 30, 2004 through the earlier of (i)
August 31, 2004, and (ii) the date that Verus shall have performed, or caused
to be performed, its obligations under paragraph 1 above; provided, however,
that the parties hereby agree that the monthly fee otherwise due under the
Advisory Agreement for such period shall be waived for each month that the
Advisory Agreement remains in effect. The Advisory Agreement and all other
terms and conditions of such agreement shall remain valid and effective for all
other purposes during the Deferral Period.


 


This letter
agreement is entered into by the parties hereto without waiver of and
without prejudice to either party’s rights to assert any claim, right or remedy
in respect of the validity of the original Contingent Subscription Agreement,
unless otherwise expressly excepted or fulfilled by the terms of this letter
agreement, or in respect of the prior satisfaction of, or failure to satisfy,
the obligations under the Contingent Subscription Agreement since the original
date thereof through the date of this letter. Verus is entering into this
letter agreement solely to further assist Refocus in its financing efforts and
minimize any costs towards the amicable resolution of the Verus Contingent
Subscription.


 


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


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  REFOCUS
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Acknowledged
  and Agreed to:

  
	
   

  
	
  VERUS
  SUPPORT SERVICES, INC.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title: