Exhibit 10.38


 


THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR PURSUANT TO RULE 144 OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.


 


WARRANT TO PURCHASE STOCK


Warrant No. 60


 


	
  Corporation:

  	
   

  	
  RELIANT TECHNOLOGIES, INC., a Delaware Corporation

  
	
  Number of Shares:

  	
   

  	
  13,333

  
	
  Class of Stock:

  	
   

  	
  Common Stock

  
	
  Initial Exercise Price:

  	
   

  	
  $3.00 per share

  
	
  Issue Date:

  	
   

  	
  November 3, 2005

  
	
  Expiration Date:

  	
   

  	
  November 3, 2015 (Subject to Section 4.1)

  



 


THIS WARRANT CERTIFIES THAT, for good and valuable consideration, the
receipt of which is hereby acknowledged, COMERICA BANK, a Michigan banking
corporation, or its assignee (“Holder”), is entitled to purchase the number of
fully paid and nonassessable shares of the class of securities (the “Shares”)
of Reliant Technologies, Inc., a Delaware corporation (the “Company”) at the
initial exercise price per Share (the “Warrant Price”) all as set forth above
and as adjusted pursuant to this Warrant, subject to the provisions and upon
the terms and conditions set forth in this Warrant.


 


1.
EXERCISE.


 


1.1           Method
of Exercise. Holder may exercise this warrant by delivering this Warrant
and a duly executed Notice of Exercise in substantially the form attached as
Appendix I to the principal office of the Company. Holder shall also deliver to
the Company a check or wire for the aggregate Warrant Price for the Shares
being purchased.


 


1.2           Delivery
of Certificate and New Warrant. Within 45 days after Holder exercises this Warrant,
the Company shall deliver to Holder certificates for the Shares acquired and,
if this Warrant has not been fully exercised or converted and has not expired,
a new warrant representing the Shares not so acquired.


 


1.3           Replacement
of Warrants. In the case of loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement reasonably satisfactory in form and amount
to the Company or, in the case of mutilation, on surrender and cancellation of
this Warrant, the Company at its expense shall execute and deliver, in lieu of
this Warrant, a new warrant of like tenor.


 

















 


1.4           Acquisition
of the Company.


 


1.4.1        “Acquisition.”  For the purpose of this warrant, “Acquisition”
means (a) any sale, license, or other disposition of all or substantially all
of the assets (including intellectual property) of the Company, or (b) any
reorganization, consolidation, merger or sale of the voting securities of the
Company or any transaction where the holders of the Company’s securities before
the transaction beneficially own less than 50% of the outstanding voting
securities of the surviving entity after the transaction.


 


1.4.2        Assumption of Warrant.
Upon the closing of any Acquisition (other than an Acquisition in which the
consideration received by the Company’s stockholders consists soley of cash),
and as a condition precedent thereto, the successor or surviving entity shall
assume the obligations of this Warrant, and this Warrant shall be exercisable
for the same securities, cash, and property as would be payable for the Shares
issuable upon exercise of the unexercised portion of this Warrant as if such
Shares were outstanding on the record date for the Acquisition and subsequent
closing. The Warrant Price shall be adjusted accordingly, and the Warrant Price
and number and class of Shares shall continue to be subject to adjustment from
time to time in accordance with the provisions thereof.


 


2.
ADJUSTMENTS TO THE SHARES.


 


2.1           Stock
Dividends, Splits, Etc. If the Company declares or pays a dividend on its
common stock payable in common stock, or other securities, or subdivides the
outstanding common stock into a greater amount of common stock, then upon
exercise of this Warrant, for each Share acquired, Holder shall receive,
without cost to Holder, the total number and kind of securities to which Holder
would have been entitled had Holder owned the Shares of record as of the date
the dividend or subdivision occurred.


 


2.2           Reclassification,
Exchange or Substitution. Upon any reclassification, exchange, substitution,
or other event that results in a change of the number and/or class of the
securities issuable upon exercise or conversion of this Warrant, Holder shall
be entitled to receive, upon exercise or conversion of this Warrant, the number
and kind of securities and property that Holder would have received for the
Shares if this Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. Such an event shall
include any automatic conversion of the outstanding or issuable securities of
the Company of the same class or series as the Shares to common stock pursuant
to the terms of the Company’s Articles or Certificate of Incorporation upon the
closing of a registered public offering of the Company’s common stock. The
Company or its successor shall promptly issue to Holder a new warrant for such
new securities or other property. The new warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2 including, without limitation, adjustments to
the Warrant Price and to the number of securities or property issuable upon
exercise of the new warrant. The provisions of this Section 2.2 shall similarly
apply to successive reclassifications, exchanges, substitutions, or other
events.


 


2.3           Adjustments
for Combinations, Etc. If the outstanding Shares arc combined or
consolidated, by reclassification or otherwise, into a lesser number of shares,
the Warrant Price shall be proportionately increased. If the outstanding Shares
are combined or consolidated, by reclassification or otherwise, into a greater
number of shares, the Warrant Price shall be proportionately decreased.


 


2

















 


2.4           Adjustments
for Diluting Issuances. The Warrant Price and the number of Shares issuable
upon exercise of this warrant shall be subject to adjustment, from time to
time, in the manner set forth on Exhibit A if attached, in the event of
Diluting Issuances (as defined on Exhibit A).


 


2.5           No
Impairment. The Company shall not, by amendment of its Articles or Certificate
of Incorporation or through a 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 to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out all the provisions of
this Article 2 and in taking all such action as may be reasonably necessary or
appropriate to protect Holder’s rights under this Article 2 against impairment.


 


2.6           Certificate
as to Adjustments. Upon each adjustment of the Warrant Price, the Company
at its expense shall promptly compute such adjustment, and furnish Holder with
a certificate signed by its Chief Financial Officer setting forth such
adjustment and the facts upon which such adjustment is based. The Company
shall, upon written request, furnish Holder a certificate setting forth the Warrant
Price in effect upon the date thereof and the series of adjustments leading to
such Warrant Price.


 


2.7           Fractional
Shares. No fractional Shares shall be issuable upon exercise or conversion
of the Warrant and the Number of Shares to be issued shall be rounded down to
the nearest whole Share. If a fractional share interest arises upon any
exercise or conversion of the Warrant, the Company shall eliminate such
fractional share interest by paying Holder anamount computed by multiplying the
fractional interest by the fair market value, as determined by the Company’s
Board of Directors, of a full Share.


 


3.
REPRESENTATIONS. AND COVENANTS OF THE COMPANY.


 


3.1           Representations
and Warranties. The Company hereby represents and warrants to the Holder as
follows:


 


3.1.1  The initial Warrant Price referenced on the
first page of this Warrant is not greater than the fair market value of the
Shares as of the date of this Warrant as determined in good faith by the
Company’s board of directors.


 


3.1.2   All Shares which may be issued upon the
exercise of the purchase right represented by this Warrant, and all securities,
if any, issuable upon conversion of the Shares, shall, upon issuance in
accordance with the terms hereof, be duly authorized, validly issued, fully paid
and nonassessable, and free of any liens and encumbrances except for
restrictions on transfer provided for herein or under applicable federal and
state securities laws.


 


3.1.3  The
Company’s capitalization table attached to this Warrant is true and complete as
of the Issue Date.


 


3

















 


3.2           Notice
of Certain Events. If the Company proposes at any time (a) to declare any
dividend or distribution upon its common stock, whether in cash, property,
stock, or other securities and whether or not a regular cash dividend; (b) to
offer for subscription pro rata to the holders of any class or series of its
stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of common stock; or (d)
to merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up, then, in connection with each such event, the Company
shall give Holder (1) at least 20 days prior written notice of the date on
which a record will be taken for such dividend, distribution, or subscription
rights (and specifying the date on which the holders of common stock will be
entitled thereto) or for determining rights to vote, if any, in respect of the
matters referred to in (a) and (b) above; and (2) in the case of the matters
referred to in (c) and (d) above at least 20 days prior written notice of the
date when the same will take place (and specifying the date on which the
holders of common stock will be entitled to exchange their common stock for
securities or other property deliverable upon the occurrence of such event).


 


3.3           Information
Rights. So long as the Holder holds this Warrant and/or any of the Shares,
the Company shall deliver to the Holder (a) promptly after mailing, copies of
all communiques to the shareholders of the Company, (b) within one hundred
twenty (120) days after the end of each fiscal year of the Company, the annual audited
financial statements of the Company certified by independent public accountants
of recognized standing and (c) within forty-five (45) days after the end of
each of the first three quarters of each fiscal year, the Company’s quarterly,
unaudited financial statements.


 


3.4           Registration
Under Securities Act of 1933, as amended. The Company agrees that the
Shares or, if the Shares are convertible into common stock of the Company, such
common stock, shall be subject to the registration rights set forth on Exhibit
B, if attached.


 


4.
MISCELLANEOUS.


 


4.1           Term;
Exercise Upon Expiration. This Warrant is exercisable in whole or in part,
at any time and from time to time on or before the Expiration Date set forth
above; provided, however, that if the Company
completes its initial public offering within the three-year period immediately
prior to the Expiration Date, the Expiration Date shall automatically be
extended until the third anniversary of the effective date of the Company’s
initial public offering. The Company shall give Holder written notice of Holder’s
right to exercise this Warrant not less than 90 days before the Expiration Date.
If the notice is not so given, the Expiration Date shall automatically be
extended until 90 days after the date the Company delivers such notice to
Holder.


 


4.2           Legends.
This Warrant and the Shares (and the securities issuable, directly or
indirectly, upon conversion of the Shares, if any) shall be imprinted with a
legend in substantially the following form:


 


THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED,


 


4

















 


OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO RULE 144
OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.


 


4.3           Compliance
with Securities Laws on Transfer. This Warrant and the Shares issuable upon
exercise of this warrant (and the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) may not be transferred or assigned in
whole or in part without compliance with applicable federal and state
securities laws by the transferor and the transferee.


 


4.4           Transfer
Procedure. Subject to the provisions of Section 4.3, Holder may transfer
all or part of this warrant or the Shares issuable upon exercise of this
warrant (or the securities issuable, directly or indirectly, upon conversion of
the Shares, if any) by giving the Company notice of the portion of the Warrant
being transferred setting forth the name, address and taxpayer identification
number of the transferee and surrendering this Warrant to the Company for
reissuance to the transferee(s) (and Holder, if applicable); provided, however, that Holder may transfer all or part of
this Warrant to its affiliates, including, without limitation, Comerica
Incorporated, at any time without notice to the Company, and such affiliate
shall then be entitled to all the rights of Holder under this Warrant and any
related agreements, and the Company shall cooperate fully in ensuring that any
stock issued upon exercise of this warrant is Issued in the name of the
affiliate that exercises the warrant. The terms and conditions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective permitted successors and assigns. Unless the
Company is filing financial information with the SEC pursuant to the Securities
Exchange Act of 1934, the Company shall have the right to refuse to transfer
any portion of this warrant to any person who directly competes with the
Company.


 


4.5           Notices.
All notices and other communications from the Company to the Holder, or vice
versa, shall be deemed delivered and effective when given personally or mailed
by first-class registered or certified mail, postage prepaid, at such address
as may have been furnished to the Company or the Holder, as the case may be, in
writing by the Company or such Holder from time to time. All notices to the
Holder shall be addressed as follows:


 


Comerica Bank c/o Comerica Incorporated


Attn: Warrant Administrator


500 Woodward Avenue, 32nd Floor, MC 3379


Detroit, MI  48226


 


All notices to the Company shall be addressed as follows:


 


Reliant Technologies, Inc.


Attn: Director of Finance/Controller


5375 Mira Sorrento Place, Suite #100


San Diego, CA 92121


 


4.6           Amendments.
This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought.


 


5

















 


4.7           Attorneys’
Fees. In the event of any dispute between the parties concerning the terms
and provisions of this warrant, the party prevailing in such dispute shall be
entitled to collect from the other party all costs incurred in such dispute, including
reasonable attorneys’ fees.


 


4.8           Governing
Law. This warrant shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to its principles
regarding conflicts of law.


 


4.9           Confidentiality.
The Company hereby agrees to keep the terms and conditions of this warrant
confidential. Notwithstanding the foregoing confidentiality obligation, the
Company may disclose information relating to this Warrant as required by law,
rule, regulation, court order or other legal authority, provided that (i) the
Company has given Holder at least ten (10) days’ notice of such required
disclosure, and (ii) the Company only discloses information that is required,
in the opinion of counsel reasonably satisfactory to Holder, to be disclosed.


 


	
   

  	
   

  	
  RELIANT TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
        /s/
  Harvard Sung

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
    Harvard Sung

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: 

  	
       CFO

  	
   

  
							



 


6

















 


APPENDIX 1


 


NOTICE OF EXERCISE


 


1.             The
undersigned hereby elects to purchase           
shares of the common stock of Reliant Technologies, Inc., pursuant to the terms
of the attached warrant, and tenders herewith payment of the purchase price of
such shares in full.


 


2.             Please
issue a certificate or certificates representing said shares in the name of the
undersigned or in such other name as is specified below:


 


COMERICA BANK


Attn: Warrant Administrator


500 Woodward Avenue, 32nd Floor, MC 3379


Detroit, Ml 48226


 


3.             The
undersigned represents it is acquiring the shares solely for its own account
and not as a nominee for any other party and not with a view toward the resale
or distribution thereof except in compliance with applicable securities laws.


 


COMERICA RANK or Registered Assignee


 


 


	
   

  	
   

  	
   

  
	
  (Signature)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name and Title)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Date)

  	
   

  	
   

  



 


1

















 


EXHIBIT A


 


COMERICA BANK


ANTI-DILUTION PROVISIONS


 


The following provisions are incorporated into and made a part of this
Warrant until such time as all the Company’s oustanding preferred stock is
converted into common stock:


 


1.             Definitions. As used
in this Exhibit A, the following terms have the following respective meanings:


 


1.1           “Option”
means any right, option or warrant to subscribe for, purchase or otherwise acquire
common stock or Convertible Securities.


 


1.2           “Convertible
Securities” means any evidences of indebtedness, shares of stock, or other
securities directly or indirectly convertible into or exchangeable for common
stock.


 


1.3           “Issue”
means to grant, issue, sell, assume or fix a record date for determining
persons entitled to receive any security (including Options), whichever of the
foregoing is the first to occur.


 


1.4           “Additional
Shares of Common Stock” shall have the meaning provided in the Company’s
Amended and Restated Certificate of Incorporation attached hereto.


 


2.             Deemed Issuance of
Additional Shares of Common Stock.  The
shares of common stock ulitmately Issuable upon exercise of an Option
(including the shares of common stock ultimately Issuable upon conversion or
exercise of a Convertible Security Issuable pursuant to an Option) are deemed
to be Issued when the Option is Issued. The shares of common stock ultimately
Issuable upon conversion or exercise of a Convertible Security (other than a Convertible
Security Issued pursuant to an Option) shall be deemed Issued upon Issuance of
the Convertible Security. The maximum amount of common stock Issuable is
determined without regard to any future adjustments permitted under the
instrument creating the Options or Convertible Securities.


 


3.             Adjustments for
Diluting Issuances.


 


3.1           Adjustment
of Warrant Price.  If the Company
issues Additional Shares of Common Stock after the date of this Warrant and the
consideration per Additional Common Share is less than the Warrant Price in
effect immediately before such Issue (a “Diluting Issuance”), the Warrant Price
in effect immediately before such Issue shall be reduced, concurrently with
such Issue, to a price equal to the price obtained by multiplying the then
existing Warrant Price by a fraction, (i) the numerator of which shall be (A)
the number of shares of Securities Deemed Outstanding (as determined below)
immediately prior to such issue or sale, plus (B) the number of shares of
Common Stock which the Aggregate Consideration (as defined below) received by
the Company for the total number of Additional Shares of Common Stock so issued
would purchase at such then-existing Warrant Price, as (ii) the denominator of
which shall be the number of shares of Securities Deemed Outstanding (as
determined below) immediately prior to such issue or sale plus the total number
of Additional Shares of Common Stock so issued.


 


A-1

















 


3.2           Adjustment
of Number of Shares.  Upon each
adjustment of the Warrant Price, the number of Shares Issuable upon exercise of
this Warrant shall be increased to equal the quotient obtained by dividing
$39,999 by the new Warrant Price.


 


3.3           Securitites
Deemed Outstanding.  For the purpose
of this Section 3, all securities Issuable upon exercise of any outstanding
Convertible Securities or Options, Warrants, or other rights to acquire
securities of the Company shall be deemed to be outstanding.


 


3.4           For
the purpose of making any adjustment required under this Exhibit A, the
aggregate consideration received by the Company for any issue or sale of
securities (the “Aggregate Consideration”) shall be defined as: (A) to the
extent it consists of cash, be computed at the net amount of cash received by
the Company after deduction of any underwriting or similar commissions,
compensation or concessions paid or allowed by the Company in connection with
such issue or sale but without deduction of any expenses payable by the
Company, (B) to the extent it consists of property other than cash, be computed
at the fair value of that property as determined in good faith by the Board,
and (C) if Additional Shares of Common Stock, Convertible Securities or rights
or options to purchase either Additional Shares of Common Stock or Convertible
Securities are issued or sold together with other stock or securities or other
assets of the Company for a consideration which covers both, be computed as the
portion of the consideration so received that may be reasonably determined in
good faith by the Board to be allocable to such Additional Shares of Common
Stock, Convertible Securities or rights or Options.


 


2

















 


EXHIBIT B


 


Registration Rights


 


The Shares (if common stock), or the common stock issuable upon
conversion of the Shares, shall be deemed “registrable securities” or otherwise
entitled to “piggy back” registration rights in accordance with the terms of
the following agreement (the “Agreement’) between the Company and its investor(s):


 


Amended and Restated Investor Rights
Agreement dated as of February 2, 2004


 


The Company agrees that no amendments will be made to the Agreement
which would have an adverse impact on Holder’s registration rights thereunder
without the consent of Holder. By acceptance of the Warrant to which this
Exhibit it B is attached, Holder shall be deemed to be a party to the Agreement
solely for the purpose of the above-mention registration rights.


 


If no Agreement exists, then the Company and the Holder shall enter
into Holder’s standard form of Registration Rights Agreement as in effect on
the Issue Date of the Warrant.


 


B-1