Exhibit 10.41


 


THIS
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.


 


WARRANT TO PURCHASE STOCK


 


	
  Corporation:

  	
   

  	
  RELIANT
  TECHNOLOGIES, INC., a Delaware Corporation

  
	
  Number
  of Shares:

  	
   

  	
  22,500

  
	
  Class
  of Stock:

  	
   

  	
  Series
  B Preferred

  
	
  Initial
  Exercise Price:

  	
   

  	
  $

  	
  2.00
  per share

  
	
  Issue
  Date:

  	
   

  	
  August
  26, 2004

  
	
  Expiration
  Date:

  	
   

  	
  August
  26, 2014 (Subject to Section 4.1)

  



 


THIS
WARRANT CERTIFIES THAT, for good and valuable consideration, the receipt of
which is hereby acknowledged, COMERICA BANK or its assignee (“Holder”) is
entitled to purchase the number of fully paid and nonassessable shares of the
class of securities (the “Shares”) of the corporation (the “Company”) at the
initial exercise price per Share (the “Warrant Price”) all as set forth above
and as adjusted pursuant to Article 2 of this warrant, subject to the
provisions and upon the terms and conditions set forth in this warrant.


 


ARTICLE
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. Unless Holder is exercising
the conversion right set forth in Section 1.2, Holder shall also deliver to the
Company a check for the aggregate Warrant Price for the Shares being purchased.


 


1.2           Conversion
Right. In lieu of exercising this warrant as specified in Section 1.1,
Holder may from time to time convert this warrant, in whole or in part, into a
number of Shares determined by dividing (a) the aggregate fair market value of
the Shares or other securities otherwise issuable upon exercise of this warrant
minus the aggregate Warrant Price of such Shares by (b) the fair market value
of one Share. The fair market value of the Shares shall be determined pursuant
to Section 1.4.


 


1.3           Intentionally
Omitted.


 


1.4           Fair
Market Value. If the Shares are traded regularly in a public market, the
fair market value of the Shares shall be the closing price of the Shares (or
the closing price of the Company’s stock into which the Shares are convertible)
reported for the business day immediately before Holder delivers its Notice of
Exercise to the Company. If the Shares arc not regularly traded in a public
market, the Board of Directors of the Company shall determine fair market value
in its reasonable good faith judgment.


 

















 


1.5           Delivery
of Certificate and New Warrant. Within a reasonable time after Holder
exercises or converts 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.


 


1.6           Replacement
of Warrants. On receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this warrant and, in the case
of loss, theft or destruction, 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.


 


1.7           Repurchase
on     Sale Merger, or Consolidation
of the Company.


 


1.7.1        “Acquisition.”  For the purpose of this warrant,
“Acquisition” means any sale, license, or other disposition of all or
substantially all of the assets (including intellectual property) of the
Company, or any reorganization, consolidation, or merger of the Company 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.


 


1.7.2        Assumption of Warrant. If upon the
closing of any Acquisition the successor entity assumes the obligations of this
warrant, then 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 such Shares were outstanding on the
record date for the Acquisition and subsequent closing. The Warrant Price shall
be adjusted accordingly. The Company shall use reasonable efforts to cause the
surviving corporation to assume the obligations of this warrant.


 


1.7.3        Nonassumption. If upon the closing of
any Acquisition the successor entity does not assume the obligations of this
warrant and Holder has not otherwise exercised this warrant in full, then this
warrant shall be deemed to have been automatically converted pursuant to
Section 1.2 and thereafter Holder shall participate in the Acquisition on the
same terms as other holders of the same class of securities of the Company.


 


ARTICLE
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, 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


 


2

















 


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 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.


 


2.4           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 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 against impairment.


 


2.6           Certificate
as to Adjustments. Upon each adjustment of the Warrant Price, the Company
at its expense shall, within a reasonable time, compute such adjustment, and
furnish Holder with a certificate of 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 amount computed by multiplying the
fractional interest by the fair market value of a full Share.


 


3

















 


ARTICLE
3. REPRESENTATIONS. AND COVENANTS OF THE COMPANY.


 


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


 


(a)           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.


 


(b)           The
Company’s capitalization table attached to this warrant is true and complete as
of the Issue Date.


 


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.


 


ARTICLE
4. MISCELLANEOUS.


 


4.1           Term;
Notice of 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. If this warrant
has not been exercised prior to the Expiration Date, this warrant shall he
deemed to have been automatically exercised on the Expiration Date by
“cashless’ conversion pursuant to Section 1.2.


 


4

















 


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
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT
AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.


 


4.3           Market
Stand-Off Agreement. Holder shall not sell, dispose of, transfer, make any
short sale of, grant any option for the purchase of, or enter into any hedging
or similar transaction with the same economic effect as a sale, any Common
Stock (or other securities) of the Company held by Holder, for a period of time
specified by the managing underwriter(s) (not to exceed one hundred eighty
(180) days) following the effective date of a registration statement of the
Company filed under the Act. Holder agrees to execute and deliver such other
agreements as may be reasonably requested by the Company and/or the managing
underwriter(s) which are consistent with the foregoing or which are necessary
to give further effect thereto. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to such Common Stock
(or other securities) until the end of such period. The underwriters of the
Company’s stock are intended third party beneficiaries of this Section 4.3 and
shall have the right, power and authority to enforce the provisions hereof as
though they were a party hereto.


 


4.4           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 (including, without
limitation, the delivery of investment representation letters and legal
opinions reasonably satisfactory to the Company). The Company shall not require
Holder to provide an opinion of counsel if the transfer is to an affiliate of
Holder or if there is no material question as to the availability of current
information as referenced in Rule 144(c), Holder represents that it has
complied with Rule 144(d) and (e) in reasonable detail, the selling broker
represents that it has complied with Rule 144(f), and the Company is provided
with a copy of Holder’s notice of proposed sale.


 


4.5           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


 


5

















 


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.


 


4.6           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


Attn:
Warrant Administrator


500
Woodward Avenue, 32nd Floor, MC 3379


Detroit,
MI  48226


 


4.7           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.


 


4.8           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.


 


4.9           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.


 


	
   

  	
  RELIANT
  TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Roger J. Howe

  	
   

  
	
   

  	
  Name: 

  	
  Roger J. Howe

  	
   

  
	
   

  	
  Title:

  	
  Chairman & CFO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Derek Howe

  	
   

  
	
   

  	
  Name: 

  	
  Derek How

  	
   

  
	
   

  	
  Title: 

  	
  Secretary

  	
   

  
								



 


Authorized
signatories under Corporate Resolutions to Borrow or an authorized signer(s)
under a resolution covering warrants must sign the warrant.


 


6

















 


APPENDIX 1


 


NOTICE OF EXERCISE


 


1.             The undersigned hereby elects to purchase         
shares of the            
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.


 


1.             The undersigned hereby elects to convert the
attached warrant into shares in the manner specified in the warrant. This
conversion is exercised with respect to            
of the shares covered by the warrant.


 


[Strike paragraph that does not apply.]


 


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.


 


COME
RICA RANK or
Registered Assignee


 


	
   

  	
   

  	
   

  
	
  (Signature)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Date)

  	
   

  	
   

  



 


Appendix 1

















 


EXHIBIT A


 


Anti-Dilution Provisions

(For Preferred Stock Warrants With Existing Anti-Dilution Protection)


 


In
the event of the issuance by the Company, after the Issue Date of the warrant,
of securities at a price per share less than One Dollar and Fifty Cents
($1.50)(a “Diluting Issuance”), then the number of shares of common stock
issuable upon conversion of the Shares shall be adjusted in accordance with
those anti-dilution provisions (the “Provision”) of the Company’s Certificate
of Incorporation, as amended, which apply to Diluting Issuances.


 


Under
no circumstances shall the aggregate Warrant Price payable by the Holder upon
exercise of the warrant increase as a result of any adjustment arising from a
Diluting Issuance.


 


A-1

















 


EXHIBIT B


 


Registrations 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
“piggyback” 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


 


By
acceptance of the Warrant to which this Exhibit it B is attached, Holder shall
be deemed to be an “Investor” and a “Holder” under and a party to the
Agreement.


 


B-1