Exhibit 10.28


 


THIS
WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”).
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.


 


RELIANT
TECHNOLOGIES, INC.


 


WARRANT
TO PURCHASE COMMON STOCK


 


	
  Warrant No. 38

  	
   

  	
  February 1, 2005

  



 


Void
After February 1, 2015


 


THIS
CERTIFIES THAT, for value received, Henry E. Gauthier, or his assigns (the “Holder”), is
entitled to subscribe for and purchase at the Exercise Price (defined below)
from Reliant Technologies, Inc., a
Delaware corporation, with its principal office at 260 Sheridan Ave., Suite
300, Palo Alto, CA  94306 (the “Company”) up to  575,000  shares of Common Stock of the
Company (the “Common
Stock”).


 


1.             DEFINITIONS. As
used herein, the following terms shall have the following respective meanings:


 


(a)           “Exercise Period” shall
mean the period commencing with the date hereof and ending ten years later,
unless sooner terminated as provided below.


 


(b)           “Exercise Price” shall
mean $1.75 per share, subject to adjustment pursuant to Section 8 below.


 


(c)           “Exercise Shares”
shall mean the shares of the Company’s Common Stock issuable upon exercise of
this Warrant, subject to (i) vesting in accordance with Section 2 below and
(ii) adjustment pursuant to the terms herein, including but not limited to
adjustment pursuant to Section 8 below.


 


(d)           “Change in
Control” shall mean the occurrence, in a single transaction or
in a series of related transactions, of any one or more of the following
events:


 


(i)            any Entity becomes
the owner, directly or indirectly, of securities of the Company representing
more than fifty percent (50%) of the combined voting power of the Company’s
then outstanding securities other than by virtue of a merger, consolidation or
similar transaction. Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur (A) on account of the acquisition of securities of the
Company by any institutional investor, any affiliate thereof or any other
Entity that acquires the Company’s securities in a transaction or series of
related transactions that are primarily a private financing transaction for the
Company or (B) solely because the level of ownership held by any Entity (the “Subject
Person”) exceeds the designated percentage threshold of the outstanding voting
securities as a result of a repurchase or other acquisition of voting
securities by the Company reducing the number of shares outstanding, provided
that if a Change in Control would occur (but for the operation of 


 

















 


this sentence) as a
result of the acquisition of voting securities by the Company, and after such
share acquisition, the Subject Person becomes the owner of any additional
voting securities that, assuming the repurchase or other acquisition had not
occurred, increases the percentage of the then outstanding voting securities
owned by the Subject Person over the designated percentage threshold, then a
Change in Control shall be deemed to occur;


 


(ii)           there is
consummated a merger, consolidation or similar transaction involving (directly
or indirectly) the Company if, immediately after the consummation of such
merger, consolidation or similar transaction, the stockholders of the Company
immediately prior thereto do not own, directly or indirectly, either (A)
outstanding voting securities representing more than fifty percent (50%) of the combined outstanding voting power of
the surviving Entity in such merger, consolidation or similar transaction or
(B) more than fifty percent (50%)
of the combined outstanding voting power of the parent of the surviving Entity
in such merger, consolidation or similar transaction; or


 


(iii)         there is consummated
a sale, lease, license or other disposition of all or substantially all of the
consolidated assets of the Company and its subsidiaries, other than a sale,
lease, license or other disposition of all or substantially all of the
consolidated assets of the Company and its subsidiaries to an Entity, more than
fifty percent (50%) of the
combined voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportion as their
ownership of the Company immediately prior to such sale, lease, license or
other disposition.


 


The term Change in
Control shall not include a sale of assets,
merger or other transaction effected exclusively for the purpose of changing
the domicile of the Company.


 


(e)           “Entity”
means a corporation, partnership or other entity, except that “Entity” shall
not include (A) the Company or any subsidiary of the Company, (B) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (C) an Entity owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of
stock of the Company.


 


(f)            “Cause”
means the occurrence of any one or more of the following:  (i) Holder’s commission of any crime
involving fraud, dishonesty or moral turpitude; (ii) the Holder’s attempted
commission of or participation in a fraud or act of dishonesty against the
Company that results in (or might have reasonably resulted in) material harm to
the business of the Company; (iii) Holder’s intentional, material violation of
any contract or agreement between the Holder and the Company or any statutory
duty owed to the Company; or (iv) conduct by the Holder that constitutes gross
insubordination, incompetence or habitual neglect of duties and that results in
(or might have reasonably resulted in) material harm to the business of the
Company; provided, however, that the action or conduct described in clauses
(iii) and (iv) above will constitute “Cause” only if such action or conduct
continues after the Company has provided the Holder with written notice thereof
and thirty (30) days to cure the same. Notwithstanding the foregoing, such
Holder’s death or disability shall not constitute Cause as set forth herein. The
determination that a termination is for Cause shall be by the Company’s Board
of Directors in good faith.


 


2

















 


(g)           “Good Reason”
exists if one or more of the following
actions are taken by the Company without Holder’s consent:  (i) a relocation of Holder’s business office
to a location more than fifty (50) miles from the location at which Holder
performed his duties as of February 1, 2005; or (ii) a material breach by the
Company of any provision of a material agreement between Holder and the Company
concerning the terms and conditions of Holder employment and/or consulting
arrangement, as applicable; provided, however,
that the action or conduct described in clause (ii) above will constitute “Good
Reason” only if such action or conduct continues after Holder has provided the
Company with written notice thereof and seven (7) days to cure the same.
Notwithstanding the foregoing, Holder’s death or disability shall not
constitute Good Reason as set forth herein. The determination that a
resignation is for Good Reason shall be made by the Board in good faith.


 


2.             VESTING/COMPANY
REPURCHASE OPTION. The shares of Common Stock issuable pursuant to this
Warrant shall vest according to the following schedule (the “Vesting Schedule”):


 


2.1          175,000 shares will
vest immediately;


 


2.2          87,500 shares will
vest on January 31, 2006;


 


2.3          87,500 shares will
vest on September 30, 2006;


 


2.4          112,500 shares will
vest on February 1, 2010; provided that, in the event that the Company achieves
at least $35 million of net revenue for the fiscal year ended December 31, 2005
(as measured by the Company’s audited financial statements), the vesting of
these shares shall immediately accelerate in full;


 


2.5          112,500 shares will
vest on February 1, 2010; provided that, in the event that the Company
completes its initial public offering of the Company’s common stock pursuant to
a registration statement filed pursuant to the Securities Act of 1933, as
amended (the “Act”), the vesting
of these shares shall immediately accelerate in full;


 


2.6          All unvested shares
shall vest upon the consummation of a Change in Control;


 


2.7          All unvested shares
shall vest upon involuntary termination by the Company without Cause of Henry
E. Gauthier’s services to the Company, both as an employee and, if applicable,
as a consultant;


 


2.8          All unvested shares
shall vest upon resignation by Henry E. Gauthier for Good Reason, both as an
employee and, if applicable, as a consultant; and


 


2.9          Notwithstanding
anything herein to the contrary, upon the termination of Henry E. Gauthier’s services
to the Company, both as an employee and, if applicable, as a consultant for any
reason other than involuntary termination by the Company without Cause or resignation
by Henry E. Gauthier for Good Reason, all vesting will immediately cease upon
the date of such termination and the Company shall maintain a Repurchase Option
(as defined in the Early Exercise Stock Purchase Agreement attached hereto as Exhibit C) on any unvested shares exercised
hereunder. Any voluntary change in Mr. Gauthier’s status from an employee of
the Company to a consultant to the Company, or vice-versa, shall not affect the
vesting hereunder.


 


3

















 


3.             EXERCISE OF VESTED
SHARES OF COMMON STOCK UNDER THIS WARRANT. Subject to Section 2 above, the right
to purchase vested shares of Common Stock underlying this Warrant may be
exercised in whole at any time, or in part from time to time during the Exercise
Period, by delivery of the following to the Company at its address set forth
above (or at such other address as it may designate by notice in writing to the
Holder):


 


(a)           An executed Notice
of Exercise in the form attached hereto as Exhibit
A;


 


(b)           Payment of the
Exercise Price either (i) in cash or by check, or (ii) by cancellation of
indebtedness;  and


 


(c)           This Warrant;
provided, however, in the case of a partial exercise of this Warrant, the
Company shall promptly issue a new Warrant (in the same form as this Warrant)
for the unexercised balance.


 


Upon the exercise of the right to purchase vested
shares of Common Stock underlying this Warrant, a certificate or certificates
for the Exercise Shares so purchased, registered in the name of the Holder or
persons affiliated with the Holder, if the Holder so designates, shall be
issued and delivered to the Holder within a reasonable time; provided that
payment of the income tax withholding obligation, if any, related to the
exercise of this Warrant must be made by the Holder prior to the Company’s
obligation pursuant to this paragraph to deliver a stock certificate to the
Holder representing the Exercise Shares.


 


The person in whose name any certificate or
certificates for Exercise Shares are to be issued upon exercise of this Warrant
shall be deemed to have become the holder of record of such shares on the date
on which this Warrant was surrendered and payment of the Exercise Price was
made, irrespective of the date of delivery of such certificate or certificates,
except that, if the date of such surrender and payment is a date when the stock
transfer books of the Company are closed, such person shall be deemed to have
become the holder of such shares at the close of business on the next
succeeding date on which the stock transfer books are open.


 


4.             EXERCISE PRIOR TO
VESTING (“EARLY EXERCISE”). The Holder may elect at any time during the term of this Warrant, to exercise all
or part of this Warrant,
including the unvested portion of this Warrant;
provided, however, that the Holder and
the Company shall enter into that certain Early Exercise Stock Purchase
Agreement (and all exhibits thereto) attached hereto as Exhibit C, and provided further, that:


 


4.1          a partial exercise
of this Warrant shall be deemed
to cover first vested shares of Common Stock and then the earliest vesting
installment of unvested shares of Common Stock; and


 


4.2          any shares of Common
Stock so purchased from installments that have not vested as of the date of
exercise shall be subject to the Company’s Repurchase Option (as defined in the
Early Exercise Stock Purchase Agreement).


 


4

















 


5.             NET EXERCISE OF
VESTED SHARES OF COMMON STOCK UNDER THIS WARRANT. Notwithstanding any
provisions herein to the contrary, if the fair market value of one Exercise
Share is greater than the Exercise Price (at the date of calculation as set
forth below), in lieu of exercising this Warrant by payment of cash, the Holder
may elect to receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with the properly endorsed Notice
of Exercise in which event the Company shall issue to the Holder a number of
vested Exercise Shares computed using the following formula:


 


X = Y (A-B)


A


 


Where    X =          the
number of Exercise Shares to be issued to the Holder


 


Y =          the
number of vested Exercise Shares purchasable under the Warrant or, if only a
portion of the Warrant is being exercised, that number of vested Exercise
Shares purchasable under the Warrant which are to be canceled (at the date of
such calculation)


 


A =         the
fair market value of one Exercise Share (at the date of such calculation)


 


B =          Exercise
Price (as adjusted to the date of such calculation)


 


For purposes of the above
calculation, the fair market value of one Exercise Share shall be determined by
the Company’s Board of Directors in good faith; provided, however, that in the
event that this Warrant is exercised pursuant to this Section 5 in
connection with the Company’s initial public offering of its Common Stock, the
fair market value per share shall be the per share offering price to the public
of the Company’s initial public offering. Unvested shares may not be exercised
pursuant to this Section 5.


 


6.             COVENANTS OF THE
COMPANY.


 


6.1          Covenants as to Exercise
Shares. The Company covenants and agrees that all Exercise Shares that may
be issued upon the exercise of the rights represented by this Warrant will,
upon issuance, be validly issued and outstanding, fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the issuance thereof.
The Company further covenants and agrees that the Company will at all times
during the Exercise Period, have authorized and reserved, free from preemptive
rights, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant. If at any time during the
Exercise Period the number of authorized but unissued shares of Common Stock
shall not be sufficient to permit exercise of this Warrant, the Company will
take such corporate action as may, in the opinion of its counsel, be necessary
to increase its authorized but unissued shares of Common Stock to such number
of shares as shall be sufficient for such purposes.


 


6.2          No Impairment. Except
and to the extent as waived or consented to by the Holder, the Company will
not, by amendment of its Certificate
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of 


 


5

















 


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 hereunder by the Company, but will at
all times in good faith assist in the carrying out of all the provisions of
this Warrant and in the taking of all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder against
impairment.


 


6.3          Notices of Record Date. In
the event of any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend which is the same
as cash dividends paid in previous quarters) or other distribution, the Company
shall mail to the Holder, at least ten (10) days prior to the date specified
herein, a notice specifying the date on which any such record is to be taken
for the purpose of such dividend or distribution.


 


7.             REPRESENTATIONS OF
HOLDER.


 


7.1          Acquisition of Warrant
for Personal Account. The Holder represents and warrants that it is
acquiring the Warrant and the Exercise Shares solely for its account for
investment and not with a view to or for sale or distribution of said Warrant
or Exercise Shares or any part thereof. The Holder also represents that the
entire legal and beneficial interests of the Warrant and Exercise Shares the
Holder is acquiring is being acquired for, and will be held for, its account
only.


 


7.2          Securities Are Not
Registered.


 


(a)           The Holder
understands that the Warrant and the Exercise Shares have not been registered
under the Act on the basis that no distribution or public offering of the stock
of the Company is to be effected. The Holder realizes that the basis for the
exemption may not be present if, notwithstanding its representations, the
Holder has a present intention of acquiring the securities for a fixed or
determinable period in the future, selling (in connection with a distribution
or otherwise), granting any participation in, or otherwise distributing the
securities. The Holder has no such present intention.


 


(b)           The Holder
recognizes that the Warrant and the Exercise Shares must be held indefinitely
unless they are subsequently registered under the Act or an exemption from such
registration is available. The Holder recognizes that the Company has no
obligation to register the Warrant or the Exercise Shares of the Company, or to
comply with any exemption from such registration.


 


(c)           The Holder is aware
that neither the Warrant nor the Exercise Shares may be sold pursuant to Rule
144 adopted under the Act unless certain conditions are met, including, among
other things, the existence of a public market for the shares, the availability
of certain current public information about the Company, the resale following
the required holding period under Rule 144 and the number of shares being sold
during any three month period not exceeding specified limitations. Holder is
aware that the conditions for resale set forth in Rule 144 have not been
satisfied and that the Company presently has no plans to satisfy these
conditions in the foreseeable future.


 


6

















 


7.3          Disposition of Warrant
and Exercise Shares.


 


(a)           The Holder further
agrees not to make any disposition of all or any part of the Warrant or
Exercise Shares in any event unless and until:


 


(i)            The Company shall
have received a letter secured by the Holder from the Securities and Exchange
Commission stating that no action will be recommended to the Commission with
respect to the proposed disposition;


 


(ii)           There is then in
effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with said registration
statement; or


 


(iii)         The Holder shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a detailed statement of the circumstances surrounding the proposed
disposition, and if reasonably requested by the Company, the Holder shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to
the Company, for the Holder to the effect that such disposition will not
require registration of such Warrant or Exercise Shares under the Act or any
applicable state securities laws.


 


(b)           The Holder
understands and agrees that all certificates evidencing the shares to be issued
to the Holder may bear the following legend:


 


THESE SECURITIES HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.


 


8.             ADJUSTMENT OF
EXERCISE PRICE. In the event of changes in the outstanding Common Stock of
the Company by reason of stock dividends, split-ups, recapitalizations,
reclassifications, combinations or exchanges of shares, separations,
reorganizations, liquidations, or the like, the number and class of shares
available under the Warrant in the aggregate and the Exercise Price shall be
correspondingly adjusted to give the Holder of the Warrant, on exercise for the
same aggregate Exercise Price, the total number, class, and kind of shares as
the Holder would have owned had the Warrant been exercised prior to the event
and had the Holder continued to hold such shares until after the event
requiring adjustment; provided, however, that such adjustment shall not be made
with respect to, and this Warrant shall terminate if not exercised prior to,
the events set forth in Section 10 below. The form of this Warrant need
not be changed because of any adjustment in the number of Exercise Shares
subject to this Warrant.


 


9.             FRACTIONAL SHARES. No
fractional shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for
purposes of determining whether the exercise would result in the issuance of
any fractional share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Company shall, in lieu of 


 


7

















 


issuance of any
fractional share, pay the Holder otherwise entitled to such fraction a sum in
cash equal to the product resulting from multiplying the then current fair
market value of an Exercise Share by such fraction.


 


10.          EARLY TERMINATION. In the event of a Change of Control, any
surviving corporation or acquiring corporation may assume or continue this
Warrant or may substitute a similar Warrant for this Warrant (it being
understood that a similar Warrant shall include, but shall not be limited to, a
Warrant to acquire the same consideration paid to the stockholders or the
Company, as the case may be, pursuant to the Change of Control), and any
reacquisition or repurchase rights held by the Company in respect of Common
Stock issued pursuant to the Warrant may be assigned by the Company to the
successor of the Company (or such successor’s parent company), if any, in
connection with such Change of Control. In the event that any surviving
corporation or acquiring corporation does not assume or continue this Warrant
or substitute a similar Warrant for this Warrant, then, provided that Henry E.
Gauthier remains employed by the Company or continues to provide services to
the Company as a consultant, up to and through the consummation of the Change
of Control, the vesting of this Warrant shall (contingent upon the consummation
of the Change of Control) be accelerated in full to a date prior to the
consummation of such Change of Control as the Board shall determine (or, if the
Board shall not determine such a date, to the date that is five (5) days prior
to the consummation of such Change of Control), and this Warrant shall
terminate if not exercised (if applicable) at or prior to the consummation of
such Change of Control, and any reacquisition or repurchase rights held by the
Company with respect to Common Stock issued pursuant to the Warrant shall
(contingent upon the consummation of the Change of Control) lapse. The Company
shall provide to the Holder twenty (20) days advance written notice of such consummation
of a Change of Control.


 


11.          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 for the initial public offering of the Company’s common stock. 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 11 and shall have the right, power and
authority to enforce the provisions hereof as though they were a party hereto.


 


12.          NO STOCKHOLDER RIGHTS. This
Warrant in and of itself shall not entitle the Holder to any voting rights or
other rights as a stockholder of the Company.


 


13.          TRANSFER OF WARRANT. Subject
to applicable laws and the restriction on transfer set forth on the first page
of this Warrant, this Warrant and all rights hereunder are transferable, by the
Holder in person or by duly authorized attorney, upon delivery of this Warrant
and the form of assignment attached hereto as Exhibit
B to any transferee designated by 


 


8

















 


Holder. The transferee
shall sign an investment letter in form and substance satisfactory to the
Company that includes, among other things, transferee’s agreement to be bound
by all of the terms and conditions by which Holder is bound.


 


14.          LOST, STOLEN, MUTILATED
OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or
destroyed, the Company may, on such terms as to indemnity or otherwise as it
may reasonably impose (which shall, in the case of a mutilated Warrant, include
the surrender thereof), issue a new Warrant of like denomination and tenor as
the Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall
constitute an original contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.


 


15.          NOTICES, ETC. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day,
(c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be
sent to the Company at the address listed on the signature page and to Holder
at 1359 Chelsea Drive, Los Altos, California 94024, or at such other address as
the Company or Holder may designate by ten (10) days advance written notice to
the other parties hereto.


 


16.          ACCEPTANCE. Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement to
all of the terms and conditions contained herein.


 


17.          GOVERNING LAW. This
Warrant and all rights, obligations and liabilities hereunder shall be governed
by the laws of the State of California.


 


9

















 


IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its duly authorized officer as of February
1, 2005.


 


	
   

  	
  RELIANT
  TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Roger J.
  Howe

  
	
   

  	
   

  	
  Roger J. Howe

  
	
   

  	
   

  	
  Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  Sorrento Towers North -
  East Tower

  
	
   

  	
   

  	
  5375 Mira Sorrento
  Place

  
	
   

  	
   

  	
  Suite 100

  
	
   

  	
   

  	
  San Diego, CA
  92121

  
					



 


10

















 


EXHIBIT
A


 


NOTICE
OF EXERCISE


 


TO:  RELIANT
TECHNOLOGIES, INC.


 


(1)           The undersigned hereby elects to purchase            
shares of Common Stock of Reliant
Technologies, Inc. (the “Company”) pursuant to the terms of the attached
Warrant, and tenders herewith payment of the exercise price in full.


 


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


 


 


(Name)


 


 


 


(Address)


 


(3)           The undersigned represents that (i) the
aforesaid shares of Common Stock are being acquired for the account of the
undersigned for investment and not with a view to, or for resale in connection
with, the distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares; (ii) the undersigned is
aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision regarding its investment in the Company; (iii) the
undersigned is experienced in making investments of this type and has such
knowledge and background in financial and business matters that the undersigned
is capable of evaluating the merits and risks of this investment and protecting
the undersigned’s own interests; (iv) the undersigned understands that the
shares of Common Stock issuable upon exercise of this Warrant have not been
registered under the Securities Act of 1933, as amended (the “Securities Act”), by
reason of a specific exemption from the registration provisions of the
Securities Act, which exemption depends upon, among other things, the bona fide
nature of the investment intent as expressed herein, and, because such
securities have not been registered under the Securities Act, they must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available; (v) the undersigned is aware
that the aforesaid shares of Common Stock may not be sold pursuant to Rule 144
adopted under the Securities Act unless certain conditions are met and until
the undersigned has held the shares for the number of years prescribed by Rule
144, that among the conditions for use of the Rule is the availability of
current information to the public about the Company and the Company has not
made such information available and has no present plans to do so; and (vi) the
undersigned agrees not to make any disposition of all or any part of the
aforesaid shares of Common Stock unless and until there is then in effect a
registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said registration
statement, or the undersigned has provided the Company with an opinion of
counsel satisfactory to the Company, stating that such registration is not
required.


 


	
   

  	
   

  	
   

  
	
  (Date)

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Print name)

  



 

















 


EXHIBIT
B


 


ASSIGNMENT
FORM


 


(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this
form to purchase shares.)


 


FOR VALUE RECEIVED, the
foregoing Warrant and all rights evidenced thereby are hereby assigned to


 


	
  Name:

  	
   

  
	
  (Please Print)

  
	
   

  
	
  Address:

  	
   

  
	
  (Please Print)

  
	
   

  
	
  Dated:              ,
  20

  
	
   

  
	
  Holder’s Signature:

  	
   

  	
   

  
	
   

  
	
  Holder’s Address:

  	
   

  	
   

  
					



 


The assignment of this Warrant and/or the transfer of any shares of
common stock underlying this warrant shall be subject to compliance with all
applicable securities laws and delivery by the assignee/transferee of an
investment letter in form and substance satisfactory to the Company that
requires, among other things, that assignee be bound by all terms and
conditions by which Holder is bound.


 


NOTE:  The signature to this Assignment Form must
correspond with the name as it appears on the face of the Warrant, without alteration
or enlargement or any change whatever. Officers of corporations and those
acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.


 

















 


EXHIBIT
C


 


EARLY
EXERCISE STOCK PURCHASE AGREEMENT


 

















 


RELIANT
TECHNOLOGIES, INC.


 


FIRST
AMENDMENT TO WARRANT TO PURCHASE COMMON STOCK


 


This FIRST AMENDMENT TO WARRANT
TO PURCHASE COMMON STOCK (this “Amendment”),
is made and entered into as of the 20th day of September, 2007 (the “Amendment Date”) by and between
Reliant Technologies, Inc, a Delaware corporation (the “Company”)
and the undersigned warrant holder (the “Holder”).


 


RECITALS


 


WHEREAS, the Holder is the
holder of the warrant dated February 1, 2005 and designated as Warrant No. 38
(the “Warrant”); and


 


WHEREAS, the Company desires to
offer and the Holder wishes to accept the Company’s offer to amend the Warrant
with terms that are intended to avoid the potential adverse tax consequences
associated with the Warrant under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”);
and


 


WHEREAS, the
Company and the Holder desire to amend the Warrant as provided herein.


 


NOW, THEREFORE, in consideration
of the foregoing and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned parties hereby
agree as follows:


 


18.          Section 1,
subsection (b) is hereby amended and restated in its entirety to read as
follows:


 


“Exercise Price”
shall mean $3.41 per share, subject to adjustment pursuant to Section 8 below.”


 


19.          Section 4 is hereby
amended and restated in its entirety to read as follows:


 


“[Deleted]”


 


20.          Section 10 is hereby
amended and restated in its entirety to read as follows:


 


“EARLY TERMINATION. In
the event of that a Change in Control, any surviving corporation or acquiring
corporation may assume or continue this Warrant or may substitute a similar
Warrant for this Warrant (it being understood that a similar Warrant shall
include, but shall not be limited to, a Warrant to acquire the same
consideration paid to the stockholders or the Company, as the case may be,
pursuant to the Change in Control), and any reacquisition or repurchase rights
held by the Company in respect of Common Stock issued pursuant to the Warrant may
be assigned by the Company to the successor of the Company (or such successor’s
parent company), if any, in connection with such Change in Control. In the
event that a Change in Control is a 409A Change in Control Event (the “Exempt
Corporate Transaction”) and any surviving corporation or acquiring corporation
does not assume or continue this Warrant or 


 

















 


substitute a similar
Warrant for this Warrant, then the vesting of this Warrant shall accelerate in
full and this Warrant shall terminate if not exercised (if applicable) at or
prior to the consummation of such Exempt Corporate Transaction, and any
reacquisition or repurchase rights held by the Company with respect to Common
Stock issued pursuant to the Warrant shall (contingent upon the consummation of
the Exempt Corporate Transaction) lapse. In the event that a Change in Control
is not a 409A Change in Control Event (the “Non-Exempt Corporate Transaction”)
and any surviving corporation or acquiring corporation does not assume or
continue this Warrant or substitute a similar Warrant for this Warrant, then
the vesting of this Warrant shall not accelerate and this Warrant shall
terminate if not exercised (if applicable) at or prior to the consummation of
such Non-Exempt Corporate Transaction, and any reacquisition or repurchase
rights held by the Company with respect to Common Stock issued pursuant to the
Warrant shall (contingent upon the consummation of the Non-Exempt Corporate
Transaction) lapse. The Company shall provide to the Holder twenty (20) days
advance written notice of such termination of this Warrant the consummation of
either an Exempt Corporate Transaction or a Non-Exempt Corporate Transaction.”


 


21.          Except as expressly
amended by this Amendment, the terms and conditions of the Warrant remain in
full force and effect.


 


22.          This Amendment
covers all of the shares of Common Stock subject to the Warrant. Holder
acknowledges that effective as of the Amendment Date, this Amendment, together
with the Warrant, sets forth the entire understanding between Holder and the
Company regarding the Warrant.


 


23.          This Amendment may
be executed by facsimile signature and multiple counterparts, each of which
shall be considered an original and all of which shall constitute one and the
same instrument, notwithstanding that all parties are not signatures to the
same counterpart.


 


IN
WITNESS WHEREOF, the undersigned have executed this Amendment
effective as of the Amendment Date.


 


	
  RELIANT
  TECHNOLOGIES, INC.

  	
   

  	
  HENRY
  E. GAUTHIER

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Eric Stang

  	
   

  	
  /s/ Henry E. Gauthier

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President and
  CEO

  	
   

  	
  Date:

  	
  September 20,
  2007

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  September 20,
  2007