UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): |
(Exact name of Registrant as Specified in Its Charter)
(State or Other Jurisdiction |
(Commission File Number) |
(IRS Employer |
||
|
|
|
|
|
|
||||
|
||||
(Address of Principal Executive Offices) |
|
(Zip Code) |
||
Registrant’s Telephone Number, Including Area Code: |
|
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
|
|
Trading |
|
|
|
|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 3.02 Unregistered Sales of Equity Securities.
On December 27, 2024, European Wax Center, Inc. (the “Company”) issued to dolabra holdings llc, an affiliate of dolabra digital llc (“dolabra”), 300,000 restricted shares (the “Restricted Stock”) of Class A common stock of the Company, par value $0.001 (the “Common Stock”), and warrants to purchase an aggregate amount of 2,730,000 shares of Common Stock in five tranches at the amounts and strike prices as set forth below (the “Warrants” and together with the Restricted Stock, the “Securities”):
Warrant Tranche |
Number of Warrants |
Strike Price |
Tranche 1 |
365,000 |
$6.24 |
Tranche 2 |
365,000 |
$9.00 |
Tranche 3 |
500,000 |
$12.00 |
Tranche 4 |
750,000 |
$17.00 |
Tranche 5 |
750,000 |
$19.00 |
The Restricted Stock will vest as follows: (i) 100,000 shares upon the earlier of (1) December 27, 2025 and (2) the Company reporting system wide sales (“SWS”) of $1.1 billion; (ii) 100,000 shares upon the earlier of (1) December 27, 2026 and (2) the Company reporting SWS of $1.25 billion; and (iii) 100,000 shares on the earlier of (1) December 27, 2027 and (2) the Company reporting SWS of $1.4 billion. The Warrants will vest as follows (i) one-half of the Warrants shall vest on April 1, 2025 and (ii) thereafter, one-sixth of the Warrant shall vest at the end of each subsequent six-month period following the initial vesting on April 1, 2025. The vesting of the Restricted Stock and Warrants are subject to acceleration upon the occurrence of a change of control transaction.
The Securities were issued to dolabra in consideration for the provision of professional services by dolabra to the Company. The issuance was made pursuant to the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended, as a transaction not involving a public offering.
The foregoing summary of the terms of the Securities does not purport to be complete and is qualified in its entirety by reference to the Restricted Stock Award Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference, and the Form of Warrant, a copy of which is attached hereto as Exhibit 10.2 and is incorporated by reference.
Item 9.01 Financial Statements and Exhibits.
Exhibit Number |
|
Description |
10.1 |
|
|
10.2 |
|
|
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
EUROPEAN WAX CENTER, INC. |
|
|
|
|
Date: |
January 3, 2025 |
By: |
/s/ GAVIN M. O'CONNOR |
|
|
|
Name: Gavin M. O'Connor |
EXHIBIT 10.1
European Wax Center, Inc.
Notice of RESTRICTED STOCK Grant
Grantee:
|
dolabra holdings llc |
# of Shares of Restricted Class A Common Stock:
|
300,000 |
Date of Grant:
|
December 27, 2024 |
Vesting Schedule:
|
The Restricted Stock shall vest in accordance with terms of the Award Agreement attached hereto as Annex I. Upon vesting, the Restricted Stock shall no longer be subject to forfeiture pursuant to Section 1 of the Award Agreement. |
By signing your name below, you accept the Restricted Stock and acknowledge and agree that the Restricted Stock is granted under and governed by the terms and conditions of the Award Agreement set forth on Annex I.
DOLABRA HOLDINGS LLC |
|
European Wax Center, Inc. |
|
|
|
|
|
By:/s/ Mark Pinho |
|
By: |
/s/ David Berg |
|
|
|
|
Title: Managing Member |
|
Title: |
Chief Executive Officer |
Annex I
EUROPEAN WAX CENTER, INC.
RESTRICTED STOCK AWARD AGREEMENT
Pursuant to the Restricted Stock Grant Notice (“Grant Notice”) and this Award Agreement, European Wax Center, Inc. (together with its Subsidiaries, whether existing or thereafter acquired or formed, and any and all successor entities, the “Company”) has granted the Grantee shares of Restricted Class A Common Stock (the “Shares”) indicated in the Grant Notice (the “Award”). The Shares are granted to the Grantee effective as of the Date of Grant.
1. Vesting. The term “vest” as used herein with respect to the Shares or any portion thereof means to become nonforfeitable and the term “vested” as applied to the Shares or any portion thereof means that the Shares (or such portion) are then nonforfeitable. To the extent not fully vested, the Shares are subject to forfeiture as set forth in Section 12(b) of the Statement of Work #1, by and between Grantee and EWC Ventures (“EWC Ventures”), dated as of December 27, 2024 (the “SOW”). The Shares shall vest as follows (each date a “Vesting Date”):
SWS shall be based on sales as reported in the Company’s public filings with the Securities and Exchange Commission (or if Company is no longer publicly traded, then based on audit reports of sales consistent with past practices). The above SWS vesting thresholds shall be measured as of the end of each fiscal year of the Company beginning with fiscal year 2025.
Notwithstanding anything to the contrary in this Award Agreement, in the event of a termination of the SOW by EWC Ventures, the Shares shall vest in accordance with Section 12(b)(iii) of the SOW, and the remaining unvested portion of this Award shall be forfeited.
2. Rights as a Stockholder. Subject to the terms of this Award Agreement, the Grantee will be the record owner of the Shares unless or until they are forfeited or transferred pursuant to this Award Agreement or otherwise disposed of, and as the record owner will be entitled to all rights of a stockholder of the Company, including the right to vote such Shares and receive all dividends or other distributions paid with respect to such Shares. Notwithstanding the foregoing, unless otherwise determined by the Board, any dividends or other distributions will subject to the same restrictions as the Shares with respect to which they were paid and will be withheld by the Company and paid to the Grantee at such time as the Shares with respect to which they were paid have vested. The Company acknowledges and agrees to be bound by and subject to the obligations of Section 7(e) of the SOW.
3. Change of Control Transaction. If, at any time while this Award is outstanding, a Change of Control (as defined in Section 12(c)(iii) of the SOW) occurs, then the unvested portion of this Award shall automatically accelerate and become fully vested immediately prior to the effective time of such Change of Control.
4. Changes in Capital Structure and Similar Events. In the event of (a) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, Class A common stock of the Company, par value $0.00001 (“Common Stock”), other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, amalgamation, consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to acquire Common Stock or other securities of the Company, or other similar corporate transaction or event (including, without limitation, a Change of Control) that affects the Common Stock or (b) unusual or nonrecurring events (including, without limitation, a Change of Control) affecting the Company, any affiliate, or the financial statements of the
Company or any affiliate, or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation service, accounting principles or law, such that in any case an adjustment is determined by the Board to be necessary or appropriate, then the Board shall make any such adjustments in such manner as it may deem equitable, including, without limitation, any or all of the following:
Any such adjustment hereunder, upon notice, shall be conclusive and binding for all purposes.
5. Taxes. The Grantee shall be solely responsible for any applicable taxes (including, without limitation, income and excise taxes) and penalties, and any interest that accrues thereon, that the Grantee incurs in connection with the receipt, vesting or settlement of the Shares granted hereunder.
6. Legends. The Shares shall bear a legend in the form of the following in addition to any other information the Company deems appropriate:
TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF A RESTRICTED STOCK AWARD AGREEMENT, DATED AS OF DECEMBER 27, 2024 BETWEEN EUROPEAN WAX CENTER, INC. AND DOLABRA HOLDINGS LLC. A COPY OF SUCH AWARD AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF EUROPEAN WAX CENTER, INC.
Promptly following the applicable Vesting Date (and no later than the thirtieth (30th) day following the applicable Vesting Date) of any Shares bearing such legends, the Company shall cause a certificate or certificates covering such Shares, without such legend, to be issued and delivered to the Grantee. If such Shares are held in book entry form, the Company shall take such steps as it deems necessary or appropriate to record and manifest the restrictions applicable to such Shares.
7. Representations of the Company. The Company is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation, and has all requisite power and authority to own, lease and operate its properties and assets. The Company has full power and authority to enter into this Award Agreement and the documents to be delivered hereunder, carry out its obligations hereunder and consummate the transactions contemplated hereby. The consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of the Company. This Award Agreement and the documents to be delivered hereunder have been duly executed and delivered by the Company, and (assuming due authorization, executions and delivery by the Grant) this Award Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms. The execution, delivery and performance by the Company of this Award Agreement and the consummation of the transactions contemplated hereby, does not and will not (a) violate any provision of the organizational documents of the Company, (b) conflict with, or result in the breach of, or constitute a default under, any contract to which the Company is a party or bound, or (c) violate any law in which the Company is subject to. The Shares have been validly authorized by the Company and when issued in accordance with this Award Agreement will be validly issued, fully paid and non-assessable.
2
8. Miscellaneous.
if to the Company, to:
European Wax Center, Inc.
5830 Granite Pkwy, 3rd Floor
Plano, TX 75024
Telephone: [ ]
Email: [ ]
Attention: Gavin O’Connor
if to the Grantee, to:
dolabra holdings llc
1640 Boro Place, 4th Floor
McLean, VA 22102
Telephone: [ ]
Email: [ ]
Attention: Mark Pinho
or to such other address or e-mail address as such party may hereafter specify for the purpose by notice to the other parties hereto.
(e) Severability. The invalidity or unenforceability of any provision of this Award Agreement shall not affect the validity or enforceability of any other provision of this Award Agreement, and each other provision of this Award Agreement shall be severable and enforceable to the extent permitted by law.
(f) Successors. The terms of this Award Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of the Grantee and its successors and assigns.
(g) Entire Agreement. The Grantee hereby accepts the grant of Shares and agrees to be bound by its contractual terms as set forth herein. The Grantee hereby agrees to accept as binding, conclusive and final all decisions and interpretations of the Board regarding any questions relating to the Shares. This
3
Award Agreement constitutes the entire agreement between the Grantee and the Company on the subject matter hereof and supersedes all proposals, written or oral, and all other communications between the parties relating to such subject matter.
(h) Governing Law. This Award Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the State of Delaware.
(i) Dispute Resolution; Consent to Jurisdiction. The Grantee and the Company agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with this Award Agreement (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall be brought in the United States federal and state courts in Delaware, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court
4
EXHIBIT 10.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT (THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144, (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT, OR (IV) THE SECURITIES ARE TRANSFERRED WITHOUT CONSIDERATION TO AN AFFILIATE OF SUCH HOLDER OR A CUSTODIAL NOMINEE (WHICH FOR THE AVOIDANCE OF DOUBT SHALL REQUIRE NEITHER CONSENT NOR THE DELIVERY OF AN OPINION).
FORM OF WARRANT TO PURCHASE COMMON STOCK
Number of Shares: [] (subject to adjustment)
Warrant No. [] Original Issue Date: December 27, 2024
European Wax Center, Inc., a Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, dolabra holdings llc or its registered assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company up to a total of []shares of Class A common stock, $0.00001 par value per share (the “Common Stock”), of the Company (each such share, a “Warrant Share” and all such shares, the “Warrant Shares”) at an exercise price per share equal to $[●] (the “Exercise Price”), in each case as adjusted from time to time as provided in Section 9 hereof, upon surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at any time and from time to time on or after the Initial Vesting Date (as defined below) and on or prior to 5:00 p.m. (New York City time) on December 27, 2034 (the “Termination Date”) but not thereafter.
1. Definitions. For purposes of this Warrant, the following terms shall have the
following meanings:
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediates, controls, is controlled by or is under common control with such Person.
“Attribution Parties” means, collectively, the following Persons and entities: (i) any direct or indirect Affiliates of the Holder, (ii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any Attribution Parties and (iii) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and/or any other Attribution Parties for purposes of Section 13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.
“Change of Control” shall have the meaning ascribed to it in Section 12(c)(iii) of the SOW.
“Closing Sale Price” means, for any security as of any date, the last trade price for such security on the Principal Trading Market for such security, as reported by Bloomberg Financial Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does not designate the last trade price, then the last trade price of such security prior to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg Financial Markets. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.
“Commission” means the U.S. Securities and Exchange Commission.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder.
“Group” shall have the meaning ascribed to it in Section 13(d) of the Exchange Act, and all related rules, regulations and jurisprudence.
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or any other entity or organization.
“Principal Trading Market” means the national securities exchange or other trading market on which the Common Stock is primarily listed on and quoted for trading, which, as of the Original Issue Date, shall be the Nasdaq Global Select Market.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder.
“SOW” means that certain Statement of Work #1, by and between Holder and EWC Ventures, dated as of December 27, 2024.
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, for the Principal Trading Market with respect to the Common Stock that is in effect on the date of delivery of an applicable Exercise Notice, which as of the Original Issue Date was “T+1.”
“Trading Day” means any weekday on which the Principal Trading Market is normally open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the
2
Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Transfer Agent” means Computershare Trust Company, N.A., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed in such capacity.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
2. Issuance of Securities; Registration of Warrants. The Company shall register
ownership of this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder (which shall include the initial Holder or, as the case may be, any assignee to which this Warrant is permissibly assigned hereunder) from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. Subject to compliance with all applicable securities
laws, the Company shall, or will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, and payment for all applicable transfer taxes (if any). Upon any such registration or transfer, a new warrant to purchase Common Stock in substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent to, prepare, issue and deliver at the Company’s own expense any New Warrant under this Section 3. Until due presentment for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder for all purposes, and the Company shall not be affected by any notice to the contrary.
4. Vesting and Exercise of Warrants.
3
provided, that, notwithstanding the foregoing:
4
5. Delivery of Warrant Shares. Upon exercise of this Warrant, the Company shall promptly (but in no event later than the number of Trading Days comprising the Standard Settlement Period following the Exercise Date), upon the request of the Holder, cause the Transfer Agent to credit such aggregate number of shares of Common Stock specified by the Holder in the Exercise Notice and to which the Holder is entitled pursuant to such exercise (the “Exercise Shares”) to (a) the Holder’s or its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit Withdrawal At Custodian system or (b) in book-entry form via a direct registration system (“DRS”) maintained by or on behalf of the Transfer Agent, in each case, so long as either (i) there is an effective registration statement permitting the issuance of the Warrant Shares to or the resale of such Warrant Shares by the Holder or (ii) the Exercise Shares are eligible for resale by the Holder without volume or manner-of-sale restrictions pursuant to Rule 144 promulgated under the Securities Act (assuming cashless exercise of this Warrant). The Holder, or any Person so designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder of record of such Warrant Shares as of the Exercise Date, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of the book entry positions, as the case may be. Nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Exercise Shares.
5
6
7
8
10. Payment of Exercise Price. Notwithstanding anything contained herein to the
contrary, the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a “cashless exercise”, in which event the Company shall issue to the Holder the number of Warrant Shares in an exchange of securities effected pursuant to Section 3(a)(9) of the Securities Act, determined as follows:
X = Y [(A-B)/A]
where:
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a “cashless exercise” transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the Original Issuance Date (provided that the Commission continues to take the position that such treatment is proper at the time of such exercise). If the Warrant Shares are issued in such a cashless exercise, the Company acknowledges and agrees that, in accordance with Section 3(a)(9) of the Securities Act, the Exercise Shares issued in such exercise shall take on the registered characteristics of the Warrants being exercised and may be tacked on to the holding period of the Warrants being exercised. Except as set forth in Section 12 (No Fractional Shares), in no event will the exercise of this Warrant be settled in cash.
11. Limitations on Exercise.
(a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this Warrant shall not exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and
9
treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of 9.99% (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. For purposes of calculating beneficial ownership for determining whether the Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. For purposes of this Paragraph 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”). For any reason at any time, upon the written or oral request of the Holder, the Company shall within one Trading Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common
10
Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder the exercise price paid by the Holder for the Excess Shares. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any increase in the Maximum Percentage will not be effective until the 61st day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change.
(b) For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
11
12
13
(h) Severability. If any part or provision of this Warrant is held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Warrant shall remain binding upon the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.
European Wax Center, Inc.
By:
Name:
Title:
[Signature Page to Form of Warrant]
SCHEDULE 1
FORM OF EXERCISE NOTICE
[To be executed by the Holder to purchase shares of Common Stock under the Warrant]
Ladies and Gentlemen:
(1) The undersigned is the Holder of Warrant No. __ (the “Warrant”) issued by European Wax Center, Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined herein have the respective meanings set forth in the Warrant.
(2) The undersigned hereby exercises its right to purchase _____ Warrant Shares pursuant to the Warrant.
(3) The Holder intends that payment of the Exercise Price shall be made as (check one):
|
☐ |
Cash Exercise |
|
☐ |
“Cashless Exercise” under Section 10 of the Warrant |
(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ _____ in immediately available funds to the Company in accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in accordance with the terms of the Warrant.
(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby (i) the Holder is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended and (ii) the Holder will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) permitted to be owned under Section 11(a) of the Warrant to which this notice relates.
|
|
|
Dated: |
|
|
|
|
|
Name of Holder: |
|
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
(Signature must conform in all respects to name of Holder as specified on the face of the Warrant