EOLS Evolus Inc

SHARES OF COMMON STOCK

OF

EVOLUS, INC.

WARRANT AGREEMENT

B-1

THIS WARRANT AGREEMENT, dated as of January 8, 2020 (the “Agreement”), between ALPHAEON 1 LLC (the “Company”), a Delaware limited liability company and [__________________________________], as holder (the “Holder”).

RECITALS

SECTION 1 CERTAIN DEFINITIONS 

As used in this Agreement, the following terms shall have the following respective meanings:

“$” throughout this document refers to United States dollars, unless otherwise expressly noted.

“Affiliate” of any specified Person means:

(a)any other Person (1) directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person, or (2) jointly controlling such specified Person, or jointly controlled by such specified Person and one more other Persons, or (3) subject to significant influence from such specified Person or from the same third party, or holding significant influence over such specified Person, or (4) that is an associate of such specified Person, or (5) that is a joint venture in which such specified Person is a venturer or that is a venturer in which such specified Person is a joint venture, or 

(b)any other Person who is a director or officer of: 

(1)such specified Person, 

(2)any Subsidiary or joint venture of such specified Person, or 

(3)any Person described in clause (a) above, or 

(c)any spouse, domestic partner, parent, child, brother, sister, close family member (i.e., who may be expected to influence, or be influenced by, such close family member in transactions) or dependant of (1) such specified Person or (2) the spouse or domestic partner of such specified Person, or (3) any person described in (a) or (b) above, or of the spouse of domestic partner of any person described in (a) or (b) above, or 

(d)any post-employment benefit plan for the benefit of the employees of such specified Person, or of any Person who is an Affiliate. 

For the purposes of this definition, “control,” when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling,” “controlled by” and “under common control with” have meanings correlative to the foregoing. “Affiliate” shall also mean any beneficial owner of shares representing 5% or more of the total voting power of the Voting Stock (on a fully diluted basis) of the Listco or of rights or warrants to purchase such Voting Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence hereof. Notwithstanding the foregoing, in no event shall any Holder or any of its Affiliates be considered an Affiliate of the Company.

“Aggregate Listco Amount” means the product of (a) the aggregate number of shares of Common Stock of Listco beneficially owned by the Company at the date immediately preceding the pricing of the Qualifying Listing multiplied by (b) the Market Value of such Common Stock.

B-2

“Business Day” means a day other than a Saturday or Sunday and means any day that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation (including any executive order) to close in the City of New York.

“Cashless Exercise Ratio” has the meaning set forth in Section 3(a).

“Commission” means the United States Securities and Exchange Commission.

“Common Stock” has the meaning set forth in the Recitals.

“Company” has the meaning set forth in the Recitals.

“Definitive Warrants” means Warrants in definitive, bearer form.

“Event of Default” has the meaning set forth in the Promissory Notes on the date hereof, without regard to any amendment, waiver or consent granted pursuant to the terms of the Promissory Notes.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, of the United States.

“Exercise Event” means the consummation of either (i) a Qualifying Listing or (ii) an Event of Default.

“Exercise Price” means the Market Value of Common Stock determined at 4:02 p.m. New York time on the date that (x) pricing of the Qualified Public Offering occurs or (y) the date an Event of Default shall have occurred and is continuing.

“Holders” or “holder” means the registered holders or registered holder of the Warrants.

“Independent Financial Advisor” means an investment banking firm of international standing or any third party appraiser of international standing that is qualified to provide an appraisal of the relevant asset; provided that such firm or appraiser is not an Affiliate of the Company.

“Listco” has the meaning set forth in the Recitals.

“Market Value” for each share of Common Stock, as of any date, shall equal:

(i)if the Common Stock is primarily traded on a securities exchange, the VWAP of Common Stock for the 20-Trading Day period immediately prior to the applicable date of determination,  

(ii)if the principal market for the Common Stock is in the over-the-counter market, the VWAP of Common Stock for the 20-Trading Day period immediately prior to the applicable date of the determination, as published by the applicable trading organization,  

(iv)if none of clause (i), clause (ii) or clause (iii) is applicable, the fair market value on the date of determination of the Common Stock, as determined in good faith by the Board of Directors based on a written opinion of an Independent Financial Advisor.  

B-3

“Officer” means, with respect to any Person, the Chief Executive Officer, the President, the Chief Financial Officer or any executive officer of such Person.

“Opinion of Counsel” means an opinion from legal counsel of recognized standing, which opinion shall include:

(i)a statement that the person making such certificate or opinion has read such covenant or condition; 

(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; 

(iii)a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and 

(iv)a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. 

With respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate, certificates of public officials or reports or opinions of experts.

“Person” means a corporation, an association, a partnership, a limited liability company, an individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.

“Promissory Note” means that certain convertible promissory note issued by Parent pursuant to the Senior Unsecured Note Purchase Agreement dated June 19, 2019, as amended.

“Qualifying Listing” means the Parent’s first underwritten public offering of its common stock under the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended, of the United States.

“Subsidiary” means, in respect of any person (the “first person”) at any particular time, any other person (the “second person”):

(a)Control: whose affairs and policies the first person controls or has the power to control (directly or indirectly), whether by ownership of share capital, contract, the power to appoint or remove members of the governing body of the second person or otherwise; or 

(b)Consolidation: whose financial statements are, in accordance with applicable law and generally accepted accounting principles, consolidated with those of the first person. 

“Trading Day” shall mean (x) if the applicable security is listed on the Nasdaq Capital Market, Nasdaq Global Market, Nasdaq Global Select Market or the New York Stock Exchange, a day on which trades may be made thereon or (y) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

“Trading Market” means the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the Nasdaq Capital Market, NYSE MKT, the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market or the OTC Bulletin Board.

“Transfer Agent” means Computershare, Inc., and every subsequent transfer agent to be appointed by Listco for any share capital of Listco issuable upon the exercise of any of the rights of purchase contained herein for the Common Stock.

“U.S.” means the United States of America, its states, territories and possessions.

“Voting Stock” of any Person means all classes of capital stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.

B-4

“Warrant” and “Warrants” have the meanings set forth in the Recitals.

“Warrant Certificate” has the meaning set forth in Section 2.1.

“Warrant Countersignature Order” has the meaning set forth in Section 2.2.

“Warrant Expiration Date” means the earlier to occur of (i) a Qualifying Listing and (ii) repayment in full in cash of the Promissory Notes.

“Warrant Register” has the meaning set forth in Section 2.3.

“Warrant Registrar” has the meaning set forth in Section 2.3.

“Warrant Shares” means the Common Stock issued (or to be issued) on exercise of the Warrants, being equal in number to the number of shares of Common Stock equal to the quotient obtained by dividing (x) the aggregate Payment Amount of Promissory Notes tendered by the Holder to the Company by (y) the Exercise Price; provided, however, that in the event of a Qualifying Listing, the Payment Amount of Promissory Notes tendered by any Holder, as a percentage of the aggregate Payment Amount of Promissory Notes held by such Holder shall not exceed the proportion that the Aggregate Listco Amount bears to the sum of (a) the Aggregate Listco Amount plus (b) the Aggregate Parent Pre-Money Valuation. For the avoidance of doubt, and by way of illustration only, if the Aggregate Listco Amount is equal to $200 million and the Aggregate Parent Pre-Money Valuation is equal to $300 million, then the maximum percentage of the aggregate Payment Amount of Promissory Notes that can be tendered by any holder for exercise into Warrant Shares shall not exceed the proportion that $200 million bears to $500 million, i.e., 40%.

General.

In consideration for Holder providing consent requested by Parent, in Holder’s capacity as holder of that certain convertible promissory note dated December 13, 2019 issued by Parent, in connection with the restructuring of Parent and the spin-out to the Company of Parent’s holding of Common Stock of Listco, the Company agrees to issue Warrants to Holder on the terms and conditions specified herein.

The Warrants and the Warrant Shares may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Warrant shall be dated the date of the countersignature.

The terms and provisions contained in the Warrants shall constitute, and are hereby expressly made, a part of this Agreement. The Company and Holder, by their execution and delivery of this Agreement, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Warrant conflicts with the express provisions of this Agreement, the provisions of this Agreement shall govern and be controlling.

B-5

The signatures of two Officers shall be conclusive evidence that the Warrant has been properly issued under this Agreement.

The Warrants are issued subject to the certificate of incorporation of Listco, as it may be amended from time to time, and otherwise on the terms of this Agreement which are binding upon the Company and the Holders and all persons claiming through or under either the Company or the Holders.

By its acceptance of any Warrant bearing any private placement legend (or any beneficial interest in such a Warrant), each holder thereof and each owner of a beneficial interest therein acknowledges the restrictions on transfer of such Warrant (and any such beneficial interest) set forth in this Agreement and in such private placement legend and agrees that it will transfer such Warrant (and any such beneficial interest) only in accordance with this Agreement and such legend.

The Company shall maintain an office or agency where Warrants may be presented for registration of transfer or for exchange (the “Warrant Registrar”). The Warrant Registrar shall keep a register of the Warrants and of their registration of transfer and exchange (the “Warrant Register”). The Company may appoint one or more co-Warrant Registrars. The term “Warrant Registrar” includes any co-Warrant Registrar. The Company may change any Warrant Registrar without notice to any holder. The Company shall notify Holder in writing of the name and address of any agent not a party to this Agreement. The Company or any of its subsidiaries may act as Warrant Registrar.

(2)The Holder hereby agrees that the Warrant Registrar shall not register the proposed transfer of any beneficial interest in, or proposed exercise of any right in, any Warrant, unless the Warrant Registrar shall have first received certification in the form of Exhibit C hereto that such transfer or exercise is made in accordance with the provisions of applicable securities laws. 

(3)The Warrant Register shall be in written form in the English language and shall include a record of the certificate number of each Warrant issued, and shall show the number of Warrants, the date of issue, all subsequent transfers and changes of ownership in respect thereof and the names, tax identifying numbers (if relevant to a specific holder) and addresses of the holders. 

B-6

(8)The Company shall sign Definitive Warrants in accordance with the provisions of Section 2.2 hereof. 

Notwithstanding anything herein to the contrary, as to any certificates and/or certifications delivered to the Warrant Registrar pursuant to this Section 2.4, the Warrant Registrar’s duties shall be limited to confirming that any such certifications and certificates delivered to it are in the form of Exhibit C attached hereto. The Warrant Registrar shall not be responsible for confirming the truth or accuracy of representations made in any such certifications or certificates. As to any Opinions of Counsel delivered pursuant to this Section 2.4, the Warrant Registrar may conclusively rely upon, and be fully protected in relying upon, such opinions.

Every replacement Warrant issued in accordance with this Section shall be a valid obligation of the Company, evidencing the same warrant as the mutilated, destroyed, lost or stolen Warrant and shall be entitled to all of the benefits of this Agreement equally and proportionately with all other Warrants duly issued hereunder.

2.6 CANCELLATION 

The Company may not issue new Warrants to replace Warrants that have been exercised or that have been delivered to the Company for cancellation.

B-7

SECTION 3 EXERCISE OF WARRANTS; TERMS OF WARRANTS 

(b)Each Warrant not exercised prior to 5:00 p.m., New York time, on the Warrant Expiration Date shall become void and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time. No adjustments as to dividends will be made upon exercise of the Warrants. 

B-8

(h)If the exercising holder fails to pay the applicable Exercise Price to the Company, the Company shall be entitled to return or cause to be returned the relevant Warrant Certificates and the form of election to purchase at the expense of such holder. 

(i)The Company shall keep copies of this Agreement and any notices given or received hereunder available for inspection by the holders which shall be allowed upon prior written request with reasonable notice and during normal business hours at its office.  

The Company shall pay all securities transaction taxes and documentary stamp taxes attributable to the initial issuance of Warrant Shares upon the exercise of Warrants; provided that the Company shall not be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issue of any Warrant Certificates or any certificates for Warrant Shares in a name other than that of the registered holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and the Company shall not be required to issue or deliver such Warrant Certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. This provision shall survive the termination of this Agreement.

(b)The Company will request the Transfer Agent to be irrevocably authorized and directed at all times to keep available such number of authorized shares as shall be required for such purpose. The Company shall supply such Transfer Agent with duly executed certificates for such purposes and shall provide or otherwise make available any cash which may be payable as provided in Section 6 hereof.  

The Holder shall be solely responsible for being informed whether the Parent shall have filed a registration statement or other filing with any stock exchange for a Qualifying Listing. The Holder shall be solely responsible for being informed of the consummation of the Qualifying Listing. The Company has no obligation to inform any holder of any Event of Default, and each holder accepts responsibility for monitoring the existence of any Event of Default.

B-10

Alphaeon 1 LLC

4040 MacArthur Blvd.

Suite 310

Newport Beach, CA 92660

Fax: +1 949 260 1705

Attention: Mr. Vikram Malik

660 Newport Center Dr.

Suite 1600

Newport Beach, CA 92660

Attention: Marc Alcser, Esq.

Facsimile No.: +1 949 725 4100

All the covenants and provisions of this Agreement by or for the benefit of the Company, Warrant Registrar and Holder and shall bind and inure to the benefit of their respective successors and assigns hereunder.

SECTION 10 TERMINATION 

This Agreement shall terminate at 5:00 p.m., New York time, on the Warrant Expiration Date. Notwithstanding the foregoing, this Agreement will terminate on any earlier date if all Warrants have been exercised.

SECTION 11 GOVERNING LAW 

This Agreement, each Warrant Certificate issued hereunder and all matters arising therefrom or relating thereto shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 12 JURISDICTION 

Each of the Company and Holder agrees that any suit, action or proceeding against it arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in the City of New York and County of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding.

B-11

Nothing in this Agreement shall be construed to give to any person or corporation other than the Company, the Warrant Registrar and the registered holders of Warrants any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Registrar and the registered holders of Warrants.

This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

B-12

EXHIBIT A

THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OF THE UNITED STATES OF AMERICA (THE “SECURITIES ACT”) AND THE WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS, UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. IN ORDER TO TRANSFER OR EXERCISE ANY INTEREST IN THIS WARRANT, THE BENEFICIAL HOLDER MUST FURNISH TO THE COMPANY AND THE WARRANT REGISTRAR EITHER (A) A WRITTEN CERTIFICATION THAT SUCH TRANSFER OR EXERCISE IS AN “OFFSHORE TRANSACTION” MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT AND THAT IT IS NOT A U.S. PERSON AND THE WARRANT IS NOT BEING EXERCISED ON BEHALF OF A U.S. PERSON OR (B) A WRITTEN OPINION OF COUNSEL TO THE EFFECT THAT THE SECURITIES DELIVERED UPON EXERCISE OF THE WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR THAT THE DELIVERY OF SUCH SECURITIES IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. EACH BENEFICIAL HOLDER BY ACCEPTING AN INTEREST IN THIS WARRANT AGREES THAT ANY HEDGING TRANSACTION INVOLVING THIS WARRANT OR THE SECURITIES TO BE ISSUED UPON EXERCISE OF THIS WARRANT MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. TERMS IN THIS LEGEND HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.

B-14

Warrant Certificate

This Warrant Certificate certifies that _____________________________, or its registered assigns, is the registered holder of the Warrants issued by ALPHAEON 1 LLC, a Delaware limited liability company (the “Company”) to purchase fully paid and non-assessable shares of the common stock, par value $0.00001 (the “Common Stock”) of Evolus, Inc., a Delaware corporation (“Listco”). Capitalized terms used but not defined herein have the meaning ascribed to such terms in the Warrant Agreement.

Each Warrant entitles the registered holder, upon exercise at any time during the Exercise Period, to receive from the Company the Warrant Shares at the Exercise Price per share payable upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Company, but only subject to the conditions set forth herein and in the Warrant Agreement referred to on the reverse hereof.

No Warrant may be exercised after 5:00 p.m., New York time, on the Warrant Expiration Date. To the extent not exercised by such time, any such Warrant shall become void.

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Warrant Certificate shall not be valid unless countersigned by two Officers of the Company, as such term is used in the Warrant Agreement.

B-15

Dated: January 8, 2020

B-16

[Reverse of Warrant Certificate]

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants expiring at 5:00 p.m., New York time, on the Warrant Expiration Date entitling the holder on exercise to receive shares of Common Stock, and are issued or to be issued pursuant to a Warrant Agreement dated as of January 8, 2020 (the “Warrant Agreement”), duly executed and delivered by the Company to ____________________________________, as holder threof (the “Holder”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the the Company and the holders of the Warrants (the words “holders” or “holder” meaning the registered holders or registered holder). To the extent any provision of this Warrant Certificate conflicts with the express provisions of the Warrant Agreement, the provisions of the Warrant Agreement shall govern and be controlling. Capitalized terms used but not defined herein have the meaning ascribed to such terms in the Warrant Agreement. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company.

No fractions of a share of Common Stock will be issued upon the exercise of any Warrant, but the Company will pay the cash value thereof determined as provided in the Warrant Agreement or, at its option, deliver one whole share of Common Stock.

Warrant Certificates, when surrendered at the corporate trust office of the Company by the registered holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

Upon due presentation for registration of transfer of this Warrant Certificate at the corporate trust office of the Company a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge payable in connection therewith.

The Company and the Warrant Registrar may deem and treat the registered holder(s) thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Registrar shall be affected by any notice to the contrary.

The Warrant Agreement, this Warrant Certificate and all matters arising therefrom or relating thereto shall be governed by, and construed in accordance with, the laws of the State of New York..

Each of the Company and Holder agrees that any suit, action or proceeding against it arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in the City of New York and County of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding.

B-17

4040 MacArthur Blvd.

Suite 310

Newport Beach, CA 92660

Facsimile: +1 949 260 1705

Attention: Mr. Vikram Malik

___________________, (the “Transferee”) proposes to acquire ___________ number of Warrant[s] or interest in such Warrant[s] (the “Transfer”). In connection with the Transfer, the Transferee hereby agrees (i) that any hedging transactions involving the Warrants or the securities issuable upon exercise thereof may not be conducted unless in compliance with the Securities Act and (ii) such Transferee will only resell the Warrants or the securities issuable upon exercise of the Warrants in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an available exemption from registration. The Transferee further certifies that:

[CHECK ALL THAT APPLY]

1.[   ] Check if Transferee will take delivery of a beneficial interest in the Global Warrant or a Definitive Warrant pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act of 1933 of the United States of America (the “Securities Act”) and, accordingly, the Transferee hereby further certifies that (i) the Transferee is not a “U.S. person” and (x) at the time the buy order was originated, the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and the Transfer was not prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Warrant Certificate and the Warrant Agreement, the transferred beneficial interest or Definitive Warrant will be subject to the restrictions on transfer printed on the Global Warrant and/or the Definitive Warrant and the Securities Act. 

2.[   ] Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act and in compliance with the transfer restrictions contained in the Warrant Certificate, the Warrant Agreement and any applicable blue sky securities laws of any State of the United States. 

This certificate and the statements contained herein are made for the benefit of the Company.

B-22