Contingent Values Rights Agreement

THIS CONTINGENT VALUE RIGHTS AGREEMENT (this “Agreement”), dated as of March 30, 2020 (the “Effective Date”), is entered into by and among TRANS WORLD ENTERTAINMENT CORPORATION, a New York corporation (the “Parent”), ALIMCO RE LTD., a Bermuda limited corporation (“Alimco”), KICK-START III, LLC, a Washington limited liability company (“Kick-Start III”), KICK-START IV, LLC, a Washington limited liability company (“Kick-Start IV”), and RJHDC, LLC, a New York corporation, (“RJHDC”, and together with Alimco, Kick-Start III and Kick-Start IV, collectively, the “Holders”). Parent and Holders are sometimes referred to herein collectively as the “Parties.”

WHEREAS, Holders have made a $5,224,800 loan (the “Etailz Loan”) to Etailz, Inc. (“Borrower”), a wholly-owned subsidiary of Parent;

WHEREAS, Borrower has executed a promissory note (the “Intercompany Note”), dated February 20, 2020, in favor of Parent in an original principal amount of $13,956,001.82; and

WHEREAS, in consideration for value received in connection with Etailz Loan, Parent desires to grant to Holders certain contingent value rights, as hereinafter described (collectively, the “CVRs”).

NOW, THEREFORE, for and in consideration of the premises and the consummation of the transactions referred to above, it is mutually covenanted and agreed as follows:

1.            Definitions.

(a)          “Business Day” means a day other than a Saturday or Sunday or any other day on which banks in New York are authorized to close.

(b)          “CVR Payment Amounts” means the amounts payable to Holders pursuant to Section 4(a) of this Agreement.

(c)         “Disposal” means the sale, transfer, grant of an option or other interest in, or other disposal of, all or substantially all of the business or assets of Borrower, whether by one transaction or a series of related transactions or arrangements; provided, however, that any transaction or series of related transactions or arrangements in which the stockholders of Borrower immediately prior to the transaction own 50.1% or more of the voting stock of the acquiring corporation or parent of the acquiring corporation following such transaction (taking into account only stock of Borrower held by such stockholders prior to the transaction) shall not be considered a Disposal.

(d)          “Dispute Notice” shall have the meaning given in Section 6(a) of this Agreement.

(e)          “Dividend” means a dividend, capital distribution or other distribution made by Borrower to Parent, whether in cash, property, or securities of Borrower and whether by liquidating distribution or otherwise; provided that none of the following shall be a Dividend: (a) any redemption or repurchase by Borrower of shares of Borrower; (b) any recapitalization or exchange of securities of Borrower; (c) any subdivision (by a split of shares or otherwise) or any combination (by a reverse split of shares or otherwise) of any outstanding shares or (d) any dividend or other distribution by Borrower to Parent permitted under Section 8(a)(xi)(2) of that certain Loan and Security Agreement entered into on February 20, 2020 by and among the Borrower, the Loan Party Obligors and Other Obligors (each as defined therein) party thereto from time to time, the lenders party thereto from time to time, and Encina Business Credit, LLC, as agent, as in effect on the date hereof (and regardless of whether such agreement is then in effect as of any date of determination).

(f)           “Event” means any (i) Note Payment or (ii) receipt by Parent of Proceeds in respect of its shares of Borrower in connection with any Disposal, Dividend, Sale or Winding-Up; provided that “Event” shall not include the Note Payment made with the proceeds of the Etailz Loan on the Effective Date.

(g)          “Note Payment” means the receipt by Parent of Proceeds of a payment by, or on behalf of, Borrower on the Intercompany Note; provided that “Note Payment” shall not include the receipt by Parent of Proceeds of a payment by, or on behalf of, Borrower on the Intercompany Note made with the proceeds of the Etailz Loan on the Effective Date.

(h)          “Notice” shall have the meaning given in Section 5 of this Agreement.

(i)          “Proceeds” means, with respect to any Event, the sum equal to the difference between (x) the total proceeds received and to be received,  by Parent after the Effective Date in connection with such Event consisting solely of  (i) cash actually received by Parent as a result of such Event; (ii) notes, debt or other obligations issued to Parent in connection with such Event and payable in installments or otherwise deferred (“Deferred Obligations”), including amounts held in escrow, but excluding, for purposes of this definition of Deferred Obligations, Earn-Out Payments as defined below; (iii) equity securities and other non-cash property; and (iv) contingent payments related to future earnings or operations (“Earn-Out Payments”)) (but excluding, for the avoidance of doubt, the amount of any decrease, repayment or extinguishment of, or assumption by an acquiring party in an acquisition of assets or equity of, any indebtedness of Parent or its affiliates (including, without limitation, the Borrower)), minus (y) the aggregate amount of all fees, costs, expenses, liabilities, obligations and other amounts (including, without limitation, investment banking fees, advisory or consultant fees, accountant’s or attorney’s fees, transfer or similar taxes or other taxes imposed by any jurisdiction, reimbursement of expenses and indemnity payments) incurred or payable (or estimated in good faith to be incurred or payable) by Parent or its subsidiaries in connection with such Event (“Event Expenses”); provided that, with respect to all non-cash proceeds (including, without limitation, Deferred Obligations, Earn-Out Payments, amounts held in escrow and other contingent payments) received or to be received by Parent in connection with an Event, such non-cash proceeds (or any portion thereof, as determined by the board of directors of Parent in its sole discretion) will either, as determined by the board of directors of Parent in its sole discretion, be (i) valued in good faith by the board of directors of Parent (and the value so determined will be treated as Proceeds as of the date such non-cash proceeds were received by Parent) or (ii) excluded from Proceeds until converted into or exchanged for or disposed of by Parent for cash, or otherwise actually paid to Parent in cash.

(j)          “Required Holders” means, at any time, Holders then holding CVRs representing more than two-thirds of the aggregate Contingent Payment Amounts payable pursuant to Section 4(a).  By way of example only, a Holder holding a CVR entitling such Holder to receive 14 percent (14%) of the Proceeds received by Parent from an Event shall constitute the Required Holders.

(k)        “Sale” means any transaction or series of related transactions or arrangements pursuant to which any person(s), firm(s) or company(ies), whether acting alone or together (the “Acquiror"), acquires (whether by purchase, transfer, renunciation, subscription, option or otherwise) an interest, whether direct or indirect, in any shares in the capital of Borrower; provided, however, that the following shall not be considered a Sale: (i) a bona fide equity financing in which Borrower is the surviving corporation and not more than 50% of the stock of Borrower is issued to unrelated third parties in such transaction, or (ii) a transaction or series of related transactions or arrangements in which the stockholders of Borrower immediately prior to the transaction own 50.1% or more of the voting stock of the surviving corporation or parent of the surviving corporation following the transaction (taking into account only stock of Borrower held by such stockholders prior to the transaction).

(l)           “Transaction Documents” shall have the meaning given in Section 5 of this Agreement.

(m)       “Winding-Up” means the making of an order or the passing of a resolution for the winding-up of Borrower for any purpose whatsoever; provided, however, that any recapitalization or other transaction or series of related transactions or arrangements in which the stockholders of Borrower immediately prior to the transaction own 50.1% or more of the voting stock of the surviving corporation or parent of the surviving corporation following such transaction (taking into account only stock of Borrower held by such stockholders prior to the transaction) shall not be considered a Winding-Up.

3.            No Certificate.  The CVRs shall not be evidenced by certificates or other instruments.

4.            Payment Events; Termination.

(a)          Payment Events.  If an Event shall occur prior to the date that is ten (10) years after the Effective Date (the “CVR Termination Date”), then on the date that is thirty (30) days following the date of such Event (or such longer period as may be agreed in writing between Parent and the Required Holders) (i) Alimco shall be entitled to receive, and Parent shall be obligated to pay, ten and 35/100 percent (10.35%) of the Proceeds received by Parent from such Event, (ii) Kick-Start III shall be entitled to receive, and Parent shall be obligated to pay, one and 14/100 percent (1.14%) of the Proceeds received by Parent from such Event, (iii) Kick-Start IV shall be entitled to receive, and Parent shall be obligated to pay, zero and 76/100 percent (0.76%) of the Proceeds received by Parent from such Event, and (iv) RJHDC shall be entitled to receive, and Parent shall be obligated to pay, seven and 64/100 percent (7.64%) of the Proceeds received by Parent from such Event, in each case payable in accordance with the terms of this Agreement; provided that the right to such payments shall be reduced, as needed from time to time, if and to the extent that Parent determines in its sole discretion that such right to payments would result in an “ownership change” of Parent within the meaning of Section 382 of the Internal Revenue Code of 1986, as amended.  For the avoidance of doubt, the aggregate CVR Payment Amounts payable pursuant to this Agreement shall not in any event exceed 19.9% of the of the Proceeds received by Parent from Events.

(b)          Termination.  Notwithstanding anything to the contrary herein, the CVRs and the rights of Holders to CVR Payment Amounts shall terminate, be extinguished and have no further force and effect, and this Agreement shall terminate and be of no further force or effect, and the Parties shall have no liability hereunder, upon the earlier to occur of (i) a Disposal, Sale or Winding-Up and the payment of the CVR Payment Amounts, if any, in connection therewith in accordance with Section 4(a) and (ii) the CVR Termination Date.

5.           Notice.  Parent shall, within five (5) Business Days following the occurrence of an Event (or, in the case of an Event in the form of a Dividend, within five (5) Business Days following the declaration of the Dividend), deliver a notice to Holders (the “Notice”), together with (subject to receipt by Parent of any requested customary confidentiality agreements in form and substance reasonably satisfactory to the Required Holders) a copy of each material written agreement entered into between Parent and its counterparty or counterparties that sets out the terms and conditions of such Event or, in the case of an Event in the form of a Dividend, the applicable corporate resolutions of Borrower (the “Transaction Documents”). The Notice shall specify, in reasonable detail, Parent’s calculations of (i) the Proceeds, including the amount and calculation of Event Expenses, and (ii) the CVR Payment Amounts.

6.           Valuation Dispute.

(a)         Within ten (10) Business Days following Holders’ receipt from Parent of the Notice and the Transaction Documents, the Required Holders may, in the event they have a good faith dispute with any of Parent’s valuations or other amounts set forth in the Notice, provide written notice of, and the grounds for, such dispute to Parent, accompanied by the information setting forth the grounds for such dispute in reasonable detail (a “Dispute Notice”). In the event the Required Holders do not deliver such Dispute Notice during such ten (10) Business Day period, Parent’s valuations and amounts set forth in the Notice shall be considered final and binding on the Parties.

(b)         In the event the Required Holders deliver a Dispute Notice, the Required Holders and Parent shall seek in good faith to resolve any dispute identified therein as promptly as practicable within thirty (30) calendar days following Parent’s receipt thereof. In the event the Required Holders and Parent resolve the dispute, the Notice, including such revisions as agreed by the Required Holders and Parent pursuant to this Section 6(b), shall be final and binding on the Parties.

(c)          In the event the Required Holders deliver a Dispute Notice and the Required Holders and Parent are unable to reach an agreement within thirty calendar (30) days thereafter, any such dispute shall be settled by an independent third party experienced in valuation matters that is mutually acceptable to the Required Holders and Parent. The determination of such third party shall, absent manifest error, be binding on each Party and the fees and expenses of such third party shall be borne pro rata by Parent and the Holders based on the amount by which Parent’s and the Required Holders’ respective valuations are different from the valuation as determined by such third party.

(d)        Notwithstanding anything to the contrary herein, in the event that any Dispute Notice is delivered in connection with a Disposal, Sale or Winding-Up, the Parties shall use their commercially reasonable efforts to agree and implement substitute dispute resolution procedures to the extent necessary or advisable to ensure that resolution of such dispute set forth in such Dispute Notice does not impede or delay the timely consummation of such Disposal, Sale or Winding-Up.

7.            Satisfaction of CVR Payment Amounts.

(a)         Parent shall be entitled to deduct and withhold, or cause to be deducted or withheld from, each CVR Payment Amount otherwise payable pursuant to this Agreement such amounts as Parent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, the Treasury regulations promulgated thereunder or any provision of state, local or foreign tax law.

(b)         To the extent that amounts so withheld pursuant to Section 8(a) above are paid over to or deposited with the relevant governmental entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in respect of which such deduction and withholding was made.

9.            No Voting, Dividends or Interest; No Equity or Ownership Interest.

(a)          The CVRs shall not have any voting or dividend rights, and interest shall not accrue on any amounts payable on the CVRs to Holders.

(b)         The CVRs shall not represent any equity or ownership interest in Parent or any of its affiliates (including, without limitation, the Borrower). Nothing contained in this Agreement shall be construed as conferring upon any Holder, by virtue of the CVRs, any rights or obligations of any kind or nature whatsoever as a stockholder of Parent, the Borrower or any of their respective subsidiaries, as applicable, either at law or in equity. The rights of the Holders and the obligations of Parent and its affiliates and their respective officers, directors and controlling Persons are contract rights limited to those expressly set forth in this Agreement.

10.          Ability to Abandon CVR.  Any Holder may at any time, at its option, abandon all of its remaining rights in a CVR by an instrument in writing transferring such CVR to Parent without consideration therefor. Nothing in this Agreement is intended to prohibit Parent from offering to acquire any CVR from any Holder for consideration in its sole discretion.

(a)        Successors and Assigns; Transferability.  The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the Parties.  Nothing in this Agreement, express or implied, is intended to confer upon any person other than the Parties hereto or their respective permitted successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.  Without the prior written consent of Parent, neither the CVRs (or any interest therein) nor any of the other rights, duties or obligations of the Holders hereunder may be sold, assigned, pledged, encumbered, delegated, sublicensed or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer.  For purposes of this Section 11(a), a “Permitted Transfer” means (i) a transfer made pursuant to a court order (including in connection with a bankruptcy or liquidation), and (ii) if the applicable Holder is a corporation, partnership or limited liability company, a distribution by the transferring corporation, partnership or limited liability company to its stockholders, partners or members, as applicable (provided that (A) such distribution does not subject the CVRs to a requirement of registration under the Securities Act of 1933 or the Securities Exchange Act of 1934, each as amended, and (B) in the case of a transferring corporation, Parent shall have reasonably determined after consultation with counsel that such distribution does not subject the CVRs to a requirement of registration under the Securities Act of 1933 or the Securities Exchange Act of 1934, each as amended).

(c)        Counterparts; Facsimile Execution.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the Parties that execute such counterparts, and all of which together shall constitute one instrument. A facsimile, telecopy, PDF or other reproduction of this Agreement may be executed by one or more Parties hereto and delivered by such Party by facsimile or any similar electronic transmission device pursuant to which the signature of or on behalf of such Party can be seen. Such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any Parties hereto, all Parties hereto agree to execute and deliver an original of this Agreement as well as any facsimile, telecopy or other reproduction hereof.

(d)        Titles and Headings.  The titles, captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement. Unless otherwise specifically stated, all references herein to “sections” will mean “sections” to this Agreement.

(e)         Amendments and Waivers.  Any term of this Agreement may be amended, terminated or waived only with the written consent of Parent and the Required Holders. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.

(f)         Severability.  If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of the Parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Agreement; provided that the Parties hereto shall use their good faith reasonable efforts to find and employ an alternative means to achieve the same or substantially the same economic or other result as that contemplated by such provision.

(g)         Delays or Omissions.  No delay or omission to exercise any right, power or remedy accruing to any Party under this Agreement, upon any breach or default of any other Party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting Party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.

(h)         Entire Agreement.  This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between or among the Parties hereto with respect to the specific subject matter hereof.

(i)          Notices.  Any notice or other communication to be given under this Agreement shall be in writing and may either be delivered by hand, made by facsimile transmission, sent by electronic mail transmission, disclosed in all material respects and filed on EDGAR pursuant to the Securities Exchange Act of 1934, sent by overnight courier, or sent by registered mail, return receipt requested, postage prepaid, as follows: (a) if to any Holder, at such Holder’s address, facsimile number or electronic mail address set forth on the signature page hereof, or at such other address as such Holder shall have furnished to the other Parties in writing; and (b) if to Parent, at Parent’s address, facsimile number or electronic mail address set forth on the signature page hereof, or at such other address as Parent shall have furnished to the Holders in writing.

(j)          Further Assurances.  At any time or from time to time after the date hereof, the Parties agree to cooperate with each other, and at the request of any other Party, to execute and deliver any further instruments or documents and to take all such further action as the other Party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the Parties hereunder.

IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the day and year first above written.