TheStreet, Inc.
THESTREET, INC. (Form: 10-Q, Received: 08/05/2011 13:27:36)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM 10-Q

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2011

Commission File Number 000-25779

 

THESTREET, INC.


(Exact name of Registrant as specified in its charter)


 

 

 

 

Delaware

 

 

06-1515824


 

 


(State or other jurisdiction of

 

 

(I.R.S. Employer Identification Number)

incorporation or organization)

 

 

 


 

14 Wall Street

New York, New York 10005


(Address of principal executive offices, including zip code)

 

(212) 321-5000


(Registrant’s telephone number, including area code)

          Indicate by a check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

          Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant as required to submit and post such files). Yes x No o

          Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer o      Accelerated filer x      Non-accelerated filer o      Smaller reporting company o

          Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x

          Indicate the number of shares outstanding of each of the issuer’s classes of common stock as of the latest practicable date.

 

 

 

 

(Title of Class)

 

 

(Number of Shares Outstanding
as of August 2, 2011)


 

 


Common Stock, par value $0.01 per share

 

 

31,993,743



TheStreet, Inc.
Form 10-Q

As of and for the Three and Six Months Ended June 30, 2011

 

 

 

Part I - FINANCIAL INFORMATION

1

Item 1.

Interim Condensed Consolidated Financial Statements

1

 

Condensed Consolidated Balance Sheets

1

 

Condensed Consolidated Statements of Operations

2

 

Condensed Consolidated Statements of Cash Flows

3

 

Notes to Condensed Consolidated Financial Statements

4

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

14

Item 3.

Quantitative and Qualitative Disclosures About Market Risk

21

Item 4.

Controls and Procedures

21

 

 

 

PART II - OTHER INFORMATION

22

Item 1.

Legal Proceedings

22

Item 1A.

Risk Factors

23

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds

23

Item 3.

Defaults Upon Senior Securities

23

Item 4.

[Reserved]

23

Item 5.

Other Information

23

Item 6.

Exhibits

24

SIGNATURES

26

ii


P art I – FINANCIAL INFORMATION

 

 

It em 1.

Interim Condensed Consolidated Financial Statements.

THESTREET, INC.
C ONDENSED CONSOLIDATED BALANCE SHEETS

 

 

 

 

 

 

 

 

 

 

June 30, 2011

 

December 31, 2010

 

 

 


 


 

 

 

(unaudited)

 

(audited)

 

ASSETS

 

 

 

 

 

 

 

Current Assets:

 

 

 

 

 

 

 

Cash and cash equivalents (Note 2)

 

$

31,101,781

 

$

20,089,660

 

Marketable securities (Note 2)

 

 

25,179,961

 

 

26,502,945

 

Accounts receivable, net of allowance for doubtful accounts of $265,308 as of June 30, 2011 and $238,228 as of December 31, 2010

 

 

5,992,325

 

 

6,623,261

 

Other receivables, net

 

 

390,094

 

 

663,968

 

Prepaid expenses and other current assets

 

 

2,003,072

 

 

1,785,007

 

 

 



 



 

Total current assets

 

 

64,667,233

 

 

55,664,841

 

 

 

 

 

 

 

 

 

Property and equipment, net of accumulated depreciation and amortization of $15,182,252 as of June 30, 2011 and $12,845,359 as of December 31, 2010

 

 

9,531,028

 

 

10,887,732

 

Marketable securities (Note 2)

 

 

19,423,215

 

 

30,302,428

 

Other assets

 

 

211,663

 

 

243,611

 

Goodwill

 

 

24,057,616

 

 

24,057,616

 

Other intangibles, net

 

 

5,945,820

 

 

6,725,462

 

Restricted cash (Note 2)

 

 

1,660,370

 

 

1,660,370

 

 

 



 



 

Total assets

 

$

125,496,945

 

$

129,542,060

 

 

 



 



 

 

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

 

 

 

 

 

 

 

Current Liabilities:

 

 

 

 

 

 

 

Accounts payable

 

$

1,989,671

 

$

2,455,894

 

Accrued expenses

 

 

5,776,037

 

 

8,239,064

 

Deferred revenue

 

 

20,162,444

 

 

17,431,381

 

Other current liabilities

 

 

335,187

 

 

184,328

 

Liabilities of discontinued operations

 

 

46

 

 

1,871

 

 

 



 



 

Total current liabilities

 

 

28,263,385

 

 

28,312,538

 

Deferred tax liability

 

 

288,000

 

 

288,000

 

Other liabilities

 

 

4,277,091

 

 

2,948,181

 

 

 



 



 

Total liabilities

 

 

32,828,476

 

 

31,548,719

 

 

 



 



 

 

 

 

 

 

 

 

 

Stockholders’ Equity

 

 

 

 

 

 

 

Preferred stock; $0.01 par value; 10,000,000 shares authorized; 5,500 issued and outstanding as of June 30, 2011 and December 31, 2010; the aggregate liquidation preference totals $55,000,000 as of June 30, 2011 and December 31, 2010

 

 

55

 

 

55

 

Common stock; $0.01 par value; 100,000,000 shares authorized; 38,176,541 shares issued and 31,956,063 shares outstanding as of June 30, 2011, and 37,775,381 shares issued and 31,667,600 shares outstanding as of December 31, 2010

 

 

381,765

 

 

377,754

 

Additional paid-in capital

 

 

270,148,459

 

 

270,644,658

 

Accumulated other comprehensive income

 

 

115,416

 

 

331,311

 

Treasury stock at cost; 6,220,478 shares as of June 30, 2011 and 6,107,781 shares as of December 31, 2010

 

 

(10,800,371

)

 

(10,478,838

)

Accumulated deficit

 

 

(167,176,855

)

 

(162,881,599

)

 

 



 



 

Total stockholders’ equity

 

 

92,668,469

 

 

97,993,341

 

 

 



 



 

Total liabilities and stockholders’ equity

 

$

125,496,945

 

$

129,542,060

 

 

 



 



 

The accompanying Notes to Condensed Consolidated Financial Statements are an integral part of these financial statements

1


THESTREET, INC.
C ONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended
June 30,

 

For the Six Months Ended
June 30,

 

 

 


 


 

 

 

2011

 

2010

 

2011

 

2010

 

 

 


 


 


 


 

 

 

(unaudited)

 

(unaudited)

 

Net revenue:

 

 

 

 

 

 

 

 

 

 

 

 

 

Premium services

 

$

10,074,931

 

$

9,825,151

 

$

19,684,432

 

$

19,519,733

 

Marketing services

 

 

4,953,857

 

 

4,838,526

 

 

9,465,237

 

 

8,644,301

 

 

 



 



 



 



 

Total net revenue

 

 

15,028,788

 

 

14,663,677

 

 

29,149,669

 

 

28,164,034

 

 

 



 



 



 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expense:

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of services

 

 

6,802,481

 

 

6,136,579

 

 

13,761,529

 

 

12,506,241

 

Sales and marketing

 

 

4,110,501

 

 

3,841,663

 

 

8,481,274

 

 

7,087,220

 

General and administrative

 

 

4,400,438

 

 

4,917,894

 

 

8,409,104

 

 

9,354,169

 

Depreciation and amortization

 

 

1,545,192

 

 

1,094,526

 

 

3,166,041

 

 

2,138,959

 

Asset impairments

 

 

 

 

555,000

 

 

 

 

555,000

 

Gain on disposition of assets

 

 

 

 

(1,318,607

)

 

 

 

(1,318,607

)

 

 



 



 



 



 

Total operating expense

 

 

16,858,612

 

 

15,227,055

 

 

33,817,948

 

 

30,322,982

 

 

 



 



 



 



 

Operating loss

 

 

(1,829,824

)

 

(563,378

)

 

(4,668,279

)

 

(2,158,948

)

Net interest income

 

 

176,748

 

 

225,810

 

 

374,775

 

 

402,405

 

Other income

 

 

 

 

 

 

 

 

20,374

 

 

 



 



 



 



 

Loss from continuing operations before income taxes

 

 

(1,653,076

)

 

(337,568

)

 

(4,293,504

)

 

(1,736,169

)

Provision for income taxes

 

 

 

 

 

 

 

 

 

 

 



 



 



 



 

Loss from continuing operations

 

 

(1,653,076

)

 

(337,568

)

 

(4,293,504

)

 

(1,736,169

)

Discontinued operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

Loss from discontinued operations

 

 

136

 

 

2,230

 

 

1,752

 

 

21,173

 

 

 



 



 



 



 

Net loss

 

 

(1,653,212

)

 

(339,798

)

 

(4,295,256

)

 

(1,757,342

)

Preferred stock cash dividends

 

 

96,424

 

 

96,424

 

 

192,848

 

 

192,848

 

 

 



 



 



 



 

Net loss attributable to common stockholders

 

$

(1,749,636

)

$

(436,222

)

$

(4,488,104

)

$

(1,950,190

)

 

 



 



 



 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic and diluted net loss per share

 

 

 

 

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

$

(0.05

)

$

(0.01

)

$

(0.13

)

$

(0.05

)

Loss from discontinued operations

 

 

(0.00

)

 

(0.00

)

 

(0.00

)

 

(0.00

)

 

 



 



 



 



 

Net loss

 

 

(0.05

)

 

(0.01

)

 

(0.13

)

 

(0.05

)

Preferred stock cash dividends

 

 

(0.00

)

 

(0.00

)

 

(0.01

)

 

(0.01

)

 

 



 



 



 



 

Net loss attributable to common stockholders

 

$

(0.05

)

$

(0.01

)

$

(0.14

)

$

(0.06

)

 

 



 



 



 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average basic and diluted shares outstanding

 

 

31,923,813

 

 

31,560,668

 

 

31,902,326

 

 

31,528,581

 

 

 



 



 



 



 

The accompanying Notes to Condensed Consolidated Financial Statements are an integral part of these financial statements

2


THESTREET, INC.
C ONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

 

 

 

 

 

 

 

 

 

 

For the Six Months Ended June 30,

 

 

 


 

 

 

2011

 

2010

 

 

 


 


 

 

 

(unaudited)

 

Cash Flows from Operating Activities:

 

 

 

 

 

 

 

Net loss

 

$

(4,295,256

)

$

(1,757,342

)

Loss from discontinued operations

 

 

1,752

 

 

21,173

 

 

 



 



 

Loss from continuing operations

 

 

(4,293,504

)

 

(1,736,169

)

Adjustments to reconcile loss from continuing operations to net cash provided by operating activities:

 

 

 

 

 

 

 

Stock-based compensation expense

 

 

1,429,963

 

 

1,218,747

 

Provision for doubtful accounts

 

 

80,690

 

 

5,403

 

Depreciation and amortization

 

 

3,166,041

 

 

2,138,959

 

Impairment charges

 

 

 

 

555,000

 

Deferred rent

 

 

671,474

 

 

687,826

 

Gain on disposal of equipment

 

 

 

 

(20,600

)

Gain on disposition of assets

 

 

 

 

(1,318,607

)

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

Accounts receivable

 

 

518,124

 

 

779,183

 

Other receivables

 

 

40,997

 

 

50,351

 

Prepaid expenses and other current assets

 

 

(218,065

)

 

(1,073,694

)

Other assets

 

 

15,000

 

 

10,118

 

Accounts payable

 

 

(466,223

)

 

(393,619

)

Accrued expenses

 

 

(2,183,027

)

 

(1,497,251

)

Deferred revenue

 

 

3,275,530

 

 

1,537,947

 

Other current liabilities

 

 

(16,172

)

 

(67,991

)

Other liabilities

 

 

 

 

15,167

 

 

 



 



 

Net cash provided by continuing operations

 

 

2,020,828

 

 

890,770

 

Net cash used in discontinued operations

 

 

(3,577

)

 

(21,085

)

 

 



 



 

Net cash provided by operating activities

 

 

2,017,251

 

 

869,685

 

 

 



 



 

Cash Flows from Investing Activities:

 

 

 

 

 

 

 

Purchase of marketable securities

 

 

(16,466,052

)

 

(92,297,898

)

Sale of marketable securities

 

 

28,452,354

 

 

50,487,087

 

Capital expenditures

 

 

(1,012,748

)

 

(948,378

)

Sale of Promotions.com

 

 

265,000

 

 

802,939

 

Sale of certain assets of TheStreet Ratings

 

 

 

 

1,348,902

 

Proceeds from the sale of fixed assets

 

 

 

 

43,300

 

 

 



 



 

Net cash provided by (used in) investing activities

 

 

11,238,554

 

 

(40,564,048

)

 

 



 



 

Cash Flows from Financing Activities:

 

 

 

 

 

 

 

Cash dividends paid on common stock

 

 

(1,729,303

)

 

(1,671,437

)

Cash dividends paid on preferred stock

 

 

(192,848

)

 

(192,848

)

Purchase of treasury stock

 

 

(321,533

)

 

(54,309

)

 

 



 



 

Net cash used in financing activities

 

 

(2,243,684

)

 

(1,918,594

)

 

 



 



 

Net increase (decrease) in cash and cash equivalents

 

 

11,012,121

 

 

(41,612,957

)

Cash and cash equivalents, beginning of period

 

 

20,089,660

 

 

60,542,494

 

 

 



 



 

Cash and cash equivalents, end of period

 

$

31,101,781

 

$

18,929,537

 

 

 



 



 

Supplemental disclosures of cash flow information:

 

 

 

 

 

 

 

Cash payments made for interest

 

$

 

$

1,668

 

 

 



 



 

Cash payments made for income taxes

 

$

 

$

 

 

 



 



 

The accompanying Notes to Condensed Consolidated Financial Statements are an integral part of these financial statements

3


TheStreet, Inc.

N otes to Condensed Consolidated Financial Statements
(unaudited)

 

 

1.

DESCRIPTION OF THE BUSINESS AND BASIS OF PRESENTATION

Business

          TheStreet, Inc., together with its wholly owned subsidiaries (“we”, “us” or the “Company”), is a digital financial media company. Our goal is to be the primary independent online-only source of reliable and actionable investing ideas, news and analysis, markets and rate data and analytical tools for a large audience of active self-directed investors, as well as to assist advertisers desiring to connect with our affluent audience. We distribute our fee-based premium content and advertising-supported content through a network of proprietary electronic services including: Web sites, blogs, social media, widgets, email services, mobile devices and tablets, podcasts and online video channels. We also syndicate our content for distribution by financial institutions and other media organizations.

Basis of Presentation

          The accompanying unaudited condensed consolidated financial statements of the Company have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) for interim financial information and with the instructions to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and for quarterly reports on Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and notes required by GAAP for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. The financial statements require the use of management estimates and include the accounts of the Company as required by GAAP. Operating results for the three and six month periods ended June 30, 2011 is not necessarily indicative of the results that may be expected for the year ending December 31, 2011.

          The consolidated balance sheet at December 31, 2010 has been derived from the audited financial statements at that date, but does not include all of the information and notes required by GAAP for complete financial statements.

          For further information, refer to the consolidated financial statements and accompanying notes included in the Company’s annual report on Form 10-K for the year ended December 31, 2010, filed with the Securities and Exchange Commission (“SEC”) on March 14, 2011 (“2010 Form 10-K”).

          The Company accrues quarterly expenses related to its full year cash incentive compensation on a straight-line basis based on the Company’s estimate of expected full year cash incentive compensation.

          The Company has evaluated subsequent events for recognition or disclosure.

Recent Accounting Pronouncements

          In October 2009, the Financial Accounting Standards Board (“FASB”) issued ASU 2009-13 (an update to ASC 605-25), Revenue Recognition: Multiple-Element Arrangements (“ASU 2009-13”) which is effective for annual periods beginning on or after June 15, 2010; however, early adoption is permitted. In arrangements with multiple deliverables, ASU 2009-13 permits entities to use management’s best estimate of selling price to value individual deliverables when those deliverables have never been sold separately or when third-party evidence is not available. In addition, any discounts provided in multiple-element arrangements will be allocated on the basis of the relative selling price of each deliverable. The implementation of ASU 2009-13 did not have a material impact on the Company’s consolidated financial statements.

4


          In April 2010, the FASB issued ASU No. 2010-17, Milestone Method of Revenue Recognition, a consensus of the FASB Emerging Issues Task Force (“ASU 2010-17”). ASU 2010-17 provides guidance on the criteria that should be met for determining whether the milestone method of revenue recognition is appropriate. A vendor can recognize consideration that is contingent upon achievement of a milestone in its entirety as revenue in the period in which the milestone is achieved only if the milestone meets all criteria to be considered substantive. This statement is effective prospectively for milestones achieved in fiscal years, and interim periods within those years, beginning on or after June 15, 2010. The implementation of ASU 2010-17 did not have a material impact on the Company’s consolidated financial statements.

          In May 2011, the FASB issued FASB ASU No. 2011-04, Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs (“ASU 2011-04”). ASU 2011-04 provides new guidance for fair value measurements intended to achieve common fair value measurement and disclosure requirements in U.S. GAAP and International Financial Reporting Standards. The amended guidance provides a consistent definition of fair value to ensure that the fair value measurement and disclosure requirements are similar between U.S. GAAP and International Financial Reporting Standards. The amended guidance changes certain fair value measurement principles and enhances the disclosure requirements, particularly for Level 3 fair value measurements. The amended guidance is effective for interim and annual periods beginning after December 15, 2011. Early adoption is not permitted. The implementation of ASU 2011-04 is not expected to have a material impact on the Company’s consolidated financial statements.

          In June 2011, the FASB issued ASU No. 2011-05, “Presentation of Comprehensive Income”. Under the amendments in this ASU, an entity has two options for presenting its total comprehensive income: to present total comprehensive income and its components along with the components of net income in a single continuous statement, or in two separate but consecutive statements. The amendments in this ASU are required to be applied retrospectively and are effective for fiscal years, and interim periods within those years, beginning after December 15, 2011, with early adoption permitted. The Company intends to conform to the new presentation required in this ASU beginning with its Form 10-Q for the three months ended March 31, 2012.

 

 

2.

CASH AND CASH EQUIVALENTS, MARKETABLE SECURITIES AND RESTRICTED CASH

          The Company’s cash and cash equivalents primarily consist of money market funds and checking accounts totaling $31.1 million. Marketable securities consist of cash reserves in liquid short-term U.S. Treasuries, government agencies, certificates of deposit (insured up to FDIC limits), investment grade corporate and municipal bonds, and corporate floating rate notes, with a total fair value of approximately $44.6 million and a total book value of approximately $44.5 million. The maximum maturity for any investment is three years. The Company also holds two municipal auction rate securities (“ARS”) issued by the District of Columbia with a par value of $1.9 million. The ARS pay interest in accordance with their terms at each respective auction date, typically every 35 days, and mature in the year 2038. The Company accounts for its marketable securities in accordance with the provisions of ASC 320-10. The Company classifies these securities as available for sale and the securities are reported at fair value. Unrealized gains and losses are recorded as a component of accumulated other comprehensive income and excluded from net loss. See Note 11 (Comprehensive Loss). Additionally, we have a total of $1.7 million of cash invested in certificates of deposit that serve as collateral for outstanding letters of credit, and which cash is therefore restricted. The letters of credit serve as security deposits for our office space in New York City.

 

 

 

 

 

 

 

 

 

 

June 30,
2011

 

December 31,
2010

 

 

 


 


 

Cash and cash equivalents

 

$

31,101,781

 

$

20,089,660

 

Current and noncurrent marketable securities

 

 

44,603,176

 

 

56,805,373

 

Restricted cash

 

 

1,660,370

 

 

1,660,370

 

 

 



 



 

Total cash and cash equivalents, current and noncurrent marketable securities and restricted cash

 

$

77,365,327

 

$

78,555,403

 

 

 



 



 

5



 

 

3.

FAIR VALUE MEASUREMENTS

          The Company measures the fair value of its financial instruments in accordance with ASC 820-10, which refines the definition of fair value, provides a framework for measuring fair value and expands disclosures about fair value measurements. ASC 820-10 defines fair value as the price that would be received to sell an asset or paid to transfer a liability (an exit price) in an orderly transaction between market participants at the reporting date. The statement establishes consistency and comparability by providing a fair value hierarchy that prioritizes the inputs to valuation techniques into three broad levels, which are described below:

 

 

Level 1: Inputs are quoted market prices in active markets for identical assets or liabilities (these are observable market inputs).

 

 

Level 2: Inputs are inputs other than quoted prices included within Level 1 that are observable for the asset or liability (includes quoted market prices for similar assets or identical or similar assets in markets in which there are few transactions, prices that are not current or vary substantially).

 

 

Level 3: Inputs are unobservable inputs that reflect the entity’s own assumptions in pricing the asset or liability (used when little or no market data is available).

          Financial assets and liabilities included in our financial statements and measured at fair value as of June 30, 2011 are classified based on the valuation technique level in the table below:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Description:

 

Total

 

Level 1

 

Level 2

 

Level 3

 

 

 


 


 


 


 

Cash and cash equivalents (1)

 

$

31,101,781

 

$

31,101,781

 

$

 

$

 

Marketable securities (2)

 

 

44,603,176

 

 

42,883,176

 

 

 

 

1,720,000

 

 

 



 



 



 



 

Total at fair value

 

$

75,704,957

 

$

73,984,957

 

$

 

$

1,720,000

 

 

 



 



 



 



 


 

 

(1)

Cash and cash equivalents, totaling $31.1 million, consists primarily of money market funds and checking accounts for which we determine fair value through quoted market prices.

 

 

(2)

Marketable securities consist of liquid short-term U.S. Treasuries, government agencies, certificates of deposit (insured up to FDIC limits), investment grade corporate and municipal bonds, and corporate floating rate notes for which we determine fair value through quoted market prices. Marketable securities also consist of two municipal ARS issued by the District of Columbia having a fair value totaling $1.7 million as of June 30, 2011. Historically, the fair value of ARS investments approximated par value due to the frequent resets through the auction process. Due to events in credit markets, the auction events, which historically have provided liquidity for these securities, have been unsuccessful. The result of a failed auction is that these ARS holdings will continue to pay interest in accordance with their terms at each respective auction date; however, liquidity of the securities will be limited until there is a successful auction, the issuer redeems the securities, the securities mature or until such time as other markets for these ARS holdings develop. For each of our ARS, we evaluate the risks related to the structure, collateral and liquidity of the investment, and forecast the probability of issuer default, auction failure and a successful auction at par, or a redemption at par, for each future auction period. Temporary impairment charges are recorded in accumulated other comprehensive income, whereas other-than-temporary impairment charges are recorded in our consolidated statement of operations. As of June 30, 2011, the Company determined there was a decline in the fair value of its ARS investments of $0.1 million from its cost basis, which was deemed temporary and was included within accumulated other comprehensive income. The Company used a discounted cash flow model to determine the estimated fair value of its investment in ARS. The assumptions used in preparing the discounted cash flow model include estimates for interest rate, timing and amount of cash flows and expected holding period of ARS.

6


          The following table provides a reconciliation of the beginning and ending balance for the Company’s marketable securities measured at fair value using significant unobservable inputs (Level 3):

 

 

 

 

 

 

 

Marketable
Securities

 

 

 


 

Balance at January 1, 2011

 

$

1,810,000

 

Decrease in fair value of investment

 

 

(90,000

)

 

 



 

Balance at June 30, 2011

 

$

1,720,000

 

 

 



 


 

 

4.

STOCK-BASED COMPENSATION

          For a detailed description of past equity-based compensation activity, please refer to the Company’s 2010 Form 10-K. There have been no significant changes in the Company’s equity-based compensation accounting policies and assumptions from those that were disclosed in the 2010 Form 10-K.

          The Company estimates the value of employee stock options on the date of grant using the Black-Scholes option-pricing model. This determination is affected by the Company’s stock price as well as assumptions regarding expected volatility, risk-free interest rate, and expected dividends. The weighted-average grant date fair value per share of employee stock options granted during the six months ended June 30, 2011 and 2010 was $1.07 and $1.19, respectively, using the Black-Scholes model with the weighted-average assumptions presented below. Because option-pricing models require the use of subjective assumptions, changes in these assumptions can materially affect the fair value of the options.

 

 

 

 

 

 

 

 

 

 

For the Six Months Ended
June 30,

 

 

 


 

 

 

2011

 

2010

 

 

 


 


 

Expected option lives

 

 

3.5 years

 

 

3.5 years

 

Expected volatility

 

 

55.98

%

 

57.06

%

Risk-free interest rate

 

 

1.54

%

 

1.82

%

Expected dividend yield

 

 

3.51

%

 

3.78

%

          As of June 30, 2011, there remained 890,114 shares available for future awards under the Company’s 2007 Performance Incentive Plan (the “2007 Plan”). In connection with awards under both the 2007 Plan and the Company’s 1998 Stock Incentive Plan (the “1998 Plan”), the Company recorded $0.7 million and $1.4 million of non-cash stock-based compensation for the three and six month periods ended June 30, 2011, respectively, as compared to $0.6 million and $1.2 million for the three and six month periods ended June 30, 2010, respectively. As of June 30, 2011, there was approximately $7.0 million of unrecognized stock-based compensation expense remaining to be recognized over a weighted-average period of 2.72 years.

7


          A summary of the activity of the 1998 Plan and 2007 Plan pertaining to stock option grants is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shares
Underlying
Awards

 

Weighted
Average
Exercise
Price

 

Aggregate
Intrinsic
Value
($000)

 

Weighted
Average
Remaining
Contractual
Life (In Years)

 

 

 


 


 


 


 

Awards outstanding, December 31, 2010

 

 

845,528

 

$

6.92

 

 

 

 

 

 

 

Options granted

 

 

524,500

 

$

3.20

 

 

 

 

 

 

 

Options cancelled

 

 

(32,500

)

$

3.52

 

 

 

 

 

 

 

Options expired

 

 

(200,000

)

$

8.38

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

Awards outstanding, March 31, 2011

 

 

1,137,528

 

$

5.05

 

 

 

 

 

 

 

Options granted

 

 

15,750

 

$

3.50

 

 

 

 

 

 

 

Options cancelled

 

 

(49,501

)

$

3.29

 

 

 

 

 

 

 

Options expired

 

 

(35,000

)

$

11.94

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

Awards outstanding, June 30, 2011

 

 

1,068,777

 

$

4.88

 

$

12

 

 

3.60

 

 

 



 

 

 

 



 



 

Awards vested and expected to vest at June 30, 2011

 

 

959,673

 

$

5.07

 

$

11

 

 

3.50

 

 

 



 

 

 

 



 



 

 

Awards exercisable at June 30, 2011

 

 

360,685

 

$

8.11

 

$

 

 

1.89

 

 

 



 

 

 

 



 



 

          A summary of the activity of the 1998 Plan and 2007 Plan pertaining to grants of restricted stock units is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shares
Underlying
Awards

 

Weighted
Average
Exercise
Price

 

Aggregate
Intrinsic
Value
($000)

 

Weighted
Average
Remaining
Contractual
Life (In Years)

 

 

 


 


 


 


 

Awards outstanding, December 31, 2010

 

 

1,928,393

 

$

 

 

 

 

 

 

 

Restricted stock units granted

 

 

1,170,341

 

$

 

 

 

 

 

 

 

Restricted stock units settled by delivery of Common Stock upon vesting

 

 

(327,100

)

$

 

 

 

 

 

 

 

Restricted stock units cancelled

 

 

(2,500

)

$

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

Awards outstanding, March 31, 2011

 

 

2,769,134

 

$

 

 

 

 

 

 

 

Restricted stock units granted

 

 

30,000

 

$

 

 

 

 

 

 

 

Restricted stock units settled by delivery of Common Stock upon vesting

 

 

(68,370

)

$

 

 

 

 

 

 

 

Restricted stock units cancelled

 

 

 

$

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

Awards outstanding, June 30, 2011

 

 

2,730,764

 

$

 

$

8,383

 

 

2.70

 

 

 



 

 

 

 



 



 

Awards vested and expected to vest at June 30, 2011

 

 

2,353,702

 

$

 

$

7,155

 

 

2.69

 

 

 



 

 

 

 



 



 

 

Awards exercisable at June 30, 2011

 

 

 

$

 

$

 

 

 

 

 



 

 

 

 



 



 

8


          A summary of the status of the Company’s unvested share-based payment awards as of June 30, 2011 and changes in the six-month period then ended, is as follows:

 

 

 

 

 

 

 

 

Unvested Awards

 

Number of
Shares

 

Weighted
Average Grant
Date Fair Value

 


 


 


 

Shares underlying awards unvested at December 31, 2010

 

 

2,307,104

 

$

2.72

 

Shares underlying options granted

 

 

540,250

 

$

1.07

 

Shares underlying restricted stock units granted

 

 

1,200,341

 

$

2.94

 

Shares underlying options vested

 

 

(130,868

)

$

2.04

 

Shares underlying restricted stock units vested

 

 

(395,470

)

$

3.83

 

Shares underlying options cancelled

 

 

(80,001

)

$

1.14

 

Shares underlying restricted stock units cancelled

 

 

(2,500

)

$

3.33

 

 

 



 

 

 

 

Shares underlying awards unvested at June 30, 2011

 

 

3,438,856

 

$

2.47

 

 

 



 

 

 

 

          For the six months ended June 30, 2011 and 2010, the total fair value of share-based awards vested was $1.4 million and $2.1 million, respectively. For the six months ended June 30, 2011 and 2010, the total intrinsic value of options exercised was $0 and $0, respectively (no options were exercised in either period). For the six months ended June 30, 2011 and 2010, 540,250 and 281,500 stock options, respectively, and 1,200,341 and 355,401 restricted stock units, respectively, were granted to employees of the Company. Additionally, for the six months ended June 30, 2011 and 2010, zero and zero stock options, respectively, were exercised, and 395,470 and 494,733 shares were issued under restricted stock unit grants, respectively, yielding approximately $0 and $0, respectively, to the Company.

 

 

5.

STOCKHOLDERS’ EQUITY

Treasury Stock

          In December 2000, the Company’s Board of Directors authorized the repurchase of up to $10 million worth of the Company’s common stock, from time to time, in private purchases or in the open market. In February 2004, the Company’s Board of Directors approved the resumption of the stock repurchase program (the “Program”) under new price and volume parameters, leaving unchanged the maximum amount available for repurchase under the Program. However, the affirmative vote of the holders of a majority of the outstanding shares of Series B Preferred Stock, voting separately as a single class, is necessary for the Company to repurchase its stock. During the six-month periods ended June 30, 2011 and 2010, the Company did not purchase any shares of Common Stock under the Program. Since inception of the Program, the Company has purchased a total of 5,453,416 shares of Common Stock at an aggregate cost of $7.3 million. In addition, pursuant to the terms of the Company’s 1998 Plan and 2007 Plan, and certain procedures adopted by the Compensation Committee of the Board of Directors, in connection with the exercise of stock options by certain of the Company’s employees, and the issuance of restricted stock units, the Company may withhold shares in lieu of payment of the exercise price and/or the minimum amount of applicable withholding taxes then due. Through June 30, 2011, the Company had withheld an aggregate of 555,454 shares which have been recorded as treasury stock. In addition, the Company received an aggregate of 208,270 shares as partial settlement of the working capital and debt adjustment from the acquisition of Corsis Technology Group II LLC, 104,055 of which were received in December 2008 and 104,215 of which were received in September 2009, and 3,338 shares as partial settlement of the working capital adjustment from the acquisition of Kikucall, Inc., which were received in March 2011. These shares have been recorded as treasury stock.

Dividends

          On June 30, 2011, the Company paid its quarterly cash dividend of $0.025 per share on its common stock and its convertible preferred stock on a converted common share basis, to stockholders of record at the close of business on June 15, 2011. These dividends totaled approximately $1.0 million. When combined with the quarterly cash dividend paid on March 31, 2011, year-to-date dividend payments totaled approximately $1.9 million. The Company’s Board of Directors reviews the dividend payment each quarter and there can be no assurance that we will continue to pay this cash dividend in the future.

 

 

6.

LEGAL PROCEEDINGS

          As previously disclosed, in 2001, the Company, certain of its current or former officers and directors and certain underwriters were named in a securities class action related to the Company’s initial public offering (“IPO”). Similar suits were filed against approximately 300 other issuers and their underwriters, all of which are included in a single coordinated proceeding in the district court (the “IPO Litigations”). The complaints allege

9


that the prospectus and the registration statement for the IPO failed to disclose that the underwriters allegedly solicited and received “excessive” commissions from investors and that some investors in the IPO allegedly agreed with the underwriters to buy additional shares in the aftermarket in order to inflate the price of the Company’s stock. The complaints seek unspecified damages, attorney and expert fees, and other unspecified litigation costs. In 2003, the district court granted the Company’s motion to dismiss the claims against it under Rule 10b-5 but motions to dismiss the claims under Section 11 of the Securities Act of 1933 were denied as to virtually all of the defendants in the consolidated cases, including the Company. In addition, some of the individual defendants in the IPO Litigations signed a tolling agreement and were dismissed from the action without prejudice on October 9, 2002. In 2003, a proposed collective partial settlement of this litigation was structured between the plaintiffs, the issuer defendants in the consolidated actions, the issuer officers and directors named as defendants, and the issuers’ insurance companies. The court granted preliminary approval of the settlement in 2005 but in 2007 the settlement was terminated, in light of a ruling by the appellate court in related litigation in 2006 that reversed the trial court’s certification of classes in that related litigation. In 2009, another settlement was entered into and approved by the trial court. Under the settlement, the Company’s obligation of approximately $339,000 would be paid by the issuers’ insurance companies. The settlement was appealed; in May 2011, the Second Circuit Court of Appeals dismissed one appeal and remanded another appeal to the District Court to determine whether the appellant has standing. There can be no assurance that the approval of the settlement will not be reversed on appeal and that the settlement will be implemented in its current form, or at all. Due to the inherent uncertainties of litigation, the ultimate outcome of the matter is uncertain.

          As previously disclosed, we conducted a review of the accounting in our former Promotions.com subsidiary, which subsidiary we sold in December 2009. As a result of this review, in February 2010 we filed a Form 10-K/A for the year ended December 31, 2008 and a Form 10-Q/A for the quarter ended March 31, 2009, respectively, to restate and correct certain previously-reported financial information as well as filed Forms 10-Q for the quarters ended June 30, 2009 and September 30, 2009, respectively. The SEC commenced an investigation in March 2010 into the facts surrounding our restatement of previously issued financial statements and related matters. We are cooperating fully with the SEC. The investigation could result in the SEC seeking various penalties and relief including, without limitation, civil injunctive relief and/or civil monetary penalties or administrative relief. The nature of the relief or remedies the SEC may seek, if any, cannot be predicted at this time.

          As previously disclosed, in April 2010, we and one of our reporters were named in a lawsuit captioned Generex Biotechnology Corporation v. Feuerstein et al. (N.Y. Supreme Court, County of New York, Index No. 10104433), in which plaintiff alleges that certain articles we published concerning plaintiff were libelous. In May 2010 we filed an answer denying all claims. We intend to vigorously defend ourselves in this matter and believe we have meritorious defenses. Due to the preliminary stage of this matter and the inherent uncertainties of litigation, the ultimate outcome of the matter is uncertain.

          In December 2010, the Company was named as one of several defendants in a lawsuit captioned EIT Holdings LLC v. WebMD, LLC et al. , (U.S.D.C., D. Del.), on the same day that plaintiff filed a substantially identical suit against a different group of defendants in a lawsuit captioned EIT Holdings LLC v. Yelp!, Inc. et al. , (U.S.D.C., N. D. Cal.). In February 2011, by agreement of plaintiff and the Company, the Company was dismissed from the Delaware action without prejudice and named as a defendant in the California action. In May 2011, the action against the Company and all but one defendant were dismissed for misjoinder and plaintiff filed separate cases against the dismissed defendants; the action against the Company is captioned EIT Holdings LLC v. TheStreet.com, Inc. , (U.S.D.C., N. D. Cal.). The complaints allege that defendants infringe U.S. Patent No. 5,828,837, putatively owned by plaintiff, related to a certain method of displaying information to an Internet-accessible device. The Company intends to vigorously defend itself and believes it has meritorious defenses. Due to the early stage of this matter and the inherent uncertainties of litigation, the ultimate outcome of this matter is uncertain.

          The Company is party to other legal proceedings arising in the ordinary course of business or otherwise, none of which other proceedings is deemed material.

10



 

 

7.

NET LOSS PER SHARE OF COMMON STOCK

          Basic net loss per share is computed using the weighted average number of common shares outstanding during the period. Diluted net loss per share is computed using the weighted average number of common shares and, if dilutive, potential common shares outstanding during the period. Potential common shares consist of restricted stock units (using the treasury stock method), the incremental common shares issuable upon the exercise of stock options (using the treasury stock method), and the conversion of the Company’s convertible preferred stock and warrants (using the if-converted method). For the three months ended June 30, 2011 and 2010, approximately 5.1 million and 4.0 million unvested restricted stock units, vested and unvested options and warrants to purchase common stock, respectively, were excluded from the calculation, as their effect would be anti-dilutive because the exercise prices were greater than the average market price of the common stock during the respective periods and because the Company recorded a net loss. For the six months ended June 30, 2011 and 2010, approximately 4.8 million and 3.8 million unvested restricted stock units, vested and unvested options and warrants to purchase common stock, respectively, were excluded from the calculation, as their effect would be anti-dilutive because the exercise prices were greater than the average market price of the common stock during the respective periods and because the Company recorded a net loss.

          The following table reconciles the numerator and denominator for the calculation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended June 30,

 

For the Six Months Ended June 30,

 

 

 


 


 

 

 

2011

 

2010

 

2011

 

2010

 

 

 


 


 


 


 

Basic and diluted net loss per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

Numerator:

 

 

 

 

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

$

(1,653,076

)

$

(337,568

)

$

(4,293,504

)

$

(1,736,169

)

Loss from discontinued operations

 

 

(136

)

 

(2,230

)

 

(1,752

)

 

(21,173

)

Preferred stock cash dividends

 

 

(96,424

)

 

(96,424

)

 

(192,848

)

 

(192,848

)

 

 



 



 



 



 

Numerator for basic and diluted earnings per share -

 

 

 

 

 

 

 

 

 

 

 

 

 

Net loss available to common stockholders

 

$

(1,749,636

)

$

(436,222

)

$

(4,488,104

)

$

(1,950,190

)

 

 



 



 



 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Denominator:

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average basic and diluted shares outstanding

 

 

31,923,813

 

 

31,560,668

 

 

31,902,326

 

 

31,528,581

 

 

 



 



 



 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic and diluted net loss per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

$

(0.05

)

$

(0.01

)

$

(0.13

)

$

(0.05

)

Loss from discontinued operations

 

 

(0.00

)

 

(0.00

)

 

(0.00

)

 

(0.00

)

Preferred stock cash dividends

 

 

(0.00

)

 

(0.00

)

 

(0.01

)

 

(0.01

)

 

 



 



 



 



 

Net loss available to common stockholders

 

$

(0.05

)

$

(0.01

)

$

(0.14

)

$

(0.06

)

 

 



 



 



 



 


 

 

8.

INCOME TAXES

          The Company accounts for its income taxes in accordance with ASC 740. Under ASC 740, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their tax bases. ASC 740 also requires that deferred tax assets be reduced by a valuation allowance if it is more likely than not that some or all of the deferred tax assets will not be realized based on all available positive and negative evidence.

          As of December 31, 2010, the Company had approximately $139 million of federal and state net operating loss carryforwards, which are available through 2030. Based on operating results for the six months ended June 30, 2011 and six month projections, management expects to generate a tax loss in 2011 and no tax benefit has been recorded. The Company has a full valuation allowance against its deferred tax assets as management concluded that it was more likely than not that the Company would not realize the benefit of its deferred tax assets by generating sufficient taxable income in future years. The Company expects to continue to provide a full valuation allowance until, or unless, it can sustain a level of profitability that demonstrates its ability to utilize these assets.

11


          In accordance with Section 382 of the Internal Revenue Code, the ability to utilize the Company’s net operating loss carryforwards could be limited in the event of a change in ownership and as such a portion of the existing net operating loss carryforwards may be subject to limitation. Such an ownership change would create an annual limitation on the usage of the Company’s net operating loss carryforward. The Company is in the process of evaluating the effect of Section 382 ownership changes on the Company’s net operating loss carryforwards generated through 2010. The ultimate realization of net operating loss carryforwards is dependent upon the generation of future taxable income during the periods following an ownership change. As such, a portion of the existing net operating loss carryforwards may be subject to limitation. During the year ended December 31, 2009, the Company acquired approximately $3 million of net operating loss carryforwards when it acquired the stock of Kikucall, Inc. In accordance with Section 382 of the Internal Revenue Code, the usage of the Kikucall, Inc. net operating loss carryforward could be limited.

 

 

9.

BUSINESS CONCENTRATIONS AND CREDIT RISK

          Financial instruments that subject the Company to concentrations of credit risk consist primarily of cash, cash equivalents and restricted cash. The Company maintains all of its cash, cash equivalents and restricted cash in seven domestic financial institutions. The Company performs periodic evaluations of the relative credit standing of these institutions. As of June 30, 2011, the Company’s cash and cash equivalents primarily consisted of money market funds and checking accounts.

          For the three and six months ended June 30, 2011 and 2010, no individual client accounted for 10% or more of consolidated revenue. As of June 30, 2011, two clients each accounted for more than 10% of our gross accounts receivable balance. As of December 31, 2010, one client accounted for more than 10% of our gross accounts receivable balance.

          The Company’s customers are primarily concentrated in the United States. The Company performs ongoing credit evaluations, generally does not require collateral, and establishes an allowance for doubtful accounts based upon factors surrounding the credit risk of customers, historical trends and other information. To date, actual losses have been within management’s expectations.

 

 

10.

RESTRUCTURING AND OTHER CHARGES

          In March 2009, the Company announced and implemented a reorganization plan, including an approximate 8% reduction in the Company’s workforce, to align the Company’s resources with its strategic business objectives. Additionally, effective March 21, 2009, the Company’s then Chief Executive Officer tendered his resignation, effective May 8, 2009, the Company’s then Chief Financial Officer tendered his resignation, and in December 2009, the Company sold its Promotions.com subsidiary and entered into negotiations to sublease certain office space maintained by Promotions.com. As a result of these activities, the Company incurred restructuring and other charges from continuing operations of approximately $3.5 million during the year ended December 31, 2009.

          The following tables display the activity of the restructuring and other charges reserve account during the six months ended June 30, 2011 and 2010:

 

 

 

 

 

 

 

 

 

 

For the six Months Ended June 30,

 

 

 


 

 

 

2011

 

2010

 

 

 


 


 

Beginning balance

 

$

844,761

 

$

1,230,056

 

Payments

 

 

56,764

 

 

300,399

 

 

 



 



 

Ending balance

 

$

787,997

 

$

929,657

 

 

 



 



 

12



 

 

11.

COMPREHENSIVE LOSS

          Comprehensive loss consists of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended
June 30,

 

For the Six Months Ended
June 30,

 

 

 


 


 

 

 

2011

 

2010

 

2011

 

2010

 

 

 


 


 


 


 

Net loss

 

$

(1,653,212

)

$

(339,798

)

$

(4,295,256

)

$

(1,757,342

)

Unrealized loss on marketable securities

 

 

(42,227

)

 

(179,046

)

 

(125,895

)

 

(171,857

)

(Increase) decrease of temporary impairment of ARS

 

 

(40,000

)

 

20,000

 

 

(90,000

)

 

40,000

 

Reclass from accumulated other comprehensive income to earnings due to sale

 

 

 

 

 

 

 

 

226

 

 

 



 



 



 



 

Comprehensive loss

 

$

(1,735,439

)

$

(498,844

)

$

(4,511,151

)

$

(1,888,973

)

 

 



 



 



 



 


 

 

12.

DISCONTINUED OPERATIONS

          In June 2005, the Company committed to a plan to discontinue the operations of the Company’s securities research and brokerage segment. Accordingly, the operating results relating to this segment, which are limited to certain professional fees, have been segregated from continuing operations and reported as a separate line item in the accompanying condensed consolidated statements of operations and cash flows. There were no cash flows from discontinued operations from investing or financing activities for the periods presented.

 

 

13.

OTHER LIABILITIES

          Other liabilities consist of the following:

 

 

 

 

 

 

 

 

 

 

June 30, 2011

 

December 31, 2010

 

 

 


 


 

Deferred rent

 

$

3,437,457

 

$

2,933,014

 

Other liabilities

 

 

839,634

 

 

15,167

 

 

 



 



 

Total other liabilities

 

$

4,277,091

 

$

2,948,181

 

 

 



 



 


 

 

14.

ASSET IMPAIRMENTS

          During the three months ended June 30, 2010, the Company determined it necessary to record an impairment charge approximating $0.6 million, writing the value of its investment in Debtfolio, Inc. to zero. This was deemed necessary by management based upon their consideration of Debtfolio, Inc.’s continued negative cash flow from operations, current financial position and lack of current liquidity.

 

 

15.

DISPOSITION OF ASSETS

          On May 4, 2010, the Company sold certain assets of TheStreet Ratings business (those pertaining to banking and insurance ratings) for an aggregate price of approximately $1.7 million, subject to adjustment as provided in the agreement. The purchaser is an entity under the same control as was the entity from which the Company had purchased TheStreet Ratings business in August 2006. In connection with the sale, the purchaser assumed a net $0.3 million of liabilities ($0.4 million of deferred revenue liabilities offset in part by working capital items) and paid the Company $1.3 million in cash, subject to adjustment. Gain on disposition of assets approximated $1.3 million.

13



 

 

It em 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations.

          Special Note Regarding Forward-Looking Statements – all statements contained in this quarterly report on Form 10-Q (the “Report”) that are not descriptions of historical facts are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements are inherently subject to risks and uncertainties, and actual results could differ materially from those reflected in the forward-looking statements due to a number of factors, which include, but are not limited to, the factors set forth under the heading “Risk Factors” and elsewhere in this Report, and in other documents we file with the Securities and Exchange Commission from time to time, including, without limitation, the Company’s annual report on Form 10-K for the year ended December 31, 2010 (“2010 Form 10-K”). Certain forward-looking statements may be identified by terms such as “may,” “will,” “should,” “could,” “expects,” “plans,” “intends,” “anticipates,” “believes,” “estimates,” “predicts,” “forecasts,” “potential,” or “continue” or similar terms or the negative of these terms. All statements relating to our plans, strategies and objectives are deemed forward-looking statements. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. The forward-looking statements speak only as of the date of the filing of this Report; we have no obligation to update these forward-looking statements, whether as a result of new information, future developments or otherwise.

          The following discussion and analysis should be read in conjunction with the Company’s unaudited condensed consolidated financial statements and notes thereto.

Overview

          TheStreet, Inc., together with its wholly owned subsidiaries (“we”, “us” or the “Company”), is a digital financial media company. Our goal is to be the primary independent online-only source of reliable and actionable investing ideas, news and analysis, markets and rate data and analytical tools for a large audience of active self-directed investors, as well as to assist advertisers desiring to connect with our affluent audience. We distribute our fee-based premium content and advertising-supported content through a network of proprietary electronic services including: Web sites, blogs, social media, widgets, email services, mobile devices and tablets, podcasts and online video channels. We also syndicate our content for distribution by financial institutions and other media organizations.

          We report revenue in two categories: premium services and marketing services. Premium services revenue is comprised of subscriptions, licenses and fees for access to investment information and rate services. Marketing services revenue is comprised of fees charged for the placement of advertising and sponsorships within our services, as well as licensing fees paid by third parties to obtain the right to display the Company’s awards logos on their Web sites and marketing materials in relation to certain award designations.

Critical Accounting Estimates

          Our discussion and analysis of our financial condition and results of operations are based upon our condensed consolidated financial statements, which have been prepared in accordance with GAAP. The preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expense during the reporting period. Actual results could differ from those estimates. Estimates and assumptions are reviewed periodically and the effects of revisions are reflected in the condensed consolidated financial statements in the period they are deemed to be necessary. Significant estimates made in the accompanying condensed consolidated financial statements include, but are not limited to, the following:

 

 

incentive cash compensation,

useful lives of intangible assets,

useful lives of fixed assets,

the carrying value of goodwill, intangible assets and marketable securities,

allowances for doubtful accounts and deferred tax assets,

accrued expense estimates,

14



 

 

reserves for estimated tax liabilities, and

certain estimates and assumptions used in the calculation of the fair value of equity compensation issued to employees.

          The Company accrues quarterly expenses related to its full year cash incentive compensation on a straight-line basis based on the Company’s estimate of expected full year cash incentive compensation.

          A summary of our critical accounting policies and estimates can be found in our 2010 Form 10-K.

Results of Operations

Comparison of Three Months Ended June 30, 2011 and June 30, 2010

          Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended June 30,

 

 

 

 

 


 

 

 

 

 

2011

 

Percent
of Total
Revenue

 

2010

 

Percent
of Total
Revenue

 

Percent Change

 

 

 


 


 


 


 


 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

Premium services

 

$

10,074,931

 

 

67

%

$

9,825,151

 

 

67

%

 

3

%

Marketing services

 

 

4,953,857

 

 

33

%

 

4,838,526

 

 

33

%

 

2

%

 

 



 



 



 



 

 

 

 

Total revenue

 

$

15,028,788

 

 

100

%

$

14,663,677

 

 

100

%

 

2

%

 

 



 



 



 



 

 

 

 

          Premium services . Premium service revenue is comprised of subscriptions, licenses and fees for access to securities investment information and rate services. Revenue is recognized ratably over the contract period.

          Premium services revenue for the three months ended June 30, 2011 increased by 3% when compared to the three months ended June 30, 2010. The increase is primarily attributable to an increase in revenue from subscriptions to our securities investment information and RateWatch products, offset in part by reduced revenue from our TheStreet Ratings products.

          The increase in revenue from subscriptions to our securities investment information and RateWatch products of 5% is primarily the result of a 4% increase in the weighted-average number of subscriptions during the three months ended June 30, 2011 as compared to the three months ended June 30, 2010, combined with a 1% increase in the average revenue recognized per subscription during the three months ended June 30, 2011 when compared to the three months ended June 30, 2010. The increase in the weighted-average number of subscriptions during the three months ended June 30, 2011 as compared to the three months ended June 30, 2010 is primarily the result of increased subscriber acquisition and renewal efforts. The increase in the average revenue recognized per subscription during the period is primarily a result of higher average selling prices for a number of our subscription products.

          The decline in revenue from our TheStreet Ratings products totaled $0.2 million, or 65%, and was primarily related to the sale of certain assets of TheStreet Ratings business in May 2010 which reduced the revenue of the business for the three months ended June 30, 2011 as compared to the prior year.

          Marketing services . Marketing services revenue is comprised of fees charged for the placement of advertising and sponsorships within our services, as well as licensing fees paid by third parties to obtain the right to display the Company’s awards logos on their Web sites and marketing materials in relation to certain award designations. Marketing services revenue includes $0.3 million and $0.2 million of barter revenue in the three months ended June 30, 2011 and 2010, respectively.

          Marketing services revenue for the three months ended June 30, 2011 increased by 2% when compared to the three months ended June 30, 2010. The increase in marketing services revenue was primarily the result of

15


higher demand from new advertisers, partially offset by reduced demand from repeat advertisers.

          Operating Expense

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Three Months Ended June 30,

 

 

 

 

 


 

 

 

 

 

2011

 

Percent
of Total
Revenue

 

2010

 

Percent
of Total
Revenue

 

Percent
Change

 

 

 


 


 


 


 


 

Operating expense:

 

 

 

 

 

 

 

 

 

 

 

Cost of services

 

$

6,802,481

 

 

45

%

$

6,136,579

 

 

42

%

 

11

%

Sales and marketing

 

 

4,110,501

 

 

27

%

 

3,841,663

 

 

26

%

 

7

%

General and administrative

 

 

4,400,438

 

 

29

%

 

4,917,894

 

 

34

%

 

-11

%

Depreciation and amortization

 

 

1,545,192

 

 

10

%

 

1,094,526

 

 

7

%

 

41

%

Asset impairments

 

 

 

 

N/A

 

 

555,000

 

 

4

%

 

-100

%

Gain on disposition of assets

 

 

 

 

N/A

 

 

(1,318,607

)

 

-9

%

 

100

%

 

 



 

 

 

 



 

 

 

 

 

 

 

Total operating expense

 

$

16,858,612

 

 

 

 

$

15,227,055

 

 

 

 

 

11

%

 

 



 

 

 

 



 

 

 

 

 

 

 

          Cost of services. Cost of services expense includes compensation, benefits, outside contributor costs related to the creation of our content, licensed data and the technology required to publish our content.

          Cost of services expense increased by approximately $0.7 million, or 11%, over the periods. The increase was primarily the result of higher cash and stock-based compensation costs related to a 7% increase in headcount, combined with higher costs related to nonemployee content providers and consulting fees, the aggregate of which increased by approximately $0.7 million. These cost increases were partially offset by a higher amount of salaries capitalized for internal developed software and Web site development projects approximating $0.1 million. As a percentage of revenue, cost of services expense increased to 45% in the three months ended June 30, 2011, from 42% in the prior year period.

          Sales and marketing. Sales and marketing expense consists primarily of advertising and promotion, promotional materials, credit card processing fees, and compensation expense for the direct sales force, marketing services, and customer service departments.

          Sales and marketing expense increased by approximately $0.3 million, or 7%, over the periods. The increase was primarily the result of an investment in the sales and marketing of our premium subscription-based products, including a 10% increase in headcount, as well as higher costs associated with public relations, the aggregate sum of which increased by approximately $0.3 million. These cost increases were partially offset by reduced advertising and promotion expenses approximating $0.1 million. As a percentage of revenue, sales and marketing expense increased to 27% in the three months ended June 30, 2011, from 26% in the prior year period.

          General and administrative . General and administrative expense consists primarily of compensation for general management, finance and administrative personnel, occupancy costs, professional fees, insurance and other office expenses.

          General and administrative expense decreased by approximately $0.5 million, or 11%, over the periods. The decrease was primarily the result of reduced professional and consulting fees, the aggregate of which decreased by approximately $0.6 million. These cost savings were partially offset by increased compensation and insurance related costs, the aggregate sum of which increased by approximately $0.1 million. As a percentage of revenue, general and administrative expense decreased to 29% in the three months ended June 30, 2011, from 34% in the prior year period.

          Depreciation and amortization. Depreciation and amortization expense increased by approximately $0.5 million, or 41%, over the periods. The increase is largely attributable to increased amortization expense resulting from a reduction to the estimated useful life of certain past capitalized Web site development projects together

16


with increased leasehold improvement amortization related to a renovation of the Company’s corporate headquarters that was completed late last year. As a percentage of revenue, depreciation and amortization expense increased to 10% in the three months ended June 30, 2011, from 7% in the prior year period.

          Asset impairments . During the three months ended June 30, 2010, the Company recorded an impairment charge to its long term investment approximating $0.6 million based upon management’s consideration of Debtfolio Inc.’s continued negative cash flow from operations, current financial position and lack of current liquidity.

          Gain on disposition of assets . On May 4, 2010 the Company sold certain assets of TheStreet Ratings business (those pertaining to banking and insurance ratings) resulting in a gain approximating $1.3 million.

           Net Interest Income

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Three Months
Ended June 30,

 

 

 

 

 


 

Percent

 

 

 

2011

 

2010

 

Change

 

 

 


 


 


 

Net interest income

 

$

176,748

 

$

225,810

 

 

-22

%

 

 



 



 

 

 

 

          The decrease in net interest income is primarily the result of the movement of cash balances from higher yielding marketable securities to lower yielding money market funds.

          Net Loss

          Net loss for the three months ended June 30, 2011 totaled $1.7 million, or $0.05 per basic and diluted share, compared to net loss totaling $0.3 million, or $0.01 per basic and diluted share, for the three months ended June 30, 2010.

Comparison of Six Months Ended June 30, 2011 and June 30, 2010

          Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Six Months Ended June 30,

 

 

 

 

 


 

 

 

 

 

2011

 

Percent
of Total
Revenue

 

2010

 

Percent
of Total
Revenue

 

Percent
Change

 

 

 


 


 


 


 


 

Revenue:

 

 

 

 

 

 

 

 

 

 

 

Premium services

 

$

19,684,432

 

 

68

%

$

19,519,733

 

 

69

%

 

1

%

Marketing services

 

 

9,465,237

 

 

32

%

 

8,644,301

 

 

31

%

 

9

%

 

 



 



 



 



 

 

 

 

Total revenue

 

$

29,149,669

 

 

100

%

$

28,164,034

 

 

100

%

 

3

%

 

 



 



 



 



 

 

 

 

          Premium services revenue for the six months ended June 30, 2011 increased by 1% when compared to the six months ended June 30, 2010. The increase is primarily attributable to an increase in revenue from subscriptions to our securities investment information and RateWatch products, offset in part by reduced revenue from our TheStreet Ratings products.

          The increase in revenue from subscriptions to our securities investment information and RateWatch products of 3% is primarily the result of a 5% increase in the weighted-average number of subscriptions during the six months ended June 30, 2011 as compared to the six months ended June 30, 2010, partially offset by a 1% decrease in the average revenue recognized per subscription during the six months ended June 30, 2011 when compared to the six months ended June 30, 2010. The increase in the weighted-average number of subscriptions during the six months ended June 30, 2011 as compared to the six months ended June 30, 2010 is primarily the result of increased subscriber acquisition and renewal efforts. The decrease in the average revenue recognized per

17


subscription during the period is primarily a result of lower average selling prices for a number of our subscription products.

          The decline in revenue from our TheStreet Ratings products totaled $0.5 million, or 66%, and was primarily related to the sale of certain assets of TheStreet Ratings business in May 2010 which reduced the revenue of the business for the six months ended June 30, 2011 as compared to the prior year.

          Marketing services revenue for the six months ended June 30, 2011 increased by 9% when compared to the six months ended June 30, 2010. The increase in marketing services revenue was primarily the result of higher demand from both repeat and new advertisers. Marketing services revenue includes $0.3 million and $0.2 million of barter revenue in the six months ended June 30, 2011 and 2010, respectively.

          Operating Expense

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Six Months Ended June 30,

 

 

 

 

 


 

 

 

 

 

2011

 

Percent
of Total
Revenue

 

2010

 

Percent of
Total
Revenue

 

Percent
Change

 

 

 


 


 


 


 


 

Operating expense:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of services

 

$

13,761,529

 

 

47

%

$

12,506,241

 

 

44

%

 

10

%

Sales and marketing

 

 

8,481,274

 

 

29

%

 

7,087,220

 

 

25

%

 

20

%

General and administrative

 

 

8,409,104

 

 

29

%

 

9,354,169

 

 

33

%

 

-10

%

Depreciation and amortization

 

 

3,166,041

 

 

11

%

 

2,138,959

 

 

8

%

 

48

%

Asset impairments

 

 

 

 

N/A

 

 

555,000

 

 

2

%

 

-100

%

Gain on disposition of assets

 

 

 

 

N/A

 

 

(1,318,607

)

 

-5

%

 

100

%

 

 



 

 

 

 



 

 

 

 

 

 

 

Total operating expense

 

$

33,817,948

 

 

 

 

$

30,322,982

 

 

 

 

 

12

%

 

 



 

 

 

 



 

 

 

 

 

 

 

          Cost of services. Cost of services expense increased by approximately $1.3 million, or 10%, over the periods. The increase was primarily the result of higher cash and stock-based compensation costs related to a 5% increase in headcount, combined with higher costs related to nonemployee content providers, consulting fees and computer services and supplies, the aggregate of which increased by approximately $1.6 million. These cost increases were partially offset by reduced incentive compensation accruals as well as a higher amount of salaries capitalized for internal developed software and Web site development projects, the aggregate of which totaled approximately $0.4 million. As a percentage of revenue, cost of services expense increased to 47% in the six months ended June 30, 2011, from 44% in the prior year period.

          Sales and marketing. Sales and marketing expense increased by approximately $1.4 million, or 20%, over the periods. The increase was primarily the result of an investment in the sales and marketing of our premium subscription-based products, including a 9% increase in headcount, as well as higher costs associated with advertising and promotion, public relations, travel and entertainment expenses, internet access and credit card fees, the aggregate sum of which increased by approximately $1.3 million. As a percentage of revenue, sales and marketing expense increased to 29% in the six months ended June 30, 2011, from 25% in the prior year period.

          General and administrative . General and administrative expense decreased by approximately $0.9 million, or 10%, over the periods. The decrease was primarily the result of reduced costs related to a review of certain accounting matters in our former Promotions.com subsidiary, combined with reduced professional fees, consulting, recruiting and tax related costs, the aggregate of which decreased by approximately $1.3 million. These cost savings were partially offset by increased compensation and related expenses, bad debt and training costs, the aggregate sum of which increased by approximately $0.2 million. As a percentage of revenue, general and administrative expense decreased to 29% in the six months ended June 30, 2011, from 33% in the prior year period.

18


          Depreciation and amortization. Depreciation and amortization expense increased by approximately $1.0 million, or 48%, over the periods. The increase is largely attributable to increased amortization expense resulting from a reduction to the estimated useful life of certain past capitalized Web site development projects together with increased leasehold improvement amortization related to a renovation of the Company’s corporate headquarters that was completed late last year. As a percentage of revenue, depreciation and amortization expense increased to 11% in the six months ended June 30, 2011, from 8% in the prior year period.

          Asset impairments . During the three months ended June 30, 2010, the Company recorded an impairment charge to its long term investment approximating $0.6 million based upon management’s consideration of Debtfolio Inc.’s continued negative cash flow from operations, current financial position and lack of current liquidity.

          Gain on disposition of assets . On May 4, 2010 the Company sold certain assets of TheStreet Ratings business (those pertaining to banking and insurance ratings) resulting in a gain approximating $1.3 million.

          Net Interest Income

 

 

 

 

 

 

 

 

 

 

 

 

 

For the Six Months Ended
June 30,

       

Percent
Change

 

 

 


 

 

 

 

2011

 

2010

 

 

 

 


 


 


 

Net interest income

 

$

374,775

 

$

402,405

 

 

-7

%

 

 



 



 

 

 

 

          The decrease in net interest income is primarily the result of the movement of cash balances from higher yielding marketable securities to lower yielding money market funds.

          Net Loss

          Net loss for the six months ended June 30, 2011 totaled $4.3 million, or $0.13 per basic and diluted share, compared to net loss totaling $1.8 million, or $0.05 per basic and diluted share, for the six months ended June 30, 2010.

          Liquidity and Capital Resources

          We have generally invested in money market funds and other short-term, investment grade instruments that are highly liquid and of high-quality, with the intent that such funds are available for sale for operating purposes. As of June 30, 2011, our cash, cash equivalents, marketable securities, and restricted cash amounted to $77.4 million, representing 62% of total assets. Our cash and cash equivalents primarily consisted of money market funds and checking accounts. Our marketable securities consisted of approximately $44.6 million of liquid short-term U.S. Treasuries, government agencies, certificates of deposit (insured up to FDIC limits), investment grade corporate and municipal bonds, and corporate floating rate notes, with a maximum maturity of three years, and two auction rate securities issued by the District of Columbia with a par value of $1.9 million. Our total cash-related position is as follows:

 

 

 

 

 

 

 

 

 

 

June 30,
2011

 

December 31,
2010

 

 

 


 


 

Cash and cash equivalents

 

$

31,101,781

 

$

20,089,660

 

Current and noncurrent marketable securities

 

 

44,603,176

 

 

56,805,373

 

Restricted cash

 

 

1,660,370

 

 

1,660,370

 

 

 



 



 

Total cash and cash equivalents, current and noncurrent marketable securities and restricted cash

 

$

77,365,327

 

$

78,555,403

 

 

 



 



 

19


          Financial instruments that subject us to concentrations of credit risk consist primarily of cash, cash equivalents and restricted cash. We maintain all of our cash, cash equivalents and restricted cash in seven domestic financial institutions and perform periodic evaluations of the relative credit standing of these institutions.

          Cash generated from operations was sufficient to cover expenses during the six-month period ended June 30, 2011. Net cash provided by operating activities for the six-month period ended June 30, 2011 totaled $2.0 million, as compared to net cash provided by operating activities totaling $0.9 million for the six-month period ended June 30, 2010. The increase in net cash provided by operating activities is primarily related to the following:

 

 

 

 

an increase in the growth of deferred revenue resulting from stronger subscription sales; and

 

a decrease in the growth of prepaid expenses and other current assets.

 

 

 

These increases in net cash provided by operating activities were partially offset by:

 

 

 

a larger decrease in accrued expenses during the six months ended June 30, 2011 as compared to the prior year period;

 

an increase in the loss from continuing operations, which in turn was partially offset by increased noncash expenses; and

 

a higher level of receivables as of June 30, 2011 as compared to the prior year resulting from increased advertising revenue and the timing of cash collections.

          Net cash provided by investing activities of $11.2 million for the six-month period ended June 30, 2011 was primarily the result of the $12.0 million net sale and maturity of marketable securities, partially offset by $1.0 million of capital expenditures.

          Net cash used in financing activities of $2.2 million for the six-month period ended June 30, 2011 primarily consisted of cash dividends paid and the purchase of treasury stock by retaining shares issuable upon the vesting of restricted stock units in connection with the minimum tax withholding requirements.

          We have a total of $1.7 million of cash invested in certificates of deposit that serve as collateral for outstanding letters of credit, and which cash is therefore restricted. The letters of credit serve as security deposits for our office space in New York City.

          We believe that our current cash and cash equivalents will be sufficient to meet our anticipated cash needs for at least the next 12 months. We are committed to cash expenditures in an aggregate amount of approximately $2.1 million through June 30, 2012, primarily related to operating leases. Additionally, our Board of Directors declared a quarterly cash dividend in the amount of $0.025 per share of common stock and convertible preferred stock (on a common share equivalent basis) during each of the first two quarters of 2011, which resulted in cash expenditures of approximately $1.9 million. Our Board of Directors reviews the dividend payment each quarter and there can be no assurance that we will continue to pay this cash dividend in the future.

          As of December 31, 2010, we had approximately $139 million of federal and state net operating loss carryforwards, which are available through 2030. Based on operating results for the six months ended June 30, 2011 and six-month projections, management expects to generate a tax loss in 2011 and no tax benefit has been recorded. We maintain a full valuation allowance against our deferred tax assets as management concluded that it was more likely than not that we would not realize the benefit of our deferred tax assets by generating sufficient taxable income in future years. We expect to continue to provide a full valuation allowance until, or unless, we can sustain a level of profitability that demonstrates our ability to utilize these assets.

          In accordance with Section 382 of the Internal Revenue Code, the ability to utilize the Company’s net operating loss carryforwards could be limited in the event of a change in ownership and as such a portion of the existing net operating loss carryforwards may be subject to limitation. Such an ownership change would create

20


an annual limitation on the usage of the Company’s net operating loss carryforward. The ultimate realization of net operating loss carryforwards is dependent upon the generation of future taxable income during the periods following an ownership change. As such, a portion of the existing net operating loss carryforwards may be subject to limitation. During the year ended December 31, 2009, the Company acquired approximately $3 million of net operating loss carryforwards when it acquired the stock of Kikucall, Inc. In accordance with Section 382 of the Internal Revenue Code, the usage of the Kikucall, Inc. net operating loss carryforward could be limited.

Treasury Stock

          In December 2000, our Board of Directors authorized the repurchase of up to $10 million worth of our common stock, from time to time, in private purchases or in the open market. In February 2004, our Board of Directors approved the resumption of the stock repurchase program under new price and volume parameters, leaving unchanged the maximum amount available for repurchase under the program. However, the affirmative vote of the holders of a majority of the outstanding shares of Series B Preferred Stock, voting separately as a single class, is necessary for us to repurchase our stock. During the six months ended June 30, 2011 we did not purchase any shares of common stock under the program. Since inception of the program, we have purchased a total of 5,453,416 shares of common stock at an aggregate cost of $7.3 million. In addition, pursuant to the terms of the Company’s 1998 Plan and 2007 Plan, and certain procedures adopted by the Compensation Committee of our Board of Directors, in connection with the exercise of stock options by certain of our employees, and the issuance of restricted stock units, we may withhold shares in lieu of payment of the exercise price and/or the minimum amount of applicable withholding taxes then due. Through June 30, 2011, we have withheld an aggregate of 555,454 shares which have been recorded as treasury stock. In addition, we received an aggregate of 208,270 shares as partial settlement of the working capital and debt adjustment from the acquisition of Corsis Technology Group II LLC, 104,055 of which were received in October 2008 and 104,215 of which were received in September 2009, and 3,338 shares as partial settlement of the working capital adjustment from the acquisition of Kikucall, Inc., which were received in March 2011. These shares have been recorded as treasury stock.

 

 

I tem 3.

Quantitative and Qualitative Disclosures About Market Risk.

          We believe that our market risk exposures are immaterial as we do not have instruments for trading purposes, and reasonable possible near-term changes in market rates or prices will not result in material near-term losses in earnings, material changes in fair values or cash flows for all instruments.

          We maintain all of our cash, cash equivalents and restricted cash in seven domestic financial institutions, and we perform periodic evaluations of the relative credit standing of these institutions. However, no assurances can be given that the third party institutions will retain acceptable credit ratings or investment practices.

 

 

I tem 4.

Controls and Procedures.

          Evaluation of Disclosure Controls and Procedures: The Company carried out an evaluation, as required by Rule 13a-15(b) under the Exchange Act, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures, as defined in Rule 13a-15(e) of the Exchange Act, as of the end of the period covered by this report (the “Evaluation Date”). Based on such evaluation, such officers have concluded that, as of the Evaluation Date, the Company’s disclosure controls and procedures were effective to provide reasonable assurance that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms and to provide reasonable assurance that such information is accumulated and communicated to the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

          In addition, the Company’s management, including the Company’s Chief Executive Officer and Chief

21


Financial Officer, has determined that during the period covered by this report, that there were no changes in the Company’s internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, these internal controls over financial reporting.

P ART II - OTHER INFORMATION

 

 

I tem 1.

Legal Proceedings.

          As previously disclosed, in 2001, the Company, certain of its current or former officers and directors and certain underwriters were named in a securities class action related to the Company’s initial public offering (“IPO”). Similar suits were filed against approximately 300 other issuers and their underwriters, all of which are included in a single coordinated proceeding in the district court (the “IPO Litigations”). The complaints allege that the prospectus and the registration statement for the IPO failed to disclose that the underwriters allegedly solicited and received “excessive” commissions from investors and that some investors in the IPO allegedly agreed with the underwriters to buy additional shares in the aftermarket in order to inflate the price of the Company’s stock. The complaints seek unspecified damages, attorney and expert fees, and other unspecified litigation costs. In 2003, the district court granted the Company’s motion to dismiss the claims against it under Rule 10b-5 but motions to dismiss the claims under Section 11 of the Securities Act of 1933 were denied as to virtually all of the defendants in the consolidated cases, including the Company. In addition, some of the individual defendants in the IPO Litigations signed a tolling agreement and were dismissed from the action without prejudice on October 9, 2002. In 2003, a proposed collective partial settlement of this litigation was structured between the plaintiffs, the issuer defendants in the consolidated actions, the issuer officers and directors named as defendants, and the issuers’ insurance companies. The court granted preliminary approval of the settlement in 2005 but in 2007 the settlement was terminated, in light of a ruling by the appellate court in related litigation in 2006 that reversed the trial court’s certification of classes in that related litigation. In 2009, another settlement was entered into and approved by the trial court. Under the settlement, the Company’s obligation of approximately $339,000 would be paid by the issuers’ insurance companies. The settlement was appealed; in May 2011, the Second Circuit Court of Appeals dismissed one appeal and remanded another appeal to the District Court to determine whether the appellant has standing. There can be no assurance that the approval of the settlement will not be reversed on appeal and that the settlement will be implemented in its current form, or at all. Due to the inherent uncertainties of litigation, the ultimate outcome of the matter is uncertain.

          As previously disclosed, we conducted a review of the accounting in our former Promotions.com subsidiary, which subsidiary we sold in December 2009. As a result of this review, in February 2010 we filed a Form 10-K/A for the year ended December 31, 2008 and a Form 10-Q/A for the quarter ended March 31, 2009, respectively, to restate and correct certain previously-reported financial information as well as filed Forms 10-Q for the quarters ended June 30, 2009 and September 30, 2009, respectively. The SEC commenced an investigation in March 2010 into the facts surrounding our restatement of previously issued financial statements and related matters. We are cooperating fully with the SEC. The investigation could result in the SEC seeking various penalties and relief including, without limitation, civil injunctive relief and/or civil monetary penalties or administrative relief. The nature of the relief or remedies the SEC may seek, if any, cannot be predicted at this time.

          As previously disclosed, in April 2010, we and one of our reporters were named in a lawsuit captioned Generex Biotechnology Corporation v. Feuerstein et al. (N.Y. Supreme Court, County of New York, Index No. 10104433), in which plaintiff alleges that certain articles we published concerning plaintiff were libelous. In May 2010 we filed an answer denying all claims. We intend to vigorously defend ourselves in this matter and believe we have meritorious defenses. Due to the preliminary stage of this matter and the inherent uncertainties of litigation, the ultimate outcome of the matter is uncertain.

          In December 2010, the Company was named as one of several defendants in a lawsuit captioned EIT Holdings LLC v. WebMD, LLC et al. , (U.S.D.C., D. Del.), on the same day that plaintiff filed a substantially identical suit against a different group of defendants in a lawsuit captioned EIT Holdings LLC v. Yelp!, Inc. et al. , (U.S.D.C., N. D. Cal.). In February 2011, by agreement of plaintiff and the Company, the Company was

22


dismissed from the Delaware action without prejudice and named as a defendant in the California action. In May 2011, the action against the Company and all but one defendant were dismissed for misjoinder and plaintiff filed separate cases against the dismissed defendants; the action against the Company is captioned EIT Holdings LLC v. TheStreet.com, Inc. , (U.S.D.C., N. D. Cal.). The complaints allege that defendants infringe U.S. Patent No. 5,828,837, putatively owned by plaintiff, related to a certain method of displaying information to an Internet-accessible device. The Company intends to vigorously defend itself and believes it has meritorious defenses. Due to the early stage of this matter and the inherent uncertainties of litigation, the ultimate outcome of this matter is uncertain.

          The Company is party to other legal proceedings arising in the ordinary course of business or otherwise, none of which other proceedings is deemed material.

 

 

I tem 1A.

Risk Factors.

          In addition to the other information set forth in this report, you should carefully consider the information set forth in Part 1, Item 1A. “Risk Factors” in our Form 10-K for the year ended December 31, 2010, which we filed with the SEC on March 14, 2011.

 

 

I tem 2.

Unregistered Sales of Equity Securities and Use of Proceeds.

          The following table presents information related to repurchases of its common stock made by the Company during the three months ended June 30, 2011.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Period

 

(a) Total
Number
of Shares
(or Units)
Purchased

 

(b)
Average
Price
Paid per
Share (or
Unit)

 

(c) Total Number
of Shares (or
Units) Purchased
as Part of Publicly
Announced Plans
or Programs

 

(d) Maximum Number
(or Approximate Dollar
Value) of Shares (or
Units) that May Yet Be
Purchased Under the
Plans or Programs *

 


 


 


 


 


 

April1 – 30, 2011

 

 

 

$

 

 

 

$

2,678,878

 

May1 – 31, 2011

 

 

 

$

 

 

 

$

2,678,878

 

June1 – 30, 2011

 

 

 

$

 

 

 

$

2,678,878

 

 

 



 

 

 

 



 

 

 

 

Total

 

 

 

$

 

 

 

$

2,678,878

 

 

 



 

 

 

 



 

 

 

 


 

 

*

In December 2000, the Company’s Board of Directors authorized the repurchase of up to $10 million worth of the Company’s common stock, from time to time, in private purchases or in the open market. In February 2004, the Company’s Board approved the resumption of this program under new price and volume parameters, leaving unchanged the maximum amount available for repurchase under the program. The program does not have a specified expiration date and is subject to certain limitations.


 

 

I tem 3.

Defaults Upon Senior Securities.

          Not applicable.

 

 

I tem 4.

[Reserved]

 

 

I tem 5.

Other Information.

          Not applicable.

23



 

 

I tem 6.

Exhibits.

          The following exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the Securities and Exchange Commission:

 

 

 

 

 

Exhibit
Number

 

Description

 


 


 

 

 

 

 

*3.1

 

 

Restated Certificate of Incorporation of the Company, incorporated by reference to the Exhibits to the Company’s Annual Report on Form 10-K filed March 14, 2011.

*3.2

 

 

Amended and Restated Bylaws of the Company, incorporated by reference to the Exhibits to the Company’s Annual Report on Form 10-K filed March 30, 2000.

*4.1

 

 

Amended and Restated Registration Rights Agreement dated December 21, 1998, by and among the Company and the stockholders named therein, incorporated by reference to the Exhibits to the Company’s Registration Statement on Form S-1 filed February 23, 1999.

*4.2

 

 

Certificate of Designation of the Company’s Series A Junior Participating Preferred Stock, incorporated by reference to the Exhibits to the Company’s Registration Statement on Form S-1 filed February 23, 1999.

*4.3

 

 

Certificate of Designation of the Company’s Series B Preferred Stock, as filed with the Secretary of State of the State of Delaware on November 15, 2007, incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.4

 

 

Option to Purchase Common Stock dated November 1, 2007, incorporated by reference to the Company’s Current Report on Form 8-K filed November 6, 2007.

*4.5

 

 

Investor Rights Agreement dated November 15, 2007 by and among the Company, TCV VI, L.P. and TCV Member Fund, L.P., incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.6

 

 

Warrant dated November 15, 2007 issued by the Company to TCV VI, L.P., incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.7

 

 

Warrant dated November 15, 2007 issued by the Company to TCV Member Fund, L.P., incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.8

 

 

Specimen certificate for the Company’s shares of Common Stock, incorporated by reference to the Exhibits to Amendment 3 to the Company’s Registration Statement on Form S-1 filed April 19, 1999.

+10.1

 

 

Restricted Stock Unit Grant Agreement dated as of March 28, 2011 between the Company and Daryl Otte.

+10.2

 

 

Stock Option Grant Agreement dated as of March 28, 2011 between the Company and Daryl Otte.

+10.3

 

 

Amendment No. 1 to Change of Control and Severance Agreement dated as of March 28, 2011 between the Company and Daryl Otte.

+10.4

 

 

Restricted Stock Unit Grant Agreement dated as of March 28, 2011 between the Company and Thomas Etergino.

+10.5

 

 

Stock Option Grant Agreement dated as of March 28, 2011 between the Company and Thomas Etergino.

+10.6

 

 

Amendment No. 1 to Severance Agreement dated as of March 28, 2011 between the Company and Thomas Etergino.

+10.7

 

 

Restricted Stock Unit Grant Agreement dated as of March 28, 2011 between the Company and Gregory Barton.

+10.8

 

 

Stock Option Grant Agreement dated as of March 28, 2011 between the Company and Gregory Barton.

24



 

 

 

+10.9

 

Amendment No. 1 to Severance Agreement dated as of March 28, 2011 between the Company and Gregory Barton.

31.1

 

Rule 13a-14(a) Certification of CEO.

31.2

 

Rule 13a-14(a) Certification of CFO.

32.1

 

Section 1350 Certification of CEO.

32.2

 

Section 1350 Certification of CFO.

**101.INS

 

XBRL Instance Document

**101.SCH

 

XBRL Taxonomy Extension Schema Document

**101.CAL

 

XBRL Taxonomy Extension Calculation Document

**101.DEF

 

XBRL Taxonomy Extension Definitions Document

**101.LAB

 

XBRL Taxonomy Extension Labels Document

**101.PRE

 

XBRL Taxonomy Extension Presentation Document


 

 


 

 

*

Incorporated by reference

+

Indicates management contract or compensatory plan or arrangement

**

Pursuant to Rule 406T of Regulation S-T, this interactive data file is deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, and otherwise is not subject to liability under these sections

25


S IGNATURES

          Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

 

 

 

 

 

 

THESTREET, INC.

 

 

 

 

 

 

Date: August 5, 2011

 

By:

/s/ Daryl Otte

 

 

 


 

 

 

 

Name:

Daryl Otte

 

 

 

Title:

Chief Executive Officer (principal executive officer)

 

 

 

 

 

 

Date: August 5, 2011

 

By:

/s/ Thomas Etergino

 

 

 


 

 

 

 

Name:

Thomas Etergino

 

 

 

Title:

Chief Financial Officer (principal financial officer)

26


EXHIBIT INDEX

          The following exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the Securities and Exchange Commission:

 

 

 

 

Exhibit
Number

 

Description

 


 


 

 

*3.1

 

Restated Certificate of Incorporation of the Company, incorporated by reference to the Exhibits to the Company’s Annual Report on Form 10-K filed March 14, 2011.

*3.2

 

Amended and Restated Bylaws of the Company, incorporated by reference to the Exhibits to the Company’s Annual Report on Form 10-K filed March 30, 2000.

*4.1

 

Amended and Restated Registration Rights Agreement dated December 21, 1998, by and among the Company and the stockholders named therein, incorporated by reference to the Exhibits to the Company’s Registration Statement on Form S-1 filed February 23, 1999.

*4.2

 

Certificate of Designation of the Company’s Series A Junior Participating Preferred Stock, incorporated by reference to the Exhibits to the Company’s Registration Statement on Form S-1 filed February 23, 1999.

*4.3

 

Certificate of Designation of the Company’s Series B Preferred Stock, as filed with the Secretary of State of the State of Delaware on November 15, 2007, incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.4

 

Option to Purchase Common Stock dated November 1, 2007, incorporated by reference to the Company’s Current Report on Form 8-K filed November 6, 2007.

*4.5

 

Investor Rights Agreement dated November 15, 2007 by and among the Company, TCV VI, L.P. and TCV Member Fund, L.P., incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.6

 

Warrant dated November 15, 2007 issued by the Company to TCV VI, L.P., incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.7

 

Warrant dated November 15, 2007 issued by the Company to TCV Member Fund, L.P., incorporated by reference to the Exhibits to the Company’s Current Report on Form 8-K filed November 20, 2007.

*4.8

 

Specimen certificate for the Company’s shares of Common Stock, incorporated by reference to the Exhibits to Amendment 3 to the Company’s Registration Statement on Form S-1 filed April 19, 1999.

+10.1

 

Restricted Stock Unit Grant Agreement dated as of March 28, 2011 between the Company and Daryl Otte.

+10.2

 

Stock Option Grant Agreement dated as of March 28, 2011 between the Company and Daryl Otte.

+10.3

 

Amendment No. 1 to Change of Control and Severance Agreement dated as of March 28, 2011 between the Company and Daryl Otte.

+10.4

 

Restricted Stock Unit Grant Agreement dated as of March 28, 2011 between the Company and Thomas Etergino.

+10.5

 

Stock Option Grant Agreement dated as of March 28, 2011 between the Company and Thomas Etergino.

+10.6

 

Amendment No. 1 to Severance Agreement dated as of March 28, 2011 between the Company and Thomas Etergino.

+10.7

 

Restricted Stock Unit Grant Agreement dated as of March 28, 2011 between the Company and Gregory Barton.

+10.8

 

Stock Option Grant Agreement dated as of March 28, 2011 between the Company and Gregory Barton.

27



 

 

 

+10.9

 

Amendment No. 1 to Severance Agreement dated as of March 28, 2011 between the Company and Gregory Barton.

31.1

 

Rule 13a-14(a) Certification of CEO.

31.2

 

Rule 13a-14(a) Certification of CFO.

32.1

 

Section 1350 Certification of CEO.

32.2

 

Section 1350 Certification of CFO.

**101.INS

 

XBRL Instance Document

**101.SCH

 

XBRL Taxonomy Extension Schema Document

**101.CAL

 

XBRL Taxonomy Extension Calculation Document

**101.DEF

 

XBRL Taxonomy Extension Definitions Document

**101.LAB

 

XBRL Taxonomy Extension Labels Document

**101.PRE

 

XBRL Taxonomy Extension Presentation Document


 

 


 

*

Incorporated by reference

+

Indicates management contract or compensatory plan or arrangement

**

Pursuant to Rule 406T of Regulation S-T, this interactive data file is deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, and otherwise is not subject to liability under these sections

28


Exhibit 10.1

THESTREET.COM, INC.
AGREEMENT FOR GRANT
OF
RESTRICTED STOCK UNITS
UNDER
2007 PERFORMANCE INCENTIVE PLAN

March 28, 2011

Daryl R. Otte
c/o TheStreet.com, Inc.
14 Wall Street
15 th Floor
New York, NY 10005

Dear Daryl:

          This letter (the “ Letter ) sets forth the terms and conditions of the grant of Restricted Stock Units ( RSUs ”) hereby awarded to you by TheStreet.com, Inc. (the “ Company ”), in accordance with the provisions of the Company’s 2007 Performance Incentive Plan (the “ Plan ”).

          This award is subject to the terms and conditions set forth in the Plan, any rules and regulations adopted by the Board of Directors of the Company (the “ Board ”) or the committee of the Board which administers the Plan (the “ Committee ”) that are not inconsistent with the provisions of this Letter. Any term used in this Letter and not defined herein shall have the meaning set forth in the Plan.

          1. Grant of RSUs

          You have been granted 50,000 RSUs. Each RSU represents the right to receive one share of the Company’s Common Stock (“ Common Stock ”) on the applicable vesting date for such RSU. No RSU may be sold, transferred, assigned, pledged or otherwise encumbered by you; provided that the foregoing shall not affect your right to name a beneficiary under Section 13 of the Plan. Until such time as stock certificates for the shares of Common Stock represented by the RSUs have been delivered to you in accordance with Section 4 below, you shall have none of the rights of a stockholder with respect to the Common Stock.

          However, this grant includes the grant of dividend equivalents with respect to your RSUs. The Company will maintain a bookkeeping account to which it will credit, whenever dividends (other than stock dividends for which an adjustment is made to the number of shares of Common Stock subject to the RSUs pursuant to Section 4.4 of the Plan in the same percentage as paid on outstanding Common Stock) or distributions are paid on the Common Stock, an amount equal to the amount of such dividend or distribution paid on a share of Common Stock for each of your then-outstanding RSUs covered by this Letter. The accumulated dividend equivalents will vest

1


on the applicable vesting date for the RSU with respect to which such dividend equivalents were credited, and will be paid in cash (or, if the dividend or distribution is paid in kind, in the same kind) at the time a stock certificate evidencing the shares represented by such vested RSU is delivered to you.

          2. Vesting of RSUs

Your RSUs will become vested (and paid in accordance with Section 4 below) with respect to the following number(s) of shares of Common Stock on the following date(s) as set forth below, provided that you are in the Service (as defined below) of the Company or one of its subsidiaries on such date and the RSUs have not been forfeited in accordance with Sections 3 and 6:

 

 

 

 

 

 

Date

 

 

Number of Shares of Common Stock


 


 

 

 

 

 

April 1, 2012

 

 

12,500

 

 

 

 

 

 

The first calendar day of each month from May 1, 2012 to March 1, 2015, inclusive

 

 

1,042

 

 

 

 

 

 

April 1, 2015

 

 

1,030

 

For purposes hereof, you shall be considered to be in the “ Service ” of the Company or one of its subsidiaries if you are an employee of the Company (or one if its subsidiaries, as applicable) on the applicable vesting date. Except as provided in Sections 3 and 6 below, if your Service terminates for any reason, the RSUs granted to you which have not vested shall be forfeited upon such termination of Service.

          3. Accelerated Vesting in Certain Events

          Notwithstanding Section 2 of this Letter, any unvested RSUs immediately shall become fully vested and paid in accordance with Section 4 below upon the earliest to occur of either of the following: (i) the termination of your employment by the Company or any subsidiary thereof without Cause (as defined below) or by you with Good Reason (as defined below) prior to a Change of Control (as defined in the Plan) if such termination is related to the Change of Control; or (ii) a Change of Control, unless (A) either (x) the Company is the surviving corporation in the Change of Control and the award reflected in this Letter is equitably adjusted pursuant to Section 4.4 of the Plan or (y) the award reflected in this Letter is assumed or replaced by a Successor (as defined below) and (B) the award as so adjusted, assumed or replaced (x) has substantially the same potential economic benefits and vesting terms as did the award immediately prior to the Change of Control and (y) provides that the award immediately shall become fully vested and paid upon the termination of your employment (by the Company or any subsidiary thereof or by a Successor or any affiliate thereof) without Cause or by you with Good Reason at any time. If you are employed by a Successor or any affiliate thereof following a Change of Control, references in this Letter to the Company shall be understood to be references

2


to the Successor or any such affiliate regarding matters related to the occurrence of non-occurrence of events from and after the date you become employed by the Successor or such affiliate.

          For purposes of this Letter, “ Cause ” shall be determined by the Committee in the exercise of its good faith judgment, in accordance with the following guidelines: (i) your willful misconduct or gross negligence in the performance of your obligations, duties and responsibilities as CEO (including those as an employee of the Company set forth in the Company’s Code of Business Conduct and Ethics dated June 1, 2006, as same may be amended from time to time provided such amendment affects all executive officers of the Company), (ii) your dishonesty or misappropriation, in either case that is willful and material, relating to the Company or any of its funds, properties, or other assets, (iii) your inexcusable repeated or prolonged absence from work (other than as a result of, or in connection with, a Disability), (iv) any unauthorized disclosure by you of Confidential Information or proprietary information of the Company in violation of Section 7(d) which is reasonably likely to result in material harm to the Company, (v) your conviction of a felony (including entry of a guilty or nolo contender plea) involving fraud, dishonesty, or moral turpitude, (vi) a violation of federal or state securities laws, or (vii) the failure by you to attempt to perform faithfully your duties and responsibilities as CEO, or other material breach by you of this Letter, provided any such failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) is not cured, to the extent cure is possible, by you within thirty (30) days after written notice thereof from the Company to you; provided, however, that no failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) shall constitute Cause unless (x) the Company first gives you written notice of its intention to terminate your employment for Cause and the grounds of such termination no fewer than ten (10) days prior to the date of termination; and (y) you are provided an opportunity to appear before the Board, with or without legal representation at your election to present arguments on your own behalf; and (z) if you elect to so appear, such failure or breach is not cured, to the extent cure is possible, within thirty (30) days after written notice from the Company to you that, following such appearance, the Board has determined in good faith that Cause exists and has not, following the initial notice from the Company, been cured; provided further, however, that notwithstanding anything to the contrary in this Letter and subject to the other terms of this proviso, the Company may take any and all actions, including without limitation suspension (but not without pay), it deems appropriate with respect to you and your duties at the Company pending such appearance and subsequent to such appearance during which such failure or breach has not been cured. No act or failure to act on your part will be considered “willful” unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of the Company.

          It shall not be a violation of your employment with the Company, this Letter or any agreement to which you are, or may become, a party with the Company for you to, and you may continue to, serve as a partner and officer of Montefiore Partners and, on their behalf, administer its winding down.

          For purposes of this Letter, “ Good Reason ” shall have the meaning ascribed to such term in Treasury Regulation Section 1.409A-1(n)(2)(ii), as determined in good faith by the Committee.

3


          For purposes of this Letter, “ Disability ” shall mean physical or mental incapacity of a nature which prevents you, in the good faith judgment of the Committee, from performing your duties and responsibilities as CEO for a period of 90 consecutive days or 150 days during any year, with each year under this Letter commencing on each anniversary of the date hereof.

          4. Delivery of Common Stock

          Upon the vesting of your RSUs pursuant to Sections 2 or 3 above, a certificate for the shares of Common Stock represented by your vested RSUs shall be registered in your name and delivered to you as soon as practicable, but no later than thirty (30) days, after each of the vesting dates set forth in Sections 2 and 3. At the Company’s election, the Company may cause there to be deposited, into a brokerage account in your name, the number of shares represented by your vested RSU, via DWAC, within the time frame provided in the preceding sentence. Common Stock delivered upon the vesting of your RSUs will be fully transferable (subject to any applicable securities law restrictions) and not subject to forfeiture (other than as set forth in Section 6), and will entitle the holder to all rights of a stockholder of the Company.

          The Company will use reasonable commercial efforts to cause its Registration Statement on Form S-8 (or successor form) filed with the Securities and Exchange Commission covering shares subject to the Plan to remain effective and current until such times as all of the shares of Common Stock underlying your RSUs are either delivered hereunder or forfeited under Section 6 and, until three (3) months after you cease being an “affiliate” of the Company, to maintain a resale prospectus thereunder (or otherwise register under the Securities Act of 1933, as amended) the Common Stock underlying your RSUs.

          5. Income Tax Withholding

          You will be required to pay, pursuant to such arrangements as the Company may establish from time to time, any applicable federal, state and local withholding tax liability at the time that the value of the RSUs and/or related dividend equivalents becomes includable in your income. this regard, you will have the right to elect to have the minimum amount of any required tax withholding with respect to the vesting of RSUs satisfied by having the Company withhold a number of shares of Common Stock otherwise deliverable to you in connection with the vested RSUs having a Fair Market Value equal to such withholding tax liability.

          For purposes of this Letter, “ Fair Market Value ” of a share of Common Stock on any date shall be (i) if the principal market for the Common Stock is a national securities exchange, the closing sales price per share of the Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by such exchange or on a consolidated tape reflecting transactions on such exchange, or (ii) if the principal market for the Common Stock is not a national securities exchange, the closing average of the highest bid and lowest asked prices per share of Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by the market upon which the Common Stock is quoted, or an independent dealer in the Common Stock, as determined by the Company in good faith; provided, however, that if clauses (i) and (ii) are all inapplicable, or if no

4


trades have been made and no quotes are available for such day, the Fair Market Value of the Common Stock shall be determined by the Committee in good faith by any method consistent with applicable regulations adopted by the United States Treasury Department relating to stock options or stock valuation.

          6. Forfeiture Events and Claw-Back

          Notwithstanding anything else in this Letter, all RSUs that have not been paid to you by delivery (in the case of your voluntary termination without Good Reason, that have not been vested rather than have not been delivered) of the underlying shares of Common Stock as required by Section 4 prior to April 1, 2015 shall be forfeited without payment (regardless of the vested status of the RSUs) if any one of the following occurs prior to delivery as required by Section 4 (vesting, in the case of your voluntary termination without Good Reason) of the shares of Common Stock underlying the RSUs: (i) the Company involuntarily terminates your employment as CEO for Cause; (ii) you voluntarily terminate your employment as CEO without Good Reason prior to April 1, 2015; (iii) you engage in Competitive Activity (as defined below) with the Company or any of its subsidiaries during your employment by the Company or any of its subsidiaries or within two (2) years after your service as CEO and your Board membership terminates; or (iv) you breach any of the Restrictive Covenants set out in Section 7 within two (2) years after your cessation of employment with the Company or any subsidiary. The Company reserves the right (as provided below) to claw-back shares of Common Stock delivered under this Letter if you engage in Competitive Activity or violate any of the Restrictive Covenants within two (2) years after the delivery (vesting in the case of your voluntary termination without Good Reason) of such shares of Common Stock. If the Committee determines, in its good faith discretion, that all or some portion of the shares of Common Stock delivered to you will be clawed-back, then you shall be required to repay to the Company an equal number of shares of Common Stock to that so delivered to you or, at your option, cash equal to the Fair Market Value at the date of delivery to you of such shares of Common Stock or a combination of shares of Common Stock having a Fair Market Value on the date of repayment equal to the Fair Market Value of such shares at the date of delivery thereof to you and such cash, in each case reduced by the amount of taxes paid by you with respect to the vesting, delivery and sale of such shares. In addition to any other remedy available to the Company under applicable law, the Company shall have the right to offset any other amounts payable to you by the amount of any required repayment by you which has not been repaid.

          For purposes of this Letter, “ Competitive Activity ” means your service as a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or you permit your name to be used in connection with the activities of, any other business or organization anywhere in the United States, or in any other geographic area in which the Company or any of its subsidiaries operates or with respect to which the Company provides financial news and commentary coverage (or from which such other business or organization provides financial news and commentary coverage of the United States), which engages in a business that competes with any business in which the Company or any subsidiary is engaged (a “ Competing Business ”); provided, however, that, notwithstanding the foregoing, it shall not be a Competitive Activity for you to (i) become the registered or beneficial owner of up to three percent (3%) of any class of capital stock of a competing corporation registered under the Securities Exchange

5


Act of 1934, as amended, provided that you do not otherwise participate in the business of such corporation or (ii) work in a non-competitive business of a company which is carrying on a Competing Business, the revenues of which represent less than twenty percent (20%) of the consolidated revenues of that company, or, as a result thereof, owning compensatory equity in that company.

          7. Restrictive Covenants

 

 

 

 

a.

Non-Solicitation of Employees

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit for employment or hire, in any business enterprise or activity, any employee of the Company or any subsidiary who was employed by the Company or a subsidiary during your period of employment by the Company or a subsidiary provided that (a) the foregoing shall not be violated by any general advertising not targeted at any Company or subsidiary employees nor by you serving as a reference upon request, and (b) you may solicit and hire any one or more former employees of the Company or its subsidiaries who had ceased being such an employee for a period of at least six (6) months prior to any such solicitation or hiring.

 

 

 

 

b.

Non-Solicitation of Clients and Vendors

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit, in any business enterprise or activity, any client, customer, licensee, licensor, third-party service provider or vendor (a “ Business Relation ”) of the Company or any subsidiary who was a Business Relation of the Company or any subsidiary during your period of employment by the Company or any subsidiary to (i) cease being a Business Relation of the Company or any subsidiary or (ii) become a Business Relation of a Competing Business unless (without you having solicited such third party to cease such relationship) such third party ceased being a Business Relation of the Company or any subsidiary for a period of at least six (6) months prior to such solicitation.

 

 

 

 

c.

Non-Disparagement

 

 

 

 

 

During your employment by the Company or any subsidiary and indefinitely thereafter, neither party shall make any statements, written or oral, to any third party which disparage, criticize, discredit or otherwise operate to the detriment of you or the Company, its present or former officers, shareholders, directors and employees and their respective business reputation and/or goodwill, provided, however, that nothing in this Section 7(c) shall prohibit either party from (i) making any truthful statements or disclosures required by applicable law regulation or (ii) taking any

6



 

 

 

 

 

 

action to enforce its rights under this Letter or any other agreement in effect between the parties.

 

 

 

 

 

d.

Confidentiality

 

 

 

 

 

 

1)

During your employment by the Company or any subsidiary and indefinitely thereafter, you shall keep secret and retain in strictest confidence, any and all Confidential Information relating to the Company, except where your disclosure or use of such Confidential Information is in furtherance of the performance by you of your duties to the Company and not for personal benefit or the benefit of any interest adverse to the Company’s interests. For purposes of this Letter, “ Confidential Information ” shall mean any information including without limitation plans, specifications, models, samples, data, customer lists and customer information, computer programs and documentation, and other technical and/or business information, in whatever form, tangible or intangible, that can be communicated by whatever means available at such time, that relates to the Company’s current business or future business contemplated during your employment, products, services and development, or information received from others that the Company is obligated to treat as confidential or proprietary (provided that such confidential information shall not include any information that (a) has become generally available to the public or is generally known in the relevant trade or industry other than as a result of an improper disclosure by you, or (b) was available to or became known to you prior to the disclosure of such information on a non-confidential basis without breach of any duty of confidentiality to the Company), and you shall not disclose such confidential information to any Person (as defined below) other than the Company, except with the prior written consent of the Company, as may be required by law or court or administrative order (in which event you shall so notify the Company as promptly as practicable), or in performance of your duties on behalf of the Company. Further, this Section 7(d) shall not prevent you from disclosing Confidential Information in connection with any litigation, arbitration or mediation to enforce this Letter or other agreement between the parties, provided such disclosure is necessary for you to assert any claim or defense in such proceeding.

 

 

 

 

 

 

 

For purposes of this Letter, “ Person ” shall mean an individual, corporation, partnership, limited liability company, limited liability partnership, association, trust or other unincorporated organization or entity.

 

 

 

 

 

 

2)

Upon your termination of employment for any reason, you shall return to the Company all copies, reproductions and summaries of Confidential Information in your possession and use reasonable efforts to erase the same from all media in your possession, and, if the Company so requests, shall certify in writing that you have done so, except that you may retain such copies, reproductions and summaries during any period of litigation, arbitration or mediation referred to in Section 7(d)(1). All Confidential Information is and shall remain the property of

7



 

 

 

 

 

 

 

the Company (or, in the case of information that the Company receives from a third party which it is obligated to treat as confidential, then the property of such third party); provided, you shall be entitled to retain copies of (i) information showing your compensation or relating to reimbursement of expenses, (ii) information that is required for the preparation of your personal income tax return, (iii) documents provided to you in your capacity as a participant in any employee benefit plan, policy or program of the Company and (iv) this Letter and any other agreement by and between you and the Company with regard to your employment or termination thereof.

 

 

 

 

 

 

3)

All Intellectual Property (as hereinafter defined) and Technology (as hereinafter defined) created, developed, obtained or conceived of by you during your employment, and all business opportunities presented to you during your employment, shall be owned by and belong exclusively to the Company, provided that they reasonably relate to any of the business of the Company on the date of such creation, development, obtaining or conception, and you shall (i) promptly disclose any such Intellectual Property, Technology or business opportunity to the Company, and (ii) execute and deliver to the Company, without additional compensation, such instruments as the Company may require from time to time to evidence its ownership of any such Intellectual Property, Technology or business opportunity. For purposes of this Letter, (x) the term “ Intellectual Property ” means and includes any and all trademarks, trade names, service marks, service names, patents, copyrights, and applications therefor, and (y) the term “ Technology ” means and includes any and all trade secrets, proprietary information, invention, discoveries, know-how, formulae, processes and procedures.

          The parties acknowledge that the restrictions contained in this Section 7 are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions could cause substantial injury to the Company and that the Company would not have entered into this Letter, without receiving the additional consideration offered by you in binding yourself to any of these restrictions. In the event of a breach or threatened breach by you of any of these restrictions, the Company shall be entitled to apply to any court of competent jurisdiction for an injunction restraining you from such breach or threatened breach; provided, however, that the right to apply for an injunction shall not be construed as prohibiting the Company from pursuing any other available remedies for such breach or threatened breach.

          8. No Guarantee of Continuation of Service

          This grant of RSUs does not constitute an assurance of continued Service for any period or in any way interfere with the Company’s right to terminate your Service.

          9. Administration

          The Committee has the sole power to exercise its good faith judgment to interpret the Plan and this Letter and to act upon all matters relating this grant to the extent provided in the

8


Plan and not inconsistent with the terms of this Letter. Any decision, determination, interpretation, or other action taken pursuant to the provisions of the Plan and this Letter by the Committee shall be final, binding, and conclusive.

          10. Section 409A

          Notwithstanding any provision of the Plan or this grant to the contrary, if you are a “specified employee” as determined by the Board or the Committee, in accordance with Section 409A of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder (“ Section 409A ”), you shall not be entitled to any payments of amounts which constitute deferred compensation within the meaning of Section 409A upon a termination of your employment until the earlier of (i) the date which is six (6) months after your termination of employment for any reason other than death (except that during such six (6) month period you may receive total payments from the Company that do not exceed the amount specified in Treas. Reg. Section 1.409A-1(b)(9) or that constitute a short-term deferral within the meaning of Section 409A), or (ii) the date of your death.

          Notwithstanding any provision of the Plan or this Letter to the contrary, to the extent any compensation or award which constitutes deferred compensation within the meaning of Section 409A shall vest upon the occurrence of a Change of Control and such Change of Control does not constitute a “change in the ownership or effective control” or a “change in the ownership or a substantial portion of the assets” of the Company within the meaning of Section 409A, then notwithstanding such vesting, payment will be made to you on the earliest of (i) your “separation from service” with the Company (determined in accordance with Section 409A) or, if you are a specified employee within the meaning of Section 409A, such later date as provided in the preceding paragraph, (ii) the date payment otherwise would have been made, or (iii) the date of your death.

          If any provision of this Agreement or of any award of compensation, including equity compensation or benefits would cause you to incur any additional tax or interest under Section 409A, the parties agree to negotiate in good faith to reform such provision in such manner as to maintain, to the maximum extent practicable, the original intent and economic terms of the applicable provision without violating the provisions of Section 409A.

          11. Amendment

          The Committee may from time to time amend the terms of this grant in accordance with the terms of the Plan in effect at the time of such amendment, but no amendment which is unfavorable to you can be made without your written consent.

          The Plan is of unlimited duration, but may be amended, terminated or discontinued by the Board of Directors of the Company at any time. However, no amendment, termination or discontinuance of the Plan will unfavorably affect this grant.

          Notwithstanding the foregoing, the Committee expressly reserves the right to amend the terms of the Plan and this grant with your consent which shall not be unreasonably withheld to

9


the extent it determines that such amendment is necessary or desirable for an exemption from or compliance with the distribution, acceleration and election requirements of Section 409A of the Code.

          12. Notices

          Unless otherwise provided herein, any notice, exercise of rights or other communication required or permitted to be given hereunder shall be in writing and shall be given by overnight delivery service such as Federal Express or personal delivery against receipt, or mailed by registered or certified mail (return receipt requested), to the party to whom it is given at, in the case of the Company, Compensation Committee Chair, TheStreet.com, Inc., 14 Wall Street, 15 th Floor, New York, NY 10005, or, in the case of Otte, at his principal residence address as then reflected on the records of the Company or such other address as such party may hereafter specify by notice to the other party hereto. Any notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by telecopy or like transmission or on the next business day after sent by overnight delivery service for next business day delivery or on the fifth business day after sent by registered or certified mail.

          13. Representations

          The Company hereby represents and warrants that the execution and delivery of this Letter and the performance by the Company of its obligations hereunder have been duly authorized by all necessary corporate action of the Company.

          14. Amendment

          This Letter may be amended only by a written agreement signed by the parties hereto.

          15. Binding Effect

          This Letter shall be binding upon and inure to the benefit of the Company and any Successor. As used herein, a “ Successor ” shall mean any successor organization that succeeds to the Company (or to any direct or indirect successor) by merger or consolidation or operation of law, or by acquisition of all or substantially all of the assets of the Company (or of any direct or indirect successor).

          16. Governing Law

          This Letter shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts to be performed wholly within the state and without regard to its conflict of laws provisions that would defer to the laws of another jurisdiction, except to the extent the laws of the State of Delaware mandatorily govern.

          17. Severability

10


          If any provision of this Letter shall for any reason be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Moreover, if any one or more of the provisions of this Letter shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowable by applicable law. To the extent permitted by applicable law, each party hereto waives any provision of law that renders any provision of this Letter invalid, illegal or unenforceable in any way.

          18. Execution in Counterparts

          This Letter may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument.

          19. Entire Agreement

          This Letter, together with (i) the Change of Control and Severance Agreement between the Company and you, as amended as of the same date as this Letter and (ii) award agreements entered into by and between Otte and the Company with respect to outstanding incentive awards and incentive awards granted on or before the date hereof, sets forth the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.

          20. Titles and Headings

          Titles and headings to Sections herein are for purposes of reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of any of the provisions of this Letter.

          21. Consent to Jurisdiction

          The parties hereto each hereby irrevocably submit to the exclusive jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan, City of New York in any action or proceeding to enforce the provisions of this Letter, and waives the defense of inconvenient forum to the maintenance of any such action or proceeding.


11


          This Letter contains the formal terms and conditions of your award and accordingly should be retained in your files for future reference. The Company may require you to provide evidence of your acknowledgment of this Letter using such means of notification as may be communicated to you by the Company or its service provider.

 

 

 

 

Very truly yours,

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

By:

 

 

 


 

Name: William R. Gruver

 

Title: Compensation Committee Chair

 

 

 

AGREED TO AND ACCEPTED:

 

 

 

 

 


 

 

Daryl R. Otte

 

 

12


Exhibit 10.2

THESTREET.COM, INC.
AGREEMENT FOR GRANT
OF
STOCK OPTIONS
UNDER
2007 PERFORMANCE INCENTIVE PLAN

March 28, 2011

Daryl R. Otte
c/o TheStreet.com, Inc.
14 Wall Street
15 th Floor
New York, NY 10005

Dear Daryl:

          This letter (the “ Letter ) sets forth the terms and conditions of the stock option (“ Option ”) hereby awarded to you by TheStreet.com, Inc. (the “ Company ”), in accordance with the provisions of the Company’s 2007 Performance Incentive Plan (the “ Plan ”).

          This award is subject to the terms and conditions set forth in the Plan, any rules and regulations adopted by the Board of Directors of the Company (the “ Board ”) or the committee of the Board which administers the Plan (the “ Committee ”), and this Letter. The provisions of the Plan are hereby incorporated by reference and any term used in this Letter and not defined herein shall have the meaning set forth in the Plan. Unless otherwise indicated, section references contained in this Letter shall refer to the corresponding sections of this Letter.

          1. Option Grant

          You have been granted an Option to purchase 180,000 shares of the Company’s Common Stock (“ Common Stock ”) to the extent the Option is exercisable as set forth below. The Option may not be sold, transferred, assigned, pledged or otherwise encumbered by you, in whole or in part; provided that the foregoing shall not affect your right to name a beneficiary under Section 13 of the Plan. The Option may be exercised only by you, except that in the event of your death, the Option may be exercised (at any time prior to its expiration or termination as provided in Sections 8 and 11) by the executor or administrator of your estate or by a person who acquired the right to exercise your Option by will or pursuant to the laws of descent and distribution. Until such time as stock certificates for the shares of Common Stock represented by the purchase of all or portion of the Option have been delivered to you in accordance with Section 4, you shall have none of the rights of a stockholder with respect to the Common Stock with respect to such shares.

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          2. Option Exercise Price

          The price at which you may purchase the shares of Common Stock underlying the Option is $3.24 per share.

          3. Term of Option

          Your Option shall expire, to the extent that it has not previously terminated, on March 28, 2016. However, your Option may terminate prior to such expiration date as provided in Sections 8 and 11. Regardless of the provisions of Sections 5 or 8 or any other provision hereof, in no event can your Option be exercised after the expiration date set forth in this Section 3.

          4. Exercisability of Option

          Your Option will become exercisable with respect to the following number(s) of shares of Common Stock on the following date(s) as set forth below, provided that you are in the Service (as defined below) of the Company or one of its subsidiaries on such date and the Option has not been terminated in accordance with Sections 8 or 11:

 

 

 

 

Date

 

Number of Shares of Common Stock


 


 

 

 

 

April 1, 2012

 

45,000

 

 

 

 

 

The first calendar day of each month from May 1, 2012 to April 1, 2015, inclusive

 

3,750

 

For purposes hereof, you shall be considered to be in the “ Service ” of the Company or one of its subsidiaries if you are an employee of the Company (or one if its subsidiaries, as applicable) on the applicable vesting date.

          To the extent that your Option has become exercisable with respect to a number of shares of Common Stock, you may exercise the Option to purchase all or any portion of such shares of Common Stock at any time on or before the date the Option expires or terminates; provided that you may only purchase a whole number of shares of Common Stock.

          5. Accelerated Vesting in Certain Events

          Notwithstanding Section 4, upon the occurrence of any of the following events, the then-unvested portion of the Option shall become exercisable and may be exercised; provided that such portion of the Option only may be exercised within ninety (90) calendar days from the occurrence of such event (but in no event beyond the date set forth in Section 3): (i) the termination of your employment by the Company or any subsidiary thereof without Cause (as defined below) or by you with Good Reason (as defined below) prior to a Change of Control (as defined in the Plan) if such termination is related to the Change of Control; or (ii) a Change of Control, unless (A) either (x) the Company is the surviving corporation in the Change of Control

2


and the award reflected in this Letter is equitably adjusted pursuant to Section 4.4 of the Plan or (y) the award reflected in this Letter is assumed or replaced by a Successor (as defined below) and (B) the award as so adjusted, assumed or replaced (x) has substantially the same potential economic benefits and vesting terms as did the award immediately prior to the Change of Control and (y) provides that the award immediately shall become fully vested and exercisable upon the termination of your employment (by the Company or any subsidiary thereof or by a Successor or any affiliate thereof) without Cause or by you with Good Reason at any time (provided that such portion of the Option only may be exercised within ninety (90) calendar days from such termination (but in no event beyond the date set forth in Section 3)). If you are employed by a Successor or any affiliate thereof following a Change of Control, references in this Letter to the Company shall be understood to be references to the Successor or any such affiliate regarding matters related to the occurrence of non-occurrence of events from and after the date you become employed by the Successor or such affiliate.

          For purposes of this Letter, “ Cause ” shall be determined by the Committee in the exercise of its good faith judgment, in accordance with the following guidelines: (i) your willful misconduct or gross negligence in the performance of your obligations, duties and responsibilities as CEO (including those as an employee of the Company set forth in the Company’s Code of Business Conduct and Ethics dated June 1, 2006, as same may be amended from time to time provided such amendment affects all executive officers of the Company), (ii) your dishonesty or misappropriation, in either case that is willful and material, relating to the Company or any of its funds, properties, or other assets, (iii) your inexcusable repeated or prolonged absence from work (other than as a result of, or in connection with, a Disability), (iv) any unauthorized disclosure by you of Confidential Information or proprietary information of the Company in violation of Section 12(d) which is reasonably likely to result in material harm to the Company, (v) your conviction of a felony (including entry of a guilty or nolo contender plea) involving fraud, dishonesty, or moral turpitude, (vi) a violation of federal or state securities laws, or (vii) the failure by you to attempt to perform faithfully your duties and responsibilities as CEO, or other material breach by you of this Letter, provided any such failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) is not cured, to the extent cure is possible, by you within thirty (30) days after written notice thereof from the Company to you; provided, however, that no failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) shall constitute Cause unless (x) the Company first gives you written notice of its intention to terminate your employment for Cause and the grounds of such termination no fewer than ten (10) days prior to the date of termination; and (y) you are provided an opportunity to appear before the Board, with or without legal representation at your election to present arguments on your own behalf; and (z) if you elect to so appear, such failure or breach is not cured, to the extent cure is possible, within thirty (30) days after written notice from the Company to you that, following such appearance, the Board has determined in good faith that Cause exists and has not, following the initial notice from the Company, been cured; provided further, however, that notwithstanding anything to the contrary in this Letter and subject to the other terms of this proviso, the Company may take any and all actions, including without limitation suspension (but not without pay), it deems appropriate with respect to you and your duties at the Company pending such appearance and subsequent to such appearance during which such failure or breach has not been cured. No act or failure to act on your part will be considered “willful” unless done,

3


or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of the Company.

          It shall not be a violation of your employment with the Company, this Letter or any agreement to which you are, or may become, a party with the Company for you to, and you may continue to, serve as a partner and officer of Montefiore Partners and, on their behalf, administer its winding down.

          For purposes of this Letter, “ Good Reason ” shall have the meaning ascribed to such term in Treasury Regulation Section 1.409A-1(n)(2)(ii), as determined in good faith by the Committee.

          For purposes of this Letter, “ Disability ” shall mean physical or mental incapacity of a nature which prevents you, in the good faith judgment of the Committee, from performing your duties and responsibilities as CEO for a period of 90 consecutive days or 150 days during any year, with each year under this Letter commencing on each anniversary of the date hereof.

          6. Manner of Exercise

          You may exercise your Option by giving notice to the Company (or to such service provider as the Company may designate), following such procedures as may be communicated to you from time to time.

          The shares of Common Stock represented by the exercise of your Option may consist of authorized but unissued shares or treasury shares of the Company, as determined from time to time by the Committee.

          7. Satisfaction of Option Exercise Price

          The Option may be exercised by payment of the option exercise price in cash (including check, bank draft, money order, or wire transfer). In addition, your Option may be exercised using such broker cashless exercise procedure or other procedure as the Company may establish from time to time.

          8. Termination of Service

          (a) General. If your Service terminates for any reason other than for Cause, the Option will terminate ninety (90) calendar days after such termination of Service. Following the termination of your Service, no additional portions of the Option will become exercisable, and the Option will be exercisable only to the extent exercisable on the date of such termination of Service. If your Service terminates for Cause, the Option shall be immediately terminated and may not be exercised.

          (b) Adjustments by the Committee. The Committee may, in its discretion, exercised before or after your termination of Service, declare all or any portion of the Option immediately exercisable and/or permit all or any part of the Option to remain exercisable for such period

4


designated by it after the time when the Option would have otherwise terminated as provided in Section 8(a), but not beyond the expiration date of your Option as set forth in Section 3 above.

          (c) Committee Determinations. The Committee shall have absolute discretion to determine the date and circumstances of the termination of your Service, and its determination shall be final, conclusive and binding upon you.

          9. Restrictions on Option Exercise; Delivery of Shares

          (a) Even though your Option may be otherwise exercisable, your right to exercise the Option will be suspended if the Committee determines that your exercise of the Option would violate applicable laws or regulations. The suspension will last until the exercise would be lawful. Any such suspension will not extend the term of your Option.

          (b) Even though your Option may be otherwise exercisable, the Committee may refuse to permit such exercise if it determines, in its discretion, that any of the following circumstances is present:

 

 

 

 

(i)

the shares of Common Stock to be acquired upon such exercise are required to be registered or qualified under any federal or state securities law, or to be listed on any securities exchange or quotation system, and such registration, qualification, or listing has not occurred;

 

 

 

 

(ii)

the consent or approval of any government regulatory body is required and has not been obtained;

 

 

 

 

(iii)

the satisfaction of withholding tax is required and has not occurred;

 

 

 

 

(iv)

representations by you or other information is determined by counsel for the Company to be necessary or desirable in order to comply with any federal or state securities laws or regulations, and you have not provided such representations or information; or

 

 

 

 

(v)

an agreement by you with respect to the disposition of shares of Common Stock to be acquired upon exercise of your Option is determined by the Committee to be necessary or desirable in order to comply with any federal or state securities laws or regulations, or is required by the terms of this Letter, and you have not executed such agreement.

          (c) Shares of Common Stock to be delivered to you in connection with any exercise of the Option shall be delivered to you as soon as practicable and, at the Company’s election, the Company may effect such delivery by causing such number of shares of Common Stock to be deposited via DWAC into a brokerage account in your name. Common Stock delivered upon the exercise of the Option will be fully transferable (subject to any applicable securities law restrictions) and not subject to forfeiture (other than as set forth in Section 11), and will entitle the holder to all rights of a stockholder of the Company.

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          (d) The Company will use reasonable commercial efforts to cause its Registration Statement on Form S-8 (or successor form) filed with the Securities and Exchange Commission covering shares subject to the Plan to remain effective and current until such times as all of the shares of Common Stock underlying your Option are either delivered hereunder or the Option has expired or been terminated pursuant to the terms of this Letter , until three (3) months after you cease being an “affiliate” of the Company, to maintain a resale prospectus thereunder (or otherwise register under the Securities Act of 1933, as amended) the Common Stock underlying your Option.

          10. Income Tax Withholding

          In connection with the exercise of your Option, you will be required to pay, pursuant to such arrangements as the Company may establish from time to time, any applicable federal, state and local withholding tax liability. If you fail to satisfy your withholding obligation in a time and manner satisfactory to the Committee, the Company shall have the right to withhold the required amount from your salary or other amounts payable to you.

          11. Additional Termination Events and Claw-Back

          Notwithstanding anything else in this Letter, the unexercised portion of the Option shall be terminated (regardless of the extent to which it is exercisable) if any one of the following occurs: (i) you engage in Competitive Activity (as defined below) with the Company or any of its subsidiaries during your employment by the Company or any of its subsidiaries or within two (2) years after your service as CEO and your Board membership terminates; or (ii) you breach any of the Restrictive Covenants set out in Section 12 within two (2) years after your cessation of employment with the Company or any subsidiary.

          The Company reserves the right (as provided below) to claw-back shares of Common Stock delivered under this Letter pursuant to each exercise of the Option by you if you engage in Competitive Activity or violate any of the Restrictive Covenants within two (2) years after the delivery of such shares of Common Stock. If the Committee determines, in its good faith discretion, that all or some portion of the shares of Common Stock delivered to you will be clawed-back, then you shall be required to repay to the Company the Repayment Amount (as defined below) with respect to such shares of Common Stock. You may satisfy the payment obligation set forth in the preceding sentence by paying the Company cash, by delivering to the Company shares of Common Stock, or by remitting to the Company a combination of cash and shares of Common Stock, such that the Fair Market Value (measured as of the day before your delivery to the Company of shares of Common Stock) of any shares of Common Stock you deliver to the Company, plus the amount of any cash you pay to the Company, equals the Repayment Amount. The “ Repayment Amount ” with respect to the shares of Common Stock delivered to you upon any exercise of the Option shall mean the lesser of the Exercise Date Spread Value (as defined below) with respect to such exercise of the Option and the Delivery Date Spread Value (as defined below) with respect to such exercise of the Option, in each case reduced by the amount of taxes paid by you with respect to such exercise of the Option; provided that neither the Exercise Date Spread Value nor the Delivery Date Spread Value shall be less than zero. With respect to each exercise you made of the Option, the “ Exercise Date Spread

6


Value ” is the amount, if any, by which the Fair Market Value (measured as of the date of exercise) of the number of shares of Common Stock underlying the Option with respect to which the Option was exercised on such date, exceeded the aggregate option exercise price for such shares. With respect to each exercise you made of the Option, the “ Delivery Date Spread Value ” is the amount, if any, by which the Fair Market Value (measured as of the day before you remit the Repayment Amount to the Company) of the number of shares of Common Stock underlying the Option with respect to which the Option was exercised, exceeded the aggregate option exercise price for such shares. In addition to any other remedy available to the Company under applicable law, the Company shall have the right to offset any other amounts payable to you by the amount of any required repayment by you which has not been repaid.

          For purposes of this Letter, “ Competitive Activity ” means your service as a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or you permit your name to be used in connection with the activities of, any other business or organization anywhere in the United States, or in any other geographic area in which the Company or any of its subsidiaries operates or with respect to which the Company provides financial news and commentary coverage (or from which such other business or organization provides financial news and commentary coverage of the United States), which engages in a business that competes with any business in which the Company or any subsidiary is engaged (a “ Competing Business ”); provided, however, that, notwithstanding the foregoing, it shall not be a Competitive Activity for you to (i) become the registered or beneficial owner of up to three percent (3%) of any class of capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that you do not otherwise participate in the business of such corporation or (ii) work in a non-competitive business of a company which is carrying on a Competing Business, the revenues of which represent less than twenty percent (20%) of the consolidated revenues of that company, or, as a result thereof, owning compensatory equity in that company.

          For purposes of this Letter, “ Fair Market Value ” of a share of Common Stock on any date shall be (i) if the principal market for the Common Stock is a national securities exchange, the closing sales price per share of the Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by such exchange or on a consolidated tape reflecting transactions on such exchange, or (ii) if the principal market for the Common Stock is not a national securities exchange, the closing average of the highest bid and lowest asked prices per share of Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by the market upon which the Common Stock is quoted, or an independent dealer in the Common Stock, as determined by the Company in good faith; provided, however, that if clauses (i) and (ii) are all inapplicable, or if no trades have been made and no quotes are available for such day, the Fair Market Value of the Common Stock shall be determined by the Committee in good faith by any method consistent with applicable regulations adopted by the United States Treasury Department relating to stock options or stock valuation.

7


          12. Restrictive Covenants

 

 

 

 

a.

Non-Solicitation of Employees

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit for employment or hire, in any business enterprise or activity, any employee of the Company or any subsidiary who was employed by the Company or a subsidiary during your period of employment by the Company or a subsidiary provided that (a) the foregoing shall not be violated by any general advertising not targeted at any Company or subsidiary employees nor by you serving as a reference upon request, and (b) you may solicit and hire any one or more former employees of the Company or its subsidiaries who had ceased being such an employee for a period of at least six (6) months prior to any such solicitation or hiring.

 

 

 

 

b.

Non-Solicitation of Clients and Vendors

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit, in any business enterprise or activity, any client, customer, licensee, licensor, third-party service provider or vendor (a “ Business Relation ”) of the Company or any subsidiary who was a Business Relation of the Company or any subsidiary during your period of employment by the Company or any subsidiary to (i) cease being a Business Relation of the Company or any subsidiary or (ii) become a Business Relation of a Competing Business unless (without you having solicited such third party to cease such relationship) such third party ceased being a Business Relation of the Company or any subsidiary for a period of at least six (6) months prior to such solicitation.

 

 

 

 

c.

Non-Disparagement

 

 

 

 

 

During your employment by the Company or any subsidiary and indefinitely thereafter, neither party shall make any statements, written or oral, to any third party which disparage, criticize, discredit or otherwise operate to the detriment of you or the Company, its present or former officers, shareholders, directors and employees and their respective business reputation and/or goodwill, provided, however, that nothing in this Section 12(c) shall prohibit either party from (i) making any truthful statements or disclosures required by applicable law regulation or (ii) taking any action to enforce its rights under this Letter or any other agreement in effect between the parties.

 

 

 

 

d.

Confidentiality

8



 

 

 

 

1)

During your employment by the Company or any subsidiary and indefinitely thereafter, you shall keep secret and retain in strictest confidence, any and all Confidential Information relating to the Company, except where your disclosure or use of such Confidential Information is in furtherance of the performance by you of your duties to the Company and not for personal benefit or the benefit of any interest adverse to the Company’s interests. For purposes of this Letter, “ Confidential Information ” shall mean any information including without limitation plans, specifications, models, samples, data, customer lists and customer information, computer programs and documentation, and other technical and/or business information, in whatever form, tangible or intangible, that can be communicated by whatever means available at such time, that relates to the Company’s current business or future business contemplated during your employment, products, services and development, or information received from others that the Company is obligated to treat as confidential or proprietary (provided that such confidential information shall not include any information that (a) has become generally available to the public or is generally known in the relevant trade or industry other than as a result of an improper disclosure by you, or (b) was available to or became known to you prior to the disclosure of such information on a non-confidential basis without breach of any duty of confidentiality to the Company), and you shall not disclose such confidential information to any Person (as defined below) other than the Company, except with the prior written consent of the Company, as may be required by law or court or administrative order (in which event you shall so notify the Company as promptly as practicable), or in performance of your duties on behalf of the Company. Further, this Section 12(d) shall not prevent you from disclosing Confidential Information in connection with any litigation, arbitration or mediation to enforce this Letter or other agreement between the parties, provided such disclosure is necessary for you to assert any claim or defense in such proceeding.

 

 

 

 

 

For purposes of this Letter, “ Person ” shall mean an individual, corporation, partnership, limited liability company, limited liability partnership, association, trust or other unincorporated organization or entity.

 

 

 

 

2)

Upon your termination of employment for any reason, you shall return to the Company all copies, reproductions and summaries of Confidential Information in your possession and use reasonable efforts to erase the same from all media in your possession, and, if the Company so requests, shall certify in writing that you have done so, except that you may retain such copies, reproductions and summaries during any period of litigation, arbitration or mediation referred to in Section 12(d)(1). All Confidential Information is and shall remain the property of the Company (or, in the case of information that the Company receives from a third party which it is obligated to treat as confidential, then the property of such third party); provided, you shall be entitled to retain copies of (i) information showing your compensation or relating to reimbursement of expenses, (ii) information that is required for the preparation of your personal income tax

9



 

 

 

 

 

return, (iii) documents provided to you in your capacity as a participant in any employee benefit plan, policy or program of the Company and (iv) this Letter and any other agreement by and between you and the Company with regard to your employment or termination thereof.

 

 

 

 

3)

All Intellectual Property (as hereinafter defined) and Technology (as hereinafter defined) created, developed, obtained or conceived of by you during your employment, and all business opportunities presented to you during your employment, shall be owned by and belong exclusively to the Company, provided that they reasonably relate to any of the business of the Company on the date of such creation, development, obtaining or conception, and you shall (i) promptly disclose any such Intellectual Property, Technology or business opportunity to the Company, and (ii) execute and deliver to the Company, without additional compensation, such instruments as the Company may require from time to time to evidence its ownership of any such Intellectual Property, Technology or business opportunity. For purposes of this Letter, (x) the term “ Intellectual Property ” means and includes any and all trademarks, trade names, service marks, service names, patents, copyrights, and applications therefor, and (y) the term “ Technology ” means and includes any and all trade secrets, proprietary information, invention, discoveries, know-how, formulae, processes and procedures.

          The parties acknowledge that the restrictions contained in this Section 12 are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions could cause substantial injury to the Company and that the Company would not have entered into this Letter, without receiving the additional consideration offered by you in binding yourself to any of these restrictions. In the event of a breach or threatened breach by you of any of these restrictions, the Company shall be entitled to apply to any court of competent jurisdiction for an injunction restraining you from such breach or threatened breach; provided, however, that the right to apply for an injunction shall not be construed as prohibiting the Company from pursuing any other available remedies for such breach or threatened breach.

          13. No Guarantee of Continuation of Service

          This grant of this Option does not constitute an assurance of continued Service for any period or in any way interfere with the Company’s right to terminate your Service.

          14. Administration

          The Committee has the sole power to exercise its good faith judgment to interpret the Plan and this Letter and to act upon all matters relating this grant to the extent provided in the Plan and not inconsistent with the terms of this Letter. Any decision, determination, interpretation, or other action taken pursuant to the provisions of the Plan and this Letter by the Committee shall be final, binding, and conclusive.

10


          15. Section 409A

          Notwithstanding any provision of the Plan or this grant to the contrary, if you are a “specified employee” as determined by the Board or the Committee, in accordance with Section 409A of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder (“ Section 409A ”), you shall not be entitled to any payments of amounts which constitute deferred compensation within the meaning of Section 409A upon a termination of your employment until the earlier of (i) the date which is six (6) months after your termination of employment for any reason other than death (except that during such six (6) month period you may receive total payments from the Company that do not exceed the amount specified in Treas. Reg. Section 1.409A-1(b)(9) or that constitute a short-term deferral within the meaning of Section 409A), or (ii) the date of your death.

          Notwithstanding any provision of the Plan or this Letter to the contrary, to the extent any compensation or award which constitutes deferred compensation within the meaning of Section 409A shall vest upon the occurrence of a Change of Control and such Change of Control does not constitute a “change in the ownership or effective control” or a “change in the ownership or a substantial portion of the assets” of the Company within the meaning of Section 409A, then notwithstanding such vesting, payment will be made to you on the earliest of (i) your “separation from service” with the Company (determined in accordance with Section 409A) or, if you are a specified employee within the meaning of Section 409A, such later date as provided in the preceding paragraph, (ii) the date payment otherwise would have been made, or (iii) the date of your death.

          If any provision of this Agreement or of any award of compensation, including equity compensation or benefits would cause you to incur any additional tax or interest under Section 409A, the parties agree to negotiate in good faith to reform such provision in such manner as to maintain, to the maximum extent practicable, the original intent and economic terms of the applicable provision without violating the provisions of Section 409A.

          16. Amendment

          The Committee may from time to time amend the terms of this grant in accordance with the terms of the Plan in effect at the time of such amendment, but no amendment which is unfavorable to you can be made without your written consent.

          The Plan is of unlimited duration, but may be amended, terminated or discontinued by the Board of Directors of the Company at any time. However, no amendment, termination or discontinuance of the Plan will unfavorably affect this grant.

          Notwithstanding the foregoing, the Committee expressly reserves the right to amend the terms of the Plan and this grant with your consent which shall not be unreasonably withheld to the extent it determines that such amendment is necessary or desirable for an exemption from or compliance with the distribution, acceleration and election requirements of Section 409A of the Code.

11


          17. Notices

          Unless otherwise provided herein, any notice, exercise of rights or other communication required or permitted to be given hereunder shall be in writing and shall be given by overnight delivery service such as Federal Express or personal delivery against receipt, or mailed by registered or certified mail (return receipt requested), to the party to whom it is given at, in the case of the Company, Compensation Committee Chair, TheStreet.com, Inc., 14 Wall Street, 15 th Floor, New York, NY 10005, or, in the case of Otte, at his principal residence address as then reflected on the records of the Company or such other address as such party may hereafter specify by notice to the other party hereto. Any notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by telecopy or like transmission or on the next business day after sent by overnight delivery service for next business day delivery or on the fifth business day after sent by registered or certified mail.

          18. Representations

          The Company hereby represents and warrants that the execution and delivery of this Letter and the performance by the Company of its obligations hereunder have been duly authorized by all necessary corporate action of the Company.

          19. Amendment

          This Letter may be amended only by a written agreement signed by the parties hereto.

          20. Binding Effect

          This Letter shall be binding upon and inure to the benefit of the Company and any Successor. As used herein, a “ Successor ” shall mean any successor organization that succeeds to the Company (or to any direct or indirect successor) by merger or consolidation or operation of law, or by acquisition of all or substantially all of the assets of the Company (or of any direct or indirect successor).

          21. Governing Law

          This Letter shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts to be performed wholly within the state and without regard to its conflict of laws provisions that would defer to the laws of another jurisdiction, except to the extent the laws of the State of Delaware mandatorily govern.

          22. Severability

          If any provision of this Letter shall for any reason be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Moreover, if any one or more of the provisions of this Letter shall be held to be excessively broad as to duration, activity or subject, such provisions

12


shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowable by applicable law. To the extent permitted by applicable law, each party hereto waives any provision of law that renders any provision of this Letter invalid, illegal or unenforceable in any way.

          23. Execution in Counterparts

          This Letter may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument.

          24. Entire Agreement

          This Letter, together with (i) the Change of Control and Severance Agreement between the Company and you, as amended as of the same date as this Letter and (ii) award agreements entered into by and between Otte and the Company with respect to outstanding incentive awards and incentive awards granted on or before the date hereof, sets forth the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.

          25. Titles and Headings

          Titles and headings to Sections herein are for purposes of reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of any of the provisions of this Letter.

          26. Consent to Jurisdiction

          The parties hereto each hereby irrevocably submit to the exclusive jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan, City of New York in any action or proceeding to enforce the provisions of this Letter, and waives the defense of inconvenient forum to the maintenance of any such action or proceeding.


13


          This Letter contains the formal terms and conditions of your award and accordingly should be retained in your files for future reference. The Company may require you to provide evidence of your acknowledgment of this Letter using such means of notification as may be communicated to you by the Company or its service provider.

 

 

 

 

Very truly yours,

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

By: 

 

 

 


 

Name: William R. Gruver

 

Title: Compensation Committee Chair


 

 

AGREED TO AND ACCEPTED:

 

 

 


 

Daryl R. Otte

 

14


Exhibit 10.3

AMENDMENT NO. 1 to CHANGE OF CONTROL AND SEVERANCE AGREEMENT

          This Amendment No. 1 (the “ Amendment ”) to the Change of Control and Severance Agreement dated as of June 9, 2009 (the “ Agreement ”) between TheStreet.com, Inc., a Delaware corporation (the “ Company ”) and Daryl R. Otte (“ Otte ”) is entered into by the parties as of March 28, 2011.

          Pursuant to this Amendment, the parties hereby agree to amend the Agreement, with such amendments becoming effective May 16, 2011 (which date, the parties agree, is the second anniversary of Otte’s assumption of the full-time duties and responsibilities of chief executive officer of the Company), as follows:

 

 

 

 

1.

The title of the Agreement hereby is amended to read “Severance Agreement.”

 

 

 

 

2.

Section 1(a) of the Agreement hereby is deleted in its entirety and replaced with the following:

 

 

 

 

 

“(a) In the event that the Company (or Successor (as defined below), if applicable) terminates Otte’s employment with the Company (or Successor, as applicable) without Cause or Otte voluntarily terminates his employment with the Company (or Successor, if applicable) for Good Reason, in either case on or before June 9, 2014, then the Company (or Successor, if applicable) shall (i) pay Otte an amount equal to the sum of (x) twelve (12) months of Otte’s base salary (at the annual rate in effect immediately prior to termination, excluding any reduction that would constitute grounds for Otte to terminate his employment with Good Reason), and (y) Otte’s target bonus for the year of termination (determined as if performance were achieved at a level that triggers 100% of the target bonus); and (ii) pay on Otte’s behalf (for a period of twelve (12) months or such lesser period as Otte may elect) the full cost of premiums for continuation of any benefits that Otte is eligible under COBRA to elect to (and does elect to) continue.”

 

 

 

 

3.

Section 1(b) of the Agreement hereby is deleted in its entirety and replaced with the following:

 

 

 

 

 

“(b) For purposes of this Agreement, (i) “ Cause ” shall have the same meaning ascribed to such term in the Letter; (ii) “ Good Reason ” shall have the same meaning ascribed to such term in the Letter; and (iii) “ Successor ” shall mean any person or entity that acquires all or substantially all of the Company’s assets or into which the Company is merged or combined with the Company ceasing to exist (or the successor to any such entity, whether by merger, assignment or otherwise).”

 

 

 

 

4.

Section 1(c) of the Agreement hereby is deleted in its entirety.

1



 

 

 

 

5.

Section 1(d) of the Agreement hereby is amended to replace the phrase “Section 1(a) or Section 1(b)” with the phrase “Section 1(a)(i)”.

 

 

 

 

6.

The first sentence of Section 2(a) of the Agreement hereby is deleted in its entirety and replaced with the following:

 

 

 

 

 

“If any payment to or in respect of Otte by the Company or any affiliate, whether pursuant to Section 1(a) of this Agreement or otherwise (a “Payment”), is determined to be a “parachute payment,” as defined in Section 280G(b)(2) of the Code (a “Parachute Payment”), and also to be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Otte with respect to such excise tax (such excise tax, together with any such interest and penalties, being herein collectively referred to as the “Excise Tax”), then, in partial consideration for Otte’s agreement to abide by the restrictions and covenants set forth in Section 6 (regarding non-competition), Section 7(a)(non-solicitation of employees) and Section 7(b)(non-solicit of clients and vendors) in the Letter, Otte shall be entitled to receive an additional payment from the Company (the “Gross-Up Payment”) in an amount such that the net amount of such additional payment retained by Otte, after payment of all federal, state and local income and employment and Excise Taxes imposed on the Gross-Up Payment, shall be equal to the Excise Tax imposed on the Payment.

 

 

 

 

7.

Section 13 of the Agreement hereby is amended to delete the phrase “, except as specified in Section 1(c),”.

 

 

 

 

8.

Section 1(a) of Exhibit A to the Agreement hereby is amended to add the following to the end of the last sentence: “, or (v) any rights under or in respect of any of (i) the agreements dated as of June 9, 2009 and March 28, 2011, respectively, related to the grants of restricted stock units, (ii) the agreement dated as of March 28, 2011 related to the grant of stock options or (iii) any written agreements that may be executed by the parties after March 28, 2011 (collectively, the “Applicable Agreements”).”

 

 

 

 

9.

Section 1(c) of Exhibit A to the Agreement hereby is amended to add the following to the end of the last sentence: “ or any other Applicable Agreements.”

 

 

 

 

10.

Except as expressly set forth above, the Agreement remains unmodified and in full force and effect.

 

 

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

THESTREET.COM, INC.

 

 

 

 

By:

 

 

 

 


 


 

 

 

 

Name:

 

 

Daryl Otte

 


 

 

 

 

 

 

Title:

 

 

 

 


 

 

2


Exhibit 10.4

THESTREET.COM, INC.
AGREEMENT FOR GRANT
OF
RESTRICTED STOCK UNITS
UNDER
2007 PERFORMANCE INCENTIVE PLAN

March 28, 2011

Thomas Etergino
c/o TheStreet.com, Inc.
14 Wall Street
15 th Floor
New York, NY 10005

Dear Tom:

          This letter (the “ Letter ) sets forth the terms and conditions of the grant of Restricted Stock Units (“ RSUs ”) hereby awarded to you by TheStreet.com, Inc. (the “ Company ”), in accordance with the provisions of the Company’s 2007 Performance Incentive Plan (the “ Plan ”).

          This award is subject to the terms and conditions set forth in the Plan, any rules and regulations adopted by the Board of Directors of the Company (the “ Board ”) or the committee of the Board which administers the Plan (the “ Committee ”) that are not inconsistent with the provisions of this Letter. Any term used in this Letter and not defined herein shall have the meaning set forth in the Plan.

          1. Grant of RSUs

          You have been granted 25,000 RSUs. Each RSU represents the right to receive one share of the Company’s Common Stock (“ Common Stock ”) on the applicable vesting date for such RSU. No RSU may be sold, transferred, assigned, pledged or otherwise encumbered by you; provided that the foregoing shall not affect your right to name a beneficiary under Section 13 of the Plan. Until such time as stock certificates for the shares of Common Stock represented by the RSUs have been delivered to you in accordance with Section 4 below, you shall have none of the rights of a stockholder with respect to the Common Stock.

          However, this grant includes the grant of dividend equivalents with respect to your RSUs. The Company will maintain a bookkeeping account to which it will credit, whenever dividends (other than stock dividends for which an adjustment is made to the number of shares of Common Stock subject to the RSUs pursuant to Section 4.4 of the Plan in the same percentage as paid on outstanding Common Stock) or distributions are paid on the Common Stock, an amount equal to the amount of such dividend or distribution paid on a share of Common Stock for each of your then-outstanding RSUs covered by this Letter. The accumulated dividend equivalents will vest

1


on the applicable vesting date for the RSU with respect to which such dividend equivalents were credited, and will be paid in cash (or, if the dividend or distribution is paid in kind, in the same kind) at the time a stock certificate evidencing the shares represented by such vested RSU is delivered to you.

          2. Vesting of RSUs

          Your RSUs will become vested (and paid in accordance with Section 4 below) with respect to the following number(s) of shares of Common Stock on the following date(s) as set forth below, provided that you are in the Service (as defined below) of the Company or one of its subsidiaries on such date and the RSUs have not been forfeited in accordance with Sections 3 and 6:

 

 

 

 

Date

 

Number of Shares of Common Stock


 


 

 

 

April 1, 2012

 

6,250

 

 

 

 

 

The first calendar day of each month from May 1, 2012 to March 1, 2015, inclusive

 

521

 

 

 

 

 

April 1, 2015

 

515

 

For purposes hereof, you shall be considered to be in the “ Service ” of the Company or one of its subsidiaries if you are an employee of the Company (or one if its subsidiaries, as applicable) on the applicable vesting date. Except as provided in Sections 3 and 6 below, if your Service terminates for any reason, the RSUs granted to you which have not vested shall be forfeited upon such termination of Service.

          3. Accelerated Vesting in Certain Events

          Notwithstanding Section 2 of this Letter, any unvested RSUs immediately shall become fully vested and paid in accordance with Section 4 below upon the earliest to occur of either of the following: (i) the termination of your employment by the Company or any subsidiary thereof without Cause (as defined below) or by you with Good Reason (as defined below) prior to a Change of Control (as defined in the Plan) if such termination is related to the Change of Control; or (ii) a Change of Control, unless (A) either (x) the Company is the surviving corporation in the Change of Control and the award reflected in this Letter is equitably adjusted pursuant to Section 4.4 of the Plan or (y) the award reflected in this Letter is assumed or replaced by a Successor (as defined below) and (B) the award as so adjusted, assumed or replaced (x) has substantially the same potential economic benefits and vesting terms as did the award immediately prior to the Change of Control and (y) provides that the award immediately shall become fully vested and paid upon the termination of your employment (by the Company or any subsidiary thereof or by a Successor or any affiliate thereof) without Cause or by you with Good Reason at any time. If you are employed by a Successor or any affiliate thereof following a Change of Control, references in this Letter to the Company shall be understood to be references

2


to the Successor or any such affiliate regarding matters related to the occurrence of non-occurrence of events from and after the date you become employed by the Successor or such affiliate.

          You or your legal representatives shall deliver to the Company a written release, substantially in the form attached hereto as Exhibit A, and the time for revocation of such release shall have expired, no later than thirty (30) days following termination of your employment pursuant to this Section 3; provided, however, that such release shall be conditioned on the receipt from the Company of a release of you, provided that such release from the Company shall not be such a condition and shall be null and void and of no force or effect in the event of any act or omission by you that constitutes Cause or that could be a crime of any kind. If you fail to deliver such release as provided in the preceding sentence, then notwithstanding the foregoing, any RSUs granted pursuant to this Letter that were unvested at the effective date of the termination of your employment pursuant to this Section 3, shall be forfeited without payment.

          For purposes of this Letter, “ Cause ” shall be determined by the Committee in the exercise of its good faith judgment, in accordance with the following guidelines: (i) your willful misconduct or gross negligence in the performance of your obligations, duties and responsibilities as Executive Vice President, Chief Financial Officer (including those as an employee of the Company set forth in the Company’s Code of Business Conduct and Ethics dated June 1, 2006, as same may be amended from time to time provided such amendment affects all executive officers of the Company), (ii) your dishonesty or misappropriation, in either case that is willful and material, relating to the Company or any of its funds, properties, or other assets, (iii) your inexcusable repeated or prolonged absence from work (other than as a result of, or in connection with, a Disability), (iv) any unauthorized disclosure by you of Confidential Information or proprietary information of the Company in violation of Section 7(d) which is reasonably likely to result in material harm to the Company, (v) your conviction of a felony (including entry of a guilty or nolo contender plea) involving fraud, dishonesty, or moral turpitude, (vi) a violation of federal or state securities laws, or (vii) the failure by you to attempt to perform faithfully your duties and responsibilities as Executive Vice President, Chief Financial Officer, or other material breach by you of this Letter, provided any such failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) is not cured, to the extent cure is possible, by you within thirty (30) days after written notice thereof from the Company to you; provided, however, that no failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) shall constitute Cause unless (x) the Company first gives you written notice of its intention to terminate your employment for Cause and the grounds of such termination no fewer than ten (10) days prior to the date of termination; and (y) you are provided an opportunity to appear before the Board, with or without legal representation at your election to present arguments on your own behalf; and (z) if you elect to so appear, such failure or breach is not cured, to the extent cure is possible, within thirty (30) days after written notice from the Company to you that, following such appearance, the Board has determined in good faith that Cause exists and has not, following the initial notice from the Company, been cured; provided further, however, that notwithstanding anything to the contrary in this Letter and subject to the other terms of this proviso, the Company may take any and all actions, including without limitation suspension (but not without pay), it deems appropriate with respect to you and your duties at the Company

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pending such appearance and subsequent to such appearance during which such failure or breach has not been cured. No act or failure to act on your part will be considered “willful” unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of the Company.

          For purposes of this Letter, “ Good Reason ” shall have the meaning ascribed to such term in Treasury Regulation Section 1.409A-1(n)(2)(ii), as determined in good faith by the Committee.

          For purposes of this Letter, “ Disability ” shall mean physical or mental incapacity of a nature which prevents you, in the good faith judgment of the Committee, from performing your duties and responsibilities as Executive Vice President, Chief Financial Officer for a period of 90 consecutive days or 150 days during any year, with each year under this Letter commencing on each anniversary of the date hereof.

          4. Delivery of Common Stock

          Upon the vesting of your RSUs pursuant to Sections 2 or 3 above, a certificate for the shares of Common Stock represented by your vested RSUs shall be registered in your name and delivered to you as soon as practicable, but no later than thirty (30) days, after each of the vesting dates set forth in Sections 2 and 3. At the Company’s election, the Company may cause there to be deposited, into a brokerage account in your name, the number of shares represented by your vested RSU, via DWAC, within the time frame provided in the preceding sentence. Common Stock delivered upon the vesting of your RSUs will be fully transferable (subject to any applicable securities law restrictions) and not subject to forfeiture (other than as set forth in Section 6), and will entitle the holder to all rights of a stockholder of the Company.

          The Company will use reasonable commercial efforts to cause its Registration Statement on Form S-8 (or successor form) filed with the Securities and Exchange Commission covering shares subject to the Plan to remain effective and current until such times as all of the shares of Common Stock underlying your RSUs are either delivered hereunder or forfeited under Section 6 and, until three (3) months after you cease being an “affiliate” of the Company, to maintain a resale prospectus thereunder (or otherwise register under the Securities Act of 1933, as amended) the Common Stock underlying your RSUs.

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          5. Income Tax Withholding

          You will be required to pay, pursuant to such arrangements as the Company may establish from time to time, any applicable federal, state and local withholding tax liability at the time that the value of the RSUs and/or related dividend equivalents becomes includable in your income. this regard, you will have the right to elect to have the minimum amount of any required tax withholding with respect to the vesting of RSUs satisfied by having the Company withhold a number of shares of Common Stock otherwise deliverable to you in connection with the vested RSUs having a Fair Market Value equal to such withholding tax liability.

          For purposes of this Letter, “ Fair Market Value ” of a share of Common Stock on any date shall be (i) if the principal market for the Common Stock is a national securities exchange, the closing sales price per share of the Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by such exchange or on a consolidated tape reflecting transactions on such exchange, or (ii) if the principal market for the Common Stock is not a national securities exchange, the closing average of the highest bid and lowest asked prices per share of Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by the market upon which the Common Stock is quoted, or an independent dealer in the Common Stock, as determined by the Company in good faith; provided, however, that if clauses (i) and (ii) are all inapplicable, or if no trades have been made and no quotes are available for such day, the Fair Market Value of the Common Stock shall be determined by the Committee in good faith by any method consistent with applicable regulations adopted by the United States Treasury Department relating to stock options or stock valuation.

          6. Forfeiture Events and Claw-Back

          Notwithstanding anything else in this Letter, all RSUs that have not been paid to you by delivery (in the case of your voluntary termination without Good Reason, that have not been vested rather than have not been delivered) of the underlying shares of Common Stock as required by Section 4 prior to April 1, 2015 shall be forfeited without payment (regardless of the vested status of the RSUs) if any one of the following occurs prior to delivery as required by Section 4 (vesting, in the case of your voluntary termination without Good Reason) of the shares of Common Stock underlying the RSUs: (i) the Company involuntarily terminates your employment as Executive Vice President, Chief Financial Officer for Cause; (ii) you voluntarily terminate your employment as Executive Vice President, Chief Financial Officer without Good Reason prior to April 1, 2015; (iii) you engage in Competitive Activity (as defined below) with the Company or any of its subsidiaries during your employment by the Company or any of its subsidiaries or within two (2) years after your service as Executive Vice President, Chief Financial Officer terminates; or (iv) you breach any of the Restrictive Covenants set out in Section 7 within two (2) years after your cessation of employment with the Company or any subsidiary. The Company reserves the right (as provided below) to claw-back shares of Common Stock delivered under this Letter if you engage in Competitive Activity or violate any of the Restrictive Covenants within two (2) years after the delivery (vesting in the case of your voluntary termination without Good Reason) of such shares of Common Stock. If the Committee determines, in its good faith discretion, that all or some portion of the shares of

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Common Stock delivered to you will be clawed-back, then you shall be required to repay to the Company an equal number of shares of Common Stock to that so delivered to you or, at your option, cash equal to the Fair Market Value at the date of delivery to you of such shares of Common Stock or a combination of shares of Common Stock having a Fair Market Value on the date of repayment equal to the Fair Market Value of such shares at the date of delivery thereof to you and such cash, in each case reduced by the amount of taxes paid by you with respect to the vesting, delivery and sale of such shares. In addition to any other remedy available to the Company under applicable law, the Company shall have the right to offset any other amounts payable to you by the amount of any required repayment by you which has not been repaid.

          For purposes of this Letter, “ Competitive Activity ” means your service as a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or you permit your name to be used in connection with the activities of, any other business or organization anywhere in the United States, or in any other geographic area in which the Company or any of its subsidiaries operates or with respect to which the Company provides financial news and commentary coverage (or from which such other business or organization provides financial news and commentary coverage of the United States), which engages in a business that competes with any business in which the Company or any subsidiary is engaged (a “ Competing Business ”); provided, however, that, notwithstanding the foregoing, it shall not be a Competitive Activity for you to (i) become the registered or beneficial owner of up to three percent (3%) of any class of capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that you do not otherwise participate in the business of such corporation or (ii) work in a non-competitive business of a company which is carrying on a Competing Business, the revenues of which represent less than twenty percent (20%) of the consolidated revenues of that company, or, as a result thereof, owning compensatory equity in that company.

          7. Restrictive Covenants

 

 

 

 

 

a.

Non-Solicitation of Employees

 

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit for employment or hire, in any business enterprise or activity, any employee of the Company or any subsidiary who was employed by the Company or a subsidiary during your period of employment by the Company or a subsidiary provided that (a) the foregoing shall not be violated by any general advertising not targeted at any Company or subsidiary employees nor by you serving as a reference upon request, and (b) you may solicit and hire any one or more former employees of the Company or its subsidiaries who had ceased being such an employee for a period of at least six (6) months prior to any such solicitation or hiring.

 

 

 

 

 

b.

Non-Solicitation of Clients and Vendors

 

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and

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through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit, in any business enterprise or activity, any client, customer, licensee, licensor, third-party service provider or vendor (a “ Business Relation ”) of the Company or any subsidiary who was a Business Relation of the Company or any subsidiary during your period of employment by the Company or any subsidiary to (i) cease being a Business Relation of the Company or any subsidiary or (ii) become a Business Relation of a Competing Business unless (without you having solicited such third party to cease such relationship) such third party ceased being a Business Relation of the Company or any subsidiary for a period of at least six (6) months prior to such solicitation.

 

 

 

 

 

c.

Non-Disparagement

 

 

 

 

 

 

During your employment by the Company or any subsidiary and indefinitely thereafter, neither party shall make any statements, written or oral, to any third party which disparage, criticize, discredit or otherwise operate to the detriment of you or the Company, its present or former officers, shareholders, directors and employees and their respective business reputation and/or goodwill, provided, however, that nothing in this Section 7(c) shall prohibit either party from (i) making any truthful statements or disclosures required by applicable law regulation or (ii) taking any action to enforce its rights under this Letter or any other agreement in effect between the parties.

 

 

 

 

d.

Confidentiality

 

 

 

 

 

 

1)

During your employment by the Company or any subsidiary and indefinitely thereafter, you shall keep secret and retain in strictest confidence, any and all Confidential Information relating to the Company, except where your disclosure or use of such Confidential Information is in furtherance of the performance by you of your duties to the Company and not for personal benefit or the benefit of any interest adverse to the Company’s interests. For purposes of this Letter, “ Confidential Information ” shall mean any information including without limitation plans, specifications, models, samples, data, customer lists and customer information, computer programs and documentation, and other technical and/or business information, in whatever form, tangible or intangible, that can be communicated by whatever means available at such time, that relates to the Company’s current business or future business contemplated during your employment, products, services and development, or information received from others that the Company is obligated to treat as confidential or proprietary (provided that such confidential information shall not include any information that (a) has become generally available to the public or is generally known in the relevant trade or industry other than as a result of an improper disclosure by you, or (b) was available to or became known to you prior to the disclosure of such information on a non-confidential basis without breach of any duty of confidentiality to the Company), and you shall not disclose such confidential information to any Person (as defined below) other than the Company, except

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with the prior written consent of the Company, as may be required by law or court or administrative order (in which event you shall so notify the Company as promptly as practicable), or in performance of your duties on behalf of the Company. Further, this Section 7(d) shall not prevent you from disclosing Confidential Information in connection with any litigation, arbitration or mediation to enforce this Letter or other agreement between the parties, provided such disclosure is necessary for you to assert any claim or defense in such proceeding.

 

 

 

 

 

 

 

For purposes of this Letter, “ Person ” shall mean an individual, corporation, partnership, limited liability company, limited liability partnership, association, trust or other unincorporated organization or entity.

 

 

 

 

 

 

2)

Upon your termination of employment for any reason, you shall return to the Company all copies, reproductions and summaries of Confidential Information in your possession and use reasonable efforts to erase the same from all media in your possession, and, if the Company so requests, shall certify in writing that you have done so, except that you may retain such copies, reproductions and summaries during any period of litigation, arbitration or mediation referred to in Section 7(d)(1). All Confidential Information is and shall remain the property of the Company (or, in the case of information that the Company receives from a third party which it is obligated to treat as confidential, then the property of such third party); provided, you shall be entitled to retain copies of (i) information showing your compensation or relating to reimbursement of expenses, (ii) information that is required for the preparation of your personal income tax return, (iii) documents provided to you in your capacity as a participant in any employee benefit plan, policy or program of the Company and (iv) this Letter and any other agreement by and between you and the Company with regard to your employment or termination thereof.

 

 

 

 

 

 

3)

All Intellectual Property (as hereinafter defined) and Technology (as hereinafter defined) created, developed, obtained or conceived of by you during your employment, and all business opportunities presented to you during your employment, shall be owned by and belong exclusively to the Company, provided that they reasonably relate to any of the business of the Company on the date of such creation, development, obtaining or conception, and you shall (i) promptly disclose any such Intellectual Property, Technology or business opportunity to the Company, and (ii) execute and deliver to the Company, without additional compensation, such instruments as the Company may require from time to time to evidence its ownership of any such Intellectual Property, Technology or business opportunity. For purposes of this Letter, (x) the term “ Intellectual Property ” means and includes any and all trademarks, trade names, service marks, service names, patents, copyrights, and applications therefor, and (y) the term “ Technology ” means and includes any and all trade secrets, proprietary information, invention, discoveries, know-how, formulae, processes and procedures.

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          The parties acknowledge that the restrictions contained in this Section 7 are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions could cause substantial injury to the Company and that the Company would not have entered into this Letter, without receiving the additional consideration offered by you in binding yourself to any of these restrictions. In the event of a breach or threatened breach by you of any of these restrictions, the Company shall be entitled to apply to any court of competent jurisdiction for an injunction restraining you from such breach or threatened breach; provided, however, that the right to apply for an injunction shall not be construed as prohibiting the Company from pursuing any other available remedies for such breach or threatened breach.

          8. No Guarantee of Continuation of Service

          This grant of RSUs does not constitute an assurance of continued Service for any period or in any way interfere with the Company’s right to terminate your Service.

          9. Administration

          The Committee has the sole power to exercise its good faith judgment to interpret the Plan and this Letter and to act upon all matters relating this grant to the extent provided in the Plan and not inconsistent with the terms of this Letter. Any decision, determination, interpretation, or other action taken pursuant to the provisions of the Plan and this Letter by the Committee shall be final, binding, and conclusive.

          10. Section 409A

          Notwithstanding any provision of the Plan or this grant to the contrary, if you are a “specified employee” as determined by the Board or the Committee, in accordance with Section 409A of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder (“ Section 409A ”), you shall not be entitled to any payments of amounts which constitute deferred compensation within the meaning of Section 409A upon a termination of your employment until the earlier of (i) the date which is six (6) months after your termination of employment for any reason other than death (except that during such six (6) month period you may receive total payments from the Company that do not exceed the amount specified in Treas. Reg. Section 1.409A-1(b)(9) or that constitute a short-term deferral within the meaning of Section 409A), or (ii) the date of your death.

          Notwithstanding any provision of the Plan or this Letter to the contrary, to the extent any compensation or award which constitutes deferred compensation within the meaning of Section 409A shall vest upon the occurrence of a Change of Control and such Change of Control does not constitute a “change in the ownership or effective control” or a “change in the ownership or a substantial portion of the assets” of the Company within the meaning of Section 409A, then notwithstanding such vesting, payment will be made to you on the earliest of (i) your “separation from service” with the Company (determined in accordance with Section 409A) or, if you are a specified employee within the meaning of Section 409A, such later date as provided in the preceding paragraph, (ii) the date payment otherwise would have been made, or (iii) the date of your death.

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          If any provision of this Agreement or of any award of compensation, including equity compensation or benefits would cause you to incur any additional tax or interest under Section 409A, the parties agree to negotiate in good faith to reform such provision in such manner as to maintain, to the maximum extent practicable, the original intent and economic terms of the applicable provision without violating the provisions of Section 409A.

          11. Amendment

          The Committee may from time to time amend the terms of this grant in accordance with the terms of the Plan in effect at the time of such amendment, but no amendment which is unfavorable to you can be made without your written consent.

          The Plan is of unlimited duration, but may be amended, terminated or discontinued by the Board of Directors of the Company at any time. However, no amendment, termination or discontinuance of the Plan will unfavorably affect this grant.

          Notwithstanding the foregoing, the Committee expressly reserves the right to amend the terms of the Plan and this grant with your consent which shall not be unreasonably withheld to the extent it determines that such amendment is necessary or desirable for an exemption from or compliance with the distribution, acceleration and election requirements of Section 409A of the Code.

          12. Notices

          Unless otherwise provided herein, any notice, exercise of rights or other communication required or permitted to be given hereunder shall be in writing and shall be given by overnight delivery service such as Federal Express or personal delivery against receipt, or mailed by registered or certified mail (return receipt requested), to the party to whom it is given at, in the case of the Company, Compensation Committee Chair, TheStreet.com, Inc., 14 Wall Street, 15 th Floor, New York, NY 10005, or, in the case of you, at your principal residence address as then reflected on the records of the Company or such other address as such party may hereafter specify by notice to the other party hereto. Any notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by telecopy or like transmission or on the next business day after sent by overnight delivery service for next business day delivery or on the fifth business day after sent by registered or certified mail.

          13. Representations

          The Company hereby represents and warrants that the execution and delivery of this Letter and the performance by the Company of its obligations hereunder have been duly authorized by all necessary corporate action of the Company.

          14. Amendment

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          This Letter may be amended only by a written agreement signed by the parties hereto.

          15. Binding Effect

          This Letter shall be binding upon and inure to the benefit of the Company and any Successor. As used herein, a “ Successor ” shall mean any successor organization that succeeds to the Company (or to any direct or indirect successor) by merger or consolidation or operation of law, or by acquisition of all or substantially all of the assets of the Company (or of any direct or indirect successor).

          16. Governing Law

          This Letter shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts to be performed wholly within the state and without regard to its conflict of laws provisions that would defer to the laws of another jurisdiction, except to the extent the laws of the State of Delaware mandatorily govern.

          17. Severability

          If any provision of this Letter shall for any reason be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Moreover, if any one or more of the provisions of this Letter shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowable by applicable law. To the extent permitted by applicable law, each party hereto waives any provision of law that renders any provision of this Letter invalid, illegal or unenforceable in any way.

          18. Execution in Counterparts

          This Letter may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument.

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          19. Entire Agreement

          This Letter, together with (i) the Severance Agreement between the Company and you, as amended as of the same date as this Letter and (ii) award agreements entered into by and between you and the Company with respect to outstanding incentive awards and incentive awards granted on or before the date hereof, sets forth the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.

          20. Titles and Headings

          Titles and headings to Sections herein are for purposes of reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of any of the provisions of this Letter.

          21. Consent to Jurisdiction

          The parties hereto each hereby irrevocably submit to the exclusive jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan, City of New York in any action or proceeding to enforce the provisions of this Letter, and waives the defense of inconvenient forum to the maintenance of any such action or proceeding.


          This Letter contains the formal terms and conditions of your award and accordingly should be retained in your files for future reference. The Company may require you to provide evidence of your acknowledgment of this Letter using such means of notification as may be communicated to you by the Company or its service provider.

 

 

 

 

Very truly yours,

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

By: 

 

 

 


 

Name: Daryl R. Otte

 

Title: Chief Executive Officer


 

 

AGREED TO AND ACCEPTED:

 

 

 


 

Thomas Etergino

 

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EXHIBIT A

Form of Release

This Release (this “Release”) is entered into by Thomas Etergino (“Etergino”) and TheStreet.com, Inc., a Delaware corporation (the “Company”), effective as of [DATE] (the “Effective Date”).

In consideration of the promises set forth in the Agreement for Grant of Restricted Stock Units Under 2007 Performance Incentive Plan between Etergino and the Company, dated as of March 28, 2011 (the “Agreement”), Etergino and the Company agree as follows:

          1. General Releases and Waivers of Claims .

                    (a) Etergino’s Release of Company . In consideration of the payments and benefits provided to Etergino under the Agreement and after consultation with counsel, Etergino on behalf of himself and each of his respective heirs, executors, administrators, representatives, agents, successors and assigns (collectively, the “Etergino Parties”) hereby irrevocably and unconditionally release and forever discharge the Company and its subsidiaries and affiliates and each of their respective officers, employees, directors, shareholders and agents (“Company Parties”) from any and all claims, actions, causes of action, rights, judgments, fees and costs (including attorneys’ fees), obligations, damages, demands, accountings or liabilities of whatever kind or character (collectively, “Claims”), including, without limitation, any Claims based upon contract, tort, or under any federal, state, local or foreign law, that the Etergino Parties may have, or in the future may possess, arising out of any aspect of Etergino’s employment relationship with and service as an employee, officer, director or agent of the Company, or the termination of such relationship or service, that occurred, existed or arose on or prior to the date hereof; provided, however, that Etergino does not release, discharge or waive (i) any rights to payments and benefits provided under the Agreement, (ii) any right Etergino may have to enforce this Release or the Agreement, (iii) Etergino’s eligibility for indemnification in accordance with the Company’s certificate of incorporation, bylaws or other corporate governance document, any applicable insurance policy or any contract or provision to which Etergino is a party or as to which Etergino otherwise is entitled to indemnification benefits, with respect to any liability he incurred or might incur as an employee, officer or director of the Company, (iv) any claims for accrued, vested benefits under any employee benefit or pension plan of the Company Parties subject to the terms and conditions of such plan and applicable law including, without limitation, any such claims under COBRA or the Employee Retirement Income Security Act of 1974, (v) any rights under or in respect of (A) that certain Severance Agreement between Etergino and the Company, dated as of July 14, 2009, (B) the agreement dated as of July 14, 2009 related to the grant of restricted stock units, (C) the agreement dated as of March 28, 2011 related to the grant of stock options or (D) any written agreements that may be executed by the parties after March 28, 2011 (as each may have been amended in writing, collectively, the “Applicable Agreements”).

                    (b) Executive’s Specific Release of ADEA Claims . In further consideration of the payments and benefits provided to Etergino under the Agreement, Etergino on behalf of himself and the other Etergino Parties hereby unconditionally release and forever discharge the Company Parties from any and all Claims that the Etergino Parties may have as of the date Etergino signs this Release arising under the Federal Age Discrimination in Change of Control and Severance Act of 1967, as amended, and the applicable rules and regulations promulgated thereunder (“ADEA”). By signing this Release, Etergino hereby acknowledges and confirms the following: (i) Etergino was advised by the Company in connection with his termination to consult with an attorney of his choice prior to signing this Release and to have such attorney explain to him the terms of this Release, including, without limitation, the terms relating to his release of claims arising under ADEA, and Etergino has in fact consulted with an attorney; (ii) Etergino was given a period of not fewer than 21 days to consider the terms of this Release and to consult with an attorney of his choosing with respect thereto; and (iii) Etergino knowingly and voluntarily accepts the terms of this Release. Etergino also understands that he has seven (7) days following the date on which he signs this Release within which to revoke the release contained in this paragraph, by providing the Company a written notice of his revocation of the release and waiver contained in this paragraph.

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                    (c) Company’s Release of Executive . The Company for itself and on behalf of the Company Parties hereby irrevocably and unconditionally release and forever discharge the Etergino Parties from any and all Claims, including, without limitation, any Claims based upon contract, tort, or under any federal, state, local or foreign law, that the Company Parties may have, or in the future may possess, arising out of any aspect of Etergino’s employment relationship with and service as an employee, officer, director or agent of the Company, or the termination of such relationship or service, that occurred, existed or arose on or prior to the date hereof, excepting (i) any Claim which would constitute or result from conduct by Etergino that constituted the basis for termination for Cause under the Agreement or could be a crime of any kind. Anything to the contrary notwithstanding in this Release, nothing herein shall release Etergino or any other Executive Party from any Claims based on any right the Company may have to enforce this Release or the Agreement, or (ii) any rights under Sections 6 (other than clauses (i) and (ii) thereof) or 7 of the Agreement, or (iii) any rights arising under or in respect of any of the Applicable Agreements.

                    (d) No Assignment . The parties represent and warrant that they have not assigned any of the Claims being released under this Release.

          2. Proceedings . Neither Etergino nor the Company have filed, any complaint, charge, claim or proceeding against the other party before any local, state or federal agency, court or other body relating to Etergino’s employment or the termination thereof (each, individually, a “Proceeding”).

          3. Remedies .

                    (a) In the event Etergino initiates or voluntarily participates in any Proceeding involving any of the matters waived or released in this Release, or if he fails to abide by any of the terms of this Release, or if he revokes the ADEA release contained in Paragraph 1(b) of this Release within the seven-day period provided under Paragraph 1(b), the Company may, in addition to any other remedies it may have, reclaim any amounts paid to him, and terminate any benefits or payments that are due, pursuant to the termination provisions of the Agreement, without waiving the release granted herein. In addition, in the event that Etergino has failed to comply with Sections 6 and/or 7 of the Agreement (other than as a result of an unintentional and immaterial disclosure of confidential information), the Company may, in addition to any other remedies it may have, to the extent permitted in the Agreement reclaim any amounts paid to him pursuant to the Agreement, without waiving the release granted herein. Etergino acknowledges and agrees that the remedy at law available to the Company for breach of any of his post-termination obligations under the Agreement or his obligations herein would be inadequate and that damages flowing from such a breach may not readily be susceptible to being measured in monetary terms. Accordingly, Etergino acknowledges, consents and agrees that, in addition to any other rights or remedies that the Company may have at law or in equity, the Company shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction, or both, without bond or other security, restraining Etergino from breaching his post-termination obligations under the Agreement or his obligations hereunder. Such injunctive relief in any court shall be available to the Company, in lieu of, or prior to or pending determination in, any arbitration proceeding.

                    (b) Etergino understands that by entering into this Release he will be limiting the availability of certain remedies that he may have against the Company and limiting also his ability to pursue certain claims against the Company.

                    (c) The Company acknowledges and agrees that the remedy at law available to Etergino for breach of any of its post-termination obligations under the Agreement or its obligations hereunder would be inadequate and that damages flowing from such a breach may not readily be susceptible to being measured in monetary terms. Accordingly, the Company acknowledges, consents and agrees that, in addition to any other rights or remedies that Etergino may have at law or in equity, Etergino shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction, or both, without bond or other security, restraining the Company from breaching its post-termination obligations under the Agreement or its obligations hereunder. Such injunctive relief in any court shall be available to Etergino, in lieu of, or prior to or pending determination in, any arbitration proceeding.

14


                    (d) The Company understands that by entering into this Release it will be limiting the availability of certain remedies that it may have against Etergino and limiting also its ability to pursue certain claims against Etergino.

          4. Severability Clause . In the event any provision or part of this Release is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Release, will be inoperative.

          5. Nonadmission . Nothing contained in this Release will be deemed or construed as an admission of wrongdoing or liability on the part of the Company or Etergino.

          6. Governing Law . All matters affecting this Release, including the validity thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the New York applicable to contracts executed in and to be performed in that State.

          7. Notices . All notices or communications hereunder shall be made in accordance with Section 3 of the Agreement.

          ETERGINO ACKNOWLEDGES THAT HE HAS READ THIS RELEASE AND THAT HE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT HE HEREBY EXECUTES THE SAME AND MAKES THIS RELEASE AND THE RELEASE AND AGREEMENTS PROVIDED FOR HEREIN VOLUNTARILY AND OF HIS OWN FREE WILL.

          IN WITNESS WHEREOF, the parties have executed this Release as of _______________, 20__.

 

 

 

 

 


 

 

Thomas Etergino

 

 

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

 

 

By:

 

 

 

 


 

 

Name:

 

 

 

 


 

 

Title:

 

 

 

 


 

15


Exhibit 10.5

THESTREET.COM, INC.
AGREEMENT FOR GRANT
OF
STOCK OPTIONS
UNDER
2007 PERFORMANCE INCENTIVE PLAN

March 28, 2011

Thomas Etergino
c/o TheStreet.com, Inc.
14 Wall Street
15 th Floor
New York, NY 10005

Dear Tom:

          This letter (the “ Letter ) sets forth the terms and conditions of the stock option (“ Option ”) hereby awarded to you by TheStreet.com, Inc. (the “ Company ”), in accordance with the provisions of the Company’s 2007 Performance Incentive Plan (the “ Plan ”).

          This award is subject to the terms and conditions set forth in the Plan, any rules and regulations adopted by the Board of Directors of the Company (the “ Board ”) or the committee of the Board which administers the Plan (the “ Committee ”), and this Letter. The provisions of the Plan are hereby incorporated by reference and any term used in this Letter and not defined herein shall have the meaning set forth in the Plan. Unless otherwise indicated, section references contained in this Letter shall refer to the corresponding sections of this Letter.

          1. Option Grant

          You have been granted an Option to purchase 75,000 shares of the Company’s Common Stock (“ Common Stock ”) to the extent the Option is exercisable as set forth below. The Option may not be sold, transferred, assigned, pledged or otherwise encumbered by you, in whole or in part; provided that the foregoing shall not affect your right to name a beneficiary under Section 13 of the Plan. The Option may be exercised only by you, except that in the event of your death, the Option may be exercised (at any time prior to its expiration or termination as provided in Sections 8 and 11) by the executor or administrator of your estate or by a person who acquired the right to exercise your Option by will or pursuant to the laws of descent and distribution. Until such time as stock certificates for the shares of Common Stock represented by the purchase of all or portion of the Option have been delivered to you in accordance with Section 4, you shall have none of the rights of a stockholder with respect to the Common Stock with respect to such shares.

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          2. Option Exercise Price

          The price at which you may purchase the shares of Common Stock underlying the Option is $3.24 per share.

          3. Term of Option

          Your Option shall expire, to the extent that it has not previously terminated, on March 28, 2016. However, your Option may terminate prior to such expiration date as provided in Sections 8 and 11. Regardless of the provisions of Sections 5 or 8 or any other provision hereof, in no event can your Option be exercised after the expiration date set forth in this Section 3.

          4. Exercisability of Option

          Your Option will become exercisable with respect to the following number(s) of shares of Common Stock on the following date(s) as set forth below, provided that you are in the Service (as defined below) of the Company or one of its subsidiaries on such date and the Option has not been terminated in accordance with Sections 8 or 11:

 

 

 

 

Date

 

Number of Shares of Common Stock


 


 

April 1, 2012

 

18,750

 

 

The first calendar day of each month from May 1, 2012 to March 1, 2015, inclusive

 

1,563

 

 

April 1, 2015

 

1,545

 

For purposes hereof, you shall be considered to be in the “ Service ” of the Company or one of its subsidiaries if you are an employee of the Company (or one if its subsidiaries, as applicable) on the applicable vesting date.

          To the extent that your Option has become exercisable with respect to a number of shares of Common Stock, you may exercise the Option to purchase all or any portion of such shares of Common Stock at any time on or before the date the Option expires or terminates; provided that you may only purchase a whole number of shares of Common Stock.

          5. Accelerated Vesting in Certain Events

          Notwithstanding Section 4, upon the occurrence of any of the following events, the then-unvested portion of the Option shall become exercisable and may be exercised; provided that such portion of the Option only may be exercised within ninety (90) calendar days from the occurrence of such event (but in no event beyond the date set forth in Section 3): (i) the termination of your employment by the Company or any subsidiary thereof without Cause (as defined below) or by you with Good Reason (as defined below) prior to a Change of Control (as

2


defined in the Plan) if such termination is related to the Change of Control; or (ii) a Change of Control, unless (A) either (x) the Company is the surviving corporation in the Change of Control and the award reflected in this Letter is equitably adjusted pursuant to Section 4.4 of the Plan or (y) the award reflected in this Letter is assumed or replaced by a Successor (as defined below) and (B) the award as so adjusted, assumed or replaced (x) has substantially the same potential economic benefits and vesting terms as did the award immediately prior to the Change of Control and (y) provides that the award immediately shall become fully vested and exercisable upon the termination of your employment (by the Company or any subsidiary thereof or by a Successor or any affiliate thereof) without Cause or by you with Good Reason at any time (provided that such portion of the Option only may be exercised within ninety (90) calendar days from such termination (but in no event beyond the date set forth in Section 3)). If you are employed by a Successor or any affiliate thereof following a Change of Control, references in this Letter to the Company shall be understood to be references to the Successor or any such affiliate regarding matters related to the occurrence of non-occurrence of events from and after the date you become employed by the Successor or such affiliate.

          For purposes of this Letter, “ Cause ” shall be determined by the Committee in the exercise of its good faith judgment, in accordance with the following guidelines: (i) your willful misconduct or gross negligence in the performance of your obligations, duties and responsibilities as Executive Vice President, Chief Financial Officer (including those as an employee of the Company set forth in the Company’s Code of Business Conduct and Ethics dated June 1, 2006, as same may be amended from time to time provided such amendment affects all executive officers of the Company), (ii) your dishonesty or misappropriation, in either case that is willful and material, relating to the Company or any of its funds, properties, or other assets, (iii) your inexcusable repeated or prolonged absence from work (other than as a result of, or in connection with, a Disability), (iv) any unauthorized disclosure by you of Confidential Information or proprietary information of the Company in violation of Section 12(d) which is reasonably likely to result in material harm to the Company, (v) your conviction of a felony (including entry of a guilty or nolo contender plea) involving fraud, dishonesty, or moral turpitude, (vi) a violation of federal or state securities laws, or (vii) the failure by you to attempt to perform faithfully your duties and responsibilities as Executive Vice President, Chief Financial Officer, or other material breach by you of this Letter, provided any such failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) is not cured, to the extent cure is possible, by you within thirty (30) days after written notice thereof from the Company to you; provided, however, that no failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) shall constitute Cause unless (x) the Company first gives you written notice of its intention to terminate your employment for Cause and the grounds of such termination no fewer than ten (10) days prior to the date of termination; and (y) you are provided an opportunity to appear before the Board, with or without legal representation at your election to present arguments on your own behalf; and (z) if you elect to so appear, such failure or breach is not cured, to the extent cure is possible, within thirty (30) days after written notice from the Company to you that, following such appearance, the Board has determined in good faith that Cause exists and has not, following the initial notice from the Company, been cured; provided further, however, that notwithstanding anything to the contrary in this Letter and subject to the other terms of this proviso, the Company may take any and all actions, including without limitation suspension (but not without pay), it deems appropriate with respect to you and your duties at the Company

3


pending such appearance and subsequent to such appearance during which such failure or breach has not been cured. No act or failure to act on your part will be considered “willful” unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of the Company.

          For purposes of this Letter, “ Good Reason ” shall have the meaning ascribed to such term in Treasury Regulation Section 1.409A-1(n)(2)(ii), as determined in good faith by the Committee.

          For purposes of this Letter, “ Disability ” shall mean physical or mental incapacity of a nature which prevents you, in the good faith judgment of the Committee, from performing your duties and responsibilities as Executive Vice President, Chief Financial Officer for a period of 90 consecutive days or 150 days during any year, with each year under this Letter commencing on each anniversary of the date hereof.

          6. Manner of Exercise

          You may exercise your Option by giving notice to the Company (or to such service provider as the Company may designate), following such procedures as may be communicated to you from time to time.

          The shares of Common Stock represented by the exercise of your Option may consist of authorized but unissued shares or treasury shares of the Company, as determined from time to time by the Committee.

          7. Satisfaction of Option Exercise Price

          The Option may be exercised by payment of the option exercise price in cash (including check, bank draft, money order, or wire transfer). In addition, your Option may be exercised using such broker cashless exercise procedure or other procedure as the Company may establish from time to time.

          8. Termination of Service

          (a) General. If your Service terminates for any reason other than for Cause, the Option will terminate ninety (90) calendar days after such termination of Service. Following the termination of your Service, no additional portions of the Option will become exercisable, and the Option will be exercisable only to the extent exercisable on the date of such termination of Service. If your Service terminates for Cause, the Option shall be immediately terminated and may not be exercised.

          (b) Adjustments by the Committee. The Committee may, in its discretion, exercised before or after your termination of Service, declare all or any portion of the Option immediately exercisable and/or permit all or any part of the Option to remain exercisable for such period designated by it after the time when the Option would have otherwise terminated as provided in Section 8(a), but not beyond the expiration date of your Option as set forth in Section 3 above.

4


          (c) Committee Determinations. The Committee shall have absolute discretion to determine the date and circumstances of the termination of your Service, and its determination shall be final, conclusive and binding upon you.

          9. Restrictions on Option Exercise; Delivery of Shares

          (a) Even though your Option may be otherwise exercisable, your right to exercise the Option will be suspended if the Committee determines that your exercise of the Option would violate applicable laws or regulations. The suspension will last until the exercise would be lawful. Any such suspension will not extend the term of your Option.

          (b) Even though your Option may be otherwise exercisable, the Committee may refuse to permit such exercise if it determines, in its discretion, that any of the following circumstances is present:

 

 

 

 

(i)

the shares of Common Stock to be acquired upon such exercise are required to be registered or qualified under any federal or state securities law, or to be listed on any securities exchange or quotation system, and such registration, qualification, or listing has not occurred;

 

 

 

 

(ii)

the consent or approval of any government regulatory body is required and has not been obtained;

 

 

 

 

(iii)

the satisfaction of withholding tax is required and has not occurred;

 

 

 

 

(iv)

representations by you or other information is determined by counsel for the Company to be necessary or desirable in order to comply with any federal or state securities laws or regulations, and you have not provided such representations or information; or

 

 

 

 

(v)

an agreement by you with respect to the disposition of shares of Common Stock to be acquired upon exercise of your Option is determined by the Committee to be necessary or desirable in order to comply with any federal or state securities laws or regulations, or is required by the terms of this Letter, and you have not executed such agreement.

          (c) Shares of Common Stock to be delivered to you in connection with any exercise of the Option shall be delivered to you as soon as practicable and, at the Company’s election, the Company may effect such delivery by causing such number of shares of Common Stock to be deposited via DWAC into a brokerage account in your name. Common Stock delivered upon the exercise of the Option will be fully transferable (subject to any applicable securities law restrictions) and not subject to forfeiture (other than as set forth in Section 11), and will entitle the holder to all rights of a stockholder of the Company.

          (d) The Company will use reasonable commercial efforts to cause its Registration Statement on Form S-8 (or successor form) filed with the Securities and Exchange Commission

5


covering shares subject to the Plan to remain effective and current until such times as all of the shares of Common Stock underlying your Option are either delivered hereunder or the Option has expired or been terminated pursuant to the terms of this Letter, until three (3) months after you cease being an “affiliate” of the Company, to maintain a resale prospectus thereunder (or otherwise register under the Securities Act of 1933, as amended) the Common Stock underlying your Option.

          10. Income Tax Withholding

          In connection with the exercise of your Option, you will be required to pay, pursuant to such arrangements as the Company may establish from time to time, any applicable federal, state and local withholding tax liability. If you fail to satisfy your withholding obligation in a time and manner satisfactory to the Committee, the Company shall have the right to withhold the required amount from your salary or other amounts payable to you.

          11. Additional Termination Events and Claw-Back

          Notwithstanding anything else in this Letter, the unexercised portion of the Option shall be terminated (regardless of the extent to which it is exercisable) if any one of the following occurs: (i) you engage in Competitive Activity (as defined below) with the Company or any of its subsidiaries during your employment by the Company or any of its subsidiaries or within two (2) years after your service as Executive Vice President, Chief Financial Officer terminates; or (ii) you breach any of the Restrictive Covenants set out in Section 12 within two (2) years after your cessation of employment with the Company or any subsidiary.

          The Company reserves the right (as provided below) to claw-back shares of Common Stock delivered under this Letter pursuant to each exercise of the Option by you if you engage in Competitive Activity or violate any of the Restrictive Covenants within two (2) years after the delivery of such shares of Common Stock. If the Committee determines, in its good faith discretion, that all or some portion of the shares of Common Stock delivered to you will be clawed-back, then you shall be required to repay to the Company the Repayment Amount (as defined below) with respect to such shares of Common Stock. You may satisfy the payment obligation set forth in the preceding sentence by paying the Company cash, by delivering to the Company shares of Common Stock, or by remitting to the Company a combination of cash and shares of Common Stock, such that the Fair Market Value (measured as of the day before your delivery to the Company of shares of Common Stock) of any shares of Common Stock you deliver to the Company, plus the amount of any cash you pay to the Company, equals the Repayment Amount. The “ Repayment Amount ” with respect to the shares of Common Stock delivered to you upon any exercise of the Option shall mean the lesser of the Exercise Date Spread Value (as defined below) with respect to such exercise of the Option and the Delivery Date Spread Value (as defined below) with respect to such exercise of the Option, in each case reduced by the amount of taxes paid by you with respect to such exercise of the Option; provided that neither the Exercise Date Spread Value nor the Delivery Date Spread Value shall be less than zero. With respect to each exercise you made of the Option, the “ Exercise Date Spread Value ” is the amount, if any, by which the Fair Market Value (measured as of the date of exercise) of the number of shares of Common Stock underlying the Option with respect to which

6


the Option was exercised on such date, exceeded the aggregate option exercise price for such shares. With respect to each exercise you made of the Option, the “ Delivery Date Spread Value ” is the amount, if any, by which the Fair Market Value (measured as of the day before you remit the Repayment Amount to the Company) of the number of shares of Common Stock underlying the Option with respect to which the Option was exercised, exceeded the aggregate option exercise price for such shares. In addition to any other remedy available to the Company under applicable law, the Company shall have the right to offset any other amounts payable to you by the amount of any required repayment by you which has not been repaid.

          For purposes of this Letter, “ Competitive Activity ” means your service as a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or you permit your name to be used in connection with the activities of, any other business or organization anywhere in the United States, or in any other geographic area in which the Company or any of its subsidiaries operates or with respect to which the Company provides financial news and commentary coverage (or from which such other business or organization provides financial news and commentary coverage of the United States), which engages in a business that competes with any business in which the Company or any subsidiary is engaged (a “ Competing Business ”); provided, however, that, notwithstanding the foregoing, it shall not be a Competitive Activity for you to (i) become the registered or beneficial owner of up to three percent (3%) of any class of capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that you do not otherwise participate in the business of such corporation or (ii) work in a non-competitive business of a company which is carrying on a Competing Business, the revenues of which represent less than twenty percent (20%) of the consolidated revenues of that company, or, as a result thereof, owning compensatory equity in that company.

          For purposes of this Letter, “ Fair Market Value ” of a share of Common Stock on any date shall be (i) if the principal market for the Common Stock is a national securities exchange, the closing sales price per share of the Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by such exchange or on a consolidated tape reflecting transactions on such exchange, or (ii) if the principal market for the Common Stock is not a national securities exchange, the closing average of the highest bid and lowest asked prices per share of Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by the market upon which the Common Stock is quoted, or an independent dealer in the Common Stock, as determined by the Company in good faith; provided, however, that if clauses (i) and (ii) are all inapplicable, or if no trades have been made and no quotes are available for such day, the Fair Market Value of the Common Stock shall be determined by the Committee in good faith by any method consistent with applicable regulations adopted by the United States Treasury Department relating to stock options or stock valuation.

          12. Restrictive Covenants

 

 

 

 

a.

Non-Solicitation of Employees

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You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit for employment or hire, in any business enterprise or activity, any employee of the Company or any subsidiary who was employed by the Company or a subsidiary during your period of employment by the Company or a subsidiary provided that (a) the foregoing shall not be violated by any general advertising not targeted at any Company or subsidiary employees nor by you serving as a reference upon request, and (b) you may solicit and hire any one or more former employees of the Company or its subsidiaries who had ceased being such an employee for a period of at least six (6) months prior to any such solicitation or hiring.

 

 

 

 

b.

Non-Solicitation of Clients and Vendors

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit, in any business enterprise or activity, any client, customer, licensee, licensor, third-party service provider or vendor (a “ Business Relation ”) of the Company or any subsidiary who was a Business Relation of the Company or any subsidiary during your period of employment by the Company or any subsidiary to (i) cease being a Business Relation of the Company or any subsidiary or (ii) become a Business Relation of a Competing Business unless (without you having solicited such third party to cease such relationship) such third party ceased being a Business Relation of the Company or any subsidiary for a period of at least six (6) months prior to such solicitation.

 

 

 

 

c.

Non-Disparagement

 

 

 

 

 

During your employment by the Company or any subsidiary and indefinitely thereafter, neither party shall make any statements, written or oral, to any third party which disparage, criticize, discredit or otherwise operate to the detriment of you or the Company, its present or former officers, shareholders, directors and employees and their respective business reputation and/or goodwill, provided, however, that nothing in this Section 12(c) shall prohibit either party from (i) making any truthful statements or disclosures required by applicable law regulation or (ii) taking any action to enforce its rights under this Letter or any other agreement in effect between the parties.

 

 

 

 

d.

Confidentiality


 

 

 

 

1)

During your employment by the Company or any subsidiary and indefinitely thereafter, you shall keep secret and retain in strictest confidence, any and all Confidential Information relating to the Company, except where your disclosure or use of such Confidential Information is in furtherance of the performance by you of your duties to the Company and not for personal benefit or the benefit of any interest adverse to the Company’s interests. For purposes of this Letter,

8



 

 

 

 

 

Confidential Information ” shall mean any information including without limitation plans, specifications, models, samples, data, customer lists and customer information, computer programs and documentation, and other technical and/or business information, in whatever form, tangible or intangible, that can be communicated by whatever means available at such time, that relates to the Company’s current business or future business contemplated during your employment, products, services and development, or information received from others that the Company is obligated to treat as confidential or proprietary (provided that such confidential information shall not include any information that (a) has become generally available to the public or is generally known in the relevant trade or industry other than as a result of an improper disclosure by you, or (b) was available to or became known to you prior to the disclosure of such information on a non-confidential basis without breach of any duty of confidentiality to the Company), and you shall not disclose such confidential information to any Person (as defined below) other than the Company, except with the prior written consent of the Company, as may be required by law or court or administrative order (in which event you shall so notify the Company as promptly as practicable), or in performance of your duties on behalf of the Company. Further, this Section 12(d) shall not prevent you from disclosing Confidential Information in connection with any litigation, arbitration or mediation to enforce this Letter or other agreement between the parties, provided such disclosure is necessary for you to assert any claim or defense in such proceeding.

 

 

 

 

 

For purposes of this Letter, “ Person ” shall mean an individual, corporation, partnership, limited liability company, limited liability partnership, association, trust or other unincorporated organization or entity.

 

 

 

 

2)

Upon your termination of employment for any reason, you shall return to the Company all copies, reproductions and summaries of Confidential Information in your possession and use reasonable efforts to erase the same from all media in your possession, and, if the Company so requests, shall certify in writing that you have done so, except that you may retain such copies, reproductions and summaries during any period of litigation, arbitration or mediation referred to in Section 12(d)(1). All Confidential Information is and shall remain the property of the Company (or, in the case of information that the Company receives from a third party which it is obligated to treat as confidential, then the property of such third party); provided, you shall be entitled to retain copies of (i) information showing your compensation or relating to reimbursement of expenses, (ii) information that is required for the preparation of your personal income tax return, (iii) documents provided to you in your capacity as a participant in any employee benefit plan, policy or program of the Company and (iv) this Letter and any other agreement by and between you and the Company with regard to your employment or termination thereof.

9



 

 

 

 

3)

All Intellectual Property (as hereinafter defined) and Technology (as hereinafter defined) created, developed, obtained or conceived of by you during your employment, and all business opportunities presented to you during your employment, shall be owned by and belong exclusively to the Company, provided that they reasonably relate to any of the business of the Company on the date of such creation, development, obtaining or conception, and you shall (i) promptly disclose any such Intellectual Property, Technology or business opportunity to the Company, and (ii) execute and deliver to the Company, without additional compensation, such instruments as the Company may require from time to time to evidence its ownership of any such Intellectual Property, Technology or business opportunity. For purposes of this Letter, (x) the term “ Intellectual Property ” means and includes any and all trademarks, trade names, service marks, service names, patents, copyrights, and applications therefor, and (y) the term “ Technology ” means and includes any and all trade secrets, proprietary information, invention, discoveries, know-how, formulae, processes and procedures.

          The parties acknowledge that the restrictions contained in this Section 12 are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions could cause substantial injury to the Company and that the Company would not have entered into this Letter, without receiving the additional consideration offered by you in binding yourself to any of these restrictions. In the event of a breach or threatened breach by you of any of these restrictions, the Company shall be entitled to apply to any court of competent jurisdiction for an injunction restraining you from such breach or threatened breach; provided, however, that the right to apply for an injunction shall not be construed as prohibiting the Company from pursuing any other available remedies for such breach or threatened breach.

          13. No Guarantee of Continuation of Service

          This grant of this Option does not constitute an assurance of continued Service for any period or in any way interfere with the Company’s right to terminate your Service.

          14. Administration

          The Committee has the sole power to exercise its good faith judgment to interpret the Plan and this Letter and to act upon all matters relating this grant to the extent provided in the Plan and not inconsistent with the terms of this Letter. Any decision, determination, interpretation, or other action taken pursuant to the provisions of the Plan and this Letter by the Committee shall be final, binding, and conclusive.

          15. Section 409A

          Notwithstanding any provision of the Plan or this grant to the contrary, if you are a “specified employee” as determined by the Board or the Committee, in accordance with Section 409A of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder (“ Section 409A ”), you shall not be entitled to any payments of amounts

10


which constitute deferred compensation within the meaning of Section 409A upon a termination of your employment until the earlier of (i) the date which is six (6) months after your termination of employment for any reason other than death (except that during such six (6) month period you may receive total payments from the Company that do not exceed the amount specified in Treas. Reg. Section 1.409A-1(b)(9) or that constitute a short-term deferral within the meaning of Section 409A), or (ii) the date of your death.

          Notwithstanding any provision of the Plan or this Letter to the contrary, to the extent any compensation or award which constitutes deferred compensation within the meaning of Section 409A shall vest upon the occurrence of a Change of Control and such Change of Control does not constitute a “change in the ownership or effective control” or a “change in the ownership or a substantial portion of the assets” of the Company within the meaning of Section 409A, then notwithstanding such vesting, payment will be made to you on the earliest of (i) your “separation from service” with the Company (determined in accordance with Section 409A) or, if you are a specified employee within the meaning of Section 409A, such later date as provided in the preceding paragraph, (ii) the date payment otherwise would have been made, or (iii) the date of your death.

          If any provision of this Agreement or of any award of compensation, including equity compensation or benefits would cause you to incur any additional tax or interest under Section 409A, the parties agree to negotiate in good faith to reform such provision in such manner as to maintain, to the maximum extent practicable, the original intent and economic terms of the applicable provision without violating the provisions of Section 409A.

          16. Amendment

          The Committee may from time to time amend the terms of this grant in accordance with the terms of the Plan in effect at the time of such amendment, but no amendment which is unfavorable to you can be made without your written consent.

          The Plan is of unlimited duration, but may be amended, terminated or discontinued by the Board of Directors of the Company at any time. However, no amendment, termination or discontinuance of the Plan will unfavorably affect this grant.

          Notwithstanding the foregoing, the Committee expressly reserves the right to amend the terms of the Plan and this grant with your consent which shall not be unreasonably withheld to the extent it determines that such amendment is necessary or desirable for an exemption from or compliance with the distribution, acceleration and election requirements of Section 409A of the Code.

          17. Notices

          Unless otherwise provided herein, any notice, exercise of rights or other communication required or permitted to be given hereunder shall be in writing and shall be given by overnight delivery service such as Federal Express or personal delivery against receipt, or mailed by registered or certified mail (return receipt requested), to the party to whom it is given at, in the

11


case of the Company, Compensation Committee Chair, TheStreet.com, Inc., 14 Wall Street, 15 th Floor, New York, NY 10005, or, in the case of you, at your principal residence address as then reflected on the records of the Company or such other address as such party may hereafter specify by notice to the other party hereto. Any notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by telecopy or like transmission or on the next business day after sent by overnight delivery service for next business day delivery or on the fifth business day after sent by registered or certified mail.

          18. Representations

          The Company hereby represents and warrants that the execution and delivery of this Letter and the performance by the Company of its obligations hereunder have been duly authorized by all necessary corporate action of the Company.

          19. Amendment

          This Letter may be amended only by a written agreement signed by the parties hereto.

          20. Binding Effect

          This Letter shall be binding upon and inure to the benefit of the Company and any Successor. As used herein, a “ Successor ” shall mean any successor organization that succeeds to the Company (or to any direct or indirect successor) by merger or consolidation or operation of law, or by acquisition of all or substantially all of the assets of the Company (or of any direct or indirect successor).

          21. Governing Law

          This Letter shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts to be performed wholly within the state and without regard to its conflict of laws provisions that would defer to the laws of another jurisdiction, except to the extent the laws of the State of Delaware mandatorily govern.

          22. Severability

          If any provision of this Letter shall for any reason be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Moreover, if any one or more of the provisions of this Letter shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowable by applicable law. To the extent permitted by applicable law, each party hereto waives any provision of law that renders any provision of this Letter invalid, illegal or unenforceable in any way.

          23. Execution in Counterparts

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          This Letter may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument.

          24. Entire Agreement

          This Letter, together with (i) the Severance Agreement between the Company and you, as amended as of the same date as this Letter and (ii) award agreements entered into by and between you and the Company with respect to outstanding incentive awards and incentive awards granted on or before the date hereof, sets forth the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.

          25. Titles and Headings

          Titles and headings to Sections herein are for purposes of reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of any of the provisions of this Letter.

          26. Consent to Jurisdiction

          The parties hereto each hereby irrevocably submit to the exclusive jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan, City of New York in any action or proceeding to enforce the provisions of this Letter, and waives the defense of inconvenient forum to the maintenance of any such action or proceeding.


          This Letter contains the formal terms and conditions of your award and accordingly should be retained in your files for future reference. The Company may require you to provide evidence of your acknowledgment of this Letter using such means of notification as may be communicated to you by the Company or its service provider.

 

 

 

 

 

 

Very truly yours,

 

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

 

By:

 

 

 

 


 

 

Name: Daryl R. Otte

 

 

Title: Chief Executive Officer

 

 

 

AGREED TO AND ACCEPTED:

 

 

 

 

 


 

 

Thomas Etergino

 

 

13


Exhibit 10.6

AMENDMENT NO. 1 to SEVERANCE AGREEMENT

          This Amendment No. 1 (the “ Amendment ”) to the Severance Agreement dated as of July14, 2009 (the “ Agreement ”) between TheStreet.com, Inc., a Delaware corporation (the “ Company ”) and Thomas Etergino (“ Etergino ”) is entered into by the parties as of March 28, 2011.

          Pursuant to this Amendment, the parties hereby agree to amend the Agreement, with such amendments becoming effective May 16, 2011, as follows:

 

 

 

 

1.

Section 1(a) of the Agreement hereby is deleted in its entirety and replaced with the following:

 

 

 

 

 

“(a) In the event that the Company (or Successor (as defined below), if applicable) terminates Etergino’s employment with the Company (or Successor, as applicable) without Cause or Etergino voluntarily terminates his employment with the Company (or Successor, if applicable) for Good Reason, in either case on or before September 7, 2015, then the Company (or Successor, if applicable) shall (i) pay Etergino an amount equal to the greater of the (x) Minimum Payment (as defined below) and (y) six (6) months of Etergino’s base salary (at the annual rate in effect immediately prior to termination, excluding any reduction that would constitute grounds for Etergino to terminate his employment with Good Reason); and (ii) pay on Etergino’s behalf (for a period of six (6) months or such lesser period as Etergino may elect) the full cost of premiums for continuation of any benefits that Etergino is eligible under COBRA to elect to (and does elect to) continue. As used herein, “Minimum Payment” means the amount, if any, by which (i) one year of Executive’s base salary (at the rate in effect immediately prior to termination, excluding any reduction that would constitute grounds for Etergino to terminate his employment with Good Reason) exceeds (ii) the sum of (A) the Accelerated RSU Value (as defined below) plus (B) the amount of dividend equivalents to be delivered to Executive by the Company in connection with the delivery of shares of the Company’s common stock underlying the Accelerated RSUs (as defined below). As used herein, “Accelerated RSUs” means the number of RSUs that become vested pursuant to Section 3 of the Letter (i.e., the difference between the total number of RSUs that become vested pursuant to the Letter and the amount of RSUs that became vested, on or prior to the date of Executive’s termination, pursuant to Section 2 of the Letter) and “Accelerated RSU Value” means the product of (x) the number of Accelerated RSUs multiplied by (y) the fair market value of the Company’s common stock on the date of Executive’s termination, as determined by the Company pursuant to the provisions of the Company’s 2007 Performance Incentive Plan.”

 

 

 

 

2.

Section 1(b) of the Agreement hereby is deleted in its entirety and replaced with the following:

1



 

 

 

 

 

“(b) For purposes of this Agreement, (i) “ Cause ” shall have the same meaning ascribed to such term in the Letter; (ii) “ Good Reason ” shall have the same meaning ascribed to such term in the Letter; and (iii) “ Successor ” shall mean any person or entity that acquires all or substantially all of the Company’s assets or into which the Company is merged or combined with the Company ceasing to exist (or the successor to any such entity, whether by merger, assignment or otherwise).”

 

 

 

 

3.

Section 1(c) of the Agreement hereby is deleted in its entirety.

 

 

 

 

4.

Section 1(d) of the Agreement hereby is amended to replace the phrase “Section 1(a) or Section 1(b)” with the phrase “Section 1(a)(i)”.

 

 

 

 

5.

Section 13 of the Agreement hereby is amended to delete the phrase “, except as specified in Section 1(c),”.

 

 

 

 

6.

Section 1(a) of Exhibit A to the Agreement hereby is amended to add the following to the end of the last sentence: “, or (vi) any rights under or in respect of any of (A) the agreements dated as of September 7, 2010 and March 28, 2011, respectively, related to the grants of restricted stock units, (B) the agreement dated as of March 28, 2011 related to the grant of stock options or (C) any written agreements that may be executed by the parties after March 28, 2011 (collectively, the “Applicable Agreements”).”

 

 

 

 

7.

Section 1(c) of Exhibit A to the Agreement hereby is amended to add the following to the end of the last sentence: “or any other Applicable Agreements.”

 

 

 

 

8.

Except as expressly set forth above, the Agreement remains unmodified and in full force and effect.

 

 

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.


 

 

 

 

THESTREET.COM, INC.

 

 

 

 

 

 

By:

 

 

 

 


 


Name:

 

 

Thomas Etergino

 


 

 

Title:

 

 

 

 


 

 

2


Exhibit 10.7

THESTREET.COM, INC.
AGREEMENT FOR GRANT
OF
RESTRICTED STOCK UNITS
UNDER
2007 PERFORMANCE INCENTIVE PLAN

March 28, 2011

Gregory Barton
c/o TheStreet.com, Inc.
14 Wall Street
15 th Floor
New York, NY 10005

Dear Greg:

          This letter (the “ Letter ”) sets forth the terms and conditions of the grant of Restricted Stock Units (“ RSUs ”) hereby awarded to you by TheStreet.com, Inc. (the “ Company ”), in accordance with the provisions of the Company’s 2007 Performance Incentive Plan (the “ Plan ”).

          This award is subject to the terms and conditions set forth in the Plan, any rules and regulations adopted by the Board of Directors of the Company (the “ Board ”) or the committee of the Board which administers the Plan (the “ Committee ”) that are not inconsistent with the provisions of this Letter. Any term used in this Letter and not defined herein shall have the meaning set forth in the Plan.

          1. Grant of RSUs

          You have been granted 25,000 RSUs. Each RSU represents the right to receive one share of the Company’s Common Stock (“ Common Stock ”) on the applicable vesting date for such RSU. No RSU may be sold, transferred, assigned, pledged or otherwise encumbered by you; provided that the foregoing shall not affect your right to name a beneficiary under Section 13 of the Plan. Until such time as stock certificates for the shares of Common Stock represented by the RSUs have been delivered to you in accordance with Section 4 below, you shall have none of the rights of a stockholder with respect to the Common Stock.

          However, this grant includes the grant of dividend equivalents with respect to your RSUs. The Company will maintain a bookkeeping account to which it will credit, whenever dividends (other than stock dividends for which an adjustment is made to the number of shares of Common Stock subject to the RSUs pursuant to Section 4.4 of the Plan in the same percentage as paid on outstanding Common Stock) or distributions are paid on the Common Stock, an amount equal to the amount of such dividend or distribution paid on a share of Common Stock for each of your then-outstanding RSUs covered by this Letter. The accumulated dividend equivalents will vest

1


on the applicable vesting date for the RSU with respect to which such dividend equivalents were credited, and will be paid in cash (or, if the dividend or distribution is paid in kind, in the same kind) at the time a stock certificate evidencing the shares represented by such vested RSU is delivered to you.

          2. Vesting of RSUs

          Your RSUs will become vested (and paid in accordance with Section 4 below) with respect to the following number(s) of shares of Common Stock on the following date(s) as set forth below, provided that you are in the Service (as defined below) of the Company or one of its subsidiaries on such date and the RSUs have not been forfeited in accordance with Sections 3 and 6:

 

 

 

 

Date

 

Number of Shares of Common Stock


 


 

April 1, 2012

 

6,250

 

 

The first calendar day of each month from May 1, 2012 to March 1, 2015, inclusive

 

521

 

 

April 1, 2015

 

515

 

For purposes hereof, you shall be considered to be in the “ Service ” of the Company or one of its subsidiaries if you are an employee of the Company (or one if its subsidiaries, as applicable) on the applicable vesting date. Except as provided in Sections 3 and 6 below, if your Service terminates for any reason, the RSUs granted to you which have not vested shall be forfeited upon such termination of Service.

          3. Accelerated Vesting in Certain Events

          Notwithstanding Section 2 of this Letter, any unvested RSUs immediately shall become fully vested and paid in accordance with Section 4 below upon the earliest to occur of either of the following: (i) the termination of your employment by the Company or any subsidiary thereof without Cause (as defined below) or by you with Good Reason (as defined below) prior to a Change of Control (as defined in the Plan) if such termination is related to the Change of Control; or (ii) a Change of Control, unless (A) either (x) the Company is the surviving corporation in the Change of Control and the award reflected in this Letter is equitably adjusted pursuant to Section 4.4 of the Plan or (y) the award reflected in this Letter is assumed or replaced by a Successor (as defined below) and (B) the award as so adjusted, assumed or replaced (x) has substantially the same potential economic benefits and vesting terms as did the award immediately prior to the Change of Control and (y) provides that the award immediately shall become fully vested and paid upon the termination of your employment (by the Company or any subsidiary thereof or by a Successor or any affiliate thereof) without Cause or by you with Good Reason at any time. If you are employed by a Successor or any affiliate thereof following a Change of Control, references in this Letter to the Company shall be understood to be references

2


to the Successor or any such affiliate regarding matters related to the occurrence of non-occurrence of events from and after the date you become employed by the Successor or such affiliate.

          You or your legal representatives shall deliver to the Company a written release, substantially in the form attached hereto as Exhibit A, and the time for revocation of such release shall have expired, no later than thirty (30) days following termination of your employment pursuant to this Section 3; provided, however, that such release shall be conditioned on the receipt from the Company of a release of you, provided that such release from the Company shall not be such a condition and shall be null and void and of no force or effect in the event of any act or omission by you that constitutes Cause or that could be a crime of any kind. If you fail to deliver such release as provided in the preceding sentence, then notwithstanding the foregoing, any RSUs granted pursuant to this Letter that were unvested at the effective date of the termination of your employment pursuant to this Section 3, shall be forfeited without payment.

          For purposes of this Letter, “ Cause ” shall be determined by the Committee in the exercise of its good faith judgment, in accordance with the following guidelines: (i) your willful misconduct or gross negligence in the performance of your obligations, duties and responsibilities as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary (including those as an employee of the Company set forth in the Company’s Code of Business Conduct and Ethics dated June 1, 2006, as same may be amended from time to time provided such amendment affects all executive officers of the Company), (ii) your dishonesty or misappropriation, in either case that is willful and material, relating to the Company or any of its funds, properties, or other assets, (iii) your inexcusable repeated or prolonged absence from work (other than as a result of, or in connection with, a Disability), (iv) any unauthorized disclosure by you of Confidential Information or proprietary information of the Company in violation of Section 7(d) which is reasonably likely to result in material harm to the Company, (v) your conviction of a felony (including entry of a guilty or nolo contender plea) involving fraud, dishonesty, or moral turpitude, (vi) a violation of federal or state securities laws, or (vii) the failure by you to attempt to perform faithfully your duties and responsibilities as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary, or other material breach by you of this Letter, provided any such failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) is not cured, to the extent cure is possible, by you within thirty (30) days after written notice thereof from the Company to you; provided, however, that no failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) shall constitute Cause unless (x) the Company first gives you written notice of its intention to terminate your employment for Cause and the grounds of such termination no fewer than ten (10) days prior to the date of termination; and (y) you are provided an opportunity to appear before the Board, with or without legal representation at your election to present arguments on your own behalf; and (z) if you elect to so appear, such failure or breach is not cured, to the extent cure is possible, within thirty (30) days after written notice from the Company to you that, following such appearance, the Board has determined in good faith that Cause exists and has not, following the initial notice from the Company, been cured; provided further, however, that notwithstanding anything to the contrary in this Letter and subject to the other terms of this proviso, the Company may take any and all actions, including without limitation suspension (but not without pay), it deems appropriate with

3


respect to you and your duties at the Company pending such appearance and subsequent to such appearance during which such failure or breach has not been cured. No act or failure to act on your part will be considered “willful” unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of the Company.

          It shall not be a violation of your employment with the Company, this Letter or any agreement to which you are, or may become, a party with the Company for you to, and you may continue to, serve as a Trustee of the WisdomTree Trust, GLG Investment Series Trust and Man Long Short Fund, provided that such service does not materially interfere with your ability to perform you duties to the Company (including without limitation your duty to serve as Corporate Secretary of the Company).

          For purposes of this Letter, “ Good Reason ” shall have the meaning ascribed to such term in Treasury Regulation Section 1.409A-1(n)(2)(ii), as determined in good faith by the Committee.

          For purposes of this Letter, “ Disability ” shall mean physical or mental incapacity of a nature which prevents you, in the good faith judgment of the Committee, from performing your duties and responsibilities as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary for a period of 90 consecutive days or 150 days during any year, with each year under this Letter commencing on each anniversary of the date hereof.

          4. Delivery of Common Stock

          Upon the vesting of your RSUs pursuant to Sections 2 or 3 above, a certificate for the shares of Common Stock represented by your vested RSUs shall be registered in your name and delivered to you as soon as practicable, but no later than thirty (30) days, after each of the vesting dates set forth in Sections 2 and 3. At the Company’s election, the Company may cause there to be deposited, into a brokerage account in your name, the number of shares represented by your vested RSU, via DWAC, within the time frame provided in the preceding sentence. Common Stock delivered upon the vesting of your RSUs will be fully transferable (subject to any applicable securities law restrictions) and not subject to forfeiture (other than as set forth in Section 6), and will entitle the holder to all rights of a stockholder of the Company.

          The Company will use reasonable commercial efforts to cause its Registration Statement on Form S-8 (or successor form) filed with the Securities and Exchange Commission covering shares subject to the Plan to remain effective and current until such times as all of the shares of Common Stock underlying your RSUs are either delivered hereunder or forfeited under Section 6 and, until three (3) months after you cease being an “affiliate” of the Company, to maintain a resale prospectus thereunder (or otherwise register under the Securities Act of 1933, as amended) the Common Stock underlying your RSUs.

4


          5. Income Tax Withholding

          You will be required to pay, pursuant to such arrangements as the Company may establish from time to time, any applicable federal, state and local withholding tax liability at the time that the value of the RSUs and/or related dividend equivalents becomes includable in your income. this regard, you will have the right to elect to have the minimum amount of any required tax withholding with respect to the vesting of RSUs satisfied by having the Company withhold a number of shares of Common Stock otherwise deliverable to you in connection with the vested RSUs having a Fair Market Value equal to such withholding tax liability.

          For purposes of this Letter, “ Fair Market Value ” of a share of Common Stock on any date shall be (i) if the principal market for the Common Stock is a national securities exchange, the closing sales price per share of the Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by such exchange or on a consolidated tape reflecting transactions on such exchange, or (ii) if the principal market for the Common Stock is not a national securities exchange, the closing average of the highest bid and lowest asked prices per share of Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by the market upon which the Common Stock is quoted, or an independent dealer in the Common Stock, as determined by the Company in good faith; provided, however, that if clauses (i) and (ii) are all inapplicable, or if no trades have been made and no quotes are available for such day, the Fair Market Value of the Common Stock shall be determined by the Committee in good faith by any method consistent with applicable regulations adopted by the United States Treasury Department relating to stock options or stock valuation.

          6. Forfeiture Events and Claw-Back

          Notwithstanding anything else in this Letter, all RSUs that have not been paid to you by delivery (in the case of your voluntary termination without Good Reason, that have not been vested rather than have not been delivered) of the underlying shares of Common Stock as required by Section 4 prior to April 1, 2015 shall be forfeited without payment (regardless of the vested status of the RSUs) if any one of the following occurs prior to delivery as required by Section 4 (vesting, in the case of your voluntary termination without Good Reason) of the shares of Common Stock underlying the RSUs: (i) the Company involuntarily terminates your employment as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary for Cause; (ii) you voluntarily terminate your employment as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary without Good Reason prior to April 1, 2015; (iii) you engage in Competitive Activity (as defined below) with the Company or any of its subsidiaries during your employment by the Company or any of its subsidiaries or within two (2) years after your service as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary terminates; or (iv) you breach any of the Restrictive Covenants set out in Section 7 within two (2) years after your cessation of employment with the Company or any subsidiary. The Company reserves the right (as provided below) to claw-back shares of Common Stock delivered under this Letter if you engage in Competitive Activity or violate any of the Restrictive Covenants within two (2) years after the delivery (vesting in the case of your voluntary termination without Good Reason) of such shares

5


of Common Stock. If the Committee determines, in its good faith discretion, that all or some portion of the shares of Common Stock delivered to you will be clawed-back, then you shall be required to repay to the Company an equal number of shares of Common Stock to that so delivered to you or, at your option, cash equal to the Fair Market Value at the date of delivery to you of such shares of Common Stock or a combination of shares of Common Stock having a Fair Market Value on the date of repayment equal to the Fair Market Value of such shares at the date of delivery thereof to you and such cash, in each case reduced by the amount of taxes paid by you with respect to the vesting, delivery and sale of such shares. In addition to any other remedy available to the Company under applicable law, the Company shall have the right to offset any other amounts payable to you by the amount of any required repayment by you which has not been repaid.

          For purposes of this Letter, “ Competitive Activity ” means your service as a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or you permit your name to be used in connection with the activities of, any other business or organization anywhere in the United States, or in any other geographic area in which the Company or any of its subsidiaries operates or with respect to which the Company provides financial news and commentary coverage (or from which such other business or organization provides financial news and commentary coverage of the United States), which engages in a business that competes with any business in which the Company or any subsidiary is engaged (a “ Competing Business ”); provided, however, that, notwithstanding the foregoing, it shall not be a Competitive Activity for you to (i) become the registered or beneficial owner of up to three percent (3%) of any class of capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that you do not otherwise participate in the business of such corporation or (ii) work in a non-competitive business of a company which is carrying on a Competing Business, the revenues of which represent less than twenty percent (20%) of the consolidated revenues of that company, or, as a result thereof, owning compensatory equity in that company.

          7. Restrictive Covenants

 

 

 

 

a.

Non-Solicitation of Employees

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit for employment or hire, in any business enterprise or activity, any employee of the Company or any subsidiary who was employed by the Company or a subsidiary during your period of employment by the Company or a subsidiary provided that (a) the foregoing shall not be violated by any general advertising not targeted at any Company or subsidiary employees nor by you serving as a reference upon request, and (b) you may solicit and hire any one or more former employees of the Company or its subsidiaries who had ceased being such an employee for a period of at least six (6) months prior to any such solicitation or hiring.

 

 

 

 

b.

Non-Solicitation of Clients and Vendors

6



 

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit, in any business enterprise or activity, any client, customer, licensee, licensor, third-party service provider or vendor (a “ Business Relation ”) of the Company or any subsidiary who was a Business Relation of the Company or any subsidiary during your period of employment by the Company or any subsidiary to (i) cease being a Business Relation of the Company or any subsidiary or (ii) become a Business Relation of a Competing Business unless (without you having solicited such third party to cease such relationship) such third party ceased being a Business Relation of the Company or any subsidiary for a period of at least six (6) months prior to such solicitation.

 

 

 

 

c.

Non-Disparagement

 

 

 

 

 

During your employment by the Company or any subsidiary and indefinitely thereafter, neither party shall make any statements, written or oral, to any third party which disparage, criticize, discredit or otherwise operate to the detriment of you or the Company, its present or former officers, shareholders, directors and employees and their respective business reputation and/or goodwill, provided, however, that nothing in this Section 7(c) shall prohibit either party from (i) making any truthful statements or disclosures required by applicable law regulation or (ii) taking any action to enforce its rights under this Letter or any other agreement in effect between the parties.

 

 

 

 

d.

Confidentiality

 

 

 

 

 

1)

During your employment by the Company or any subsidiary and indefinitely thereafter, you shall keep secret and retain in strictest confidence, any and all Confidential Information relating to the Company, except where your disclosure or use of such Confidential Information is in furtherance of the performance by you of your duties to the Company and not for personal benefit or the benefit of any interest adverse to the Company’s interests. For purposes of this Letter, “ Confidential Information ” shall mean any information including without limitation plans, specifications, models, samples, data, customer lists and customer information, computer programs and documentation, and other technical and/or business information, in whatever form, tangible or intangible, that can be communicated by whatever means available at such time, that relates to the Company’s current business or future business contemplated during your employment, products, services and development, or information received from others that the Company is obligated to treat as confidential or proprietary (provided that such confidential information shall not include any information that (a) has become generally available to the public or is generally known in the relevant trade or industry other than as a result of an improper disclosure by you, or (b) was available to or became known to you prior to the disclosure of such information on a non-confidential basis without breach of any duty of

7



 

 

 

 

 

confidentiality to the Company), and you shall not disclose such confidential information to any Person (as defined below) other than the Company, except with the prior written consent of the Company, as may be required by law or court or administrative order (in which event you shall so notify the Company as promptly as practicable), or in performance of your duties on behalf of the Company. Further, this Section 7(d) shall not prevent you from disclosing Confidential Information in connection with any litigation, arbitration or mediation to enforce this Letter or other agreement between the parties, provided such disclosure is necessary for you to assert any claim or defense in such proceeding.

 

 

 

 

 

For purposes of this Letter, “ Person ” shall mean an individual, corporation, partnership, limited liability company, limited liability partnership, association, trust or other unincorporated organization or entity.

 

 

 

 

2)

Upon your termination of employment for any reason, you shall return to the Company all copies, reproductions and summaries of Confidential Information in your possession and use reasonable efforts to erase the same from all media in your possession, and, if the Company so requests, shall certify in writing that you have done so, except that you may retain such copies, reproductions and summaries during any period of litigation, arbitration or mediation referred to in Section 7(d)(1). All Confidential Information is and shall remain the property of the Company (or, in the case of information that the Company receives from a third party which it is obligated to treat as confidential, then the property of such third party); provided, you shall be entitled to retain copies of (i) information showing your compensation or relating to reimbursement of expenses, (ii) information that is required for the preparation of your personal income tax return, (iii) documents provided to you in your capacity as a participant in any employee benefit plan, policy or program of the Company and (iv) this Letter and any other agreement by and between you and the Company with regard to your employment or termination thereof.

 

 

 

 

3)

All Intellectual Property (as hereinafter defined) and Technology (as hereinafter defined) created, developed, obtained or conceived of by you during your employment, and all business opportunities presented to you during your employment, shall be owned by and belong exclusively to the Company, provided that they reasonably relate to any of the business of the Company on the date of such creation, development, obtaining or conception, and you shall (i) promptly disclose any such Intellectual Property, Technology or business opportunity to the Company, and (ii) execute and deliver to the Company, without additional compensation, such instruments as the Company may require from time to time to evidence its ownership of any such Intellectual Property, Technology or business opportunity. For purposes of this Letter, (x) the term “ Intellectual Property ” means and includes any and all trademarks, trade names, service marks, service names, patents, copyrights, and applications therefor, and (y) the term “ Technology ” means and includes any and all trade secrets, proprietary

8



 

 

 

information, invention, discoveries, know-how, formulae, processes and procedures.

          The parties acknowledge that the restrictions contained in this Section 7 are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions could cause substantial injury to the Company and that the Company would not have entered into this Letter, without receiving the additional consideration offered by you in binding yourself to any of these restrictions. In the event of a breach or threatened breach by you of any of these restrictions, the Company shall be entitled to apply to any court of competent jurisdiction for an injunction restraining you from such breach or threatened breach; provided, however, that the right to apply for an injunction shall not be construed as prohibiting the Company from pursuing any other available remedies for such breach or threatened breach.

          8. No Guarantee of Continuation of Service

          This grant of RSUs does not constitute an assurance of continued Service for any period or in any way interfere with the Company’s right to terminate your Service.

          9. Administration

          The Committee has the sole power to exercise its good faith judgment to interpret the Plan and this Letter and to act upon all matters relating this grant to the extent provided in the Plan and not inconsistent with the terms of this Letter. Any decision, determination, interpretation, or other action taken pursuant to the provisions of the Plan and this Letter by the Committee shall be final, binding, and conclusive.

          10. Section 409A

          Notwithstanding any provision of the Plan or this grant to the contrary, if you are a “specified employee” as determined by the Board or the Committee, in accordance with Section 409A of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder (“ Section 409A ”), you shall not be entitled to any payments of amounts which constitute deferred compensation within the meaning of Section 409A upon a termination of your employment until the earlier of (i) the date which is six (6) months after your termination of employment for any reason other than death (except that during such six (6) month period you may receive total payments from the Company that do not exceed the amount specified in Treas. Reg. Section 1.409A-1(b)(9) or that constitute a short-term deferral within the meaning of Section 409A), or (ii) the date of your death.

          Notwithstanding any provision of the Plan or this Letter to the contrary, to the extent any compensation or award which constitutes deferred compensation within the meaning of Section 409A shall vest upon the occurrence of a Change of Control and such Change of Control does not constitute a “change in the ownership or effective control” or a “change in the ownership or a substantial portion of the assets” of the Company within the meaning of Section 409A, then notwithstanding such vesting, payment will be made to you on the earliest of (i) your “separation from service” with the Company (determined in accordance with Section 409A) or, if you are a

9


specified employee within the meaning of Section 409A, such later date as provided in the preceding paragraph, (ii) the date payment otherwise would have been made, or (iii) the date of your death.

          If any provision of this Agreement or of any award of compensation, including equity compensation or benefits would cause you to incur any additional tax or interest under Section 409A, the parties agree to negotiate in good faith to reform such provision in such manner as to maintain, to the maximum extent practicable, the original intent and economic terms of the applicable provision without violating the provisions of Section 409A.

          11. Amendment

          The Committee may from time to time amend the terms of this grant in accordance with the terms of the Plan in effect at the time of such amendment, but no amendment which is unfavorable to you can be made without your written consent.

          The Plan is of unlimited duration, but may be amended, terminated or discontinued by the Board of Directors of the Company at any time. However, no amendment, termination or discontinuance of the Plan will unfavorably affect this grant.

          Notwithstanding the foregoing, the Committee expressly reserves the right to amend the terms of the Plan and this grant with your consent which shall not be unreasonably withheld to the extent it determines that such amendment is necessary or desirable for an exemption from or compliance with the distribution, acceleration and election requirements of Section 409A of the Code.

          12. Notices

          Unless otherwise provided herein, any notice, exercise of rights or other communication required or permitted to be given hereunder shall be in writing and shall be given by overnight delivery service such as Federal Express or personal delivery against receipt, or mailed by registered or certified mail (return receipt requested), to the party to whom it is given at, in the case of the Company, Compensation Committee Chair, TheStreet.com, Inc., 14 Wall Street, 15 th Floor, New York, NY 10005, or, in the case of you, at your principal residence address as then reflected on the records of the Company or such other address as such party may hereafter specify by notice to the other party hereto. Any notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by telecopy or like transmission or on the next business day after sent by overnight delivery service for next business day delivery or on the fifth business day after sent by registered or certified mail.

          13. Representations

          The Company hereby represents and warrants that the execution and delivery of this Letter and the performance by the Company of its obligations hereunder have been duly authorized by all necessary corporate action of the Company.

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          14. Amendment

          This Letter may be amended only by a written agreement signed by the parties hereto.

          15. Binding Effect

          This Letter shall be binding upon and inure to the benefit of the Company and any Successor. As used herein, a “ Successor ” shall mean any successor organization that succeeds to the Company (or to any direct or indirect successor) by merger or consolidation or operation of law, or by acquisition of all or substantially all of the assets of the Company (or of any direct or indirect successor).

          16. Governing Law

          This Letter shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts to be performed wholly within the state and without regard to its conflict of laws provisions that would defer to the laws of another jurisdiction, except to the extent the laws of the State of Delaware mandatorily govern.

          17. Severability

          If any provision of this Letter shall for any reason be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Moreover, if any one or more of the provisions of this Letter shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowable by applicable law. To the extent permitted by applicable law, each party hereto waives any provision of law that renders any provision of this Letter invalid, illegal or unenforceable in any way.

          18. Execution in Counterparts

          This Letter may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument.

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          19. Entire Agreement

          This Letter, together with (i) the Severance Agreement between the Company and you, as amended as of the same date as this Letter and (ii) award agreements entered into by and between you and the Company with respect to outstanding incentive awards and incentive awards granted on or before the date hereof, sets forth the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.

          20. Titles and Headings

          Titles and headings to Sections herein are for purposes of reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of any of the provisions of this Letter.

          21. Consent to Jurisdiction

          The parties hereto each hereby irrevocably submit to the exclusive jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan, City of New York in any action or proceeding to enforce the provisions of this Letter, and waives the defense of inconvenient forum to the maintenance of any such action or proceeding.


          This Letter contains the formal terms and conditions of your award and accordingly should be retained in your files for future reference. The Company may require you to provide evidence of your acknowledgment of this Letter using such means of notification as may be communicated to you by the Company or its service provider.

 

 

 

 

 

Very truly yours,

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

By:

 

 

 


 

Name: Daryl R. Otte

 

Title: Chief Executive Officer

 

 

AGREED TO AND ACCEPTED:

 

 

 


 

 

Gregory E. Barton

 

12


EXHIBIT A

Form of Release

This Release (this “Release”) is entered into by Gregory E. Barton (“Barton”) and TheStreet.com, Inc., a Delaware corporation (the “Company”), effective as of [DATE] (the “Effective Date”).

In consideration of the promises set forth in the Agreement for Grant of Restricted Stock Units Under 2007 Performance Incentive Plan between Barton and the Company, dated as of March 28, 2011 (the “Agreement”), Barton and the Company agree as follows:

          1. General Releases and Waivers of Claims .

                    (a) Barton’s Release of Company . In consideration of the payments and benefits provided to Barton under the Agreement and after consultation with counsel, Barton on behalf of himself and each of his respective heirs, executors, administrators, representatives, agents, successors and assigns (collectively, the “Barton Parties”) hereby irrevocably and unconditionally release and forever discharge the Company and its subsidiaries and affiliates and each of their respective officers, employees, directors, shareholders and agents (“Company Parties”) from any and all claims, actions, causes of action, rights, judgments, fees and costs (including attorneys’ fees), obligations, damages, demands, accountings or liabilities of whatever kind or character (collectively, “Claims”), including, without limitation, any Claims based upon contract, tort, or under any federal, state, local or foreign law, that the Barton Parties may have, or in the future may possess, arising out of any aspect of Barton’s employment relationship with and service as an employee, officer, director or agent of the Company, or the termination of such relationship or service, that occurred, existed or arose on or prior to the date hereof; provided, however, that Barton does not release, discharge or waive (i) any rights to payments and benefits provided under the Agreement, (ii) any right Barton may have to enforce this Release or the Agreement, (iii) Barton’s eligibility for indemnification in accordance with the Company’s certificate of incorporation, bylaws or other corporate governance document, any applicable insurance policy or any contract or provision to which Barton is a party or as to which Barton otherwise is entitled to indemnification benefits, with respect to any liability he incurred or might incur as an employee, officer or director of the Company, (iv) any claims for accrued, vested benefits under any employee benefit or pension plan of the Company Parties subject to the terms and conditions of such plan and applicable law including, without limitation, any such claims under COBRA or the Employee Retirement Income Security Act of 1974, (v) any rights under or in respect of (A) that certain Severance Agreement between Barton and the Company, dated as of July 14, 2009, (B) the agreement dated as of July 14, 2009 related to the grant of restricted stock units, (C) the agreement dated as of March 28, 2011 related to the grant of stock options or (D) any written agreements that may be executed by the parties after March 28, 2011 (as each may have been amended in writing, collectively, the “Applicable Agreements”).

                    (b) Executive’s Specific Release of ADEA Claims . In further consideration of the payments and benefits provided to Barton under the Agreement, Barton on behalf of himself and the other Barton Parties hereby unconditionally release and forever discharge the Company Parties from any and all Claims that the Barton Parties may have as of the date Barton signs this Release arising under the Federal Age Discrimination in Change of Control and Severance Act of 1967, as amended, and the applicable rules and regulations promulgated thereunder (“ADEA”). By signing this Release, Barton hereby acknowledges and confirms the following: (i) Barton was advised by the Company in connection with his termination to consult with an attorney of his choice prior to signing this Release and to have such attorney explain to him the terms of this Release, including, without limitation, the terms relating to his release of claims arising under ADEA, and Barton has in fact consulted with an attorney; (ii) Barton was given a period of not fewer than 21 days to consider the terms of this Release and to consult with an attorney of his choosing with respect thereto; and (iii) Barton knowingly and voluntarily accepts the terms of this Release. Barton also understands that he has seven (7) days following the date on which he signs this Release within which to revoke the release contained in this paragraph, by providing the Company a written notice of his revocation of the release and waiver contained in this paragraph.

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                    (c) Company’s Release of Executive . The Company for itself and on behalf of the Company Parties hereby irrevocably and unconditionally release and forever discharge the Barton Parties from any and all Claims, including, without limitation, any Claims based upon contract, tort, or under any federal, state, local or foreign law, that the Company Parties may have, or in the future may possess, arising out of any aspect of Barton’s employment relationship with and service as an employee, officer, director or agent of the Company, or the termination of such relationship or service, that occurred, existed or arose on or prior to the date hereof, excepting (i) any Claim which would constitute or result from conduct by Barton that constituted the basis for termination for Cause under the Agreement or could be a crime of any kind. Anything to the contrary notwithstanding in this Release, nothing herein shall release Barton or any other Executive Party from any Claims based on any right the Company may have to enforce this Release or the Agreement, or (ii) any rights under Sections 6 (other than clauses (i) and (ii) thereof) or 7 of the Agreement, or (iii) any rights arising under or in respect of any of the Applicable Agreements.

                    (d) No Assignment . The parties represent and warrant that they have not assigned any of the Claims being released under this Release.

          2. Proceedings . Neither Barton nor the Company have filed, any complaint, charge, claim or proceeding against the other party before any local, state or federal agency, court or other body relating to Barton’s employment or the termination thereof (each, individually, a “Proceeding”).

          3. Remedies .

                    (a) In the event Barton initiates or voluntarily participates in any Proceeding involving any of the matters waived or released in this Release, or if he fails to abide by any of the terms of this Release, or if he revokes the ADEA release contained in Paragraph 1(b) of this Release within the seven-day period provided under Paragraph 1(b), the Company may, in addition to any other remedies it may have, reclaim any amounts paid to him, and terminate any benefits or payments that are due, pursuant to the termination provisions of the Agreement, without waiving the release granted herein. In addition, in the event that Barton has failed to comply with Sections 6 and/or 7 of the Agreement (other than as a result of an unintentional and immaterial disclosure of confidential information), the Company may, in addition to any other remedies it may have, to the extent permitted in the Agreement reclaim any amounts paid to him pursuant to the Agreement, without waiving the release granted herein. Barton acknowledges and agrees that the remedy at law available to the Company for breach of any of his post-termination obligations under the Agreement or his obligations herein would be inadequate and that damages flowing from such a breach may not readily be susceptible to being measured in monetary terms. Accordingly, Barton acknowledges, consents and agrees that, in addition to any other rights or remedies that the Company may have at law or in equity, the Company shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction, or both, without bond or other security, restraining Barton from breaching his post-termination obligations under the Agreement or his obligations hereunder. Such injunctive relief in any court shall be available to the Company, in lieu of, or prior to or pending determination in, any arbitration proceeding.

                    (b) Barton understands that by entering into this Release he will be limiting the availability of certain remedies that he may have against the Company and limiting also his ability to pursue certain claims against the Company.

                    (c) The Company acknowledges and agrees that the remedy at law available to Barton for breach of any of its post-termination obligations under the Agreement or its obligations hereunder would be inadequate and that damages flowing from such a breach may not readily be susceptible to being measured in monetary terms. Accordingly, the Company acknowledges, consents and agrees that, in addition to any other rights or remedies that Barton may have at law or in equity, Barton shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction, or both, without bond or other security, restraining the Company from breaching its post-termination obligations under the Agreement or its obligations hereunder. Such injunctive relief in any court shall be available to Barton, in lieu of, or prior to or pending determination in, any arbitration proceeding.

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                    (d) The Company understands that by entering into this Release it will be limiting the availability of certain remedies that it may have against Barton and limiting also its ability to pursue certain claims against Barton.

          4. Severability Clause . In the event any provision or part of this Release is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Release, will be inoperative.

          5. Nonadmission . Nothing contained in this Release will be deemed or construed as an admission of wrongdoing or liability on the part of the Company or Barton.

          6. Governing Law . All matters affecting this Release, including the validity thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the New York applicable to contracts executed in and to be performed in that State.

          7. Notices . All notices or communications hereunder shall be made in accordance with Section 3 of the Agreement.

          BARTON ACKNOWLEDGES THAT HE HAS READ THIS RELEASE AND THAT HE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT HE HEREBY EXECUTES THE SAME AND MAKES THIS RELEASE AND THE RELEASE AND AGREEMENTS PROVIDED FOR HEREIN VOLUNTARILY AND OF HIS OWN FREE WILL.

          IN WITNESS WHEREOF, the parties have executed this Release as of _______________, 20__.

 

 

 

 

 


 

 

Gregory E. Barton

 

 

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

 

 

By:

 

 

 

 


 

 

Name:

 

 

 

 


 

 

Title:

 

 

 

 


 

15


Exhibit 10.8

THESTREET.COM, INC.
AGREEMENT FOR GRANT
OF
STOCK OPTIONS
UNDER
2007 PERFORMANCE INCENTIVE PLAN

March 28, 2011

Gregory E. Barton
c/o TheStreet.com, Inc.
14 Wall Street
15 th Floor
New York, NY 10005

Dear Greg:

          This letter (the “ Letter ) sets forth the terms and conditions of the stock option (“ Option ”) hereby awarded to you by TheStreet.com, Inc. (the “ Company ”), in accordance with the provisions of the Company’s 2007 Performance Incentive Plan (the “ Plan ”).

          This award is subject to the terms and conditions set forth in the Plan, any rules and regulations adopted by the Board of Directors of the Company (the “ Board ”) or the committee of the Board which administers the Plan (the “ Committee ”), and this Letter. The provisions of the Plan are hereby incorporated by reference and any term used in this Letter and not defined herein shall have the meaning set forth in the Plan. Unless otherwise indicated, section references contained in this Letter shall refer to the corresponding sections of this Letter.

          1. Option Grant

          You have been granted an Option to purchase 45,000 shares of the Company’s Common Stock (“ Common Stock ”) to the extent the Option is exercisable as set forth below. The Option may not be sold, transferred, assigned, pledged or otherwise encumbered by you, in whole or in part; provided that the foregoing shall not affect your right to name a beneficiary under Section 13 of the Plan. The Option may be exercised only by you, except that in the event of your death, the Option may be exercised (at any time prior to its expiration or termination as provided in Sections 8 and 11) by the executor or administrator of your estate or by a person who acquired the right to exercise your Option by will or pursuant to the laws of descent and distribution. Until such time as stock certificates for the shares of Common Stock represented by the purchase of all or portion of the Option have been delivered to you in accordance with Section 4, you shall have none of the rights of a stockholder with respect to the Common Stock with respect to such shares.

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          2. Option Exercise Price

          The price at which you may purchase the shares of Common Stock underlying the Option is $3.24 per share.

          3. Term of Option

          Your Option shall expire, to the extent that it has not previously terminated, on March 28, 2016. However, your Option may terminate prior to such expiration date as provided in Sections 8 and 11. Regardless of the provisions of Sections 5 or 8 or any other provision hereof, in no event can your Option be exercised after the expiration date set forth in this Section 3.

          4. Exercisability of Option

          Your Option will become exercisable with respect to the following number(s) of shares of Common Stock on the following date(s) as set forth below, provided that you are in the Service (as defined below) of the Company or one of its subsidiaries on such date and the Option has not been terminated in accordance with Sections 8 or 11:

 

 

 

 

 

Date

 

 

Number of Shares of Common Stock


 


 

April 1, 2012

 

11,250

 

 

 

 

 

 

The first calendar day of each month from May 1, 2012 to March 1, 2015, inclusive

 

938

 

 

 

 

 

 

April 1, 2015

 

920

 

For purposes hereof, you shall be considered to be in the “ Service ” of the Company or one of its subsidiaries if you are an employee of the Company (or one if its subsidiaries, as applicable) on the applicable vesting date.

          To the extent that your Option has become exercisable with respect to a number of shares of Common Stock, you may exercise the Option to purchase all or any portion of such shares of Common Stock at any time on or before the date the Option expires or terminates; provided that you may only purchase a whole number of shares of Common Stock.

          5. Accelerated Vesting in Certain Events

          Notwithstanding Section 4, upon the occurrence of any of the following events, the then-unvested portion of the Option shall become exercisable and may be exercised; provided that such portion of the Option only may be exercised within ninety (90) calendar days from the occurrence of such event (but in no event beyond the date set forth in Section 3): (i) the termination of your employment by the Company or any subsidiary thereof without Cause (as defined below) or by you with Good Reason (as defined below) prior to a Change of Control (as

2


defined in the Plan) if such termination is related to the Change of Control; or (ii) a Change of Control, unless (A) either (x) the Company is the surviving corporation in the Change of Control and the award reflected in this Letter is equitably adjusted pursuant to Section 4.4 of the Plan or (y) the award reflected in this Letter is assumed or replaced by a Successor (as defined below) and (B) the award as so adjusted, assumed or replaced (x) has substantially the same potential economic benefits and vesting terms as did the award immediately prior to the Change of Control and (y) provides that the award immediately shall become fully vested and exercisable upon the termination of your employment (by the Company or any subsidiary thereof or by a Successor or any affiliate thereof) without Cause or by you with Good Reason at any time (provided that such portion of the Option only may be exercised within ninety (90) calendar days from such termination (but in no event beyond the date set forth in Section 3)). If you are employed by a Successor or any affiliate thereof following a Change of Control, references in this Letter to the Company shall be understood to be references to the Successor or any such affiliate regarding matters related to the occurrence of non-occurrence of events from and after the date you become employed by the Successor or such affiliate.

          For purposes of this Letter, “ Cause ” shall be determined by the Committee in the exercise of its good faith judgment, in accordance with the following guidelines: (i) your willful misconduct or gross negligence in the performance of your obligations, duties and responsibilities as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary (including those as an employee of the Company set forth in the Company’s Code of Business Conduct and Ethics dated June 1, 2006, as same may be amended from time to time provided such amendment affects all executive officers of the Company), (ii) your dishonesty or misappropriation, in either case that is willful and material, relating to the Company or any of its funds, properties, or other assets, (iii) your inexcusable repeated or prolonged absence from work (other than as a result of, or in connection with, a Disability), (iv) any unauthorized disclosure by you of Confidential Information or proprietary information of the Company in violation of Section 12(d) which is reasonably likely to result in material harm to the Company, (v) your conviction of a felony (including entry of a guilty or nolo contender plea) involving fraud, dishonesty, or moral turpitude, (vi) a violation of federal or state securities laws, or (vii) the failure by you to attempt to perform faithfully your duties and responsibilities as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary, or other material breach by you of this Letter, provided any such failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) is not cured, to the extent cure is possible, by you within thirty (30) days after written notice thereof from the Company to you; provided, however, that no failure or breach described in clauses (i), (ii), (iii), (iv), (vi) and (vii) shall constitute Cause unless (x) the Company first gives you written notice of its intention to terminate your employment for Cause and the grounds of such termination no fewer than ten (10) days prior to the date of termination; and (y) you are provided an opportunity to appear before the Board, with or without legal representation at your election to present arguments on your own behalf; and (z) if you elect to so appear, such failure or breach is not cured, to the extent cure is possible, within thirty (30) days after written notice from the Company to you that, following such appearance, the Board has determined in good faith that Cause exists and has not, following the initial notice from the Company, been cured; provided further, however, that notwithstanding anything to the contrary in this Letter and subject to the other terms of this proviso, the Company may take any and all actions, including without limitation suspension (but not without pay), it deems appropriate with

3


respect to you and your duties at the Company pending such appearance and subsequent to such appearance during which such failure or breach has not been cured. No act or failure to act on your part will be considered “willful” unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of the Company.

          It shall not be a violation of your employment with the Company, this Letter or any agreement to which you are, or may become, a party with the Company for you to, and you may continue to, serve as a Trustee of the WisdomTree Trust, GLG Investment Series Trust and Man Long Short Fund, provided that such service does not materially interfere with your ability to perform you duties to the Company (including without limitation your duty to serve as Corporate Secretary of the Company) .

          For purposes of this Letter, “ Good Reason ” shall have the meaning ascribed to such term in Treasury Regulation Section 1.409A-1(n)(2)(ii), as determined in good faith by the Committee.

          For purposes of this Letter, “ Disability ” shall mean physical or mental incapacity of a nature which prevents you, in the good faith judgment of the Committee, from performing your duties and responsibilities as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary for a period of 90 consecutive days or 150 days during any year, with each year under this Letter commencing on each anniversary of the date hereof.

          6. Manner of Exercise

          You may exercise your Option by giving notice to the Company (or to such service provider as the Company may designate), following such procedures as may be communicated to you from time to time.

          The shares of Common Stock represented by the exercise of your Option may consist of authorized but unissued shares or treasury shares of the Company, as determined from time to time by the Committee.

          7. Satisfaction of Option Exercise Price

          The Option may be exercised by payment of the option exercise price in cash (including check, bank draft, money order, or wire transfer). In addition, your Option may be exercised using such broker cashless exercise procedure or other procedure as the Company may establish from time to time.

          8. Termination of Service

          (a) General. If your Service terminates for any reason other than for Cause, the Option will terminate ninety (90) calendar days after such termination of Service. Following the termination of your Service, no additional portions of the Option will become exercisable, and the Option will be exercisable only to the extent exercisable on the date of such termination of

4


Service. If your Service terminates for Cause, the Option shall be immediately terminated and may not be exercised.

          (b) Adjustments by the Committee. The Committee may, in its discretion, exercised before or after your termination of Service, declare all or any portion of the Option immediately exercisable and/or permit all or any part of the Option to remain exercisable for such period designated by it after the time when the Option would have otherwise terminated as provided in Section 8(a), but not beyond the expiration date of your Option as set forth in Section 3 above.

          (c) Committee Determinations. The Committee shall have absolute discretion to determine the date and circumstances of the termination of your Service, and its determination shall be final, conclusive and binding upon you.

          9. Restrictions on Option Exercise; Delivery of Shares

          (a) Even though your Option may be otherwise exercisable, your right to exercise the Option will be suspended if the Committee determines that your exercise of the Option would violate applicable laws or regulations. The suspension will last until the exercise would be lawful. Any such suspension will not extend the term of your Option.

          (b) Even though your Option may be otherwise exercisable, the Committee may refuse to permit such exercise if it determines, in its discretion, that any of the following circumstances is present:

 

 

 

 

(i)

the shares of Common Stock to be acquired upon such exercise are required to be registered or qualified under any federal or state securities law, or to be listed on any securities exchange or quotation system, and such registration, qualification, or listing has not occurred;

 

 

 

 

(ii)

the consent or approval of any government regulatory body is required and has not been obtained;

 

 

 

 

(iii)

the satisfaction of withholding tax is required and has not occurred;

 

 

 

 

(iv)

representations by you or other information is determined by counsel for the Company to be necessary or desirable in order to comply with any federal or state securities laws or regulations, and you have not provided such representations or information; or

 

 

 

 

(v)

an agreement by you with respect to the disposition of shares of Common Stock to be acquired upon exercise of your Option is determined by the Committee to be necessary or desirable in order to comply with any federal or state securities laws or regulations, or is required by the terms of this Letter, and you have not executed such agreement.

          (c) Shares of Common Stock to be delivered to you in connection with any exercise of the Option shall be delivered to you as soon as practicable and, at the Company’s election, the

5


Company may effect such delivery by causing such number of shares of Common Stock to be deposited via DWAC into a brokerage account in your name. Common Stock delivered upon the exercise of the Option will be fully transferable (subject to any applicable securities law restrictions) and not subject to forfeiture (other than as set forth in Section 11), and will entitle the holder to all rights of a stockholder of the Company.

          (d) The Company will use reasonable commercial efforts to cause its Registration Statement on Form S-8 (or successor form) filed with the Securities and Exchange Commission covering shares subject to the Plan to remain effective and current until such times as all of the shares of Common Stock underlying your Option are either delivered hereunder or the Option has expired or been terminated pursuant to the terms of this Letter , until three (3) months after you cease being an “affiliate” of the Company, to maintain a resale prospectus thereunder (or otherwise register under the Securities Act of 1933, as amended) the Common Stock underlying your Option.

          10. Income Tax Withholding

          In connection with the exercise of your Option, you will be required to pay, pursuant to such arrangements as the Company may establish from time to time, any applicable federal, state and local withholding tax liability. If you fail to satisfy your withholding obligation in a time and manner satisfactory to the Committee, the Company shall have the right to withhold the required amount from your salary or other amounts payable to you.

          11. Additional Termination Events and Claw-Back

          Notwithstanding anything else in this Letter, the unexercised portion of the Option shall be terminated (regardless of the extent to which it is exercisable) if any one of the following occurs: (i) you engage in Competitive Activity (as defined below) with the Company or any of its subsidiaries during your employment by the Company or any of its subsidiaries or within two (2) years after your service as Executive Vice President, Business and Legal Affairs, General Counsel and Secretary terminates; or (ii) you breach any of the Restrictive Covenants set out in Section 12 within two (2) years after your cessation of employment with the Company or any subsidiary.

          The Company reserves the right (as provided below) to claw-back shares of Common Stock delivered under this Letter pursuant to each exercise of the Option by you if you engage in Competitive Activity or violate any of the Restrictive Covenants within two (2) years after the delivery of such shares of Common Stock. If the Committee determines, in its good faith discretion, that all or some portion of the shares of Common Stock delivered to you will be clawed-back, then you shall be required to repay to the Company the Repayment Amount (as defined below) with respect to such shares of Common Stock. You may satisfy the payment obligation set forth in the preceding sentence by paying the Company cash, by delivering to the Company shares of Common Stock, or by remitting to the Company a combination of cash and shares of Common Stock, such that the Fair Market Value (measured as of the day before your delivery to the Company of shares of Common Stock) of any shares of Common Stock you deliver to the Company, plus the amount of any cash you pay to the Company, equals the

6


Repayment Amount. The “ Repayment Amount ” with respect to the shares of Common Stock delivered to you upon any exercise of the Option shall mean the lesser of the Exercise Date Spread Value (as defined below) with respect to such exercise of the Option and the Delivery Date Spread Value (as defined below) with respect to such exercise of the Option, in each case reduced by the amount of taxes paid by you with respect to such exercise of the Option; provided that neither the Exercise Date Spread Value nor the Delivery Date Spread Value shall be less than zero. With respect to each exercise you made of the Option, the “ Exercise Date Spread Value ” is the amount, if any, by which the Fair Market Value (measured as of the date of exercise) of the number of shares of Common Stock underlying the Option with respect to which the Option was exercised on such date, exceeded the aggregate option exercise price for such shares. With respect to each exercise you made of the Option, the “ Delivery Date Spread Value ” is the amount, if any, by which the Fair Market Value (measured as of the day before you remit the Repayment Amount to the Company) of the number of shares of Common Stock underlying the Option with respect to which the Option was exercised, exceeded the aggregate option exercise price for such shares. In addition to any other remedy available to the Company under applicable law, the Company shall have the right to offset any other amounts payable to you by the amount of any required repayment by you which has not been repaid.

          For purposes of this Letter, “ Competitive Activity ” means your service as a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or you permit your name to be used in connection with the activities of, any other business or organization anywhere in the United States, or in any other geographic area in which the Company or any of its subsidiaries operates or with respect to which the Company provides financial news and commentary coverage (or from which such other business or organization provides financial news and commentary coverage of the United States), which engages in a business that competes with any business in which the Company or any subsidiary is engaged (a “ Competing Business ”); provided, however, that, notwithstanding the foregoing, it shall not be a Competitive Activity for you to (i) become the registered or beneficial owner of up to three percent (3%) of any class of capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that you do not otherwise participate in the business of such corporation or (ii) work in a non-competitive business of a company which is carrying on a Competing Business, the revenues of which represent less than twenty percent (20%) of the consolidated revenues of that company, or, as a result thereof, owning compensatory equity in that company.

          For purposes of this Letter, “ Fair Market Value ” of a share of Common Stock on any date shall be (i) if the principal market for the Common Stock is a national securities exchange, the closing sales price per share of the Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by such exchange or on a consolidated tape reflecting transactions on such exchange, or (ii) if the principal market for the Common Stock is not a national securities exchange, the closing average of the highest bid and lowest asked prices per share of Common Stock on such day (or, if such exchange is not open on such day, on the next day such exchange is open) as reported by the market upon which the Common Stock is quoted, or an independent dealer in the Common Stock, as determined by the Company in good faith; provided, however, that if clauses (i) and (ii) are all inapplicable, or if no trades have been made and no quotes are available for such day, the Fair Market Value of the

7


Common Stock shall be determined by the Committee in good faith by any method consistent with applicable regulations adopted by the United States Treasury Department relating to stock options or stock valuation.

          12. Restrictive Covenants

 

 

 

 

a.

Non-Solicitation of Employees

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit for employment or hire, in any business enterprise or activity, any employee of the Company or any subsidiary who was employed by the Company or a subsidiary during your period of employment by the Company or a subsidiary provided that (a) the foregoing shall not be violated by any general advertising not targeted at any Company or subsidiary employees nor by you serving as a reference upon request, and (b) you may solicit and hire any one or more former employees of the Company or its subsidiaries who had ceased being such an employee for a period of at least six (6) months prior to any such solicitation or hiring.

 

 

 

 

b.

Non-Solicitation of Clients and Vendors

 

 

 

 

 

You agree that, during your employment by the Company or any subsidiary and through the end of two (2) years after your cessation of employment with the Company or any subsidiary, you will not solicit, in any business enterprise or activity, any client, customer, licensee, licensor, third-party service provider or vendor (a “ Business Relation ”) of the Company or any subsidiary who was a Business Relation of the Company or any subsidiary during your period of employment by the Company or any subsidiary to (i) cease being a Business Relation of the Company or any subsidiary or (ii) become a Business Relation of a Competing Business unless (without you having solicited such third party to cease such relationship) such third party ceased being a Business Relation of the Company or any subsidiary for a period of at least six (6) months prior to such solicitation.

 

 

 

 

c.

Non-Disparagement

 

 

 

 

 

During your employment by the Company or any subsidiary and indefinitely thereafter, neither party shall make any statements, written or oral, to any third party which disparage, criticize, discredit or otherwise operate to the detriment of you or the Company, its present or former officers, shareholders, directors and employees and their respective business reputation and/or goodwill, provided, however, that nothing in this Section 12(c) shall prohibit either party from (i) making any truthful statements or disclosures required by applicable law regulation or (ii) taking any action to enforce its rights under this Letter or any other agreement in effect between the parties.

8



 

 

 

 

 

d.

Confidentiality

 

 

 

 

 

 

1)

During your employment by the Company or any subsidiary and indefinitely thereafter, you shall keep secret and retain in strictest confidence, any and all Confidential Information relating to the Company, except where your disclosure or use of such Confidential Information is in furtherance of the performance by you of your duties to the Company and not for personal benefit or the benefit of any interest adverse to the Company’s interests. For purposes of this Letter, “ Confidential Information ” shall mean any information including without limitation plans, specifications, models, samples, data, customer lists and customer information, computer programs and documentation, and other technical and/or business information, in whatever form, tangible or intangible, that can be communicated by whatever means available at such time, that relates to the Company’s current business or future business contemplated during your employment, products, services and development, or information received from others that the Company is obligated to treat as confidential or proprietary (provided that such confidential information shall not include any information that (a) has become generally available to the public or is generally known in the relevant trade or industry other than as a result of an improper disclosure by you, or (b) was available to or became known to you prior to the disclosure of such information on a non-confidential basis without breach of any duty of confidentiality to the Company), and you shall not disclose such confidential information to any Person (as defined below) other than the Company, except with the prior written consent of the Company, as may be required by law or court or administrative order (in which event you shall so notify the Company as promptly as practicable), or in performance of your duties on behalf of the Company. Further, this Section 12(d) shall not prevent you from disclosing Confidential Information in connection with any litigation, arbitration or mediation to enforce this Letter or other agreement between the parties, provided such disclosure is necessary for you to assert any claim or defense in such proceeding.

 

 

 

 

 

 

 

For purposes of this Letter, “ Person ” shall mean an individual, corporation, partnership, limited liability company, limited liability partnership, association, trust or other unincorporated organization or entity.

 

 

 

 

 

 

2)

Upon your termination of employment for any reason, you shall return to the Company all copies, reproductions and summaries of Confidential Information in your possession and use reasonable efforts to erase the same from all media in your possession, and, if the Company so requests, shall certify in writing that you have done so, except that you may retain such copies, reproductions and summaries during any period of litigation, arbitration or mediation referred to in Section 12(d)(1). All Confidential Information is and shall remain the property of the Company (or, in the case of information that the Company receives from a third party which it is obligated to treat as confidential, then the property of such third party); provided, you shall be entitled to retain copies of (i) information

9



 

 

 

 

 

 

 

showing your compensation or relating to reimbursement of expenses, (ii) information that is required for the preparation of your personal income tax return, (iii) documents provided to you in your capacity as a participant in any employee benefit plan, policy or program of the Company and (iv) this Letter and any other agreement by and between you and the Company with regard to your employment or termination thereof.

 

 

 

 

 

 

3)

All Intellectual Property (as hereinafter defined) and Technology (as hereinafter defined) created, developed, obtained or conceived of by you during your employment, and all business opportunities presented to you during your employment, shall be owned by and belong exclusively to the Company, provided that they reasonably relate to any of the business of the Company on the date of such creation, development, obtaining or conception, and you shall (i) promptly disclose any such Intellectual Property, Technology or business opportunity to the Company, and (ii) execute and deliver to the Company, without additional compensation, such instruments as the Company may require from time to time to evidence its ownership of any such Intellectual Property, Technology or business opportunity. For purposes of this Letter, (x) the term “ Intellectual Property ” means and includes any and all trademarks, trade names, service marks, service names, patents, copyrights, and applications therefor, and (y) the term “ Technology ” means and includes any and all trade secrets, proprietary information, invention, discoveries, know-how, formulae, processes and procedures.

          The parties acknowledge that the restrictions contained in this Section 12 are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions could cause substantial injury to the Company and that the Company would not have entered into this Letter, without receiving the additional consideration offered by you in binding yourself to any of these restrictions. In the event of a breach or threatened breach by you of any of these restrictions, the Company shall be entitled to apply to any court of competent jurisdiction for an injunction restraining you from such breach or threatened breach; provided, however, that the right to apply for an injunction shall not be construed as prohibiting the Company from pursuing any other available remedies for such breach or threatened breach.

          13. No Guarantee of Continuation of Service

          This grant of this Option does not constitute an assurance of continued Service for any period or in any way interfere with the Company’s right to terminate your Service.

          14. Administration

          The Committee has the sole power to exercise its good faith judgment to interpret the Plan and this Letter and to act upon all matters relating this grant to the extent provided in the Plan and not inconsistent with the terms of this Letter. Any decision, determination, interpretation, or other action taken pursuant to the provisions of the Plan and this Letter by the Committee shall be final, binding, and conclusive.

10


          15. Section 409A

          Notwithstanding any provision of the Plan or this grant to the contrary, if you are a “specified employee” as determined by the Board or the Committee, in accordance with Section 409A of the Internal Revenue Code of 1986, as amended or any regulations or Treasury guidance promulgated thereunder (“ Section 409A ”), you shall not be entitled to any payments of amounts which constitute deferred compensation within the meaning of Section 409A upon a termination of your employment until the earlier of (i) the date which is six (6) months after your termination of employment for any reason other than death (except that during such six (6) month period you may receive total payments from the Company that do not exceed the amount specified in Treas. Reg. Section 1.409A-1(b)(9) or that constitute a short-term deferral within the meaning of Section 409A), or (ii) the date of your death.

          Notwithstanding any provision of the Plan or this Letter to the contrary, to the extent any compensation or award which constitutes deferred compensation within the meaning of Section 409A shall vest upon the occurrence of a Change of Control and such Change of Control does not constitute a “change in the ownership or effective control” or a “change in the ownership or a substantial portion of the assets” of the Company within the meaning of Section 409A, then notwithstanding such vesting, payment will be made to you on the earliest of (i) your “separation from service” with the Company (determined in accordance with Section 409A) or, if you are a specified employee within the meaning of Section 409A, such later date as provided in the preceding paragraph, (ii) the date payment otherwise would have been made, or (iii) the date of your death.

          If any provision of this Agreement or of any award of compensation, including equity compensation or benefits would cause you to incur any additional tax or interest under Section 409A, the parties agree to negotiate in good faith to reform such provision in such manner as to maintain, to the maximum extent practicable, the original intent and economic terms of the applicable provision without violating the provisions of Section 409A.

          16. Amendment

          The Committee may from time to time amend the terms of this grant in accordance with the terms of the Plan in effect at the time of such amendment, but no amendment which is unfavorable to you can be made without your written consent.

          The Plan is of unlimited duration, but may be amended, terminated or discontinued by the Board of Directors of the Company at any time. However, no amendment, termination or discontinuance of the Plan will unfavorably affect this grant.

          Notwithstanding the foregoing, the Committee expressly reserves the right to amend the terms of the Plan and this grant with your consent which shall not be unreasonably withheld to the extent it determines that such amendment is necessary or desirable for an exemption from or compliance with the distribution, acceleration and election requirements of Section 409A of the Code.

11


          17. Notices

          Unless otherwise provided herein, any notice, exercise of rights or other communication required or permitted to be given hereunder shall be in writing and shall be given by overnight delivery service such as Federal Express or personal delivery against receipt, or mailed by registered or certified mail (return receipt requested), to the party to whom it is given at, in the case of the Company, Compensation Committee Chair, TheStreet.com, Inc., 14 Wall Street, 15 th Floor, New York, NY 10005, or, in the case of you, at your principal residence address as then reflected on the records of the Company or such other address as such party may hereafter specify by notice to the other party hereto. Any notice or other communication shall be deemed to have been given as of the date so personally delivered or transmitted by telecopy or like transmission or on the next business day after sent by overnight delivery service for next business day delivery or on the fifth business day after sent by registered or certified mail.

          18. Representations

          The Company hereby represents and warrants that the execution and delivery of this Letter and the performance by the Company of its obligations hereunder have been duly authorized by all necessary corporate action of the Company.

          19. Amendment

          This Letter may be amended only by a written agreement signed by the parties hereto.

          20. Binding Effect

          This Letter shall be binding upon and inure to the benefit of the Company and any Successor. As used herein, a “ Successor ” shall mean any successor organization that succeeds to the Company (or to any direct or indirect successor) by merger or consolidation or operation of law, or by acquisition of all or substantially all of the assets of the Company (or of any direct or indirect successor).

          21. Governing Law

          This Letter shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts to be performed wholly within the state and without regard to its conflict of laws provisions that would defer to the laws of another jurisdiction, except to the extent the laws of the State of Delaware mandatorily govern.

          22. Severability

          If any provision of this Letter shall for any reason be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Moreover, if any one or more of the provisions of this Letter shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent

12


allowable by applicable law. To the extent permitted by applicable law, each party hereto waives any provision of law that renders any provision of this Letter invalid, illegal or unenforceable in any way.

          23. Execution in Counterparts

          This Letter may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument.

          24. Entire Agreement

          This Letter, together with (i) the Severance Agreement between the Company and you, as amended as of the same date as this Letter and (ii) award agreements entered into by and between you and the Company with respect to outstanding incentive awards and incentive awards granted on or before the date hereof, sets forth the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.

          25. Titles and Headings

          Titles and headings to Sections herein are for purposes of reference only, and shall in no way limit, define or otherwise affect the meaning or interpretation of any of the provisions of this Letter.

          26. Consent to Jurisdiction

          The parties hereto each hereby irrevocably submit to the exclusive jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan, City of New York in any action or proceeding to enforce the provisions of this Letter, and waives the defense of inconvenient forum to the maintenance of any such action or proceeding.


13


          This Letter contains the formal terms and conditions of your award and accordingly should be retained in your files for future reference. The Company may require you to provide evidence of your acknowledgment of this Letter using such means of notification as may be communicated to you by the Company or its service provider.

 

 

 

 

Very truly yours,

 

 

 

 

THESTREET.COM, INC.

 

 

 

 

By: 

 

 

 


 

Name: Daryl R. Otte

 

Title: Chief Executive Officer

 

 

AGREED TO AND ACCEPTED:

 

 

 


 

Gregory E. Barton

 

14


Exhibit 10.9

AMENDMENT NO. 1 to SEVERANCE AGREEMENT

          This Amendment No. 1 (the “ Amendment ”) to the Severance Agreement dated as of July14, 2009 (the “ Agreement ”) between TheStreet.com, Inc., a Delaware corporation (the “ Company ”) and Gregory E. Barton (“ Barton ”) is entered into by the parties as of March 28, 2011.

          Pursuant to this Amendment, the parties hereby agree to amend the Agreement, with such amendments becoming effective May 16, 2011, as follows:

 

 

 

 

1.

Section 1(a) of the Agreement hereby is deleted in its entirety and replaced with the following:

 

 

 

 

 

“(a) In the event that the Company (or Successor (as defined below), if applicable) terminates Barton’s employment with the Company (or Successor, as applicable) without Cause or Barton voluntarily terminates his employment with the Company (or Successor, if applicable) for Good Reason, in either case on or before July 14, 2014, then the Company (or Successor, if applicable) shall (i) pay Barton an amount equal to six (6) months of Barton’s base salary (at the annual rate in effect immediately prior to termination, excluding any reduction that would constitute grounds for Barton to terminate his employment with Good Reason); and (ii) pay on Barton’s behalf (for a period of six (6) months or such lesser period as Barton may elect) the full cost of premiums for continuation of any benefits that Barton is eligible under COBRA to elect to (and does elect to) continue.”

 

 

 

 

2.

Section 1(b) of the Agreement hereby is deleted in its entirety and replaced with the following:

 

 

 

 

 

“(b) For purposes of this Agreement, (i) “ Cause ” shall have the same meaning ascribed to such term in the Letter; (ii) “ Good Reason ” shall have the same meaning ascribed to such term in the Letter; and (iii) “ Successor ” shall mean any person or entity that acquires all or substantially all of the Company’s assets or into which the Company is merged or combined with the Company ceasing to exist (or the successor to any such entity, whether by merger, assignment or otherwise).”

 

 

 

 

3.

Section 1(c) of the Agreement hereby is deleted in its entirety.

 

 

 

 

4.

Section 1(d) of the Agreement hereby is amended to replace the phrase “Section 1(a) or Section 1(b)” with the phrase “Section 1(a)(i)”.

 

 

 

 

5.

Section 13 of the Agreement hereby is amended to delete the phrase “, except as specified in Section 1(c),”.

1



 

 

 

 

6.

Section 1(a) of Exhibit A to the Agreement hereby is amended to add the following to the end of the last sentence: “, or (vi) any rights under or in respect of any of (A) the agreements dated as of July 14, 2009 and March 28, 2011, respectively, related to the grants of restricted stock units, (B) the agreement dated as of March 28, 2011 related to the grant of stock options or (C) any written agreements that may be executed by the parties after March 28, 2011 (collectively, the “Applicable Agreements”).”

 

 

 

 

7.

Section 1(c) of Exhibit A to the Agreement hereby is amended to add the following to the end of the last sentence: “or any other Applicable Agreements.”

 

 

 

 

8.

Except as expressly set forth above, the Agreement remains unmodified and in full force and effect.

 

 

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

THESTREET.COM, INC.

 

 

 

 

By:

 

 

 

 


 


Name:

 

 

Gregory Barton

 


 

 

Title:

 

 

 

 


 

 

2


Exhibit 31.1

CERTIFICATION

I, Daryl Otte, certify that:

 

 

 

1.

I have reviewed this quarterly report on Form 10-Q of TheStreet, Inc.;

 

 

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

 

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

 

 

 

a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

 

 

b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

 

 

c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

 

 

d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

 

 

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

 

 

 

a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

 

 

 

b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.


 

 

 

 

Date: August 5, 2011

By:

     /s/ Daryl Otte

 

 


 

 

     Name:

Daryl Otte

 

 

     Title:

Chief Executive Officer (principal executive officer)



Exhibit 31.2

CERTIFICATION

I, Thomas Etergino, certify that:

 

 

 

1.

I have reviewed this quarterly report on Form 10-Q of TheStreet, Inc.;

 

 

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

 

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))for the registrant and have:

 

 

 

 

a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

 

 

b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

 

 

c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

 

 

d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

 

 

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

 

 

 

a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

 

 

 

b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.


 

 

 

 

Date: August 5, 2011

By:

     /s/ Thomas Etergino

 

 


 

 

     Name:

Thomas Etergino

 

 

     Title:

Chief Financial Officer (principal financial officer)



Exhibit 32.1

Certification Pursuant to
18 U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Quarterly Report on Form 10-Q of TheStreet, Inc. (the “Company”) for the quarterly period ended June 30, 2011, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Daryl Otte, Chief Executive Officer of the Company, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

 

 

 

 

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

 

 

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.


 

 

              /s/ Daryl Otte


     Name:

Daryl Otte

     Title:

Chief Executive Officer (principal executive officer)

 

August 5, 2011



Exhibit 32.2

Certification Pursuant to
18 U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Quarterly Report on Form 10-Q of TheStreet, Inc. (the “Company”) for the quarterly period ended June 30, 2011, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Thomas Etergino, Chief Financial Officer of the Company, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

 

 

 

 

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

 

 

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.


 

 

              /s/ Thomas Etergino


     Name:

Thomas Etergino

     Title:

Chief Financial Officer (principal financial officer)

 

August 5, 2011