TheStreet.com

      Term
Sheet for Gregory Barton

      
        
          

        

         

      

    

    
      	
              ·

            	
              Title and
      Reporting Relationship: Executive Vice President, Business and
      Legal Affairs, General Counsel and Secretary. Mr. Barton shall report
      directly to the Company’s (TSCM’s) Chief Executive Officer
      (CEO).

            


    

    
      	
              ·

            	
              Full-Time
      Duties and Service on Board of Trustees of WisdomTree Trust:
      Gregory shall devote his full-time work efforts and duties to TSCM
      throughout his employment with TSCM. Notwithstanding Gregory’s full-time
      dedication to TSCM, he may continue to serve on the Board of Trustees of
      WisdomTree Trust, provided that such service does not materially interfere
      with his ability to perform his duties for TSCM (including without
      limitation his duty to serve as Corporate Secretary for
    TSCM).

            


    

    
      	
              ·

            	
              Base
      Salary: $275,000 annualized rate, with potential annual increases
      at the discretion of the Compensation
Committee.

            


    

    
      	
              ·

            	
              Target
      Bonus: 75% of Mr. Barton’s annualized rate of base pay at the
      beginning of each calendar year, contingent on achieving performance goals
      established by TSCM’s Compensation Committee and CEO for each performance
      year (with input from Gregory), with potential annual increases to the
      targeted amount at the discretion of TSCM’s Compensation Committee and
      CEO. For the avoidance of doubt, Gregory’s target bonus for 2009 shall be
      prorated for the period of 2009 served as an employee of TSCM (e.g., if
      Gregory serves as a TSCM employee from July 1, 2009 through December 31,
      2009, the 2009 target bonus would be: 75% x $275,000 x 50% (representing
      one-half of 2009 worked with TSCM) =
$103,125).

            


    

     

    The
specific performance objectives applying to Gregory’s 2009 bonus opportunity
shall established by TSCM’s Compensation Committee and CEO within 30 days after
his first day of employment with TSCM, and shall be comprised of:

     

    
      	
               
      

            	
              o

            	
              TSCM’s
      2009 operating results versus the objectives established by the
      Compensation Committee and CEO  for 2009 (representing 33% of
      the total 2009 bonus opportunity);

            


    

    
      	
               
      

            	
              o

            	
              Gregory’s
      establishment of a strategy for TSCM’s licensing business, together with
      the performance of the licensing business versus operating objectives
      established by the Compensation Committee and CEO for the licensing
      business for 2009 (representing 33% of the total 2009 bonus
      opportunity);

            


    

    
      	
               
      

            	
              o

            	
              The
      achievement of a material reduction in TSCM’s overall annual legal
      expenses (inclusive of Gregory’s base salary) versus the annualized rate
      of legal fees experienced by TSCM in 2006, 2007, and 2008 (representing
      33% of the total 2009 bonus
opportunity).

            


    


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    
      	
              ·

            	
              Long-Term
      Incentive Opportunity:  One-time grant of 175,000
      restricted stock units (RSUs), awarded under TSCM’s 2007 Performance
      Incentive Plan (with RSUs being payable in full-value TSCM shares in
      accordance with the terms of the annual vesting schedule described below,
      unless the payment date is accelerated or the RSUs are forfeited, as
      provided below). Gregory will have the option to elect to have his tax
      withholding obligation in connection with the RSUs satisfied through the
      withholding of shares underlying the RSU
award.

            


    

     

    
      	
               
      

            	
              o

            	
              Grant of RSUs: Granted
      as soon as practicable after Gregory’s first day of employment with
      TSCM.

            


    

    
      	
               
      

            	
              o

            	
              Vesting of
      RSUs:

            


    

    
      	
               
      

            	
              §

            	
              Annual Vesting: Unless
      vesting is accelerated pursuant to an event described herein, or the RSUs
      are forfeited prior to vesting, RSUs shall vest according to the following
      schedule:

            


    

     

    
      	
               
      

            	
              ·

            	
              17,500
      RSUs shall vest on the 1st
      anniversary of the RSU grant date;

            


    

    
      	
               
      

            	
              ·

            	
              An
      additional 17,500 RSUs shall vest on the 2nd anniversary of the RSU grant
      date;

            


    

    
      	
               
      

            	
              ·

            	
              An
      additional 17,500 RSUs shall vest on the 3rd anniversary of the RSU grant
      date;

            


    

    
      	
               
      

            	
              ·

            	
              An
      additional 17,500 RSUs shall vest on the 4th anniversary of the RSU grant
      date;

            


    

    
      	
               
      

            	
              ·

            	
              The
      remaining 105,000 RSUs shall vest on the 5th anniversary of the RSU grant
      date.

            


    

     

    Shares of
TSCM stock underlying RSUs that vest according to the above schedule shall be
distributed to Gregory free and clear of all vesting restrictions (net of shares
withheld to pay taxes, if so elected by Gregory) within 30 days following the
applicable vesting date of such RSUs.

     

    
      	
               
      

            	
              §

            	
              Accelerated Vesting on Certain
      Events: In the event of the first to occur of any one of the three
      events described immediately below in (A), (B), or (C) below, some or all
      unvested RSUs that have not been forfeited prior to such event shall have
      their vesting accelerated upon the following
  terms:

            


    

     

    
      	
               
      

            	
              ·

            	
              (A)
      A change-in-control (CIC) event (for purposes of this Term Sheet, having
      the same definition as provided in the 2007 Performance Incentive Plan)
      shall result in immediate 100% vesting of all RSUs that are unvested on
      the effective date of consummation of the
CIC.

            


    

    
      	
               
      

            	
              ·

            	
              (B)
      An involuntary termination of Gregory’s employment without Cause (“Cause”
      generally defined as egregious acts such as fraud, commission of a felony,
      etc., determined in the good faith judgment of TSCM’s Compensation
      Committee) shall result in partial vesting on the effective date of
      termination of the following number of
RSUs:

            


    


    
      
         


      

      
        2

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              o

            	
              87,500
      RSUs, PLUS;

            


    

    
      	
               
      

            	
              o

            	
              The
      number of RSUs represented by the product of (i) 87,500 MULTIPLIED by (ii)
      a fraction, the numerator of which is the lesser of: (a) 730; or (b) the
      number of calendar days from and including Gregory’s 366th
      calendar day of employment with TSCM, to and including the effective date
      of Gregory’s employment termination under this provision, and the
      denominator of which is 730 (for the avoidance of doubt, if Gregory’s
      employment termination under this provision occurs prior to the 366th
      calendar day of Gregory’s employment with TSCM, this fraction shall equal
      zero); MINUS

            


    

    
      	
               
      

            	
              o

            	
              The
      number of RSUs that had vested prior to the effective date of Gregory’s
      employment termination under this
provision.

            


    

     

    Notwithstanding
any other provision of this Term Sheet, accelerated vesting of RSUs under this
provision shall be contingent on Gregory executing a release of legal claims
against TSCM, in such format as is provided in the good faith judgment of the
Compensation Committee and the CEO. In the absence of a properly executed
release of legal claims, all unvested RSUs shall be forfeited without payment
following an involuntary termination without Cause.

     

    
      	
               
      

            	
              ·

            	
              (C)
      A voluntary termination by Gregory for Good Reason (with “Good Reason”
      having the definition ascribed to such term under the “Good Reason” safe
      harbor provisions of Section 409A of the Internal Revenue Code and the
      Treasury Regulations promulgated thereunder (“Section 409A”), all as
      determined in good faith by TSCM’s Compensation Committee) shall result in
      partial vesting on the effective date of termination of the following
      number of RSUs:

            


    

     

    
      	
               
      

            	
              o

            	
              87,500
      RSUs, PLUS;

            


    

    
      	
               
      

            	
              o

            	
              The
      number of RSUs represented by the product of (i) 87,500 MULTIPLIED by (ii)
      a fraction, the numerator of which is the lesser of: (a) 730; or (b) the
      number of calendar days from and including Gregory’s 366th
      calendar day of employment with TSCM, to and including the effective date
      of Gregory’s employment termination under this provision, and the
      denominator of which is 730 (for the avoidance of doubt, if Gregory’s
      employment termination under this provision occurs prior to the 366th
      calendar day of Gregory’s employment with TSCM, this fraction shall equal
      zero); MINUS

            


    


    
      
         


      

      
        3

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              o

            	
              The
      number of RSUs that had vested prior to the effective date of Gregory’s
      employment termination under this
provision.

            


    

     

    Notwithstanding
any other provision of this Term Sheet, accelerated vesting of RSUs under this
provision shall be contingent on Gregory executing a release of legal claims
against TSCM, in such format as is provided in the good faith judgment of the
Compensation Committee and the CEO. In the absence of a properly executed
release of legal claims, all unvested RSUs shall be forfeited without payment
following a voluntary termination for Good Reason.

     

    
      	
               
      

            	
              §

            	
              Death or Disability: In
      the event of Gregory’s death or disability (generally defined as a
      physical or mental condition incapacitating Gregory from the ability to
      effectively execute his role with TSCM, as determined in good faith by
      TSCM’s Compensation Committee) before the occurrence of any one of the
      “Accelerated Vesting” events described above, Gregory shall vest in a
      prorated number of the RSUs, with the proration determined as a function
      of the length of time served by Gregory with TSCM prior to death or
      disability in relation to the two-year period following grant of the RSUs
      (e.g., a disability at the 1st
      anniversary of the RSU grant date would result in vesting and accelerated
      delivery of 50% of the RSU award, net of any RSUs that have already vested
      prior to death or disability). As an example, and for the avoidance of
      doubt, if a death or disability happens immediately after the 1st
      anniversary of the RSU grant date, the net number of RSUs that would vest
      under this provision would equal [(175,000/2) – 17,500 (the RSUs that
      vested according to their normal annual schedule)] =
    70,000).

            


    

     

    
      	
               
      

            	
              o

            	
              Payment Acceleration
      Events: Unless sooner forfeited due to a “Forfeiture Event”
      described below, and other than the distribution of shares underlying RSUs
      that have vested according to their regular vesting schedule (i.e., the
      10%, 10%, 10%, 10%, 60% schedule described above in this Term Sheet), all
      outstanding and previously undistributed RSUs shall be paid to Gregory on
      an accelerated basis following any of the employment termination events
      described below, with delivery of the RSU value occurring at the times
      described below:

            


    

     

    
      	
               
      

            	
              §

            	
              Consummation
      of a CIC, with delivery of RSU value occurring within 30 days after the
      effective date of the CIC; or

            


    

    
      	
               
      

            	
              §

            	
              An
      involuntary termination of Gregory’s employment without Cause, in which
      case, delivery of RSU value will occur within 30 days after the effective
      date of termination, contingent on proper execution of a release of legal
      claims against TSCM, as provided in this Term Sheet;
  or

            


    


    
      
         


      

      
        4

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              §

            	
              A
      voluntary termination by Gregory for Good Reason in which case, delivery
      of RSU value will occur within 30 days after the effective date of
      termination, contingent on proper execution of a release of legal claims
      against TSCM, as provided in this Term Sheet;
or

            


    

    
      	
               
      

            	
              §

            	
              Disability
      (as defined in Section 409A), in which case, delivery of RSU value will
      occur within 30 days after the effective date of Disability;
      or

            


    

    
      	
               
      

            	
              §

            	
              Death,
      in which case, delivery of RSU value will occur within 30 days after
      death.

            


    

     

    
      	
               
      

            	
              o

            	
              Forfeiture Events: All
      RSUs that have not been paid to Gregory by delivery of the underlying
      shares (except in the case of voluntary termination without Good Reason,
      in which case the prior clause shall be deemed to refer to RSUs that have
      not vested) prior to the 5th
      anniversary of the date of grant of the RSUs shall be forfeited without
      payment (regardless of the vested status of the RSUs) if any one of the
      following occurs prior to delivery (vesting, in the case of voluntary
      termination without Good Reason) of the TSCM shares underlying the RSU
      awards:

            


    

     

    
      	
               
      

            	
              §

            	
              TSCM
      involuntarily terminates Gregory’s employment for “Cause”;
    or

            


    

    
      	
               
      

            	
              §

            	
              Gregory
      voluntarily terminates his employment as without Good Reason prior to the
      fifth anniversary of his first day of employment with TSCM;
    or

            


    

    
      	
               
      

            	
              §

            	
              Gregory
      engages in competitive activity (to be defined in the RSU award agreement)
      with TSCM within two years after his last day of employment with TSCM;
      or

            


    

    
      	
               
      

            	
              §

            	
              Gregory
      breaches the provisions to be included within the RSU award agreement
      pertaining to non-solicitation of employees and clients of TSCM (within
      the two-year period following employment termination), confidentiality of
      information, or disparagement of
TSCM.

            


    

     

    In
addition, TSCM reserves the right to claw back RSU value delivered if within two
years after delivery of the RSU value Gregory engages in competitive activities
that violate the terms of the non-compete/non-solicit covenants to be included
in the RSU award agreement, or if he violates the non-disparagement or
confidentiality provisions of the RSU award agreement.

     

    
      	
              ·

            	
              General
      Severance: In the event that, prior to the effective date of a CIC,
      Gregory’s employment is involuntarily terminated by TSCM without Cause,
      then subject to the caveat prohibiting payment of both general severance
      and CIC severance (as described below), TSCM shall pay Gregory a general
      severance amount determined according to the following formula, but in no
      event greater than 52 weeks of Gregory’s base pay (at the annualized rate
      in effect immediately prior to
termination):

            


    

     

    
      	
               
      

            	
              o

            	
              Four
      weeks of Gregory’s base pay (at the annualized rate in effect immediately
      prior to termination); PLUS

            


    


    
      
         


      

      
        5

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              o

            	
              An
      amount of severance represented by the product of: (i) an amount of money
      equal to four weeks of Gregory’s base pay (determined by reference to the
      annualized rate of base pay in effect immediately prior to termination);
      MULTIPLIED by (ii) a fraction, the numerator of which is the number of
      calendar days from and including Gregory’s 366th
      calendar day of employment with TSCM, to and including the effective date
      of Gregory’s employment termination under this provision, and the
      denominator of which is 365 (for the avoidance of doubt, if Gregory’s
      employment termination under this provision occurs prior to the 366th
      calendar day of Gregory’s employment with TSCM, this fraction shall equal
      zero).

            


    

     

    Notwithstanding
any other provision of this Term Sheet, payment of general severance under this
provision shall be contingent on Gregory executing a release of legal claims
against TSCM, in such format as is provided in the good faith judgment of the
Compensation Committee and the CEO. In the absence of a properly executed
release of legal claims, no general severance shall be paid.

     

    Subject
to the CIC caveat prohibiting payment of both general severance and CIC
severance (as described below), and further subject to execution of a release of
legal claims against TSCM as provided above, TSCM shall pay Gregory the general
severance within 30 days following the effective date of termination. In the
event that Gregory qualifies to receive CIC severance, and if prior to the
payment of CIC severance TSCM has already paid Gregory general severance
amounts, the full value of such general severance amounts paid shall be offset
against any CIC severance payable to Gregory.

     

    
      	
              ·

            	
              Change-in-Control
      Severance: Subject to the caveat prohibiting payment of both
      general severance and CIC severance (as described above), if a CIC is
      consummated prior to November 15, 2011, and if Gregory’s employment is
      terminated within two years after the effective date of consummation of
      the CIC (i) by TSCM without Cause or (ii) by Gregory for Good Reason,
      Gregory would be paid 12 months of base salary at the annualized rate in
      effect on the date of employment
termination.

            


    

     

    
      	
               
      

            	
              o

            	
              For
      all purposes of this Term Sheet, Gregory shall receive the described
      benefits associated with a CIC (i.e., CIC severance and RSU vesting) if
      Gregory is employed at the time events or efforts are initiated that
      directly lead to consummation of a CIC, provided that such a CIC will only
      so qualify for this provision if the consummation of the CIC occurs within
      six months of Gregory’s last day of
employment.

            


    

    
      	
               
      

            	
              o

            	
              Payment
      shall be made within 30 days after the effective date of the CIC, unless a
      delay is necessary to avoid imposition of additional taxes under Section
      409A (in which case, the delay shall be for the minimum time frame
      necessary to avoid additional 409A
taxes).

            


    

     

    
      	
              ·

            	
              Perks and
      Health and Welfare Benefits:  Gregory will be eligible to
      receive perquisites and general health and welfare benefit coverage at a
      level at least equal to those provided to other comparably situated
      full-time executives of TSCM.

            


    

     

    
      
         


      

      
        6

        
          

        

      

      
         


      

    

     

    
      	
              ·

            	
              Internal
      Revenue Code Section 409A Saving Clause: TSCM will make all
      reasonable efforts to deliver the value in connection with RSUs and CIC
      severance in a manner that avoids imposition of additional taxes under
      Internal Revenue Code Section 409A.

            


    

     

    Signed,
this 2nd day of June, 2009

     

    
      
        
          
            
              
                	
                        /s/ William Gruver

                      	 	
                        /s/ Gregory Barton

                      
	
                        William
      Gruver, Compensation Committee Chair

                      	 	
                        Gregory
      Barton

                      
	
                        of
      TheStreet.com

                      	 	 
      


              

            

          

        

      

    


    
      
         


      

      
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