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

15th 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 


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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 


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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 

 


6









	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 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

 


7









	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 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,
15th 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

 	
  

 


12





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