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

15th 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 


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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 


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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.


          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.


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          (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

 


7









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 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 


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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.


          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

 	
  

 	
  

 


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