Unassociated Document


    
      EXECUTION
COPY

    

     

    March 13,
2009

     

    FOR SETTLEMENT PURPOSES
ONLY

    


    Thomas J.
Clarke, Jr.


    


     

    Re:  Separation Agreement and
Mutual Release (the “Agreement”)

     

    Dear Tom:

     

    TheStreet.com, Inc. (the “Company”) sets forth the following terms
agreed to by the Company and you in connection with your separation from
employment with the Company and your resignation as a member of the Board of
Directors of the Company (the “Board”).

     

    
      	
               
      

            	
              1.

            	
              On
      the Effective Date (as defined in Section 8 below), your Employment
      Agreement dated as of September 13, 2007 as amended on October 24, 2008
      (the “Employment Agreement”) shall terminate forever, except for Sections
      5 through 9, 13 through 15 and 21 through 26 which shall remain in effect
      subject to any express modifications as set forth
  herein.

            


    

     

    
      	
               
      

            	
              2.

            	
              On
      and as of the Effective Date, you will relinquish all of your positions as
      an officer and director and/or manager of the Company and its subsidiaries
      and your employment with the Company will terminate.  You agree
      to sign any documents reasonably requested by the Company to confirm or
      effectuate the foregoing.  From the date hereof until the
      Effective Date, you will continue to serve as Chief Executive Officer but
      you shall not be physically present at the Company’s office and shall not
      take any actions in your capacity as Chief Executive Officer, except as
      otherwise directed by the Board or requested by Daryl Otte, who will
      become interim Chief Executive Officer on the Effective Date, and you will
      refer any inquiries from customers, vendors, investors or employees to
      Daryl Otte.  For the avoidance of doubt, you acknowledge and
      agree that the foregoing limitations on your authority and
      responsibilities will not constitute “good reason” (as defined in the
      Employment Agreement).  During the period between the Effective
      Date and March 31, 2009, you will make yourself available, at such times
      (which may be substantially full-time) and at such places as mutually
      agreeable to you and Daryl Otte, to assist the Company in the transition
      of your responsibilities.  During the remainder of the
      twelve-month period immediately following the Effective Date, you will
      make yourself reasonably available, consistent with your other personal
      and professional responsibilities, to promptly respond to questions or to
      provide information or other assistance reasonably requested by the
      Company.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    In
addition, you agree that at any time after the Effective Date you will cooperate
with the Company and its attorneys in connection with any existing or future
litigation against the Company or any of its subsidiaries, whether
administrative, civil, or criminal in nature, in which and to the extent the
Company deems your cooperation necessary, and that you will make yourself
reasonably available to confer with the Company’s or its subsidiaries’
attorneys, representatives and other personnel as reasonably necessary to assist
the Company and/or provide truthful testimony as a witness.  The
Company will reimburse you, upon proper accounting, for reasonable expenses and
disbursements incurred by you in assisting the Company pursuant to this
paragraph and will pay you a reasonable per diem for each full business day you
are required to devote to assisting the Company in connection with any such
litigation.

     

    
      	
               
      

            	
              3.

            	
              The
      Form 8-K and press release regarding your separation is attached hereto as
      Appendix A (the “Press Release”).  The Company will issue the
      Press Release immediately following the filing of Form 10-K and Form 8-K
      which shall occur no later than 9:00AM on March 13,
      2009.  Except as provided in Section 15 below or as required by
      law including federal securities laws, the parties agree not to make any
      public statement regarding your separation from employment with the
      Company beyond the information contained in the Press
    Release.

            


    

     

    
      	
               
      

            	
              4.

            	
              Subject
      to this Agreement becoming effective and subject to your continued
      compliance with Sections 5, 6 and 7 of the Employment Agreement and the
      provisions of this Agreement (including without limitation your
      obligations to provide assistance to the Company under Section 2 hereof
      after the Effective Date), the Company agrees to pay you or provide to
      you, as the case may be: (i) salary continuation at the rate of $410,000
      per annum for the twelve (12) month period commencing on the Effective
      Date, which shall be payable in twenty-four (24) semi-monthly installments
      in accordance with the Company’s normal payroll practices; (ii) the amount
      of your accrued unpaid salary and accrued unused vacation days (which
      vacation days total $6,534.87) through the Effective Date, which will be
      paid on March 31, 2009; (iii) 132,473 shares of the Company’s common stock
      in full settlement of your RSUs, which will be delivered on the Effective
      Date and 9,949.27 phantom shares of the Company’s common stock, which will
      be settled in cash on the Effective Date at the fair market value of the
      shares on the Effective Date; (iv) continuation for the twelve (12) month
      period commencing on the Effective Date of individual term life, group
      life, disability, sickness, hospitalization and accident insurance
      benefits equivalent to those to which you would have been entitled if you
      had continued working the Company during such period; and (v) any benefits
      required to be paid or provided under TheStreet.com, Inc. 401k Savings
      Plan in accordance with the terms thereof.  For the avoidance of
      doubt, it is understood and agreed that no amounts are owed to you with
      respect to any “annual bonus” (as defined in the Employment Agreement) and
      that no stock-based compensation is owed to you other than the 132,473
      shares of the Company’s common stock and 9,949.27 phantom shares of the
      Company’s common stock described in clause (iii) above and shares of the
      Company’s common stock deliverable to you upon your exercise of
      outstanding stock options to the extent hereafter exercised in accordance
      with the terms of your award agreements.  You acknowledge that
      any shares of the Company’s common stock issued to you pursuant to this
      Agreement or otherwise remain subject to applicable federal and state
      securities laws, and you will consult with your own counsel regarding any
      transactions involving the Company’s securities.  All amounts
      payable under this Agreement shall be subject to applicable
      withholding.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              For
      purposes of assisting you in complying with Section 5 of the Employment
      Agreement, the Company agrees that you shall have the right to submit a
      written request to the Company for a determination that an activity in
      which you propose to engage will not be considered by it to constitute
      “competition” (as defined in Section 5 of the Employment
      Agreement).  The Company agrees to respond to such request
      within ten (10) days of receipt thereof but reserves the right, in its
      sole and absolute discretion, to approve or reject any such request and in
      its sole and absolute discretion to impose such conditions on any approval
      as it sees fit.

            


    

     

    
      	
               
      

            	
              5.

            	
              In
      the event that the Company determines in its reasonable judgment that on
      or after the date hereof and prior to the Effective Date, you have engaged
      in any act or omission constituting Cause as defined in Section 4(a) of
      the Employment Agreement which act or omission has not been cured, if
      curable, within 24 hours following written notification thereof by the
      Company, this Agreement shall become null and void, and the only
      obligations that the Company shall have to you are those that are set
      forth in Section 4(a) of the Employment
  Agreement.

            


    

     

    
      	
               
      

            	
              6.

            	
              In
      consideration of the payments and benefits provided to you under this
      Agreement and after consultation with counsel, you and each of your
      respective heirs, executors, administrators, representatives, agents,
      successors and assigns (collectively the “Clarke Parties”) hereby
      irrevocably and unconditionally release and forever discharge the Company
      and its subsidiaries and affiliates and each of their respective officers,
      employees, directors, managers, shareholders and agents (collectively, the
      “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, including but not limited to, any claims under Title VII of
      the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 1981, the
      Americans with Disabilities Act, as amended, the Family and Medical Leave
      Act, as amended, the Employee Retirement Income Security Act of 1974, as
      amended, the Civil Rights Act of 1991, as amended, and the Consolidated
      Omnibus Budget Reconciliation Act (COBRA), as amended, that the Clarke
      Parties may have, or in the future may possess, that occurred, existed or
      arose on or prior to your execution of this Agreement; provided, however,
      that you do not release, discharge or waive (i) any rights to payments and
      benefits provided under this Agreement, (ii) any rights you may have to
      enforce this Agreement or Sections 5 through 9, 13 through 15 and 21
      through 26 of the Employment Agreement, or (iii) your eligibility for
      indemnification in accordance with the Company’s certificate of
      incorporation, bylaws or other corporate governance document, or any
      applicable insurance policy, with respect to any liability you incurred or
      might incur as an employee, officer or director of the Company, including,
      without limitation, pursuant to Section 22 of the Employment
      Agreement.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    In
further consideration of the payments and benefits provided to you under this
Agreement, the Clarke Parties hereby unconditionally release and forever
discharge the Company Parties from any and all Claims that the Clarke Parties
may have as of the date of your execution hereof arising under the Federal Age
Discrimination in Employment Act of 1967, as amended, and the applicable rules
and regulations promulgated thereunder (“ADEA”).  By signing this
Agreement, you hereby acknowledge and confirm the following: (i) you were
advised by the Company in connection with your separation to consult with an
attorney of your choice prior to signing this Agreement and to have such
attorney explain to you the terms of this Agreement, including, without
limitation, the terms relating to your release of claims arising under ADEA, and
you have in fact consulted with an attorney: (ii) you were given a period of not
fewer than twenty-one (21) days to consider the terms of this Agreement and to
consult with an attorney of your choosing with respect thereto although you are
free to sign the Agreement at any time during this period; and (iii) you
knowingly and voluntarily accept the terms of this Agreement.  You
also understand that you have seven (7) days following the date hereof within
which to revoke the release contained in this paragraph, by providing the
Company a written notice of your revocation of the release contained in this
paragraph.

     

    You
represent and warrant that you have not assigned any of the Claims being
released under this Agreement and that you have not filed any complaint, charge,
claim or proceeding against any of the Company Parties before any local, state
or federal agency, court or other body (each, individually, a
“Proceeding”).

     

    You
acknowledge and agree that the remedy at law available to the Company for itself
and on behalf of the Company Parties for breach of any of your post-termination
obligations under the Employment Agreement or your obligations under this
Agreement would be inadequate and that damages flowing from such a breach may
not readily be susceptible to being measured in monetary
terms.  Accordingly, you acknowledge, consent and agree 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 you from breaching your post-termination obligations under the
Employment Agreement or your obligations under this Agreement.  The
parties hereby irrevocably submit to the exclusive jurisdiction of any New York
State or Federal court sitting in the City of New York for any injunctive relief
sought as permitted herein and waive the defense of inconvenient forum to the
maintenance of any such injunctive proceeding.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              7.

            	
              Subject
      to this Agreement becoming effective, the Company hereby irrevocably and
      unconditionally releases and forever discharges the Clarke 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 your employment relationship with and service as an
      employee, officer, director, manager or agent of the Company or any of its
      subsidiaries, or the termination of such relationship or service, that
      occurred, existed or arose on or prior to the Company’s execution of this
      Agreement, excepting any Claim which would constitute or result from
      conduct by you that could constitute the basis for termination for Cause
      under Section 4(a) of the Employment Agreement or could be a crime of any
      kind.  Anything to the contrary notwithstanding in this
      Agreement, nothing herein shall release you or any other Clarke Party from
      any Claims based on any right the Company may have to enforce this
      Agreement or Sections 5 through 9, 13 through 15 and 21 through 26 of the
      Employment Agreement.

            


    

     

    
      	
               
      

            	
              The
      Company represents and warrants that it has not assigned any of the Claims
      being released under this Agreement and that it has not filed any
      Proceeding relating to your employment or the termination
      thereof.

            


    

     

    
      	
               
      

            	
              8.

            	
              This
      Agreement, including the waivers and releases contained herein, shall
      become effective on the eighth (8th) day following your execution of this
      Agreement, provided that you have not given written notice of revocation
      of the Agreement prior to such day (the “Effective Date”).  If
      you revoke this Agreement prior to the eighth (8th)
      day following your execution of this Agreement, all of the provisions of
      this Agreement shall be null and
void.

            


    

     

    
      	
               
      

            	
              9.

            	
              Subject
      to Section 6 hereof, the parties agree that any and all disputes arising
      out of the terms of this Agreement and any surviving terms of the
      Employment Agreement shall be subject to binding arbitration in the City
      and County of New York before the American Arbitration Association under
      its National Rules for the Resolution of Employment
      Disputes.  Any award rendered by the arbitrator may be entered
      in any court having jurisdiction
thereof.

            


    

     

    
      	
               
      

            	
              10.

            	
              Your
      rights and duties under this Agreement are not assignable by you other
      than as a result of your death.  In the event of your death,
      your rights under this Agreement will inure to the benefit of your estate
      and heirs.  None of your rights under this Agreement shall be
      subject to any encumbrances or the claims of your
      creditors.  This Agreement shall be binding upon and inure to
      the benefit of the Company and any successor organization which shall
      succeed to the Company by merger or consolidation or operation of law, or
      by acquisition of all or substantially all of the assets of the
      Company.  This Agreement may be executed in one or more
      counterparts, each of which shall be deemed an original but all of which
      shall constitute the same
instrument.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              11.

            	
              This
      Agreement shall be governed by and subject to the laws of the State
      of  New York without giving effect to conflict of law
      rules.

            


    

     

    
      	
               
      

            	
              12.

            	
              This
      Agreement (and its incorporation and/or modification of certain terms of
      the Employment Agreement as set forth herein) contains a complete
      statement of all the arrangements between you and the Company with respect
      to your employment and the cessation of your employment and
      directorship.  This Agreement may not be changed
      orally.  No other promises or agreements shall be binding unless
      in writing and signed by the Company and
you.

            


    

     

    
      	
               
      

            	
              13.

            	
              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, telecopy (or like transmission) or personal delivery against
      receipt, or mailed by registered or certified mail (return receipt
      requested), to the party to whom it is given at such party’s address set
      forth below such party’s name on the signature page 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 if delivered or transmitted during regular
      business hours and otherwise on the next business day or on the next
      business day when sent by overnight delivery
  service.

            


    

     

    
      	
               
      

            	
              14.

            	
              Nothing
      contained in this Agreement shall be construed as an admission by the
      Company or you of  any wrongdoing or any liability
      whatsoever.

            


    

     

    
      	
               
      

            	
              15.

            	
              The
      parties acknowledge and agree that neither party will be considered to
      have breached its non-disparagement obligations under the Employment
      Agreement or its obligations under Section 3 of this Agreement by making,
      publicly or privately, the following statement: “After ten (10) years of
      service, which the Company appreciates, [Tom’s][my] separation was
      determined to be in the best interests of all parties.” Except as
      permitted under Section 3 of this Agreement, nothing more will be said by
      either party with respect to any aspect or circumstances of your
      separation.

            


    

     

    
      	
               
      

            	
              16.

            	
              On
      or prior to the Effective Date, you will deliver to the Company all
      non-personal documents and data of any nature, and in whatever medium,
      concerning your employment with the Company or any of its subsidiaries and
      will return to the Company all property of the Company in your possession,
      including without limitation laptop computers, blackberries, cell phones,
      credit cards and key cards.

            


    

     

    
      	
               
      

            	
              17.

            	
              If
      any term or provision of this Agreement shall be determined to be invalid
      or unenforceable to any extent or in any application, then the remainder
      of this letter shall be unaffected thereby and shall be valid and
      enforceable.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    If this
letter correctly sets forth our agreement, please execute a counterpart copy
where indicated below.

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	 	      
                                            Sincerely
      yours,

                                          	 
	 	 	 
	 	 	 
	 	
                                            THESTREET.COM,
      INC.

                                          	 
	 	 	 	 
	
                                          	
                                            By:
      

                                          	/s/DEREK
      IRWIN	 
	 	 	
                                            Derek
      Irwin

                                          	 
	 	 	      
                                            Director,
      Member of Compensation Committee

                                          	 
	 	 	 	 


                                     

                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          	 	      
                                                                  Dated:  March
      13, 2009

                                                                	 
	 	 	 	 
	 	      
                                                                  Address: 
      

                                                                	      
                                                                  14
      Wall Street

                                                                	 
	 	 	      
                                                                  New
      York, NY 10005

                                                                	 
	 	      
                                                                  Telephone
      No.:

                                                                	      
                                                                  (212)
      321-5000

                                                                	 
	 	      
                                                                  Telecopy
      No.:

                                                                	      
                                                                  (212)
      321-5013

                                                                	 
	 	 	 	 
	 	      
                                                                  With
      a copy to:

                                                                	 
	 	 	 	 
	 	      
                                                                  Hughes
      Hubbard & Reed, LLP

                                                                	 
	 	      
                                                                  One
      Battery Park Plaza

                                                                	 
	 	      
                                                                  New
      York, NY 10004

                                                                	 
	 	      
                                                                  Attention:  Kenneth
      Lefkowitz

                                                                	 


                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

    ACCEPTED
AND AGREED TO

     

         
/s/ THOMAS J. CLARKE       

    Thomas J.
Clarke, Jr.

    


    Dated:  March
13, 2009

    


    Address:    11
Pitman Avenue

    Ocean
Grove, NJ  07756

    


    With a
copy to:

    


    Pollack
& Kaminsky

    114 West
47th
Street

    New York,
NY  10036

    Attention:
Daniel A. Pollack