Attached files
CHANGE OF CONTROL AND
SEVERANCE AGREEMENT
CHANGE OF
CONTROL AND SEVERANCE AGREEMENT (this “Agreement”), dated as of June 9, 2009, by
and between TheStreet.com, Inc., a Delaware corporation (the “Company” or
“TheStreet.com”), and Daryl R. Otte (“Otte”).
WHEREAS,
the Company desires that Otte enter into this Agreement, and Otte desires to
enter into this Agreement, on the terms and conditions set forth
herein;
WHEREAS,
the Company granted Otte Restricted Stock Units pursuant to the Letter dated
June 9, 2009 (“Letter”);
WHEREAS,
Otte agreed to be bound by certain restrictive covenants and prohibitions on
competition in the Letter; and
NOW
THEREFORE, the parties hereto agree as follows:
Section 1. Severance
Benefits.
(a) General Severance. In
the event that the Company terminates Otte’s employment with the Company without
Cause or Otte voluntarily terminates his employment with the Company for Good
Reason, then the Company shall pay Otte an amount equal to:
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i.
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Four
weeks of base salary (at the rate in effect immediately prior to
termination) for each full year of service completed as the Company’s
full-time Chief Executive Office (“CEO”),
plus
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ii.
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1.33
weeks of base pay (at the rate in effect immediately prior to termination)
for each full year of service as a Board member of the
Company.
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As
provided in the second paragraph of Section 1(b) herein, despite the fact that
the effective date of Otte’s termination as CEO may occur prior to the
consummation of a Change of Control, for purposes of determining the appropriate
amount payable to Otte, Otte’s severance shall be determined under Section 1(b)
rather than this Section 1(a), and Section 1(c) shall be applicable
thereto.
For
purposes of this Agreement, “Cause” and “Good Reason” shall have the same
meaning ascribed to them in the Letter and “Change of Control” shall mean the
happening of any of the following:
(1) the
acquisition by any person or group deemed a person under Sections 3(a)(9) and
13(d)(3) of the Securities Exchange Act of 1934 (the “Exchange Act”) (other than
the Company and its subsidiaries as determined immediately prior to that date
and any of its or their employee benefit plans) of beneficial ownership,
directly or indirectly (with beneficial ownership determined as provided in Rule
13d-3, or any successor rule, under the Exchange Act), of a majority of the
total combined voting power of all classes of stock of the Company having the
right under ordinary circumstances to vote at an election of the Board of
Directors of the Company, if such person or group deemed a person does not
include you;
(2) the
date on which a majority of the members of the Board consist of persons other
than Current Directors (which term shall mean any member of the Board on the
effective date of this Agreement and any member whose nomination or election has
been approved by a majority of Current Directors then on the
Board);
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(3) the
date of consummation of a merger or consolidation of the Company with another
corporation or other entity where (x) stockholders of the Company immediately
prior to such merger or consolidation would not beneficially own following such
merger or consolidation shares entitling such stockholders to a majority of all
votes (without consideration of the rights of any class of stock to elect
directors by a separate class vote) to which all stockholders of the surviving
corporation would be entitled in the election of directors in substantially the
same proportions as their ownership, immediately prior to such merger or
consolidation, of voting securities of the Company, or (y) where the members of
the Company’s Board of Directors, immediately prior to such merger or
consolidation, would not, immediately after such merger or consolidation,
constitute a majority of the board of directors of the corporation issuing cash
or securities in the merger; or
(4) the
sale of all or substantially all of the assets of the Company; or
(5) the
date of approval by the stockholders of the Company of a plan of complete
liquidation of the Company.
(b) Upon a Change of
Control. In the event that a Change of Control occurs within two years
after Otte’s assumption of the full-time duties and responsibilities of CEO of
the Company, then, in partial consideration for Otte’s agreement to abide by the
restrictions and covenants set forth in Section 6 (regarding non-competition),
Section 7(a) (non-solicitation of employees) and Section 7(b) (non-solicit of
clients and vendors) in the Letter, the Company shall pay Otte an amount equal
to two times the sum of Otte’s:
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i.
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base
salary (at the annual rate in effect immediately prior to termination),
and
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ii.
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target
bonus for the year of termination (determined as if performance were
achieved at a level that triggers the target
bonus).
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For
purposes of this Agreement, regardless of the fact that Otte’s last day of
employment with the Company may occur prior to the consummation of a Change of
Control, an involuntary termination of Otte’s employment by the Company without
Cause or a voluntary termination by Otte of his employment for Good Reason shall
be deemed to have occurred after a Change of Control in the event
that:
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x.
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Otte
is employed as the Company’s CEO at the time that events or efforts are
initiated by the Company that directly lead to consummation of a Change of
Control; and
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y.
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The
consummation of the Change of Control occurs prior to the end of the sixth
full month after the month in which Otte’s last day of employment with the
Company occurs.
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For the
sake of avoidance of doubt, in the event that both (x) and (y) of this section
1(b) apply, Otte shall receive the net severance benefits described under this
Section 1(b), as modified by Section 1(c) herein.
(c) No Double Benefits.
Notwithstanding any other provision of this Agreement, should Otte qualify for
severance benefits under both Sections 1(a) and 1(b), then the benefits to be
provided under Section 1(b) shall be offset by any amounts that were theretofore
provided under Section 1(a).
(d) Payment of Benefits.
If Otte becomes entitled to a payment under Section 1(a) or 1(b), the Company
shall pay Otte the applicable amount in a lump sum within thirty (30) days of
Otte’s becoming entitled to such payment.
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Section 2. Excise Tax
Gross-Up.
(a)
If any payment to or in respect of Otte by the Company or any
affiliate, whether pursuant to Section 1(b) of this Agreement or otherwise (a
“Payment”), is determined to be a “parachute payment,” as defined in Section
280G(b)(2) of the Code (a “Parachute Payment”), and also to be subject to the
excise tax imposed by Section 4999 of the Code, or any interest or penalties are
incurred by Otte with respect to such excise tax (such excise tax, together with
any such interest and penalties, being herein collectively referred to as the
“Excise Tax”), then Otte shall be entitled to receive an additional payment from
the Company (the “Gross-Up Payment”) in an amount such that the net amount of
such additional payment retained by Otte, after payment of all federal, state
and local income and employment and Excise Taxes imposed on the Gross-Up
Payment, shall be equal to the Excise Tax imposed on the
Payment. Notwithstanding the foregoing or any other provision of this
Agreement, if it shall be determined that Otte is entitled to a Gross-Up Payment
but that the net present value of the Parachute Payments (calculated at the
discount rate in effect under Section 280G of the Code) do not exceed 110% of
the Reduced Amount (as defined below), then no Gross-Up Payment shall be made to
Otte and the aggregate amount of the Parachute Payments otherwise payable under
this Agreement shall be reduced to the Reduced Amount; provided, that the
foregoing reduction shall not be made if the Accounting Firm (as defined below)
determines that the net after-tax benefit of the payments to Otte without the
reduction imposed is more than 110% of the net after-tax benefit of the payments
to Otte with the reduction imposed. For purposes of the foregoing,
the term “Reduced Amount” shall mean the greatest amount of Parachute Payments
that could be paid to Otte such that the receipt of such Parachute Payments
would not give rise to any Excise Tax. The determination of which
Payments shall be reduced pursuant to this Section 2(a) shall be made by an
independent accounting firm of nationally recognized standing selected by the
Company, in consultation with Otte and shall be reasonably acceptable to Otte
(the “Accounting Firm”), and such determination shall be made at the time it is
determined whether any payments made to Otte are subject to the Excise
Tax. For the avoidance of doubt, PricewaterhouseCoopers, Deloitte
& Touche, Ernst & Young and KPMG are firms reasonably acceptable to
Otte. All fees and expenses of the Accounting Firm under this Section
2 shall be borne solely by the Company.
(b)
Subject to the provisions of Section 2(c) hereof, all
determinations required to be made under this Section 2, including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall be
made by the Accounting Firm. The initial determination of whether a
Gross-Up Payment is required, and if so, the amounts of the Excise Tax and
Gross-Up Payment, shall be determined by the Accounting Firm, whose written
report shall be delivered to the Company and to Otte. Not later than
sixty (60) days after any Payment, the Accounting Firm shall determine whether a
Gross-Up Payment is due with respect to such Payment, and such Gross-Up Payment
shall be paid by the Company to Otte (except to the extent any portion thereof
is paid to the taxing authorities on behalf of Otte) not later than ten (10)
days following the Accounting Firm’s determination. Otte and the
Company shall cooperate in good faith as to the treatment of a Payment for tax
reporting and withholding purposes.
(c)
Otte shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of a Gross-Up Payment or additional Gross-Up Payment Such
notification shall be given as soon as practicable but in no event later than
the earlier of (i) thirty (30) days after Otte is informed in writing of such
claim or (ii) fifteen (15) days before the date on which such claim is requested
to be paid, and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. Otte shall not pay
such claim prior to the expiration of the 30-day period following the date on
which Otte gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim is
due). If the Company notifies Otte in writing prior to the expiration
of such period that it desires to contest such claim, Otte shall:
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(i)
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give
the Company any information reasonably requested by the Company relating
to such claim;
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(ii)
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take
such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including without
limitation, accepting legal representation with respect to such claim by
an attorney selected by the Company and reasonably acceptable to
Otte;
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(iii)
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cooperate
with the Company in good faith in order effectively to contest such claim;
and
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(iv)
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permit
the Company to participate in any proceedings relating to such
claim;
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provided, however, that the
Company shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold Otte harmless for any Excise Tax or federal, state and local
income and employment tax (including interest and penalties with respect
thereto) imposed, and payment of costs and expenses incurred, as a
result of such contest promptly after incurring such costs and
expenses. Without limitation on the foregoing provisions of this
Section 2(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Otte to pay the tax claimed and sue for a refund or to contest the claim in any
permissible manner, and Otte agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided, however, that if the
Company directs Otte to pay such claim and sue for a refund, the Company shall
advance the amount of such payment to Otte, on an after-tax basis, and shall
hold Otte harmless from any Excise Tax or federal, state or local income or
employment tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance. The Company’s control of the contest, however, shall
be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder, and Otte shall be entitled to settle or contest, as the case may by,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If,
after the receipt by Otte of an amount advanced by the Company pursuant to
Section 2(c), Otte becomes entitled to receive any refund with respect to
such claim, Otte shall (subject to the Company’s complying with the requirements
of Section 2(c)) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Otte of an amount
advanced by the Company pursuant to Section 2(c), a determination is made
that Otte shall not be entitled to any refund with respect to such claim and the
Company does not notify Otte in writing of its intent to contest such denial of
refund prior to the expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
(e) In
the event that the Excise Tax is subsequently determined to be less than
initially determined, Otte shall repay to the Company at the time that the
amount of such reduction in Excise Tax is determined (but, if previously paid to
the taxing authorities, not prior to the time the amount of such reduction is
refunded to Otte or otherwise realized as a benefit by Otte) the portion of the
Gross-Up Payment that would not have been paid if the Excise Tax as subsequently
determined had been applied initially in calculating the Gross-Up Payment, with
the amount of such repayment determined by the Accounting Firm; provided that
the amount of required repayment by Otte shall be reduced, as the Accounting
Firm may determine, in order to avoid putting Otte in a worse after-tax position
than he would have enjoyed had the amount of Excise Tax been correctly
determined in the first instance, such determination to be made on a basis
consistent with the intention of this Section 2, which is to make Otte whole on
an after-tax basis on account of any Excise Tax (including related interest and
penalties). Similarly, if the amount of Gross-Up Payments actually
made by the Company is subsequently determined by the Accounting Firm to have
been inadequate to satisfy the Company’s obligation to protect Otte against the
Excise Tax (including related interest and penalties), additional Gross-Up
Payments shall be made as directed by the Accounting Firm. Otte and
the Company shall each have the right at all times to have the Accounting Firm
review and confirm or revise earlier calculations.
(f) Notwithstanding
any other provision of this Section 2, all payments hereunder will be made no
later than the end of the calendar year next following the calendar year in
which Otte remits the related taxes as required by Section 409A of the
Code.
Section 3. 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 Otte, at his principal residence address
as then reflected on the records of the Company or such other address as such
party may hereafter specify by notice to the other party hereto. Any notice or
other communication shall be deemed to have been given as of the date so
personally delivered or transmitted by telecopy or like transmission or on the
next business day after sent by overnight delivery service for next business day
delivery or on the fifth business day after sent by registered or certified
mail.
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Section 4. Representations.
The
Company hereby represents and warrants that the execution and delivery of this
Agreement and the performance by the Company of its obligations hereunder have
been duly authorized by all necessary corporate action of the
Company.
Section 5. Amendment.
This
Agreement may be amended only by a written agreement signed by the parties
hereto.
Section 6. Binding
Effect.
The
rights and duties under this Agreement are not assignable by Otte other than as
a result of his death. None of Otte’s rights under this Agreement shall be
subject to any encumbrances or the claims of Otte’s 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.
Section 7. Governing
Law.
This
Agreement 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.
Section 8. Severability.
If any
provision of this Agreement 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 Agreement 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
Agreement invalid, illegal or unenforceable in any way.
Section 9. Execution in
Counterparts.
This
Agreement 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.
Section 10. Entire
Agreement.
This
Agreement, together with the Letter and award agreements entered into by and
between Otte and the Company with respect to outstanding incentive awards and
incentive awards granted on or before the date hereof, sets forth the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof and
thereof.
Section 11. 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 Agreement.
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Section 12. 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
Agreement, and waives the defense of inconvenient forum to the maintenance of
any such action or proceeding.
Section 13. No Duty to
Mitigate.
Otte
shall have no duty to mitigate or, except as specified in Section 1(c), have any
off-set made against amounts payable by the Company to Otte
hereunder.
Section 14. Release.
As a
condition to the obligation of the Company to make the payments provided for in
this Agreement and otherwise perform its obligations hereunder to Otte upon
termination of Otte’s employment (other than due to his death), Otte or his
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 Otte’s employment; provided, however, that such release
shall be conditioned on the receipt from the Company of a release of Otte,
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 Otte that constitutes Cause or that could be a crime of any
kind.
Section 15. Section
409A.
(a) Notwithstanding
any provision of this Agreement to the contrary, if Otte is a “specified
employee” as determined by the Board or the Compensation 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”), Otte
shall not be entitled to any payments of amounts which constitute deferred
compensation within the meaning of Section 409A upon a termination of his
employment until the earlier of (i) the date which is six months after his
termination of employment for any reason other than death (except that during
such six (6) month period Otte 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 his death.
(b) If
any provision of this Agreement or of any award of compensation, including
equity compensation or benefits would cause Otte 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.
(c)
Notwithstanding any provision of this Agreement to the contrary, to the extent
any compensation or award which constitute 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 Corporation within the meaning of Section 409A, then
notwithstanding such vesting payment will be made to Otte on the earliest of
(i) Otte’s “separation from service” with the Company (determined in
accordance with Section 409A) (or, if Otte is a specified employee within
the meaning of Section 409A, such later date as provided in paragraph (a) of
this Section 15), (ii) the date payment otherwise would have been made, or
(iii) Otte’s death.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of June 9,
2009.
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/s/ Daryl Otte
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Daryl
R. Otte
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THESTREET.COM,
INC.
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By:
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/s/
William Gruver
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Name:
William R. Gruver
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Title:
Director, Compensation Committee
Chair
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EXHIBIT
A
Form of
Release
This
Release (this “Release”) is entered into by Daryl R. Otte (“Otte”) 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 Change of Control and Severance
Agreement between Otte and the Company, dated as of June 9, 2009 (the
“Agreement”), Otte and the Company agree as follows:
1.
General
Releases and Waivers of Claims.
(a) Otte’s Release of
Company. In consideration of the payments and benefits provided to Otte
under the Agreement and after consultation with counsel, Otte on behalf of
himself and each of his respective heirs, executors, administrators,
representatives, agents, successors and assigns (collectively, the “Otte
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 Otte Parties may have, or in the future
may possess, arising out of any aspect of Otte’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 Otte does not release,
discharge or waive (i) any rights to payments and benefits provided under the
Agreement, (ii) any right Otte may have to enforce this Release or the
Agreement, (iii) Otte’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
Otte is a party or as to which Otte 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, or (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.
(b) Executive’s Specific Release
of ADEA Claims. In further consideration of the payments and benefits
provided to Otte under the Agreement, Otte on behalf of himself and the other
Otte Parties hereby unconditionally release and forever discharge the Company
Parties from any and all Claims that the Otte Parties may have as of the date
Otte 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, Otte
hereby acknowledges and confirms the following: (i) Otte 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 Otte has in fact consulted with an
attorney; (ii) Otte 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) Otte knowingly and voluntarily
accepts the terms of this Release. Otte 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.
(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 Otte
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 Otte’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 any Claim which would constitute or result from conduct by
Otte 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 Otte or any other Executive Party from any
Claims based on any right the Company may have to enforce this Release or the
Agreement.
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(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 Otte 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 Otte’s
employment or the termination thereof (each, individually, a
“Proceeding”).
3.
Remedies.
(a) In
the event Otte 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 Otte
has failed to comply with Sections 6 and/or 7 of that certain letter agreement
between Otte and the Company, dated June 9, 2009, regarding the grant by the
Company to Otte of Restricted Stock Units (the “Letter”) (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 and the Letter reclaim any amounts paid to him
pursuant to the Agreement or the Letter, without waiving the release granted
herein. Otte 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, Otte 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
Otte 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) Otte
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 Otte 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 Otte may have at law or in equity, Otte 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
Otte, in lieu of, or prior to or pending determination in, any arbitration
proceeding.
(d) The
Company understands that by entering into this Release it will be limiting the
availability of certain remedies that it may have against Otte and limiting also
its ability to pursue certain claims against Otte.
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.
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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 Otte.
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:
OTTE
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 _______________,
2009.
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Daryl
R. Otte
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THESTREET.COM,
INC.
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By:
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Name:
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Title:
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