|
Exhibit
10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT, dated as of January 1, 2008 (this “Employment
Agreement”), by and between TheStreet.com, Inc., a
Delaware corporation (the “Company”), and James
Cramer (“Cramer”).
WHEREAS,
Cramer has been employed by the Company pursuant to an
employment agreement dated August 1, 2005, as amended (the
“Prior Employment Agreement”);
WHEREAS,
Cramer and the Company wish to document the mutually agreeable
terms and conditions of Cramer’s continued relationship
with the Company, as well as the terms, conditions, and
consideration provided with respect to restrictive covenants
that will prospectively apply to Cramer; and
WHEREAS,
the Company and Cramer wish to supersede the Prior Employment
Agreement with this Employment Agreement.
NOW,
THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as
follows:
(a) The
Company hereby appoints Cramer, and Cramer hereby accepts the
appointment, as an outside contributor for the
Company. This Employment Agreement shall be
effective as of January 1, 2008 (the “Effective
Date”) and shall expire on December 31, 2010,
unless sooner terminated in accordance with Section 4 hereof
(the “Term”); provided
, however ,
that Cramer may elect to terminate his employment, this
Employment Agreement and the Term hereof as of January 15,
2009 or any subsequent January 15 upon not less than sixty
(60) days and not more than ninety (90) days prior written
notice to the Company of such termination (and any such
election shall not be considered a breach of this Employment
Agreement). During the Term, except during any week
when Cramer is on vacation as set forth in Section 2(d)
hereof, Cramer will author no fewer than twelve (12) articles
per week intended for publication in the Company’s
online properties (
www.thestreet.com ,
www.realmoney.com ,
www.mainstreet.com ,
www.bankingmyway.com ,
www.stockpickr.com ,
www.promotions.com )
(collectively, the “Sites”). In addition,
during the Term Cramer agrees to write for the Company’s
product known as “Action Alerts PLUS” on such terms as
are in effect on the Effective Date, and for such other products as
the parties may mutually agree during the Term; provided ,
that, upon a Change of Control (as defined in Section 4(d) below),
Cramer shall have no obligation whatsoever to write for any such
products (including, but not limited to, Action Alerts PLUS) except
upon mutual agreement between Cramer and the Company following such
Change of Control. During the Term,
the Company agrees to provide an assistant for Cramer, who shall be
an employee of the Company and shall be approved by
Cramer. Such assistant shall be subject to all laws,
rules, regulations and policies, including the Company’s
Policy on Investments, a current copy of which is attached
as
Exhibit
A hereto (the “Investment Policy”), as are
applicable to employees of the Company, and shall be located
at the Company’s offices. For purposes of the
Investment Policy, Cramer’s assistant shall be subject
to the trading restrictions applicable to “Editorial
Staffers,” notwithstanding the fact that such assistant
may primarily perform duties associated with the designation
of “Business Staffer” under the
Policy.
(b) Cramer
agrees to perform faithfully his duties as an outside
contributor pursuant to this Employment Agreement to the best
of his abilities. In connection with the
preparation of articles during the Term, Cramer shall
communicate solely with the Company’s Editor-in-Chief or
his or her designee. During the Term, Cramer must
comply with all laws applicable to the Company’s
employees, as well as, to the extent provided herein, the
Investment Policy and, to the extent Cramer writes for the
product known as “Action Alerts PLUS” or any other
newsletter product, to the applicable Policy for Writers of
Investment Newsletters, a copy of which is attached as Exhibit
B hereto (the “Newsletter Policy”). For
purposes of the Investment Policy, Cramer shall be deemed an
“Outside Contributor” and an “Access
Person” as such terms are defined in the Investment
Policy, and shall be subject only to the provisions of the
Investment Policy that pertain to Outside Contributors and
Access Persons. Cramer agrees that he shall be
obligated to comply with any provisions of the Investment
Policy that pertain to Outside Contributors and Advisory
Representatives, including those pertaining to disclosure, and
with all provisions of the Newsletter Policy, as they may be
implemented or amended from time to time throughout the Term;
provided
, however,
that if the Investment Policy, Newsletter Policy and/or
disclosure provisions implemented or amended by the Company
during the Term differ from the policies in place on the
Effective Date in any way which Cramer reasonably believes
will have a materially adverse effect on Cramer’s
outside business activities, then Cramer shall notify the
Company in writing within forty-five (45) days of when he
first becomes aware that the implemented or amended policies
or provisions might have such a material adverse
effect. In the event the Company does not fully
cure such material adverse effect within thirty (30)
days’ after written notice thereof from Cramer (it being
understood that the parties will cooperate in good faith in
determining the extent to which a cure is necessary), Cramer
shall be entitled to voluntarily resign (within sixty (60)
days after such failure to cure), and such resignation shall
be considered a termination with “Good Reason”
pursuant to Section 4(b) hereof, and shall not be considered a
breach of this Employment Agreement; provided
, however,
that no such resignation by Cramer shall be considered a
termination for Good Reason if in the opinion of counsel to
the Company the implemented or amended policies or provisions
are required by applicable law.
(c) Subject
to Cramer’s personal and professional availability, and
consistent with past practice, during the Term Cramer also
agrees to provide other reasonable services upon reasonable
advance notice from the Company’s Chief Executive
Officer, including, without limitation, participation in the
Company’s interactive chat rooms on the Sites and those
on any other websites owned, in whole or in part and whether
directly or indirectly, by the Company, and attendance at
charitable events or other events at which the Company deems
Cramer’s attendance beneficial (for the avoidance of
doubt, in accordance with Section 3 hereof, the Company shall
reimburse Cramer for all reasonable travel, accommodation and
per diem expenses incurred in
connection
with Cramer’s attendance at any such
events). The above activities may include streaming
audio/video to the Sites and any other websites owned, in
whole or in part and whether directly or indirectly, by the
Company. The Company expressly acknowledges,
however, that Cramer shall not be required to perform any of
the services set forth in this Section 1(c) if performance of
such services would interfere with any of Cramer’s
outside activities.
(d) The
Company agrees that Cramer shall render his services to the
Company hereunder on a non-exclusive basis, provided
, however ,
that Cramer covenants that during the Term he shall not be
under or subject to any contractual restriction that is
inconsistent with the performance of his duties
hereunder. In this regard, without limiting the
generality of the foregoing, the Company acknowledges and
agrees that, notwithstanding the services Cramer shall provide
hereunder, Cramer (a) shall be entitled to engage, and will
continue to engage, in other journalistic, writing and media
endeavors, including, without limitation, writing for
magazines, (including, but not limited to, New York Magazine),
writing for and appearing in television and radio programs
(including, but not limited to, hosting the CNBC series
“Mad Money” and making appearances on other CNBC
and NBC television programs), the writing of books, and,
subject to the restriction in Section 5(a) hereof, writing for
and appearing in content distributed on the Internet
(including, but not limited to, appearing in content
distributed on CNBC.com, writing content that may be
distributed on New York Magazine’s website, and writing
books, the content of which may be published on the Internet);
provided
that any such writing or appearance distributed on the
Internet shall have been originally made and distributed in
print or television media or, if made for the Internet, shall
be directly related to a regular television program of which
Cramer is the primary talent (e.g., the bonus lightning round
on CNBC.com); provided
, further ,
that in the event Cramer does accept such engagements, he
shall use reasonable efforts to ensure that the byline for any
articles he authors, and the comparable on air indication for
nonprint media, refer to Cramer as a Market Commentator for
the Company; and (b) shall be entitled to engage, and may
engage, in extensive investing and trading in securities,
rights and options relating thereto and contracts in stock
indexes, foreign currencies and financial instruments
(collectively, “Securities
Activities”). Further, the Company
acknowledges and agrees that Cramer shall be entitled to
engage, and may engage, in Securities Activities on behalf of
other persons or entities (including Cramer and members of his
family) and that any Cramer family members (including any
spouse), may also engage in extensive Securities
Activities. (All such Securities Activities that
any Cramer family member, Cramer’s affiliates or Cramer
may engage in from time to time are collectively referred to
herein as the “Relevant Securities
Activities.”). In connection with the
foregoing, the Company further acknowledges and agrees
that:
(i) The
Relevant Securities Activities will often involve
Cramer’s beneficial ownership in and/or trading of
securities or other financial instruments that are the subject
of, or otherwise mentioned, referred to or discussed in,
articles written by Cramer for the Company, and that the
Relevant Securities Activities involving such securities or
other financial instruments may occur at any time before or
after the publication date of an issue of any article on the
Sites in which such securities or
other
financial instruments are mentioned, referred to or otherwise
discussed by Cramer in such article.
(ii) Cramer
shall not have access to articles written for the Company by
other writers, or information regarding such articles, prior
to publication, except for articles that Cramer is writing or
projects in which Cramer is involved. Furthermore,
the Company will endeavor to keep Cramer unaware, in any and
all of his capacities, of the final content or publication
schedule of articles, columns or other writings scheduled for
publication on the Sites that cover or discuss publicly traded
securities other than the articles or columns or other written
materials prepared by Cramer for publication the
Sites.
(iii) Notwithstanding
any policy of the Company to the contrary, the Relevant
Securities Activities, insofar as they are conducted in a
manner that does not violate the express provisions of the
Investment Policy, the Newsletter Policy and applicable law,
will not be deemed to in any way violate or breach any other
procedures, policies or practices of the Company now or
hereafter in effect with respect to Cramer, including, but not
limited to, any other conflict of interest rules or securities
trading policies or other rules or procedures that otherwise
may apply generally to writers for the Company regarding their
right to engage in the trading of securities or other Relevant
Securities Activities, and further, that any such policies
shall not be applicable to Cramer in connection with his
services hereunder.
(iv) Provided
Cramer is not in material breach of any of his obligations
hereunder, including any obligation under applicable law, and
without limiting the express provisions of this Employment
Agreement, the Company irrevocably waives and releases Cramer,
his affiliates, and members of his immediate family from any
duty, fiduciary or otherwise, that Cramer or any of them may
owe, or be deemed to owe, the Company that may in any way
prohibit or limit the Relevant Securities Activities, insofar
as they involve the trading and/or ownership of securities or
other financial instruments that are the subject of or are
otherwise referred to or discussed in the articles prepared by
Cramer pursuant to this Employment Agreement, and acknowledges
and agrees that such Relevant Securities Activities do not,
and will not, constitute a misappropriation of the
Company’s property or a breach of any fiduciary or other
duty Cramer may owe the Company hereunder.
(v) The
Company warrants and agrees that each of the articles prepared
by Cramer and published by the Company shall provide
appropriate disclosure relating to the Relevant Securities
Activities, as set forth in the Investment
Policy. The Company further agrees that it shall
not, without Cramer’s written consent, disclose any
non-public information regarding securities positions provided
by Cramer to the Company pursuant to the Investment Policy to
anyone other than the Company’s senior management and
senior editorial staff or its legal advisers, on a
confidential, “need to know” basis, or as required
by any court of competent jurisdiction or other federal or
state governmental or regulatory authority.
(e) The
Company agrees, to the extent permitted by applicable law, to
defend, indemnify and hold harmless Cramer against any and all
loss, damage, liability and expense, including, without
limitation, reasonable attorneys’ fees, disbursements,
court costs, and any amounts paid in settlement and the costs
and expenses of enforcing this Section of this Employment
Agreement (“Loss”), which may be suffered or
incurred by Cramer in connection with the provision of his
services hereunder or under the Prior Employment Agreement,
including, without limitation, any claims, litigations,
disputes, actions, investigations or other matters relating to
any securities laws or regulations, or the violation or
alleged violation thereof (the “Securities
Actions”), provided
that such Loss (i) arises out of or in connection with the
performance by Cramer of his obligations under this Employment
Agreement or the Prior Employment Agreement and (ii) is not
the result of any breach by Cramer of his obligations
hereunder, and provided
further
that with respect to any Securities Actions, the Company shall
be under no obligation to defend, indemnify or hold harmless
Cramer if Cramer has not acted with a reasonable, good faith
belief that his actions were in no way violative of any
securities laws or regulations. With respect
thereto, the termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a nolo
contendere plea or its equivalent, shall not, of itself,
create a presumption that Cramer did not act with a
reasonable, good faith belief that his actions were in no way
violative of any securities laws or
regulations. Further, to the extent that Cramer has
been successful on the merits or otherwise in defense of any
Securities Action, or in defense of any claim, issue or matter
therein, he shall be defended, indemnified and held harmless
by the Company as required herein. Expenses
(including reasonable attorneys’ fees, disbursements and
court costs) incurred by Cramer in defending any Securities
Action shall be paid by the Company in advance of the final
disposition of such Securities Action upon receipt of an
undertaking by or on behalf of Cramer to repay such amount if
it shall ultimately be determined that Cramer is not entitled
to be indemnified by the Company pursuant hereto.
|
|
Section
2.
|
Compensation .
|
(a)
Salary
. During the Term, as compensation for his services
hereunder, the Company shall pay to Cramer a salary at the
rates set forth below (the “Salary”):
(i) For
the period from January 1, 2008 through December 31,
2008, One Million Three Hundred Thousand Dollars ($1,300,000)
per annum;
(ii) For
the period from January 1, 2009 through December 31,
2009, One Million Five Hundred Sixty Thousand Dollars
($1,560,000) per annum; and
(iii) For
the period from January 1, 2010 through December 31,
2010, One Million Eight Hundred Seventy Two Thousand Dollars
($1,872,000) per annum.
All
amounts due in respect of Salary shall be payable in
accordance with the Company’s standard payroll
policies. All applicable withholding taxes shall be
deducted from such payments. The Salary shall be
reviewed at least annually during the
Term,
and may be increased in the joint discretion of the
Compensation and Audit Committees of the Company’s Board
of Directors.
(b)
Bonus
. Except as set forth in Section 4 hereof, in
addition to the Salary Cramer shall be eligible to receive an
annualized target bonus of 75% of Salary, which may be cash
and/or equity compensation (including stock-based awards such
as restricted stock units), for his employment during each of
the periods listed in Section 2(a) above (the “Annual
Bonus”), which shall be based upon achievement of the
Company’s financial goals as determined by the
Compensation and Audit Committees of the Company’s Board
of Directors; provided
, however ,
that the Annual Bonus for any period listed in Section 2(a)
shall be no less than the annual bonus paid to any other
executive, employee or independent contractor engaged by the
Company for such period. In addition, on April 15,
2008, the Company shall pay Cramer a signing bonus in an
amount equal to $100,000.
(c)
Equity
Awards . Upon the execution of this
Employment Agreement, Cramer shall be awarded restricted stock
units (the “RSU Award”) under the Company’s
2007 Performance Incentive Plan (the “Plan”) with
respect to 300,000 shares of the Company’s common stock,
par value $.01 (“Common Stock”), which RSU Award
shall be payable in shares of Common Stock and shall vest and
become payable as to 60,000 shares each year beginning on
January 1, 2009 and continuing each January 1 thereafter
through January 1, 2013, provided
that Cramer remains an employee of the Company upon each such
date unless his employment has been terminated pursuant to
Section 4(b) of this Employment
Agreement. Notwithstanding the foregoing, following
the consummation of a Change of Control any portion of the RSU
Award which then remains unvested shall vest and become
payable ratably over 36 months beginning at the end of the
calendar month in which the Change of Control is consummated,
and each month end thereafter, provided
that Cramer remains an employee of the Company on each such
date unless his employment has been terminated pursuant to
Section 4(b) of this Employment Agreement; provided
further
that at no time shall Cramer’s vested interest in the
RSU Award be less than it would have been had a Change of
Control not occurred; provided
further
that if in connection with such a Change of Control the Common
Stock is converted into cash, securities or other property or
a combination thereof (“Merger Consideration”),
regardless of whether the Company is the surviving corporation
in such transaction, then following the consummation of such
Change of Control Cramer shall be entitled to receive during
such 36-month period, in lieu of each share of Common Stock
subject to the remaining portion of the RSU Award, such Merger
Consideration as is received by shareholders of the Company
with respect to one share of Common Stock in connection with
such Change of Control. In the event the RSU Award
is paid in cash in connection with a Change of Control, the
Company shall pay Cramer interest in respect of the 36-month
payment period, and such interest shall be paid at the prime
rate offered by the Company’s leading principal lending
institution, as in effect from time to time. The
RSU Award shall also have such terms not inconsistent with the
foregoing (including appropriate adjustment in the event of a
change in corporate structure affecting the Common Stock in
order to prevent dilution or enlargement of benefits) as shall
be determined by the Company and set forth in the Plan and a
grant agreement, a form of which is attached hereto as Exhibit
C. All payments made to
Cramer
with respect to the RSU Award shall be made within five (5)
business days following the relevant vesting
date. Any equity award, whether shares of Company
Common Stock, restricted stock, stock options, restricted
stock units, deferred stock units or otherwise, shall have
been registered with the Securities and Exchange Commission on
Form S-8.
In
addition to Salary, the Annual Bonus and the RSU Award, Cramer
shall be compensated on a basis and in a manner consistent
with the basis and manner in which the Company compensates its
senior executives, and Cramer may, in the discretion of the
Compensation and Audit Committees of the Company’s Board
of Directors, be granted additional awards under the Plan on
an annual or other basis as compensation for the performance
of his services hereunder. Notwithstanding the
foregoing sentence, the Company shall have no obligation to
grant any equity award to Cramer after Cramer has elected to
terminate his employment.
(d)
Vacation
. During each year of the Term, Cramer shall be
entitled to six (6) weeks of paid vacation.
(e)
Benefits
. During the Term, Cramer shall be entitled to
participate in any group insurance, accident, sickness and
hospitalization insurance, and any other employee benefit
plans of the Company in effect during the Term, including
plans available to the Company’s executive
officers.
(f)
Change of
Control Payment . In the event of a Change
of Control while Cramer is an employee of the Company, the
Company shall pay Cramer, within thirty (30) business days
following such Change of Control, an amount (subject to
reduction as provided in Section 8A(a) below, and further
subject to the non-duplication provision set forth in the last
sentence of Section 4(b)) in cash equal to (i) three (3) times
Cramer’s “base amount” (within the meaning
of Section 280G(b)(3)(A) of the Internal Revenue Code of 1986,
as amended (the “Code”)); minus
(ii) $5,000 (such amount being the “Change of Control
Payment”). The payment due under this Section
2(f) shall be in addition to amounts due under Section
4.
|
|
Section
3.
|
Expense Reimbursement .
|
During
the Term, Cramer shall have the right to reimbursement, upon
proper accounting, of reasonable expenses and disbursements
incurred by him in the course of his duties
hereunder.
|
|
Section
4.
|
Employment Termination .
|
(a) At
any time during the Term and except as otherwise provided in
Sections 4(b) and 4(c) hereof, the Company shall only have the
right to terminate this Employment Agreement and
Cramer’s employment with the Company hereunder, and to
give Cramer notice of such termination as of a date not
earlier than seven (7) days from such notice, because of (i)
Cramer’s willful misconduct or gross negligence in the
performance of his obligations under this Employment
Agreement, (ii) dishonesty or misappropriation by Cramer
relating to the Company or any of its funds, properties,
or
other
assets, (iii) inexcusable repeated or prolonged absence from
work by Cramer (other that as a result of, or in connection
with, sickness or disability), (iv) any intentional or
reckless unauthorized disclosure by Cramer of confidential or
proprietary information of the Company which is reasonably
likely to result in material harm to the Company, (v) a
conviction of Cramer (including entry of a guilty or nolo
contendere plea) of a felony involving fraud, dishonesty,
moral turpitude, or involving a violation of federal or state
securities laws, (vi) the entry of an order, judgment or
decree, of any court of competent jurisdiction or any
federal
|
