THESTREET.COM, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (this “Employment Agreement"), dated as of
August 2007, by and between TheStreet.com, Inc., a Delaware
corporation (the "Company" or "TheStreet.com''), and David
Morrow ("Morrow").
WHEREAS,
the Company desires that Morrow enter into this Employment
Agreement, and Morrow desires to enter into this Employment
Agreement, on the terms and conditions set forth
herein;
NOW
THEREFORE, the parties hereto agree as follows:
Section 1. Duties and Term.
The
Company agrees to employ Morrow and Morrow agrees to be so
employed in the position of Editor-in-Chief. Morrow agrees to
perform such duties, functions and responsibilities as are
generally incident to such position (which shall include all
of the Company’s editorial content, including
multimedia, and such content as is added to the
Company’s business during the Term) reporting to and
subject to the direction of the Chief Executive Officer; for a
period commencing on August 23, 2007 (the “Commencement
Date") and ending on August 23, 2009, unless sooner terminated
in accordance with Section 4 hereof. The Employment Agreement
shall be renewed automatically for an additional one-year
period unless the Company or Morrow gives notice to the other
party hereto not less than ninety (90) days prior to August
23, 2009 of its or his election not to re-new the Employment
Agreement, in which event the Employment Agreement shall
ter-minate on such date. The period of employment under this
Employment Agreement, as renewed or earlier terminated
pursuant to Section 4 below, shall be referred to in this
Employment Agreement as the “Term.” Morrow agrees
to perform faithfully the duties assigned to him pursuant to
this Employment Agreement to the best of his abilities and to
devote all of his business time and attention to the Company's
business, Morrow shall be subject to all 1aws, rules,
regulations and policies as are from time to time applicable
to employees of the Company and of which he has received
written notice including TheStreet.com's Policy on
Investments, and will be required to comply fully with the
provisions of all such written supervisory procedures and
other relevant securities and disciplinary policies relevant
to his position with the Company.
Section 2. Compensation.
(a)
Annual Salary. As
compensation for his services hereunder, during the Term the
Company shall pay to Morrow a salary of not less than Two Hundred
and Thirty-Five Thousand Dollars ($235,000) per annum, payable in
accordance with the Company's
standard payroll policies, and less all applicable federal, state
and local with holding
taxes (the "Annual Salary"). The Annual Salary shall be reviewed at
least annually during the Term at the end of each calendar year and
may be increased in the sole discretion
of the Company's Chief Executive Officer and the Compensation
Committee of the Company's Board of Directors (the "Board"); taking
into consideration both the Company's and Morrow's performance
during the preceding year.
(b)
Bonus. Except
as set forth in Section 4 hereof, in addition to the Annual Salary,
Morrow shall be entitled to receive additional bonus compensation
under the Company's 2007 Performance Incentive Plan (the "Plan"),
payable at year end or shortly thereafter, which may be cash and/or
equity compensation, for his employment during each calendar year
of the Term (the "Annual Bonus"). Morrow's Annual Bonus will be
calculated in accordance with the formulas specified in the
Agreement for Grant of Cash Performance Award Under 2007
Performance Incentive Plan which is attached hereto as
Exhibit A and incorporated herein by reference.
Each
calendar year of the Term the Company will issue a new Agreement
for Grant of Performance Based Award as determined by the
Compensation Committee of the Board of Directors. Nothing contained
in this paragraph shall deprive Morrow any rights otherwise
specified in the Plan.
(c)
In addition to the Annual Salary and the Annual Bonus, Morrow
may, in the discretion of the Compensation Committee of the
Company's Board of Directors, be granted awards under the Plan
on an annual or other basis as compensation for the
performance of his services hereunder.
Section 3 .
Benefits: Expense Reimbursement.
During
the Term, Morrow shall be eligible 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 and available to the Company's executive
officers, and Morrow shall have the right to reimbursement
upon proper accounting, of reasonable expenses and
disbursements incurred by him in the course of his duties
hereunder. In addition. during each year of the Term, Morrow
shall be entitled to four (4) weeks of paid vacation and
personal and sick days in accordance with the Company’s
policy or customary practices applicable to executive
officers.
Section 4 .
Employment Termination.
(a)
At any time during the Term, and except as otherwise provided
in Sec-tions 4(b) and 4(c) hereof the Company shall only have
the right to terminate this Em-ployment Agreement and
Morrow’s employment with the Company hereunder, upon
written notice to Morrow, in the event Morrow engages in
conduct which constitutes “Cause." For purposes of this
Employment Agreement, Cause shall mean (i) Morrow's willful
misconduct or gross negligence in the performance of his
obligations under this Employment Agreement, (ii) dishonesty
or misappropriation by Morrow relating to the Company or any
of its funds, properties, or other assets, (iii) unexcused,
repeated or prolonged absence from work by Morrow (other than
as a result of, or in connection with, a disability or other
permitted cause), (iv) any unauthorized disclosure by Morrow
of confidential or proprietary information of the Company,
which is reasonably likely to result in material harm to the
Company, (v) a conviction of Morrow (including entry of a
guilty or nolo contendere plea) involving fraud, dishonesty,
moral turpitude, or involving a violation of federal or state
securities laws or (vi) other breach by Morrow of this
Employment Agreement and such failure or breach is not cured,
to the extent cure is possible, by Morrow within thirty (30)
days after receipt of written notice thereof from the Company
to Morrow or, if cure is not practicable within such period,
if Morrow does not commence such cure and complete the same in
a reasonable time. If this Employment Agreement and Morrow's
employment with the Company hereunder is terminated for Cause,
or if Morrow voluntarily resigns from the Company without Good
Reason during the Term, the Company shall pay Morrow an amount
equal to all earned but unpaid portions of the Annual Salary,
unused vacation days and any amounts equal to the short term
bonus compensation awards under the Plan that were calculated
and communicated as final to Morrow through the date of
termination, and following any such termination, Morrow shall
not be entitled to receive any other compensation or benefits
from the Company hereunder.
(b)
This Employment Agreement and Morrow's employment with the
Company hereunder may also be terminated by the Company
without Cause, or by Morrow upon the occurrence of an event
constituting Good Reason. For purposes of this Employment
Agreement, "Good Reason" shall mean (i) the failure of the
Company to cure a material adverse change made by it in
Morrow's functions, duties or responsibilities in his
positions with the Company as provided in this Employment
Agreement, or (ii) a reduction in the Annual Salary during the
Term, or (iii) the failure of the Company to cure any other
material breach of this Employment Agreement, or (iv) in
connection with the occurrence of a Change of Control, there
is a significant reduction of Morrow's authority, duties or
responsibilities relative to his authority, duties or
responsibilities in effect immediately prior to such
reduction;
provided. however, that
the foregoing provision shall not include a reduction in duties or
responsibilities solely by virtue of the Company being acquired and
made part of a larger entity (as, for example, if Morrow is not
appointed as Editor-in-Chief of the acquiring corporation, but
continues to have a substantially similar scope and level of
responsibility over the affairs of the Company following such
Change of Control), or (v) Morrow's relocation by the Company or a
successor thereto to a location more than fifty (50) miles from
either the Company's current headquarters or Morrow's home address
in Brooklyn, New York,
provided that, in
the case of (i), (ii), or (iii) above, the Company has failed to
cure the event constituting Good Reason within thirty (30) days
following written notice thereof from Morrow.
In
the event that Morrow's employment is terminated by the
Company without Cause, or by Morrow with Good Reason, then the
Company shall pay or provide to Morrow, as his
sole
and exclusive remedy hereunder, upon delivery by Morrow to the
Company of a customary release, including a non-defamation
provision, (A) an amount equal to all earned but unpaid
portions of the Annual Salary, unused vacation days and any
amounts equal to the short term bonus compensation awards
under the Plan that were calculated and communicated as final
to Morrow through the date of termination, (B) group life,
disability, sickness, hospitalization and accident insurance
benefits equivalent to those to which Morrow would have been
entitled if he had continued working for the Company for the
greater of the balance of the Term or an additional twelve
(12) month period, and (C) the Annual Salary to the same
extent to which Morrow would have been entitled if he had
continued working for the Company for the greater of the
balance of the Term and an additional twelve (12) month
period. Notwithstanding the provisions of Section 1 above, the
“balance of the Term” as used in this paragraph
shall mean the original Term as renewed or extended without
regard to the termination provided for herein.
The
benefits continuation and salary payments provided for above
shall be contingent upon
Morrow's continued compliance with Sections 5 and 6 hereof
and, after the twelfth (12) month of the severance period
shall be reduced, if any severance payments remain by the
corresponding benefits amounts and amounts of cash
compensation and any publicly traded or freely tradable
securities compensation (including, without limitation,
securities that will become freely tradable after a
restrictive or vesting period) actually received by Morrow
after the twelfth (12) month of the severance period.
Additionally, the benefits continuation provided for in (B)
above shall terminate upon Morrow's becoming eligible for
corresponding benefits in connection with new employment.
Except as set forth above, Morrow shall not be entitled to
receive any other compensation or benefits from the Company
hereunder.
(c)
This Employment Agreement and Morrow's employment with
the
