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Exhibit 2.2
THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, ANY SUCCESSOR LAW, THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION WITHIN THE UNITED STATES AND ITS TERRITORIES OR
POSSESSIONS OR THE SECURITIES LAWS OF ANY FOREIGN JURISDICTION.
THESE SECURITIES MAY NOT BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THESTREET.COM, INC. IS RECEIVED STATING THAT SUCH
TRANSACTION IS NOT SUBJECT TO THE REGISTRATION AND/OR PROSPECTUS
DELIVERY REQUIREMENTS OF ANY SUCH JURISDICTION. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THESTREET.COM, INC. MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY SECTION
4(2) THEREUNDER.
THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND A
RIGHT OF FIRST REFUSAL, AS SET FORTH IN AN AGREEMENT DATED NOVEMBER
1, 2007, BY AND AMONG BFPC NEWCO LLC, LARRY STARKWEATHER, KYLE
SELBERG, RACHELLE ZORN, ROBERT QUINN AND LARRY STARKWEATHER, AS
AGENT. A COPY OF SUCH RESTRICTIONS MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THESTREET.COM, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES.
THESTREET.COM,
INC.
OPTION
TO PURCHASE COMMON
STOCK
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Number: |
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Dated: November 1,
2007
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For value received, Larry Starkweather (the
“Investor”
), is (subject to Section 2.1(b) below) entitled
to purchase from TheStreet.com, Inc., a Delaware corporation
(together with its successors and assigns, the
“Company”
), at any time and from time to time after the
date set forth above and prior to 5:00 p.m., New York time, on the
Expiration Date (as defined in Section 2.1 below), at the purchase
price of $12.577 per share (as such price may be adjusted pursuant
to Section 3, the “Option
Price” ) an aggregate of
175,600 shares (as such number of shares may be adjusted pursuant
to Section 3 below, the “Option Shares” ) of the Company's common stock, par value $0.01 per share
( “Common
Stock” ). Certain terms
used but not defined elsewhere herein have the meanings assigned to
them in Section 16 below.
This Option ( “Option” ) is
being issued to the holder in accordance with a Stock Purchase
Agreement of even date herewith (the “Stock Purchase Agreement”
) by and among BFPC Newco LLC, Investor, Kyle
Selberg, Rachelle Zorn, Robert Quinn and Investor, as
agent.
Section 1.
Option Holder;
Transferability .
1.1 Option
Holder .
The Company and the Secretary of the Company
shall be entitled to treat the Investor as the owner in fact for
all purposes of this Option (the Investor also being herein
referred to as the “
holder ” of the Option) and
shall not be bound to recognize any equitable or other claim to or
interest in the Option on the part of any other person.
1.2 Not
Transferable .
The Option shall not be transferable.
Section 2. Term and
Exercise of Option; Acceleration and Termination
.
2.1 Term of
Option .
(a) The holder shall have the
right, at any time before 5:00 p.m., New York time, on the fifth
anniversary of the date hereof, or, if such date is not a Business
Day, the next Business Day (the “Expiration Date” ) to purchase from the Company the number of fully paid and
nonassessable Option Shares that shall, at such time, have become
exercisable in accordance with Section 2.1(b) below at the Option
Price in effect on such date. After the Expiration Date, any
previously unexercised portion of the Option shall be void, have no
value and be of no further effect.
(b) Subject to the last sentence
of Section 2.1(a), Section 2.3 and the other terms and provisions
of this Option, this Option shall become exercisable (i) on each of
the first two anniversary dates of the date of this Option as to
58,533 Option Shares, and (ii) on the third anniversary date of the
date of this Option as to an additional 58,534 Option
Shares, provided
that as of each of such anniversary dates the
Investor shall not have breached nor is then in breach of any of
his obligations under the restrictive covenants set forth in
Sections 5.2 and 5.3 of the Stock Purchase Agreement. In no event
shall this Option be exercisable for more than an aggregate of
175,600 Option Shares.
2.2 Exercise of
Option .
(a) The Option may be exercised
upon surrender to the Company, in care of the Secretary of the
Company, together with the duly completed and signed form of
Election to Purchase in the form attached hereto, together with
payment to the Company of the Option Price for the number of
exercisable Option Shares in respect of which the Option is then
being exercised. Payment of the aggregate Option Price upon
exercise pursuant to this Section 2.2(a) shall be made by delivery
of a good check to the principal executive office of the Company or
(if provided by the Company) by wire transfer of immediately
available funds in accordance with written wire transfer
instructions to be provided by the Company.
(b) Subject to Sections 4 and 6
hereof, upon such surrender of the Option and payment of the Option
Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order
of the holder, and in the name of the holder, a
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certificate or certificates for
the number of full Option Shares so purchased upon the exercise of
the Option, together with a check or cash in respect of any
fraction of a share of Common Stock otherwise deliverable upon such
exercise, as provided in Section 4. Such certificate or
certificates shall be deemed to have been issued and the holder
shall be deemed to have become a holder of record of such Option
Shares as of the date of the surrender of the Option and payment of
the Option Price.
(c) The rights of purchase
represented by the Option shall be exercisable, at the election of
the holder, either in full or from time to time in part. If the
Option is exercised in respect of less than all of the Option
Shares purchasable on such exercise at any time prior to the
Expiration Date, a new Option of like tenor exercisable for the
remaining Option Shares may be issued and delivered to the Investor
by the Company. The Option or any part thereof surrendered in the
exercise of the rights thereby evidenced shall thereupon be
cancelled by the Company and retired.
2.3 Acceleration and
Termination .
Upon the dissolution or liquidation of the
Company or upon any reorganization, merger, or consolidation as a
result of which the Company is not the surviving corporation (or
survives as a wholly-owned subsidiary of another corporation), or
upon a sale of substantially all the assets of the Company, the
Option, to the extent not then exercisable, shall become
immediately exercisable, and Investor shall have a period of ten
(10) Business Days from the date of receipt of a notice from the
Company of such proposed event to exercise the Option (to the
extent not previously exercised). Following the expiration of the
earlier of such ten Business Day period or the day immediately
preceding the effective date of any transaction or event described
in this Section 2.3, the Option shall be void, have no value and be
of no further effect. In no event shall the Option be exercisable
or of any further effect following the day immediately preceding
the effective date of such transaction or event, and no failure by
the Company to give notice or any defect therein or in the mailing
thereof shall affect the validity of such transaction or
event.
Section 3. Adjustment
of Option Price and Number of Option Shares
.
3.1 Mechanical
Adjustments .
The number of Option Shares purchasable upon the
exercise of the Option and the Option Price payable in connection
therewith shall be subject to adjustment from time to time as
follows:
(a) If the Company shall at any
time pay a dividend on the Common Stock in shares of the Common
Stock (including, if applicable, in shares of Common Stock held by
the Company in treasury or by a Subsidiary), subdivide or split its
outstanding shares of Common Stock into a larger number of shares
or combine its outstanding shares of Common Stock into a smaller
number of shares or otherwise effect a reclassification or
recapitalization of the Common Stock, then, in each such case, the
number of Option Shares thereafter issuable upon exercise of this
Option shall be adjusted so that this Option shall thereafter be
exercisable for the number of Option Shares equal to the number of
shares of Common Stock which the holder would have held after the
occurrence of any of the events described above had this Option
been exercised in full immediately prior to the occurrence of such
event. An adjustment made pursuant to this Section 3.1(a) shall
become effective retroactively to the related record date in the
case of a
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dividend and shall become
effective on the related effective date in
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