AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1999
REGISTRATION NO. 333-
============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
THESTREET.COM, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 06-15150824
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
__________________________
TWO RECTOR STREET
NEW YORK, NEW YORK 10006
(Address of Principal Executive Offices) (Zip Code)
__________________________
AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
__________________________
MICHAEL S. ZUCKERT, ESQ.
THESTREET.COM, INC.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TWO RECTOR STREET
NEW YORK, NEW YORK 10006
(212) 271-4004
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
___________________
COPIES TO:
DAVID J. GOLDSCHMIDT, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
__________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01
<S> <C> <C> <C> <C>
per share..................... 272,121 $0.03 $8,163.63 $2.27
Underlying outstanding 1,001,682 $0.15 $150,252.30 $41.77
options granted or issued and 16,667 $2.10 $35,000.70 $9.73
outstanding as a result of the 1,037,018 $3.00 $3,111,054.00 $864.87
exercise of options granted under 13,333 $9.00 $119,997.00 $33.36
the Amended and Restated 37,000 $12.00 $444,000.00 $123.43
1998 Stock Incentive Plan 268,682 $16.15 $4,339,214.30 $1,206.30
2,000 $17.25 $34,500.00 $9.59
3,400 $17.63 $59,942.00 $16.66
2,500 $17.75 $44,375.00 $12.34
13,500 $17.97 $242,595.00 $67.44
53,350 $18.00 $960,300.00 $266.96
9,400 $18.13 $170,422.00 $47.38
5,400 $18.19 $98,226.00 $27.31
14,600 $18.31 $267,326.00 $74.32
12,000 $18.50 $222,000.00 $61.72
15,000 $18.56 $278,400.00 $77.40
21,200 $18.63 $394,956.00 $109.80
2,600 $18.88 $49,088.00 $13.65
7,000 $19.13 $133,910.00 $37.23
15,950 $19.19 $306,080.50 $85.09
5,500 $19.25 $105,875.00 $29.43
14,000 $19.31 $270,340.00 $75.15
5,300 $19.38 $102,714.00 $28.55
11,900 $19.75 $235,025.00 $65.34
1,000 $19.94 $19,940.00 $5.54
261,600 $20.06 $5,247,696.00 $1,458.86
1,200 $20.13 $24,156.00 $6.72
15,666 $20.44 $320,213.04 $89.02
16,000 $20.63 $330,080.00 $91.76
8,000 $21.88 $175,040.00 $48.66
4,100 $22.13 $90,733.00 $25.22
5,000 $25.50 $127,500.00 $35.45
2,000 $25.69 $51,380.00 $14.28
45,000 $25.81 $1,161,450.00 $322.88
6,400 $26.13 $167,232.00 $46.49
4,200 $26.75 $112,350.00 $31.23
4,800 $27.25 $130,800.00 $36.36
15,200 $30.00 $456,000.00 $126.77
3,400 $31.00 $105,400.00 $29.30
3,700 $31.19 $115,403.00 $32.08
12,000 $31.75 $381,000.00 $105.92
17,300 $33.94 $587,162.00 $163.23
30,000 $34.63 $1,038,900.00 $288.81
2,866 $35.50 $101,743.00 $28.28
-----------
$6,373.97
============================================================================================================
Common Stock, par value $.01 per
share............................. 739,634 $20.437 $15,115,900.06 $4,202.22
Subject to future grants under
the Amended and Restated 1998 Stock
Incentive Plan
============================================================================================================
TOTAL: $10,576.19
=============
</TABLE>
(1) This registration statement (this "Registration Statement") covers
shares of common stock, par value $.01 per share (the "Common Stock")
of the Registrant consisting of the aggregate number of shares which
may be sold upon the exercise of options which have been granted
and/or may hereafter be granted under the Amended and Restated 1998
Stock Incentive Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee
under Rule 457(h) under the Securities Act of 1933 as follows: (i) in
the case of shares of common stock which may be purchased upon
exercise of outstanding options, the fee is calculated on the basis of
the price at which the options may be exercised; and (ii) in the case
of shares of common stock for which options have not yet been granted,
and the option price of which is therefore unknown, the fee is
calculated on the basis of the average of the high and low sale prices
per share of common stock as quoted on The Nasdaq National Market on
November 3, 1999 (within 5 business days prior to filing this
Registration Statement).
PART I
EXPLANATORY NOTE
This Registration Statement registers shares, par value $0.01 per
share, of Common Stock of TheStreet.com, Inc., that were issued and sold or
may be issued and sold under TheStreet.com's Amended and Restated 1998
Stock Incentive Plan (the "Plan").
This Registration Statement contains two parts. The first part
contains a prospectus prepared in accordance with Part I of Form S-3 (in
accordance with Instruction C of the General Instructions to Form S-8)
which covers reoffers and resales of shares of the Common Stock issued
pursuant to the Plan. The second part contains information required in the
Registration Statement pursuant to Part II of Form S-8. Pursuant to the
Note to Part I of Form S-8, the plan information specified by Part I of
Form S-8 does not need to be filed with the Securities and Exchange
Commission.
REOFFER PROSPECTUS
134,439 SHARES OF COMMON STOCK
THESTREET.COM, INC.
___________________
The shares of common stock, $0.01 par value per share (the "shares"),
of TheStreet.com, Inc. covered by this reoffer prospectus, may be offered
and sold to the public by certain shareholders of TheStreet.com
(collectively, the "Selling Securityholders"). The Selling Securityholders
have acquired the shares through their exercise of stock options granted to
them under TheStreet.com's Amended and Restated 1998 Stock Incentive Plan
("the Plan").
Our common stock is quoted on the Nasdaq National Market under the
symbol "TSCM." On November 3, 1999, the closing price of a share of our
common stock on the Nasdaq National Market was $20.5 per share. The
Selling Securityholders may sell their shares directly or indirectly in one
or more transactions on the Nasdaq National Market or on any stock exchange
on which the shares may be listed at the time of sale, in privately
negotiated transactions, or through a combination of such methods. These
sales may be at fixed prices (which may be changed), at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
The shares are "restricted securities" under the Securities Act of
1933, as amended (the "Securities Act") before their sale under the
prospectus. This reoffer prospectus has been prepared for the purpose of
registering the shares under the Securities Act to allow for future sales
by the Selling Securityholders to the public without restriction. The
Selling Securityholders may sell shares through one or more agents, brokers
or dealers or directly to purchasers. Such brokers or dealers may receive
compensation in the form of commissions, discounts or concessions from the
Selling Securityholders and/or purchasers of the shares, or both (which
compensation as to a particular broker or dealer may be in excess of
customary commissions). In connection with such sales, the Selling
Securityholders and any participating broker or dealer may be deemed to be
"underwriters" within the meaning of the Securities Act, and any
commissions they receive and the proceeds of any sale of shares may be
deemed to be underwriting discounts and commissions under the Securities
Act. TheStreet.com will not receive any proceeds from the sale of the
shares by the Selling Securityholders.
____________________
This investment involves a high degree of risk. Please see "Risk
Factors" beginning on page 8.
____________________
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined whether this reoffer prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
____________________
The date of this reoffer prospectus is November 5, 1999
____________________
TABLE OF CONTENTS
Page
Additional Information . . . . . . . . . . . . . . . . . . . . . . . 5
Incorporation of Certain Documents by Reference . . . . . . . . . . . 6
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Selling Securityholders . . . . . . . . . . . . . . . . . . . . . . . 18
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . 19
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
______________
You should rely only on the information contained in this reoffer
prospectus or any supplement. We have not authorized anyone to provide you
with information different from that which is contained in or incorporated
by reference to this reoffer prospectus. We are offering to sell shares of
common stock and seeking offers to buy shares of common stock only in
jurisdictions where offers and sales are permitted. The information
contained in this reoffer prospectus is accurate only as of the date of
this reoffer prospectus, regardless of the time of delivery of this reoffer
prospectus or of any sale of the common stock.
ADDITIONAL INFORMATION
TheStreet.com has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-8 under the
Securities Act with respect to the shares of common stock offered hereby.
This reoffer prospectus does not contain all of the information set forth
in the registration statement and the exhibits thereto. For further
information with respect to TheStreet.com and the common stock offered
hereby, reference is made to the registration statement and the exhibits
thereto. Statements contained in this reoffer prospectus regarding the
contents of any contract or any other document to which reference is made
are not necessarily complete, and, in each instance where a copy of such
contract or other document has been filed as an exhibit to the registration
statement, reference is made to the copy so filed, each such statement
being qualified in all respects by such reference.
TheStreet.com is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the
Commission. The Registration Statement, including exhibits, and the reports
and other information filed by TheStreet.com can be inspected without
charge at the public reference facilities maintained by the Commission at
the Commission's principal office at 450 Fifth Street, N.W., Room 1024,
Washington, D.C., 20549, and at the Regional Offices of the Commission
located at Seven World Trade Center, l3th Floor, New York, New York 10048,
and Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois
60661. Copies of such material can be obtained from such offices at fees
prescribed by the Commission. The public may obtain information on the
operation of the Public Reference room by calling the Commission at
1-800-SEC-0330. The Commission maintains a World Wide Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The
address of this site is http://www.sec.gov. TheStreet.com shares are quoted
on the Nasdaq National Market under the symbol "TSCM."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following information filed with the Commission is incorporated by
reference herein: TheStreet.com's Registration Statement on Form S-1 (File
No. 333-72799) filed with the Commission on February 23, 1999, including
any amendment or report thereto subsequently filed by TheStreet.com for the
purpose of updating that registration statement pursuant to the Securities
Act.
All documents filed by TheStreet.com pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act prior to and subsequent to the date hereof
and prior to the termination of the offering shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded for purposes of this reoffer
prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
TheStreet.com will provide without charge to any person to whom this
reoffer prospectus is delivered, upon written or oral request of such
person, a copy of each document incorporated by reference in the
registration statement (other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into this reoffer
prospectus). Requests should be directed to SEAN MCLAUGHLIN at
TheStreet.com, Inc., Two Rector Street, New York, New York 10006.
TheStreet.com's telephone number is (202) 271-4004 and its Web site is
located at www.thestreet.com. Information on the Web site is not
incorporated by reference into this reoffer prospectus.
THE COMPANY
TheStreet.com is a leading web-based provider of original, timely,
comprehensive and trustworthy financial news, commentary and information
aimed at helping readers make informed investment decisions. TheStreet.com
combines the most important qualities of traditional print
journalism--accuracy, intelligence, fairness and wit--with the web's
advantages as a financial news medium--timeliness, interactivity and global
distribution. With a staff of approximately 80 professional reporters and
editors, together with two dozen outside contributors, we update our site
with approximately 50 original stories throughout each business day and
with many additional features on weekends. Trained at the nation's leading
financial news organizations, our journalists produce quality news coverage
and in-depth analysis in a real-time, interactive medium ideally suited to
the needs of today's investors. We have developed a community of loyal
readers who turn to TheStreet.com for their financial and investing news
and information needs. During 1998, our subscriber base grew more than 380%
to approximately 32,000 at the end of the year; as of September 30, 1999,
we had over 94,000 subscribers. We derive our revenues primarily from sales
of subscriptions to our web site and from sales of advertising targeted to
our desirable reader demographic.
In recent years, individuals have been taking greater control of their
investments. The web has facilitated this behavioral shift by providing
investors with easy access to information that was once generally available
only to investment professionals. According to International Data
Corporation, an independent market research firm, the number of online
brokerage accounts in the United States is expected to grow from 3.5
million at the end of 1997 to 24 million at the end of 2002, with online
brokers expected to manage over $1.5 trillion in assets by the end of 2002.
Increasingly, this growing group of self-directed investors is seeking
timely, comprehensive and trustworthy financial news and information that
can help them make informed investing decisions.
At TheStreet.com, we aim to meet the increasing demands of today's
investors by providing a broad range of original financial news and in-
depth analysis through a real-time, interactive medium. Our objective is to
establish TheStreet.com as the leading and most comprehensive financial
news and information destination for investors. We aim to further develop a
community of loyal readers in order to build our subscription base and
attract advertisers. Our strategy includes the following key elements:
o expand our web site as a comprehensive financial news and
information destination;
o leverage our content to maximize revenue across a diverse
customer base;
o capitalize on reader demographics desirable to advertisers;
o leverage strategic partnerships; and
o build brand awareness of TheStreet.com and our writers.
Our principal executive offices are located at Two Rector Street, 14th
Floor, New York, New York 10006. Our telephone number at that location is
(800) 562-9571. Our web site is www.thestreet.com. The information
contained on our web site is not incorporated by reference into this
reoffer prospectus.
RISK FACTORS
RISK FACTORS THAT MAY AFFECT FUTURE OPERATING RESULTS
You should carefully consider the following risks before making an
investment decision. If any of the following risks occur, our business,
results of operations or financial condition could be materially adversely
affected.
WE HAVE A HISTORY OF LOSSES AND WE ANTICIPATE LOSSES WILL CONTINUE
As of September 30, 1999, we had an accumulated deficit of $35.5
million. We have not achieved profitability and expect to continue to
incur net losses in 1999 and subsequent fiscal periods. We expect to
continue to incur significant operating expenses and, as a result, will
need to generate significant revenues to achieve profitability, which may
not occur. Even if we do achieve profitability, we may be unable to sustain
or increase profitability on a quarterly or annual basis in the future.
IF WE ARE UNABLE TO ATTRACT OR RETAIN QUALIFIED EDITORIAL STAFF AND OUTSIDE
CONTRIBUTORS, OUR BUSINESS COULD BE HARMED
Our future success depends substantially upon the continued efforts of
our editorial staff and outside contributors to produce original, timely,
comprehensive and trustworthy content. Only a few of our editors and
writers are bound by employment agreements. Competition for financial
journalists is intense, and we may not be able to retain existing or
attract additional highly qualified editors and writers in the future. If
we lose the services of a significant number of our editorial staff and
outside contributors or are unable to continue to attract additional
writers with appropriate qualifications, our business, results of
operations and financial condition could be materially adversely affected.
In addition, we believe that some of our writers, including Mr. James
J. Cramer and Mr. Herb Greenberg, have a large and loyal following among
our readers. Mr. Cramer has an employment agreement with us that terminates
in February 2003. Mr. Greenberg has an employment agreement with us that
terminates in March 2001. If we lose the services of prominent members of
our editorial staff, including Mr. Greenberg, or popular outside
contributors, including Mr. Cramer, a significant number of our subscribers
may not renew their subscriptions or the number of our readers may
decrease. A significant reduction in the number of our subscribers or
readers could materially adversely affect our business, results of
operations and financial condition.
POTENTIAL FLUCTUATIONS IN OUR QUARTERLY FINANCIAL RESULTS MAKE FINANCIAL
FORECASTING DIFFICULT
Our quarterly operating results may fluctuate significantly in the
future as a result of a variety of factors, many of which are outside our
control.
We believe that advertising sales in traditional media, such as
television and radio, generally are lower in the first and third calendar
quarters of each year. Similar seasonal or other patterns may develop in
our industry.
We believe that quarter-to-quarter comparisons of our operating
results may not be a good indication of our future performance, nor would
our operating results for any particular quarter be indicative of future
operating results. In some future quarters our operating results may be
below the expectations of public market analysts and investors. In such an
event, the price of our common stock may fall.
OUR LIMITED OPERATING HISTORY MAKES EVALUATING OUR BUSINESS DIFFICULT
We commenced operations in June 1996 and launched our web site in
November 1996. Accordingly, we have only a limited operating history upon
which you can evaluate our business and prospects. An investor in our
common stock must consider the risks, expenses and difficulties frequently
encountered by early stage companies in new and rapidly evolving markets,
including web-based financial news and information companies.
OUR FUTURE SUCCESS DEPENDS ON MAINTAINING AND INCREASING OUR SUBSCRIBER
BASE
Our future success is highly dependent on an increase in the number of
readers who are willing to subscribe to online financial news and
information publications. The number of Internet users willing to pay for
online financial news and information may not continue to increase. If the
market for subscription-based online financial news and information
publications develops more slowly than we expect, our business, results of
operations and financial condition could be materially adversely affected.
Further, we presently offer a portion of our content for free. We have
recently increased the free portion of our content to increase traffic.
However, this change may reduce the number of our new or renewing
subscribers, which could have a material adverse effect on our business,
results of operations and financial condition. Additionally, during the
fourth quarter of 1998, we began to participate in a program where our
readers can receive annual subscriptions to our site by redeeming frequent
flyer miles through a third-party service. Additional readers may not
subscribe through this program. Further, while we do not expect that these
subscribers will renew their subscriptions at a rate consistent with the
renewal rate of our general subscriber base, it is possible that the actual
renewal rate of these subscribers may be significantly lower than our
expectations, which could materially adversely affect our rate of
subscriber growth.
We plan to develop specialized, higher-priced products for both retail
investors and financial professionals. This tiered-pricing strategy is
dependent on our ability to develop or acquire content or services for
which subscribers are willing to pay an additional fee. If we are unable
to develop tiered-price products or if these products cannot command a
higher price, this will limit our ability to develop this new source of
revenue.
WE DEPEND ON OUR TOP ADVERTISERS FOR A SIGNIFICANT PORTION OF OUR
ADVERTISING REVENUES, AND THE LOSS OF ONE OR MORE OF OUR TOP ADVERTISERS
MAY HARM OUR BUSINESS
In 1998, our top advertiser accounted for approximately 40%, and our
top five advertisers accounted for approximately 65%, of our total
advertising revenues. For the nine months ended September 30, 1999, our
top five advertisers accounted for approximately 46% of our total
advertising revenues. Our business, results of operations and financial
condition could be materially adversely affected by the loss of one or more
of our top advertisers, and such a loss could be concentrated in a single
quarter. Further, if we do not continue to increase our revenue from
financial services advertisers or attract advertisers from non-financial
industries, our business, results of operations and financial condition
could be materially adversely affected. We believe that we charge
advertising rates that are among the highest of financial web sites.
However, there can be no assurance that we will be able to command premium
rates in the future. Further, as we increase the free portion of our site,
which may command lower advertising rates than our premium sections,
current advertisers may seek to switch to these less expensive areas. As is
typical in the advertising industry, our advertising contracts have
cancellation provisions.
WE DEPEND ON THE SUCCESS OF OUR JOINT NEWSROOM WITH THE NEW YORK TIMES
COMPANY FOR THE EXPANSION OF OUR FREE CONTENT AND OUR ABILITY TO INCREASE
TRAFFIC AND THE NUMBER OF UNIQUE VISITORS TO OUR SITE
In the fourth quarter of 1999, we expect our joint newsroom with the
New York Times to begin operations, adding to the coverage produced by our
own newsroom. TheStreet.com and The New York Times on the Web will
simultaneously publish news stories from the joint newsroom, and the
stories will be accessible without charge on both sites. This expanded
free content available at our site is intended to increase the traffic and
number of unique visitors to our site, but this may not occur.
OUR INTERNATIONAL EXPANSION INCREASES EXPENSES AND MAY CREATE COMPLIANCE
AND OPERATIONAL DIFFICULTIES
We are expanding our business into international markets.
TheStreet.co.uk, a site intended for investors in the United Kingdom and
majority owned by TheStreet.com, is currently planned for launch in 2000.
However, there can be no assurance that this site will launch in a timely
fashion or operate successfully, and delays or operational difficulties
could adversely affect our business, results of operations and financial
condition. The success of TheStreet.co.uk depends on its ability to find
and retain key personnel, attract advertisers; paid subscribers, and
strategic partners; prevent system failures; manage growth; successfully
compete with other well-financed news organizations; and continue to
finance ongoing operations.
As we expand internationally, we will continue to incur significant
additional costs that will result in additional losses. Also, we will
continue to encounter many of the risks associated with international
business expansion, generally. These risks include, but are not limited to,
language barriers, changes in currency exchange rates, political and
economic instability, difficulties with regulatory compliance and
difficulties with enforcing contracts and other legal obligations.
INTENSE COMPETITION COULD REDUCE OUR MARKET SHARE AND HARM OUR FINANCIAL
PERFORMANCE
An increasing number of financial news and information sources compete
for consumers' and advertisers' attention and spending. We expect this
competition to continue to increase. We compete for advertisers, readers,
staff and outside contributors with many types of companies, including:
o online services or web sites focused on business, finance
and investing, such as CBS MarketWatch.com, The Wall Street
Journal Interactive Edition, DowJones.com, CNBC.com,
Microsoft MoneyCentral Investor, and The Motley Fool;
o publishers and distributors of traditional media, including
print, radio and television, such as The Wall Street
Journal, Barrons, Fortune, Bloomberg Business Radio and
CNBC;
o providers of terminal-based financial news and data, such as
Bloomberg Business News, Reuters News Service, Dow Jones
Markets and Bridge News Service;
o web "portal" companies, such as Yahoo! and America Online; and
o online brokerage firms, many of which provide financial and
investment news and information, such as Charles Schwab and
E*TRADE
Our ability to compete depends on many factors, including the
originality, timeliness, comprehensiveness and trustworthiness of our
content and that of our competitors, the ease of use of services developed
either by us or our competitors and the effectiveness of our sales and
marketing efforts.
Many of our existing competitors, as well as a number of potential new
competitors, have longer operating histories, greater name recognition,
larger customer bases and significantly greater financial, technical and
marketing resources than we do. This may allow them to devote greater
resources than we can to the development and promotion of their services.
These competitors may also engage in more extensive research and
development, undertake more far-reaching marketing campaigns, adopt more
aggressive pricing policies (including offering their financial news for
free) and make more attractive offers to existing and potential employees,
outside contributors, strategic partners and advertisers. Our competitors
may develop content that is equal or superior to ours or that achieves
greater market acceptance than ours. It is also possible that new
competitors may emerge and rapidly acquire significant market share. We may
not be able to compete successfully for advertisers, readers, staff or
outside contributors, which could materially adversely affect our business,
results of operations and financial condition. Increased competition could
result in price reductions, reduced margins or loss of market share, any of
which could materially adversely affect our business, results of operations
and financial condition.
We also compete with other web sites, television, radio and print
media for a share of advertisers' total advertising budgets. If advertisers
perceive the Internet or our web site to be a limited or an ineffective
advertising medium, they may be reluctant to devote a portion of their
advertising budget to Internet advertising or to advertising on our web
site.
A FAILURE TO ESTABLISH AND MAINTAIN STRATEGIC RELATIONSHIPS WITH OTHER
COMPANIES COULD DECREASE OUR SUBSCRIBER AND READER BASE, WHICH MAY HARM OUR
BUSINESS
We depend on establishing and maintaining subscription distribution
relationships with financial services firms and content syndication
relationships with high-traffic web sites for a significant portion of our
subscriber and reader base. There is intense competition for relationships
with these firms and placement on these sites, and we may have to pay
significant fees to establish additional content syndication relationships
or maintain existing relationships in the future. We may be unable to enter
into or successfully renew relationships with these firms or sites on
commercially reasonable terms or at all. These relationships may not
attract significant numbers of subscribers or readers.
Many companies that we may approach for a strategic relationship or
who already have strategic relationships with us also provide financial
news and information from other sources. As a result, these companies may
be reluctant to enter into or maintain strategic relationships with us. Our
business, results of operations and financial condition could be materially
adversely affected if we do not establish additional, and maintain
existing, strategic relationships on commercially reasonable terms or if
any of our strategic relationships do not result in an increase in the
number of subscribers or readers of our web site.
FAILURE TO RETAIN AND INTEGRATE OUR ADVERTISING SALES FORCE COULD RESULT IN
LOWER ADVERTISING REVENUES
We depend on our internal advertising sales department to maintain and
increase our advertising sales. As of September 30, 1999, our advertising
sales department consisted of 11 employees. The success of our advertising
sales department is subject to a number of risks, including the competition
we face from other companies in hiring and retaining sales personnel and
the length of time it takes new sales personnel to become productive. Our
business, results of operations and financial condition could be materially
adversely affected if we do not maintain an effective advertising sales
department.
WE MAY BE UNABLE TO MANAGE OUR GROWTH, WHICH MAY HARM OUR BUSINESS
We have experienced rapid growth in our operations. Our rapid growth
has placed, and our anticipated future growth will continue to place, a
significant strain on our managerial, operational and financial resources.
To manage our growth, we must continue to implement and improve our
managerial controls and procedures and operational and financial systems.
In addition, our future success will depend on our ability to expand, train
and manage our workforce, in particular our editorial, advertising sales
and business development staff. As of September 30, 1999, we had a total of
202 employees, as compared to 100 employees as of December 31, 1998 and 33
employees as of December 31, 1997. We expect that the number of our
employees will continue to increase for the foreseeable future. We will
need to integrate these employees into our workforce successfully. We
cannot assure you that we have made adequate allowances for the costs and
risks associated with this expansion, that our systems, procedures or
controls will be adequate to support our operations, or that our management
will be able to successfully offer and expand our services. We intend to
move our headquarters into a larger facility before the end of this year.
Such a move could cause disruptions to our publishing and business systems
and operations. If we are unable to manage our growth effectively, our
business, results of operations and financial condition could be materially
adversely affected.
WE MAY BE UNABLE TO GROW THROUGH ACQUISITIONS AND INTEGRATE FUTURE
ACQUISITIONS INTO OUR BUSINESS
We intend to pursue a growth strategy involving acquisitions of other
companies. However, we may be unable to successfully pursue and complete
these acquisitions in a timely and cost-effective manner. Further, the
pursuit and integration of acquisitions will require substantial attention
from our senior management, which will limit the amount of time these
individuals will have available to devote to our existing operations.
There can be no assurance that we can successfully integrate these
acquisitions into our business or implement our plans without delay or
substantial cost. In addition, future acquisitions by us could result in
the incurrence of debt and contingent liabilities, which could have a
material adverse effect upon our financial condition and results of
operations. Any failure or any inability to effectively manage and
integrate growth may have a material adverse effect on our financial
condition and results of operations.
OUR FUTURE SUCCESS DEPENDS ON THE CONTINUED SERVICES OF OUR KEY MANAGEMENT
PERSONNEL
Our future success depends upon the continued service of certain key
management personnel. The loss of one or more of our key management
personnel could materially adversely affect our business, results of
operations and financial condition. A few of our employees have entered
into non-competition agreements with us. However, other employees may leave
us and work for our competitors or start their own competing business. Our
ability to develop and maintain both our site and our corporate computer
network is dependent on our ability to recruit and retain technology
personnel. Competition for skilled technology personnel is intense, and we
may not be able to retain existing or attract additional technology
personnel.
UNEXPECTED INCREASES IN TRAFFIC MAY STRAIN OUR SYSTEMS
In the past, we have experienced significant spikes in traffic on our
web site when there have been important financial news events. In addition,
the number of our readers has continued to increase over time and we are
seeking to increase our reader base further. Accordingly, our web site must
accommodate a high volume of traffic, often at unexpected times. Our web
site has in the past, and may in the future, experience slower response
times than usual or other problems for a variety of reasons. These
occurrences could cause our readers to perceive our web site as not
functioning properly and, therefore, cause them to use other methods to
obtain their financial news and information. In such a case, our business,
results of operations and financial condition could be materially adversely
affected.
WE FACE A RISK OF SYSTEM FAILURE THAT MAY RESULT IN REDUCED TRAFFIC,
REDUCED REVENUE AND HARM TO OUR REPUTATION
Our ability to provide timely information and continuous news updates
depends on the efficient and uninterrupted operation of our computer and
communications hardware and software systems. Similarly, our ability to
track, measure and report the delivery of advertisements on our site
depends on the efficient and uninterrupted operation of a third-party
system. These systems and operations are vulnerable to damage or
interruption from human error, natural disasters, telecommunication
failures, break-ins, sabotage, computer viruses, intentional acts of
vandalism and similar events. Although we do not have a formal disaster
recovery plan, we are in the process of developing one. Any system failure,
including network, software or hardware failure, that causes an
interruption in our service or a decrease in responsiveness of our web site
could result in reduced traffic, reduced revenue and harm to our
reputation, brand and our relations with our advertisers. In February 1999,
we entered into a one-year Internet-hosting agreement with Exodus
Communications, Inc. to maintain all of our production servers at Exodus'
New Jersey data center. Our operations depend on Exodus' ability to protect
its and our systems in its data center against damage from fire, power
loss, water damage, telecommunications failure, vandalism and similar
unexpected adverse events. Although Exodus provides comprehensive
facilities management services, including human and technical monitoring of
all production servers 24 hours per day, seven days per week, Exodus does
not guarantee that our Internet access will be uninterrupted, error-free or
secure. Any disruption in the Internet access to our web site provided by
Exodus could materially adversely affect our business, results of
operations and financial condition. Our insurance policies may not
adequately compensate us for any losses that we may incur because of any
failures in our system or interruptions in our delivery of content. Our
business, results of operations and financial condition could be materially
adversely affected by any event, damage or failure that interrupts or
delays our operations.
DIFFICULTIES ASSOCIATED WITH OUR BRAND DEVELOPMENT MAY HARM OUR ABILITY TO
ATTRACT SUBSCRIBERS AND READERS
We believe that maintaining and growing awareness about the
TheStreet.com brand is an important aspect of our efforts to continue to
attract subscribers and readers. The importance of brand recognition will
increase in the future because of the growing number of web sites providing
financial news and information. We cannot assure you that our efforts to
build brand awareness will be successful.
FAILURE TO MAINTAIN OUR REPUTATION FOR TRUSTWORTHINESS MAY REDUCE THE
NUMBER OF OUR READERS, WHICH MAY HARM OUR BUSINESS
It is very important that we maintain our reputation as a trustworthy
news organization. The occurrence of events, including our misreporting a
news story or the non-disclosure of stock ownership by one or more of our
writers in breach of our compliance policy, could harm our reputation for
trustworthiness. These events could result in a significant reduction in
the number of our readers, which could materially adversely affect our
business, results of operations and financial condition.
POTENTIAL LIABILITY FOR INFORMATION DISPLAYED ON OUR WEB SITE MAY REQUIRE
US TO DEFEND AGAINST LEGAL CLAIMS, WHICH MAY CAUSE SIGNIFICANT OPERATIONAL
EXPENDITURES
We may be subject to claims for defamation, libel, copyright or
trademark infringement or based on other theories relating to the
information we publish on our web site. These types of claims have been
brought, sometimes successfully, against online services as well as other
print publications in the past. We could also be subject to claims based
upon the content that is accessible from our web site through links to
other web sites. Our insurance may not adequately protect us against these
claims.
YEAR 2000 COMPLICATIONS MAY DISRUPT OUR OPERATIONS AND HARM OUR BUSINESS
Many currently installed computer systems and software products are
coded to accept only two-digit entries to identify a year in the date code
field. Consequently, on January 1, 2000, many of these systems could fail
or malfunction because they may not be able to distinguish between 20th
century dates and 21st century dates. Accordingly, our customers, potential
customers, vendors and strategic partners may need to upgrade their
computer systems and software products to comply with applicable "Year
2000" requirements. Because we and our subscribers and readers are
dependent, to a very substantial degree, upon the proper functioning of our
and their computer systems, a failure of our or their computer systems to
correctly recognize dates beyond December 31, 1999, could materially
disrupt our operations or the ability of our subscribers and readers to
access our web site, which could materially adversely affect our business,
results of operations and financial condition.
FAILURE TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS COULD HARM OUR BRAND-
BUILDING EFFORTS AND ABILITY TO COMPETE EFFECTIVELY
To protect our rights to our intellectual property, we rely on a
combination of trademark and copyright law, trade secret protection,
confidentiality agreements and other contractual arrangements with our
employees, affiliates, clients, strategic partners and others. The
protective steps we have taken may be inadequate to deter misappropriation
of our proprietary information. We may be unable to detect the unauthorized
use of, or take appropriate steps to enforce, our intellectual property
rights. We have registered our trademarks in the United States and we have
pending U.S. and foreign applications for other trademarks. Effective
trademark, copyright and trade secret protection may not be available in
every country in which we offer or intend to offer our services. Failure to
adequately protect our intellectual property could harm our brand, devalue
our proprietary content and affect our ability to compete effectively.
Further, defending our intellectual property rights could result in the
expenditure of significant financial and managerial resources, which could
materially adversely affect our business, results of operations and
financial condition.
WE MAY HAVE TO DEFEND AGAINST INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS,
WHICH MAY CAUSE SIGNIFICANT OPERATIONAL EXPENDITURES
Although we believe that our proprietary rights do not infringe on the
intellectual property rights of others, other parties may assert
infringement claims against us or claims that we have violated a patent or
infringed a copyright, trademark or other proprietary right belonging to
them. We incorporate licensed third-party technology in some of our
services. In these license agreements, the licensors have generally agreed
to defend, indemnify and hold us harmless with respect to any claim by a
third party that the licensed software infringes any patent or other
proprietary right. We cannot assure you that these provisions will be
adequate to protect us from infringement claims. Any infringement claims,
even if not meritorious, could result in the expenditure of significant
financial and managerial resources on our part, which could materially
adversely affect our business, results of operations and financial
condition.
DIFFICULTIES IN DEVELOPING NEW AND ENHANCED SERVICES AND FEATURES FOR OUR
WEB SITE COULD HARM OUR BUSINESS
We intend to introduce additional and enhanced services in order to
retain our current readers and attract new readers. If we introduce a
service that is not favorably received, our current readers may choose a
competitive service over ours or fail to renew their subscriptions. We may
also experience difficulties that could delay or prevent us from
introducing new services. These difficulties may include the loss of, or
inability to obtain or maintain, third-party technology license agreements.
Furthermore, the new services we may introduce could contain errors that
are discovered after these services are introduced. In these cases, we may
need to significantly modify the design or implementation of such services
on our web site to correct these errors. Our business, results of
operations and financial condition could be materially adversely affected
if we experience difficulties in introducing new services or if these new
services are not accepted by our readers.
OUR ABILITY TO MAINTAIN AND INCREASE OUR READER BASE DEPENDS ON THE
CONTINUED GROWTH IN USE AND EFFICIENT OPERATION OF THE WEB
The web-based information market is new and rapidly evolving. Our
business would be materially adversely affected if web usage does not
continue to grow or grows slowly. Web usage may be inhibited for a number
of reasons, such as:
o inadequate network infrastructure;
o security concerns;
o inconsistent quality of service; and
o unavailability of cost-effective, high-speed access to the
Internet.
Our readers depend on Internet service providers, online service
providers and other web site operators for access to our web site. Many of
these services have experienced significant service outages in the past and
could experience service outages, delays and other difficulties due to
system failures unrelated to our systems. These occurrences could cause our
readers to perceive the web in general or our web site in particular as an
unreliable medium and, therefore, cause them to use other media to obtain
their financial news and information. We also depend on a number of
information providers to deliver information and data feeds to us on a
timely basis. Our web site could experience disruptions or interruptions in
service due to the failure or delay in the transmission or receipt of this
information, which could materially adversely affect our business, results
of operations and financial condition.
A GENERAL DECLINE IN ONLINE ADVERTISING OR OUR INABILITY TO ADAPT TO TRENDS
IN ONLINE ADVERTISING COULD HARM OUR ADVERTISING REVENUES
No standards have been widely accepted to measure the effectiveness of
web advertising. If standards do not develop, existing advertisers may not
continue or increase their levels of web advertising. If standards develop
and we are unable to meet these standards, advertisers may not continue
advertising on our site. Furthermore, advertisers that have traditionally
relied upon other advertising media may be reluctant to advertise on the
web. Our business, results of operations and financial condition could be
materially adversely affected if the market for web advertising declines or
develops more slowly than expected. Different pricing models are used to
sell advertising on the web. It is difficult to predict which, if any, will
emerge as the industry standard. This uncertainty makes it difficult to
project our future advertising rates and revenues. We cannot assure you
that we will be successful under alternative pricing models that may
emerge. Moreover, "filter" software programs that limit or prevent
advertising from being delivered to a web user's computer are available.
Widespread adoption of this software could materially adversely affect the
commercial viability of web advertising, which could materially adversely
affect our advertising revenues.
We compete with other web sites, television, radio and print media for
a share of advertisers' total advertising budgets. If advertisers perceive
the web in general or our web site in particular to be a limited or an
ineffective advertising medium, they may be reluctant to devote a portion
of their advertising budget to online advertising or to advertising on our
web site.
GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES RELATING TO THE WEB COULD
INCREASE OUR COSTS OF TRANSMITTING DATA AND INCREASE OUR LEGAL AND
REGULATORY EXPENDITURES AND COULD DECREASE OUR READER BASE
Existing domestic and international laws or regulations specifically
regulate communications or commerce on the web. Further, laws and
regulations that address issues such as user privacy, pricing, online
content regulation, taxation and the characteristics and quality of online
products and services are under consideration by federal, state, local and
foreign governments and agencies. Several telecommunications companies have
petitioned the Federal Communications Commission to regulate Internet
service providers and online services providers in a manner similar to the
regulation of long distance telephone carriers and to impose access fees on
such companies. This regulation, if imposed, could increase the cost of
transmitting data over the web. Moreover, it may take years to determine
the extent to which existing laws relating to issues such as intellectual
property ownership and infringement, libel, obscenity and personal privacy
are applicable to the web. The Federal Trade Commission and government
agencies in certain states have been investigating certain Internet
companies regarding their use of personal information. We could incur
additional expenses if any new regulations regarding the use of personal
information are introduced or if these agencies chose to investigate our
privacy practices. Any new laws or regulations relating to the web, or
certain application or interpretation of existing laws, could decrease the
growth in the use of the web, decrease the demand for our web site or
otherwise materially adversely affect our business.
CONCERNS ABOUT WEB SECURITY COULD REDUCE OUR ADVERTISING REVENUES, DECREASE
OUR READER BASE AND INCREASE OUR WEB SECURITY EXPENDITURES
Concern about the transmission of confidential information over the
Internet has been a significant barrier to electronic commerce and
communications over the web. Any well-publicized compromise of security
could deter more people from using the web or from using it to conduct
transactions that involve the transmission of confidential information,
such as signing up for a paid subscription, executing stock trades or
purchasing goods or services. Because many of our advertisers seek to
advertise on our web site to encourage people to use the web to purchase
goods or services, our business, results of operations and financial
condition could be materially adversely affected if Internet users
significantly reduce their use of the web because of security concerns. We
may also incur significant costs to protect ourselves against the threat of
security breaches or to alleviate problems caused by these breaches.
SHARES ELIGIBLE FOR PUBLIC SALE AFTER OUR INITIAL PUBLIC OFFERING COULD
ADVERSELY AFFECT OUR STOCK PRICE
As of September 30, 1999, there were outstanding 24,522,410 shares of
our common stock. Of these shares, the shares sold in our initial public
offering are freely tradeable except for any shares purchased by our
"affiliates" as defined in Rule 144 under the Securities Act. The remaining
shares will be "restricted securities," subject to the volume limitations
and other conditions of Rule 144 under the Securities Act.
Our directors, executive officers, and substantially all of our
current stockholders and optionholders have agreed, subject to limited
exceptions, that during the period between May 10, 1999 through and
including November 6, 1999, that they will not, without the prior written
consent of Goldman, Sachs & Co., directly or indirectly, offer to sell,
sell or otherwise dispose of any shares of common stock. After the first
anniversary of our initial public offering, some holders of common stock
will have the right to request the registration of their shares under the
Securities Act. Upon the effectiveness of that registration statement, all
shares covered by that registration statement will be freely transferable.
We cannot predict if future sales of our common stock, or the
availability of our common stock for sale, will materially adversely affect
the market price for our common stock or our ability to raise capital by
offering equity securities.
CONTROL BY PRINCIPAL STOCKHOLDERS, OFFICERS AND DIRECTORS COULD ADVERSELY
AFFECT OUR STOCKHOLDERS
As of September 30, 1999, our officers, directors and
greater-than-five- percent stockholders (and their affiliates), in the
aggregate, beneficially own approximately 55% of the outstanding common
stock. As a result, these persons, acting together, have the ability to
control substantially all matters submitted to our stockholders for
approval (including the election and removal of directors and any merger,
consolidation or sale of all or substantially all of our assets) and to
control our management and affairs. Accordingly, this concentration of
ownership may have the effect of delaying, deferring or preventing a change
in control of us, impeding a merger, consolidation, takeover or other
business combination involving us or discouraging a potential acquirer from
making a tender offer or otherwise attempting to obtain control of us,
which in turn could materially adversely affect the market price of the
common stock.
VOLATILITY OF OUR STOCK PRICE COULD ADVERSELY AFFECT OUR STOCKHOLDERS
The stock market has experienced significant price and volume
fluctuations and the market prices of securities of technology companies,
particularly Internet-related companies, have been highly volatile.
Investors may not be able to resell their shares at or above the price at
which they bought them.
In the past, following periods of volatility in the market price of a
company's securities, securities class action litigation has often been
instituted against that company. The institution of similar litigation
against us could result in substantial costs and a diversion of our
management's attention and resources, which could materially adversely
affect our business, results of operations and financial condition.
ANTI-TAKEOVER PROVISIONS COULD PREVENT OR DELAY A CHANGE OF CONTROL
Provisions of our amended and restated certificate of incorporation
and amended and restated bylaws and Delaware law could make it more
difficult for a third party to acquire us, even if doing so would be
beneficial to our stockholders.
WE DO NOT INTEND TO PAY DIVIDENDS
We have never declared or paid any cash dividends on our common stock.
We currently intend to retain any future earnings for funding growth and,
therefore, do not expect to pay any dividends in the foreseeable future.
USE OF PROCEEDS
TheStreet.com will not receive any proceeds from the sale of shares
which may be sold pursuant to this reoffer prospectus for the respective
accounts of the Selling Securityholders. All such proceeds, net of
brokerage commissions, if any, will be received by the Selling
Securityholders. See "Selling Securityholders" and "Plan of Distribution."
SELLING SECURITYHOLDERS
This reoffer prospectus relates to shares of Common Stock which have
been acquired by the Selling Securityholders of the Company through their
exercise of stock options granted to them under the Plan. In addition, this
reoffer prospectus covers and may be used by unnamed non-affiliate Selling
Securityholders who individually hold less than 1,000 shares of common
stock (833 shares in the aggregate) issued under the Plan.
The inclusion in the table of the individuals named therein shall not
be deemed to be an admission that any such individuals are "affiliates" of
TheStreet.com.
Name of Selling Securityholder Number of Shares to be offered hereby
- -------------------------------------------------------------------------
Brendon Amyot 30,303
Alex Berenson 7,500
David Black 5,000
John Edwards 2,167
Jesse Eisinger 1,667
Lee Greenhouse 1,667
Gail Griffin 10,000
Suzanne Kapner 5,333
Dawn Kikel 60,303
John A. McCreight, CMC 1,333
Erle Norton 8,333
Un-named non-affiliate of the Company 833
Total 134,439
PLAN OF DISTRIBUTION
Shares offered hereby may be sold from time to time directly by or on
behalf of the Selling Securityholders in one or more transactions on the
Nasdaq National Market or on any stock exchange on which the common stock
may be listed at the time of sale, in privately negotiated transactions, or
through a combination of such methods, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at fixed
prices (which may be changed) or at negotiated prices. The Selling
Securityholders may sell shares through one or more agents, brokers or
dealers or directly to purchasers. Such brokers or dealers may receive
compensation in the form of commissions, discounts or concessions from the
Selling Securityholders and/or purchasers of the shares or both (which
compensation as to a particular broker or dealer may be in excess of
customary commissions).
In connection with such sales, the Selling Securityholders and any
participating broker or dealer may be deemed to be "underwriters" within
the meaning of the Securities Act, and any commissions they receive and the
proceeds of any sale of shares may be deemed to be underwriting discounts
and commissions under the Securities Act.
In order to comply with certain state securities laws, if applicable,
the shares may be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states, the shares may not be sold
unless the shares have been registered or qualified for sale in such state
or an exemption from regulation or qualification is available and is
complied with. Sales of shares must also be made by the Selling
Securityholders in compliance with all other applicable state securities
laws and regulations.
In addition to any shares sold hereunder, Selling Securityholders
may, at the same time, sell any shares of common stock, including the
shares, owned by them in compliance with all of the requirements of Rule
144, regardless of whether such shares are covered by this reoffer
prospectus.
There can be no assurance that any of the Selling Securityholders will
sell any or all of the shares offered by them hereby.
TheStreet.com will pay all expenses of the registration of the shares
and will not receive any proceeds from the sale of any shares by the
selling Securityholders.
TheStreet.com has notified certain Selling Securityholders of the need
to deliver a copy of this reoffer prospectus in connection with any sale of
the shares.
LEGAL MATTERS
The validity of the shares being offered hereby has been passed upon
for TheStreet.com by Skadden, Arps, Slate, Meagher & Flom LLP.
EXPERTS
The financial statements of TheStreet.com, which are incorporated by
reference in this reoffer prospectus, have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included in reliance upon the authority of said
firm as experts in auditing and accounting.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Registrant with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this registration statement as of their
respective dates:
(a) The Registrant's final prospectus filed on May 11, 1999 pursuant
to Rule 424(b)(4) of the Securities Act of 1933, as amended (the
"Securities Act").
(b) The Registrant's Form 8-A filed on April 14, 1999 pursuant to
Section 12(g) of the Exchange Act.
(c) The description of the Registrant's common stock contained in the
Registrant's final prospectus filed on May 11, 1999 pursuant to
Rule 424(b)(4) of the Securities Act.
All documents filed or subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date
of this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities described herein have been
sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and
to be a part hereof from the date of filing of such documents with the
Commission. Any statement in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law ("DGCL"), as
amended, allows a corporation to eliminate the personal liability of
directors of a corporation to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized
the payment of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that the Company
may indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding
(other than an action by or in the right of the Company) by reason of the
fact that the person is or was a director, officer, agent or employee of
the Company or is or was serving at the Company's request as a director,
officer, agent, or employee of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys'
fees, judgment, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding. The power to indemnify applies (a) if such person is
successful on the merits or otherwise in defense of any action, suit or
proceeding, or (b) if such person acted in good faith and in a manner he
reasonably believed to be in the best interest, or not opposed to the best
interest, of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of the
Company as well, but only to the extent of defense expenses (including
attorneys' fees but excluding amounts paid in settlement) actually and
reasonably incurred and not to any satisfaction of judgment or settlement
of the claim itself, and with the further limitation that in such actions
no indemnification shall be made in the event of any adjudication of
negligence or misconduct in the performance of his duties to the Company,
unless the court believes that in light of all the circumstances
indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director,
who willfully or negligently approves of an unlawful payment of dividends
or an unlawful stock purchase or redemption, may be held liable for such
actions. A director who was either absent when the unlawful actions were
approved or dissented at the time, may avoid liability by causing his or
her dissent to such actions to be entered in the books containing the
minutes of the meetings of the board of directors at the time such action
occurred or immediately after such absent director receives notice of the
unlawful acts.
Our Amended and Restated Certificate of Incorporation includes a
provision that eliminates the personal liability of its directors for
monetary damages for breach of fiduciary duty as a director, except for
liability:
- for any breach of the director's duty of loyalty to TheStreet.com
or its stockholders;
- for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
- under the section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; or
- for any transaction from which the director derived an improper
personal benefit.
These provisions are permitted under Delaware law.
Our Bylaws provide that:
- we must indemnify our directors and officers to the fullest
extent permitted by Delaware law;
- we may indemnify our other employees and agents to the same
extent that we indemnified our officers and directors, unless
otherwise determined by our Board of Directors; and
- we must advance expenses, as incurred, to our directors and
executive officers in connection with a legal proceeding to the
fullest extent permitted by Delaware Law.
The indemnification provisions contained in the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws are
not exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise.
In addition, the Company maintains insurance on behalf of its directors and
executive officers insuring them against any liability asserted against
them in their capacities as directors or officers or arising out of such
status.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The shares to be sold under the reoffer prospectus were initially
issued by the Registrant and were deemed exempt from registration under the
Securities Act in reliance on either (1) Rule 701 promulgated under the
Securities Act as offers and sales of securities pursuant to certain
compensatory benefit plans and contracts relating to compensation in
compliance with Rule 701 or (2) Section 4(2) of the Securities Act as
transactions by an issuer not involving any public offering.
ITEM 8. EXHIBITS.
3.1 Form of Amended and Restated Certificate of Incorporation of
TheStreet.com.*
3.2 Form of By-laws of TheStreet.com.*
4.1 Form of TheStreet.com's Rights Plan.*
4.2 Specimen Certificate for TheStreet.com's Common Stock.*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
10.1 Amended and Restated 1998 Stock Incentive Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained
in the opinion filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (included on the Signature Page)
_______________
* Incorporated by reference to the Registrants' Registration
Statement on Form S-1 (Registration Number 333-72799), as
amended, originally filed with the Securities and Exchange
Commission on February 23, 1999, and declared effective on May
10, 1999.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act, (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on November 3, 1999.
TheStreet.com, Inc.
By: /s/ Kevin W. English
-------------------------------
Name: Kevin W. English
Title: Chief Executive Officer, President
and Chairman of the Board of Directors
Each person whose signature appears below hereby constitutes and
appoints Kevin W. English and Michael S. Zuckert, and each of them, his
true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) and additions to this Registration Statement and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary to
be done, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or his substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated below.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Kevin W. English Chief Executive Officer, November 3, 1999
- --------------------------- President and Chairman of
Kevin W. English the Board of Directors
/s/ Paul K. Kothari Vice President and Chief November 3, 1999
- --------------------------- Financial Officer
Paul K. Kothari
/s/ Dave Kansas Editor-in-Chief and November 3, 1999
- --------------------------- Director
Dave Kansas
/s/ Michael S. Zuckert Vice President and General November 3, 1999
- --------------------------- Counsel
Michael S. Zuckert
/s/ James J. Cramer Director November 3, 1999
- ---------------------------
James J. Cramer
/s/ Martin Peretz Director November 3, 1999
- ---------------------------
Martin Peretz
/s/ Fred Wilson Director November 3, 1999
- ---------------------------
Fred Wilson
/s/ Jerry Colonna Director November 3, 1999
- ---------------------------
Jerry Colonna
/s/ Edward F. Glassmeyer Director November 3, 1999
- ---------------------------
Edward F. Glassmeyer
/s/ Michael Golden Director November 3, 1999
- ---------------------------
Michael Golden
EXHIBIT INDEX
Exhibit Description of Exhibit
------- ----------------------
3.1 Form of Amended and Restated Certificate of Incorporation of
TheStreet.com.*
3.2 Form of By-laws of TheStreet.com.*
4.1 Form of TheStreet.com's Rights Plan.*
4.2 Specimen Certificate for TheStreet.com's Common Stock.*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
10.1 Amended and Restated 1998 Stock Incentive Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained
in the opinion filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (included on the Signature Page).
_______________
* Incorporated by reference to the Registrants' Registration
Statement on Form S-1 (Registration Number 333-72799), as
amended, originally filed with the Securities and Exchange
Commission on February 23, 1999, and declared effective on May
10, 1999.
EXHIBIT 5.1
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
November 5, 1999
TheStreet.com, Inc.
2 Rector Street, 14th Floor
New York, NY 10006
Gentlemen:
We have acted as special counsel to TheStreet.com, Inc., a
Delaware corporation (the "Company"), in connection with the proposed
issuance by the Company of up to 4,400,000 shares (the "Shares") of Common
Stock, par value $0.01 per share (the "Common Stock"), pursuant to the
TheStreet.com, Inc. Amended and Restated 1998 Stock Incentive Plan (the
"Stock Option Plan").
This opinion is delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended (the "Securities Act").
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Company's Registration Statement on Form S-8,
relating to the Shares, filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act on November 5, 1999(together
with all exhibits thereto, the "Registration Statement"), (ii) the Restated
Certificate of Incorporation of the Company, as currently in effect, (iii)
the By-Laws of the Company, as currently in effect, (iv) specimen
certificates representing the Common Stock, (v) resolutions of the Board of
Directors of the Company relating to the Stock Option Plan and the filing
of the Registration Statement; (vi) the Stock Option Plan; and (vii) the
form of option agreement between the Company and the employees, directors
and other service providers receiving options (the "Option Agreement"). We
have also examined originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company and such agreements,
certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates and records, as we have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. In
making our examination of documents executed or to be executed by parties
other than the Company, we have assumed that such parties had or will have
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or other, and execution and delivery by such parties of
such documents and the validity and binding effect thereof. We have
further assumed that each of the Option Agreements to be entered into
between the Company and the employees, directors and other service
providers receiving options under the Stock Option Plan will conform to the
form of agreement examined by us. As to any facts material to the opinions
expressed herein which we have not independently established or verified,
we have relied upon oral or written statements and representations of
officers and other representatives of the Company and others.
Members of our firm are admitted to the Bar in the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction, other than the General Corporation Law of the State of
Delaware.
Based upon and subject to the foregoing, we are of the opinion
that when (i) the Registration Statement becomes effective; (ii) the
compensation committee appointed by the Board of Directors to administer
the Stock Option Plan (the "Compensation Committee") or the Board of
Directors grants the options pursuant to the Stock Option Plan (the
"Options") and determines the exercise price of the Options; and (iii)
certificates representing the Shares in the form of the specimen
certificates examined by us have been manually signed by an authorized
officer of the transfer agent and registrar for the Common Stock and
registered by such transfer agent and registrar, and delivered to and paid
for by the plan participants at a price per share not less than the par
value per share and in accordance with the terms and conditions of the
Stock Option Plan, the issuance and sale of the Shares will have been duly
authorized, and the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. In giving such
consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
---------------------------------------------
Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT 10.1
THESTREET.COM, INC.
1998 STOCK INCENTIVE PLAN
AS AMENDED AND RESTATED AS OF NOVEMBER 1, 1999
SECTION 1. Purposes
The purpose of TheStreet.com, Inc. 1998 Stock Incentive Plan, as
amended and restated as of November 1, 1999 (the "Plan") is to enable
TheStreet.com, Inc. (the "Company") and its Related Companies (as defined
below) to attract, retain and reward employees, directors and consultants
and strengthen the existing mutuality of interests between such persons and
the Company's stockholders by offering such persons an equity interest in
the Company. For purposes of the Plan, a "Related Company" means any
corporation, partnership, joint venture or other entity in which the
Company owns, directly or indirectly, at least a 20% beneficial ownership
interest.
SECTION 2. Types of Awards
Awards under the Plan may be in the form of (i) Stock Options;
(ii) Restricted Stock; and/or (iii) Tax Offset Payments.
SECTION 3. Administration
3.1 The Plan shall be administered by the Compensation Committee
of the Company's Board of Directors (the "Board") or such other committee
of directors as the Board shall designate (the "Committee"), which shall
consist of not less than two directors. The members of the Committee shall
serve at the pleasure of the Board.
3.2 The Committee shall have the following authority with
respect to awards under the Plan: to grant awards; to adopt, alter and
repeal such administrative rules, guidelines and practices governing the
Plan as it shall deem advisable; to interpret the terms and provisions of
the Plan and any award granted under the Plan; and to otherwise supervise
the administration of the Plan. In particular, and without limiting its
authority and powers, the Committee shall have the authority:
(a) to determine whether and to what extent any award or
combination of awards will be granted hereunder;
(b) to select the employees, directors or consultants to
whom awards will be granted;
(c) to determine the number of shares of the common stock
of the Company (the "Stock") to be covered by each award granted
hereunder subject to the limitations contained herein;
(d) to determine the terms and conditions of any award
granted hereunder, including, but not limited to, any vesting or other
restrictions based on such performance objectives (the "Performance
Objectives") and such other factors as the Committee may establish,
and to determine whether the Performance Objectives and other terms
and conditions of the award are satisfied;
(e) to determine the treatment of awards upon an award
holder's retirement, disability, death, termination for cause or other
termination of employment or service;
(f) to determine that amounts equal to the amount of any
dividends declared with respect to the number of shares covered by an
award (i) will be paid to the employee currently or (ii) will be
deferred and deemed to be reinvested or (iii) will otherwise be
credited to the employee, or that the employee has no rights with
respect to such dividends;
(g) to amend the terms of any award, prospectively or
retroactively; provided, however, that no amendment shall impair the
rights of the award holder without his or her written consent; and
(h) to substitute new Stock Options for previously granted
Stock Options, or for options granted under other plans or agreements,
in each case including previously granted options having higher option
prices.
3.3 The Committee shall have the right to designate awards as
"Performance Awards." The grant or vesting of a Performance Award shall be
subject to the achievement of Performance Objectives established by the
Committee based on one or more of the following criteria, in each case
applied to the Company on a consolidated basis and/or to a business unit
and which the Committee may use as an absolute measure, as a measure of
improvement relative to prior performance, or as a measure of comparable
performance relative to a peer group of companies: sales, operating
profits, operating profits before interest expense and taxes, net earnings,
earnings per share, return on equity, return on assets, return on invested
capital, total shareholder return, cash flow, debt to equity ratio, market
share, stock price, economic value added, and market value added.
3.4 All determinations made by the Committee pursuant to the
provisions of the Plan shall be final and binding on all persons, including
the Company and Plan participants.
SECTION 4. Stock Subject to Plan
4.1 The total number of shares of Stock which may be issued
under the Plan shall be 4,400,000. Such shares may consist of authorized
but unissued shares or treasury shares.
4.2 To the extent a Stock Option terminates without having been
exercised, or shares awarded are forfeited, the shares subject to such
award shall again be available for distribution in connection with future
awards under the Plan. Shares of Stock equal in number to the shares
surrendered in payment of the option price, and shares of Stock which are
withheld in order to satisfy federal, state or local tax liability, shall
not count against the above limit, and shall again be available for grants
under the Plan.
4.3 No employee shall be granted Stock Options, Restricted
Stock, or any combination thereof with respect to more than 1,000,000
shares of Stock in any fiscal year (subject to adjustment as provided in
Section 4.4). No employee shall be granted a Tax Offset Payment in any
fiscal year with respect to more than the number of shares of Stock covered
by awards granted to such employee in such fiscal year.
4.4 In the event of any merger, reorganization, consolidation,
sale of substantially all assets, recapitalization, Stock dividend, Stock
split, spin-off, split-up, split-off, distribution of assets or other
change in corporate structure affecting the Stock, a substitution or
adjustment, as may be determined to be appropriate by the Committee or the
Board in its sole discretion, shall be made in the aggregate number of
shares reserved for issuance under the Plan, the number of shares as to
which awards may be granted to any individual in any fiscal year, the
number of shares subject to outstanding awards and the amounts to be paid
by award holders or the Company, as the case may be, with respect to
outstanding awards; provided, however, that no such adjustment shall
increase the aggregate value of any outstanding award.
SECTION 5. Eligibility
Employees, directors, and consultants of the Company or a Related
Company are eligible to be granted awards under the Plan. Only employees
are eligible to be granted Incentive Stock Options. The participants under
the Plan shall be selected from time to time by the Committee, in its sole
discretion, from among those eligible.
SECTION 6. Stock Options
6.1 The Stock Options awarded to employees under the Plan may be
of two types: (i) Incentive Stock Options within the meaning of Section
422 of the Code or any successor provision thereto; and (ii) Non-Qualified
Stock Options. To the extent that any Stock Option does not qualify as an
Incentive Stock Option, it shall constitute a Non-Qualified Stock Option.
6.2 Subject to the following provisions, Stock Options awarded
under the Plan shall be in such form and shall have such terms and
conditions as the Committee may determine:
(a) Option Price. The option price per share of Stock
purchasable under a Stock Option shall be determined by the Committee,
and may be less than the fair market value of the Stock on the date of
the award of the Stock Option. For purposes of the Plan, "fair market
value" shall mean the closing price of a share of Stock on the NASDAQ
National Market on the trading day immediately preceding the date of
grant.
(b) Option Term. The term of each Stock Option shall be
fixed by the Committee.
(c) Exercisability. Stock Options shall be exercisable at
such time or times and subject to such terms and conditions as shall
be determined by the Committee. The Committee may waive such exercise
provisions or accelerate the exercisability of the Stock Option at any
time in whole or in part.
(d) Method of Exercise. Stock Options may be exercised in
whole or in part at any time during the option period by giving
written notice of exercise, in such manner as may be determined by the
Company, specifying the number of shares to be purchased, accompanied
by payment of the purchase price. Payment of the purchase price shall
be made in such manner as the Committee may provide in the award,
which may include cash (including cash equivalents), delivery of
shares of Stock already owned by the optionee or subject to awards
hereunder, "cashless exercise", any other manner permitted by law
determined by the Committee, or any combination of the foregoing. If
the Committee determines that a Stock Option may be exercised using
shares of Restricted Stock, then unless the Committee provides
otherwise, the shares received upon the exercise of a Stock Option
which are paid for using Restricted Stock shall be restricted in
accordance with the original terms of the Restricted Stock award.
(e) No Stockholder Rights. An optionee shall have neither
rights to dividends or other rights of a stockholder with respect to
shares subject to a Stock Option until the optionee has given written
notice of exercise and has paid for such shares.
(f) Surrender Rights. The Committee may provide that
options may be surrendered for cash upon any terms and conditions set
by the Committee.
(g) Non-transferability. Unless otherwise provided by the
Committee, (i) Stock Options shall not be transferable by the optionee
other than by will or by the laws of descent and distribution, and
(ii) during the optionee's lifetime, all Stock Options shall be
exercisable only by the optionee or by his or her guardian or legal
representative.
(h) Termination of Employment. Following the termination
of an optionee's employment with the Company or a Related Company, the
Stock Option shall be exercisable to the extent determined by the
Committee. The Committee may provide different post-termination
exercise provisions with respect to termination of employment for
different reasons. The Committee may provide that, notwithstanding
the option term fixed pursuant to Section 6.2(b), a Stock Option which
is outstanding on the date of an optionee's death shall remain
outstanding for an additional period after the date of such death.
6.3 Notwithstanding the provisions of Section 6.2, no Incentive
Stock Option shall (i) have an option price which is less than 100% of the
fair market value of the Stock on the date of the award of the Incentive
Stock Option, (ii) be exercisable more than ten years after the date such
Incentive Stock Option is awarded, or (iii) be awarded more than ten years
after May 6, 1998, the original effective date of the Plan. No Incentive
Stock Option granted to an employee who owns more than 10% of the total
combined voting power of all classes of stock of the Company or any of its
parent or subsidiary corporations, as defined in Section 424 of the Code,
shall (A) have an option price which is less than 110% of the fair market
value of the Stock on the date of award of the Incentive Stock Option or
(B) be exercisable more than five years after the date such Incentive Stock
Option is awarded.
SECTION 7. Restricted Stock
Subject to the following provisions, all awards of Restricted
Stock to employees shall be in such form and shall have such terms and
conditions as the Committee may determine:
(a) The Restricted Stock award shall specify the number of
shares of Restricted Stock to be awarded, the price, if any, to be
paid by the recipient of the Restricted Stock and the date or dates on
which, or the conditions upon the satisfaction of which, the
Restricted Stock will vest. The grant and/or the vesting of
Restricted Stock may be conditioned upon the completion of a specified
period of service with the Company or a Related Company, upon the
attainment of specified Performance Objectives or upon such other
criteria as the Committee may determine.
(b) Stock certificates representing the Restricted Stock
awarded to an employee shall be registered in the employee's name, but
the Committee may direct that such certificates be held by the Company
or its designee on behalf of the employee. Except as may be permitted
by the Committee, no share of Restricted Stock may be sold,
transferred, assigned, pledged or otherwise encumbered by the employee
until such share has vested in accordance with the terms of the
Restricted Stock award. At the time Restricted Stock vests, a
certificate for such vested shares shall be delivered to the employee
(or his or her designated beneficiary in the event of death), free of
all restrictions.
(c) The Committee may provide that the employee shall have
the right to vote or receive dividends on Restricted Stock. Unless
the Committee provides otherwise, Stock received as a dividend on, or
in connection with a stock split of, Restricted Stock shall be subject
to the same restrictions as the Restricted Stock.
(d) Except as may be provided by the Committee, in the
event of an employee's termination of employment before all of his or
her Restricted Stock has vested, or in the event any conditions to the
vesting of Restricted Stock have not been satisfied prior to any
deadline for the satisfaction of such conditions set forth in the
award, the shares of Restricted Stock which have not vested shall be
forfeited, and the Committee may provide that (i) any purchase price
paid by the employee shall be returned to the employee or (ii) a cash
payment equal to the Restricted Stock's fair market value on the date
of forfeiture, if lower, shall be paid to the employee.
(e) The Committee may waive, in whole or in part, any or
all of the conditions to receipt of, or restrictions with respect to,
any or all of the employee's Restricted Stock.
SECTION 8. Tax Offset Payments
The Committee may provide for a Tax Offset Payment by the Company
to an employee with respect to one or more awards granted under the Plan.
The Tax Offset Payment shall be in an amount specified by the Committee,
which shall not exceed the amount necessary to pay the federal, state,
local and other taxes payable with respect to the applicable award and the
receipt of the Tax Offset Payment, assuming that the employee is taxed at
the maximum tax rate applicable to such income. The Tax Offset Payment
shall be paid solely in cash.
SECTION 9. Tax Withholding
Each award holder shall, no later than the date as of which the
value of an award first becomes includible in such person's gross income
for applicable tax purposes, pay, pursuant to such arrangements as the
Company may establish from time to time, any federal, state, local or other
taxes of any kind required by law to be withheld with respect to the award.
The obligations of the Company under the Plan shall be conditional on such
payment, and the Company (and, where applicable, any Related Company),
shall, to the extent permitted by law, have the right to deduct any such
taxes from any payment of any kind otherwise due to the employee.
SECTION 10. Amendments and Termination
The Plan is of unlimited duration. The Board may discontinue the
Plan at any time and may amend it from time to time. No amendment or
discontinuation of the Plan shall adversely affect any award previously
granted without the award holder's written consent. Amendments may be made
without stockholder approval except as required to satisfy regulatory
requirements.
SECTION 11. Change of Control
11.1 In the event of a Change of Control, if so determined by the
Committee and specifically documented in either a special form of agreement
at the time of grant or an amendment to an existing agreement, in each case
on an individual-by-individual basis:
(a) all or a portion (as determined by the Committee) of
outstanding Stock Options awarded to such individual under the Plan
shall become fully exercisable and vested; and
(b) the restrictions applicable to all or a portion (as
determined by the Committee) of any outstanding Restricted Stock
awards under the Plan held by such individual shall lapse and such
shares shall be deemed fully vested.
11.2 A "Change of Control" means the happening of any of the
following:
(a) 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) 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 prior to such acquisition was not
a beneficial owner of at least five percent (5%) of such total
combined voting power of the Company;
(b) the election to the Board of Directors of the Company
of members as a result of which a majority of the Board of Directors
shall consist of persons who are not members of the Board of Directors
as of the date of grant;
(c) the date of approval by the stockholders of the Company
of an agreement providing for the 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 consolidation 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, or (y) where the members of the 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 surviving corporation; or
(d) the sale of all or substantially all of the assets of
the Company.
SECTION 12. General Provisions
12.1 If at any time the Committee determines that the delivery of
Common Stock under the Plan is or may be unlawful under the laws of any
applicable jurisdiction, the right to exercise any Stock Option or receive
any Restricted Stock shall be suspended until the Committee determines that
such delivery is lawful. The Company shall have no obligation to effect
any registration of qualification of the Common Stock under federal or
state laws.
12.2 Any person exercising a Stock Option or receiving Restricted
Stock shall make such representations (including representations to the
effect that such person will not dispose of the Common Stock so acquired in
violation of federal and state securities laws) and furnish such
information as may, in the opinion of counsel for the Company, be
appropriate to permit the Company to issue the Common Stock in compliance
with applicable federal and state securities laws. The Committee may
refuse to permit the exercise of such Stock Option or delivery of such
Restricted Stock until such representations and information have been
provided.
12.3 The Company may place an appropriate legend evidencing any
transfer restrictions on all shares of Common Stock issued under the Plan
and may issue stop transfer instructions in respect thereof.
12.4 Nothing set forth in this Plan shall prevent the Board from
adopting other or additional compensation arrangements. Neither the
adoption of the Plan nor any award hereunder shall confer upon any employee
of the Company, or of a Related Company, any right to continued employment
or service as a director or consultant.
12.5 Determinations by the Committee under the Plan relating to
the form, amount, and terms and conditions of awards need not be uniform,
and may be made selectively among persons who receive or are eligible to
receive awards under the Plan, whether or not such persons are similarly
situated.
12.6 No member of the Board or the Committee, nor any officer or
employee of the Company acting on behalf of the Board or the Committee,
shall be personally liable for any action, determination or interpretation
taken or made with respect to the Plan, and all members of the Board or the
Committee and all officers or employees of the Company acting on their
behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company in respect of any such action, determination or
interpretation.
EXHIBIT 23.1
[ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated February
9, 1999 on TheStreet.com, Inc. for the year ended December 31, 1998 and to
all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
-------------------------
ARTHUR ANDERSEN LLP
New York, New York
November 3, 1999
