Filed by the Registrant
|
x
|
Filed by a Party other than the
Registrant
|
¨
|
¨
|
Preliminary
Proxy Statement
|
¨
|
Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
x
|
Definitive
Proxy Statement
|
¨
|
Definitive
Additional Materials
|
¨
|
Soliciting
Material Pursuant to Rule 14a-12
|
|
x
|
No
fee required.
|
¨
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
(1)
|
Title
of each class of securities to which transaction applies:
|
||
(2)
|
Aggregate
number of securities to which transaction applies:
|
||
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
|
||
(4)
|
Proposed
maximum aggregate value of transaction:
|
||
(5)
|
Total
fee paid:
|
||
¨
|
Fee
paid previously with preliminary
materials.
|
¨
|
Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its
filing.
|
(1)
|
Amount
Previously Paid:
|
|
(2)
|
Form,
Schedule or Registration Statement No.:
|
|
(3)
|
Filing
Party:
|
|
(4)
|
Date
Filed:
|
(1)
|
The
election of two Class II Directors for three-year terms expiring at the
Company’s Annual Meeting of Stockholders in 2013;
|
|
(2)
|
A
proposal to amend and restate the Company’s 2007 Performance Incentive
Plan;
|
|
(3)
|
The
ratification of the appointment of KPMG LLP as the Company’s independent
registered public accounting firm for the fiscal year ending December 31,
2010; and
|
|
(4)
|
Such
other matters as may properly come before the Annual Meeting or any
adjournment or postponement
thereof.
|
|
Page
|
Proxy
Statement
|
1
|
Purpose
of the Annual Meeting
|
1
|
Annual
Meeting Admission
|
1
|
Stockholders
Entitled to Vote
|
1
|
Proposals
You Are Asked to Vote On and the Board’s Voting
Recommendations
|
2
|
Quorum
and Voting Requirements to Elect Directors and Approve Each of the
Proposals
|
2
|
Access
to Proxy Materials
|
3
|
Voting
Methods
|
3
|
Changing
Your Vote
|
4
|
Householding
|
4
|
Lists
of Stockholders
|
4
|
Costs
of Proxy Solicitation
|
4
|
Proposal
1 — Election of Directors
|
4
|
Nominees
for Director
|
5
|
Current
Directors
|
5
|
Designee
of the Series B Preferred Stockholders
|
6
|
Executive
Officers
|
6
|
Corporate
Governance and Related Matters
|
6
|
General
|
6
|
Independence
of Directors
|
7
|
Board
of Directors and Committees
|
7
|
Board
of Directors Leadership Structure and Risk Management
Oversight
|
8
|
Director
Nominations
|
8
|
Diversity
Policy
|
8
|
Stockholder
Communications with the Board of Directors
|
9
|
Code
of Business Conduct and Ethics
|
9
|
Related
Person Transaction Policy and Procedures
|
9
|
Compensation
Committee Interlocks and Insider Participation
|
9
|
Compensation
of Directors
|
10
|
Executive
Compensation
|
12
|
2009
Compensation Discussion and Analysis
|
12
|
2009
Report of the Compensation Committee
|
16
|
Summary
Compensation Table
|
17
|
Employment
Agreements
|
19
|
Grants
of Plan-Based Awards in 2009
|
20
|
Outstanding
Equity Awards at 2009 Fiscal Year-End
|
21
|
Option
Exercises and Stock Vested in 2009
|
22
|
Potential
Payments Upon Termination or Change in Control
|
22
|
Transactions
with Related Persons
|
25
|
Employment
Agreement with James J. Cramer
|
25
|
Kikucall,
Inc.
|
26
|
Security
Ownership of Certain Beneficial Owners and Management
|
27
|
Section
16(a) Beneficial Ownership Reporting Compliance
|
29
|
Proposal
2 — Approval of the Amendment and Restatement of TheStreet.com, Inc.
2007 Performance Incentive Plan
|
30
|
Description
of the 2007 Plan
|
30
|
Federal
Income Tax Consequences
|
32
|
Miscellaneous
|
33
|
Equity
Compensation Plan Information
|
33
|
Proposal
3 — Independent Registered Public Accounting
Firm
|
34
|
Fees
of Independent Registered Public Accountants
|
34
|
Information
Regarding Change of Independent Registered Public Accounting
Firm
|
34
|
2009
Report of the Audit Committee
|
35
|
Stockholder
Proposals for 2011 Annual Meeting
|
36
|
Other
Matters
|
37
|
Appendix
A – TheStreet.com, Inc. 2007 Performance Incentive Plan (as amended and
restated effective May 27, 2010)
|
A-1
|
|
•
|
Stockholder
of Record — If your shares are registered directly in
your name with the Company’s transfer agent, American Stock Transfer &
Trust Co., you are considered the stockholder of record of those shares
and these proxy materials are being sent directly to you by the
Company. As the stockholder of record, you have the right to
grant your voting proxy directly to the Company or to vote in person at
the Annual Meeting.
|
|
•
|
Beneficial
Owner — If your shares are held in a stock brokerage
account, by a bank, brokerage firm, trustee, or other nominee, you are
considered the beneficial owner of shares held in street name and these
proxy materials are being forwarded to you by your bank, brokerage firm,
trustee, or nominee which is considered the stockholder of record of those
shares. As the beneficial owner, you have the right to direct
your bank, brokerage firm, trustee, or nominee on how to vote and are also
invited to attend the Annual Meeting. However, since you are not the
stockholder of record, you may not vote these shares in person at the
Annual Meeting. Your bank, brokerage firm, trustee, or nominee
is obligated to provide you with a voting instruction form for you to
use. A large number of banks and brokerage firms are
participating in online programs that allow eligible stockholders to vote
over the Internet or by telephone. If your bank or brokerage
firm is participating in such a program, your voting form will provide
instructions. If your voting form does not contain Internet or
telephone voting information, please complete and return the paper form in
the self-addressed, postage paid envelope provided by your bank, brokerage
firm, trustee or other nominee.
|
Proposals:
|
|
Board’s Voting
Recommendation:
|
|
1.
|
Election
of directors.
|
“FOR” each nominee to the Board
|
|
2.
|
Approval
of the Amendment and Restatement of TheStreet.com, Inc. 2007 Performance
Incentive Plan (the “2007 Plan”).
|
“FOR”
|
|
3.
|
Ratification
of the appointment of KPMG LLP as the Company’s independent registered
public accounting firm for the fiscal year ending December 31,
2010.
|
“FOR”
|
|
•
|
Election of
Directors — The nominees for election as directors at the
Annual Meeting will be elected by a plurality of the votes cast at the
meeting. This means that the director nominee with the most
votes for a particular slot is elected for that slot. Votes
withheld from one or more director nominees will have no effect on the
election of any director from whom votes are
withheld.
|
|
•
|
Approval of the Amendment and
Restatement of the 2007 Plan — The affirmative “FOR” vote of a
majority of the shares voted on the proposal (in person or by proxy) by
persons entitled to vote is required to approve this
proposal. An abstention will have the same effect as a vote
against this proposal and a broker non-vote will have no effect on the
outcome of the vote.
|
|
•
|
Ratification of the
Appointment of KPMG LLP as our Independent Registered Public Accounting
Firm — The affirmative “FOR” vote of a majority of the
shares present in person or represented by proxy at the Annual Meeting and
entitled to vote is required to approve this proposal. An
abstention will have the same effect as a vote against this
proposal.
|
|
•
|
Vote by
Internet — If you have Internet access, you may vote from
any location in the world 24 hours a day, 7 days a week, at the web site
that appears on your proxy card or voting instruction
form. Have your proxy card or voting instruction form in hand
when you access the web site and follow the
instructions.
|
|
•
|
Vote by
Telephone — If you live in the United States, you may use
any touch-tone telephone to vote toll-free 24 hours a day, 7 days a
week. Have your proxy card or voting instruction form in hand
when you call.
|
|
•
|
Vote by
Mail — You may vote by mail by signing and mailing your
proxy card or, for shares held in street name, the voting instruction form
included by your broker or nominee. If you provide specific
voting instructions, your shares will be voted as you
instruct. If you sign, but do not provide instructions, your
shares will be voted as the Board recommends. Please return your proxy
card or voting instruction form in the postage-paid envelope provided so
that it is received by May 25,
2010.
|
|
(1)
|
the
related person’s relationship to the Company and interest in the proposed
transaction;
|
|
(2)
|
the
material facts of the proposed transaction, including the proposed
aggregate value of such transaction or, in the case of indebtedness, the
amount of principal that would be
involved;
|
|
(3)
|
the
benefits to the Company of the proposed
transaction;
|
|
(4)
|
the
impact on a director’s
independence;
|
|
(5)
|
the
availability of other sources for comparable products or
services;
|
|
(6)
|
whether
the proposed transaction is on terms that are comparable to the terms
available to an unrelated third party or to employees generally;
and
|
|
(7)
|
any
other matters the Audit Committee deems
appropriate.
|
Name
|
Fees Earned
or Paid in
Cash
($)
|
Stock
Awards(1)
($)
|
Option
Awards(2)
($)
|
Non-Equity
Incentive Plan
Compensation
($)
|
Change in
Pension Value
and Nonqualified
Deferred
Compensation
Earnings
($)
|
All Other
Compensation(3)
($)
|
Total
($)
|
||||||||||||||
Ronni Ballowe(4)
|
20,156
|
21,205
|
—
|
—
|
—
|
433
|
41,794
|
||||||||||||||
James J. Cramer(5)
|
—
|
447,828
|
—
|
—
|
—
|
13,448
|
461,276
|
||||||||||||||
William R.
Gruver(6)
|
79,650
|
68,898
|
—
|
—
|
—
|
2,069
|
150,617
|
||||||||||||||
Derek Irwin(7)
|
86,200
|
68,898
|
—
|
—
|
—
|
2,069
|
157,167
|
||||||||||||||
Christopher
Marshall(8)
|
12,515
|
21,205
|
—
|
—
|
—
|
433
|
34,153
|
||||||||||||||
Daryl Otte(9)
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||
Martin
Peretz
|
34,350
|
68,898
|
—
|
—
|
—
|
2,069
|
105,317
|
||||||||||||||
Jeffrey Sonnenfeld(10)
|
35,819
|
68,898
|
—
|
—
|
—
|
—
|
104,717
|
(1)
|
This
column represents the aggregate grant date fair value for restricted stock
units (“RSUs”) as determined in accordance with Financial Accounting
Standards Board Accounting Standards Codification 718. The
grant date fair value for each RSU was $3.33 for the grants to our
directors other than Ms. Ballowe and Mr. Marshall, and $2.45 for the
grants to Ms. Ballowe and Mr. Marshall, reflecting the closing price of
the Company’s common stock on January 2, 2009 and September 10, 2009,
respectively. As noted below, in January 2009 the directors
compensation policy provided that the number of shares to be awarded on
the first business day of the year to non-executive directors would be
calculated based upon the closing price of the Company’s common stock on
the business day prior to the date of grant (the closing price of the
Company’s common stock on December 31, 2008 was $2.90). The
policy was amended in February 2009 to provide that for subsequent grants,
the number of shares to be awarded on the first business day of the year
to non-executive directors would be calculated based upon the closing
price of the Company’s common stock on the date of grant. As of
December 31, 2008, each of the non-employee directors held 3,769 unvested
RSUs, all of which vested on January 2, 2009. As of December
31, 2009, each of Messrs. Gruver and Irwin and Dr. Peretz held 20,690
unvested RSUs, all of which vested on January 2, 2010 and Ms. Ballowe and
Mr. Marshall held 8,655 unvested RSUs, all of which vested on January 2,
2010. As noted below, Mr. Otte’s compensation as a director
during 2009 is not reported on this chart but appears in the Summary
Compensation Table, below. The above table does not reflect
compensation paid to Mr. Cramer as an employee, which is described below
under the heading “Transactions with Related
Persons.”
|
(2)
|
No
non-employee director held unexercised options as of December 31,
2009. Mr. Cramer held 357,628 unexercised options as of
December 31, 2009 pursuant to awards previously made to him for his
services as an employee, rather than as a
director.
|
(3)
|
Consists
of dividend equivalents accrued on RSUs held by such directors in fiscal
2009.
|
(4)
|
Ms.
Ballowe was elected to the Board in August 2009. Cash
compensation includes a pro rata portion of the $30,000 annual retainer as
well as a pro rata portion of an annual fee of $5,000 for duties
associated with chairing the Nominating and Corporate Governance
Committee.
|
(5)
|
Mr.
Cramer is the Chairman of the Board and an employee but not an executive
officer of the Company. His compensation for his services as an
employee is described below under the heading “Transactions with Related
Persons.” In addition to compensation for his services
described under “Transactions with Related Persons,” Mr. Cramer also
receives compensation for his services as Chairman of the
Board. On January 2, 2009 Mr. Cramer received a one-time grant
of 100,000 RSUs as consideration for his assumption of the Chairmanship
duties on October 24, 2008. This January 2, 2009 award vested
immediately upon the grant date but was settled by delivery of shares of
common stock on January 2, 2010. Additionally, Mr. Cramer
receives a grant of RSUs having a value of $100,000 annually as
compensation for his services as Chairman of the Board and received such
grant with respect to fiscal year 2009 on January 2, 2009, which resulted
in a grant to Mr. Cramer of 34,483 shares (calculated, as noted above,
based upon the closing price of the Company’s common stock on December 31,
2008 in accordance with the Company’s then-current
policy).
|
(6)
|
Cash
compensation includes an annual fee of $15,000 for duties associated with
chairing the Compensation
Committee.
|
(7)
|
Cash
compensation includes an annual fee of $20,000 for duties associated with
chairing the Audit Committee.
|
(8)
|
Mr.
Marshall was elected to the Board in August 2009. Cash
compensation includes a pro rata portion of the $30,000 annual
retainer.
|
(9)
|
Does
not include consideration paid for Mr. Otte’s services as a director prior
to Mr. Otte’s appointment as Chief Executive Officer in March 2009 (on an
interim basis from March 2009 – May 2009, and on a permanent basis
thereafter), which is reflected in the Summary Compensation Table,
below. Since his appointment as Chief Executive Officer, Mr.
Otte does not receive separate consideration for his service as a
director. Mr. Otte’s compensation for service as the Company’s
Chief Executive Officer is described in the section of this Proxy
Statement entitled “Executive
Compensation.”
|
(10)
|
Dr.
Sonnenfeld resigned as a director in August 2009. Cash
compensation includes a pro rata portion of the $30,000 annual retainer as
well as a pro rata portion of the annual fee of $5,000 for duties
associated with chairing the Nominating and Corporate Governance
Committee. The RSU award made to Dr. Sonnenfeld on January 2,
2009 expired unvested upon his resignation from the
Board.
|
|
•
|
Annual
Retainer. Each non-employee director receives an annual
retainer in the amount of $30,000 for service on the Company’s
Board. The retainer is payable in arrears in equal quarterly
installments (on March 31st,
June 30th,
September 30th
and December 31st)
and prorated as necessary to reflect service commencement or termination
during the quarter.
|
|
•
|
Equity
Grant. Each non-executive director receives an
annual grant of restricted stock units (“RSUs”) awarded under an equity
compensation plan approved by the Company’s shareholders. The
RSUs are awarded on the first business day of each year and valued at
$100,000 for a non-executive Chairman and $60,000 for all non-employee
other directors. With respect to the grants in January 2009,
the value was calculated based upon the closing price of the Company’s
common stock on the Nasdaq Stock Market on December 31st
of the previous year. In February 2009, the Board approved an
amendment to the directors compensation policy in which the value of
shares on a grant date will be the closing price on the date of grant, as
opposed to the closing price on the preceding business day. The
RSUs vest on the first anniversary of the date of grant, subject to
continued service. Vesting of the RSUs will automatically
accelerate upon the occurrence of a change of control of the
Company. In September 2009, the Board approved an amendment to
the directors compensation policy to clarify that if a non-employee
director is elected after the first business day of a year, the $60,000
grant shall be pro rated to reflect the partial year of service and will
vest on the first business day of the following calendar
year.
|
|
•
|
Meeting
Fees. Each non-employee director is entitled to receive
the following fees for participating in meetings of the Company’s Board
and committees:
|
|
•
|
$1,500
for attending each Board meeting in
person;
|
|
•
|
$450
for attending each committee meeting in person, for committee meetings
that take place on the same day as Board
meetings;
|
|
•
|
$700
for attending each committee meeting in person (other than committee
meetings that take place on the same day as Board
meetings);
|
|
•
|
$450
for participating in each Board or committee conference call, or
participating by telephone in an otherwise in-person Board or committee
meeting.
|
|
•
|
Chairmanship
Fees. In addition to the fees set forth above, the
chairman of the each committee receives the following additional annual
fees (payable quarterly in arrears), to compensate him or her for the
additional responsibilities and duties of the
position:
|
|
•
|
Audit – $20,000
|
|
•
|
Compensation – $15,000
|
|
•
|
Nominating and Corporate
Governance – $5,000
|
Name
|
Year
|
Salary
($)
|
Bonus(1)
($)
|
Stock
Awards(2)(3)
($)
|
Option
Awards(4)
($)
|
Non-Equity
Incentive
Plan
Compen-
sation(1)
($)
|
Change in
Pension Value
and
Nonqualified
Deferred
Compensation
Earnings
($)
|
All Other
Compensation(5)
($)
|
Total
($)
|
|||||||||||||||||||||
Daryl Otte(6)
|
2009
|
265,625 | 58,027 | 1,430,398 | — | 241,973 | — | 180,951 | 2,176,974 | |||||||||||||||||||||
Chief
Executive Officer
|
2008
|
— | — | — | — | — | — | — | — | |||||||||||||||||||||
2007
|
— | — | — | — | — | — | — | — | ||||||||||||||||||||||
Gregory E.
Barton(7)
|
2009
|
157,388 | — | 351,750 | — | 141,649 | — | 11,931 | 662,718 | |||||||||||||||||||||
Executive
Vice President, Business
|
2008
|
— | — | — | — | — | — | — | — | |||||||||||||||||||||
and
Legal Affairs, General Counsel and Secretary
|
2007
|
— | — | — | — | — | — | — | — | |||||||||||||||||||||
Richard Broitman(8)
|
2009
|
190,682 | — | 115,073 | — | 91,527 | — | 7,529 | 404,811 | |||||||||||||||||||||
Chief
Accounting Officer
|
2008
|
— | — | — | — | — | — | — | — | |||||||||||||||||||||
2007
|
— | — | — | — | — | — | — | — | ||||||||||||||||||||||
Thomas J. Clarke,
Jr.(9)
|
2009
|
93,271 | — | 344,485 | — | — | — | 333,173 | 770,929 | |||||||||||||||||||||
Former
Chief Executive Officer
|
2008
|
410,000 | — | 237,076 | 371,438 | — | — | 12,905 | 1,031,419 | |||||||||||||||||||||
2007
|
410,000 | — | 390,600 | — | 222,307 | — | 9,141 | 1,032,048 | ||||||||||||||||||||||
Eric Ashman(10)
|
2009
|
98,345 | — | 156,510 | — | — | — | 106,096 | 360,951 | |||||||||||||||||||||
Former
Chief Financial Officer
|
2008
|
276,000 | — | 137,246 | 207,901 | — | — | 6,678 | 627,825 | |||||||||||||||||||||
2007
|
265,000 | — | 104,160 | — | 124,526 | — | 1,200 | 494,886 | ||||||||||||||||||||||
David Morrow(11)
|
2009
|
122,500 | — | 66,600 | — | — | — | 87,137 | 276,237 | |||||||||||||||||||||
Former
Editor-in-Chief
|
2008
|
245,000 | — | 108,913 | 141,960 | — | — | 6,626 | 502,499 | |||||||||||||||||||||
2007
|
235,000 | — | 130,200 | — | 84,949 | — | 1,883 | 452,032 | ||||||||||||||||||||||
Steven Elkes(12)
|
2009
|
80,118 | — | 133,200 | — | — | — | 3,229 | 216,547 | |||||||||||||||||||||
Former
Chief Revenue Officer and
|
2008
|
312,000 | — | 197,225 | 180,059 | — | — | 6,410 | 695,694 | |||||||||||||||||||||
Executive
Vice President of Mergers and
Acquisitions
|
2007
|
230,682 | — | — | 462,459 | — | — | — | 693,141 |
(1)
|
For
2009, amounts shown in the “Non-Equity Incentive Plan” column reflect the
short-term cash incentive earned in 2009, which was paid in
2010. For 2009, 2008 and 2007, all short-term and long-term
cash incentive opportunities were granted as performance awards under the
2007 Plan. In each of 2008 and 2007, although certain of the
performance goals for the short-term incentive were met, the Compensation
Committee exercised its discretion to reduce the payouts of the short-term
incentive to zero. Amounts shown in the in the “Non-Equity
Incentive Plan” column for 2007 reflect long-term cash incentives which
were earned and would be paid over a three-year period subject to
continued employment as follows: Messrs. Clarke, Ashman and
Morrow earned 13,964, 7,822 and 5,336 phantom shares, respectively, based
upon the closing price of the Company’s common stock on December 31,
2007. The phantom shares would vest as to one-third of the
shares on each of the first three anniversaries of December 31, 2007,
subject to continued employment, and upon vesting the grantee would
receive the cash value of the shares as of the vesting date, together with
any dividends that had accrued on such shares. Amounts shown in
the “Bonus” column reflect discretionary payments awarded by the
Compensation Committee.
|
(2)
|
The
amounts in the “Stock Awards” column reflect the aggregate grant date fair
value computed in accordance with Financial Accounting Standards Board
Accounting Standards Codification 718. Assumptions made in the
calculation of these amounts are included in Note 1 to the Company’s
audited consolidated financial statements for the fiscal year ended
December 31, 2009, included in the Company’s Annual Report on Form 10-K
filed with the Securities and Exchange Commission on March 30,
2010.
|
(3)
|
Each
RSU award includes the grant of dividend equivalents with respect to such
RSU. The Company maintains a bookkeeping account to which it
credits, whenever cash dividends are paid on the common stock, an amount
equal to the amount of the dividend paid on a share of common stock for
each then-outstanding RSU granted. The accumulated dividend
equivalents vest on the applicable vesting date for the RSU with respect
to which such dividend equivalents were credited, and will be paid in cash
to the holder. The following amounts were earned as dividend
equivalents for the named executive officers during 2009, 2008 and 2007,
respectively, with respect to unvested RSUs: Mr. Otte, $53,319,
$0 and $0; Mr. Barton, $8,750, $0 and $0; Mr. Broitman, $3,639, $0 and $0
(excludes dividends accrued during 2008 and 2007 prior to Mr. Broitman
becoming an executive officer); Mr. Clarke, $3,312, $6,604 and $7,500; Mr.
Ashman, $1,478, $2,018 and $1,200; Mr. Morrow, $1,572, $1,966 and $1,500;
and Mr. Elkes, $1,292, $1,750 and $0. These amounts are not
reflected in the “Stock Awards” column but rather are reflected in the
“All Other Compensation” column.
|
(4)
|
The
amounts in the “Option Awards” column reflect the aggregate grant date
fair value computed in accordance with Financial Accounting Standards
Board Accounting Standards Codification 718. Assumptions made
in the calculation of these amounts are as follows: 2008
grants: expected life of 3.5 years, expected volatility of
47.07%, risk-free interest rate of 2.37% and expected dividends of 0.75%;
2007 grant: expected life of 3.5 years, expected volatility of 49.73%,
risk-free interest rate of 4.52% and expected dividends of
1.04%.
|
(5)
|
Amounts
in the “All Other Compensation” column include the
following: (i) the Company’s matching contribution of
contributions made by the employee to the Company’s 401(k) Plan in 2009,
2008 and 2007, respectively, in the following amounts: Mr.
Otte, $4,900, $0 and $0; Mr. Barton, $3,148, $0 and $0; Mr. Broitman,
$3,834, $0 and $0 (excludes matching contributions made in 2008 and 2007
prior to Mr. Broitman becoming an executive officer); Mr. Clarke, $4,900,
$4,600 and $0; Mr. Ashman, $4,595, $4,600 and $0; Mr. Morrow, $3,049,
$4,600 and $383; Mr. Elkes, $1,914, $4,600 and $0; (ii) amounts paid by
the Company with respect to group life insurance in 2009, 2008 and 2007,
respectively, in the following amounts: Mr. Otte, $33, $0 and
$0; Mr. Barton, $33, $0 and $0; Mr. Broitman, $56, $0 and $0 (excludes
payments made in 2008 and 2007 prior to Mr. Broitman becoming an executive
officer); Mr. Clarke, $56, $60 and $0; Mr. Ashman, $23, $60 and $0; Mr.
Morrow, $28, $60 and $0; Mr. Elkes, $23, $60 and $0; and (iii) amounts
earned as dividend equivalents during 2009, 2008 and 2007, respectively,
with respect to unvested RSUs: Mr. Otte, $53,319, $0 and $0;
Mr. Barton, $8,750, $0 and $0; Mr. Broitman, $3,639, $0 and $0 (excludes
dividends accrued during 2008 and 2007 prior to Mr. Broitman becoming an
executive officer); Mr. Clarke, $3,312, $6,604 and $7,500; Mr. Ashman,
$1,478, $2,018 and $1,200; Mr. Morrow, $1,572, $1,966 and $1,500; and Mr.
Elkes, $1,292, $1,750 and $0. Amounts in the “All Other
Compensation” column also include the following amounts: (a)
for Mr. Otte, $110,905 earned for his services as interim Chief Executive
Officer and $11,794 cash fees earned for his services as a director prior
to being hired as Chief Executive Officer; (b) for Mr. Clarke, $1,641 paid
for term life insurance in each of 2009, 2008 and 2007; and $316,729 and
$6,535 paid in 2009 for severance and for accrued and unused vacation,
respectively; (c) for Mr. Ashman, $100,000 in severance paid in 2009; and
(d) for Mr. Morrow, $82,488 received for consulting services after he
resigned from the Company.
|
(6)
|
In
March 2009, Mr. Otte was appointed interim Chief Executive Officer as an
outside consultant. In May 2009, Mr. Otte was hired as Chief
Executive Officer. Amounts shown in the “Salary” column reflect
salary earned by Mr. Otte since being hired as Chief Executive Officer,
and exclude (i) $110, 905 earned by Mr. Otte for his services as interim
Chief Executive Officer and (ii) $11,794 cash fees earned for his services
as a director prior to being hired as Chief Executive Officer, which
amounts are reported in the “All Other Compensation”
column. Amounts shown in the “Stock Awards” column for 2009
include (i) $68,898 reflecting RSUs awarded to him in January 2009 in
connection with his service as a director, (ii) $48,500 reflecting RSUs
awarded to him in March 2009 in connection with his appointment as Interim
Chief Executive Officer and (iii) $1,313,000 reflecting RSUs awarded to
him in connection with his appointment as permanent Chief Executive
Officer.
|
(7)
|
In
June 2009, Mr. Barton was hired as Executive Vice President, Business and
Legal Affairs, General Counsel and Secretary.
|
(8)
|
In
June 2009, Mr. Broitman was appointed Chief Accounting Officer, becoming
an executive officer of the Company. Amounts shown in the
Summary Compensation Table include amounts earned in 2009 as an employee
prior to becoming an executive
officer.
|
(9)
|
Mr.
Clarke was appointed Chief Executive Officer in November
1999. Mr. Clarke ceased being a director or employee of the
Company in March 2009.
|
(10)
|
Mr.
Ashman was appointed Chief Financial Officer in July 2006. Mr.
Ashman resigned from the Company effective May
2009.
|
(11)
|
Mr.
Morrow was appointed an executive officer of the Company in January
2007. Mr. Morrow resigned from the Company in June
2009.
|
(12)
|
Mr.
Elkes was appointed Chief Revenue Officer and Executive Vice President,
Mergers and Acquisitions in March 2007. Mr. Elkes ceased to be an
employee of the Company in March
2009.
|
Estimated
Future
Payouts
Under
Non-Equity
Incentive
Plan Awards(1)
|
Estimated
Future
Payouts
Under
Equity
Incentive
Plan
Awards
|
All
Other
Stock
Awards:
Number
of
Shares
|
All
Other
Option
Awards:
Number
of
|
Exercise
or
Base
|
Grant
Date
Fair
Value
of
|
||||||||||||||||||||||||||||
Name
|
Grant
Date
|
Threshold
($)
|
Target
($)
|
Maximum
($)
|
Threshold
($)
|
Target
($)
|
Maximum
($)
|
of
Stock
or
Units
(#)(2)
|
Securities
Underlying
Options
(#)
|
Price
of
Option
Awards
($/Sh)
|
Stock
and
Option
Awards
($)
|
||||||||||||||||||||||
Daryl
Otte
|
1/2/09
|
— | — | — | — | — | — | 20,690 | — | — | 68,898 | ||||||||||||||||||||||
3/13/09
|
— | — | — | — | — | — | 25,000 | — | — | 48,500 | |||||||||||||||||||||||
6/9/09
|
— | — | — | — | — | — | 650,000 | — | — | 1,313,000 | |||||||||||||||||||||||
7/14/09
|
161,315 | 201,644 | 241,973 | — | — | — | — | — | — | — | |||||||||||||||||||||||
Gregory
Barton
|
7/14/09
|
— | — | — | — | — | — | 175,000 | — | — | 351,750 | ||||||||||||||||||||||
7/14/09
|
94,433 | 118,041 | 141,649 | — | — | — | — | — | — | — | |||||||||||||||||||||||
Richard
Broitman
|
1/2/09
|
— | — | — | — | — | — | 5,000 | — | — | 16,650 | ||||||||||||||||||||||
7/1/09
|
— | — | — | — | — | — | 47,778 | — | — | 98,423 | |||||||||||||||||||||||
7/14/09
|
61,018 | 76,273 | 91,527 | — | — | — | — | — | — | — | |||||||||||||||||||||||
Thomas
J. Clarke, Jr.
|
1/2/09
|
— | — | — | — | — | — | 103,449 | — | — | 344,485 | ||||||||||||||||||||||
Eric
Ashman
|
1/2/09
|
— | — | — | — | — | — | 47,000 | — | — | 156,510 | ||||||||||||||||||||||
David
Morrow
|
1/2/09
|
— | — | — | — | — | — | 20,000 | — | — | 66,600 | ||||||||||||||||||||||
Steven
Elkes
|
1/2/09
|
— | — | — | — | — | — | 40,000 | — | — | 133,200 |
(1)
|
This
represents the potential payouts to the named executive officers under the
2007 Plan as short-term performance awards for 2009 as determined at the
time of grant. The applicable targets are described in the Compensation
Discussion and Analysis and the actual amount paid to each named executive
officer pursuant to such award is set forth in the Summary Compensation
Table.
|
(2)
|
This
column reflects grants of RSUs made under the 2007 Plan. The
grant made to Mr. Otte on 1/2/09 was made in connection with his services
as a director and vested on 1/2/10, as did the grant made to Mr. Otte on
3/13/09 in connection with his services as interim Chief Executive
Officer. The grant made to Mr. Broitman on 1/2/09 vests as to
one-third of the shares underlying the grant on each of the first three
anniversaries of the grant date. The grants made to Mr. Otte on
6/9/09, to Mr. Barton on 7/14/09 and to Mr. Broitman on 7/1/09 each vest
as to 10% of the shares underlying the grant on each of the first four
anniversaries of the date of grant and as to the balance on the fifth
anniversary of the date of grant, subject to whole or partial acceleration
under certain circumstances as described under the heading “Potential
Payments Upon Termination or Change in Control.” The grants
made to Messrs. Clarke, Ashman, Morrow and Elkes on 1/2/09 were to vest as
to one-third of the shares underlying the grant on each
of the first three anniversaries of the grant date. The RSU
agreements for Messrs. Clarke, Ashman, Morrow and Elkes provided that 100%
(in the case of Messrs. Clarke and Elkes) or 50% (in the case of Messrs.
Ashman and Morrow) of the then unvested portion would immediately vest in
the event of a Change of Control (as such term is defined in the 2007
Plan). In addition, Mr. Clarke’s RSUs would vest upon the
occurrence of certain events described under the heading “Potential
Payments Upon Termination or Change in Control.” The above RSUs
of Mr. Clarke vested upon his separation from employment in 2009; the
above RSUs for Messrs. Ashman, Morrow and Elkes were forfeited upon such
individual’s respective separation from employment in
2009. Each RSU award includes the grant of dividend equivalents
with respect to such RSU. The Company maintains a bookkeeping
account to which it credits, whenever cash dividends are paid on the
common stock, an amount equal to the amount of the dividend paid on a
share of common stock for each then-outstanding RSU
granted. The accumulated dividend equivalents vest on the
applicable vesting date for the RSU with respect to which such dividend
equivalents were credited, and will be paid in cash at the time a stock
certificate evidencing the shares represented by such vested RSU is
delivered.
|
Option Awards
|
Stock Awards
|
|||||||||||||||||||||||||||||||
Name
|
Grant Date
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercis-
able
|
Equity Incentive Plan
Awards: Number of
Securities Underlying
Unexercised
Unearned Options (#)
|
Option
Exercise
Price ($)
|
Option
Expira-
tion
Date
|
Number of
Shares or Units
of Stock That
Have Not
Vested (#)(1)
|
Market Value
of Shares or
Units of Stock
That Have
Not Vested
($)(1)
|
||||||||||||||||||||||||
Daryl
Otte
|
1/2/09
|
— | — | — | — | — | 20,690 | 49,656 | ||||||||||||||||||||||||
3/13/09
|
— | — | — | — | — | 25,000 | 60,000 | |||||||||||||||||||||||||
6/9/09
|
— | — | — | — | — | 650,000 | 1,560,000 | |||||||||||||||||||||||||
Gregory
Barton
|
7/14/09
|
— | — | — | — | — | 175,000 | 420,000 | ||||||||||||||||||||||||
Richard
Broitman
|
1/3/05
|
6,667 | — | — | 4.08 |
1/2/10
|
— | — | ||||||||||||||||||||||||
1/19/07
|
— | — | — | — | — | 2,500 | 6,000 | |||||||||||||||||||||||||
2/14/08
|
— | — | — | — | — | 5,000 | 12,000 | |||||||||||||||||||||||||
1/2/09
|
— | — | — | — | — | 5,000 | 12,000 | |||||||||||||||||||||||||
7/1/09
|
— | — | — | — | — | 47,778 | 114,667 | |||||||||||||||||||||||||
Thomas
J. Clarke, Jr.
|
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
Eric
Ashman
|
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
David
Morrow
|
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
Steven
Elkes
|
— | — | — | — | — | — | — | — |
(1)
|
These
columns represent RSUs that were unvested at 2009 fiscal
year-end. Dollar values reflect the closing price of the
Company’s common stock on December 31, 2009, which was $2.40 per
share. The vesting schedule of these awards is as
follows. Mr. Otte’s 20,690 share RSU grant, awarded to him in
connection with his service as a director of the Company prior to being
named the Company’s Chief Executive Officer, vested on
1/2/10. Mr. Otte’s 25,000 share RSU grant, awarded to him in
connection with his appointment as Interim Chief Executive Officer, vested
on 1/2/10. Mr. Otte’s 650,000 share RSU grant, awarded to him
in connection with the Company hiring him in May 2009 as Chief Executive
Officer, Mr. Barton’s RSU grant and Mr. Broitman’s 47,778 share RSU grant
each vest as to 10% of the underlying shares on each of the first four
anniversaries of the date of grant and as to the balance on the fifth
anniversary of the date of grant, subject to continued employment and
subject to accelerated vesting in certain events as described under the
heading “Potential Payments Upon Termination or Change in
Control.” Mr. Broitman’s other RSU grants vest in equal
installments over the first three anniversaries of the date of
grant.
|
|
Option Awards
|
Stock Awards
|
||||||||||||||
Name
|
Number of Shares
Acquired on Exercise
(#)
|
Value Realized on
Exercise
($)
|
Number of Shares
Acquired on Vesting
(#)
|
Value Realized on
Vesting
($)
|
||||||||||||
Daryl
Otte
|
—
|
—
|
3,769
|
12,551
|
||||||||||||
Gregory
Barton
|
—
|
—
|
—
|
—
|
||||||||||||
Richard
Broitman
|
—
|
—
|
6,667
|
19,701
|
||||||||||||
Thomas
Clarke, Jr.
|
—
|
—
|
169,485
|
375,353
|
||||||||||||
Eric
Ashman
|
—
|
—
|
8,059
|
22,633
|
||||||||||||
David
Morrow
|
—
|
—
|
8,221
|
23,475
|
||||||||||||
Steven
Elkes
|
—
|
—
|
5,833
|
15,166
|
Payment Trigger
|
Cash
Severance
($)
|
Bonus
($)
|
Benefits
($)
|
Value of
Accelerated
Equity Awards
($)(1)
|
Excise Tax
Gross-Up
($)(2)
|
Total
($)
|
||||||||||||||||||
With
Cause or without Good Reason
|
— | — | — | — | — | — | ||||||||||||||||||
Without
Cause or for Good Reason
|
112,908 | — | — | 1,669,656 | — | 1,782,564 | ||||||||||||||||||
Change
of Control
|
1,490,000 | — | — | 1,669,656 | 1,064,872 | 4,224,528 | ||||||||||||||||||
Termination
after Change of Control
|
1,490,000 | — | — | 1,669,656 | 1,064,872 | 4,224,528 | ||||||||||||||||||
Death
or Disability
|
— | — | — | 548,548 | — | 548,548 |
|
(1)
|
The
value of RSUs is based on the Company’s stock price on December 31, 2009
at the close of the trading day as reported on Nasdaq, being $2.40 per
common share.
|
|
(2)
|
Assumes
an aggregate 45% income and employment tax rate and a 20% federal excise
tax rate.
|
Payment Trigger
|
Cash
Severance
($)
|
Bonus
($)
|
Benefits
($)
|
Value of
Accelerated
Equity Awards
($)(1)
|
Total
($)
|
|||||||||||||||
With
Cause or without Good Reason
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||
Without
Cause or for Good Reason
|
21,154
|
—
|
—
|
270,411
|
291,565
|
|||||||||||||||
Change
of Control
|
—
|
—
|
—
|
420,000
|
420,000
|
|||||||||||||||
Termination
after Change of Control
|
275,000
|
—
|
—
|
420,000
|
695,000
|
|||||||||||||||
Death
or Disability
|
—
|
—
|
—
|
120,807
|
120,807
|
|
(1)
|
The
value of RSUs is based on the Company’s stock price on December 31, 2009
at the close of the trading day as reported on Nasdaq, being $2.40 per
common share.
|
Payment Trigger
|
Cash
Severance
($)(1)
|
Bonus
($)
|
Benefits
($)
|
Value of
Accelerated
Equity Awards
($)(2)
|
Total
($)
|
|||||||||||||||
With
Cause or without Good Reason
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||
Without
Cause or for Good Reason
|
150,341
|
—
|
—
|
—
|
150,341
|
|||||||||||||||
Change
of Control
|
—
|
—
|
—
|
114,667
|
114,667
|
|||||||||||||||
Termination
after Change of Control
|
150,341
|
—
|
—
|
114,667
|
265,008
|
|||||||||||||||
Death
or Disability
|
—
|
—
|
—
|
11,467
|
11,467
|
|
(1)
|
Cash
severance amount does not reflect a contractual entitlement to cash
severance, but reflects payments that would have been made pursuant to the
Company’s then-applicable non-binding severance policy for executives,
which the Company may change (or eliminate) at its sole discretion, which
provides for payments of four weeks of base pay for each year of service,
with a maximum payment of fifty-two weeks of base pay
.
|
|
(2)
|
The
value of RSUs is based on the Company’s stock price on December 31, 2009
at the close of the trading day as reported on Nasdaq, being $2.40 per
common share.
|
|
•
|
with
regard to Mr. Ashman, severance pay equal to two years of his salary and
group medical insurance benefits for one
year;
|
|
•
|
with
regard to Mr. Morrow, severance pay equal to one year of his salary, plus
any earned but unpaid short term incentive bonus and group medical
insurance benefits for one year;
and
|
|
•
|
with
regard to Mr. Elkes, severance pay equal to one year of his salary (two
years in certain circumstances following a Change of Control), plus a pro
rated bonus for the termination year, and continued health, life and
disability insurance benefits for one year (two years in certain
circumstances following a Change of
Control).
|
Name and Address of Beneficial Owner(1)
|
Amount and Nature of
Beneficial
Ownership(2)
|
Percent of
Class(2)
|
||||||
Five
Percent Shareholders
|
||||||||
Technology
Crossover Ventures(3)
|
5,026,449
|
15.9
|
||||||
James
J. Cramer(4)
|
4,074,005
|
12.8
|
||||||
Harvest
Capital Strategies LLC(5)
|
2,359,971
|
7.5
|
||||||
Columbia
Wanger Asset Management, L.P.(6)
|
2,256,740
|
7.2
|
||||||
Munder
Capital Management(7)
|
2,103,940
|
6.7
|
||||||
Martin
Peretz(8)
|
1,891,489
|
6.0
|
||||||
Dimensional
Fund Advisors LP(9)
|
1,502,967
|
4.8
|
||||||
Directors
and Executive Officers
|
||||||||
James
J. Cramer(4)
|
4,086,098
|
12.8
|
||||||
Martin
Peretz(8)
|
1,891,489
|
6.0
|
||||||
Daryl
Otte(10)
|
145,554
|
0.5
|
||||||
Ronni
Ballowe(11)
|
8,655
|
*
|
||||||
William
R. Gruver(12)
|
68,201
|
0.2
|
||||||
Derek
Irwin(13)
|
24,459
|
0.1
|
||||||
Christopher
Marshall(14)
|
0
|
*
|
||||||
Gregory
Barton(15)
|
0
|
*
|
||||||
Richard
Broitman(16)
|
14,835
|
*
|
||||||
Thomas
Clarke
|
(17)
|
(17)
|
||||||
Eric
Ashman
|
(17)
|
(17)
|
||||||
David
Morrow
|
(17)
|
(17)
|
||||||
Steven
Elkes
|
(17)
|
(17)
|
||||||
All
current executive officers and directors as a group (9
persons)
|
6,247,946
|
19.6
|
*
|
Represents
beneficial ownership of less than
1%.
|
(1)
|
Except
as otherwise indicated, the address for each stockholder is c/o
TheStreet.com, Inc., 14 Wall Street, New York, New York 10005.
Other addresses in the notes below are based on recent filings with the
SEC. With respect to the five percent shareholders, we have
relied upon their beneficial ownership reports as filed with the SEC and
internal company records.
|
(2)
|
Beneficial
ownership is determined in accordance with the rules of the Securities and
Exchange Commission. Percentage ownership is based on a total of
31,548,827 common shares outstanding as of March 31, 2010, excluding
treasury stock. Shares of common stock over which the named
person has rights to acquire voting or dispositive power within sixty days
of March 31, 2010 are deemed outstanding for the purpose of computing the
percentage ownership of the person holding such rights but are not deemed
outstanding for computing the percentage ownership of any other
person. Except as noted, the persons and entities named in the
table have sole voting and sole investment power with respect to all
shares beneficially owned, subject to community property laws where
applicable.
|
(3)
|
Consists
of 12,424 shares of common stock, 3,856,942 shares of common stock
immediately issuable upon conversion of 5,500 shares of Series B
convertible preferred stock (representing beneficial ownership of 100% of
the outstanding shares of such class of stock) and 1,157,083 shares
issuable upon exercise of certain warrants to purchase common stock with
an exercise price of $15.69 per share. TCV VI, L.P. (“TCV VI”)
is the record holder of 5,455.95 shares of Series B convertible preferred
stock, convertible into 3,826,051 shares of common stock, and warrants to
purchase 1,147,816 shares of common stock. TCV Member Fund,
L.P. (“Member Fund”) is the record holder of 44.05 shares of Series B
convertible preferred stock, convertible into 30,800 shares of common
stock and warrants to purchase 9,267 shares of common
stock. TCV VI Management, L.L.C. (“TCV VI Management”) is the
record holder of 12,424 shares of common stock. Technology
Crossover Management VI, L.L.C. (“TCM VI”) is the sole general partner of
TCV VI and a general partner of Member Fund. Messrs. Jay C.
Hoag, Richard H. Kimball, John L. Drew, Jon Q. Reynolds, William J.G.
Griffith IV and Robert W. Trudeau are the Class A Members of TCM VI and
Members of TCV VI Management. Messrs. Hoag, Kimball, Drew,
Reynolds, Griffith and Trudeau and TCM VI disclaim beneficial ownership of
these shares except to the extent of their respective pecuniary interests
therein. The total percentage of common stock outstanding for
TCV VI and Member Fund is calculated on an as converted basis with the
number of warrants and Series B preferred shares added to both the
numerator and the denominator. Does not include
24,897 shares that are to vest after May 30, 2010 pursuant to an
outstanding RSU grant to Mr. Marshall which was assigned to funds
affiliated with Technology Crossover Ventures. The principal
business address of Technology Crossover Ventures and each person or
entity listed in this note is 528 Ramona Street, Palo Alto,
California 94301.
|
(4)
|
Includes
2,067,716 shares owned directly by Mr. Cramer; 1,754,538 shares owned by
Cramer Partners, L.L.C.; and 251,751 shares issuable to Mr. Cramer upon
exercise of options within 60 days of March 31, 2010. Does not
include 316,030 shares that are to vest after May 30, 2010 pursuant to
outstanding RSU and option grants.
|
(5)
|
According
to Harvest Capital Strategies LLC’s filing with the SEC on Schedule 13G
dated as of December 31, 2009, Harvest Capital Strategies LLC acts as the
investment advisor of one or more investment partnerships, pooled
investment vehicles and/or one or more client accounts. Harvest
Capital Strategies LLC has been granted authority to dispose of and vote
the securities held by it. The principal business address of
Harvest Capital Strategies LLC is 600 Montgomery Street, Suite 2000, San
Francisco,
California 94111.
|
(6)
|
The
principal business address of Columbia Wanger Asset Management, L.P. is
227 West Monroe Street, Suite 3000, Chicago
Illinois 60606.
|
(7)
|
According
to Munder Capital Management’s filing with the SEC on Schedule 13G dated
as of December 31, 2009, Munder is beneficial owner of such stock on
behalf of numerous clients, none of which has the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the
sale of, more than 5% of the Company’s common stock. The
principal business address of Munder Capital Management is Munder Capital
Center, 480 Pierce Street, Birmingham,
Minnesota 48009.
|
(8)
|
Includes
300,389 shares owned directly by Dr. Peretz. Also includes the
following 1,778,088 shares, over which Dr. Peretz has sole voting and
dispositive power: 1,055,541 shares owned by Peretz Partners,
L.L.C. (“PP”), of which Dr. Peretz is manager; 380,112 shares held
directly or indirectly by Peretz Family Investments, L.P. (“PFI”); and
42,046 shares held directly by Crimson Investments III L.P. (“Crimson”)
representing Dr. Peretz’s beneficial ownership of a majority of the
partnership interests in Crimson. The foregoing shares include
25,305 shares that were received as merger consideration from the Company
in connection with the acquisition of Kikucall, Inc. (“Kikucall”) and that
are currently being held in escrow pending disbursement to the applicable
record holder subject to post-closing adjustments. Dr. Peretz
hereby expressly disclaims beneficial ownership of shares held by PP, PFI,
and Crimson. Also includes the following shares, over which Dr.
Peretz has shared voting and dispositive power: 18,174 shares
held by a trust of which Dr. Peretz is a co-trustee; 73,618 shares held by
a trust for the benefit of Dr. Peretz; and 1,000 shares held by a trust
for the benefit of one of Dr. Peretz’s children, for which Dr. Peretz is a
co-trustee. Does not include 24,897 shares that are to vest
after May 30, 2010 pursuant to an outstanding RSU
grant.
|
(9)
|
According
to Dimensional Fund Advisors LP’s filing with the SEC on Schedule 13G
dated as of December 31, 2009, Dimensional Fund Advisors LP furnishes
investment advice to four investment companies registered under the
Investment Company Act of 1940, and serves as investment manager to
certain other commingled group trusts and separate accounts (such
investment companies, trusts and accounts, collectively referred to as the
“Funds”). In certain cases, subsidiaries of Dimensional Fund
Advisors LP may act as an adviser or sub-adviser to certain
Funds. In its role as investment advisor, sub-adviser and/or
manager, neither Dimensional Fund Advisors LP or its subsidiaries
(collectively, “Dimensional”) possess voting and/or investment power over
the securities of the Company that are owned by the Funds, and may be
deemed to be the beneficial owner of the shares of the Company held by the
Funds. However, all securities reported above are owned by the
Funds. Dimensional disclaims beneficial ownership of such
securities. The principal business address of Dimensional Fund
Advisors LP is Palisades West, Building One, 6300 Bee Cave Road, Austin,
Texas 78746.
|
(10)
|
Consists
of 145,554 shares owned directly by Mr. Otte, of which 3,139 shares were
received as merger consideration from the Company in connection with the
acquisition of Kikucall and are currently being held in escrow pending
disbursement to the applicable record holder subject to post-closing
adjustments. Does not include 650,000 shares that are to vest
after May 30, 2010 pursuant to an outstanding RSU
grant.
|
(11)
|
Consists
of 8,655 shares owned directly by Ms. Ballowe. Does not include
24,897 shares that are to vest after May 30, 2010 pursuant to an
outstanding RSU grant.
|
(12)
|
Consists
of 47,401 shares owned directly by Mr. Gruver and 20,800 shares owned by
Mr. Gruver’s spouse. Does not include 24,897 shares that are to
vest after May 30, 2010 pursuant to an outstanding RSU
grant.
|
(13)
|
Consists
of 24,459 shares owned directly by Mr. Irwin. Does not include
24,897 shares that are to vest after May 30, 2010 pursuant to an
outstanding RSU grant.
|
(14)
|
RSUs
granted to Mr. Marshall in connection with his service as a director of
the Company were assigned to funds affiliated with Technology Crossover
Ventures. See Note 3.
|
(15)
|
Does
not include 175,000 shares that are to vest after May 30, 2010 pursuant to
an outstanding RSU grant.
|
(16)
|
Consists
of 14,835 shares owned by Mr. Broitman. Does not include 55,833
shares that are to vest after May 30, 2010 pursuant to outstanding RSU
grants.
|
(17)
|
Each
of Messrs. Clarke, Ashman, Morrow and Elkes ceased to be employees of the
Company in 2009. As of March 31, 2010, no such individual held
any outstanding options or RSUs from the Company and the Company does not
have a reasonable basis of estimating how many shares, if any, of the
Company’s common stock were beneficially owned as of March 31, 2010 by
such individual (or, in the case of Mr. Morrow, who died in February 2010,
by his estate, if any).
|
|
(1)
|
net
earnings or net income (before or after
taxes);
|
|
(2)
|
earnings
per share;
|
|
(3)
|
net
sales or revenue growth;
|
|
(4)
|
gross
revenues (and/or gross revenue growth) and/or mix of revenues among the
Company’s business activities;
|
|
(5)
|
net
operating profit (or reduction in operating
loss);
|
|
(6)
|
return
measures (including, but not limited to, return on assets, capital,
invested capital, equity, sales, or
revenue);
|
|
(7)
|
cash
flow (including, but not limited to, operating cash flow, free cash flow,
cash flow return on equity, and cash flow return on
investment);
|
|
(8)
|
earnings
before or after taxes, interest, depreciation, and/or
amortization;
|
|
(9)
|
gross
or operating margins;
|
|
(10)
|
productivity
ratios (and/or such ratios as compared to various stock market
indices);
|
|
(11)
|
stock
price (including, but not limited to, growth measures and total
shareholder return);
|
|
(12)
|
stock
price and market capitalization ratios (including, but not limited to,
price-to-earnings ratio and enterprise
multiple);
|
|
(13)
|
expense
targets;
|
|
(14)
|
margins;
|
|
(15)
|
operating
efficiency;
|
|
(16)
|
market
share;
|
|
(17)
|
customer
satisfaction;
|
|
(18)
|
employee
satisfaction or retention;
|
|
(19)
|
development
and implementation of employee or executive development programs
(including, but not limited to, succession
programs);
|
|
(20)
|
working
capital targets;
|
|
(21)
|
economic
value added or EVA®
(net operating profit after tax minus the sum of capital multiplied
by the cost of capital);
|
|
(22)
|
market
value added;
|
|
(23)
|
debt
to equity ratio;
|
|
(24)
|
strategic
business goals relating to acquisitions, divestitures and joint
ventures;
|
|
(25)
|
business
goals relating to web sites operated by the
Company;
|
|
(26)
|
business
goals relating to advertising on Company web sites;
and
|
|
(27)
|
business
goals relating to subscriptions to Company products and
services.
|
Plan Category
|
Number Of Securities
To Be Issued Upon
Exercise Of
Outstanding
Options, Warrants
And Rights
(a)
|
Weighted Average
Exercise Price Of
Outstanding
Options,
Warrants And
Rights
(b)
|
Number Of Securities
Remaining Available
For
Issuance Under Equity
Compensation Plans
(Excluding Securities
Reflected In Column (a))
(c)
|
|||||||||
Equity
compensation plans approved by stockholders
|
2,670,220 |
(1)
|
$ | 2.12 |
(2)
|
964,614 |
(3)
|
|||||
Equity
compensation plans not approved by stockholders
|
— | — | — | |||||||||
Total
|
2,670,220 |
(1)
|
$ | 2.12 |
(2)
|
964,614 |
(3)
|
(1)
|
Includes
714,030 shares subject to outstanding stock options and 1,956,190 shares
subject to outstanding RSU awards.
|
(2)
|
The
weighted average exercise price does not take RSU awards into account
because such awards have no exercise
price.
|
(3)
|
These
shares are available for issuance under the 2007 Plan (which includes
unused shares rolled into that plan from the 1998 Stock Incentive Plan).
The 2007 Plan provides for the issuance of shares pursuant to grants of
stock options, stock appreciation rights, restricted stock, RSUs and other
stock-based awards.
|
2009
|
2008
|
|||||||
KPMG LLP
|
Marcum &
Kliegman LLP
|
|||||||
Audit
fees
|
$ | 460,000 | $ | 335,000 | ||||
Audit-related
fees
|
515,000 | 91,611 | ||||||
Tax
fees
|
60,000 | — | ||||||
All
other fees
|
7,478 | 33,822 | ||||||
Total
Fees
|
$ | 1,042,478 | $ | 460,444 |
SECTION
1
|
Compensation
Philosophy and Purpose
|
SECTION
2
|
Types
of Awards
|
SECTION
3
|
Administration
|
|
(1)
|
Net
earnings or net income (before or after
taxes);
|
|
(2)
|
Earnings
per share;
|
|
(3)
|
Net
sales or revenue growth;
|
|
(4)
|
Gross
revenues (and/or gross revenue growth) and/or mix of revenues among the
Company’s business activities;
|
|
(5)
|
Net
operating profit (or reduction in operating
loss);
|
|
(6)
|
Return
measures (including, but not limited to, return on assets, capital,
invested capital, equity, sales, or
revenue);
|
|
(7)
|
Cash
flow (including, but not limited to, operating cash flow, free cash flow,
cash flow return on equity, and cash flow return on
investment);
|
|
(8)
|
Earnings
before or after taxes, interest, depreciation, and/or
amortization;
|
|
(9)
|
Gross
or operating margins;
|
|
(10)
|
Productivity
ratios (and/or such ratios as compared to various stock market
indices);
|
|
(11)
|
Stock
price (including, but not limited to, growth measures and total
shareholder return);
|
|
(12)
|
Stock
price and market capitalization ratios (including, but not limited to,
price-to-earnings ratio and enterprise
multiple)
|
|
(13)
|
Expense
targets;
|
|
(14)
|
Margins;
|
|
(15)
|
Operating
efficiency;
|
|
(16)
|
Market
share;
|
|
(17)
|
Customer
satisfaction;
|
|
(18)
|
Employee
satisfaction or retention;
|
|
(19)
|
Development
and implementation of employee or executive development programs
(including, but not limited to, succession
programs);
|
|
(20)
|
Working
capital targets;
|
|
(21)
|
Economic
value added or EVA®
(net operating profit after tax minus the sum of capital multiplied
by the cost of capital);
|
|
(22)
|
Market
value added;
|
|
(23)
|
Debt
to equity ratio;
|
|
(24)
|
Strategic
business goals relating to acquisitions, divestitures and joint
ventures;
|
|
(25)
|
Business
goals relating to web sites operated by the Company or a Related
Company;
|
|
(26)
|
Business
goals relating to advertising on the Company or a Related Company’s web
sites; and
|
|
(27)
|
Business
goals relating to subscriptions to the Company or a Related Company’s
products and services.
|
SECTION
4
|
Stock
Subject to Plan
|
SECTION
5
|
Eligibility
|
SECTION
6
|
Stock
Options
|
SECTION
7
|
Stock
Appreciation Rights
|
SECTION
8
|
Restricted
Stock
|
SECTION
9
|
Restricted
Stock Units
|
SECTION
10
|
Other
Stock-Based Awards
|
SECTION
11
|
Cash
Awards
|
SECTION
12
|
Tax
Withholding
|
SECTION
13
|
Beneficiary
of Award Holder
|
SECTION
14
|
Amendments
and Termination
|
SECTION
15
|
Change
of Control
|
SECTION
16
|
General
Provisions
|
The
Board of Directors recommends that you vote FOR the
following:
|
FOR ALL
NOMINEES
|
FOR ALL EXCEPT
(See instructions
below)
|
WITHHOLD
AUTHORITY FOR
ALL NOMINEES
|
||
1.
|
Election
of Class II Directors
|
¨
|
¨
|
¨
|
|
Nominees:
|
m William
R. Gruver
|
||||
m Daryl
Otte
|
|||||
INSTRUCTION:
To withhold authority for any individual nominee(s), mark “FOR ALL
EXCEPT”
and fill in the
circle next to each nominee you with to withhold, as shown
here: ·
|
|||||
The
Board of Directors recommends that you vote FOR the following
proposal:
|
|||||
FOR
|
AGAINST
|
ABSTAIN
|
|||
2.
|
The
proposal to amend and restate the Company’s 2007 Performance Incentive
Plan.
|
¨
|
¨
|
¨
|
|
The
Board of Directors recommends that you vote FOR the following
proposal:
|
|||||
FOR
|
AGAINST
|
ABSTAIN
|
|||
3.
|
The
proposal to ratify the appointment of KPMG LLP as the Company's
independent registered public accounting firm for the fiscal year ending
December 31, 2010.
|
¨
|
¨
|
¨
|
To
change the address on your account, please check the box at right and
indicate your new address in the adjacent address space. Please
note that changes to the registered name(s) on the account may not be
submitted via this method.
|
¨
|
Signature of Stockholder
|
Date:
|
||||||
Note:
|
Please
sign exactly as your name or names appear on this Proxy. When
shares are held jointly, each holder should sign. When signing
as executor, administrator, attorney, trustee or guardian, please give
full title as such. If the signer is a corporation, please sign
full corporate name by duly authorized officer, giving full title as
such. If signer is a partnership, please sign in partnership
name by authorized person.
|