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0-25779
(Commission
File Number)
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06-1515824
(IRS
Employer Identification No.)
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(i)
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provided
that Vendor performs the applicable services during the extended term of
the Services Agreement, the aggregate payments due to Vendor in 2009 will
exceed $200,000 (and this figure is expected to exceed 5% of Vendor’s
consolidated gross revenues for
2009);
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(ii)
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in
light of the foregoing, if Dr. Peretz were to be deemed a “controlling
Shareholder” of Vendor as such term is used in Rule 5605(a)(2)(D) of the
Nasdaq Stock Market Rules –
Equity Rules – Nasdaq Listing Rules (collectively the “Rules” and each
individually a “Rule”), then Dr. Peretz would be deemed no longer
to be an “Independent Director” within the meaning of Rule
5605(a)(2);
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(iii)
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in
the event that Dr. Peretz were deemed no longer to be an “Independent
Director” within the meaning of Rule 5605(a)(2), the Company would no
longer be in compliance with Rule 5605(b)(1) (requiring that “[a] majority
of the board of directors must be comprised of Independent
Directors”);
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(iv)
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the
Company (a) does not believe that Dr. Peretz and his Family Members (as
defined in Rule 5605(a)(2)) directly and indirectly control, in the
aggregate, a majority of the total combined voting power of the securities
of Vendor having the right to vote at an election of the board of
directors of Vendor; and (b) does not believe that Dr. Peretz controls the
actions of board of directors of
Vendor;
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(v)
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at
the request of the duly authorized executive officers of the Company, the
Services Agreement, and amendments thereto, each were approved by the
Audit Committee of the Company’s Board of Directors (the “Audit
Committee”), of which Dr. Peretz is not a member, in advance of the
Company’s execution thereof, which approval was given with knowledge that
Dr. Peretz and his Family Members had a direct and indirect beneficial
ownership interest in Vendor;
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(vi)
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Dr.
Peretz did not have the authority to prevent the Company’s duly authorized
executive officers from requesting the Audit Committee to approve the
execution of the Services Agreement or the amendments thereto; and did not
participate in, or have the authority to prevent, the Audit Committee from
approving the execution of such
documents;
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(vii)
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without
conceding that Dr. Peretz should be deemed to be a “controlling
Shareholder” of Vendor as such term is used in Rule 5605(a)(2)(D), and
therefore no longer an “Independent Director” within the meaning of Rule
5605(a)(2), the Company has represented to Nasdaq that the Company’s
decision to execute each of the Services Agreement and the amendments
thereto was beyond the reasonable control of Dr.
Peretz;
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(viii)
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as
a result, the Company believes that if it is not in compliance with Rule
5605(b)(1) as a result of the above circumstances, Rule 5605(b)(1)(A)
provides that the Company shall have the opportunity to regain compliance
with Rule 5605(b)(1) by the earlier of its next annual shareholders
meeting or July 13, 2010; and
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(ix)
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the
Company anticipates that it will regain compliance with Rule 5605(b)(1)
(to the extent it is not currently in compliance with such Rule) well in
advance of such date, mostly likely through the appointment of one or more
directors who will be “Independent Directors” within the meaning of Rule
5605(a)(2).
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THESTREET.COM,
INC. (Registrant)
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Date:
July 17, 2009
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By:
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/s/ Gregory Barton | |
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Gregory
Barton
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| Executive Vice President, Business and Legal Affairs, General Counsel & Secretary | |||