UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

 

Washington, D.C. 20549

 

SCHEDULE 14A

(Rule 14a-101)

 

INFORMATION REQUIRED IN PROXY STATEMENT

 

SCHEDULE 14A INFORMATION

 

Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934

 

Filed by the Registrant x

Filed by a Party other than the Registrant ¨

 

Check the appropriate box:

 

¨

Preliminary Proxy Statement

¨

Confidential, for use of the Commission Only (as permitted by Rule 14a-6(e)(2))

¨

Definitive Proxy Statement

x

Definitive Additional Materials

¨

Soliciting Material Pursuant to §240.14a-12

 

TheStreet, Inc.

(Name of Registrant as Specified in its Charter)

 

(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)

 

Payment of Filing Fee (Check the appropriate box):

 

x

No fee required.

¨

Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.

 

(1)

Title of each class of securities to which transaction applies: N/A

(2)

Aggregate number of securities to which transaction applies: N/A

(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): N/A

(4)

Proposed maximum aggregate value of transaction: N/A

(5)

Total fee paid: N/A

 

¨

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 date of its filing.

 

(1)

Amount Previously Paid: N/A

(2)

Form, Schedule or Registration Statement No.: N/A

(3)

Filing Party: N/A

(4)

Date Filed: N/A

 

 

 

 

SUPPLEMENT TO PROXY STATEMENT DATED APRIL 29, 2016

 

May 4, 2016

 

This Supplement to Proxy Statement Dated April 29, 2016 (this “Supplement”), supplements the definitive Proxy Statement, dated April 29, 2016, filed on Schedule 14A (the “Proxy Statement”) by TheStreet, Inc. (the “Company”) with the U.S. Securities and Exchange Commission (the “SEC”) and previously made available to our stockholders in connection with our 2016 Annual Meeting.

 

Purpose

 

The purpose of this Supplement is to provide (i) information contained in Annex I to this Supplement relating to our board of directors (the “Board”), our Interim President and Chief Executive Officer and our Chief Financial Officer, each of whom may be deemed to be “participants” in the solicitation of proxies with respect to our 2016 Annual Meeting under the rules and regulations of the SEC, and (ii) background information as to the reason we are providing this information. The members of our Board are referred to in this Supplement as the “Director Participants” and our Interim President and Chief Executive Officer and Chief Financial Officer are referred to in this Supplement as the “Officer Participants”. The Director Participants and the Officer Participants are collectively referred to in this Supplement as the “Company Participants”. The information in this Supplement regarding the Company Participants is in addition to the information contained in the Proxy Statement.

 

Background

 

The Company received a letter dated March 10, 2016 from a group of stockholders purportedly nominating two individuals for election as directors at our 2016 Annual Meeting. The stockholder group is comprised of Spear Point Capital Fund LP, Spear Point Condor LP, FiveMore Special Situations Fund Ltd and FiveT Investment Management Ltd (collectively, the “Stockholders”) and Spear Point Capital Management LLC.

 

By letter dated April 15, 2016 from the Chair of the Nominating and Corporate Governance Committee addressed to Spear Point Capital Fund LP and Spear Point Condor LP, the Company notified them that the Stockholders’ purported director nomination notice did not comply with the “advance notice provisions” in the Company’s bylaws, which provisions specify when stockholder nominations for an annual meeting of stockholders may be validly made. Among other things, our advance notice provisions, which are in line with best practices for publicly listed companies and, we believe, are compliant with Delaware law, require that stockholders seeking to nominate directors to stand for election at the Company’s annual meetings be “stockholders of record” – that is, the shares must registered with the Company directly in the name of the nominating stockholder. Because the Stockholders were not stockholders of record on the date they purportedly gave notice of their director nominations, their notice was defective and could not be cured since the advance notice period had closed on March 13, 2016.

 

 

 

 

The Company did not receive any written communication from the Stockholder group with respect to the deficiencies noted in its April 15, 2016 letter until after the Company had filed with the SEC its Proxy Statement for the 2016 Annual Meeting on April 29, 2016.

 

In a letter dated April 29, 2016 from Spear Point Capital Management LLC, the Stockholders made three assertions: first, they claim that the advance notice provisions are “extensive and burdensome”; second, they claim that the defect was subsequently cured; and third, they demand that Company should waive the defect and allow their nominations to proceed at the 2016 Annual Meeting.

 

On May 2, 2016, Spear Point Capital Management LLC sent another letter to the Board in which it stated that the Stockholders were stockholders of record as of the record date for the 2016 Annual Meeting and provided additional information about the Stockholders that were required by the Company’s bylaws. The letter asserted that the Stockholders had until 10 days after the April 18, 2016 record date for the Annual Meeting to provide supplemental information regarding their stock ownership and that they could not provide the information by April 28, 2016 because the record date was first disclosed in the Proxy Statement filed on April 29, 2016.

 

After reviewing these two letters and consulting with outside counsel, the Company’s position remains unchanged in the face of these assertions. Since the Stockholders were not stockholders of record either on the date they purportedly gave notice to the Company of their nomination or on the last date on which a nomination could be made for the 2016 Annual Meeting, as expressly required by the Company’s bylaws, the Nominating and Corporate Governance Committee properly determined that the Stockholders’ candidates could not qualify as nominees and that such defect could not be cured. The fact that the Stockholders were stockholders as of the record date for the Annual Meeting does not override the separate express bylaw requirement that they be stockholders of record on the date they purportedly gave notice of their nomination or on the last date on which a nomination could be made.

 

Notably, the Stockholders, as reported in their filings with the SEC, have beneficially owned shares in the Company for some time and therefore had plenty of time to comply with our advance notice provisions and failed to do so. Indeed, only on the day after the advance notice period expired did the Stockholders make a request to the Company’s transfer agent to have their shares registered in their name.

 

Moreover, the Board continues to believe that its nominees, Larry Kramer and Keith Hall, both of whom are standing for re-election, remain the best candidates for the Board seats as the Company continues a strategic transformation process aimed at delivering long-term growth to all of its stockholders. Prior to nominating Messrs. Kramer and Hall and notwithstanding the defect in the notice from the Stockholders, the Board carefully considered the two additional board candidates proposed by the Stockholders. The Board ultimately determined that these candidates did not possess the combination of attributes sought by the Nomination and Governance Committee, as informed by the Board’s policy governing director qualifications and nominations, in evaluating a potential director candidate’s ability to make a meaningful contribution to the Board’s oversight of the business and affairs of the Company.

 

 

 

 

Despite our view that the Stockholders may not lawfully nominate any candidates to our Board at our 2016 Annual Meeting, it is apparent based on both letters we received from Spear Point Capital Management LLC after we filed our Proxy Statement with the SEC that the Stockholders may seek to attempt to solicit proxies in furtherance of their desire to elect to our Board their candidates. Accordingly, the individuals comprising the Company Participants may be deemed “participants” in the solicitation of proxies in opposition to such effort.

 

ADDITIONAL INFORMATION AND WHERE TO FIND IT

 

The Company has filed a definitive proxy statement with the SEC with respect to the 2016 Annual Meeting. COMPANY STOCKHOLDERS ARE STRONGLY ENCOURAGED TO READ THE DEFINITIVE PROXY STATEMENT (INCLUDING ANY AMENDMENTS AND SUPPLEMENTS), THE ACCOMPANYING PROXY CARD AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION.

 

The Company, the Board, our Interim President and Chief Executive Officer and our Chief Financial Offer may be deemed to be participants in the solicitation of proxies from Company stockholders in connection with the matters to be considered at the 2016 Annual Meeting. Information about the Company’s directors, Interim President and Chief Executive Officer and Chief Financial Officer is available in the Company’s definitive proxy statement, filed with the SEC on April 29, 2016, for its 2016 Annual Meeting. To the extent holdings of the Company’s securities by such directors or executive officers have changed since the amounts printed in the proxy statement, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Information regarding the identity of other potential participants, if any, and their direct or indirect interests, by security holdings or otherwise, will be updated in other materials to be filed with the SEC in connection with the Company’s 2016 Annual Meeting. Stockholders will be able to obtain the Proxy Statement, any amendments or supplements to the Proxy Statement and other documents filed by the Company with the SEC free of charge at the SEC’s website at www.sec.gov.

 

Except as described herein, this Supplement does not modify, amend, supplement or otherwise affect any matter presented for consideration in the Proxy Statement, the information in the Proxy Statement continues to apply, and this Supplement should be read in conjunction with the Proxy Statement. To the extent the information in this Appendix I differs from, updates or conflicts with the information contained in the Proxy Statement, the supplemental information in this Supplement is more current. If you need another copy of the Proxy Statement or if you have any questions, please contact Morrow & Co., our proxy solicitor assisting us in connection with the Annual Meeting. Stockholders may call toll free at (800) 662-5200.

 

 

APPENDIX I

 

ADDITIONAL INFORMATION REGARDING PARTICIPANTS IN THE SOLICITATION

 

Under applicable SEC rules and regulations, members of the Board of Directors, our Interim President and Chief Executive Officer and our Chief Financial Officer may be “participants” with respect to the Company’s solicitation of proxies in connection with the 2016 Annual Meeting. The following sets forth certain information about these persons.

 

1. Directors

 

The following table sets forth the names and business addresses of the Director Participants, as well as the names and principal business addresses of the corporation or other organization in which the principal occupations or employment of the Director Participants is carried on. The principal occupations or employment of the Director Participants are set forth under the heading “Proposal 1 Election of Directors” in the Proxy Statement.

 

Name		Business Name and Address
James J. Cramer		TheStreet, Inc., 14 Wall Street, 15th Floor, New York, NY 10005
Bowers Espy		9315 South Highway A1A Melbourne Beach, FL 32951
Sarah Fay		Glasswing Ventures 5 Gorham Avenue Brookline, MA  02445
Keith Hall		J.C. Hall & Associates 17204 Connor Quay Court Cornelius, NC 28031
Larry S. Kramer		TheStreet, Inc., 14 Wall Street, 15th Floor, New York, NY 10005
Stephen Zacharias		Transact Capital Partners 7400 Beaufont Springs Dr., Suite 105 Richmond, VA  23225

 

2. Certain Officers

 

The following table sets forth the name and principal occupation of the Officer Participants. The principal occupation refers to such person’s position with the Company, and the principal business address of each such person is TheStreet, Inc., 14 Wall Street, 15th Floor, New York, NY 10005.

 

Name		Principal Occupation
Larry S. Kramer		Interim President and Chief Executive Officer
Eric Lundberg		Chief Financial Officer

 

 

3. Information Regarding Ownership of the Company’s Securities by Company Participants

 

Except as described in this Appendix I or in the Proxy Statement, none of the persons listed above under “Directors” or “Certain Officers” owns any Company securities of record that they do not own beneficially. The number of Company securities beneficially owned by directors and Mr. Larry Kramer as of April 18, 2016 is set forth under the heading “Security Ownership of Certain Beneficial Owners and Management” in the Proxy Statement. The number of Company securities beneficially owned by Eric Lundberg as of April 18, 2016 is set forth below.

 

Name		Company Securities Owned
Eric Lundberg (1)		9,778

 

(1) Includes shares which Mr. Lundberg had a right to acquire beneficial ownership of within 60 days from April 18, 2016, through the exercise of stock options or through the conversion of RSUs.

 

4. Information Regarding Transactions in the Company's Securities by Company Participants

 

The following table sets forth purchases and sales of the Company’s securities during the past two years by the Company Participants. None of the purchase price or market value of the securities listed below is represented by funds borrowed or otherwise obtained for the purpose of acquiring or holding such securities.

 

Name		Date		Number of Shares Acquired or Disposed of		Transaction Description
James J. Cramer		12/31/2014		340,807		RSU vested (175,754 shares withheld to cover taxes)
		12/31/2014		33,010		Open market sale
		1/2/2015		33,010		Open market sale
		1/5/2015		33,010		Open market sale
		1/6/2015		33,010		Open market sale
		1/7/2015		33,013		Open market sale
		11/6/2015		42,117		Open market purchase
		11/9/2015		57,883		Open market purchase
		12/31/2015		340,807		RSU vested (90,807 shares withheld to cover taxes)
		3/11/2016		5,400		Open market purchase

 

Name		Date		Number of Shares Acquired or Disposed of		Transaction Description
Bowers Espy		1/22/2016		4,714		Option grant
		1/22/2016		41,283		RSU award

 

 

Name		Date		Number of Shares Acquired or Disposed of		Transaction Description
Sarah Fay		11/7/2014		11,750		Open market purchase
		1/2/2015		15,000		Option grant
		1/2/2015		26,087		RSU award
		1/2/2015		26,906		RSU vested
		11/12/2015		15,400		Open market purchase
		1/2/2016		26,087		RSU granted on 1/2/2015 vested
		1/4/2016		10,000		Option grant
		1/4/2016		40,817		RSU award
		3/2/2016		12,260		Open market purchase

 

Name		Date		Number of Shares Acquired or Disposed of		Transaction Description
Keith Hall		5/22/2014		765		Option exercise
		1/2/2015		5,000		Option grant
		1/2/2015		26,087		RSU award
		1/2/2015		26,906		RSU vested
		1/2/2016		26,087		RSU granted on 1/2/2015 vested
		1/4/2016		5,000		Option grant
		1/4/2016		40,817		RSU award
		3/2/2016		4,290		Option grant

 

Name		Date		Number of Shares Acquired or Disposed of		Transaction Description
Larry S. Kramer *		10/3/2015		2,466		Option grant
		10/3/2015		8,652		RSU award
		11/6/2015		7,550		Open market purchase
		11/9/2015		10,300		Open market purchase
		11/10/2015		10,600		Open market purchase
		11/11/2015		13,100		Open market purchase
		11/12/2015		10,230		Open market purchase
		11/13/2015		7,941		Open market purchase
		11/16/2015		14,295		Open market purchase
		11/17/2015		16,500		Open market purchase
		11/18/2015		6,300		Open market purchase
		11/19/2015		3,184		Open market purchase
		1/2/2016		8,652		RSU vested
		1/4/2016		10,000		Option grant
		1/4/2016		68,028		RSU award
		3/11/2016		58,600		Open market purchase
		3/14/2016		5,600		Open market purchase
		3/15/2016		21,555		Open market purchase
		3/17/2016		27,380		Open market purchase
		3/18/2016		33,052		Open market purchase
		3/21/2016		12,100		Open market purchase
		3/22/2016		20,620		Open market purchase
		3/23/2016		21,393		Open market purchase
		4/1/2016		500,000		Option grant

 

*	Open market purchases were made by the Lawrence Kramer and Myla Lerner Revocable Trust.

 

 

Name		Date		Number of Shares Acquired or Disposed of		Transaction Description
Stephen Zacharias		6/11/2015		2,795		Option grant
		6/11/2015		17,376		RSU award
		11/6/2015		19,000		Open market purchase
		11/9/2015		16,000		Open market purchase
		12/9/2015		315		Option grant
		1/2/2016		17,376		RSU vested
		1/4/2016		10,000		Option grant
		1/4/2016		40,817		RSU award
		3/11/2016		20,000		Open market purchase
		3/14/2016		20,000		Open market purchase

 

Name		Date		Number of Shares Acquired or Disposed of		Transaction Description
Eric Lundberg		1/19/2016		650,000		Option grant
		3/11/2016		3,678		Open market purchase
		3/14/2016		800		Open market purchase
		3/21/2016		5,300		Open market purchase

 

5. Miscellaneous Information Concerning Company Participants

 

Except as described in this Appendix I or in the Proxy Statement, neither any Company Participant nor any of their respective associates or affiliates (together, the “Participant Affiliates”) is either a party to any transaction or series of transactions since January 1, 2015 or has knowledge of any current proposed transaction or series of proposed transactions (i) to which the Company or any of its subsidiaries was or is to be a participant, (ii) in which the amount involved exceeds $120,000 and (iii) in which any participant or Participant Affiliate had, or will have, a direct or indirect material interest. Furthermore, except as described in this Appendix I or in the Proxy Statement, (a) no participant or Participant Affiliate, directly or indirectly, beneficially owns any securities of the Company or any securities of any subsidiary of the Company, and (b) no participant owns any securities of the Company of record but not beneficially.

 

Except as described in this Appendix I or in the Proxy Statement, no Company Participant or Participant Affiliate has entered into any agreement or understanding with any person with respect to any future employment by the Company or any of its affiliates or any future transactions to which the Company or any of its affiliates will or may be a party.

 

 

Except as described in this Appendix I or in the Proxy Statement, there are no contracts, arrangements or understandings by any Company Participant or Participant Affiliate since January 1, 2015 with any person with respect to any securities of the Company, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits, or the giving or withholding of proxies.

 

Except as described in this Appendix I or in the Proxy Statement, and excluding any director or executive officer of the Company acting solely in that capacity, no person who is a party to an arrangement or understanding pursuant to which a nominee for election as director is proposed to be elected has any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon at the 2016 Annual Meeting.