UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No.     )*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

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Item 1.                                 Security and Issuer

 

This statement relates to the common stock, par value $.01 per share (the “Common Stock”), of TheStreet, Inc., a Delaware corporation (the “Issuer”), having its principal executive offices at 14 Wall Street, 15th Floor, New York, NY, 10005.

 

Item 2.                                 Identity and Background

 

(a), (b), (c) & (f)

 

This statement is filed jointly by a group consisting of (i) Spear Point Capital Management LLC, a Delaware limited liability company, Spear Point Capital Partners LLC, a Delaware limited liability company, Spear Point Capital Fund LP, a Delaware limited partnership, Spear Point Condor LP, a Delaware limited partnership, Rodney A. Bienvenu, Jr., Trevor L. Colhoun, and Ernest C. Mysogland (collectively, the “Spear Point Reporting Persons”), and (ii) FiveMore Special Situations Fund Ltd, a Cayman limited liability company, FiveT Investment Management Ltd, a Cayman limited liability company, and FiveT Capital AG, a Swiss self- regulated limited liability company (collectively, the “FiveMore Reporting Persons”).  The Spear Point Reporting Persons and the FiveMore Reporting Persons are referred to herein collectively as the “Reporting Persons.”

 

The principal business of FiveMore Special Situations Fund Ltd and FiveT Investment Management Ltd is to serve as a vehicle for investments in the equity capital markets including investing in special situation strategies.  The principal address of FiveMore Special Situations Fund Ltd is c/o M&C Corporate Services, P.O Box 309 GT, Ugland House, South Churge Street, George Town, Grand Cayman, Cayman Islands 309 GT.  The principal address of FiveT Investment Management Ltd is c/o DMS Corporate Services Ltd, dms House, 20 Genesis Close, 2nd Floor, P.O Box 1344, Grand Cayman, KY1-1108, Cayman Islands.

 

DMS Fund Governance Ltd (thereafter “DFG”) is Director of the FiveMore Special Situations Fund Ltd and Mr. Aldo Ghisletta is the Director of DFG with the primary responsibility for the FiveMore Special Situations Fund Ltd. Mr. Aldo Ghisletta is also serving as Director of FiveT Investment Management Ltd. DFG is a company licensed and regulated by the Cayman Islands Monetary Authority. Mr. Ghisletta is a citizen of Switzerland.

 

FiveT Capital AG is investment advisor to FiveMore Special Situations Fund Ltd and FiveT Investment Management Ltd.  The principal business address of FiveT Capital AG is Allmendstrasse 140, 8041 Zurich, Switzerland. Mr. Wieland M. Kreuder is director of FiveT Capital AG.  Mr. Kreuder is a citizen of Germany. Mr. Johannes M. Roth is the CEO of FiveT Capital AG.  Mr. Roth is a citizen of Germany.

 

Spear Point Capital Management LLC provides management services to Spear Point Capital Fund LP and Spear Point Condor LP.  Spear Point Capital Partners LLC serves as the general partner of Spear Point Capital Fund LP and Spear Point Condor LP.  Spear Point Capital Fund LP and Spear Point Condor LP invest their respective assets primarily in equity securities of small-cap and micro-cap companies whose value may be enhanced by the application of activist investment principles and methods.  The address of the principal business and principal offices of Spear Point Capital Management LLC, Spear Point Capital Partners LLC, Spear Point Capital Fund LP and Spear Point Condor LP (collectively, “Spear Point”) is 400 Poydras, New Orleans, LA 70130. 

 

Each of Rodney A. Bienvenu, Jr., Trevor L. Colhoun and Ernest C. Mysogland (the “Spear Point Principals”) are the members of Spear Point Capital Management LLC and Spear Point Capital Partners LLC.

 

Rodney A. Bienvenu, Jr. is a United States citizen whose business address is 400 Poydras, New Orleans, LA 70130. Mr. Bienvenu’s principal occupation is serving as a member of Spear Point Capital Management LLC and Spear Point Capital Partners LLC as well as serving as a member of private entities with investments in technology businesses.

 

Trevor L. Colhoun is a United States citizen whose business address is 400 Poydras, New Orleans, LA 70130. Mr. Colhoun’s principal occupation is serving as a member of Spear Point Capital Management LLC and Spear Point Capital Partners LLC as well as serving as a partner in private entities with private equity and real estate investments.

 

Ernest C. Mysogland is a United States citizen whose business address is 191 Post Road West, Westport, CT 06880. Mr. Mysogland’s principal occupation is serving as a member of Spear Point Capital Management LLC and Spear Point Capital Partners LLC as well as serving as a director and officer of private entities engaged in technology businesses.

 

(d) & (e)

 

During the last five years, none of the Reporting Persons nor, to the knowledge of any Reporting Person, any general partner, managing member, director or executive officer of any other Reporting Person, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) a party to a civil proceeding of a judicial or administrative body resulting in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violations with respect to such laws.

 

Item 3.                                 Source and Amount of Funds or Other Consideration

 

The net investment cost (including commissions, if any) of the shares of Common Stock purchased by Spear Point Capital Fund LP is approximately $1,279,589.  The net investment cost (including commissions, if any) of the shares of Common Stock purchased by Spear Point Condor LP is approximately $2,236,348.  The net investment cost (including commissions, if any) of the shares of Common Stock purchased by FiveT Investment Management Ltd is approximately $1,190,250.  The net investment cost (including commissions, if any) of the shares of Common Stock purchased by FiveMore Special Situations Fund Ltd is approximately $1,989,240.  The shares of Common Stock purchased by Spear Point Capital Fund LP, Spear Point Condor LP, FiveMore Special Situations Fund Ltd and FiveT Investment Management Ltd were purchased with such Reporting Person’s respective working capital.  All or part of the shares of Common Stock owned by the Reporting Persons may from time to time be pledged with one or more banking institutions or brokerage firms as collateral for loans made by such bank(s) or brokerage firm(s) to such Reporting Person.  Such loans bear interest at a rate based upon the broker's call rate from time to time in effect. Such indebtedness may be refinanced with other

 

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banks or broker-dealers.

 

Item 4.                                 Purpose of Transaction

 

The Reporting Persons originally acquired the Shares subject to this Schedule for investment purposes, in the Reporting Persons’ordinary course of business, and without any agreement with any third party to act together for the purpose of acquiring, holding, voting or disposing of equity securities of the Issuer.

 

Other than as set forth in this Item 4, the Reporting Persons may, from time to time, acquire or cause to acquire additional Shares or dispose or cause to dispose some or all of their Shares, engage in lending, short-selling or hedging or similar transactions with some or all of their Shares, or may continue to hold the Shares, depending on business and market conditions, their continuing evaluation of the business and prospects of the Issuer, general investment and trading policies of the Reporting Persons, and other factors, including changing their intention with respect to any or all matters referred to in this Item 4, except as may be prohibited by the Agreement (as defined below).

 

The last Annual Meeting of Stockholders of the Issuer was held on June 11, 2015 (the “2015 Annual Meeting”).  The Reporting Persons anticipate that the next Annual Meeting of Stockholders of the Issuer will be held in 2016 on a date near the first anniversary date of the 2015 Annual Meeting.  The Annual Meeting of Stockholders of the Issuer to be held in 2016, including any adjournments or postponements thereof, is referred to herein as the “Annual Meeting” and the date of the Annual Meeting is referred to herein as the “Annual Meeting Date.”

 

The Issuer’s Board of Directors (the “Board”) has been divided into three classes, denominated Class I, Class II and Class III.  Directors in each class hold office for staggered three-year terms. At each annual meeting of stockholders, the successors to the directors whose terms expire are elected to serve from the time of their election until the third annual meeting of stockholders following their election or until their successors are duly elected and qualified. The terms of the current Class II directors will expire at the Annual Meeting.  Currently, there is one incumbent Class II director, Mr. Keith Hall.  On February 22, 2016, Elisabeth DeMarse, resigned as the Issuer’s Chief Executive Officer and as a member of the Board.  Accordingly, there is a current vacancy in Class II. 

 

The Issuer has not yet filed a proxy statement (the “Issuer Proxy Statement”) with the Securities and Exchange Commission (“SEC”), with respect to the Annual Meeting, nor has the Board nominated candidates for election as Class II directors at the Annual Meeting.  While the Reporting Persons have no knowledge of the Board’s plans, the Reporting Persons anticipate that the Board may nominate the incumbent Class II director, Mr. Hall, to stand for re-election to the Board, along with another nominee to fill the director seat vacated by Ms. DeMarse’s departure.

 

A written agreement (the “Agreement”) was entered into on March 8, 2016 by Spear Point Capital Management LLC and FiveT Capital AG, thereby forming a group under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), consisting of the Spear Point Capital Management LLC, Spear Point Capital Partners, LLC, Spear Point Capital Fund LP, Spear Point Condor LP, FiveT Capital AG, FiveMore Special Situations Fund Ltd and FiveT Investment Management Ltd (collectively, the “Group”).  Pursuant to the rules of the SEC promulgated under the Exchange Act, the Group was deemed to have acquired beneficial ownership, for purposes of Sections 13(d) and 13(g) of the Exchange Act, of all equity securities of the Issuer beneficially owned by each member of the Group. None of the members of the Group purchased any additional Shares in connection with the Agreement. The description of the Agreement in this Schedule 13D is qualified in its entirety by reference to the full text of the Agreement, a copy of which is filed with this Schedule 13D as Exhibit 99.2. The members of the Group had discussions before March 8, 2016 regarding the actions contemplated by the matters described in this Item 4, but no agreement was reached among the parties as a result of such discussions, and no group was formed under the Exchange Act, until March 8, 2016.

 

Under the Agreement, the Group members agreed to nominate two Class II director candidates (the “Group Nominees”) to stand for election at the Annual Meeting.  The Group Nominees are currently expected to be a person recommended by FiveT Capital AG and a person recommended by the Spear Point Capital Management LLC.  In any event, the entire Group must approve of the individuals to become Group Nominees.  The Group intends to nominate individuals with knowledge and experience which would be beneficial to the Issuer, and who would qualify as independent directors under the Nasdaq listing standards.

 

Pursuant to the Issuer’s By-laws, in general, for nominations of persons for election to the Board to be timely, a stockholder must give notice to the Issuer not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of stockholders.  Accordingly, the Group plans to agree upon the Group Nominees and provide the Issuer with notice of its nominations no later than March 13, 2016.

 

Further, under the Agreement, each member of the Group has agreed to attend the Annual Meeting, in person or by proxy, such that all Shares held by such Group member and its affiliates are represented at the Annual Meeting, and to vote such Shares at the Annual Meeting, in person or by proxy, in favor of the election of the Group Nominees, and to vote in accordance with the mutual consent of the Group with respect to other proposals to be voted on at the Annual Meeting as may be set forth in the Issuer Proxy Statement.  The purpose of the Agreement is for the Group to affirmatively vote for the Group Nominees instead of different candidates as may be nominated by the Board.  If the Group Nominees receive the affirmative vote of a plurality of the Shares present in person or represented by proxy at the Annual Meeting, provided a quorum exists, the effect of the Agreement will be the election of the Group Nominees as Class II directors.  If the Group Nominees are elected directors, they will not constitute a majority of the Board. 

 

NEITHER THE AGREEMENT NOR THIS SCHEDULE 13D IS A SOLICITATION AND NO STOCKHOLDER OF THE ISSUER IS REQUESTED TO JOIN THE AGREEMENT OR THE GROUP. THE REPORTING PERSONS ARE NOT HEREBY SOLICITING, AND DO NOT INTEND TO SOLICIT, ANY STOCKHOLDER TO VOTE, WITHHOLD A VOTE, GRANT A PROXY WITH REGARD TO, OR IN ANY OTHER WAY TAKE ACTION WITH REGARD TO THE ELECTION OF DIRECTORS OR ANY OTHER MATTER TO BE VOTED UPON AT THE ANNUAL MEETING, PROVIDED THAT THE REPORTING PERSONS MAY DETERMINE TO ENGAGE IN SOLICITATION IN RELIANCE UPON RULE 14a-2(b)(2) UNDER THE EXCHANGE ACT, WHICH PERMITS NON-REGISTERED SOLICITATIONS UP TO TEN (10) STOCKHOLDERS TO BE MADE WITHOUT INCURRING PROXY FILING AND DISCLOSURE OBLIGATIONS.  The Reporting Persons do not intend to make any public statements regarding these matters or TO respond to inquiries by other stockholders

 

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regarding these matters except as permitted under applicable regulations. The Reporting Persons believe that all stockholders should make independent decisions regarding the election of directors and any other matter to be voted upon at the Annual Meeting.

 

Under the Agreement, each Group member has agreed:  not to sell, assign, transfer or otherwise dispose of (any such transaction being herein collectively called a “Transfer”), or to advise any of its affiliates to Transfer, all or any of the securities of the Issuer beneficially owned by it, unless as a condition to any such Transfer the transferee agrees to be bound by the terms and provisions of the Agreement; and to retain, and not in any way compromise or encumber, the right to vote all securities of the Issuer beneficially owned by such member as of the Record Date and the Annual Meeting Date.  In addition, if the Group acquires beneficial ownership of ten percent or more of the Common Stock or other registered class of equity securities of the Issuer, the Group members agree not to purchase or sell any equity security of the Issuer (within the meaning of Section 16(b) of the Exchange Act), without the prior consent of the other Group members.

 

Under the Agreement, each of the members of the Group has agreed to be responsible for an equal share of expenses which may be incurred in connection with, relating to or arising out of the matters or actions contemplated by the Agreement or this Schedule 13D, up to an aggregate of $50,000  per Group member, or such greater amount if the Group members consent to an increase.  Notwithstanding anything to the contrary, each Group member shall be fully responsible for all such expenses arising out of such member’s (or its affiliate’s) gross negligence, fraud, bad faith or willful misconduct.

 

As provided in the Agreement, the Group members have not solicited (within the meaning of the proxy solicitation rules under the Exchange Act (the “Rules”)) any persons to vote, withhold a vote, grant a proxy with regard to, revoke a proxy with regard to, or otherwise take or refrain from taking any action with respect to the election of directors of the Company or any other matter to be voted on at the Annual Meeting.  The Group members also agreed not engage in any solicitation with respect to the matters to be voted on at the Annual Meeting, without the consent of the other Group members.  If the Group members determine to engage in a solicitation, they agreed to do so in compliance with the Rules and agreed either to file such proxy statements as so required, or limit their solicitation to no more than ten persons and, therefore, fall within the exception to the Rules set forth in Rule 14a-2(b)(2) under the Exchange Act.  All Group members must agree before any third party will be invited to join or permitted to become a member of the Group.

 

The Agreement will terminate upon the earlier to occur of (x) the date which is five business days after the last day on which the Meeting is held, unless such date is extended by agreement of the parties, and (y) the date of the consummation of each of the actions specified in the Agreement with respect to which the Group will vote in favor at the Annual Meeting.

 

There are no contracts, arrangements, understandings or relationships (legal or otherwise) between any Reporting Person or any other persons with respect to any securities of the Issuer, except with respect to the transactions described in this Item 4.

 

Other than as set forth in this Item 4, none of the Reporting Persons have any current plans or proposals that relate to or would result in any of the matters referred to in paragraphs (a) through (j) of Item 4 of Schedule 13D.  Previously, each of the FiveMore Reporting Persons and the Spear Point Reporting Persons separately held, at different times, more than 5% of the Common Stock and filed separate Schedules 13D (on December 21, 2011 and July 2, 2015, respectively) with respect thereto.  Subsequently, the holdings of each of the FiveMore Reporting Persons and the Spear Point Reporting Persons were reduced below 5% of the Common Stock and such prior Schedules 13D have been terminated.  To the knowledge of the Reporting Persons, no plans or proposals which may have been described in such prior Schedules 13D were adopted by the Issuer.  No such plans or proposals are currently pending.

 

Each Reporting Person provided only the information as to itself and its affiliates and did not independently verify the information contained in this Schedule 13D provided by any other Reporting Person.

 

Item 5.                                 Interest in Securities of the Issuer

 

(a) and (b)

 

As of the date hereof, the Reporting Persons beneficially own an aggregate of 3,440,384 shares of Common Stock, representing 9.87% of the outstanding shares of Common Stock.  Such percentages were determined based on a total of 34,870,290 shares of Common Stock outstanding as of November 3, 2015, as reported by the Issuer on its most recent Quarterly Report on Form 10-Q, filed November 5, 2015.

 

Spear Point Capital Fund LP beneficially owns, and has voting power and disposition power over, 572,582 shares of Common Stock, representing an aggregate of 1.64% of the outstanding shares of Common Stock.  Spear Point Condor LP beneficially owns, and has voting power and disposition power over, 1,167,802 shares of Common Stock, representing an aggregate of 3.35% of the outstanding shares of Common Stock.  Neither Spear Point Capital Fund LP nor Spear Point Condor LP has any beneficial ownership of any shares of Common Stock owned by any other Reporting Person.

 

None of Spear Point Capital Management LLC, Spear Point Capital Partners LLC, or Messrs. Bienvenu, Colhoun and Mysogland own any shares of Common Stock of the Issuer directly.  By virtue of the relationships described under Item 2 of this Schedule 13D, Spear Point Capital Management LLC may be deemed to have shared voting and disposition power with respect to, and therefore, indirect beneficial ownership of, the aggregate of 1,740,384 shares of Common Stock beneficially owned by Spear Point Capital Fund LP and Spear Point Condor LP, representing an aggregate of 4.99% of the outstanding shares of Common Stock.  As general partner of Spear Point Capital Fund LP and Spear Point Condor LP, Spear Point Capital Partners LLC has voting and disposition power over, and therefore, beneficial ownership of, the aggregate of 1,740,384  shares of Common Stock beneficially owned by Spear Point Capital Fund LP and Spear Point Condor LP, representing an aggregate of 4.99% of the outstanding shares of Common Stock.  By virtue of the relationships described under Item 2 of this Schedule 13D, each of Messrs. Bienvenu, Colhoun and Mysogland may be deemed to have shared voting and disposition power with respect to, and therefore, indirect beneficial ownership of, the aggregate 1,740,384 shares of Common Stock beneficially owned by the other Spear Point Reporting Persons,

 

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representing an aggregate of 4.99% of the outstanding shares of Common Stock.

 

FiveMore Special Situations Fund Ltd beneficially owns, and has voting power and disposition power over 1,200,0000 shares of Common Stock, representing an aggregate of 3.44% of the outstanding shares of Common Stock.  FiveT Investment Management Ltd beneficially owns, and has voting power and disposition power over 500,0000 shares of Common Stock, representing an aggregate of 1.43% of the outstanding shares of Common Stock.  By virtue of the relationships described under Item 2 of this Schedule 13D, FiveT Capital AG may be deemed to have shared voting and disposition power with respect to, and therefore, indirect beneficial ownership of, the aggregate of 1,700,000 shares of Common Stock beneficially owned by FiveMore Special Situations Fund Ltd and FiveT Investment Management Ltd, representing 4.87% of the outstanding shares of Common Stock. 

 

To the best knowledge of the Reporting Persons, none of the persons or entities listed in Item 2 beneficially owns any other shares of the Issuer.  Each of the Reporting Persons disclaims beneficial ownership of shares covered by this Schedule 13D other than shares directly owned by such Reporting Person.  Pursuant to Rule 13d-4 of the Exchange Act, each of the Reporting Persons expressly declares that the filing of this Schedule 13D shall not be construed as an admission that any such person is, for purposes of Section 13(d) and/or Section 13(g) of the Exchange Act or otherwise, (i) the beneficial owner of any shares held by any other person, or (ii) the beneficial owner of any shares held or beneficially owned by any member of the Group other than such Reporting Person.  The filing of this Schedule 13D by each of the Reporting Persons shall not be considered an admission that such Reporting Person, for the purposes of Section 13(d) of the Exchange Act, is the beneficial owner of any shares in which such Reporting Person does not have a pecuniary interest.  Each of the Reporting Persons disclaims beneficial ownership of shares solely as a result of Rule 13d-5(b)(1) under the Securities Exchange Act of 1934, as amended.

 

(c) The trading dates, number of shares of Common Stock purchased or sold and the price per share for all transactions by FiveMore Special Situations Fund Ltd, FiveT Investment Management Ltd, Spear Point Capital Fund LP, Spear Point Condor LP in the Common Stock within the last sixty days, which were all in the open market, are set forth in Exhibits 99.3, 99.4, 99.5 and 99.6, respectively, and are incorporated herein by reference.

 

(d) Not applicable.

 

(e) Not applicable.

 

Item 6.                                 Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

See Item 4.

 

Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting Persons have entered into a Joint Filing Agreement, a copy of which is filed with this Schedule 13D as Exhibit 99.1, with respect to the joint filing of this Schedule 13D and any amendment or amendments thereto.

 

Other than the agreement described in Item 4 and the Joint Filing Agreement, none of the Reporting Persons nor any general partners or managing members of the Reporting Persons has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to the Common Stock, including transfer or voting thereof, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

Item 7.                                 Material to be Filed as Exhibits

 

The following are filed herewith as exhibits to this Schedule 13D:

 

Exhibit 24.1		Power of Attorney granted by the Reporting Persons to Rodney A. Bienvenu, Jr., Trevor L. Colhoun, and Ernest C. Mysogland
Exhibit 99.1		Joint Filing Agreement, dated March 8, 2016 by and among the Reporting Persons
Exhibit 99.2		Agreement, dated March 8, 2016 by and among the Reporting Persons
Exhibit 99.3		Description of Transactions in the Shares that were Effected During the Past 60 Days – FiveMore Special Situations Fund Ltd
Exhibit 99.4		Description of Transactions in the Shares that were Effected During the Past 60 Days – FiveT Investment Management Ltd
Exhibit 99.5		Description of Transactions in the Shares that were Effected During the Past 60 Days – Spear Point Capital Fund LP
Exhibit 99.6		Description of Transactions in the Shares that were Effected During the Past 60 Days – Spear Point Condor LP

 

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Signature

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date:	March 8, 2016
SPEAR POINT CAPITAL MANAGEMENT LLC
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CAPITAL PARTNERS LLC
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CAPITAL FUND LP
By:	Spear Point Capital Partners LLC
Its:	General Partner
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CONDOR LP
By:	Spear Point Capital Partners LLC
Its:	General Partner
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
/s/ Rodney A. Bienvenu, Jr.
Rodney A. Bienvenu, Jr.
/s/ Trevor L. Colhoun
Trevor L. Colhoun
/s/ Ernest C. Mysogland
Ernest C. Mysogland
FIVE MORE SPECIAL SITUATIONS FUND LTD
By:	DMS Fund Governance Ltd
Its:	Director
By:	/s/ Aldo Ghisletta
Name:	Aldo Ghisletta
Title:	Director
FIVET INVESTMENT MANAGEMENT LTD
By:	/s/ Aldo Ghisletta
Name:	Aldo Ghisletta
Title:	Director
FiveT Capital AG
By:	/s/ Johannes M. Roth
Name:	Johannes M. Roth
Title:	CEO

 

	ATTENTION
Intentional misstatements or omissions of fact constitute Federal Criminal Violations (See 18 U.S.C. 1001).

 

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Exhibit 24.1

Power of Attorney

 

The undersigned hereby appoints Rodney A. Bienvenu, Jr., Trevor L. Colhoun and Ernest C. Mysogland, or any of them, his her or its true and lawful attorney-in-fact and agent to execute and file with the Securities and Exchange Commission any Schedule 13D, any amendments thereto or any related documentation which may be required to be filed in his, her or its individual capacity as a result of the undersigned's direct or indirect beneficial ownership of shares of, or participation in a group with respect to, common stock of TheStreet, Inc., and granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing which he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, may lawfully do or cause to be done by virtue hereof. The authority of Rodney A. Bienvenu, Jr., Trevor L. Colhoun and Ernest C. Mysogland, or any of them, under this Power of Attorney shall continue with respect to the undersigned until the undersigned is no longer required to file Schedule 13Ds unless revoked earlier in writing.

Date: March 8, 2016

 

SPEAR POINT CAPITAL MANAGEMENT LLC
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CAPITAL PARTNERS LLC
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CAPITAL FUND LP
By:	Spear Point Capital Partners LLC
Its:	General Partner
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CONDOR LP
By:	Spear Point Capital Partners LLC
Its:	General Partner
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
/s/ Rodney A. Bienvenu, Jr.
Rodney A. Bienvenu, Jr.
/s/ Trevor L. Colhoun
Trevor L. Colhoun
/s/ Ernest C. Mysogland
Ernest C. Mysogland
FIVE MORE SPECIAL SITUATIONS FUND LTD
By:	DMS Fund Governance Ltd
Its:	Director
By:	/s/ Aldo Ghisletta
Name:	Aldo Ghisletta
Title:	Director
FIVET INVESTMENT MANAGEMENT LTD
By:	/s/ Aldo Ghisletta
Name:	Aldo Ghisletta
Title:	Director
FiveT Capital AG
By:	/s/ Johannes M. Roth
Name:	Johannes M. Roth
Title:	CEO

 

Exhibit 99.1

 

JOINT FILING AGREEMENT

PURSUANT TO RULE 13d-1(k)

 

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D, shall be filed on behalf of each of the undersigned without the necessity of filing additional joint acquisition statements.  The statement on Schedule 13D is, and any amendments thereto signed by each of the undersigned shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended.  The undersigned acknowledge that each shall be responsible for the timely filing of this statement and any such amendments, and for the completeness and accuracy of the information concerning him, her or it contained herein or therein, but shall not be responsible for the completeness and accuracy of the information concerning the other persons making such filings, except to the extent that he, she or it knows or has reason to believe that such information is inaccurate.

 

DATED: March 8, 2016

 

SPEAR POINT CAPITAL MANAGEMENT LLC
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CAPITAL PARTNERS LLC
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CAPITAL FUND LP
By:	Spear Point Capital Partners LLC
Its:	General Partner
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
SPEAR POINT CONDOR LP
By:	Spear Point Capital Partners LLC
Its:	General Partner
By:	/s/ Rodney A. Bienvenu, Jr.
Name:	Rodney A. Bienvenu, Jr.
Title:	Managing Member
/s/ Rodney A. Bienvenu, Jr.
Rodney A. Bienvenu, Jr.
/s/ Trevor L. Colhoun
Trevor L. Colhoun
/s/ Ernest C. Mysogland
Ernest C. Mysogland
FIVE MORE SPECIAL SITUATIONS FUND LTD
By:	DMS Fund Governance Ltd
Its:	Director
By:	/s/ Aldo Ghisletta
Name:	Aldo Ghisletta
Title:	Director
FIVET INVESTMENT MANAGEMENT LTD
By:	/s/ Aldo Ghisletta
Name:	Aldo Ghisletta
Title:	Director
FiveT Capital AG
By:	/s/ Johannes M. Roth
Name:	Johannes M. Roth
Title:	CEO

 

Exhibit 99.2

 

AGREEMENT DATED March 8, 2016

 

 

Spear Point Capital Management LLC

400 Poydras Street, Suite 2100

New Orleans, LA 70130

 

March 8, 2016

 

Ladies and Gentlemen:

 

In connection with the proposed changes in the board of directors of TheStreet, Inc. (the “Company”), each of the undersigned (each an “Interested Party” and collectively, the “Interested Parties”) agrees as follows:

 

1.                                      Company Securities.

 

(a)                                 As of the date hereof, each Interested Party represents that the Affiliated Current Shareholders set forth on such Interested Party’s signature page hereto or such Interested Party beneficially owns and has the right to vote the securities of the Company set forth opposite such Interested Party’s name on its signature page hereto (the “Current Shareholder Securities”).  The Current Shareholder Securities listed on an Interested Party’s signature page shall include all securities of the Company, including Common Stock, any preferred stock, warrants, options, and any other instruments convertible into or exercisable or exchangeable for any Common Stock, preferred stock or other equity securities of the Company.

 

(b)                                 Each Interested Party agrees, for itself or on behalf of any of its Affiliated Current Shareholders, not to sell, assign, transfer, take a hedge position or otherwise dispose of (any such transaction being herein collectively called a “Transfer”), or to advise any of its Affiliated Current Shareholders to Transfer, during the term of this letter agreement, all or any of the Current Shareholder Securities beneficially owned by such Interested Party or Affiliated Current Shareholder, as applicable, unless, as a condition to any such Transfer, the transferee agrees to be bound by the terms and provisions of this letter agreement, and, as a further condition to any such Transfer, the other Interested Parties consent to such Transfer.  In addition, if the “group” formed pursuant to this letter agreement has, upon formation of the “group” or subsequently, beneficial ownership of ten percent or more of the Common Stock or other registered class of equity securities of the Company, each Interested Party agrees, for itself or on behalf of any of its Affiliated Current Shareholders, not to purchase or sell any equity security of the Company (within the meaning of Section 16(b) of the Exchange Act), without the prior consent of the other Interested Parties.

 

For purposes of this letter agreement, “Meeting Date” shall mean the date of the Meeting.  “Meeting” shall mean that certain next annual meeting of the stockholders of the Company to be held in 2016 (or such other date or dates in the event of any postponement thereof), and including the meeting reconvened after any adjournments or recesses thereof.  “Record Date” shall mean the date set by the Company as the record date with respect to the Meeting, or such other date or dates set as the record date with respect to the Meeting in the event of any postponement or adjournment of the Meeting.

 

2.                                      Voting of Current Shareholder Securities.  Each Interested Party shall, for itself and on behalf of its Affiliated Current Shareholders:

 

(a)                                 during the term of this letter agreement, retain, and not in any way compromise or encumber, the right to vote any Current Shareholder Securities beneficially owned by such Interest Party or Affiliated Current Shareholder, as applicable, as of the Record Date and Meeting Date;

 

(b)                                 take such actions as maybe required so that it may vote its Current Shareholder Securities at the Meeting; and

 

(c)                                  on the Meeting Date, (x) attend the Meeting in person or by proxy such that all Current Shareholder Securities held by such Interested Party and its Affiliated Current Shareholders are represented at such meeting, (y) at the Meeting, vote such Current Shareholder Securities in person or by proxy as set forth in Exhibit A hereto with respect to each of the actions described therein (the “Actions”), and in favor of any ancillary or procedural actions or matters related to giving effect to the Actions or required to effect the approval of the Actions (but in no event in contravention of any of the Actions), and (z) at the Meeting, not vote any such Current

 

 

Shareholder Securities other than as set forth in Exhibit A hereto and any ancillary or procedural actions or matters related to the Actions or required to effect the approval of the Actions (but in no event in contravention of any of the Actions).

 

3.                                      Expenses.  Each Interested Party is and will remain responsible for its expenses (including, without limitation, fees and disbursements of counsel) paid or incurred in connection with, relating to or arising out of such Interested Party’s (or its Affiliated Current Shareholder’s or any of their respective affiliate’s) investment in the Company, any activities related to such investment, and the determination to enter into this letter agreement and pursue the Actions or transactions contemplated hereby.  Each Interested Party shall be responsible for its Share (as defined below) of all reasonable out-of-pocket, third-party expenses (including, without limitation, fees and disbursements of counsel) incurred or to be incurred jointly by the Interested Parties in connection with, relating to or arising out of the matters described by this letter agreement or the Group Schedule 13D (as hereinafter defined) or the Actions or transactions contemplated hereby or thereby (in each case, to the extent not reimbursed by the Company), each Interested Party shall reimburse or advance such other Interested Party who pays any such expense, upon request; provided that the Interested Parties’ agree in advance with respect to any expenses to be incurred, and, provided further that the Interested Parties’ agree in advance on any third party (including any legal counsel) to provide any services to the group.  Notwithstanding the foregoing, each Interested Party’s aggregate expense obligations hereunder shall not exceed $50,000 unless all of the Interested Parties consent to any increase in such amount.  Notwithstanding anything to the contrary, each Interested Party shall be fully responsible for all such expenses arising out of such Interested Party’s (or its Affiliated Current Shareholder’s or any of their respective affiliate’s) gross negligence, fraud, bad faith or willful misconduct.  For the purposes of this letter agreement, an Interested Party’s Share shall be a fraction, expressed as a percentage, the numerator of which is one and the denominator of which is the number of Interested Parties.

 

4.                                      Cooperation; Group Matters.  Each Interested party shall (a) use reasonable efforts to assist each other and provide such information to each other and (b) to execute and deliver such additional documents, in each case, as may be reasonably required in order to effect the Actions and transactions contemplated by this letter agreement and the Group Schedule 13D.  In addition, to the extent requested by an Interested Party, each other Interested Party shall promptly, and in no event later than one day following such request, provide such information as is reasonably necessary with respect to the filing or any amendment of the Schedule 13D in respect of the parties’ collective beneficial ownership of securities of the Company (as a “group”) (the “Group Schedule 13D”) to the extent applicable, as well as any Forms 3, 4 or 5 to the extent applicable.  The Interested Parties discussed the transactions contemplated hereby before the date of this letter agreement, but no agreement was reached among the parties as a result of such discussions and meetings, and no “group” was formed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), until March 8, 2016.  The purpose of this letter agreement and the “group” formed hereby is for the Interested Parties to affirmatively vote for the group’s slate of director candidates instead of the incumbent (or other) directors nominated by the Company.  Each Interested Party represents and warrants that prior to the date of this letter agreement, such Interested Party and its Affiliated Current Shareholders have held their Company securities without any agreement with any third party to act together for the purpose of acquiring, holding, voting or disposing of equity securities of the Company, and on and after the date hereof and until the termination hereof, such Interested Party and its Current Affiliated Shareholders will not enter into any agreement (other than this letter agreement) with any third party to act together for the purpose of acquiring, holding, voting or disposing of equity securities of the Company.  Until December 31, 2016, each of the Interested Parties agrees to cooperate, to the extent reasonable, including without limitation in a joint defense, with respect to any claim or action of any kind, at law or equity, or any appeal of any decision thereof, threatened in writing, initiated or pending which in any manner attempts to prevent, forestall or invalidate the consummation of any of the Actions or any matter contemplated by this letter agreement or the Group Schedule 13D, or in a joint prosecution or other declaratory action which attempts to effectuate any matter contemplated by this letter agreement or the Group Schedule 13D, including by conveying to each other Interested Party information in such Interested Party’s possession which it believes may be required to be reflected in the Group Schedule 13D, with respect to any litigation pending on the date of, or commenced after, termination of this letter agreement, or which may be relevant to or discoverable in any such litigation.

 

5.                                      Liability.  Except as set forth in Sections 3 and 12, or resulting from any breach of any party’s representations, warranties or covenants hereunder, no Interested Party nor any of its Affiliated Current Shareholders or any of their respective affiliates, partners, employees, counsel, agents or representatives shall be

 

 

liable to any other Interested Party or Affiliated Current Shareholder or any of their respective affiliates, in each case for any loss, liability, damage or expense arising out of or in connection with this letter agreement or the Group Schedule 13D or the Actions or transactions contemplated hereby or thereby, except to the extent such loss, liability, damage or expense is caused by such party’s gross negligence, fraud, bad faith or willful misconduct.

 

6.                                      Power; Binding Agreement; Non-Contravention; Misstatements; Omissions.  Each party to this letter agreement represents, as to itself only, that: (a) it has the full right, power and authority to enter into this letter agreement and perform all of its obligations hereunder; (b) neither the execution, delivery nor performance of this letter agreement by such party will violate the charter, by-laws or other organizational or constitutive documents of such party, or any other agreement, contract or arrangement to which such party is a party or is bound, including any voting agreement, stockholders agreement or voting trust; (c) this letter agreement has been duly executed and delivered by such party and constitutes a legal, valid and binding agreement of such party, enforceable in accordance with its terms; and (d) neither the execution or delivery of this letter agreement by such party will (i) require any material consent or approval of or filing with any governmental or other regulatory body, other than filings required under the federal or state securities laws, or (ii) constitute a violation of, conflict with or constitute a default under (A) any material law, rule or regulation applicable to such party, or (B) any material order, judgment or decree to which such party is bound.

 

7.                                      Notices.  All notices, correspondence and information related to this letter agreement should be sent by the Interested Party sending such notice to the addresses set forth under the other Interested Parties’ names on the signature pages hereto.

 

8.                                      Amendments; Successors and Assigns.  No waiver, amendment or other modification of this letter agreement shall be effective unless in writing and signed by each Interested Party, to the extent any of them are to be bound thereby.  This letter agreement shall inure to the benefit of and be binding on each Interested Party and their respective successors (except that no party may assign this letter agreement without the prior written consent of the other parties, such consent not to be unreasonably withheld).

 

9.                                      Termination.  This letter agreement will terminate upon the earlier to occur of (x) the date which is five business days after the last day on which the Meeting is held, unless such date is extended by agreement of all of the Interested Parties, and (y) the date of the consummation of each of the Actions; provided that no matter shall be considered consummated hereunder while any claim or action of any kind, at law or equity, or any appeal of any decision thereof, is threatened in writing, initiated or pending which in any manner attempts to prevent, forestall or invalidate any of the Actions or matters contemplated thereby.  Any termination of this letter agreement pursuant to this Section 9 shall occur without any liability or continuing obligation of any party to any other party; provided, that the expense obligations set forth in Section 3, and the obligations to cooperate and provide information set forth in Section 4 shall survive any such termination.  Notwithstanding anything to the contrary, including any continuing obligations to cooperate hereunder, upon termination of this letter agreement, none of the Interested Party intends to be, and shall no longer be, a “group” for any purpose, including for purposes of the federal securities laws.

 

10.                               Solicitation Matters.  Each Interested Party hereby represents and warrants to each of the other Interested Parties that (a) such Interested Party and its Affiliated Current Shareholders and other affiliates have not solicited (within the meaning of the proxy solicitation rules under the Exchange Act (the “Rules”)) any persons to vote, withhold a vote, grant a proxy with regard to, revoke a proxy with regard to, or otherwise take or refrain from taking any action with respect to the election of directors of the Company or any other matter to be voted on at the Meeting, and (b) to its knowledge, such Interested Party and its Affiliated Current Shareholders and other affiliates has not violated any applicable federal securities laws in connection with the transactions contemplated hereby or by Exhibit A.  No Interested Party will engage in any solicitation with respect to the matters to be voted on at the Meeting without the consent of the other Interested Parties.  In the event that the Interested Parties determine to engage in a solicitation of votes or proxies or other actions with regard to the matters to be voted on at the Meeting which are subject to the Rules, the Interested Parties will comply with such Rules and either file such proxy statements as so required, or limit their solicitation to no more than ten persons and, therefore, fall within the exception to the Rules set forth in Rule 14a-2(b)(2) under the Exchange Act.  No third party will be permitted to become an Interested Party to this letter agreement, and no third party will be invited to join or accepted as a member of the “group” formed hereby, without the written consent of all the Interested Parties.

 

11.                               Public Statements and Announcements.  No party hereto shall issue, make, send or publish any

 

 

letter to the Company or any shareholders, written press release or any other public statement or communication, including any statement on a website, blog, or by means of Twitter, Facebook or other social media, regarding the Actions or the transactions contemplated by this letter agreement or the Group Schedule 13D without the prior consent of the parties hereto.

 

12.                               Representation.  Each Interested Party represents and agrees that to the best of its knowledge the information about such Interested Party or any of its Affiliated Current Shareholders contained or which is required to be contained in the Group Schedule 13D or any amendment thereto is accurate, correct and complete in all material respects as of date of the applicable filing.  Damages for any breach of the foregoing representation shall include losses (excluding loss of value of the securities held or to be held) incurred by any other party to this letter agreement as a result of such misrepresentation.

 

13.                               Counterparts.  This letter agreement may be executed and delivered by each party hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which taken together shall constitute one and the same agreement.

 

14.                               Choice of Law.  This letter agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of laws provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

 

15.                               Severability.  If any term, provision, covenant or restriction contained in this letter agreement is held by a court of competent jurisdiction or other authority by judgment or order no longer subject to review, to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained in this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

 

16.                               Duty to Update.  Each party to this letter agreement agrees, to the extent required by, and in accordance with, applicable federal securities laws, to update any information pertaining to such party in the Group Schedule 13D or any amendments thereto.

 

17.                               Independent Contractors.  Notwithstanding anything to the contrary herein, each of the Interested Parties are independent contractors and are not members, partners, employees, employers, officers, directors, attorneys, agents or representatives of the other Interested Parties or their respective Affiliated Current Shareholders. No Interested Party will have or represent itself to have any authority to act on behalf of any other Interested Party or any of its Affiliated Current Shareholders.

 

18.                               Company Communications.  Without limiting the foregoing, no Interested Party will initiate any communications with the Company regarding the Actions or the transactions contemplated by this letter agreement or the Group Schedule 13D without the prior consent of the other parties hereto.  In the event the Company communicates with an Interested Party, such Interested Party will promptly inform the other Interested Parties of the details of such communications.  No Interested Party may propose or negotiate any settlement or resolution of, or enter into any settlement or other agreement relating to, any of the Actions or the transactions contemplated by this letter agreement or the Group Schedule 13D, without the prior consent of the other parties hereto.

 

19.                               Participation Rights.  If any Interested Party or Affiliated Shareholder proposes to sell or Transfer all or any portion of its stock or other securities in the Company to any third party, including the Company, in a transaction or transactions at a price above then current market prices or market prices at the time of consummation of any such sale or Transfer (a “Proposed Transfer”), such Interested Party or Affiliated Shareholder shall not consummate any such Proposed Transfer or agree to consummate any such Proposed Transfer, unless such Interested Party or Affiliated Shareholder (a) obtains the other parties’ consents as required under Section 1(b), and (b) permits the other Interested Parties and their respective Affiliated Shareholders to participate in the Proposed Transfer on a pro rata basis, with each party participating in such Proposed Transfer in an amount equal to their pro rata amount of the total amount shares or other securities to be sold or Transferred (such pro rata share determined based on the percentage determined by dividing (x) the total number of shares or other securities held by such party, by (y) the total number of shares or other securities held by the Group.  Each party participating in any such sale or Transfer shall be responsible for their pro rata share of all fees, commissions and expenses relating to such sale or

 

 

Transfer.

 

20.                               Dispute Resolution.  Any dispute, claim or controversy arising out of or relating to this letter agreement will be resolved in accordance with the terms set forth on Exhibit B

 

*              *              *              *              *

 

 

IN WITNESS WHEREOF, each of the Interest Parties hereto have caused this letter agreement to be duly executed and delivered on the date and year first above written by having its respective Interested Party signature page completed and executed by a duly authorized person and delivered to the other Interested Parties hereto.

 

Sincerely,

 

SPEAR POINT CAPITAL MANAGEMENT LLC
By:	/s/ Trevor Colhoun
	Name:	Trevor Colhoun
	Title:	Managing Member

 

[Remainder of this page is intentionally blank; signature pages follow.]

 

 

Interested Party Signature Page

 

INTERESTED PARTY		Company Security		Number of Shares
Spear Point Capital Management LLC		Common Stock		1,740,384	*

 

AFFILIATED CURRENT SHAREHOLDERS		Company Security		Number of Shares
Spear Point Capital Partners LLC		Common Stock		1,740,384	*
Spear Point Capital Fund LP		Common Stock		572,582
Spear Point Condor LP		Common Stock		1,167,802

 

Address for Notices:

 

Spear Point Capital Management LLC

400 Poydras Street, Suite 2100

New Orleans, LA 70130

(504) 252-1369

 

IN WITNESS WHEREOF, the Interest Party identified on this signature page has caused this letter agreement to be duly executed and delivered on the date and year first above written:

 

INTERESTED PARTY

 

SPEAR POINT CAPITAL MANAGEMENT LLC
By:	/s/ Trevor Colhoun
	Name:	Trevor Colhoun
	Title:	Managing Member

 

*   This figure represents the total number of shares of the Company’s Common Stock, $0.01 par value per share, over which the Interested Party and its affiliates have investment discretion

 

 

Interested Party Signature Page

 

INTERESTED PARTY		Company Security		Number of Shares
FiveT Capital AG		Common Stock		1,700,000	*

 

AFFILIATED CURRENT SHAREHOLDERS		Company Security		Number of Shares
FiveMore Special Situations Fund Ltd		Common Stock		1,200,000
FiveT Investment Management Ltd		Common Stock		500,000

 

Address for Notices:

 

FiveT Capital AG

Allmendstrasse 140

8041 Zurich, Switzerland

+41 43 3222510

 

IN WITNESS WHEREOF, the Interest Party identified on this signature page has caused this letter agreement to be duly executed and delivered on the date and year first above written:

 

INTERESTED PARTY:

 

FIVET CAPITAL AG
By:	/s/ Johannes M. Roth
	Name:	Johannes M. Roth
	Title:	CEO

 

*   This figure represents the total number of shares of the Company’s Common Stock, $0.01 par value per share, over which the Interested Party and its affiliates have investment discretion

 

 

EXHIBIT A

 

Actions

 

The Meeting shall not be adjourned until a vote has occurred on each of the items below.

 

The following persons shall be nominated and elected at the Meeting as Class II directors of the Company:

 

One candidate proposed by FiveT Capital AG, subject to the consent of Spear Point Capital Management, LLC, which will not be unreasonably withheld; and

 

One candidate proposed by Spear Point Capital Management, LLC, subject to the consent of FiveT Capital AG, which will not be unreasonably withheld.

 

Any procedural or ancillary actions required to effectuate any of the foregoing actions at the Meeting shall be approved.

 

 

EXHIBIT B

 

Dispute Resolution

 

A.                                    Negotiation

 

1.                                      The parties shall attempt in good faith to resolve any dispute arising out of or relating to this letter agreement promptly by negotiation between duly authorized representatives who have authority to settle the controversy.  Any party may give the other party written notice of any dispute not resolved in the normal course of business.  Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response.  The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the duly authorized representative who will represent that party and of any other person who will accompany the representative.  Within 30 days after delivery of the notice, the duly authorized representatives of both parties shall meet at a mutually acceptable time and place.

 

2.                                      Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of representatives described above (“First Meeting”).  Such closure shall not preclude continuing or later negotiations, if desired.

 

3.                                      All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.

 

4.                                      At no time prior to the First Meeting shall either side initiate litigation related to this letter agreement except to pursue a provisional remedy that is authorized by law, by the applicable rules of Judicial Arbitration and Mediation Services, Inc.  (“JAMS”) or by agreement of the parties.  However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 1 above.

 

5.                                      All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 1 and 2 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.

 

B.                                    Mediation

 

If the matter is not resolved by negotiation pursuant to Section A, Paragraph 1 above, then the matter will proceed to mediation as set forth below.

 

1.                                      The parties agree that any and all disputes, claims or controversies arising out of or relating to this letter agreement shall be submitted to JAMS, or its successor, for non-binding mediation, and if the matter is not resolved through mediation, then either party may initiate a legal action in accordance with Paragraph 5 and Section C below.

 

2.                                      Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested.

 

3.                                      The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.

 

4.                                      All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

 

5.                                      Either party may initiate litigation with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire.

 

6.                                      At no time prior to the Earliest Initiation Date shall either side initiate litigation related to this letter agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 3 above.

 

7.                                      All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.

 

C.                                    Litigation

 

The parties irrevocably agree that any legal action, suit or proceedings against them, jointly or severally, with respect to the enforcement of any other matter under or arising out of or in connection with this letter agreement or for recognition or enforcement of any arbitration or other judgment rendered in any such action, suit or proceeding, shall be brought in either the New Orleans Federal District Court or, in the event that the New Orleans Federal District Court does not have jurisdiction due to lack of diversity, the amount in controversy or other reason, then the Louisiana state courts, and by execution and delivery of this Agreement, the parties hereby irrevocably accept and submit to the exclusive in personam jurisdiction of such court generally and unconditionally with respect to any such action, suit or proceeding for themselves jointly and severally and in respect of their property.

 

Exhibit 99.3

 

Description of Transactions in the Shares that were Effected During the Past 60 Days —

FiveMore Special Situations Fund Ltd

 

 

Exhibit 99.4

 

Description of Transactions in the Shares that were Effected During the Past 60 Days —

FiveT Investment Management Ltd

 

 

Exhibit 99.5

 

Description of Transactions in the Shares that were Effected During the Past 60 Days —

Spear Point Capital Fund LP

 

 

Exhibit 99.6

 

Description of Transactions in the Shares that were Effected During the Past 60 Days —

Spear Point Condor LP