Exhibit 10.4


 


EXECUTION VERSION


 


Second
AMENDMENT TO


RESTRICTED
STOCK AWARD AGREEMENT


 


This
SECOND AMENDMENT TO RESTRICTED STOCK AWARD AGREEMENT, dated as of June 15, 2018 (this “Amendment”),
is hereby entered into by and between PeerStream, Inc. (f/k/a Snap Interactive, Inc.), a Delaware corporation (the “Company”),
and Clifford Lerner (the “Employee”). Terms used in this Amendment with initial capital letters that
are not otherwise defined herein shall have the meanings ascribed to such terms in the Restricted Stock Award Agreement, by and
between the Company and the Employee, dated March 3, 2016, and as amended by that certain First Amendment to Restricted Stock
Award Agreement, dated October 7, 2016 (collectively, the “Restricted Stock Agreement”).


 


WHEREAS,
the parties mutually desire and agree to amend the tax withholding provisions of the Restricted Stock Agreement as provided herein;
and


 


WHEREAS,
Section 21 of the Restricted Stock Agreement provides that it may only be changed or modified in a writing that is approved by
the Employee and the Company’s Board of Directors (the “Board”).


 


NOW,
THEREFORE, pursuant to Section 21 of the Restricted Stock Agreement, in consideration of the mutual promises, conditions,
and covenants contained herein and in the Restricted Stock Agreement, and other good and valuable consideration, the adequacy
of which is hereby acknowledged, the parties hereto agree as follows:


 


1. 
Section 2(b) of the Restricted Stock Agreement is amended by deleting said section in its entirety and adding the following new
Section 2(b):


 


(b) “Consulting
Agreement” means that certain Consulting Agreement by and between the Company and Employee, dated as of June 15,
2018.


 


2. 
Section 3(b) of the Restricted Stock Agreement is amended by deleting said section in its entirety and adding the following new
Section 3(b):


 


(b) Notwithstanding
the foregoing and subject to Sections 3(c) and (d) below, if, following the Closing Date, the Employee incurs a
Termination of Service by the Company without Cause (as that term is defined in the Consulting Agreement), then all of the Awarded
Shares not previously vested shall thereupon immediately become fully vested upon the date of such Termination of Service.


 






     


     


    

 


3. 
Section 3(e) of the Restricted Stock Agreement is amended by deleting said section in its entirety and adding the following new
Section 3(e):


 


Notwithstanding
the foregoing and in addition to the Company’s rights set forth in Section 25, the Company shall have the right to
require payment from the Employee, within ninety (90) days following the date the Awarded Shares vest, to cover any applicable
taxes due upon the vesting of such Awarded Shares (the “Withholding Obligation”), and the Employee’s receipt
of Common Stock for such vested Awarded Shares is specifically conditioned upon the Employee’s satisfaction of the Withholding
Obligation. Payment of the Withholding Obligation may be made: (i) by the Employee directly to the Company; (ii) from a broker
in connection with a sale of either shares to be acquired upon vesting of the Awarded Shares or other Common Stock of the Company
owned by the Employee, provided such Common Stock was not acquired from the Company within the prior six (6) months; (iii) if
the Board, in its sole discretion, so consents (which approval must include the affirmative vote of Jason Katz, provided he is
serving as a member of the Board when such approval is sought), by the Company’s withholding of a number of shares of Common
Stock to be acquired upon the vesting of the Awarded Shares, which shares so withheld have a fair market value equal to the Withholding
Obligation; (iv) by such other method(s) (if any) as the Board, in its sole discretion, may consent (which approval must include
the affirmative vote of Jason Katz, provided he is serving as a member of the Board when such approval is sought); or (v) by any
combination of the above; provided, however, that (A) for Awarded Shares that vest in accordance with Section 3(a)(i),
if any, the Company shall withhold, in full or partial satisfaction of the Withholding Obligation related to such vested Awarded
Shares, the number of shares of Common Stock that would otherwise be acquired upon vesting of such Awarded Shares, having a fair
market value equal to the lesser of (1) the Withholding Obligation and (2) an amount equal to the difference between $200,000
and the fair market value of shares of Common Stock withheld, if any, to satisfy the tax withholding obligations under that certain
Restricted Stock Award Agreement, by and between the Company and the Employee, dated December 14, 2011 and as amended October
7, 2016 (the “2011 Award Agreement”), not to exceed $200,000, with the remaining amount of the Withholding Obligation
related to such vested Awarded Shares, if any, to be satisfied by the Employee in accordance with the terms of this Agreement;
(B) for Awarded Shares that vest in accordance with Section 3(a)(ii), if any, the Company shall withhold, in full or partial
satisfaction of the Withholding Obligation related to such vested Awarded Shares, the number of shares of Common Stock that would
otherwise be acquired upon vesting of such Awarded Shares, having a fair market value equal to the lesser of (1) the Withholding
Obligation and (2) $100,000 (which such $100,000 shall be reduced by the fair market value of the shares of Common Stock withheld,
if any, to satisfy the tax withholding obligations under the 2011 Award Agreement), with the remaining amount of the Withholding
Obligation related to such vested Awarded Shares, if any, to be satisfied by the Employee in accordance with the terms of this
Agreement; provided, however, that in any event the total amount of the withholding liability incurred by the Company pursuant
to this Section 3(e)(B) and the 2011 Award Agreement shall not exceed $100,000 in the aggregate; or (C) if the Awarded
Shares become vested in accordance with Section 3(b) on or prior to the 3rd anniversary of the Closing Date, the Employee
shall have the right to select, from among the options discussed above in Section 3(e)(i) through Section 3(e)(v),
the manner in which payment of the Withholding Obligation is made, including, without limitation, by the Company withholding shares
of Common Stock as described in Section 3(e)(iii), regardless of the Board’s consent or lack thereof. The Employee
shall forfeit any Awarded Shares for which he has not satisfied the Withholding Obligation in accordance with the terms of this
Agreement.


 


4. 
The Restricted Stock Agreement, except as modified by this Amendment, shall remain in full force and effect.


 


[Remainder
of Page Intentionally Left Blank;

Signature Page to Follow.]


 






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IN
WITNESS WHEREOF, the Board, to evidence its consent to this Amendment, has caused this Amendment to be executed by a duly
authorized officer of the Company, and the Employee, to evidence his consent and approval of all of the terms hereof, has duly
executed this Amendment, as of the date first written above.


 


	 	PeerStream, INC.:
	 	 	 
	 	By: 	/s/ Alexander H. Harrington
	 	Name:  	Alexander Harrington
	 	Title: 	Chief Executive Officer
	 	 	 
	 	THE EMPLOYEE:
	 	 	 
	 	/s/ Cliff Lerner
	 	Signature


 


	 	Name:	Clifford Lerner
	 	Address: 	450 West 42nd, Apt 31 M
	 	 	New York, NY 10036


 


Signature Page to


Second Amendment
to Restricted Stock Award Agreement


 


 


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