Exhibit
10.122


 


[Execution
Copy]


 


AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER


 


This
Amendment No. 1 (this “Amendment No. 1”) to that certain Agreement and Plan of Merger, dated as of June
11, 2010 (the “Merger Agreement”), by and among TheMaven, Inc., a Delaware corporation (“Parent”),
TST Acquisition Co., Inc., a Delaware corporation and wholly owned Subsidiary of Parent (“Merger Sub”), and TheStreet,
Inc., a Delaware corporation (the “Company”), is made and entered into as of July 12 , 2019 by and among the Company,
Parent and Merger Sub. All capitalized terms that are used in this Amendment No. 1 but not defined in this Amendment No. 1 shall
have the respective meanings ascribed thereto in the Merger Agreement.


 


WHEREAS,
Parent desires to transfer 100% of the outstanding capital stock of Merger Sub from Parent to Maven Media Brands, LLC., a wholly
owned subsidiary of Parent;


 


WHEREAS,
the Company desires to consent to such transfer; and


 


WHEREAS,
Parent, Merger Sub and the Company wish to amend certain provisions of the Merger Agreement as provided herein;


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants and subject to the conditions
herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:


 


1.
Consent to Transfer. The Company hereby consents to the transfer of 100% of the outstanding capital stock of Merger Sub
from Parent to Maven Media Brands, LLC., a wholly owned subsidiary of Parent.


 


2.
Amendment of Preamble. As a result of the transfer referred to in Section 1 above, the preamble of the Merger Agreement
hereby is amended to read in its entirety as follows: “THIS AGREEMENT AND PLAN OF MERGER, dated as of June 11, 2019 (this
“Agreement”), is made by and among TheMaven, Inc., a Delaware corporation (“Parent”), TST
Acquisition Co., Inc., a Delaware corporation and an indirect wholly owned Subsidiary of Parent (“Merger Sub”),
and TheStreet, Inc., a Delaware corporation (the “Company”).”


 




    	 



    	 



    

 


3.
Amendment to Section 3.2(b). Section 3.2(b) of the Merger Agreement is hereby amended to read in its entirety as follows:


 


“Designation
of Paying Agent; Deposit of Exchange Fund. Such Person as selected by the Company, which Person shall be reasonably acceptable
to Parent, shall be designated as the paying agent (the “Paying Agent”) for the payment of the Merger Consideration
as provided in Section 3.1(b). Immediately after the Effective Time, the Escrow Deposit shall be deposited with the Paying Agent
(such deposit, the “Exchange Fund”). In the event the Aggregate Cash Merger Consideration portion of the Exchange
Fund shall be insufficient to make the payments contemplated by Section 3.1(b)(i) Parent shall promptly deposit, or cause to be
deposited, additional funds with the Paying Agent in an amount that is equal to the deficiency in the amount required to make
such payment. Following the Effective Time, if not already paid, Parent shall promptly cause the Paying Agent to make, and the
Paying Agent shall make, payments of the Aggregate Cash Merger Consideration to the holders of Company Common Stock pursuant to
Section 3.1(b). The Exchange Fund shall not be used for any purpose other than to fund payments pursuant to Section 3.1, except
as expressly provided for in this Agreement.”


 


4.
Amendment to Section 4.4. Section 4.4 of the Merger Agreement hereby is amended to read in its entirety as follows:


 


“Authority
Relative to Agreement. The Company has all necessary corporate power and authority to execute and deliver this Agreement and
the other agreements referred to in this Agreement to which it is or will be a party, to perform its obligations hereunder and,
subject to receipt of the Requisite Stockholder Approval, to consummate the transactions contemplated hereby and thereby, including
the Merger. The execution and delivery of this Agreement and the CVR Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby, including the Merger, have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize the execution of this
Agreement or the CVR Agreement or to consummate the transactions contemplated hereby or thereby, including the Merger (other than,
with respect to the Merger, the receipt of the Requisite Stockholder Approval, as well as the filing of the Certificate of Merger
with the Secretary of State, and other than the declaration of the Pre-Merger Special Distribution or the approval of the Recapitalization
(and the filing of a related certificate of amendment of the Company’s Restated Certificate of Incorporation with the Secretary
of State)). The Company’s board of directors has approved this Agreement and the CVR Agreement, declared this Agreement
to be advisable, approved the transactions contemplated hereby and thereby, determined them to be fair and in the best interest
of the Company and its stockholders, and resolved to recommend to the stockholders of the Company the Company Recommendation that
they vote in favor of the adoption of this Agreement in accordance with the DGCL. This Agreement has been duly and validly executed
and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, this Agreement
constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms
(except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles).”


 




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5.
Amendment to Section 4.21. Section 4.21 of the Merger Agreement hereby is amended to read in its entirety as follows:


 


“Vote
Required. The affirmative vote of the holders of outstanding Company Common Stock representing at least a majority of all
the votes entitled to be cast thereupon by holders of Company Common Stock (the “Requisite Stockholder Approval”)
is the only vote of holders of securities of the Company that is necessary to adopt this Agreement, but excluding the Recapitalization.
For the avoidance of doubt, the Requisite Stockholder Approval is the only vote of holders of securities of the Company that is
necessary to effect the Recapitalization if the same if submitted to the holders of Company Common Stock for approval.”


 


6.
Amendment to Appendix A. Appendix A of the Merger Agreement hereby is amended by amending and restating the definition
of “Company Recommendation” as follows:


 


“Company
Recommendation” shall mean the recommendation of the board of directors of the Company that the stockholders of the
Company adopt this Agreement.”


 


7.
Merger Agreement References. The parties hereto hereby agree that all references to the “Agreement” set forth
in the Merger Agreement (including, without limitation, in the representations and warranties of the parties set forth therein)
shall be deemed to be references to the Merger Agreement as amended by this Amendment No. 1.


 


8.
Full Force and Effect. Except as expressly amended or modified hereby, the Merger Agreement and the agreements, documents,
instruments and certificates among the parties hereto as contemplated by, or referred to, in the Merger Agreement shall remain
in full force and effect without any amendment or other modification thereto.


 


9.
Counterparts. This Amendment No. 1 may be executed in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission
or by e-mail of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Agreement No. 1.


 


[Remainder
of Page Intentionally Left Blank]


 




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IN
WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment No. 1 to be executed as of the date first written
above by their respective officers thereunto duly authorized.


 


	 	THESTREET,
    INC.
	 	 	 
	 	By:	/s/
    Eric F. Lundberg
	 	Name:
    	Eric
    F. Lundberg
	 	Title:	CEO
    and CFO


 


	 	THEMAVEN,
    INC.
	 	 	 
	 	By:	/s/
    James C. Heckman
	 	Name:	James
    C. Heckman
	 	Title:	CEO


 


	 	TST
    ACQUISITION CO., INC.
	 	 	 
	 	By:	/s/
    James C. Heckman
	 	Name:	James
    C. Heckman
	 	Title:	CEO


 


[Signature
Page to Amendment No. 1 to Agreement and Plan of Merger]