AMENDMENT NO. 2 TO EMPLOYMENT
AGREEMENT
THIS AMENDMENT
NO. 2 TO EMPLOYMENT AGREEMENT (this “ Amendment
”) is entered into as of this 23rd day of July 2009, between
Zoo Publishing, Inc., f/k/a Zoo Games, Inc., f/k/a Destination
Software, Inc., a corporation with its principal place of business
at 3805 Edwards Road, Suite 605, Cincinnati, OH 45209
(the “ Company ”) and David Rosenbaum, an
individual residing in Cincinnati, OH (“ Employee
”), and amends that certain Employment Agreement entered into
by the Company and Employee as of January 1, 2008, as amended by
Amendment No. 1 effective as of July 1, 2008 (the “
Employment Agreement ”).
Section
1.
Bonus . Section 3B of the Employment Agreement is
hereby deleted in its entirety and replaced with the
following:
“B.
Bonus . Employee shall be
eligible to receive such bonus as may be approved by the Board of
Directors of the Company in its sole discretion.”
Section
2.
Duties . The first two sentences of Section 5A of
the Employment Agreement are hereby deleted in its entirety and
replaced with the following:
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“Employee
will hold the office of President of the Company and such other
office(s) of the Company and/or its affiliates to which he may be
elected or appointed, and Employee shall perform all duties
incidental thereto as may be prescribed by the Company from time to
time. Employee shall report to the Chief Executive
Officer of the Company.”
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Section
3.
Section 409A Compliance . A new
Section 22 is inserted to the Employment Agreement as
follows:
“22.
Section 409A Compliance . The compensation
payable to Employee under this Agreement is not intended to be
subject to taxation under Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code"), and this
Agreement will be interpreted in accordance with Section 409A of
the Code and any regulations or other pronouncements thereunder in
a manner intended to prevent any compensation payable to Employee
under this Agreement from being subject to taxation under Section
409A(a)(1) or (b) of the Code. For purposes of Section
409A of the Code, the term "termination of employment" or any
similar words hereunder shall mean "separation from service" (as
defined in Treasury Regulation Section 1.409A-1(h)) with the
Company and all oth
