AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
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 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000 (the “Company”) and Xxxxx
Xxxxxxxxx, 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 other entities that
together with the Company are treated as a single employer for purposes of
Treasury Regulation Section 1.409A-1(h). Notwithstanding anything to
the contrary, (i) if Employee is a "specified employee" as defined in Section
409A of the Code (and any related regulations or other pronouncements
thereunder) at the time of Employee's termination of employment, and the delay
of the commencement of any payments or benefits otherwise payable hereunder as a
result of such termination of employment is necessary in order to prevent any
accelerated or additional tax under Section 409A of the Code, then the Company
will delay the commencement of the payment of any such payment or benefits
hereunder (without any reduction in such payments or
benefits ultimately paid or provided to Employee) until the date that
is six months following Employee’s termination of employment with the Company
any compensation payable to Employee on account of his termination of employment
that constitutes "deferred compensation" as defined in Section 409A of the Code
(and any related regulations or other pronouncements thereunder) shall be
deferred until the later of the date that is six (6) months after Employee's
termination of employment with the Company (or the earliest date as is permitted
under Section 409A of the Code) (the “Payment Date”) and (ii) if any other
payments of money or other benefits due to Employee hereunder could cause the
application of an accelerated or additional tax under Section 409A of the Code,
such payments or other benefits shall be delayed if such delay will make such
payment or other benefits compliant under Section 409A of the Code, or otherwise
such payment or other benefits shall be restructured, to the extent possible, in
a manner, determined by the Company, that does not cause such an accelerated or
additional tax (together, the delayed payments in the foregoing clauses (i) and
(ii), whether they would have otherwise been payable in a single lump sum or in
installments in the absence of such delay, are referred to as the “Delayed
Payments”). On the Payment Date, the Company shall pay Employee, in a
single cash lump sum, an amount equal to the aggregate amount of all Delayed
Payments, and any remaining payments and benefits due under this Agreement shall
be paid or provided in accordance with the normal payment dates specified for
them herein. To the extent any reimbursements or in-kind benefits due to
Employee under this Agreement constitutes "deferred compensation" under Section
409A of the Code, any such reimbursements or in-kind benefits shall be paid to
Employee in a manner consistent with Treas. Reg. Section
1.409A-3(i)(1)(iv). Each payment made under this Agreement shall be
designated as a "separate payment" within the meaning of Section 409A of the
Code.”
Section
4. Full
Force and Effect. Except as expressly or by necessary
implication modified or amended by this Amendment, the Employment Agreement
shall remain in full force and effect.
Section
5. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to the
principles of conflict of laws.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
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ZOO
PUBLISHING, INC.
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By:
/s/ Xxxxx
Xxxxxx
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Name: Xxxxx
Xxxxxx
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Title: Chief Financial
Officer
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/s/ Xxxxx
Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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