exv10w3






Exhibit 10.3




SECOND AMENDMENT TO THE

EMPLOYMENT AGREEMENT

BETWEEN

FOSTER WHEELER NORTH AMERICA CORP.

AND

GARY T. NEDELKA




     This SECOND AMENDMENT (this “Amendment”) to the Employment Agreement between FOSTER WHEELER
NORTH AMERICA CORP., a Delaware corporation (the “Company”), and GARY T. NEDELKA (the “Executive”),
dated as of January 6, 2009 (the “Employment Agreement”), is made and entered into as of August 30,
2010.



     WHEREAS, the Company entered into the Employment Agreement with the Executive on March 1, 2008
and a First Amendment thereto effective as of December 21, 2009 (the Employment Agreement as so
amended, the “Agreement”); and



     WHEREAS, the Executive and the Company have agreed to further amend the Agreement as set forth
below.



     NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, and in further consideration of the following mutual promises, covenants and
undertakings, the parties agree that the Agreement is amended as follows:




	1.	 	Agreement Section 4.1.5 is hereby revised by adding the following new sentence to the
end of Section 4.1.5:






In the event that the termination of the Executive’s employment does
not constitute a “separation from service” as defined in Section 409A
of the Internal Revenue Code of 1986, including all regulations and
other guidance issued pursuant thereto (the “Code”), the Executive’s
rights to the payments and benefits described in this Section 4 shall
vest upon the Termination Date, but no payment to the Executive that
is subject to Section 409A shall be paid until the Executive incurs a
separation from service (or as set forth at Section 13, until six
months after such date if the Executive is a specified employee), and
any amounts that would otherwise have been paid prior to such date
shall be paid instead as soon as practicable after such date.




	2.	 	The last paragraph in Agreement Section 4.2.2 is hereby revised to read in its
entirety as follows:






In no event, however, shall the Executive be entitled to receive the
pay and benefits that the Company shall provide the Executive pursuant
to this Section 4.2.2 unless the Executive provides the Company an
enforceable waiver and release agreement in a form that the Company
normally requires. Such release shall be furnished to the Executive
for his review not later than seven business days following the
Termination Date, and shall be executed and returned to the Company
within 21 days of receipt (or within 45 days of receipt if the
Executive’s separation is part of a group). Provided the Executive
does not timely revoke the waiver and release agreement within seven
days after its execution, pay and benefits pursuant to this Section
4.2.2 shall commence on the expiration of the revocation period, and
any amounts that otherwise would have been paid to the Executive
pursuant to this Section 4.2.2 before the expiration of the revocation



 









 







period shall be paid to the Executive, without interest, as soon as
practicable after the expiration of the revocation period (but in no
event more than 60 days after the Termination Date).




	3.	 	Agreement Section 4.3.2(i) is hereby revised to read in its entirety as follows:






Accrued Obligations. The sum of (I) the Executive’s Annual Base
Salary through the Termination Date to the extent not theretofore paid, (II)
the product of (1) the higher of: (a) any Recent Annual Bonus, and (b) the
Annual Bonus paid or payable, including any bonus or portion thereof which
has been earned but deferred (and annualized for any fiscal year consisting
of less than twelve full months or during which the Executive was employed
for less than twelve full months), for the most recently completed fiscal
year during the Change of Control Period, if any (such higher amount being
referred to as the “Highest Annual Bonus”) and (2) a fraction, the numerator
of which is the number of days in the current fiscal year through the
Termination Date, and the denominator of which is 365, and (III) any accrued
vacation pay, in each case, to the extent not theretofore paid (the sum of
the amounts described in subclauses (I), (II), and (III), (the “Accrued
Obligations”);




	4.	 	Agreement Section 13 is hereby revised by adding the following new Section 13.2:






13.2 Interpretation and Administration of Agreement. To the maximum
extent permitted by law and consistent with the substantive terms of this
Agreement, this Agreement shall be interpreted and administered in such a
manner that the payments to the Executive are either exempt from, or comply
with all requirements of, Section 409A of the Code.




	5.	 	All other terms and conditions of the Agreement not expressly modified by this
Amendment remain valid and unchanged.
	 
	6.	 	This Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same amendatory instrument, and any of the parties
hereto may execute this Amendment by signing any such counterpart.





     IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date first
above written.



	 	 	 	 	 	 	 

	 	 	FOSTER WHEELER NORTH AMERICA CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard G. Lively	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Richard G. Lively	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Gary T. Nedelka	 	 
	 	 	 	 	 
	 	 	GARY T. NEDELKA	 	 







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