exv10w2






Exhibit 10.2




SECOND AMENDMENT

TO THE

EMPLOYMENT AGREEMENT

BETWEEN FOSTER WHEELER INC.

AND

THIERRY DESMARIS




     This SECOND AMENDMENT (this “Amendment”) to the Employment Agreement between FOSTER WHEELER
INC., a Delaware corporation (the “Company”), and THIERRY DESMARIS (the “Executive”), dated as of
March 27, 2009, is made and entered into as of July 29, 2010 (the “Effective Date”).



     WHEREAS, the Company entered into an Employment Agreement with Thierry Desmaris (the
“Executive”), dated as of March 27, 2009 and entered into a First Amendment to the Employment
Agreement, effective January 18, 2010 (the Employment Agreement, as so amended, the “Agreement”);
and



     WHEREAS, the Company and the Executive have agreed to further amend the Agreement as set forth
herein; and



     WHEREAS, pursuant to the Agreement, an amendment to the Agreement may be made pursuant to the
written consent of the Company and the Executive.



     NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and in further consideration of the following mutual promises, covenants and
undertakings, the parties agree that the Agreement is amended effective as of the Effective Date,
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 12.1, 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 beginning of the first sentence in 4.2.2 is hereby revised by adding the words “,
beginning on the sixtieth (60th) day following the Termination Date, ” so that the
beginning of the sentence reads in its entirety as follows:






Following a termination by the Company without Cause or by the Executive for
Good Reason, the Company shall, beginning on the sixtieth (60th)
day following



 









 







the Termination Date, pay or provide to the Executive in addition to the
payments and benefits in Section 4.2.1 above:




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






Notwithstanding any other provision of this Agreement, in no event, 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 the Executive’s review not later than 7
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, pay and
benefits pursuant to this Section 4.2.2 shall commence on the 60th day
following the Executive’s Termination Date. Any amounts that otherwise
would have been paid to the Executive pursuant to this Section 4.2.2 before
the 60th day shall be paid to the Executive, without interest, on the 60th
day.




	4.	 	The beginning of the first sentence in 4.3.2 is hereby revised by adding the words “,
beginning on the sixtieth (60th) day following the Termination Date, ” so that the
beginning of the sentence reads in its entirety as follows:






If, during the Change of Control Period, the Company terminates the
Executive’s employment without Cause (other than for death or Disability) or
the Executive terminates his employment for Good Reason, the Company shall,
beginning on the sixtieth (60th) day following the Termination
Date, pay or provide to the Executive the following:




	5.	 	Agreement Section 4.3.2(i) is hereby revised by deleting its subsection (II) and to read in
its entirety as follows:






Accrued Obligations. The Executive’s Annual Base Salary through the
Termination Date and any accrued vacation pay, in each case, to the extent
not theretofore paid (the sum of the amounts described in this Subsection
4.3.2(i), the “Accrued Obligations”), all in a lump sum in cash within 30
days following the Termination Date; and




	6.	 	Agreement Section 12 is hereby revised by adding the following new Section 12.2:






12.2 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.




	7.	 	Counterparts. This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the
same instrument.





[Signature Page Follows]






2









 







IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the Agreement as of
the date first written above.




	 	 	 	 	 
	 	FOSTER WHEELER INC.

 	 
	 	By:  	/s/ Beth B. Sexton
 	 
	 	Name:  	 	Beth B. Sexton 	 
	 	Title:  	 	Executive Vice President, Human Resources 	 
	 
	 	 	 
	 	 	                                                   /s/ Thierry Desmaris
 	 
	 	 	THIERRY DESMARIS 	 
	 	 	 
	 




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