Exhibit 10.5.2


 


AMENDMENT DATED AS OF MARCH 29, 2006


TO THE DECEMBER 5, 2002 EMPLOYMENT AGREEMENT


BETWEEN


ETS PAYPHONES, INC. and MICHAEL H. MCCLELLAN


 


This Amendment to the Employment Agreement (the “Amendment”) dated as
of December 5, 2002, as amended by the Amendment to Employment Agreement dated
as of January 28, 2005 (collectively, the “Agreement”) between ETS Payphones,
Inc. (the “Company”) and Michael H. McClellan (the “Executive”), is made
effective as of March 29, 2006.


 


Whereas at the Annual Meeting of Stockholders, held on February 15,
2006, the stockholders of the Company approved, among other things, the
consummation of the Asset Sale Agreement between the Company and Empire
Payphones, Inc., dated as of November 1, 2005 (the “Asset Sale Agreement”) and
the transactions contemplated thereby and the dissolution and the winding down
of the Company’s operations following the closing (the “Closing”) of the Asset
Sale Agreement.


 


Whereas the Board of Directors of the Company has determined that it is
in the best interests of the Company that the salary and the change of control
provisions of the Agreement be amended to ensure that Executive continue to
serve the Company after the Closing, in order that the Closing and the
dissolution and winding down of the Company thereafter are efficiently
administered.


 


In consideration of the mutual agreements herein contained, and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Company and the Executive hereby agree as follows:


 


1.                                       Sections 1(f)
and 1(j) of the Agreement are deleted and replaced in the entirety by the
following:


 


(f)            Reserved


 


(k)           Reserved


 


2.                                       Section 3(a) of
the Agreement is deleted in its entirety and replaced with the following:


 


Base Salary. In
consideration for the Executive’s services hereunder, the Company shall pay to
the Executive an annual base salary of 
$165,000 until the earlier of (i) such time as the Executive and the
Company otherwise agree or (ii) payment of the Incentive Payment pursuant to
Section 3(e) of the Agreement, as amended. Upon payment to the Executive of the
Incentive Payment, the annual base salary of the Executive shall be reduced to
$82,500, effective as of the date of the payment of the Incentive Payment,
until such time as the Executive and the Company otherwise agree. The Company
shall pay annual base salary in accordance with the normal payroll payment
practices of the Company and subject to such deductions and withholdings as law
or policies of the Company, from time to time in effect, require.


 


3.                                       Section 3 is
amended to add the following:


 


(e)           Incentive Payment. In addition to the
annual base salary, bonus and other benefits payable to the Executive
hereunder, the Executive shall be entitled to receive a lump sum of $165,000
(the “Incentive Payment”) upon the earlier of (i) May 16, 2006 or (ii) 60 days
after the closing of the Asset Sale Agreement between the Company and Empire
Payphones, Inc., dated as of November 1, 2005.


 


4.                                       Section 4(a) of
the Agreement is deleted and replaced in its entirety by the following:


 


Term. The term of
this Agreement (the “Term”) shall commence as of the date of this Amendment and
shall continue in effect until the first anniversary of such date unless
terminated pursuant to Section 4(b). The Term may be renewed if the Executive
and Company agree.


 

















 


5.                                       Section 4(c) of
the Agreement is deleted and replaced in its entirety by the following:


 


Effect of Termination.
Upon termination of this Agreement and Executive’s employment hereunder, the
Company shall have no further obligation to the Executive or the Executive’s
estate with respect to this Agreement, except for payment of salary and bonus
amounts, if any, accrued pursuant to this Agreement and unpaid at the date of
termination; provided, however, that in the event of a termination of the
Executive pursuant to Section 4(b)(i), 4(b)(ii), 4(b)(iii) or 4(b)(v), the
Company shall continue medical insurance coverage for the Executive and his
dependents on the same terms as exist on the date hereof until the earlier of
the date that is the date one year following the date of termination and the
date Executive qualifies for substantially similar coverage from another
employer. If the Company terminates its medical insurance coverage plan, it
shall reimburse the Executive for the cost of obtaining substantially similar
coverage as existed for the Executive on the day prior to such termination. If
Executive and his dependents are not covered by substantially similar coverage
on the date that is one year following the date of termination and the Company
has not terminated its medical insurance coverage plan, Executive shall be
entitled to select up to eighteen months of continuation of coverage under
COBRA.


 


6.                                       Section 14 is
amended so that the address for Shannon Lowry Nagle, Esq. is the following:


 


Shannon Lowry Nagle, Esq.


Stroock & Stroock & Lavan LLP


180 Maiden Lane


New York, NY 10038


 


7.                                       All other
provisions of the Agreement not specifically amended by this Amendment shall
remain in full force and effect. All capitalized but undefined terms used
herein shall have the meaning ascribed to them in the Agreement. This Agreement
may be executed simultaneously in two or more counterparts each of which shall
be deemed an original and all of which shall be deemed one and the same
agreement. A photocopy or facsimile reproduction of this Amendment and any
signatures shall be deemed as effective as the original.


 


IN WITNESS WHEREOF, the Company and the Executive have each executed
and delivered this Agreement as of the effective date shown above.


 


	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ GUY A. LONGOBARDO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director, President and Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  March 29, 2006

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DAVID C. JONES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President of Human Resources and Investor Relations and Secretary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  Mearch 29, 2006

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/  MICHAEL
  H. MCCLELLAN

  	
   

  
	
   

  	
  Michael H. McClellan