Exhibit 10.3


 


AMENDMENT DATED AS OF JANUARY 28, 2005

TO THE DECEMBER 4, 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 (collectively,
the “Agreement”) between ETS Payphones, Inc. (the “Company”) and Michael H.
McClellan (the “Executive”), is made effective as of January 28, 2005 .


 


Whereas the Executive has asked
that the Company modify the Change in Control conditions, and 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. Section 1(f) of the Agreement
is deleted and replaced in its entirety by the following:


 


(f)              “Change in Control”. 
For purposes of this Agreement, a Change in Control of the Company shall
have occurred if (i) any Person (as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934 (the “Exchange Act”) as modified and used in
Sections 13(d) and 14 (d) of the Exchange Act, other than (1) the Company or
any of its subsidiaries, (2) any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its subsidiaries, (3)
any underwriter temporarily holding securities pursuant to an offering of such
securities, or (4) any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportion as their
ownership of the Company’s common stock), is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 10% of the combined voting
power of the Company’s then outstanding voting securities; (ii) as a result of,
or in connection with, any cash tender or exchange offer, merger, consolidation
or other business combination, or contested election, or any combination of the
foregoing transactions (a “Transaction”), the persons who were directors of the
Company (or the nominees of the Board of Directors to replace such directors in
the event that such director does not stand for reelection) immediately before
the Transaction shall case to constitute a majority of the Board of Directors
of the Company or any successor to the Company, or the persons who were
stockholders of the Company immediately before the Transaction shall cease to
own at least 50% of the outstanding voting stock of the Company or any
successor to the Company; (iii) any sale or other disposition (in one or a
series of transactions) of all or substantially all of the Company’s assets; or
(iv) approval by shareholders of a complete liquidation or dissolution of the
Company.


 


2. 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.


 





















 


	
   

  	
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  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/ Michael H. McClellan

  	
   

  
	
   

  	
   

  
	
   

  	
  Michael H. McClellan, CFO