**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 asof December 5, 2002, as amended by the Amendment to Employment Agreement datedas of January 28, 2005 (collectively, the “Agreement”) between ETS Payphones,Inc. (the “Company”) and Michael H. McClellan (the “Executive”), is madeeffective 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, theconsummation of the Asset Sale Agreement between the Company and EmpirePayphones, Inc., dated as of November 1, 2005 (the “Asset Sale Agreement”) andthe transactions contemplated thereby and the dissolution and the winding downof the Company’s operations following the closing (the “Closing”) of the AssetSale Agreement.

 

Whereas the Board of Directors of the Company has determined that it isin the best interests of the Company that the salary and the change of controlprovisions of the Agreement be amended to ensure that Executive continue toserve the Company after the Closing, in order that the Closing and thedissolution and winding down of the Company thereafter are efficientlyadministered.

 

In consideration of the mutual agreements herein contained, and forother good and valuable consideration the receipt and sufficiency of which arehereby 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 thefollowing:

 

(f)            Reserved

 

(k)           Reserved

 

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

 

*Base Salary*. Inconsideration for the Executive’s services hereunder, the Company shall pay tothe Executive an annual base salary of $165,000 until the earlier of (i) such time as the Executive and theCompany otherwise agree or (ii) payment of the Incentive Payment pursuant toSection 3(e) of the Agreement, as amended. Upon payment to the Executive of theIncentive 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 Companyshall pay annual base salary in accordance with the normal payroll paymentpractices of the Company and subject to such deductions and withholdings as lawor policies of the Company, from time to time in effect, require.

 

3.                                       Section 3 isamended to add the following:

 

(e)           *Incentive Payment*. In addition to theannual base salary, bonus and other benefits payable to the Executivehereunder, 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 daysafter the closing of the Asset Sale Agreement between the Company and EmpirePayphones, Inc., dated as of November 1, 2005.

 

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

 

*Term*. The term ofthis Agreement (the “Term”) shall commence as of the date of this Amendment andshall continue in effect until the first anniversary of such date unlessterminated pursuant to Section 4(b). The Term may be renewed if the Executiveand Company agree.

 

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

 

*Effect of Termination*.Upon termination of this Agreement and Executive’s employment hereunder, theCompany shall have no further obligation to the Executive or the Executive’sestate with respect to this Agreement, except for payment of salary and bonusamounts, if any, accrued pursuant to this Agreement and unpaid at the date oftermination; provided, however, that in the event of a termination of theExecutive pursuant to Section 4(b)(i), 4(b)(ii), 4(b)(iii) or 4(b)(v), theCompany shall continue medical insurance coverage for the Executive and hisdependents on the same terms as exist on the date hereof until the earlier ofthe date that is the date one year following the date of termination and thedate Executive qualifies for substantially similar coverage from anotheremployer. If the Company terminates its medical insurance coverage plan, itshall reimburse the Executive for the cost of obtaining substantially similarcoverage as existed for the Executive on the day prior to such termination. IfExecutive and his dependents are not covered by substantially similar coverageon the date that is one year following the date of termination and the Companyhas not terminated its medical insurance coverage plan, Executive shall beentitled to select up to eighteen months of continuation of coverage underCOBRA.

 

6.                                       Section 14 isamended 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 otherprovisions of the Agreement not specifically amended by this Amendment shallremain in full force and effect. All capitalized but undefined terms usedherein shall have the meaning ascribed to them in the Agreement. This Agreementmay be executed simultaneously in two or more counterparts each of which shallbe deemed an original and all of which shall be deemed one and the sameagreement. A photocopy or facsimile reproduction of this Amendment and anysignatures shall be deemed as effective as the original.

 

IN WITNESS WHEREOF, the Company and the Executive have each executedand 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                 |
|        |                                      |  |  |  |  |  |  |  |  |  |  |

 

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