EXHIBIT 10.37
HORIZON PCS, INC.
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
March 16, 2005
Xxxxx Xxxxxxx
c/o Horizon PCS, Inc.
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
Dear Xxxx:
This letter ("Letter Agreement") sets forth our understanding
regarding an amendment to be made to your Employment Agreement, by and between
Horizon PCS, Inc. (the "Company") and yourself, effective as of the effective
date of the Joint Plan of Reorganization for Horizon PCS, Inc., Horizon Personal
Communications, Inc. and Bright Personal Communications Services, LLC Under
Chapter 11 of the Bankruptcy Code (the "Employment Agreement"). All capitalized
terms not defined herein shall have the same meaning as your Employment
Agreement.
In consideration of your continued employment with the Company and
for other good and valuable consideration the sufficiency of which is hereby
acknowledged, Section 6 of the Employment Agreement is amended to insert a new
subsection (e) which shall provide the following:
(e) Section 280G Safe Harbor Cap. In the event it shall be
determined that any payment or distribution or any part thereof of any
type to or for the benefit of Executive whether pursuant to the Agreement
or any other agreement between Executive and either the Company, any
affiliate thereto, or any person or entity that acquires ownership or
effective control of the Company or ownership of a substantial portion of
Company's assets (within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder (the
"Code")) whether paid or payable or distributed or distributable pursuant
to the terms of the Agreement or any other agreement, (the "Total
Payments"), is or will be subject to the excise tax imposed by Section
4999 of the Code (the "Excise Tax"), then the Total Payments shall be
reduced to the maximum amount that could be paid to Executive without
giving rise to the Excise Tax (the "Safe Harbor Cap"), if the net
after-tax payment to Executive after reducing Executive's Total Payments
to the Safe Harbor Cap is greater than the net after-tax (including the
Excise Tax) payment to Executive without such reduction. The reduction of
the amounts payable hereunder, if applicable, shall be made by reducing
first the payment made pursuant to the Agreement and then to any other
agreement that triggers such Excise Tax, unless an alternative method of
reduction is elected by Executive. All mathematical determinations, and
all
determinations as to whether any of the Total Payments are "parachute
payments" (within the meaning of Section 280G of the Code), that are
required to be made under this Section 6(e), including determinations as
to whether the Total Payments to Executive shall be reduced to the Safe
Harbor Cap and the assumptions to be utilized in arriving at such
determinations, shall be made by a nationally recognized accounting firm
selected by the Company (the "Accounting Firm"). If the Accountant
determines that the Total Payments to Executive shall be reduced to the
Safe Harbor Cap (the "Cutback Payment") and it is established pursuant to
a final determination of a court or an Internal Revenue Service (the
"IRS") proceeding which has been finally and conclusively resolved, that
the Cutback Payment is in excess of the limitations provided in Section
6(e) (hereinafter referred to as an "Excess Payment"), such Excess Payment
shall be deemed for all purposes to be an overpayment to Executive made on
the date such Executive received the Excess Payment and Executive shall
repay the Excess Payment to the Company on demand; provided, however, if
Executive shall be required to pay an Excise Tax by reason of receiving
such Excess Payment (regardless of the obligation to repay the Company),
Executive shall not be required to repay the Excess Payment (if Executive
has already repaid such amount, Company shall refund the amount to the
Executive), and the Company shall pay Executive an amount equal to the
difference between the Total Payments and the Shortfall Cap.
Except as otherwise provided for herein, your Employment Agreement
shall remain in full force and effect.
If you are in agreement with the terms set forth in this Letter
Agreement, please execute both copies and return one to the address set forth
above.
HORIZON PCS, INC.
By: /s/ Xxxxxxx X. XxXxxx
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Agreed to and accepted on this 16th day of March, 2005 by:
/s/ Xxxxx X. Xxxxxxx
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