Exhibit 10.38


 


HORIZON PCS, INC.


68 East Main Street


Chillicothe, Ohio 45601


 


March 16, 2005


 


Monesa Skocik


c/o
Horizon PCS, Inc.


68 East Main Street


Chillicothe, Ohio 45601


 


Dear Monesa:


 


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/ William A.
  McKell

  	
   

  
	
   

  	
   

  



 


Agreed
to and accepted on this 16 day of March, 2005 by:


 


	
  /s/ Monesa
  Skocik

  	
   

  	
   

  



 


2