**Exhibit 10.36**

 

HORIZON PCS, INC.

68 East Main Street

Chillicothe, Ohio 45601

 

# March 16, 2005

#  

William A. McKell

c/oHorizon PCS, Inc.

68 East Main Street

Chillicothe, Ohio 45601

 

Dear Bill:

 

Thisletter (“Letter Agreement”) sets forth our understanding regarding an amendmentto 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 ofReorganization for Horizon PCS, Inc., Horizon Personal Communications, Inc. andBright Personal Communications Services, LLC Under Chapter 11 of the BankruptcyCode (the “Employment Agreement”).  Allcapitalized terms not defined herein shall have the same meaning as yourEmployment Agreement.

 

Inconsideration of your continued employment with the Company and for other goodand valuable consideration the sufficiency of which is hereby acknowledged, Section 6of the Employment Agreement is amended to insert a new subsection (e)which shall provide the following:

 

(e)                                  Section 280GSafe Harbor Cap.          In the eventit shall be determined that any payment or distribution or any part thereof ofany type to or for the benefit of Executive whether pursuant to the Agreementor any other agreement between Executive and either the Company, any affiliatethereto, or any person or entity that acquires ownership or effective controlof 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 orpayable or distributed or distributable pursuant to the terms of the Agreementor any other agreement, (the “Total Payments”), is or will be subject to theexcise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthe Total Payments shall be reduced to the maximum amount that could be paid toExecutive without giving rise to the Excise Tax (the “Safe Harbor Cap”), if thenet after-tax payment to Executive after reducing Executive’s Total Payments tothe Safe Harbor Cap is greater than the net after-tax (including the ExciseTax) payment to Executive without such reduction.  The reduction of the amounts payablehereunder, if applicable, shall be made by reducing first the payment madepursuant to the Agreement and then to any other agreement that triggers suchExcise Tax, unless an alternative method of reduction is elected byExecutive.  All mathematical determinations, and all

 

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determinationsas to whether any of the Total Payments are “parachute payments” (within themeaning of Section 280G of the Code), that are required to be made underthis Section 6(e), including determinations as to whether the TotalPayments to Executive shall be reduced to the Safe Harbor Cap and theassumptions to be utilized in arriving at such determinations, shall be made bya nationally recognized accounting firm selected by the Company (the “AccountingFirm”).  If the Accountant determinesthat the Total Payments to Executive shall be reduced to the Safe Harbor Cap(the “Cutback Payment”) and it is established pursuant to a final determinationof a court or an Internal Revenue Service (the “IRS”) proceeding which has beenfinally and conclusively resolved, that the Cutback Payment is in excess of thelimitations provided in Section 6(e) (hereinafter referred to as an “ExcessPayment”), such Excess Payment shall be deemed for all purposes to be anoverpayment to Executive made on the date such Executive received the ExcessPayment and Executive shall repay the Excess Payment to the Company on demand;provided, however, if Executive shall be required to pay an Excise Tax byreason of receiving such Excess Payment (regardless of the obligation to repaythe Company), Executive shall not be required to repay the Excess Payment (ifExecutive has already repaid such amount, Company shall refund the amount tothe Executive), and the Company shall pay Executive an amount equal to thedifference between the Total Payments and the Shortfall Cap.

 

Exceptas otherwise provided for herein, your EmploymentAgreement shall remain in full force and effect.

 

If youare in agreement with the terms set forth in this Letter Agreement, pleaseexecute both copies and return one to the address set forth above.

 
|   | HORIZON PCS,  INC. |
|--------|--------------------|
|   |               |
|   | By:                |  /s/ Peter Holland |   |

 

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

 
| /s/ William A.  McKell |   |   |
|------------------------|--------|--------|

 

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