Exhibit
10.24


 





 


December 21, 2009


 


Mr. Michael F. Edl


1177 Bishop Street


Honolulu, HI 96813


 


Dear Michael:


 


You and Hawaiian Telcom
Communications, Inc. (the “Company”) signed an employment agreement
dated July 21, 2008 (the “Employment Agreement”).  In order to provide clarity regarding the
parties’ intent, you and the Company have agreed to modify the Employment
Agreement as set forth herein. We note in particular that although we believe  the current Good Reason provisions in  Sections 1(j) and 1(k) of the
Employment Agreement comply with Section 409A of the Internal Revenue Code
of 1986, as amended, out of an abundance of caution we have agreed to modify
those provisions.  Except as otherwise
amended in this letter agreement, the Employment Agreement remains in full
force and effect.


 


1.     Section 1(h) of
the Employment Agreement is hereby amended and restated in its entirety as
follows:


 


(h)   “Disability” shall
mean the absence of the Executive from the Executive’s duties to the Company on
a full-time basis for a total of six months during any 12-month period as a
result of incapacity due to mental or physical illness, which determination is
made by a physician selected by the Company and acceptable to the Executive or
the Executive’s legal representative (such agreement as to acceptability not to
be withheld unreasonably). 
Notwithstanding the foregoing, a Disability shall not be “incurred”
hereunder until, at the earliest, the last day of the sixth month of such
absence and in no event shall Executive be determined to be Disabled unless
such physician determines that such illness can be expected to result in death
or can be expected to last for a continuous period of not less than 12 months.


 


2.     Sections 1(j) and
1(k) of the Employment Agreement are hereby amended and restated in their
entirety as follows:


 


(j)    The Executive shall have “Good
Reason” to resign his employment upon the occurrence of any of the
following:


 


1.     a material diminution in
Executive’s or the Chief Executive Officer’s authority, duties or
responsibilities;


 

















 


2.     the Company’s material
breach of this Agreement (including, without limitation, the Company’s material
failure to provide payments or benefits required under this Agreement); or


 


3.     the relocation of the
Executive’s principal office, without his consent, to a location that is in
excess of 100 miles from Honolulu, Hawaii.


 


(k)   The Executive may not resign
his employment for Good Reason unless:


 


1.     the Executive provides the
Company with at least 30 days prior notice of his intent to resign for Good
Reason (such notice to be provided to the Company within 90 days of the initial
act of omission claimed to give rise to Good Reason); and


 


2.     the Company does not remedy
the alleged violation(s) within the 30-day notice period.


 


3.     Section 5
of the Employment Agreement is hereby amended and restated in its entirety as
follows:


 


5.             Severance Payments.


 


(a)           Termination for
Cause or resignation without Good Reason.  If the Executive’s employment shall terminate
pursuant to sections 4(a)(iii) for Cause, or Section 4(a)(vi) without
Good Reason, the Executive shall not be entitled to any severance payment.


 


(b)           Termination
upon death or Disability.  If
the Executive’s employment shall terminate pursuant to Sections 4(a)(i) due
to the Executive’s death, or pursuant to Section 4(a)(ii) due to the
Executive’s Disability, the Company shall pay to the Executive (or the
Executive’s estate):


 


(i)            within 30 days following the
date of death or Disability, as applicable, and otherwise in separate and distinct
equal installment payments in accordance with the Company’s regular payroll
practice at the time of Executive’s death or Disability, an amount equal to the
Annual Base Salary that the Executive would have been entitled to receive if
the Executive had continued his employment for a period of six months following
the date of death or Disability, as applicable; and


 


(ii)           a prorated amount of the
Executive’s annual bonus based on the Company’s year-to-date performance
through the date of death or Disability, as applicable, in relation to the
performance targets set forth in the Bonus Plan (such amount to be determined
in good faith by the Compensation Committee and paid in the calendar year
following the calendar year in which the death or Disability occurs at such
time as bonuses are paid to other executive officers who participate in the
Bonus Plan).


 


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(c)           Termination without Cause or
Resignation for Good Reason.


 


(1)           If the Executive’s
employment shall terminate without Cause pursuant to Section 4(a)(iv) or
for Good Reason pursuant to Section 4(a)(v) (and such
termination constitutes a “separation from service” as defined in Treasury
Regulation 1.409A-1(h) (“Separation”)), the Company shall:


 


(i)            Continue to pay, in separate
and distinct equal installment payments in accordance with normal payroll
practices at the time of the Separation, the Executive’s Annual Base Salary for
the period beginning on the date of Separation and ending on the earliest to
occur of (a) the twelve month anniversary of the date of Separation, (b) the
first date the Executive violates any covenant contained in Section 6,
(c) the fifth (5th) day following the date of Separation in the event the
Company has not received by that date the Executive’s executed general waiver
and release of claims in the Company’s customary form and voluntary waiver of
any review period, (d) the first date of the Executive’s revocation of the
general waiver and release, or (e) the first date of the Executive’s
employment or consultancy (whether as an employee, independent contractor, or
otherwise) with another company based on more than twenty (20) hours per week
(and the Executive hereby agrees to inform the Company immediately upon his
becoming such an employee or consultant with another company); and


 


(ii)           Continued coverage (at the
Company’s expense), for the period set forth in clause (i) above, for the
Executive and any dependents under the Company group health benefit plan in
which the Executive and any dependents were entitled to participate immediately
prior to the date of Separation, excluding Exec-U-Care or similar supplemental
coverage policies for senior executives; and


 


(iii)          Pay you a pro-rated bonus
for the year of Separation, which except for the pro-ration shall be pursuant
to the terms and conditions set forth in the Bonus Plan and shall be paid in
the calendar year following the calendar year in which the Separation occurs at
such time as bonuses are paid to other executive officers who participate
therein.


 


(2)           This Section 5(c)(2) shall
apply only to the extent that any payment under this Agreement constitutes “nonqualified
deferred compensation” for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and not to payments that
are exempt from Section 409A of the Code (due to, for example, application
of the short term deferral rule or separation pay exceptions).  To the extent any such payment of any amount
constitutes “nonqualified deferred compensation” and the Executive is deemed on
the date of termination to be a “specified employee” within the meaning of Code
Section 409A(a)(2)(B), any amounts to which Executive is entitled under
this Section 5 that constitute “non-qualified deferred compensation” under
Code Section 409A and would otherwise


 


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be payable prior to the
earlier of (i) the 6-month anniversary of the Executive’s Separation and (ii) the
date of the Executive’s death (the “Delay Period”) shall instead be paid
in a lump sum immediately upon (and not before) the expiration of the Delay
Period to the extent such delay is required under Section 409A of the
Code.  Any lump sum payment of delayed
payments under this Section 5(c)(2) shall be paid with interest to
reflect the period of delay, with such interest to accrue at the prime rate in
effect at Citibank, N.A. at the time of the Separation.  Any remaining payments due under the
Agreement shall be paid as otherwise provided herein.  The determination of whether the Executive is
a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i) as
of the time of Separation shall made by the Company in accordance with the
terms of Code Section 409A and applicable guidance thereunder (including
without limitation Treasury Regulation Section 1.409A-1(i) and any
successor provision thereto).


 


In the event the Company
modifies the terms of the severance benefits applicable to Senior Vice
Presidents of the Company, the severance benefits described in this Section 5
will be modified on a consistent basis


 


(d)           Survival. The
termination of employment hereunder shall not impair the rights or obligations
of any party that accrued prior to such termination.


 


This amendment to the
Employment Agreement may be executed in two or more counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.  This letter
agreement shall be governed and construed under the internal laws of the State
of Hawaii and may be executed in several counterparts.


 


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  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ William Chung

  
	
   

  	
   

  	
  William Chung

  
	
   

  	
   

  	
  VP – Human
  Resources & Labor Relations

  
	
   

  	
   

  	
  December 30, 2009

  
	
   

  	
   

  	
   

  
	
  Agreed and Accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Michael F. Edl

  	
   

  	
   

  
	
  Michael F. Edl

  	
   

  	
   

  
	
  December 30, 2009

  	
   

  	
   

  



 


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