Exhibit 10.20


 


December 21, 2009


 


Mr. Geoffrey Loui


1177
Bishop Street


Honolulu,
HI 96813


 


Dear
Geoffrey:


 


You
and Hawaiian Telcom Communications, Inc. (the “Company”) signed an
employment agreement dated July 25, 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; and


 


(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 23,
  2009

  
	
   

  	
   

  	
   

  
	
  Agreed
  and Accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Geoffrey Loui

  	
   

  	
   

  
	
  Geoffrey
  Loui

  	
   

  	
   

  
	
  December 23,
  2009

  	
   

  	
   

  



 


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