Exhibit 4(a)

 

HAWAIIAN ELECTRIC INDUSTRIES, INC.

DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN

(As amended and restated effective October 6, 2014)

 

Section 1.                                            Name and Number of Shares

 

The plan, as amended and restated effective as of the date set forth above, shall be known as the “Dividend Reinvestment and Stock Purchase Plan” (the “Plan”).  The Plan permits (i) holders of record of the Common Stock of Hawaiian Electric Industries, Inc. (the “Company”), (ii) holders of record of the preferred stock (“Preferred Stock”) of any class or series of Hawaiian Electric Company, Inc., Maui Electric Company, Limited and Hawaii Electric Light Company, Inc., each of which is a direct or indirect subsidiary of the Company, and (iii) any other individual of legal age or any entity, to purchase common stock of the Company (“Common Stock”).  The number of shares of Common Stock that may be issued pursuant to the Plan shall be fixed from time to time by the Board of Directors of the Company.

 

Section 2.                                            Administration and Costs

 

The administrator of the Plan (the “Administrator”) shall administer the Plan for participants, keep records, send statements of accounts to participants, and perform other clerical and ministerial duties relating to the Plan.  The Administrator may be the Shareholder Services division of the Company or may be one or more officers or employees of the Company or of its subsidiaries who shall be appointed from time to time by the President or the Chief Financial Officer of the Company.  If the Administrator is one or more employees of the Company, an independent trustee (the “Trustee”) shall be appointed by the President or the Chief Financial Officer of the Company, and shares under the Plan shall be registered in the name of the Trustee.

 

Except as otherwise expressly provided in the Plan, participants in the Plan will bear the cost of brokerage fees and commissions, any service charges and applicable taxes related to shares purchased or sold on the open market.  The Company may also charge each participant fees up to amounts that are reasonably related to the actual administrative costs of the Plan, the amounts, frequency and manner of payment of which shall be determined from time to time by the President or the Chief Financial Officer of the Company.  As of the effective date hereof, the Company charges participants who reinvest dividends a fee of $0.50 per quarter (subject to change with prior notice) to defray in part the administrative costs of the Plan.

 

A $20 service fee (which increases to $25 from and after January 1, 2015) will be assessed for each returned item that is returned for insufficient funds or other reasons due to the negligence of the shareholder as determined by the Administrator.  The Administrator may place a hold on the account until the “insufficient funds” fee is received, sell shares from the account to collect the “insufficient funds” fee, or withhold the amount of the “insufficient funds” fee from future optional cash investments.

 

 

Section 3.                                            Eligibility and Enrollment

 

The following persons shall be eligible to participate in the Plan (the “participants”) in accordance with the following enrollment procedures:

 

(a)                                  Each holder of record of Common Stock and/or Preferred Stock shall be eligible to participate in the Plan.  In order to participate in the Plan, owners of Common Stock and/or Preferred Stock whose shares are registered in names other than their own (e.g., broker, bank nominee) must first become holders of record by having shares of Common Stock and/or Preferred Stock, as the case may be, transferred into their own names.  In addition, an eligible shareholder must complete and sign the Company-approved authorization form (“Shareholder Authorization Form”) for Common Stock and/or Preferred Stock, as the case may be, and return it to the Administrator in the manner prescribed on the current Shareholder Authorization Form or in the current prospectus for the Plan.  A Shareholder Authorization Form must be received by the Administrator by the dividend record date in order for the dividends for which the record is taken to be reinvested under the Plan.  The execution of a Shareholder Authorization Form will result in the participation in the Plan of all Common Stock and all classes and series of Preferred Stock registered in the participant’s name unless the participant indicates on the Form the number and kind of shares on which the participant wishes to receive cash dividends.  If a participant does not select an option on the Shareholder Authorization Form, all dividends for all shares of Common Stock and Preferred Stock held in the participant’s name, and on all shares held under the Plan for the participant, will be reinvested in Common Stock of the Company.  A participant may change any of the designations set forth in a Shareholder Authorization Form by sending a signed written request to the Administrator specifying the requested change.

 

(b)                                  Any other individual of legal age or entity shall be eligible to participate in the Plan.  In order to participate in the Plan, each such individual or entity must complete and sign the Company’s enrollment form (the “Nonholder Enrollment Form”) and return it to the Administrator along with a check or money order made payable to HEI/DRIP for an initial stock purchase of not less than $250 and not more than $300,000.  The execution of a Nonholder Enrollment Form will result in the reinvestment of all dividends held under the Plan for the participant, unless the participant notifies the Administrator in writing of a different investment option.

 

(c)                                   Each participant may, pursuant to the Shareholder Authorization Form, Nonholder Enrollment Form and/or such other forms as the Administrator may from time to time prescribe, elect one of the following three investment options:  (1) under the “full dividend reinvestment” option, a participant may reinvest cash dividends on all shares of Common Stock and Preferred Stock registered in the name of a participant and on all shares of Common Stock held under the Plan for the participant to purchase additional shares of Common Stock; (2) under the “partial dividend reinvestment” option, a participant may receive cash dividends on a portion of the shares of Common Stock and/or Preferred Stock registered in such participant’s name and/or on a portion of the shares of Common Stock held under the Plan for the participant, and reinvest the remainder of cash dividends on such shares to purchase Common Stock; and (3) under the “optional cash investment only/no dividend reinvestment” option, a participant may receive cash dividends on all shares of Common Stock and/or Preferred Stock registered in the participant’s name and on shares of Common Stock held under the Plan for the participant.  If

 

2

 

participants do not indicate an investment option on the enrollment form, their account will be automatically enrolled in the “Full Dividend Reinvestment” option.  Under any of the investment options, a participant may purchase additional shares of Common Stock under the Plan by making optional cash investments in the Plan as provided under Section 5.  A participant may change such participant’s investment option by following the procedures under Section 3(a) for changing the designations set forth in a Shareholder Authorization Form and/or such other procedures as the Administrator may from time to time prescribe.

 

(d)                                  Shareholder Authorization and Nonholder Enrollment Forms shall be made available by the Administrator.

 

(e)                                   Each participant will remain a participant in the Plan until participation is terminated pursuant to Section 12 hereof or until the Plan itself is terminated.

 

(f)                                    The Company reserves the right to restrict or terminate a participant’s participation in the Plan if it believes that such participation may be contrary to the general intent of the Plan or in violation of applicable law.

 

Section 4.                                            Cash Dividend Purchases

 

If a participant has elected full or partial dividend reinvestment on the shares of Common Stock or Preferred Stock registered in such participant’s name or on the shares of Common Stock held under the Plan for such participant, such cash dividends will be credited to each participant’s account under the Plan and will be automatically reinvested to purchase Common Stock on behalf of the participants during the applicable Investment Period as described in Section 7.  Until participation in the Plan is terminated pursuant to Section 12 hereof, Common Stock and/or Preferred Stock participating in the Plan shall include (1) all shares of each class or series of shares of Common Stock and/or Preferred Stock, as the case may be, designated by registered holders of such shares in Shareholder Authorization Forms that have been received by the Company by the record date for the payment of a cash dividend, including all such shares purchased after receipt of said form, and all shares received as a result of a stock dividend or stock split, (2) all shares of Common Stock transferred to the Administrator (or the Trustee) for safekeeping under the Plan, and (3) all shares of Common Stock purchased under the Plan for the accounts of shareholders and non-holder investors, including all shares purchased with reinvested dividends and optional cash investments, unless said shares have been withdrawn pursuant to Section 13 hereof and are registered in the name of a person who has not signed a Shareholder Authorization Form.

 

In the case of participants whose dividends on Common Stock and/or Preferred Stock are subject to United States income tax withholding, the amount of tax to be withheld will be deducted from the amount of dividends on Common Stock and/or Preferred Stock to determine the amount of dividends to reinvest.

 

The Administrator will credit dividends for all shares of Common Stock and/or Preferred Stock participating in the Plan (other than dividends paid on shares as to which the participant has elected to receive cash dividends) to the participants’ accounts on the basis of full and fractional shares held in these accounts and will automatically reinvest such dividends (less

 

3

 

any administration fees and any amounts required to be withheld by United States income tax law) in additional shares of Common Stock.

 

Section 5.                                            Optional Cash Investments

 

All participants, whether or not they have authorized the reinvestment of cash dividends on Common Stock or Preferred Stock, shall be eligible to make optional cash investments for purchases of additional shares of Common Stock under the Plan.  Optional cash investments shall be made by check or money order in U.S. Dollars payable to HEI/DRIP or may be made in a predetermined amount each month by electronic funds transfer from a bank account designated by a participant (an “automatic investment”).  Employees and directors of the Company and certain of its subsidiaries may also make optional cash investments by payroll deduction, or by such other means, in each case subject to approval by the Chief Financial Officer of the Company or the Administrator.  Optional cash investments may not be less than $25, nor may such investments exceed $300,000 in the aggregate in any calendar year.  The initial payment made by a non-holder investor upon enrollment in the Plan may not be less than $250 or greater than $300,000.  Optional cash investments must be received by the Administrator by the Cash Deadline Date in order to be invested on or commencing on that Investment Date (as defined in Section 7 below).  The “Cash Deadline Dates” for optional cash investments are the 10 th  and 25 th  day of each month or the prior business day if the 10 th  and 25 th  day of the month falls on a weekend or holiday.  The Administrator will send the participant a statement recording receipt and transmittal of the total optional cash investments received for the Investment Period.  The Plan will not be required to accept any checks payable to a party other than HEI/DRIP even if endorsed for payment to the Plan.

 

The Administrator must receive requests for refunds of optional cash investments in writing by the Cash Deadline Date before the applicable Investment Date.  Refunds will be processed as soon as practicable.  A participant may not request a refund for an investment made through the automatic investment option.

 

Section 6.                                            Method of Purchase of Shares

 

The Plan will satisfy its requirements for shares of Common Stock either through purchases from the Company of authorized but unissued shares or through open market purchases of shares.  Open market purchases under the Plan, if any, will be made through an independent agent that is a registered “broker-dealer” or “bank,” as such terms are defined in Section 3(a)(6) of the Securities Exchange Act of 1934 (“Broker”).  Neither the Administrator nor the Company, nor any affiliate thereof, shall exercise any direct or indirect control or influence over the times when or the prices at which the Broker may purchase the Company’s Common Stock for the Plan, the amounts of shares to be purchased (other than the aggregate dollar amount acquired by the Plan), the manner in which the shares are to be purchased, or the selection by the Broker of a broker or dealer through which purchases may be executed.  The Company shall not change the method of acquiring shares of Common Stock to satisfy the Plan’s requirements, including any change from purchases from the Company of authorized but unissued shares of Common Stock to open market purchases, or vice versa, more than once in any three-month period.  The method of acquiring shares will be determined only at the direction of the Board of Directors or the Chief Financial Officer of the Company.  Any change to the

 

4

 

method of acquiring shares must be based on a written determination by the Board of Directors or the Chief Financial Officer of the Company, retained in the corporate records of the Company, that the Company’s need to raise additional capital has changed, or that there is another valid reason for such change.

 

All dividend payments (unless invested in shares of Common Stock issued by the Company on the dividend payment date) will be transmitted not later than the dividend payment date to a segregated escrow account or to the Broker and all optional cash investments will be transferred to a segregated escrow account by the end of the next business day following the day of receipt of the optional cash investment.

 

Section 7.                                            Timing of Purchases

 

Optional cash investments and dividend payments will be invested in shares of Common Stock on or after the applicable Investment Date.  The “Investment Dates” for optional cash investments shall be the 15th and 30th days of each month (except that the Investment Date for February shall be the last day of the month).  The “Investment Date” for Common Stock dividends and for Preferred Stock dividends shall be on or within three (3) business days prior to the applicable dividend payment date.  If any date for investment of dividends or optional cash investments as stated above is not a business day, the “Investment Date” shall be the next succeeding business day.

 

Interest will not be paid on optional cash investments or on reinvested dividends prior to or after their investment in Common Stock or if for any reason such payments and dividends are not invested pursuant to the Plan.

 

Shares purchased from the Company shall be purchased on the applicable Investment Date.  Shares purchased on the open market shall be purchased during the period commencing on each applicable Investment Date and ending thirty (30) days thereafter (each, an “Investment Period”); provided, however, that optional cash investments not invested within thirty (30) days of the Investment Date and dividend payments not invested within thirty (30) days of the dividend payment date shall be promptly returned, without interest, to the participants.  In addition, funds that are not invested during the applicable Investment Period will be promptly returned, without interest, to the participants.

 

Shares of Common Stock purchased directly from the Company will be credited to participants’ accounts on the date purchased.  Shares purchased on the open market during an applicable Investment Period will be credited to participants’ accounts as of the settlement date of purchase of the last share.  The Broker will be instructed prior to the commencement of each Investment Period regarding the amount of funds to be used to purchase shares of Common Stock on the open market during such Investment Period.

 

If the Broker is directed but unable to purchase sufficient shares in the open market with cash dividends and/or optional cash investments during any Investment Period, the Common Stock that is purchased on the open market will be allocated among participants’ accounts on a pro rata basis according to the amount each participant had contributed in cash dividends and, if there are any shares remaining, on a pro rata basis according to the amount each

 

5

 

participant had contributed in optional cash investments.  Any remaining funds not so invested will be returned to participants.

 

If a participant has elected full or partial dividend reinvestment on the shares of Common Stock or Preferred Stock registered in such participant’s name or on shares of Common Stock held under the Plan for such participant, the cash dividends to be reinvested for such participant will remain with the Company if reinvested on the dividend payment date in shares of Common Stock purchased from the Company or will be delivered by the Company to the escrow account or the Broker as described in Section 6 concurrently with payment of cash dividends to nonparticipating shareholders.  Optional cash investments will be made by participants directly to the Administrator.  The Administrator will deliver or cause the Company to deliver funds to the escrow account or the Broker as described in Section 6.

 

Section 8.                                            Purchase Price of Shares

 

The purchase price per share of Common Stock purchased for the accounts of participants directly from the Company will be 100% of the average of the high and low sales prices for the Common Stock on the composite tape for stocks listed on the New York Stock Exchange on the business day prior to the applicable Investment Date or such later date as such stock is purchased (or the last prior day on which the Common Stock is traded if there is no trade reported on the business day prior to the applicable Investment Date or such later date).  The purchase price per share of Common Stock purchased on the open market will be the weighted average price per share (adjusted for brokerage fees and commissions, any service charges and applicable taxes) of the aggregate number of shares acquired on the open market by the Broker during the applicable Investment Period.  Amounts to be invested in shares of Common Stock during any Investment Period will not be pooled with amounts to be invested during another Investment Period for purposes of computing per share prices.  Amounts to be invested in any Investment Period will be invested to the extent possible before any purchases are executed for any subsequent Investment Period.

 

Section 9.                                            Registration of Shares

 

Shares of Common Stock purchased under the Plan will be registered in the name of the Administrator (or the Trustee, if there is a Trustee) as agent for the participants.  Shares will not be issued to participants unless requested pursuant to Section 13 hereof.

 

For safekeeping or other purposes, holders of record of Common Stock who submit Shareholder Authorization Forms may elect to transfer their shares of Common Stock to the Administrator (or the Trustee, if there is a Trustee), without charge, to the credit of their account under the Plan, pursuant to such procedures as the Company and the Administrator shall establish.

 

Section 10.                                     Participants’ Accounts

 

The Administrator shall keep an individual account for each participant recording the participant’s interest in the Plan.  Each participant’s account will be credited with that number of shares, including fractions computed to four decimal places, equal to the total amount of cash

 

6

 

dividends or optional cash investments to be invested, less administrative fees and amounts required to be withheld for tax purposes, divided by the applicable purchase price per share.

 

Section 11.                                     Reports to Participants

 

Participants who reinvest dividends and/or make optional cash investments will receive periodic statements of account showing amounts invested, purchase prices, shares purchased and sold and/or other relevant information, including information for income tax reporting purposes.  In addition, each participant shall receive, and/or be provided notification of and electronic access to, the Company’s annual reports to shareholders and proxy materials.

 

Section 12.                                     Termination of Participation

 

A participant must wait at least two (2) weeks after the purchase of shares before terminating participation in the Plan.  A participant may terminate participation in the Plan as to all (but not less than all) Common Stock and Preferred Stock participating in the Plan at any time with a signed written notification to the Administrator.  Any notice of termination received on or after an ex-dividend record date may not be processed until dividends have been paid, credited to the participant’s Plan account and reinvested in additional shares of Common Stock in accordance with the Plan.  Within ten (10) business days after the later to occur of (a) receipt of notice of termination from a participant, (b) purchase of shares on behalf of the participant pursuant to the Plan and (c) reinvestment of dividends if the participant’s notice of termination is received after an ex-dividend record date, whole shares of Common Stock credited to the participant’s Plan account will be issued (either in certificated form or by book-entry) and a cash payment will be made for any fraction of a share.  In no case will a fractional share be issued.

 

A participant must maintain at least one (1) whole share of Common Stock in the Plan (increased to five whole shares from and after January 1, 2015) to keep an active account.  If a participant does not do so, the participant’s participation in the Plan may be terminated, in which case the participant will receive a cash payment in the amount of the net proceeds of the sale of all shares (and fraction of a share) in the Plan (determined in the manner provided in Section 14 hereof for shares sold by the Administrator.)

 

Termination of participation in the Plan will not necessarily preclude re-enrollment, but the Company reserves the right to reject re-enrollment where in its sole discretion it deems there have been excessive terminations and re-enrollments.  If you are no longer a shareholder of record you can seek to enroll by completing a Nonholder Enrollment form along with a $250.00 minimum investment.

 

The term “ex-dividend record date” for purposes of the Plan is three (3) business days prior to the dividend record date.

 

Section 13.                                     Withdrawal of Shares

 

A participant must wait at least two (2) weeks after the purchase of shares before withdrawing shares from the Plan.  A participant must also wait at least two (2) weeks before withdrawing shares from the Plan after updating the participant’s address of record unless the

 

7

 

request is submitted with a valid Medallion Signature Guarantee or by complying with other requirements that the Company or Administrator shall establish.  Subject to these limitations, a participant may withdraw all or a portion of shares of Common Stock from the participant’s account by notifying the Administrator with a signed written request to that effect and specifying the whole number of shares to be withdrawn.  Withdrawal of shares must be in full shares only.  Fractional shares will be liquidated upon termination of participation as described under Section 12.  Any notice of withdrawal received on or after an ex-dividend record date may not be processed until dividends have been paid, credited to the participant’s Plan account and reinvested in additional shares of Common Stock in accordance with the Plan.  Within ten (10) business days after the later to occur of (a) receipt of notice of withdrawal from a participant, (b) purchase of shares on behalf of the participant pursuant to the Plan, and (c) reinvestment of dividends if the participant’s notice of withdrawal is received on or after an ex-dividend record date, certificates for whole shares of Common Stock so withdrawn will be issued or appropriate book entry recording ownership of such withdrawn shares will be made.  A cash payment will be made for any fraction of a share.  In no case will certificates or book entries for fractional shares be issued.  A service fee of $20 per certificate may be charged to the shareholder.  There is no charge for shares issued by book entry.

 

Shares withdrawn from the Plan and registered in the participant’s name will continue to participate in the Plan if the participant has so instructed the Administrator pursuant to a Shareholder Authorization Form and has not terminated participation pursuant to Section 12 hereof.

 

Accounts are maintained in the names used by participants at the time they entered the Plan.  However, a participant who wishes to withdraw shares and have the shares issued in the name of another person may do so by submitting a properly completed and executed stock power, with a Medallion Signature Guarantee, and complying with such other procedures as the Company or Administrator shall establish.

 

Section 14.                                     Sale and Transfer of Shares

 

Unless the participant satisfies the requirements specified in Section 13 for the issuance of share certificates or book entry shares in the name of another person, shares of Common Stock credited to a participant’s account under the Plan or otherwise registered in the Administrator’s (or Trustee’s) name may not be pledged, encumbered, sold or otherwise transferred by a participant.  Absent satisfaction of said requirements, a participant wishing to sell, pledge, encumber or otherwise dispose of shares must have those shares registered in his name by terminating participation in the Plan pursuant to Section 12 or withdrawing the shares pursuant to Section 13.

 

A participant who wishes to receive cash in lieu of shares of Common Stock upon termination of participation or withdrawal of shares may request that the Administrator sell such shares and deliver the net proceeds to the participant.  Sale requests will be processed within ten (10) business days of receipt unless the request is a termination, in which case it will be processed pursuant to Section 12.  A participant must wait at least two (2) weeks after the purchase of shares in the Plan before selling the recently purchased shares.  A participant must also wait at least two (2) weeks before selling shares from the Plan after updating the

 

8

 

participant’s address of record unless the request is submitted with a valid Medallion Signature Guarantee or by complying with other requirements that the Company or Administrator shall establish.  The amount payable to the participant from the sale will be equal to the proceeds of the sale less any withholding required under applicable tax laws and less a fee.  The fee is currently equal to brokerage commissions and a $15 service fee incurred in connection with the sale but, from and after January 1, 2015, the fee shall be a fixed fee of 10 cents per share to cover brokerage commissions and service fees.  In the event of a delay in the sale of shares, interest will not be paid to the participant and the participant assumes the risk of any price fluctuations.  When the Administrator is required to report information concerning the sale of a participant’s shares in the Plan for tax or other purposes, the Administrator will use the first in, first out (“FIFO”) method for determining which shares have been sold unless the participant has notified the Administrator prior to the sale of the shares if the participant wishes to use an IRS-approved method other than FIFO to determine the shares being sold.

 

Section 15.                                     Voting of Shares

 

Each participant will be mailed or sent electronically (for those participants who have agreed to such electronic delivery) proxy materials for each meeting of shareholders of the Company, or will be provided with notice and access to proxy materials in accordance with the rules and regulations of the Securities and Exchange Commission, to allow participants to vote on each issue at the meeting.  Participants may vote by using the Internet, telephone or by signing and returning the proxy form.  Shares registered in the participant’s name will be voted directly as instructed, and shares held in the Plan in the participant’s name will be voted by the Administrator or Trustee, as the case may be, as instructed by the participant.  If the participant does not provide instructions on how to vote the shares held in the Plan, the Administrator or the Trustee, as the case may be, shall be deemed instructed to vote the shares of Common Stock it holds in the Plan in accordance with the recommendations of the Company’s Board of Directors on each issue.

 

Section 16.                                     Limitation of Liability

 

Neither the Company nor the Administrator nor the Trustee nor the Escrow Agent nor the Broker nor any of their respective officers, directors, representatives, employees or agents shall be liable for any damages resulting from any act or omission in connection with the Plan in the absence of bad faith or gross negligence including, without limitation, any claim of liability arising out of failure to terminate a participant’s account upon the participant’s death, the price or timing at which shares are purchased for participants’ accounts or fluctuations in the market value of shares.  However, the foregoing in no way affects a participant’s right to bring a cause of action based on alleged violations of federal securities laws.

 

Section 17.                                     Common Stock Adjustment Provisions

 

If the outstanding shares of Common Stock of the Company are decreased or exchanged for a different number or kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to such shares of Common Stock or other securities, through merger, consolidation, sale of all or substantially all of the property of the Company, recapitalization, reclassification, stock dividend, stock split, reverse

 

9

 

stock split or other distribution with respect to such shares of Common Stock or other securities, an appropriate and proportionate adjustment may, subject to the requirements of federal and state securities laws and regulations, be made by the Company to the maximum number and kind of shares of Common Stock or other securities issuable under the Plan that are subject to an effective registration statement filed with the Securities Exchange Commission pursuant to the Securities Act of 1933, as amended.

 

Section 18.                                     Other Matters

 

The Board of Directors or Chief Financial Officer of the Company shall determine the effective date of the Plan as most recently amended hereby.

 

The Company intends to continue the Plan indefinitely, but reserves the right to suspend or terminate the Plan at any time.  The Company also reserves the right to make any additions or modifications to the Plan.  The Chief Financial Officer of the Company may interpret the Plan and may make additions thereto that are not inconsistent with the above provisions of the Plan.

 

In the event any stock dividends or split shares are distributed by the Company on shares of Common Stock credited to the account of a participant under the Plan, such shares will be added to the participant’s account.  Stock dividends or split shares distributed on any shares of Common Stock registered in the name of a participant will be distributed to the participant in the same manner as to shareholders who are not participating in the Plan.

 

In the event that the number of shares of Common Stock to be purchased by the participants in the Plan exceeds the balance of the shares authorized by the Board of Directors to be sold pursuant to the Plan, then the Plan shall be automatically suspended with respect to future purchases until such time as the Board of Directors has authorized additional shares of Common Stock to be sold pursuant to the Plan.  In the event of any such automatic suspension of the Plan, then (1) on the date of such automatic suspension of the Plan, the number of shares of Common Stock to be sold shall be prorated among the participants purchasing shares on such date and (2) the Chief Financial Officer of the Company shall determine the date the suspension is to be lifted after the Board of Directors has authorized the sale of additional shares of Common Stock pursuant to the Plan.

 

The Company will notify each participant of the commencement of any tender offer for securities that includes the Company’s Common Stock held in participants’ accounts.  The Company will use its best efforts to distribute to participants in a timely manner the same information that is distributed to all of the Company’s shareholders in connection with the tender offer.  After consulting with the Trustee, the Company will provide a means by which participants may direct the Trustee whether or not to tender the Company’s Common Stock credited to their accounts.  The Trustee will not tender shares held in any participant’s account for which it receives no direction from the participant.  A participant may, at any time prior to a tender offer withdrawal date, direct the Trustee to withdraw shares of the Company’s Common Stock previously directed by the participant to be tendered.

 

10

 

The Company or the Administrator shall provide participants with prompt notice of any modification, suspension or termination of the Plan.

 

Certificates or book entry whole shares issued to a participant upon termination of participation in the Plan pursuant to Section 12, or upon withdrawal of shares pursuant to Section 13, or upon termination of the Plan by the Company, shall be registered in the names used by participants at the time they enrolled in the Plan, except as otherwise provided pursuant to Section 13.

 

The Hawaiian Electric Industries Retirement Savings Plan and any other plans of the Company or its direct or indirect subsidiaries may participate in the Plan on such terms and in such manner as may be determined by the Chief Financial Officer of the Company.

 

11

Exhibit 4(b)

 

[HEI Letterhead]

 

October 3, 2014

 

The Bank of New York Mellon Trust Company, N.A. (the “Trustee”)

Corporate Trust

400 S. Hope Street, Suite 400

Los Angeles CA  90071

 

Attention:  Ms. Johanna K. Tokunaga

 

Re:                              HEI Dividend Reinvestment Plan, Amended and Restated Trust Agreement

 

Ladies and Gentlemen:

 

This letter will confirm the terms and conditions of a trust agreement pursuant to which you have agreed to continue to act as Trustee for the Hawaiian Electric Industries, Inc. (“HEI”) Dividend Reinvestment and Stock Purchase Plan (“the Plan”).  You have previously acted in that capacity, first as successor to Bank of Hawaii (a successor by merger to Hawaiian Trust Company, Limited) under the operative terms of the trust agreement embodied in that certain letter from HEI to Hawaiian Trust Company dated October 6, 1989 and more recently under the terms of that certain letter from HEI to The Bank of New York Trust Company, N.A. (now known as The Bank of New York Mellon Trust Company, N.A.) dated March 20, 2007.  This letter agreement maintains the substance of the trust agreement currently in effect but amends in certain respects, updates and restates the trust agreement.

 

Attached to this letter is a copy of the Plan, and accompanying this letter is a copy of the most recent draft of a Registration Statement on Form S-3 relating to the Plan (the “Registration Statement”), as the Plan will have most recently been amended upon the filing of the Registration Statement.  This Registration Statement is expected to be filed and become effective this month, and we will provide you with copies of the final Registration Statement when it is filed.  We also agree to provide you from time to time with copies of any subsequent amendments to the Plan or the Registration Statement and of any subsequent registration statements that may be filed to register additional shares under the Plan.

 

As Trustee, you agree that all HEI shares issued under the Plan and not registered in the names of the beneficial owners thereof may be registered in your name, solely as Trustee under the Plan, and not in your individual capacity.  The shares to be registered in your name as Trustee include shares issued under prior versions of the Plan and previous Registration Statements.

 

 

Shares registered in the Trustee’s name under the Plan will be uncertificated and evidenced by entries on the stock transfer books of HEI.  However, should it be determined to issue to the Trustee one or more certificates to evidence shares under the Plan, you agree to safeguard such certificates, and you further agree to surrender any such certificates to HEI from time to time with appropriate stock transfer powers, to permit transfers of shares pursuant to the provisions of the Plan.

 

After the amended Plan becomes effective, as HEI will notify you in writing, you agree to vote the shares registered in your name in accordance with the directions of the beneficial owners of said shares.  You understand that such directions for shares may be given or be deemed to be given in any of three ways, which we hereby represent, warrant and certify are in accordance with the provisions of the Plan:  (a) for a participant who has other shares registered in his or her own name, said participant’s shares registered in your name under the Plan will be voted in the same way that such a participant votes the shares registered in his or her own name; (b) for a participant who has no shares registered in his or her own name, said participant’s shares shall be voted in accordance with the instructions of the participant: and (c) to the extent the beneficial owners fail to direct in one of these ways the voting of the shares allocated to their accounts, you will be deemed instructed to vote the shares registered in the names of such beneficial owners in accordance with the recommendations of HEI’s Board of Directors, as stipulated in the proxy statement for the meeting, on each issue submitted to a vote of shareholders.

 

It shall be the duty of the Administrator under the Plan, which will be HEI’s Shareholder Services Division, to keep accurate books and records of each participant’s account under the Plan.  It will be HEI’s responsibility to furnish each participant with proxy statements, proxy cards or notice and access to proxy materials and any other materials required or permitted by law to be provided to beneficial owners of HEI Common Stock, and to keep accurate records of all proxies given by participants.  Prior to the shareholder meeting, HEI or the Administrator shall certify to you the number of shares in the Plan as of the record date.  As soon as practicable, HEI or the Administrator shall certify to you the instructions given by beneficial owners in the manner provided for in the prior paragraph, including the number of shares with respect to which directions are deemed to have been given.  You may rely on such certifications for voting the shares registered in your name as Trustee under the Plan.  You shall also rely upon any other certificates, notices, opinions, reports, requests, consents, instruments, orders, approvals, or other papers, documents or directions purporting to have been signed on behalf of HEI or the Administrator which you believe to be genuine and authorized.

 

HEI will notify each participant of the commencement of any tender offer for securities which include the HEI Common Stock held in participant’s accounts.  HEI will use its best efforts to distribute to participants in a timely manner the same information that is distributed to all HEI shareholders in connection with the tender offer.  After consulting with

 

2

 

you, HEI will provide a means by which participants may direct you whether or not to tender the HEI Common Stock credited to their accounts.  You agree that you will not tender shares held in any participant’s account for which you have received no direction from the participant.  You agree to follow a participant’s instruction, at any time prior to a tender offer withdrawal date, to withdraw shares of HEI’s Common Stock previously directed by participant to be tendered.

 

For performance of your services under the agreement, you shall be entitled to receive such reasonable compensation for your services and reimbursement for your expenses (including, without limitation, reasonable legal fees and expenses) incurred hereunder as Trustee as we may agree upon from time to time in writing.

 

The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this letter.  The Trustee shall not have any duties or responsibilities except those expressly set forth in this letter and no implied covenants or obligations shall be read into this letter against the Trustee.  None of the provisions of this letter shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers hereunder.

 

Whenever in the administration of the provisions of this letter the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by a certificate signed by one of the officers of HEI, and delivered to the Trustee and such certificate, in the absence of gross negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this letter upon the faith thereof. The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document.

 

The Trustee may consult with counsel selected with due care and the advice or any opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel.  The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed; provided, however, that this disclaimer of responsibility shall be for the benefit of the Trustee only and shall not abrogate any claims that HEI may have against any such agent, attorney, custodian or nominee.

 

3

 

Neither the Trustee nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this letter or in connection herewith except to the extent caused by the Trustee’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review.  Anything in this letter to the contrary notwithstanding, in no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.  The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure.  The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care.  Force majeure shall include acts of God, terrorism, war, riots, strikes, fire, floods, earthquakes, epidemics or other similar occurrences.

 

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the business of the Trustee shall be the successor of the Trustee hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.

 

HEI shall indemnify, defend and hold harmless the Trustee and its officers, directors, employees, representatives and agents, from and against and reimburse the Trustee for any and all claims, expenses, obligations, liabilities, losses, damages, injuries (to person, property or natural resources), penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorneys’ and agents’ fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Trustee directly or indirectly relating to, or arising from, claims against the Trustee by reason of its participation in the transactions contemplated hereby, including without limitation all reasonable costs required to be associated with claims for damages to persons or property, and reasonable attorneys’ and consultants’ fees and expenses and court costs except to the extent caused by the Trustee’s negligence or willful misconduct.  The foregoing indemnity shall survive the termination of this letter or the earlier resignation or removal of the Trustee.

 

The Trustee agrees to accept and act upon instructions or directions pursuant to this agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that:  (a) subsequent to such transmission of written instructions and/or directions the Trustee shall forthwith receive the originally executed instructions and/or directions in a timely manner, (b) such originally executed instructions and/or directions shall be signed by a person as may be designated and authorized to sign for the party

 

4

 

signing such instructions and/or directions, and (c) the Trustee shall have received an incumbency certificate listing such designated persons and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing.  If HEI elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.  HEI agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.

 

You may resign as Trustee under this agreement, or HEI may remove you as Trustee or otherwise terminate this agreement, upon sixty (60) days’ prior written notice, or at such earlier time as we shall mutually agree.

 

This letter shall be governed by the laws of the State of Hawaii, but the Trustee’s duties, obligations, rights, protections, immunities and indemnities hereunder shall be governed by the laws of the state of California.  Each party hereto hereby agrees not to elect a trial by jury of any issue triable of right by jury, and waives any right to trial by jury fully to the extent that any such right shall now or hereafter exist with regard to this letter, or any claim, counterclaim or other action arising in connection herewith.  This waiver of right to trial by jury is given knowingly and voluntarily by each party, and is intended to encompass individually each instance and each issue as to which the right to a trial by jury would otherwise accrue.

 

This letter may be amended or modified solely by a writing signed by both parties hereto.

 

If the foregoing accurately sets forth our agreement with respect to this Trust, please so indicate by having one of your duly authorized officers sign in the space provided below and return the enclosed additional copies of this letter to the undersigned.  This amended and restated trust agreement may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the parties hereto in separate counterparts, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, and this agreement shall be effective when (i) one or more counterparts have been signed by each of the parties and delivered to the other parties and (ii) the Registration Statement has been filed.

 

5

 

This amended and restated trust agreement shall become effective upon the filing and effectiveness of the Registration Statement.  Upon the effective date hereof, this letter will supersede the previous letter of agreement dated March 20, 2007, but without affecting the validity of any actions taken pursuant to that letter, and this letter shall hereafter govern all matters heretofore arising under the prior letter as well as matters that shall arise in the future.

 

	HAWAIIAN ELECTRIC INDUSTRIES, INC.
	By	\s\ CHESTER A. RICHARDSON
		Chester A. Richardson
		Executive Vice President, General Counsel, Secretary and Chief Administrative Officer

 

Acceptance

 

We accept the foregoing Trust and agree to the terms and conditions therefore set forth above.

 

	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., solely as Trustee and not in its individual capacity
	By	\s\ JOHANNA K. TOKUNAGA
		Johanna K. Tokunaga
		Vice President

 

6

Exhibit 4(c)

 

ESCROW AGREEMENT

 

THIS ESCROW AGREEMENT (this “Agreement”), dated as of December 12, 2013 is made by and among Hawaiian Electric Industries, Inc. , a Hawaii corporation (the “Company”), the Shareholder Services Division of the Company in its capacity as “Administrator” under the Hawaiian Electric Industries, Inc. Dividend Reinvestment and Stock Purchase Plan, as in effect from time to time (the “Plan”), and Central Pacific Bank , a corporation having trust powers, in its capacity as escrow agent (the “Escrow Agent”). As used in this Agreement, the term “Administrator” shall mean the Shareholder Services Division of the Company or any other person or entity designated by the Company from time to time.

 

WHEREAS, the Company wishes to engage the Escrow Agent for the purpose of receiving certain funds designated for the purchase of common stock of the Company pursuant to the Plan, and for the purpose of depositing and holding such funds in an escrow account until it receives written instructions from the Administrator to release and distribute the funds in accordance with the written instructions;

 

WHEREAS, the Escrow Agent has agreed to act as escrow agent and to receive, hold and distribute the funds in accordance with and subject to the terms and conditions of this Agreement;

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Creation of Escrow Account; Compensation . The Company and the Administrator hereby create with the Escrow Agent an interest bearing escrow account (the “Escrow Account”), to which certain dividends declared and paid by the Company, initial cash investments and optional cash investments will be promptly forwarded, deposited and held, pending investment in common stock of the Company pursuant to the Plan (or will be returned to investors in the manner instructed by the Administrator if common stock is not purchased within prescribed periods). The proceeds held in the Escrow Account are for the benefit of participants in the Plan in accordance with this Agreement. Any interest or other earnings on principal amounts shall belong to the Company . The Company shall pay to the Escrow Agent reasonable compensation for all services rendered by Escrow Agent, and reasonable expenses incurred by Escrow Agent pursuant to this Agreement, as agreed to by the Company and the Escrow Agent from time to time. Initially, the Company shall pay monthly to the Escrow Agent a fee of $250.00 with the understanding that disbursements for the investment in common stock of the Company shall be generally limited to the average of two per month. The monthly escrow fee is fixed for two years.  Any changes to the monthly escrow fee after such time are subject to mutual agreement by the parties.

 

2. General Duties and Powers of Escrow Agent . The Escrow Agent shall keep accurate and detailed records of the receipts, disbursements and other transactions affecting the Escrow Account, provide monthly account statements for such account summarizing the transactions, shall maintain such account statement records for a period of not less than two (2) years, and shall furnish the Company with such further information as may be reasonably requested by the Company (or Administrator) from time to time. Upon receiving written instructions from the Administrator, the Escrow Agent shall make disbursements from the Escrow Account at such

 

 

times, to such persons (including the Company, the broker-dealer appointed by the Company and Plan participants), and in such amounts, as the Administrator shall direct. The Escrow Agent shall not be liable for any loss sustained by reason of any act or omission of the Escrow Agent pursuant to this Agreement in the absence of gross negligence, willful misconduct or material breach of this Agreement on the part of the Escrow Agent. The Company agrees to indemnify and hold harmless the Escrow Agent against any and all claims, causes of action, liabilities, lawsuits, demands and damages, including without limitation, any and all court costs and reasonable attorneys’ fees, in any way related to or arising out of or in connection with this Agreement or any act or omission pursuant hereto, except to the extent caused by the gross negligence, willful misconduct, or material breach of this Agreement on the part of the Escrow Agent. The Escrow Agent shall have and shall discharge only the duties specifically set forth in this Agreement, shall not have any implied duties, and shall not be deemed to be a trustee or fiduciary. The obligations of the Company under this paragraph shall survive the termination of this Agreement.

 

3. Resignation and Removal; Successor . The Escrow Agent may resign its duties by delivering its written resignation to the Administrator. Such resignation shall be effective upon the earlier of the following dates: (a) the appointment of a successor escrow agent, as provided below; or (b) ninety (90) days after delivery of the written resignation to the Administrator. The Escrow Agent may be removed by the Administrator at any time, with or without cause, upon not less than thirty (30) days written notice to the Escrow Agent. The appointment of a successor escrow agent shall be accomplished by and shall take effect upon the delivery to the resigning or removed Escrow Agent, as the case may be, of (i) a written instrument appointing the successor escrow agent, executed by the Administrator and consented to by the Company, and (ii) an acceptance in writing, executed by the appointed successor escrow agent. Upon the appointment of the successor escrow agent, the resigning or removed Escrow Agent shall transfer and deliver all funds in the Escrow Account and any Escrow Account information reasonably requested to the successor escrow agent; provided, however, that if upon the effective date of the Escrow Agent’s resignation a successor escrow agent has not been appointed, the Escrow Agent may transfer and deliver all funds in the Escrow Account and any Escrow Account information reasonably requested to the Administrator.

 

4. Termination . This Agreement may be terminated by the Administrator and the Company at any time by written notice given to the Escrow Agent by the Administrator and the Company with instructions as to the disposition of any funds or other property then remaining in the Escrow Account.

 

5. Notices . Any notices or other communications required or permitted hereunder shall be sufficiently given if personally delivered or if sent by registered mail or certified mail, postage prepaid, or by facsimile, if to the Escrow Agent, to Central Pacific Bank, 1030 Makolu Street, Pearl City, Hawaii 96782, Facsimile: (808) 544-5674, Attention: Leeward Commercial Banking or, if to the Company or the Administrator, to Hawaiian Electric Industries, Inc., P.O. Box 730, Honolulu, Hawaii 96808-0730, Facsimile: (808) 532-5868, Attention: Shareholder Services. Any such notice shall be deemed to have been given as of the date personally delivered or transmitted by facsimile, or five (5) business days after the date mailed. Any party hereto may change its address for purposes of this Section by written notice given in the manner provided above.

 

 

6. Confidentiality and Information Security .

 

(a)                                  Escrow Agent agrees to keep, maintain, secure from others and not to disclose or cause or permit to be disclosed, including but not limited to disclosure to other departments of Escrow Agent or to other companies for solicitation or other commercial purposes, any information in any form concerning the identity of participants, their ownership interests in the Company or the Plan or any financial, account or other personally identifiable information concerning participants (any and all such information is herein referred to as “Participant Information”) that may come into the possession of Escrow Agent by reason of this Agreement. Participant Information shall be accessed and used only in connection with Escrow Agent’s performance of its duties set forth in this Agreement and for no other purpose.  Escrow Agent shall not share, disclose, provide or permit access to Participant Information to, or allow Participant Information to be shared, disclosed, provided or accessed by, any of its agents, representatives, affiliates, sub-contractors, employees, shareholders, officers or directors (all of the foregoing collectively referred to as “Representatives”), except for those Representatives who are assisting Escrow Agent in performing its duties set forth in this Agreement and to such Representatives solely on an as needed basis.  Escrow Agent shall require its Representatives to comply with the restrictions of this Agreement with respect to Participant Information and shall require any third-party Representative to execute a confidentiality agreement containing restrictions no less stringent than those contained in this Section 6 prior to any Participant Information being shared, disclosed, or provided to any third party Representative or any third party Representative being permitted to access Participant Information.  Escrow Agent agrees that it will be responsible for any breach of this Section 6 by its Representatives.  Upon the termination of this Agreement or appointment of a successor escrow agent, the Escrow Agent agrees to transfer and deliver all Participant Information to the Administrator or successor escrow agent in accordance with the Administrator’s instructions and to destroy any reproductions or copies made thereof, regardless of the medium in which such copies or reproductions are maintained, provided, however, that Escrow Agent may retain certain copies of documents to satisfy regulatory requirements upon which the confidentiality obligations of this Agreement shall continue to apply.  Escrow Agent may disclose Participant Information as may be required by law or court order, provided however that Escrow Agent shall provide Company and Administrator reasonable notice of such disclosure and the opportunity to review the disclosure before it is made and to seek any appropriate protective order and/or take any other action.

 

(b)                                  Escrow Agent agrees that it has (or shall implement prior to Company or Administrator sharing, disclosing or providing Participant Information to Escrow Agent or permitting Escrow Agent to access Participant Information) and shall maintain throughout the term of this Agreement appropriate measures consistent with industry standards designed to ensure the security and confidentiality of Participant Information, to protect against any anticipated threats or hazards to the security or integrity of Participant Information, and to protect against unauthorized access to or use of Participant Information that could result in substantial harm or inconvenience to Participants, the Company or the Administrator.  Company and Administrator shall annually receive written confirmation acceptable to Company that Escrow Agent has satisfied its obligations under this Section 6(b).

 

(c)                                   Escrow Agent agrees to notify the Administrator immediately in writing in the event a system or area containing Participant Information is compromised or unauthorized

 

 

access is detected.  Such notice may be delayed where a law enforcement agency has determined that notification will interfere with a criminal investigation.

 

(d)                                  The obligations imposed on Escrow Agent by Sections 6(a) and 6(c) of this Agreement shall survive and continue beyond the term, termination, cancellation or expiration of this Agreement.

 

7. Miscellaneous . This Agreement is made and shall be construed and enforced in accordance with the laws of the State of Hawaii. This Agreement is not assignable by the Escrow Agent. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, except for any other account agreements relating to or connected with the Escrow Account and rules governing such agreements. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy. This Agreement may be executed in any number of counterparts, each of which shall be deemed as original, but all of which together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties have duly executed this Escrow Agreement as of the date first above written.

 

 

Hawaiian Electric Industries, Inc.			Central Pacific Bank
By:	\s\ JAMES A. AJELLO		By:	\s\ JEROME TSUDA
Name:	James A. Ajello		Name:	Jerome Tsuda
Title:	Executive Vice President & Chief Financial Officer		Title:	Vice President
By:	\s\ GREG C. HAZELTON
Name:	Greg C. Hazelton
Title:	Vice President — Finance, Treasurer & Controller

 

Shareholder Services Division of Hawaiian Electric Industries, Inc. as Administrator of the HEI Dividend Reinvestment and Stock Purchase Plan (HEI/DRIP)
By:	\s\ LAURIE LOO-OGATA
Name:	Laurie Loo-Ogata
Title:	Director, Shareholder Services