-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PAl2tNcb54z/+T4zkdO6eL9pvu2/s7Hltq3HGGTP7IhnIwGETWKwgmSp2TobMRJQ LGt3nhdLifRvqMesRFPbGQ== 0000898430-01-501136.txt : 20010628 0000898430-01-501136.hdr.sgml : 20010628 ACCESSION NUMBER: 0000898430-01-501136 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20010619 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20010627 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HAWAIIAN ELECTRIC INDUSTRIES INC CENTRAL INDEX KEY: 0000354707 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 990208097 STATE OF INCORPORATION: HI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-08503 FILM NUMBER: 1669194 BUSINESS ADDRESS: STREET 1: 900 RICHARDS ST CITY: HONOLULU STATE: HI ZIP: 96813 BUSINESS PHONE: 8085435662 MAIL ADDRESS: STREET 1: 900 RICHARDS STREET CITY: HONOLULU STATE: HI ZIP: 96813 8-K 1 d8k.txt FORM 8-K ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934 Date of Report: June 19, 2001 ================================================================================ Exact Name of Registrant Commission I.R.S. Employer as Specified in Its Charter File Number Identification No. - ---------------------------------- ----------- ------------------ Hawaiian Electric Industries, Inc. 1-8503 99-0208097 ================================================================================ State of Hawaii ---------------------------------------------------------------- (State or other jurisdiction of incorporation) 900 Richards Street, Honolulu, Hawaii 96813 ---------------------------------------------------------------- (Address of principal executive offices and zip code) Registrant's telephone number, including area code: (808) 543-5662 None ---------------------------------------------------------------- (Former name or former address, if changed since last report.) ================================================================================ Item 5. Other Events. On June 19, 2001, the Board of Directors of Hawaiian Electric Industries, Inc. (HEI) approved amendments to HEI's Restated By-Laws, which amendments have been included in the Amended and Restated Bylaws of that date filed with this report as an Exhibit. The amendments to the Bylaws (a) clarify the variety of means, including electronic voting, by which shareholders may authorize others to act as proxy (Art. II, Sec. 6 last paragraph), (b) require the preparation of lists of shareholders entitled to vote at meetings and define the rights of shareholders to inspect those lists (Art. II, Sec. 11), (c) specify that the only limitation on the power of the Board of Directors to determine the number of directors is that there shall not be less than 5 nor more than 18 directors (Art. III, Sec. 13) and (d) authorize HEI to issue rights, options and warrants entitling holders to purchase shares of HEI's stock on terms and for the consideration determined by the Board of Directors, and permitting such rights, options and warrants to include provisions that preclude the holder and subsequent transferees of a specified percentage of HEI's common shares from exercising such rights, options or warrants (Art. XIX.). Also on June 19, 2001, the Board of Directors of HEI approved amendments to HEI's 1987 Stock Option and Incentive Plan to permit issuance under the Plan of restricted stock without consideration other than the provision of future services by an employee of HEI or one of its subsidiaries. The Stock Option and Incentive Plan, as amended and restated effective June 19, 2001, is filed as exhibit to this report. HEI has signed the "Third Amendment to Trust Agreement between Hawaiian Electric Industries, Inc. and Fidelity Management Trust Company " which is effective as of April 1, 2001. A copy of the Third amendment is filed with this report. Item 7. Financial Statements and Exhibits. (c) Exhibits. Exhibit 3(ii) HEI's Amended and Restated By-Laws Exhibit 4 1987 Stock Option and Incentive Plan of HEI as amended and restated effective June 19, 2001 for incorporation by reference into Registration Statements on Forms S-8 (Registration Nos. 33-65234 and 333-05667) Exhibit 99 Third Amendment to Trust Agreement, made and entered into April 1, 2001, between HEI and Fidelity Management Trust Company for the Hawaiian Electric Industries Retirement Savings Plan for incorporation by reference into Registration Statement on Form S-8 (Registration No. 333-02103) 1 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. HAWAIIAN ELECTRIC INDUSTRIES, INC. (Registrant) /s/ Curtis Y. Harada ---------------------- Curtis Y. Harada Controller (Principal Accounting Officer of HEI) Date: June 26, 2001 2 EX-3.(II) 2 dex3ii.txt AMENDED AND RESTATED BY-LAWS Exhibit 3(ii) ------------- AMENDED AND RESTATED BY-LAWS OF HAWAIIAN ELECTRIC INDUSTRIES, INC. June 19, 2001 ------------ ARTICLE I NAME AND SEAL ------------- Section 1. The name of the corporation shall be HAWAIIAN ELECTRIC INDUSTRIES, INC. Section 2. The seal of the corporation shall be in such form as the board of directors shall determine from time to time. ARTICLE II STOCKHOLDERS ------------ Section 1. Each meeting of the stockholders shall be held at the principal office of the corporation in Honolulu, Hawaii, unless some other place in said Honolulu is stated in the call. Section 2. The annual meeting of the stockholders shall be held on such date in the months of January, February, March or April as the chairman of the board of directors, or in the chairman's absence or disability, the president may designate in each year, and if the chairman of the board of directors, or the president, as the case may be, shall fail to designate such date before the 1st day of April in any year then the annual meeting for that year shall be held on the third Tuesday in April at 10 o'clock a.m. At the annual meeting the stockholders shall elect the directors and auditor to hold office until the next annual meeting and thereafter until their successors shall be duly elected and qualified, and may transact any general business as is properly brought before the meeting in accordance with these By-laws. No business may be transacted at the annual meeting of stockholders, other than business that is either (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the board of directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the annual meeting by or at the direction of the board of directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the annual meeting by any stockholder of the corporation (a) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (b) who complies with the notice procedures set forth in this Section 2. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the secretary of the corporation, which notice is not withdrawn by such stockholder at or prior to such annual meeting. To be timely, a stockholder's notice to the secretary must be delivered to or mailed and received at the principal executive offices of the corporation not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs. To be in proper written form, a stockholder's notice to the secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of such stockholder, (iii) the class and number of shares of capital stock of the corporation which are owned beneficially or of record by such stockholder, (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2; provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2 shall be deemed to preclude discussion by any stockholder of any such business. 2 If the chairman of the board of directors, or the president, as the case may be, of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the chairman or president shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted. Section 3. Special meetings of stockholders shall be called by the secretary at any time upon request of the chairman of the board of directors, the president, any two directors of the corporation or the holders of not less than fifty-one percent of the issued and outstanding common stock of the corporation. A request must contain a brief description of the business to be brought before the special meeting by the person making the request, the reasons for conducting such business at such meeting and any material interest of the person making the request in such business. At any special meeting such business shall be brought before the stockholders and may be transacted as is specified in the notice for such meeting, except as provided in Section 9 of Article III of these By-laws. Section 4. Notices of all stockholders' meetings shall specify the class or classes of stock entitled to vote at such meeting, the place, day and hour of the meeting, and whether annual or special. Notice of each meeting of stockholders shall be given by mailing the same at least ten or fifteen (as hereinafter prescribed) days before the date set for such meeting, postage prepaid, and addressed to each common stockholder at the stockholder's address as it appears upon the books of the corporation, in which case such mailing shall constitute sufficient notice to stockholders; provided, however, that whenever the holders of preferred stock have a right to vote at a stockholders' meeting the notice of such meeting shall be given by mailing the same at least ten or fifteen (as hereinafter prescribed) days before the date set for such meeting, postage prepaid, and addressed to each common and preferred stockholder at the stockholder's address as it appears upon the books of the corporation, in which case such mailing shall constitute sufficient notice to stockholders. All notices of stockholders' meetings mailed to stockholders whose addresses as they appear upon the books of the corporation are in said Honolulu shall be mailed at least ten days before the date set for the related meeting. All notices of stockholders' meetings mailed to stockholders whose addresses as they appear upon the books of the corporation are not in said Honolulu shall be mailed at least ten days before the date set for the related meeting if the same are mailed air mail, postage prepaid, and at least fifteen days before the date set for the related meeting if the same are mailed ordinary first class mail, postage prepaid. Non-receipt of any mailed notice shall not invalidate any business done at any meeting at which a quorum shall be present. 3 Section 5. The holders of a majority of the shares of capital stock of the corporation outstanding and entitled to vote, present in person or by proxy at any meeting of stockholders, shall constitute a quorum for the transaction of business, and any decision of a majority of such quorum so present shall be valid and binding upon the corporation, subject, however, to the provisions hereinbelow set forth. Each share of common stock shall be entitled to one vote, subject, however, to such limitation or loss of right as may be provided in resolutions which may be adopted from time to time creating issues of preferred stock or otherwise. Whenever shares of preferred stock shall be outstanding and the holders of such shares shall be entitled to vote, each share of preferred stock shall be entitled to one vote unless the resolution creating the issue of preferred stock shall otherwise provide. Where shares of preferred stock shall be outstanding and shall be entitled to vote and the holders of common stock likewise entitled to vote, each share of common stock outstanding shall count as one vote and each share of preferred stock outstanding shall count as one vote in determining the presence or absence at any meeting of a majority of outstanding shares and in determining whether the holders of a specific proportion of the capital stock outstanding have approved or disapproved of any action. If any class of stock of the corporation shall by the terms of its issuance be not entitled to vote or if any class of stock by virtue of any resolution authorizing the issuance of preferred stock loses its right to vote, then such stock shall not be counted as a part of the issued and outstanding stock of the corporation for the purpose of determining the presence or absence of a quorum at any meeting or whether or not the holders of a specified proportion of the capital stock outstanding have approved or disapproved of any action. Whenever pursuant to the provisions of the resolutions authorizing the issuance of shares of preferred stock the holders of the preferred stock shall vote as a class and the holders of the common stock shall vote as a class, the holders of a majority of the shares of each class outstanding shall constitute a quorum with respect to the voting of such class and any decision of the holders of such majority of the outstanding shares of such class shall be valid and binding as the vote of the holders of the shares of such class. If there is no quorum at any meeting the stockholders present in person or by proxy at such meeting may adjourn from time to time to obtain the attendance of a quorum and no notice of any such adjournment need be given. 4 The provisions of this Section 5 of Article II are subject to any provisions of law or of the Articles of Incorporation or any resolution authorizing the issuance of shares of preferred stock or of these By-laws requiring with respect to any matters the approval or consent of designated percentages of the outstanding shares of stock or of the outstanding shares of any class thereof, or limiting or restricting the right of any class or classes of stock to vote with respect to any matters. Section 6. Any stockholder may in writing authorize any person or corporation, one or more, to vote as the proxy or proxies of such stockholder at any meeting or meetings of the corporation, provided, however, that such authorization in writing must be filed with or presented to the corporation prior to or at any meeting or meetings at which such proxy or proxies may act pursuant thereto; provided, further, that, if two or more persons are named as proxies by or on behalf of the same stockholder, then at the sole discretion of the presiding officer of the meeting, the presiding officer may limit attendance at the meeting to one person so named. Any proxy authorization given pursuant to this section shall be valid and effective until written revocation thereof is filed with the corporation and the presence of a stockholder at any meeting with respect to which the stockholder has submitted a written proxy shall not of itself nullify such proxy. If any stockholder who has given a proxy is present at a meeting of stockholders, such proxy, unless the stockholder declares otherwise, shall be suspended during the time the stockholder is in attendance at the meeting. Before any person is entitled to vote, either as a stockholder or as the representative of a stockholder, any stock of the corporation, at the secretary's discretion, the secretary may require such reasonable evidence as to the identity or the authority of such person to vote the stock of the corporation as the secretary may deem advisable. Without limiting the manner in which a stockholder may authorize another person or persons to act for him or her as proxy, either of the following shall constitute a valid means by which a stockholder may grant such authority: (a) a stockholder may execute a writing authorizing another person or persons to act for him or her as proxy which may be accomplished by the stockholder or his or her authorized attorney-in-fact, officer, director, employee or agent signing such writing or causing the stockholder's signature to be affixed to such writing by any reasonable means, including without limitation by facsimile signature, or (b) a stockholder may authorize another person or persons to act for him or her as proxy by transmitting or authorizing the transmission of a telegram, cablegram, facsimile, or other means of electronic transmission to the person or persons who will be the holder of the proxy or to a proxy 5 solicitation firm, proxy support service organization or similar agent duly authorized by the person or persons who will be the holder of the proxy to receive such transmission, provided that any such transmission shall specify that the transmission was authorized by the stockholder. Section 7. An executor, administrator, guardian or trustee may vote in person or by proxy at any meeting of the corporation the stock of the corporation held by that person in such capacity, whether or not such stock shall have been transferred to that person's name on the books of the corporation. In case the stock shall not have been so transferred to that person's name on the books of the corporation that person shall, as a prerequisite to so voting, file with or present to the corporation a certified copy of that person's letters as such executor, administrator or guardian, or that person's appointment or authority as trustee. In case there are two or more executors, administrators, guardians or trustees, all or a majority of them may vote the stock in person or by proxy at any meeting of the corporation. Section 8. The duly authorized representative of another corporation owning stock in the corporation or having authority to vote stock of another stockholder of the corporation shall be entitled to vote the stock so owned or represented. Section 9. The stockholders having voting rights who shall be entitled to vote at any meeting of stockholders may be determined by Section 2 of Article XIV of these By-laws. Section 10. Whenever the corporation shall have a class of equity securities registered pursuant to the Securities Exchange Act of 1934 which are listed on a national securities exchange or traded over-the-counter on a national securities market of the National Association of Securities Dealers, Inc. Automated Quotation System, no holder of shares of any class of capital stock of the corporation shall be entitled to cumulate votes in the election of directors. Section 11. The officer or agent having charge of the corporation's stock transfer books shall make a complete record of the shareholders entitled to vote at any meeting of shareholders or adjournment thereof, in accordance with the provisions of Section 415-31 of the Hawaii Business Corporation Act as in effect on June 19, 2001. Such record shall be produced and kept open at the time and place of the shareholders' meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof, and such record shall not be produced and kept open for such inspection or copying at any other time and place except as may be required pursuant to Section 415-52 of the Hawaii Business Corporation Act as in effect on June 19, 2001. Failure to comply with the 6 requirements of this Section 11 shall not affect the validity of any action taken at the meeting. ARTICLE III BOARD OF DIRECTORS ------------------ Section 1. There shall be a board of directors to consist of not less than five (5) nor more than eighteen (18) members, who need not be stockholders, the exact number of directors to be determined from time to time by resolution adopted by the affirmative vote of a majority of the entire board. The directors, other than directors elected by the holders of preferred stock or any series of preferred stock voting separately as a class, shall be divided into three classes, designated Class I, Class II and Class III. Each class of such directors shall consist, as nearly as may be possible, of one-third of the total number of such directors constituting the entire board. Each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting at which the director was elected; provided, however, that each initial director in Class I shall hold office until the annual meeting of stockholders in 1988; each initial director in Class II shall hold office until the annual meeting of stockholders in 1989; and each initial director in Class III shall hold office until the annual meeting of stockholders in 1990. Notwithstanding the foregoing, each director shall serve until his successor is duly elected and qualified, or until his retirement, death, resignation or removal. If the number of directors is changed, other than to change the number of directors to be elected by the holders of preferred stock or any series of preferred stock, voting separately as a class, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors of any class of directors shorten the term of any incumbent director of any class of directors. In the event holders of any preferred stock or any series of preferred stock are entitled to elect directors voting separately as a class, such holders shall be entitled to elect the number of directors provided for in the resolution authorizing the issuance of such stock subject to and upon the terms and conditions of such resolution, notwithstanding the number of directors fixed by the board of directors as provided for in this section of Article III. 7 Section 2. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the corporation, except as may be otherwise provided in the corporation's Articles of Incorporation with respect to the rights of holders of preferred stock to nominate and elect a specified number of directors in certain circumstances. Nominations of persons for election to the board of directors may be made at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors, (i) by or at the direction of the board of directors (or any duly authorized committee thereof) or (ii) by any stockholder of the corporation (a) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2 and on the record date for the determination of stockholders entitled to vote at such meeting and (b) who complies with the notice procedures set forth in this Section 2. In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the secretary of the corporation, which notice is not withdrawn by such stockholder at or prior to the meeting of stockholders. To be timely, a stockholder's notice to the secretary must be delivered to or mailed and received at the principal executive offices of the corporation (a) in the case of the annual meeting, not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs; and (b) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs. To be in proper written form, a stockholder's notice to the secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election as a director (a) the name, age, business address and residence address of the person, (b) the principal occupation or employment of the person, (c) the number of shares of capital stock of the 8 corporation which are owned beneficially or of record by the person and (d) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder; and (ii) as to the stockholder giving the notice (a) the name and record address of such stockholder, (b) the number of shares of Capital Stock of the corporation which are owned beneficially or of record by such stockholder, (c) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (d) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (e) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth in this Section 2. If the chairman of the board of directors, or the president, as the case may be, of the annual meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman or president shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded. Section 3. Each meeting of the board of directors shall be held at the principal office of the corporation in Honolulu, Hawaii, unless some other place is stated in the call. A meeting of the board of directors elected at an annual meeting of stockholders shall be held at the place of such annual meeting and immediately or as soon as practicable thereafter, and no notice thereof shall be necessary. Section 4. The board of directors may establish regular meetings which shall be held in such places and at such times as it may from time to time by vote determine, and when any such meeting or meetings shall be so determined no further notice thereof shall be required. 9 Section 5. Special meetings of the board of directors may be called at any time by the chairman of the board of directors, or by the president or by any two directors. Section 6. Except as otherwise expressly provided, notice of any meeting of the board of directors shall be given to each director by the secretary or by the person calling the meeting, by advising the director by telephone, by word of mouth or by leaving written notice of such meeting with the director or at the director's residence or usual place of business not later than the day before the meeting. Non-receipt of any such notice shall not invalidate any business done at any meeting at which a quorum is present. No notice of a meeting need be given to any director who is at the time absent from the State of Hawaii. The presence of any director at any meeting shall be the equivalent of a waiver of the requirement of the giving of notice of said meeting to such director. Section 7. A majority of the board of directors shall constitute a quorum for the transaction of business, except that a minority of the board may fill vacancies in the board as provided in Section 8 of this Article III. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. Section 8. In case of any vacancies due to death, incapacity, resignation or otherwise in the board of directors, including temporary vacancies caused by the illness of directors or the absence of directors from the Island of Oahu, the remaining members of the board of directors (although less than a majority thereof) may fill the same by the affirmative vote of a majority of such remaining members, subject, however, to the provisions of Section 9 of this Article III. In case of any temporary vacancy aforesaid, such temporary vacancy shall be filled only until the termination of such director's illness or the director's return to the Island of Oahu. Section 9. The stockholders of the corporation may at any special meeting of the stockholders remove from office any director or directors, for cause, and in the case of any such removal any vacancies on the board of directors arising from such removal which are not filled by the stockholders at such special meeting shall be filled by the remaining directors in accordance with the provisions of Section 8 of this Article III. In addition, the board of directors of the corporation, by the affirmative vote of a majority of the whole board, may remove from office any director or directors, for cause, and may fill the vacancies arising from such removal in accordance with the provisions of Section 8 of this Article III. Directors may not be removed except for cause as provided in this Section 9. "Cause" shall mean malfeasance in office, harassment of other directors or the officers or employees of the corporation, or 10 other conduct which, in the opinion of the stockholders or the majority of the whole board of directors, is inimical or prejudicial to the interest of the corporation. Section 10. The board of directors may create and appoint from its own membership such committees as it deems desirable, which shall have such functions and authority as the board of directors shall determine. Section 11. Members of the board of directors or of a committee of the board of directors may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participating in a meeting pursuant to this provision shall constitute presence in person at such meeting. Section 12. Unless otherwise provided by law, any action required or permitted to be taken at any meeting of the board of directors, or of a committee of the board of directors, may be taken without a meeting, if all of the directors or all of the members of the committee, as the case may be, sign a written consent or written consents setting forth the action taken or to be taken, at any time before or after the intended effective date of such action. Such consent or consents shall be filed with the minutes of directors' meetings or committee meetings, as the case may be, and shall have the same effect as a unanimous vote. Section 13. The only limitation on the power and authority of the board of directors to determine the number of directors is that there shall be not less than five (5) nor more than eighteen (18) members. There shall be no other limitations, whether numerical, based on percentage increase or decrease in the number of directors, or otherwise, on the power and authority of the board of directors to determine the number of directors. ARTICLE IV OFFICERS -------- The officers of the corporation shall be a president, one or more vice presidents, a treasurer, a controller, and a secretary. There may also be a chairman of the board of directors appointed from time to time by the board of directors from its own members. Any two of the offices of vice president, treasurer, controller and secretary may be held by the same person. The officers shall be appointed annually by the board of directors at the first meeting thereof after the annual or special meeting of the stockholders at which the board of directors is elected, and shall hold office for one year and thereafter until their successors shall be duly appointed and qualified; provided, that the number of vice presidents may be 11 changed from time to time by the board of directors at any meeting or meetings thereof and if increased at any time the additional vice president or vice presidents shall be appointed by the board of directors. There may also be such subordinate officers as the board of directors shall appoint. No officer or subordinate officer need be a stockholder and no officer or subordinate officer other than the chairman of the board of directors need be a director of the corporation. ARTICLE V CHAIRMAN OF THE BOARD --------------------- Whenever there shall be a chairman of the board of directors, the chairman shall be an officer of the corporation, the chairman shall preside at all meetings of the stockholders and of the board of directors, and shall have such powers and perform such duties as may be assigned to the chairman of the board from time to time by the board of directors. ARTICLE VI PRESIDENT --------- If there shall be no chairman of the board of directors, or in the absence of the chairman of the board of directors, the president shall preside at meetings of the stockholders and of the board of directors. The president shall exercise general supervision and direction of the business and affairs of the corporation. The president shall, except as may otherwise be provided by resolution of the board of directors, have full authority to vote the shares of stock owned by the corporation at all meetings of other corporations in which the corporation may be a stockholder. The president shall have the powers and perform the duties customarily incidental to the office, and such other duties as may be given to the president elsewhere in these By-laws or as may be assigned to the president from time to time by the board of directors. ARTICLE VII VICE PRESIDENTS --------------- The vice presidents, in such order or according to such system as the board of directors shall determine or adopt, shall assume and perform the duties of the president when the office of president is vacant or whenever the president, for any reason, cannot discharge the duties of the office. The vice presidents of the corporation shall have such other powers and duties as may be given to them elsewhere in these By-laws or as may be assigned 12 to them from time to time by the board of directors or by the president. ARTICLE VIII TREASURER --------- The treasurer shall have the powers and perform the duties customarily incidental to the office and such other powers and duties as may be given to the treasurer elsewhere in these By-laws or as may be assigned to the treasurer from time to time. In the absence or disability of the treasurer, or if that office is vacant, the treasurer's duties may be performed by the controller, the secretary or by an assistant treasurer. The directors may by resolution authorize the controller, the secretary or an assistant treasurer equally with the treasurer to have any or all of the powers and to perform any or all of the duties given to the treasurer in these By-laws. ARTICLE IX CONTROLLER ---------- The controller shall have the powers and perform the duties customarily incidental to the office and such other powers and duties as may be given to the controller elsewhere in these By-laws or as may be assigned to the controller from time to time. In the absence or disability of the controller, or if that office is vacant, the controller's duties may be performed by the treasurer, secretary or by an assistant controller. The directors may by resolution authorize the treasurer, the secretary or an assistant controller equally with the controller to have any or all of the powers and to perform any or all of the duties given to the controller in these By-laws. ARTICLE X SECRETARY --------- The secretary shall have the powers and perform the duties customarily incidental to the office; the secretary shall give notice of all meetings of the stockholders whenever requested to do so by the person thereunto duly authorized, and shall have such other powers and duties as may be given elsewhere in these By-laws or as may be assigned to the secretary from time to time. In the absence or disability of the secretary, or if that office is vacant, the secretary's duties may be performed by the treasurer, the controller or by an assistant secretary. The directors may by resolution authorize the treasurer, the controller or an assistant secretary equally with the secretary 13 to have any or all of the powers and to perform any or all of the duties given to the secretary in these By-laws. ARTICLE XI SUBORDINATE OFFICERS, AGENTS AND EMPLOYEES ------------------------------------------ Section 1. The board of directors may appoint assistant vice presidents, assistant treasurers, assistant controllers, and assistant secretaries and such other subordinate officers and such agents as may be deemed proper, who shall hold their positions at the pleasure of the board of directors and who shall have such powers and duties as may be determined by the board of directors. The authority to appoint or employ and to discharge subordinate officers and agents and to fix their powers and duties may be delegated by the board of directors to the president or any officer or officers of the corporation. The officer to whom the power to appoint subordinate officers is delegated by the board of directors shall report to the board the names and titles of all subordinate officers appointed by such officer. Any officer of the corporation may also be a subordinate officer, agent or employee. Section 2. The salaries and compensation of all officers, subordinate officers and agents shall be determined by the board of directors. The authority to fix the salaries and compensation of subordinate officers and agents may be delegated by the board of directors to the president. Section 3. The president shall have the control of all employees and shall determine the compensation of all employees other than that of the officers, subordinate officers and agents. ARTICLE XII REMOVALS AND VACANCIES ---------------------- Section 1. The board of directors of the corporation may at any time remove from office or discharge from employment any officer, or subordinate officer, appointed by it or by any person under authority delegated by it, except insofar as such removal would be contrary to law. Section 2. If the office of any officer, or subordinate officer, shall become vacant for any reason, the board of directors may appoint a successor to serve at its pleasure; provided, however, that if the board of directors shall have delegated to any officer the authority to employ or discharge such subordinate officer, then the officer to whom such authority shall have been delegated shall appoint a successor to the office of such subordinate officer, which shall so have 14 become vacant, to serve during the pleasure of such appointing officer. ARTICLE XIII CERTIFICATES OF CAPITAL STOCK ----------------------------- Section 1. Certificates for shares of the stock of the corporation shall be of such form and device as the board of directors shall from time to time determine but each such certificate shall plainly show its number, the date of issuance, the name of the person to whom it is issued, the number and class of shares, the designation of the series, if any, which such certificate represents, and the par value of each share represented by such certificate, or a statement that the shares are without par value. Section 2. Each certificate of stock shall be sealed with the corporate seal and signed by the president or by a vice president and also by the secretary or an assistant secretary or by the treasurer or an assistant treasurer; provided, however, that the board of directors may provide that stock certificates which are signed by a transfer agent or by a registrar may be sealed with only the facsimile seal of the corporation and signed on behalf of the corporation with only the facsimile signatures of its officers and subordinate officers as above designated. In case any such officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if such officer had not ceased to be such at the date of its issue. ARTICLE XIV TRANSFER OF STOCK ----------------- Section 1. Transfer of shares of stock may be made by endorsement and delivery of the certificate. No such transaction shall be valid, except between the parties thereto, until such new certificate shall have been obtained or the transfer shall have been recorded on the books of the corporation so as to show the date of the transfer, the names of the parties thereto, their addresses, and the number and description of the shares transferred. Upon such surrender of any certificate the same shall be cancelled. Section 2. The books for the transfer of stock may be closed as the board of directors may from time to time determine for a period not exceeding twenty days before the annual or any special meeting of stockholders or before the day appointed for the payment of any dividend, or before any date on which rights 15 of any kind in or in connection with the stock are to be determined or exercised; provided, however, that in lieu of closing the books for the transfer of stock the board of directors may fix in advance a day as the record date for the determination of stockholders to be entitled to have or exercise the right to receive notice, to vote, to receive dividends, or to receive or exercise any such rights. In the event that the books for the transfer of stock are to be closed the secretary may be directed by the board of directors to give such notice of such closing as the board of directors may deem advisable. Section 3. In case of the loss, mutilation or destruction of any certificate for any share or shares of stock of the corporation, a duplicate certificate may be issued upon such terms as the board of directors may prescribe. Section 4. The corporation shall be entitled to treat the holder of record of any share or shares of its capital stock as the holder in fact thereof for any purpose whatsoever and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other claimant thereto. Section 5. The board of directors shall have power and authority to make all such rules and regulations as they deem expedient, concerning the issue, transfer and registration of certificates for shares of the capital stock of the corporation. ARTICLE XV EXECUTION OF INSTRUMENTS ------------------------ All checks, dividend warrants and other orders for the payment of money, drafts, notes, bonds, acceptances, contracts, and all other instruments, except as otherwise provided in these By-laws, shall be signed by such person or persons as shall be provided by general or special resolution of the board of directors, and in the absence of any provision in these By-laws or any such general or special resolution applicable to any such instrument then such instrument shall be signed by any two of the following: the president, any vice president, the treasurer, the controller or the secretary. The board of directors may delegate to any officer or officers of the corporation the power to designate the person or persons to execute any such instrument on behalf of the corporation. The board of directors may provide that any such instrument may be executed on behalf of the corporation by the facsimile signature or signatures of such person or persons as may be designated by the board of directors or by any officer or officers to whom such power of designation may have been delegated by the board of directors; and the board of directors may provide that any such instrument may be sealed with the facsimile seal of the corporation. 16 ARTICLE XVI IMMUNITY AND INDEMNIFICATION ---------------------------- Immunity of directors and officers of the corporation and indemnification by the corporation of directors and officers of the corporation from costs and expenses and liabilities shall be governed by the provisions relating thereto included in the Articles of Incorporation of the corporation. ARTICLE XVII FISCAL YEAR ----------- The fiscal year of the corporation shall be the calendar year. ARTICLE XVIII AMENDMENT TO BY-LAWS -------------------- Section 1. These By-laws may be altered, amended or repealed or new By-laws enacted by the affirmative vote of a majority of the entire board of directors or at any regular meeting of the shareholders (or at any special meeting duly called for that purpose) by the affirmative vote of a majority of the shares represented and entitled to vote at such meeting (if notice of the proposed alteration or amendment or any new By-law provision or provisions is contained in the notice of such meeting). Section 2. Notwithstanding anything contained in Section 1 of this Article XVIII to the contrary, either (i) the affirmative vote of the holders of at least 80 percent of the votes entitled to be cast by the holders of all shares of the corporation entitled to vote generally in the election of directors, voting together as a single class, or (ii) the affirmative vote of a majority of the entire board of directors with the concurring vote of a majority of the continuing directors, voting separately and as a subclass of directors, shall be required to alter, amend or repeal, or adopt any provision inconsistent with (a) the second paragraph of Section 2 of Article II relating to business properly brought before an annual meeting, (b) Section 3 of Article II, (c) Section 10 of Article II, (d) Section 1 of Article III, (e) Section 9 of Article III and (f) this Article XVIII. For purposes of this Article XVIII, the term "continuing director" shall mean any member of the board of directors who was a member of the board of directors on April 21, 1987 or who is elected to the board of directors after April 21, 1987, upon the 17 recommendation of a majority of the continuing directors, voting separately and as a subclass of directors on such recommendation. ARTICLE XIX The corporation may issue, whether or not in connection with the issuance and sale of any of its stock or other securities, rights, options or warrants entitling the holders thereof to purchase from the corporation shares of any class or classes of stock. The board of directors shall determine the terms upon which the rights, options, or warrants are issued, their form and content, and the consideration for which the shares are to be issued. The documents evidencing such rights, options or warrants, may include conditions on the exercise of such rights, options or warrants, including conditions that preclude the holder or holders, including any subsequent transferees, of at least a specified percentage of the common shares of the corporation from exercising such rights, options or warrants. 18 EX-4 3 dex4.txt 1987 STOCK OPTION/INCENTIVE PLAN Exhibit 4 --------- 1987 Stock Option and Incentive Plan of Hawaiian Electric Industries, Inc. (as amended and restated effective June 19, 2001) I. General Provisions 1.1 Purposes of the Plan The purposes of the 1987 Stock Option and Incentive Plan of Hawaiian Electric Industries, Inc., (the "Company") are to provide a means to attract and retain high caliber personnel and to provide to participating employees long- term incentives for sustained high levels of performance for the Company and its subsidiaries. These purposes may be achieved through the granting of Incentive Awards under the Plan. 1.2 Definitions (a) "Average Fair Market Value" means, as of any determination date, the average of the daily high and low sales prices of the Common Stock on the composite tape for stocks listed on the New York Stock Exchange as quoted in the New York Stock Exchange Composite Transactions published in the Western Edition of The Wall Street Journal for all trading days during the calendar month preceding the determination date. If the Common Stock is not admitted to trade on the New York Stock Exchange, the Average Fair Market Value shall be determined by the Committee in such other reasonable manner as the Committee shall decide. (b) "Board" means the Board of Directors of Hawaiian Electric Industries, Inc. (c) "Code" means the Internal Revenue Code of 1986, as amended. (d) "Committee" means the Compensation Committee of the Board of Directors. The Committee shall be composed entirely of members who meet the requirements of Section 1.4(a) hereof. (e) "Common Stock" means the Common Stock of Hawaiian Electric Industries, Inc. (f) "Company" means Hawaiian Electric Industries, Inc. and any successor corporation. (g) "Employee" means any regular full-time employee of the Company or any of the Company's present or future parent or subsidiary corporations (as defined in Section 424 of the Code), or any successor of such corporation. (h) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (i) "Fair Market Value" means, as of any determination date, the average of the daily high and low sales prices of the Common Stock on the composite tape for stocks listed on the New York Stock Exchange as quoted in the New York Stock Exchange Composite Transactions published in the Western Edition of The Wall Street Journal on the date as of which Fair Market Value is to be determined, or if there is no trading of Common Stock on such date, the average of the daily high and low sales prices of the Common Stock as quoted in such Composite Transactions on the next preceding date on which there was trading in such shares, or if the -1- Common Stock is not admitted to trade on the New York Stock Exchange, the Fair Market Value shall be determined by the Committee in such other reasonable manner as the Committee shall decide. (j) "Incentive Award" means a Stock Option, Restricted Stock, Stock Appreciation Right, Stock Payment, Dividend Equivalent, or Performance Award granted or sold under the Plan. (k) "Incentive Stock Option" means an incentive stock option, as defined under Section 422 of the Code and the regulations thereunder. (l) "Nonqualified Stock Option" means a stock option other than an Incentive Stock Option. (m) "Option" means a right to purchase Common Stock and refers to both Incentive Stock Options and Nonqualified Stock Options. (n) "Participant" means any Employee or, in the case of death of the Employee, the Employee's beneficiary, selected to receive an Incentive Award pursuant to Section 1.5 hereof. (o) "Payment Event" means the occurrence of the event or events giving rise to the right to payment of a Performance Award. (p) "Performance Award" means an award, payable in cash or Common Stock or combination thereof, the value of which may be determined by the Committee at the time the Performance Award is granted. (q) "Plan" means the Company's 1987 Stock Option and Incentive Plan as set forth herein, as amended from time to time. (r) "Purchase Price" means the purchase price to be paid by a Participant for Restricted Stock as determined by the Committee. (s) "Restricted Stock" means Common Stock that the Participant may purchase at a price determined by the Committee, or Common Stock to which the Participant may become entitled without payment of any price upon the lapse of restrictions specified in the restricted stock agreement under which Common Stock is granted, in either case which Common Stock is nontransferable and subject to substantial risk of forfeiture until specific restrictions are satisfied or lapse. Restrictions may be based on continuing employment or achievement of preestablished performance objectives, but in all cases such restrictions shall include the requirement that the Participant continue to be an Employee for a specified period of time, which period shall not be less than three months after the date of grant. (t) "Rule 16b-3" means Rule 16b-3 promulgated under Section 16 of the Exchange Act (or any other comparable provisions in effect at the time or times in question). (u) "Stock Appreciation Right" or "Right" means a right granted pursuant to Section V of the Plan to receive a number of shares of Common Stock, or an amount of cash, or a combination of shares and cash, based on the increase in the Fair Market Value of the share subject to the right. (v) "Stock Payment" means a payment in shares of the Company's Common Stock (valued at Fair Market Value or Average Fair Market Value, as determined by the Committee) -2- to replace all or any portion of the compensation (other than base salary) that would otherwise become payable to a Participant in cash. 1.3 Shares of Common Stock Subject to the Plan (a) Subject to the provisions of Section 1.3(c) and Section 8.1 of the Plan, the aggregate number of shares of Common Stock that may be issued pursuant to Incentive Awards under the Plan shall be 2,650,000 shares. Notwithstanding the foregoing, commencing with the 1996 calendar year, grants of Options under the Plan to any individual in any calendar year shall be limited to Options to purchase no greater than 100,000 shares of Common Stock. (b) The Common Stock to be issued under the Plan will be made available, at the discretion of the Board or the Committee, either from authorized but unissued shares of Common Stock or from previously issued shares of Common Stock reacquired by the Company, including shares purchased on the open market. (c) If any shares of Common Stock subject to an Option (and related Stock Appreciation Right, if any) terminate without being exercised, then shares subject to such Option shall be available again for the grant of Options or other Incentive Awards under the Plan. If any shares subject to a Restricted Stock Award are forfeited, expire or are otherwise cancelled or terminated, then shares subject to such Restricted Stock Award shall be available again for the grant of Restricted Stock Awards or other Incentive Awards under the Plan. Shares of Common Stock with reference to which Stock Appreciation Rights have been granted shall be available for granting of Incentive Awards to the extent the Stock Appreciation Rights are exercised for cash, or, with respect to Stock Appreciation Rights not related to Options, to the extent the Stock Appreciation Rights terminate without being exercised. If any other Incentive Award shall expire or be forfeited, cancelled or terminated for any reason, the shares of Common Stock available under such Incentive Award shall be available again for the granting of Incentive Awards to the maximum extent consistent with Rule 16b- 3. 1.4 Administration of the Plan (a) The Plan will be administered by the Committee, which will consist of two or more persons who are "disinterested persons" within the meaning of Rule 16b-3. At such time as the Board deems it necessary for the Plan to satisfy the applicable requirements of Section 162(m) of the Code, the members of the Committee will also be "outside directors" within the meaning of Section 162(m) of the Code. (b) Subject to the express provisions of the Plan, the Committee has and may exercise such powers and authority of the Board as may be necessary or appropriate for the Committee to carry out its functions as described in the Plan. The Committee has authority in its discretion to determine the Employees to whom, and the time or times at which, Incentive Awards may be granted or sold, the nature of the Incentive Award, the number of shares of Common Stock that make up each Incentive Award, the performance criteria (which need not be identical) utilized to measure the value of Performance Awards, the form of payment (cash or Common Stock or a combination thereof) payable upon the event or events giving rise to payment of an Incentive Award and such other terms and conditions applicable to each individual Incentive Award as the Committee shall determine. The Committee may grant at any time new Incentive Awards to a Participant who has previously received Incentive Awards or other grants (including other stock options) whether such prior Incentive Awards or such other grants are still outstanding, have previously been exercised in whole or in part, or are cancelled in connection with the issuance of new Incentive Awards. The purchase price or initial value of the Incentive Awards may be established by the Committee without regard to the existing Incentive Awards or such other grants. -3- (c) Each Incentive Award will be evidenced by a written instrument signed by the Participant or granted pursuant to a written performance plan adopted by the Committee and may include any other terms and conditions consistent with the Plan as the Committee may in its discretion determine. Each Option award agreement shall designate the Option as either an Incentive Stock Option or Nonqualified Stock Option. (d) Subject to the express provisions of the Plan, the Committee has the authority to interpret the Plan, to determine the terms and provisions of the Incentive Award agreements, and to make all other determinations necessary or advisable for the administration of the Plan. The Committee has authority to prescribe, amend, and rescind rules and regulations relating to the Plan. All interpretations, determinations, and actions by the Committee will be final, conclusive, and binding upon all parties. Any action of the Committee with respect to the administration of the Plan shall be taken pursuant to a majority vote or by the unanimous written consent of its members. (e) No member of the Board or the Committee or designee thereof will be liable for any action or determination made in good faith by the Board or the Committee with respect to the Plan or any transaction arising under the Plan. 1.5 Participation (a) Such employees of the Company and its subsidiaries as may be selected by the Committee in its discretion are eligible to participate in the Plan. An individual who has been granted or sold an Incentive Award may, if otherwise eligible, be granted or sold additional Incentive Awards if the Committee so determines. (b) No person who owns (or is deemed to own) immediately before the grant of such Incentive Stock Option, directly or indirectly, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company will be eligible for the grant of an Incentive Stock Option. This restriction does not apply if, at the time such Incentive Stock Option is granted, the Incentive Stock Option exercise price is at least 110% of the Fair Market Value on the date of grant and the Incentive Stock Option by its terms is not exercisable after the expiration of five (5) years from the date of grant. (c) In no event may any member of the Board who is not an Employee be granted an Incentive Award. II. Terms and Conditions of Options 2.1 Option Plan The purchase price of Common Stock under each Incentive Stock Option will be determined by the Committee but may not be less than the Fair Market Value on the date of grant. The purchase price of Common Stock under each Nonqualified Stock Option will be determined by the Committee but may not be less than 85% of the Average Fair Market Value on the date of grant. 2.2 Exercisability Options granted pursuant to this Plan shall be exercisable at such times and under such conditions as shall be determined by the Committee; provided, however that no Option shall be exercisable after the expiration of ten (10) years from the date the Option is granted. -4- 2.3 Exercise of Option Options may be exercised by written notice to the Company specifying the number of shares of Common Stock with respect to which the option has been exercised. At the time of exercise of an Option, the purchase price shall be paid in full in cash or its equivalent acceptable to the Committee. To the extent provided by the Option agreement executed by the Participant, the purchase price may be paid by the assignment and delivery to the Company of shares of Common Stock or a combination of cash and shares of Common Stock equal in value to the exercise price, or in such other manner acceptable to the Committee. Any shares assigned and delivered to the Company in payment or partial payment of the purchase price will be valued at their Fair Market Value on the exercise date. No fractional shares will be issued pursuant to the exercise of an Option, but the Committee in its discretion, may make a cash payment. III. Terms and Conditions of Performance Awards 3.1 Grant of Performance Awards The Committee shall determine the performance criteria (which need not be identical) to be utilized to calculate the value of Performance Awards, the terms of such Performance Awards, the Payment Event, and the form and time of payment of Performance Awards. The specific terms and conditions of each Performance Award shall be set forth in a written instrument evidencing the grant of a Performance Award, or in a performance plan adopted by the Committee. 3.2 Payment of Performance Awards Payment of Performance Awards may be in cash or in shares of Common Stock valued at Fair Market Value or Average Fair Market Value on the date of payment, or a combination of Common Stock and cash, as the Committee in its discretion may determine. The Committee may permit a Participant to elect to defer receipt of any portion of a Performance Award that is paid in cash or shares of Common Stock and credit any such amounts with an interest rate or such other rate of return as shall be specified by the Committee. The Committee may impose a limitation on the amount payable upon the occurrence of a Payment Event, which limitation shall be set forth in the written instrument evidencing the grant of a Performance Award. 3.3 Expiration of Performance Awards If any Participant's employment with the Company is terminated for any reason prior to the occurrence of the Payment Event, all of the Participant's rights under the Performance Award shall expire and terminate unless the applicable performance award agreement or plan provides otherwise. IV. Restricted Stock 4.1 Award of Restricted Stock The Committee may grant awards of Restricted Stock to Employees. The Committee shall determine the Purchase Price, the terms of payment of the Purchase Price, the restrictions upon the Restricted Stock, and when such restrictions shall lapse. The Committee may determine that Restricted Stock may be awarded without requiring payment of a Purchase Price. In all instances, an award of Restricted Stock shall include a restriction requiring that the Participant receiving the award must remain an Employee for a specified period of time, which period shall not be less than three months after the date of grant. The terms and conditions of the Restricted Stock shall be set forth in a written agreement. -5- 4.2 Conditions of Restricted Stock All shares of Restricted Stock (including shares received as a result of stock dividends, stock splits or other forms of recapitalization) sold pursuant to the Plan will be subject to the following conditions: (a) The shares may not be sold, transferred or otherwise alienated or hypothecated until the restrictions are removed or expire. (b) The Participant shall enter into an escrow agreement (which agreement may be part of the written agreement setting forth the terms and conditions of the Restricted Stock and may specify the Secretary of the Company as escrow holder), providing that the certificates representing the Restricted Stock sold to a Participant pursuant to the Plan will remain in the physical custody of an escrow holder until all restrictions are removed or expire. (c) Each certificate representing Restricted Stock sold to a Participant pursuant to the Plan will bear a legend making appropriate reference to the restriction imposed. (d) Such other conditions as the Committee may deem advisable including, without limitation, restrictions designed to facilitate compliance with or exemption from the Exchange Act, the requirements of any stock exchange on which shares of the same class are listed, and with any Blue Sky or securities laws which may be applicable to such shares. 4.3 Lapse of Restrictions The restrictions imposed upon Restricted Stock under Section 4.2 above will lapse in accordance with such conditions as are determined by the Committee and set forth in a written instrument describing the terms of the sale of the Restricted Stock. 4.4 Rights of Participant Subject to the provisions of Section 4.2 above, and the restrictions imposed pursuant to Section 4.2, the Committee may determine that the Participant will have all rights of a stockholder with respect to the Restricted Stock sold to the Participant, including the right to vote the shares and receive all dividends and other distributions paid or made with respect thereto. Each Participant who has an outstanding award of Restricted Stock that is subject to restrictions shall deposit with the Company any stock, securities or other property which the Participant is entitled to receive with respect to the Participant's shares of Restricted Stock by reason of an event described in Section 8.1(a) hereof, and such stock, securities or other property will be subject to the restrictions imposed on such Restricted Stock. 4.5 Termination of Employment Unless the applicable Restricted Stock award agreement provides otherwise, upon a Participant's termination of employment for any reason, all of the Participant's Restricted Stock remaining subject to restrictions on the date of such termination of employment shall be forfeited and shall be available again for grant of Incentive Awards under the Plan. -6- V. Stock Appreciation Rights 5.1 Granting of Stock Appreciation Rights The Committee may approve the grant of Stock Appreciation Rights related to Options to Participants, subject to the following terms and conditions: (a) A Stock Appreciation Right may be granted: (i) either at the time of grant, or at any time thereafter during the Option term if related to a Nonqualified Stock Option; or (ii) only at the time of grant if related to an Incentive Stock Option. (b) A Stock Appreciation Right granted in connection with an Option will entitle the holder of the related Option, upon exercise of the Stock Appreciation Right, to surrender such Option with respect to the number of shares as to which such Stock Appreciation Right is exercised, and to receive payment of an amount computed pursuant to Section 5.1(d). Such Option will, to the extent surrendered, then cease to be exercisable. (c) Subject to Section 5.1(f), a Stock Appreciation Right granted in connection with an Option hereunder will be exercisable at such time or times, and only to the extent that a related Option is exercisable, and will not be transferable except to the extent that such related Option may be transferable. (d) Upon the exercise of a Stock Appreciation Right related to an Option, the holder will be entitled to receive payment of an amount determined by multiplying: (i) the difference obtained by subtracting the purchase price of a share of Common Stock specified in the related Option from the Fair Market Value of a share of Common Stock on the date of exercise of such Stock Appreciation Right, by (ii) the number of shares as to which such Stock Appreciation Right has been exercised. (e) Payment of the amount determined under Section 5.1(d) may be made in whole shares of Common Stock in a number determined at their Fair Market Value or Average Fair Market Value (as determined by the Committee) on the date of exercise of the Stock Appreciation Right or, alternatively, at the sole discretion of the Committee, in cash or in a combination of cash and shares as the Committee deems advisable. If the Committee decides to make full payment in shares of Common Stock, and the amount payable results in a fractional share, payment for the fractional share will be made in cash. (f) The Committee may, at the time a Stock Appreciation Right is granted, impose such conditions on the exercise of the Stock Appreciation Right as may be required to satisfy the requirements of Rule 16b-3. Without limiting the generality of the foregoing, the Committee may determine that a Stock Appreciation Right may be exercised only during the period beginning on the third business day and ending on the twelfth business day following the release of the Company's quarterly and annual summarized financial data. -7- (g) To the extent required to satisfy the applicable requirements of Rule 16b-3, no Stock Appreciation Right granted to a Participant of the Company subject to Section 16 of the Exchange Act may be exercised before six (6) months after the date of grant, except (i) in the event death of the Participant occurs before the expiration of the six-month period, or (ii) to the extent permitted pursuant to Rule 16b-3, in the event disability of the Participant occurs before the expiration of the six-month period. VI. Stock Payment The Committee may approve Stock Payments of the Company's Common Stock (valued at Fair Market Value or Average Fair Market Value at the time of payment, as determined by the Committee) to an Employee for all or any portion of the compensation (other than base salary) that would otherwise become payable to an Employee in cash. VII. Dividend Equivalents A Participant may also be granted at no additional cost "Dividend Equivalents" based on the dividends declared on the Common Stock on record dates during the period between the date an Option is granted and the date such Option is exercised, or such other period, as determined by the Committee. Such Dividend Equivalents shall be converted to additional shares or cash by such formula as may be determined by the Committee. Dividend Equivalents shall be computed, as of each dividend record date, both with respect to the number of shares under the Option and with respect to the number of Dividend Equivalent shares previously credited to the Participant (or Participant's successor in interest) and not issued during the period prior to the dividend record date. VIII. Other Provisions 8.1 Adjustment Provisions (a) Subject to Section 8.1(b) below, if the outstanding shares of Common Stock of the Company are increased, 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, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other distribution with respect to such shares of Common Stock or other securities, an appropriate and proportionate adjustment may be made in (i) the maximum number and kind of shares provided in Section 1.3, (ii) the number and kind of shares or other securities subject to the outstanding Incentive Awards, and (iii) the price for each share or other unit of any other securities subject to outstanding Incentive Awards without material change in the aggregate purchase price or value as to which such Incentive Awards remain exercisable or subject to restrictions. (b) In addition to the adjustments covered under Section 8.1(a) above, any Incentive Award may contain provisions to the effect that upon the occurrence of certain events, including a change in control of the Company (as defined by the Committee in the Participant's Incentive Award agreement), any outstanding Incentive Awards not theretofore vested, exercisable, payable or free from restrictions, as the case may be, shall either immediately, or upon a further determination made by the Committee at the time of the event, become fully vested, exercisable, payable, or free from restrictions. -8- (c) Adjustments and determinations under Section 8.1(a) and 8.1(b) will be made by the Committee, whose determination will be final, binding, and conclusive. No fractional interests will be issued under the Plan resulting from any such adjustments, but the Committee in its discretion may make a cash payment in lieu of fractional shares. 8.2 Continuation of Employment Nothing in the Plan or in any instrument executed pursuant to the Plan will confer upon any Participant any right to continue in the employ of the Company or affect the right of the Company to terminate the employment of any Participant at any time with or without cause. 8.3 Compliance with Government Regulations No shares of Common Stock will be issued pursuant to an Incentive Award unless and until all applicable requirements imposed by Federal and State securities and other laws, rules and regulations and by any regulatory agencies having jurisdiction and by any stock exchanges upon which the Common Stock may be listed have been fully met. As a condition precedent to the issuance of shares of Common Stock pursuant to an Incentive Award, the Company may require the Participant to take any reasonable action to comply with such requirements. 8.4 Privileges of Stock Ownership No Participant and no beneficiary or other person claiming under or through such Participant will have any right, title or interest in or to any shares of Common Stock allocated or reserved under the Plan or subject to any Incentive Award except as to such share of Common Stock, if any, that have been issued to such Participant. 8.5 Withholding The Company may make such provisions as it deems appropriate to withhold any taxes the Company determines it is required to withhold in connection with any Incentive Award. The Company may require the Participant to satisfy any relevant tax requirements before authorizing any issuance of Common Stock to the Participant. To the extent permitted by the applicable Incentive Award agreement a Participant may satisfy any such withholding tax obligation by any of the following means or by a combination of such means: (a) tendering a cash payment; (b) authorizing the Company to withhold from the Common Stock otherwise issuable to the Participant, a number of shares having a Fair Market Value, as of the date the withholding tax obligations arises, less than or equal to the amount of withholding tax obligations; or (c) delivering to the Company already owned and unencumbered shares of Common Stock having a Fair Market Value, as of the date the withholding tax obligation arises, less than or equal to the amount of the withholding tax obligation. 8.6 Transferability of Incentive Awards To the extent necessary to satisfy the requirements of Rule 16b-3 with respect to Incentive Awards granted under the Plan, the Committee shall provide that (a) no Option or Right may be exercised during the life of the Participant other than by the Participant or the Participant's duly appointed guardian or personal representative, and (b) no Incentive Award and no Right under the Plan, contingent or otherwise, will be assignable or subject to any encumbrance, pledge, or charge of any nature except that, under such rules as the Committee may establish pursuant to the terms of the Plan, a beneficiary may be designated with respect to an Incentive Award in the event of death of a Participant. If such beneficiary is the executor or administrator of the estate of the Participant, any rights with respect to such Incentive Award may be transferred to the person or persons or entity (including a trust) entitled thereto under the will of the Participant of such -9- Incentive Award. Notwithstanding the foregoing, the Committee may permit transferability of Incentive Awards to the extent permitted by the applicable provisions of Rule 16b-3; provided, however, that the Committee, in its discretion, may impose any restrictions on transferability of Incentive Awards as it deems appropriate. 8.7 Amendment and Termination of Plan; Amendment of Incentive Award (a) The Board will have the power, in its discretion, to amend, suspend, or terminate the Plan at any time; provided, however, that no amendment to the Plan may be made without approval of the stockholders of the Company to the extent stockholder approval of the amendment is required to comply with the requirements of Rule 16b-3 or, if applicable, Section 162(m) of the Code. (b) Except as otherwise provided by the applicable Incentive Award agreement or by Section 1.4, the Committee may not, without the consent of a Participant, make modifications in the terms and conditions of an Incentive Award. (c) No amendment, suspension, or termination of the Plan will, without the consent of the Participant, alter, terminate, impair, or adversely affect any right or obligations under any Incentive Award previously granted under the Plan. IX. Interpretation The Plan is designed and intended to comply with Rule 16b-3 and, to the extent applicable, Section 162(m) of the Code, and all provisions hereof shall be construed in a manner to so comply. X. Duration of Plan Unless previously terminated by the Board of Directors, the Plan will terminate on February 19, 2006. -10- EX-99 4 dex99.txt THIRD AMENDMENT TO TRUST AGREEMENT Exhibit 99 ---------- THIRD AMENDMENT TO TRUST AGREEMENT BETWEEN HAWAIIAN ELECTRIC INDUSTRIES, INC. AND FIDELITY MANAGEMENT TRUST COMPANY THIS THIRD AMENDMENT TO TRUST AGREEMENT, is made and entered into April 1, 2001, by and between Fidelity Management Trust Company (the "Trustee") and Hawaiian Electric Industries, Inc. (the "Sponsor"); WITNESSETH: WHEREAS, the Trustee and the Sponsor heretofore entered into a trust agreement dated February 1, 2000, and amended August 1, 2000, and November 1, 2000 (the "Trust Agreement"), for the Hawaiian Electric Industries Retirement Savings Plan (the "Plan"); and WHEREAS, the Sponsor and Trustee have agreed to reduce the Annual Participation Fee to $0; and WHEREAS, in furtherance of the foregoing, the Trustee and the Sponsor desire to amend said Trust Agreement as provided for in Section 13 thereunder; NOW THEREFORE, in consideration of the above premises, the Trustee and the Sponsor hereby amend the Trust Agreement by: (1) Amending and restating Schedule "B", as attached. IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Third Amendment to be executed by their duly authorized officers effective as of the day and year first above written. HAWAIIAN ELECTRIC FIDELITY MANAGEMENT TRUST INDUSTRIES, INC. COMPANY BY: HAWAIIAN ELECTRIC INDUSTRIES, INC. PENSION INVESTMENT COMMITTEE By: /s/ Robert F. Mougeot 4/4/01 By: /s/ Carolyn Redden 5/8/01 -------------------------------- ----------------------------- Robert F. Mougeot Date Vice President Date Chairman By: /s/ Peter C. Lewis 4/4/01 -------------------------------- Peter C. Lewis Date Secretary and Member Schedule "B" FEE SCHEDULE ------------ Recordkeeping Fees - ------------------ * Annual Participation Fee: $0 per participant. * Minimum Required Distribution (MRD): $25.00 per MRD recipient per year. * Plan Establishment Fee: $2,500.00 * Loan Fee: Establishment fee of $35.00 per loan account; annual fee of $15.00 per loan account.** * Plan Sponsor WebStation (PSW): All User ID fees waived. * NetBenefits: All User ID fees waived. * Non-Fidelity Mutual Funds: .35% annual administrative fee on the following Non-Fidelity Mutual Fund assets which are equity/balanced funds: MAS Value Portfolio Adviser; Neuberger Berman Partners Fund-Trust Class and the PBHG Emerging Growth Fund; .25% annual administration fee plus an $8.00 per participant fee on all INVESCO Dynamics Fund assets (to be paid by the Non-Fidelity Mutual Fund vendor). * Other Fees: separate charges for optional nondiscrimination testing, extraordinary expenses resulting from large numbers of simultaneous manual transactions, from errors not caused by Fidelity, reports not contemplated in this Agreement, corporate actions, or the provision of communications materials in hard copy which are also accessible to participants via electronic services in the event that the provision of such material in hard copy would result in an additional expense deemed to be material. ** This fee will be imposed pro rata for each calendar quarter, or any part -------- thereof, that it remains necessary to keep a participant's loans(s) as part of the Plan's records through the calendar yearend for 1099R reporting. 2 Trustee Fee - ----------- Investment Options * Sponsor Stock: 0.10% per annum of such assets in the Trust payable quarterly on the basis of such assets as of the average market value for each calendar quarter. In no event will the fee be less than $10,000 nor more than $35,000 per year. * Others: None. Note: These fees have been negotiated and accepted based on the following ---- Plan characteristics, as of 3/22/01: 1 plan in the relationship, plan assets of $189.9 million, participation of 3,152 participants, Sponsor Stock assets of $44.6 million, total Fidelity actively managed Mutual Fund assets of $105.4 million, total Fidelity nonactively managed Mutual Fund assets of $16.4 million, total Non-Fidelity Mutual Funds and ASB MMA assets of $23.5 million, projected net cash flows of $0.0 million per year, and up to 18 investment options. Subject to Section 13 of the Trust Agreement, fees will be subject to review when the Sponsor requests a change to the Plan and/or the Plan characteristics have changed by +/- 10%. HAWAIIAN ELECTRIC FIDELITY MANAGEMENT TRUST INDUSTRIES, INC. COMPANY BY: HAWAIIAN ELECTRIC INDUSTRIES, INC. PENSION INVESTMENT COMMITTEE By: /s/ Robert F. Mougeot 4/4/01 By: /s/ Carolyn Redden 5/8/01 ------------------------------------ ------------------------------- Robert F. Mougeot Date Vice President Date Chairman By: /s/ Peter C. Lewis 4/4/01 ------------------------------------ Peter C. Lewis Date Secretary and Member 3 -----END PRIVACY-ENHANCED MESSAGE-----