HEI EXHIBIT 4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement"), dated as of November 26, 2001 is
made by and among Hawaiian Electric Industries, Inc., a Hawaii corporation (the
"Company") for itself and on behalf of 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 identified as number XXX (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. The
Escrow Agent shall hold the Escrow Account for the benefit of participants in
the Plan in accordance with this Agreement. Any interest earned on principal
amounts shall belong to the Company. The Company shall pay to the Escrow Agent
reasonable compensation for all services rendered by it, and reasonable expenses
incurred by it pursuant to this Agreement, as agreed to by the Company and the
Escrow Agent from time to time.
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, shall make such records available for
review by of the Administrator, and shall furnish the Company with information
requested by the Company 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 Administrator and
the Company), and in such amounts as the Administrator shall direct. The Escrow
Agent shall not be liable for any loss sustained by reason of acting or failing
to act pursuant to this Agreement in the absence of negligence, willful
misconduct or breach on the part of the Escrow Agent.
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 appointment of a successor escrow agent,
as provided below. 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 a successor escrow agent, the resigning or
removed Escrow Agent shall transfer and deliver control over the Escrow Account
and all records relating thereto, to the successor escrow agent.
4. Termination. This Agreement may be terminated by the Company at any
time by written notice given to the Escrow Agent by the Administrator 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, Central Pacific Plaza, 220 S. King
Street, Suite 400, Honolulu, Hawaii 96813, Facsimile: XXX-XXXX, Attention: BCSC,
or, if to the Company or the Administrator, to Hawaiian Electric Industries,
Inc., 900 Richards Street, Honolulu, Hawaii 96813, Facsimile: (XXX) XXX-XXXX,
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. 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 be assignable by the Escrow Agent. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto an 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 an 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/ ROBERT F. MOUGEOT By: /s/ WILLARD LEE
----------------------------------- ----------------------------------
Name: Robert F. Mougeot Name: Willard Lee
Title: Financial Vice President, Title: Vice President
Treasurer, & Chief
Financial Officer
2
November 13, 2001
TO: Central Pacific Bank
RE: Escrow account no. __________
This certification is given pursuant to that certain Escrow Agreement
("Agreement") dated as of November 13, 2001 between Hawaiian Electric
Industries, Inc. ("Company") and Central Pacific Bank ("Escrow Agent").
The following persons are designated as an authorized representative of the
Company and each hereby is authorized to issue standard instructions to Escrow
Agent in the form attached as Exhibit A. Specimen signatures of such persons are
shown below.
Laurie Loo-Ogata
Director, Shareholder Services /s/ LAURIE LOO-OGATA
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Dara Teruya
Administrator, Shareholder Services /s/ DARA TERUYA
---------------------------
Suzy A. P. Hollinger
Manager, Investor Relations /s/ SUZY A. P. HOLLINGER
---------------------------
Lon K. Okada
Manager, Tax Department /s/ LON K. OKADA
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Curtis Y. Harada
Controller /s/ CURTIS Y. HARADA
---------------------------
Robert F. Mougeot
Financial Vice President, Treasurer
& Chief Financial Officer /s/ ROBERT F. MOUGEOT
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Nonstandard instructions in the form attached as Exhibit B shall be signed
by any one of the foregoing persons and countersigned by any one of the
following persons provided such countersigner is a different person.
Robert F. Mougeot, Financial Vice
President, Treasurer & Chief
Financial Officer /s/ ROBERT F. MOUGEOT
---------------------------
Curtis Y. Harada, Controller /s/ CURTIS Y. HARADA
---------------------------
Very truly yours,
HAWAIIAN ELECTRIC INDUSTRIES, INC.
Corporate Seal
By
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Corporate Secretary
HAWAIIAN ELECTRIC INDUSTRIES, INC. LETTERHEAD
[HEI Logo] EXHIBIT A
November 9, 2001
TO: Central Pacific Bank
Attn:
FAX
RE: Escrow account no. ____________
These instructions are issued pursuant to that certain Escrow Agreement
dated as of _______________________ between Hawaiian Electric Industries, Inc.
("HEI") and Central Pacific Bank ("Escrow Agent").
You are hereby authorized and requested to transfer via the fed wire system
on 2001:
[X] The amount of $__ to Bank of Hawaii (ABA No. XXX), for
credit to HEI, account no. XXX.
[X] The amount of $__ to American Savings Bank, F.S.B. (ABA No.
XXX) for credit to HEI DRIP account no. XXX.
If you have any questions, please call Elizabeth Lee, Treasury
Administrator, Hawaiian Electric Company, Inc. at 543-7310.
Very truly yours,
HAWAIIAN ELECTRIC INDUSTRIES, INC.
Shareholder Services
By
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Authorized Signor
Please sign below and fax it back to us at (XXX) XXX-XXXX to indicate your
acknowledgement of receipt of this letter.
CPB: Received by Date
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cc: Elizabeth Lee (FAX 543-7396)
Amy Buser - KS4-MM ASB 22500 L72 N (Pot Shares) $
TT 47000 R73 Y (Misc. Inc.) $
ZZ 22004 L41 N (Fed. Taxes) $
ZZ 11502 R05 N (Interest Inc.) $
ZZ 25100 S51 N (Common Stock) $
EXHIBIT B
[FORM OF NONSTANDARD ESCROW INSTRUCTIONS]
(date)
TO: CENTRAL PACIFIC BANK
RE: Escrow account no. _________________
These instructions are issued pursuant to that certain Escrow Agreement
dated as of _____________________ between Hawaiian Electric Industries, Inc.
("HEI") and Central Pacific Bank ("Escrow Agent").
You are hereby authorized and requested to:
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If you have any questions, please call Elizabeth Lee, Treasury
Administrator, Hawaiian Electric Company, Inc. at 543-7310.
Very truly yours,
HAWAIIAN ELECTRIC INDUSTRIES, INC.
By
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Authorized Signor
By
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Financial Vice President, Treasurer
& Chief Financial Officer
OR Controller