EXHIBIT 4(f)
ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated as of November 30, 1995, between 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 FIRST
HAWAIIAN BANK, a corporation having trust powers (the "Bank"), as escrow agent
hereunder (the "Escrow Agent"). As used in the Escrow Agreement, the term
"Administrator" shall mean the Stock Transfer Division of the Company or any
other person or entity designated by the Company from time to time.
RECITALS:
WHEREAS, the Securities and Exchange Commission (the "SEC") requires that
funds deposited with an issuer for the purchase of shares under a dividend
reinvestment and stock purchase plan be placed in an independent account to
protect those funds from any liens and creditor claims against the issuer;
WHEREAS, the Company has revised the Plan to comply with this SEC directive
and desires to establish with the Escrow Agent, subject to the terms of this
Agreement, a segregated account to comply with the SEC's requirements; and
WHEREAS, the Escrow Agent is willing to serve as escrow agent for such
account, subject to the terms of this Agreement;
NOW, THEREFORE, In consideration of the premises, and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Creation of Escrow Account. The Company and the Administrator
hereby create with the Escrow Agent an escrow account for the benefit of the
participants in the Plan, consisting of dividends (other than dividends
reinvested in shares of common stock issued by the Company on the dividend
payment date), initial and optional cash payments and other property deposited
by the Administrator from time to time in that certain interest bearing escrow
account no. 00-0000-00 with the Bank, and all proceeds of any of the foregoing
and any property of any character whatsoever into which any of the foregoing
may be converted which is deposited into said account, together with all
rights and privileges with respect thereto (collectively, the "Escrow
Account").
Section 2. Status of Escrow Agent. The Escrow Agent represents and warrants
to the Company and the Plan and covenants that (i) it is, and shall remain at
all times during the term of this Escrow Agreement, a "bank" as that term is
defined in Section 3(a)(6) of the Securities Exchange Act of 1934, and (ii)
the Escrow Account will be held for the benefit of participants, will not be
subject to any liens, creditor claims, or other claims against the Company,
the Administrator, or the Escrow Agent, and will not be subject to bankruptcy
proceedings if the Company files for bankruptcy under federal or state law.
Section 3. Holding of Escrow Account; Rights to Principal and Interest. The
Escrow Agent hereby covenants that it will hold the Escrow Account for the
benefit of participants in the Plan in accordance with this Escrow Agreement.
Neither the Company nor the Administrator will have any beneficial interest or
other interest in principal amounts deposited by the Administrator in the
Escrow Account. Any interest earned on such principal amounts shall belong to
the Company and shall be used in part to pay the costs owed by the Company to
the Escrow Agent under Section 11.
Section 4. Instructions to Escrow Agent. The Company shall certify to the
Escrow Agent from time to time the names and specimen signatures of any person
who shall have authority to give instructions to the Escrow Agent hereunder on
behalf of the Administrator. Instructions may be given substantially in the
form attached hereto as Exhibit A or B.
Section 5. General Duties and Powers of the Escrow Agent. The Escrow Agent
shall keep accurate and detailed records of receipts and disbursements and
other transactions affecting the Escrow Account, and shall make such records
available for review from time to time at the request of the Administrator.
The Escrow Agent shall furnish to the Company such information regarding the
Escrow Account as may be reasonably requested by the Company from time to
time. Upon instructions from the Administrator, the Escrow Agent shall invest
the funds in the Escrow Account as directed by 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 Administrator agrees that all directions
given to the Escrow Agent hereunder shall be consistent with and for the
exclusive purposes provided in the Plan. The Escrow Agent shall have no
responsibility for monitoring compliance with this covenant.
Section 6. Liability of Escrow Agent. The Escrow Agent shall use ordinary
care, skill, prudence and diligence under the circumstances then prevailing
that a prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims. The Escrow Agent shall not be liable or responsible for any loss
sustained for acting without question on the direction of, or failing to act
in the absence of any direction from, the Administrator or any person with
authority to act on behalf of the Administrator, unless the Escrow Agent knows
that by such action or failure to act it will be in breach of its fiduciary
duties or this Agreement. The Escrow Agent shall not be responsible in any
respect for the administration of the Plan.
The duties and obligations of the Escrow Agent hereunder shall be governed
solely by the terms of this Escrow Agreement, and no implied covenants or
obligations shall be read into this Escrow Agreement against the Escrow Agent.
Section 7. Resignation of Escrow Agent. The Escrow Agent may resign its
duties hereunder by delivering its written resignation to the Administrator.
Such resignation shall take effect upon the appointment of a successor escrow
agent, as provided below.
Section 8. Removal of Escrow Agent. The Escrow Agent may be removed by the
Administrator at any time, with or without cause, upon thirty (30) days'
notice to the Escrow Agent, but such notice may be waived by the Escrow Agent.
Such removal shall be effected by delivering to the Escrow Agent a written
notice of removal executed by the Administrator and by giving notice to the
Escrow Agent of the appointment of a successor escrow agent in the manner
hereinafter set forth.
Section 9. Appointment of Successor Escrow Agent. The appointment of a
successor escrow agent hereunder 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) an instrument in writing appointing such successor escrow
agent, executed by the Administrator, and consented to by the Company and (ii)
an acceptance in writing of the office of successor escrow agent hereunder
executed by the successor so appointed.
Any successor escrow agent hereunder may be either a corporation authorized
and empowered to exercise trust powers or one or more individuals. All of the
provisions set forth herein with respect to the Escrow Agent shall relate to
each successor escrow agent so appointed with the same force and effect as if
such successor escrow agent had been originally named herein as the escrow
agent hereunder.
If within sixty (60) days after notice of resignation or removal shall have
been given under the provisions of this Escrow Agreement a successor escrow
agent shall not have been appointed, the resigning or removed Escrow Agent or
the Administrator may apply to any court of competent jurisdiction for the
appointment of a successor escrow agent.
Section 10. Transfer of Escrow Account to Successor. 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 to the
Escrow Account to such successor escrow agent.
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Section 11. Expenses and Compensation; Indemnification. The Company shall
pay to the Escrow Agent reasonable compensation for all services rendered by
it hereunder, and reasonable expenses incurred by it hereunder, as agreed to
by the Company and the Escrow Agent from time to time. The Company assumes
liability for and agrees to indemnify and hold harmless the Escrow Agent from
and against, all claims that may be imposed on, incurred by, or asserted
against the Escrow Agent relating to or arising from the administration of the
Escrow Account pursuant to this Escrow Agreement except as provided in the
next sentence below. The Escrow Agent shall be liable only for its own acts or
omissions (and those of its officers, employees and agents) occasioned by the
breach of this Escrow Agreement or wilful misconduct or negligence of the
Escrow Agent and its officers and employees. The indemnities contained in this
Section shall survive the termination of this Escrow Agreement.
Section 12. Modification and Termination. This Escrow Agreement may not be
amended or modified except by a writing signed by the parties hereto. To the
extent not inconsistent with the Plan, this Escrow Agreement may be terminated
at any time by notice given to the Escrow Agent by the Administrator with
instructions as to disposition of any funds or other property then remaining
in the Escrow Account.
Section 13. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with and governed by the laws of the State of
Hawaii.
Section 14. Notices. Notices and other communications may be given in
writing and sent by telecopy or other wire transmission with receipt verified
in a manner typical of communications of that type, registered or certified
mail, or delivery service with receipt verified, and shall be addressed (i) if
to Escrow Agent, at the address indicated on the signature page below, and
(ii) if to the Company, at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000
Attention: Treasurer, and (iii) if to the Administrator, at X.X. Xxx 000,
Xxxxxxxx, Xxxxxx 00000-0000 Attention: Stock Transfer Agent, or to such other
address designated by a party upon written notice to the other parties. Such
notices and communications shall be deemed given when mailed or if given by
telecopy or other electronic transmission or by delivery service, upon
verification of receipt.
Section 15. Successors and Assigns; Headings. This Agreement shall be
binding on the parties' successors and assigns. The headings of the sections
hereof are included for convenience of reference only and do not form a part
of this Agreement.
Section 16. Entire Agreement. This Agreement contains the complete agreement
of the parties hereto with respect to the subject matter hereof and supersedes
and replaces any previously made proposals, representations, warranties or
agreements with respect thereto by either of the parties hereto.
Section 17. Severability. The invalidity or unenforceability of any term or
provision of this Agreement shall not affect the validity or enforceability of
any other term or provision of this Agreement.
Section 18. No Waiver. A failure or delay by either party hereto in
exercising any right, power or remedy under this Agreement shall not operate
as a waiver of that right, power or remedy, nor shall the single or partial
exercise of any right, power or remedy preclude any other or further exercise
of that right, power or remedy or the exercise of any other right, power or
remedy.
Section 19. Counterpart Execution. This Escrow Agreement may be executed in
any number of counterparts and by each of the parties hereto on separate
counterparts; all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties have entered into this Escrow Agreement as
of the date first above written.
HAWAIIAN ELECTRIC INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx
Financial Vice President and
Chief Financial Officer
By /s/ Xxxxxxxxx X. Xxx
-------------------------
Xxxxxxxxx X. Xxx
Treasurer
FIRST HAWAIIAN BANK
By /s/ Xxxx X. Xxxxxxx
-------------------------
Its Vice President
Address:
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Trust Operations
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