FIFTEENTH AMENDMENT TO TRUST AGREEMENT BETWEEN HAWAIIAN ELECTRIC INDUSTRIES, INC., AMERICAN SAVINGS BANK, F.S.B. AND FIDELITY MANAGEMENT TRUST COMPANY
HEI Exhibit 4.6(p)
FIFTEENTH AMENDMENT TO TRUST AGREEMENT BETWEEN
HAWAIIAN ELECTRIC INDUSTRIES, INC., AMERICAN SAVINGS BANK, F.S.B. AND
FIDELITY MANAGEMENT TRUST COMPANY
THIS FIFTEENTH AMENDMENT TO TRUST AGREEMENT is made and entered into effective January 15, 2010, and is effective on that date unless otherwise stated herein, by and between Fidelity Management Trust Company (the “Trustee”) and Hawaiian Electric Industries, Inc. and American Savings Bank, F.S.B. (collectively and individually, the “Sponsor”);
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust Agreement dated February 1, 2000, and amended August 1, 2000, November 1, 2000, April 1, 2001, December 31, 2001, January 1, 2002, April 1, 2002, July 1, 2002, September 1, 2003, February 2, 2004, October 3, 2005, November 1, 2006, August 1, 2007, October 17, 2008, and December 31, 2008 and further amended by letters of direction executed by the Sponsor and the Trustee which specifically state that both parties intend and agree that the direction letter shall constitute an amendment (the “Trust Agreement”) for the Hawaiian Electric Industries Retirement Savings Plan and American Savings Bank 401(k) Plan (collectively and individually, the “Plan”); and
WHEREAS, the Sponsor desires that the Hawaiian Electric Industries Retirement Savings Plan and American Savings Bank 401(k) Plan maintain separate employer stock funds and as a result hereby directs the Trustee that effective after the close of business on January 15, 2010, the HEI Common Stock Fund will be removed from the American Savings Bank 401(k) Plan and the HEI Common Stock Fund #2 will be added to the American Savings Bank 401(k) Plan; and
WHEREAS, the Sponsor now desires, and hereby directs the Trustee, in accordance with Sections 4(b) and 7(b), effective after the close of business on January 15, 2010, for the American Savings Bank 401(k) Plan only (1) to redirect all participant contributions directed to the HEI Common Stock Fund to be invested in the HEI Common Stock Fund #2 and (2) to transfer in-kind all participant balances held in the HEI Common Stock Fund to the HEI Common Stock Fund #2. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this redirection and conversion directed by the Sponsor. Any variation from the procedure described herein may be instituted only at the express written direction of the Sponsor; and
WHEREAS, in furtherance of the foregoing, the Sponsor and the Trustee desire to amend said Trust Agreement as provided for in Section 13 thereunder;
NOW THEREFORE, in consideration of the above premises, the Sponsor and the Trustee hereby amend the Trust Agreement by:
| (1) | Effective after the close of business on January 15, 2010, amending and restating Schedule “A”, in its entirety, as attached hereto. |
| (2) | Effective after the close of business on January 15, 2010, amending and restating Schedule “C”, in its entirety, as attached hereto. |
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Fifteenth Amendment to be executed by their duly authorized officers effective as of the day and year first above written. By signing below, the undersigned represent that they are authorized to execute this document on behalf of the respective parties. Notwithstanding any contradictory provision of the agreement that this document amends, each party may rely without duty of inquiry on the foregoing representation.
| HAWAIIAN ELECTRIC INDUSTRIES, INC. BY: HAWAIIAN ELECTRIC INDUSTRIES, INC. PENSION INVESTMENT COMMITTEE |
FIDELITY MANAGEMENT TRUST COMPANY | |||||||||
| By: | /s/ Xxxxxxxxx X. Xxx |
1/4/2010 | By: | /s/ Xxxxxxxxx Nick |
2/9/10 | |||||
| Xxxxxxxxx X. Xxx | Date | FMTC Authorized Signatory | Date | |||||||
| Member | Xxxxxxxxx Nick | 2/9/10 | ||||||||
| By: | /s/ Xxxxxxx X. Schools |
12/30/2009 | ||||||||
| Xxxxxxx X. Schools | Date | |||||||||
| Member | ||||||||||
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
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Schedule “A”
ADMINISTRATIVE SERVICES
The Trustee will provide the recordkeeping and administrative services set forth on this Schedule “A”, or as otherwise agreed to in writing (or by means of a secure electronic medium) between the Sponsor and Trustee in accordance with direction procedures established by the Trustee with the written approval of the Sponsor and documented in the Plan Administration Manual. With regard to Plan specific services, the Trustee shall add services only at the direction of the Sponsor. With prior written notice to the Sponsor, the Trustee may unilaterally enhance the services previously approved, provided there is no impact on fees set forth in Schedule “B”; and further provided that if the Sponsor notifies the Trustee in writing that a change to a previously approved service proposed by the Trustee pursuant to this sentence is unacceptable to the Sponsor, such service change shall not be applied.
Administration
| * | Establishment and maintenance of participant account and election percentages. |
| * | Maintenance of the following plan investment options: |
| • | AIM Dynamics Fund (frozen to new investments effective January 1, 2006) |
| • | ASB Money Market Account |
| • | Fidelity Diversified International Fund – Class K |
| • | Fidelity Freedom 2000 Fund® |
| • | Fidelity Freedom 2005 Fund® |
| • | Fidelity Freedom 2010 Fund® |
| • | Fidelity Freedom 2015 Fund® |
| • | Fidelity Freedom 2020 Fund® |
| • | Fidelity Freedom 2025 Fund® |
| • | Fidelity Freedom 2030 Fund® |
| • | Fidelity Freedom 2035 Fund® |
| • | Fidelity Freedom 2040 Fund® |
| • | Fidelity Freedom 2045 Fund® |
| • | Fidelity Freedom 2050 Fund® |
| • | Fidelity Freedom Income Fund® |
| • | Fidelity Magellan® Fund – Class K |
| • | Fidelity Puritan® Fund – Class K |
| • | Fidelity Retirement Money Market Portfolio |
| • | Fidelity U.S. Bond Index Fund |
| • | First American Mid Cap Growth Fund |
| • | HEI Common Stock Fund (Available only to the Hawaiian Electric Industries Retirement Savings Plan) |
| • | HEI Common Stock Fund #2 (Available only to the American Savings Bank 401(k) Plan) |
| • | Xxxxxx Xxxxxxx Institutional Fund, Inc. International Equity Portfolio – Class P Shares |
| • | Xxxxxx Xxxxxxx Institutional Fund Trust Value Portfolio – Class P Shares |
| • | Xxxxxxxxx Xxxxxx Partners Fund – Trust Class |
| • | Virtus Mid-Cap Value Fund – Class A |
| • | Spartan® Extended Market Index Fund – Investor Class |
| • | Spartan® U.S. Equity Index Fund – Investor Class |
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
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| • | X. Xxxx Price Growth Stock Fund |
| • | X. Xxxx Price Small-Cap Stock Fund |
| • | Vanguard Total International Stock Index Fund – Investor Shares |
| * | Maintenance of the following money classifications: |
| • | Salary Reduction |
| • | Participant Voluntary |
| • | Rollover |
| • | HEI Diversified Plan |
| • | Employer ASB |
| • | Employer Supplemental |
| • | XXX |
| • | Voluntary HEISOP |
| • | Employer HEISOP |
| • | Employee Pre-Tax Catch Up |
| • | After-Tax Rollover |
| • | Employer BIA |
| • | TRP PER |
| • | AmeriMatch |
| • | AmeriShare |
| * | Processing of investment option trades |
| * | Establishment and maintenance of participant loans |
| * | Enrollment of new participants via telephone and/or such other electronic means as may be agreed upon from time to time by the Sponsor and the Trustee. Confirmation of enrollment will be provided online or, if requested, by mail (generally within five (5) calendar days of the request). |
| * | Maintenance of participants’ requests to change their pre-tax and catch-up deferral percentages via telephone or such electronic means as may be agreed upon from time to time by the Sponsor and the Trustee |
| * | Provide participant deferral election data updates via electronic data transfer (“EDT”) in a timely manner for the Sponsor to apply to its payrolls |
Processing
| * | Processing of the following transactions in accordance with the procedures set forth in the Plan Administration Manual: |
| • | Process in-service withdrawals, hardship withdrawals, and full distributions, to include rollovers, as applicable, as requested by participants |
| • | Weekly processing of contribution data and contributions |
| • | Processing of loan repayments |
| • | Daily processing of transfers and changes of future allocations via the telephone exchange system or by such other means as the Sponsor and Trustee may agree to from time to time |
| • | Daily and weekly processing of participant data updates via the Plan Sponsor Webstation or by such other means as the Sponsor and Trustee may agree to from time to time |
| • | Processing of changes to participants’ deferral percentages |
| • | Processing of excess contributions and deferrals as directed by the Sponsor |
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
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| • | For general loans: Consult with participants on various loan scenarios and generate all documentation |
| • | For home loans: Processing of loan requests as directed by participants and approved by the Sponsor |
| • | Processing of forfeitures as directed by the Sponsor |
| • | Processing of loan payoff payments at participants’ request via telephone exchange system or by such other means as the Sponsor and the Trustee may agree to from time to time |
Other
| * | Reports |
| * | Monthly trial balance |
| * | Monthly loan reports |
| * | Quarterly or annual administrative reports |
| * | Quarterly participant statements via paper or electronic copy |
Financial Reporting
| * | 1099Rs |
| * | Assist in the preparation of Form 5500 |
Account Segregation
| * | Account segregation for Qualified Domestic Relations Orders (“QDRO”) as directed by Sponsor |
| * | Account segregation for named beneficiary(ies) due to a participant’s death as directed by Sponsor |
Internet Services
| * | Plan Sponsor Webstation |
| * | Portfolio Review, an internet-based educational service for participants that generates target asset allocations and model portfolios customized to investment options in the Plan based upon methodology provided by Strategic Advisers, Inc., an affiliate of the Trustee. |
| * | NetBenefitsSM |
| * | Rebalance service |
| • | Portfolio rebalance |
| • | Automatic rebalance |
| • | Rebalance notification |
| * | Annual increase program |
| * | Online beneficiary service |
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
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Processing Services
| * | Minimum Required Distribution (“MRD”) service |
| * | De minimis Distributions service |
| * | Loan Interest Rate Update Service: The Trustee will provide monthly monitoring of the Federal Reserve Prime Rate, Loan interest rate update (for new loans) upon change of the Prime Rate, and Simple rate calculation based on the Prime Rate. |
Miscellaneous Services
| * | Periodic meetings with Sponsor |
| * | Educational services as needed and mutually agreed upon by the Trustee and the Sponsor |
| * | Provide employee communications describing available investment options, including multimedia informational materials and group presentations |
| * | Change of Address by Telephone: The Trustee shall allow terminated and retired participants, Alternate Payees of participants of any status, and Beneficiaries of deceased employees, terminated and retired participants to make address changes via Fidelity’s toll-free telephone service |
| * | Rollover Contribution Processing: Process the qualification and acceptance of rollover contributions to the Trust. The procedures for qualifying a rollover are directed by the Sponsor and the Trustee shall accept or deny each rollover based upon the Plan’s written criteria and any written guidelines provided by the Sponsor and documented in the Plan Administration Manual. Requests that do not meet the specified criteria will be returned to the participant with an explanation as to why the request cannot be processed. If the Trustee determines that a request is not a valid rollover, the requested rollover contribution will be rejected back to the participant. |
| HAWAIIAN ELECTRIC INDUSTRIES, INC. | FIDELITY MANAGEMENT TRUST | |||||||||||
| BY: HAWAIIAN ELECTRIC INDUSTRIES, | COMPANY | |||||||||||
| INC. PENSION INVESTMENT COMMITTEE | ||||||||||||
| By: | /s/ Xxxxxxxxx X. Xxx |
1/4/2010 | By: | /s/ Xxxxxxxxx Nick |
2/9/10 | |||||||
| Xxxxxxxxx X. Xxx | Date | FMTC Authorized Signatory | Date | |||||||||
| Member | Xxxxxxxxx Nick | 2/9/10 | ||||||||||
| By: | /s/ Xxxxxxx X. Schools |
12/30/2009 | ||||||||||
| Xxxxxxx X. Schools | Date | |||||||||||
| Member | ||||||||||||
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
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Schedule “C”
INVESTMENT OPTIONS
In accordance with Section 4(b), the PIC hereby directs the Trustee that participants’ individual accounts may be invested in the following investment options:
| • | AIM Dynamics Fund (frozen to new investments effective January 1, 2006) |
| • | ASB Money Market Account |
| • | Fidelity Diversified International Fund – Class K |
| • | Fidelity Freedom 2000 Fund® |
| • | Fidelity Freedom 2005 Fund® |
| • | Fidelity Freedom 2010 Fund® |
| • | Fidelity Freedom 2015 Fund® |
| • | Fidelity Freedom 2020 Fund® |
| • | Fidelity Freedom 2025 Fund® |
| • | Fidelity Freedom 2030 Fund® |
| • | Fidelity Freedom 2035 Fund® |
| • | Fidelity Freedom 2040 Fund® |
| • | Fidelity Freedom 2045 Fund® |
| • | Fidelity Freedom 2050 Fund® |
| • | Fidelity Freedom Income Fund® |
| • | Fidelity Magellan® Fund – Class K |
| • | Fidelity Puritan® Fund – Class K |
| • | Fidelity Retirement Money Market Portfolio |
| • | Fidelity U.S. Bond Index Fund |
| • | First American Mid Cap Growth Fund |
| • | HEI Common Stock Fund (Available only to the Hawaiian Electric Industries Retirement Savings Plan) |
| • | HEI Common Stock Fund #2 (Available only to the American Savings Bank 401(k) Plan) |
| • | Xxxxxx Xxxxxxx Institutional Fund, Inc. International Equity Portfolio – Class P Shares |
| • | Xxxxxx Xxxxxxx Institutional Fund Trust Value Portfolio – Class P Shares |
| • | Xxxxxxxxx Xxxxxx Partners Fund – Trust Class |
| • | Virtus Mid-Cap Value Fund – Class A |
| • | Spartan® Extended Market Index Fund – Investor Class |
| • | Spartan® U.S. Equity Index Fund – Investor Class |
| • | X. Xxxx Price Growth Stock Fund |
| • | X. Xxxx Price Small-Cap Stock Fund |
| • | Vanguard Total International Stock Index Fund – Investor Shares |
The PIC hereby acknowledges that it has received from the Trustee via regular mail a paper copy of the prospectus for each Fidelity Class K Mutual Fund selected by the PIC as a Plan investment option. The PIC understands that the Fidelity Class K Mutual Fund prospectus(es) are not available at this time online at xxx.xxxxxxxx.xxx. Participants or beneficiaries who wish to invest in a Fidelity Class K Mutual Fund will be provided with a Fidelity Class K Mutual Fund prospectus, via regular mail, prior to such investment.
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
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The PIC hereby directs that for Plan assets allocated to a participant’s account, the investment option referred to in Section 4(c) shall be the Fidelity Freedom Fund determined according to a methodology selected by the PIC and communicated to the Trustee in writing. In the case of unallocated Plan assets, Plan assets received from the termination or reallocation of an investment option, or Plan assets described in Section 4(d)(vi)(B)(5), the Plan’s default investment shall be the ASB Money Market Account.
The PIC hereby directs the Trustee to update the methodology (i.e., date ranges) as additional Fidelity Freedom Funds® are launched and added in accordance with the preceding paragraph. Such updates will be made to the service as soon as administratively feasible following the launch of future Fidelity Freedom Funds®, unless otherwise directed by the PIC. The PIC hereby directs the Trustee to add any additional Fidelity Freedom Funds® as permissible investment options as they are launched, such funds being available to Plan participants as of the open of trading on the New York Stock Exchange on their respective inception dates or as soon thereafter as administratively possible, unless otherwise directed by the PIC.
| HAWAIIAN ELECTRIC INDUSTRIES, INC. | FIDELITY MANAGEMENT TRUST | |||||||||||
| BY: HAWAIIAN ELECTRIC INDUSTRIES, | COMPANY | |||||||||||
| INC. PENSION INVESTMENT COMMITTEE | ||||||||||||
| By: | /s/ Xxxxxxxxx X. Xxx |
1/4/2010 | By: | /s/ Xxxxxxxxx Xxxx |
2/9/10 | |||||||
| Xxxxxxxxx X. Xxx | Date | FMTC Authorized Signatory | Date | |||||||||
| Member | Xxxxxxxxx Xxxx | 2/9/10 | ||||||||||
| By: | /s/ Xxxxxxx X. Schools |
12/30/2009 | ||||||||||
| Xxxxxxx X. Schools | Date | |||||||||||
| Member | ||||||||||||
| Hawaiian Electric Industries, Inc. (Plans 56566 and 75615) 15th Amendment - MCM/Trust Confidential Information |
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