HEI Exhibit 10.9 

HAWAIIAN ELECTRIC INDUSTRIES, INC. 

EXCESS BENEFIT PLAN 

PROLOGUE 

Effective as of January 1, 1994, the Hawaiian Electric Industries, Inc. Excess Benefit Plan (the “Plan”) is hereby amended and restated in its entirety. The Plan is intended to qualify as an“excess benefit plan” under Section 3(36) of the Employee Retirement Income Security Act of 1974 and is not intended to meet or be subject to the qualification requirements of the Internal Revenue Code of 1986, as amended. 

ARTICLE I 

DEFINITIONS 

The following terms as used herein shall have the indicated meaning, unless a different meaning is clearly required by the context. Whenever appropriate,words used in the singular may include the plural and vice versa, and the masculine gender shall always include the feminine gender. 

1.1Associated Company means (i) a corporation (other than a Participating Employer) that is a member of the same controlled group of corporations (within the meaning of Section 1563(a) of the Code, determined without regard toSection 1563(a)(4) and (e)(3)(C) of the Code) as a Participating Employer, (ii) an entity (other than a Participating Employer) under common control (within the meaning of Section 414(c) of the Code) with a Participating Employer, or(iii) a member (other than a Participating Employer) of an affiliated service group (within the meaning of Section 414(m) of the Code) with a Participating Employer. 

1.2 Asset Manager means the person designated to manage the assets of the Plan in accordance with Section 5.2. 

1.3 Code means the Internal Revenue Code of 1986, as amended. 

1.4 Committee means the Hawaiian Electric Industries, Inc. Pension Investment Committee appointed pursuant to resolution of the Board of Directors of the Company. 

1.5 Company means Hawaiian Electric Industries, Inc. 

1.6 ERISA means the Employee Retirement Income Security Act of 1974, as amended. 

1.7 Excess PayPlan means the Hawaiian Electric Industries, Inc. Excess Pay Supplemental Executive Retirement Plan. 

 

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1.8 Participant means any person meeting the eligibility requirements of Article II hereof.

1.9 Participating Employer means the Company and/or any other corporation that is a member of the same controlled group ofcorporations (as defined in Section 415(b) of the Code) as the Company and to which participation in the Retirement Plan is extended, excluding the Hawaiian Insurance & Guaranty Company, Ltd. 

1.10 Plan means this Hawaiian Electric Industries, Inc. Excess Benefit Plan. 

1.11 Retirement Plan means, as to any Participant, means as to any Participant, whichever one of the following plans in which that individual is aparticipant: the Retirement Plan for Employees of Hawaiian Electric Industries, Inc. and Participating Subsidiaries, the American Savings Bank Retirement Plan, or the Hawaiian Tug & Barge Corp./Young Brothers, Limited Salaried Pension Plan.

1.12 Plan Administrator means the person designated to administer the Plan in accordance with Section 5.3. 

1.13 SERP means the Hawaiian Electric Industries, Inc. Supplemental Executive Retirement Plan and the American Savings Bank Supplemental ExecutiveRetirement Plan. 

ARTICLE II 

ELIGIBILITY 

Each participant in the Retirement Plan shall be a Participant in this Plan, excluding any participant:(i) whose benefits are subject to collective bargaining; (ii) not employed by a Participating Employer; or (iii) who is also a participant in the SERP. 

ARTICLE III 

CONTRIBUTIONS 

No contributions to this Plan from Participants shall be permitted or required. 

ARTICLE IV 

BENEFITS 

This Plan shall provide to eachParticipant a supplemental benefit to ensure that the full benefits described in the applicable Retirement Plan as of December 31, 1982, including the adjustment in the benefit under such Retirement Plan, any other increase in benefitsoccurring thereafter, and that portion of the Retirement Plan benefit in excess of the limitations 

 

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imposed by Section 415 of the Code, are paid. Such excess benefits shall be determined in accordance with the applicable sections of the applicableRetirement Plan as in existence as of December 31, 1982, including the adjustment in the benefit under such Retirement Plan and any other increase in benefits occurring thereafter, as though the limitations of Section 415 of the Code didnot apply, and reduced by the benefits which are permitted to be paid under the applicable Retirement Plan. 

Such excess benefits shall bepaid at the same time and in the same form as the Participant’s benefits under the applicable Retirement Plan. 

In the event anyParticipant is also a participant in the Excess Pay Plan, no benefits shall be payable from this Plan; rather, any benefits payable to such Participant shall be subject to Section 4.2 of the Excess Pay Plan. 

ARTICLE V 

ADMINISTRATION 

Section 5.1 The Committee To be Named Fiduciary 

(a) The Committee shall be the “Named Fiduciary” (within the meaning of ERISA) of the Plan with all responsibility for the operation and administration of the Plan. The Committee shall have the power to delegate specific fiduciaryresponsibilities of the Participating Employers to any person or group of persons, and such person or group may serve in more than one such delegated capacity. Such delegations must be accepted in writing and may be made to employees of theParticipating Employers or Associated Companies or to other individuals, all of whom shall serve at the pleasure of the Committee, and if full-time employees of the Participating Employers or Associated Employers, without compensation. Any suchperson may resign by delivering a written resignation to the Committee. 

(b) The Committee shall supervise and review the activities of theAsset Manager and Plan Administrator. 

Section 5.2 Asset Manager 

(a) The Asset Manager shall be the person named from time to time by the Board of Directors of the Company and shall be the fiduciary in charge of the financial affairs of the Plan. The Asset Manager shall manage theassets, if any, in accordance with the terms of the Plan and shall have all powers necessary to carry out her duties. If at any time there shall be no Asset Manager or if the Asset Manager shall be unable to perform her duties, the President of theCompany shall designate a person to serve as Asset Manager until the Board of Directors of the Company appoints a successor. 

 

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(b) The Asset Manager shall have the following specific duties and responsibilities in addition to anyother duties specified in the Plan or by applicable law. 

(1) The Asset Manager shall have responsibility for legal, actuarial, andaccounting services provided to the Plan; may authorize an agent, to act on her behalf; and may contract for legal, actuarial, medical, accounting, clerical, and other services to carry out her duties and discharge her responsibilities. 

(2) The Asset Manager shall adopt from time to time actuarial tables and actuarial methods for use in all actuarial calculations, if any, required inconnection with the determination of the funding status of the Plan. As an aid to the Asset Manager in connection therewith, the actuary consultant designated by the Asset Manager shall make annual actuarial valuations of the contingent assets andliabilities of the Plan, and shall certify to the Asset Manager the tables, actuarial methods, rates of contribution, and other pertinent data and information that such actuary would recommend for use by the Asset Manager. 

(3) The Asset Manager shall be responsible for the maintenance of all financial records of the Plan. 

(4) The Asset Manager shall be responsible for the preparation of all financial statements and reports related to the Plan. 

(5) The Asset Manager shall be the Plan’s agent for service of any notice of process authorized by law. 

Section 5.3 Plan Administrator 

(a) The PlanAdministrator shall be the person named from time to time by the Board of Directors of the Company and shall be the fiduciary in charge of administration of the Plan. The Plan Administrator shall administer the Plan in accordance with its terms, andshall have all powers necessary to carry out his duties. If at any time there shall be no Plan Administrator or if the Plan Administrator shall be unable to perform his duties, the President of the Company shall designate a person to serve as PlanAdministrator until the Board of Directors of the Company appoints a successor. 

(b) The Plan Administrator shall have the followingspecific duties and responsibilities in addition to any other duties specified in the Plan or by applicable law. 

 

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(1) Subject to the limitations contained in this Plan, the Plan Administrator shall adopt rules for theadministration of the Plan as he considers desirable, provided such rules do not conflict with the Plan. 

(2) The Plan Administrator mayauthorize and agent, to act on his behalf, and may contract for legal, actuarial , medical, accounting, clerical, and other services to carry out the Plan and to discharge his responsibilities. 

(3) Except as otherwise expressly provided herein, the Plan Administrator may interpret and construe the Plan, or reconcile inconsistencies to the extentnecessary to effectuate the Plan and such action shall be binding upon the persons. 

(4) The Plan Administrator shall adopt from time totime actuarial tables and actuarial methods for use in all actuarial calculations, if any, required connection with the determination of benefit payments under the Plan. As an aid to the Plan Administrator in connection therewith, the actuaryconsultant designated by the Asset Manager shall, if needed, certify the Plan Administrator the tables, actuarial methods, rates of contribution, and other pertinent data and information that such actuary would recommend for use by the PlanAdministrator. 

(5) The Plan Administrator shall be responsible for the maintenance of all employee, Participant, and beneficiary recordsfor the Plan. The Plan Administrator shall also be responsible for the maintenance of records, appropriate notifications, and filings in connection with the interest of all Participants of their spouses or contingent annuitants. 

(6) The Plan Administrator shall be responsible for the filing and disclosure, if required, of annual report on Form 5500, summary plan description,summary of material modifications, summary annual report, and other disclosure information regarding the provisions of the Plan or rights thereunder that must be provided to Participants and their beneficiaries the Plan. 

Section 5.4 Expenses 

The ParticipatingEmployees shall pay all expenses of administering the Plan. Such expenses shall include any expenses incurred by a Participating Employer, the Committee, the Asset Manager, or the Plan Administrator, including but not limited to, the payment ofprofessional fees of consultants. 

ARTICLE VI 

NO TRUST FUND 

 

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No separate trust fund shall be established in connection with this Plan. This Plan shall be unfunded andthe benefits thereof paid as necessary from the general assets of the Participating employers. 

ARTICLE VII 

CLAIMS PROCEDURE 

The procedure for claiming benefits underthe Plan shall be as follows: 

(a) The Plan Administrator shall determine the benefits due hereunder to a Participant or aParticipant’s spouse or contingent annuitant, but a person may file a claim for benefits by written notice to the Plan Administrator. 

(b) If a claim is denied in whole or in part, the Plan Administrator shall give the claimant written notice of such denial within thirty (30) days of the filing of the claim. Such notice shall (i) specify the reason or reasons forthe denial, (ii) refer to the pertinent Plan provisions on which the denial is based, (iii) describe any additional material or information necessary to perfect the claim and explain the need therefor, and (iv) explain the reviewprocedure described in subparagraph (c) hereof. 

(c) The claimant may then appeal the denial of the claim by filing written notice ofsuch appeal with the Committee within ninety (90) days after receipt of the notice of denial. The claimant or any authorized representative may, before of after filing notice of appeal, review any documents pertinent to the claim and submitissues and comments in writing. The Committee shall render a decision on such appeal within thirty (30) days after receipt of the appeal (unless a longer period is requested by the claimant), and shall forthwith give written notice of suchdecision. 

ARTICLE VIII 

AMENDMENT AND TERMINATION 

Section 8.1 Amendment

(a) Subject to the provisions hereinafter set forth, the Company reserves the right to amend the Plan at any time, and (to the extent permitted by ERISA and the Code) give any such amendment retroactive effect.

(b) The Committee may approve any technical amendments to the Plan (i) necessary to comply with federal law and regulationsthereunder or (ii) that do not have substantial 

 

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impact on the cost or terms of the Plan. All other amendments must be approved by the Board of Directors of the Company.

Section 8.2 Termination 

The Planis adopted with the expectation that it shall be continued indefinitely, but the continuation of the Plan is not assumed to be a contractual obligation by any Participating Employer. Each Participating Employer reserves the right to terminate thePlan with respect to its participation at any time. If the Plan is terminated (in full or in part), then accrued benefit under this Plan of each affected Participant shall become 100% vested. 

ARTICLE IX 

MISCELLANEOUS 

Section 9.1 Right to Employment Or Retirement Income 

(a) Nothing contained in the Plan shall bedeemed to give any Participant a right to remain in the employ of the Participating Employers. 

(b) (1) Nothing contained in the Planshall be deemed to give any Participant, retired Participant, spouse, beneficiary or contingent annuitant any right or claim to any benefit except as expressly provided in the Plan. 

      (2) Notwithstanding any other provision in this Plan, in the event the Company fails to fulfill its obligation tomake payments to the Participant, his beneficiary, or any other person entitled to payments under the Plan, the Company shall be liable to such person for any attorney’s fees and other legal costs related to enforcing such person’s claimagainst the Company. 

Section 9.2 Inalienability 

No Participant or any person having or claiming to have any interest of any kind or character in or under this Plan shall have any right to sell, assign, transfer, convey, hypothecate, anticipate, or otherwise disposeof such interest, and such interest shall not be subject to any liabilities or obligations of, or any bankruptcy proceedings, claims of creditors, attachment, garnishment, execution, levy, or other legal process against such person or suchperson’s property. 

Section 9.3 Facility of Payment 

If any Participant, retired Participant, or spouse or contingent annuitant eligible to receive payments under this Plan is, in the opinion of the Plan Administrator, legally, physically, 

 

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or mentally incapable of personally receiving and receipting for any payment under this Plan, the Plan Administrator may direct payments in installments notto exceed the amount of monthly pension to which the Participant was otherwise entitled, to such other person, persons, or institutions who, in the opinion of the Plan Administrator, are then maintaining of having custody of such payee, until claimsare made by a duly appointed guardian or other legal representative of such payee. Such payments shall constitute a full discharge of the liability of the Plan to the extent thereof. 

Section 9.4 Construction Of Plan 

(a) The headings of articles and sections are included hereinsolely for the convenience of reference, and if there is any conflict between such headings and the text of this Plan, the text shall be controlling. 

(b) To the extent not preempted by ERISA, the Plan shall be governed, construed, administered and regulated according to the laws of the State of Hawaii. 

Section 9.5 Forms 

All consents, elections, applications, designations, etc. required orpermitted under the Plan must be made on forms prescribed and furnished by the Plan Administrator, and shall be recognized only if properly completed, executed, and returned to the Plan Administrator. 

TO RECORD the adoption of this amended and restated form to the Plan, the undersigned have causedthis document to be executed this 19th day of April, 1994, effective as of January 1, 1994. 

 
HAWAIIAN ELECTRIC INDUSTRIES, INC.By 
/s/ Peter C. Lewis
 Its V.P. - AdministrationBy 
/s/ Robert F. Clarke
 Its President & CEO
 

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