Exhibit 4.8


 


DEFERRED SHARES AGREEMENT


PURSUANT TO


THE 2010 EQUITY AND INCENTIVE PLAN


OF


HAWAIIAN ELECTRIC INDUSTRIES, INC.


 


This
Deferred Shares Agreement (“Agreement”) is made and entered into as of [Date] (the “Date of Grant”), by and between Hawaiian Electric
Industries, Inc., a Hawaii corporation (the “Company”), and [Name] (the “Employee”). Capitalized terms not defined
herein shall have the meanings assigned to them in the 2010 Equity and
Incentive Plan of Hawaiian Electric Industries, Inc., as amended (the “Plan”).


 


WHEREAS,
the Compensation Committee of the Company’s Board of Directors or a
subcommittee thereof (hereinafter referred to as the “Committee”), appointed to
administer the Plan, has determined that it would be to the advantage and best
interest of the Company and its shareholders to grant to the Employee deferred
shares pursuant to the Plan as an inducement to the Employee to remain in the
service of the Company or its Subsidiaries and as a long-term incentive for
sustained high levels of performance for the Company and its Subsidiaries; and


 


WHEREAS,
the Committee has instructed the Company to issue said deferred shares as
authorized under the Plan, pursuant to the terms and conditions set forth
herein;


 


NOW,
THEREFORE, in consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto do hereby agree as follows:


 


1.             Number
of Units.  The Company hereby grants
to the Employee [number of shares] deferred shares
(the “Deferred Shares”), subject to all of the terms and conditions of this
Agreement and the Plan.


 


2.             Lapse
of Restrictions; Settlement.  Subject
to Section 4 below, the restrictions with respect to the Deferred Shares
shall lapse in accordance with the schedule attached hereto as Exhibit A.  Upon the lapse of restrictions relating to a
Deferred Share, the Company shall, no later than sixty (60) days following the
date on which such restrictions lapse, issue to the Employee (or the Employee’s
beneficiary designated on the form attached hereto as Exhibit B, as
the case may be), net of any withholding for taxes in accordance with Section 8
below, one share of Common Stock (in either certificated or book entry form) in
settlement of each Deferred Share with respect to which such restrictions have
lapsed.


 


3.             Adjustments
and Modifications.  In the event of a
Change in Capitalization, an appropriate and proportionate equitable adjustment
shall be made in accordance with Section 6 of the Plan in the number of Deferred
Shares subject to this Agreement. The Company will make cash payments in
settlement of any fractional shares at the time the shares of Common Stock are
issued.  This Agreement may also be
modified, in the discretion of the Committee, both with regard to the Vesting
Schedule attached as Exhibit A hereto and termination, by leaves of
absence, changes from full to part time employment, partial disability or other
changes in Employee’s status.


 

















 


4.             Termination of Service.


 


(a)           If the Employee’s employment or
service with the Company or any Subsidiary is terminated for any reason (including,
but not limited to, voluntary termination by Employee and termination of
Employee without Cause, including, but not limited to, termination due to elimination
of Employee’s position) other than death, Disability or Retirement, the Employee
shall forfeit any or all of the Deferred Shares for which the restrictions have
not yet lapsed (the “Unvested Shares”).


 


(b)           If
the Employee’s employment or service with the Company or any Subsidiary is
terminated by reason of death, Disability or Retirement, then (i) restrictions
based on Performance Goals, if any, 
shall lapse based on actual performance during the full performance
period and (ii) restrictions based on lapse of time shall be deemed to
have lapsed pro-rata based on a ratio in which the numerator is the number of
completed months from the Date of Grant to the date of termination and the
denominator is the total number of months from the Date of Grant to the date
the restrictions lapse in accordance with the schedule set forth in Exhibit A
hereto, and the Employee shall forfeit all remaining Unvested Shares.  As used in this Agreement, a “month” is a
calendar month, and a “completed month” requires employment or service from the
first day through the last day of the month. 
However, in that calendar month in which the Deferred Shares are
granted, a completed month only requires employment or service from the Date of
Grant through the last day of that month.


 


(c)           Except
as provided in Sections 4(a) and 4(b) hereof, the restrictions on
Unvested Shares shall otherwise terminate in accordance with the schedule for
the lapse of the restrictions set forth in Exhibit A hereto.


 


5.             Notices.  All notices and other communications under
this Agreement shall be in writing and shall be given by hand delivery, facsimile
or first class mail and shall be deemed to have been duly given upon hand
delivery, or three days after mailing or 24 hours after transmission by facsimile.  Any notice to be given under the terms of
this Agreement to the Company shall be addressed to the Company in care of its
Secretary and any notice to be given to the Employee shall be addressed to him
at the address given beneath his signature hereto.  By a notice given pursuant to this Section 5,
either party may hereafter designate a different address for notices to be
given to such party.  Any notice which is
required to be given to the Employee shall, if the Employee is then deceased,
be given to the Employee’s personal representative if such representative has
previously informed the Company of his status and address by written notice
under this Section 5.


 


6.             Rights
as a Stockholder.  Subject to the
restrictions set forth in the Plan and this Agreement, the Employee shall not
have any of the rights or privileges of a stockholder of the Company with
respect to the Deferred Shares granted pursuant to this Agreement unless and
until shares of Common Stock have been issued and delivered to the Employee following
the lapse of restrictions on such Deferred Shares.  Notwithstanding the foregoing, the Employee
shall have the right to receive dividends with respect to the Deferred Shares,
which dividends shall accumulate and be paid upon the delivery of the underlying
shares of Common Stock in accordance with Section 2 hereof.  The dividends shall be calculated as follows:  on each date that a cash dividend is paid by
the Company while the Deferred Shares are outstanding, the 


 


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Employee shall be credited with an amount in cash
equal to the aggregate dollar amount of the cash dividends that would have been
paid on the Deferred Shares had the Deferred Shares been issued as shares of
Common Stock on the date of the dividend. The amount of the cash dividends
credited to the Employee pursuant to this Section 6 shall be subject to
the same terms and conditions as are applicable to the Deferred Shares awarded
hereunder (including without limitation as to time of vesting and payment) and
may be reduced to satisfy any or all of a Employee’s tax liabilities owed in
connection with the Deferred Shares granted pursuant to this Agreement.


 


7.             Protections
Against Violations of Agreement.  No
purported sale, assignment, mortgage, hypothecation, alienation, transfer,
pledge, encumbrance, gift, transfer in trust or other disposition of, or
creation of a security interest in or lien on, any of the Deferred Shares (or
the underlying shares of Common Stock) by any holder thereof in violation of
the provisions of this Agreement or the Plan will be valid, and the Company
will not transfer any of such Deferred Shares on its books (or issue shares of
Common Stock in settlement thereof), nor will any dividends be credited with
respect thereto, unless and until there has been full compliance with such
provisions to the satisfaction of the Company. The foregoing restrictions are
in addition to and not in lieu of any other remedies, legal or equitable,
available to enforce said provisions.


 


8.             Taxes.  Upon the lapse of restrictions with respect
to the Deferred Shares (and/or any later settlement thereof), the Company shall
withhold from the shares of Common Stock issued and cash dividends otherwise
payable to the Employee an amount of taxes that the Company determines is the
statutory minimum it is required to withhold under applicable tax laws with
respect to the Deferred Shares and any cash dividends payable.  The amount withheld shall first be deducted
from the cash dividends payable and, to the extent insufficient, then from the
Common Stock that would otherwise be issued to the Employee.  The number of shares required to be withheld
shall be based on the Fair Market Value of the Common Stock on the settlement
date.  Any fractional share of Common
Stock resulting from such withholding shall be paid in cash.


 


Upon
the Employee’s attainment of Retirement eligibility before the lapse of
restrictions, any employment taxes thereafter (but prior to the lapse of
restrictions) payable by the Employee shall be satisfied by withholding from
the Employee’s regular salary payable immediately following the date the
employment tax obligation arises (and, to the extent insufficient, by cash
payment by the Employee).


 


9.             Failure
to Enforce Not a Waiver.  The failure
of the Company to enforce at any time any provision of this Agreement shall in
no way be construed to be a waiver of such provision or of any other provision
hereof.


 


10.           Governing
Law.  This Agreement shall be
governed by and construed according to the laws of the State of Hawaii without
regard to its principles of conflict of laws.


 


11.           Incorporation
of Plan.  The Plan is hereby
incorporated by reference and made a part hereof, and the Deferred Shares and
this Agreement shall be subject to all terms and conditions of the Plan.


 


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12.           Entire
Agreement; Relationship to the Plan. 
This Agreement and the Plan set forth the sole entire agreement and
understanding between the parties as to the subject matter hereof, and merge
with and supersede all prior and contemporaneous discussions, agreements and
understandings of every and any nature between them with respect to the subject
matter hereof.  Except to the extent
provided in Section 3 or 15 hereof, and except to the extent that
provisions hereof are by their terms subject to any subsequent amendment of the
Plan, this Agreement may not be changed or modified, except by agreement in
writing, signed by the Company and the Employee.  In the event of any conflict or inconsistency
between this Agreement and the Plan as written on the Date of Grant, the Plan
shall govern.


 


13.           Survival
of Terms.  This Agreement shall apply
to and bind the Employee, the Employee’s heirs, legatees, executors and
administrators, the Company and the Company’s legal successors.


 


14.           Agreement
Not a Contract for Services.  Neither
the Plan, the granting of the Deferred Shares, this Agreement nor any other
action taken pursuant to the Plan shall constitute or be evidence of any
agreement or understanding, express or implied, that the Employee has a right
to continue to provide services as an officer, director, employee, consultant
or advisor of the Company or any Subsidiary or Affiliate of the Company for any
period of time or at any specific rate of compensation, or shall interfere with
or restrict in any way the rights of the Company and its Subsidiaries, which
are hereby expressly reserved, to discharge the Employee at any time for any
reason whatsoever, with or without Cause.


 


15.           Authority
of the Committee.  The Committee shall
have full authority to interpret and construe the terms of the Plan and this
Agreement. The determination of the Committee as to any such matter of
interpretation or construction, including, without limitation, as to any
adjustment or related matter under Section 3 hereof or any matter under Section 4
hereof, shall be final, binding and conclusive.


 


16.           Representations.  The Employee has reviewed with his or her own
tax advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. The Employee is relying solely on
such advisors and not on any statements or representations of the Company or
any of its agents. The Employee understands that he or she (and not the
Company) shall be responsible for any tax liability that may arise as a result
of the transactions contemplated by this Agreement.


 


17.           Acceptance.  The Employee hereby acknowledges receipt of a
copy of the Plan and this Agreement. The Employee has read and understands the
terms and provisions thereof, and accepts the Deferred Shares subject to all of
the terms and conditions of the Plan and this Agreement. The Employee hereby
agrees to accept as binding, conclusive and final all decisions or interpretations
of the Committee upon any questions arising under the Plan and this Agreement.


 


18.           Committee
Action.  Execution of this Agreement by
the Chair or other member of the Committee signifies that this Agreement, the
award of Deferred Shares made hereby and the conditions upon which the
restrictions on the Deferred Shares shall lapse or be satisfied have been
approved by the Committee either at a meeting of the Committee or by the
unanimous written consent of its members.


 


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19.           Section 409A.  To the extent applicable, it is intended that
this Agreement comply with the provisions of Section 409A (“Section 409A”)
of the Code.  This Agreement will be
administered and interpreted in a manner consistent with this intent, and any
provision that would cause this Agreement to fail to satisfy Section 409A
will have no force and effect until amended to comply therewith (which
amendment may be retroactive to the extent permitted by Section 409A).  Notwithstanding anything contained herein to
the contrary, the Employee shall not be considered to have terminated
employment with the Company for purposes of this Agreement and no payments
shall be due to the Employee under this Agreement which are payable upon the Employee’s
termination of employment unless the Employee would be considered to have
incurred a “separation from service” from the Company within the meaning of Section 409A.  To the extent required in order to avoid
accelerated taxation and/or tax penalties under Section 409A, amounts that
would otherwise be payable and benefits that would otherwise be provided
pursuant to the Agreement during the six-month period immediately following the
Employee’s termination of employment shall instead be paid on the first
business day after the date that is six months following the Employee’s
termination of employment (or upon the Employee’s death, if earlier).


 


20.           Severability.  If one or more of the provisions of this
Agreement shall be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and the invalid, illegal or
unenforceable provisions shall be deemed null and void; provided, however, to
the extent permissible by law, any provisions which could be deemed null and
void shall first be construed, interpreted or revised retroactively to permit
this Agreement to be construed so as to foster the intent of this Agreement and
the Plan and to avoid any such finding of invalidity, illegality or
unenforceability.


 


21.           Headings.  Headings in this Agreement are used solely
for the convenience of the parties and shall not be deemed to be a limitation
upon or descriptive of the contents of any Section hereof.


 


22.           No
Limit on Other Arrangements.


 


(a)           Nothing
contained in this Agreement shall be construed to prevent the Company or any Subsidiary
thereof from adopting or continuing in effect other compensation arrangements,
which may, but need not, provide for the grant of any type of equity-based
award (subject to stockholder approval if such approval is required).


 


(b)           Nothing
contained in this Agreement shall be construed to prevent the Company or any Subsidiary
thereof from taking any corporate action which is deemed by it to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Deferred Shares granted under this Agreement.  No employee, beneficiary or other person
shall have any claim against the Company or any subsidiary thereof as a result
of any such action.


 


23.           Signature
in Counterparts.  This Agreement may
be signed in two or more counterparts, each of which shall be deemed an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.


 


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IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the Date of Grant.


 


 


	
   

  	
  HAWAIIAN ELECTRIC INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Chair or Member of the Compensation Committee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Senior Vice President, General Counsel, Secretary & Chief
  Administrative Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Employee’s
  Name: [Name]

  
	
   

  	
   

  
	
   

  	
  Employee’s
  Social Security Number: [SSN]

  
	
   

  	
   

  
	
   

  	
  Employee’s
  Address:

  
	
   

  	
   

  
	
   

  	
   

  



 


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Exhibit A


 


VESTING SCHEDULE


 


Subject
to Sections 10 and 12 of the Plan and Section 4 of the Agreement to which
this Exhibit A is attached, the restrictions on the Deferred Shares
granted pursuant to this Agreement shall lapse if:


 


Employee
is continually employed by the Company or its Subsidiaries from the Date of
Grant through [DATE][.][;and]


 


[The
following Performance Goals are met: 
PERFORMANCE GOALS.]


 

















 


Exhibit B


 


BENEFICIARY DESIGNATION


 


This
beneficiary designation is made in accordance with the Agreement to which this Exhibit B
is attached, the Employee hereby makes an:


 


o  INITIAL DESIGNATION OF
BENEFICIARY


OR


o  REVISED DESIGNATION OF
BENEFICIARY


 


I
hereby direct that, in the event of my death prior to delivery of the stock
certificates contemplated to be delivered by the Agreement to which this
Beneficiary Designation is attached, such stock certificates be issued in the
name of and be delivered to, and any cash amounts payable in accordance with
the Agreement be paid to:


 


	
  Name

  	
   

  	
    Relationship

  	
   

  
	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Social
  Security No.

  	
   

  	
    Date
  of Birth

  	
   

  
						



 


This
beneficiary designation revokes any and all other beneficiary designations
under the Agreement made prior to the date of this designation.


 


 


By
signing below, I acknowledge that I have read and understood the foregoing.


 


 


	
  Signed
  by

  	
   

  	
    Date

  	
   

  
	
   

  	
  Employee

  	
   

  	
   

  



 


Receipt
acknowledged


Hawaiian
Electric Industries, Inc.


 


	
  By

  	
   

  	
    Date