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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report: March 30, 1994
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Exact Name of Registrant Commission I.R.S. Employer
as Specified in Its Charter File Number Identification No.
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Hawaiian Electric Industries, Inc. 1-8503 99-0208097
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State of Hawaii
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(State or other jurisdiction of incorporation)
900 Richards Street, Honolulu, Hawaii 96813
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(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (808) 543-5662
None
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(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENTS
The following section entitled "Description of Common Stock" is
provided, and this Current Report on Form 8-K is filed by Hawaiian Electric
Industries, Inc. ("HEI"), for the purpose of updating the description of HEI's
class of Common Stock, without par value, contained in a registration statement
filed by HEI under the Securities Exchange Act of 1934. HEI's Common Stock is
registered under Section 12 of such Act.
DESCRIPTION OF COMMON STOCK
GENERAL
Under HEI's Restated Articles of Incorporation (the "Articles"), HEI
is authorized to issue 100,000,000 shares of Common Stock without par value
("Common Stock") and 10,000,000 shares of Preferred Stock without par value
("Preferred Stock").
The outstanding shares of HEI's Common Stock are fully paid and
nonassessable. Additional shares of Common Stock, when issued, will be fully
paid and nonassessable when the consideration for which HEI's board of
directors authorizes their issuance has been received. The holders of Common
Stock have no preemptive rights and there are no conversion, redemption or
sinking fund provisions applicable thereto. HEI's Common Stock is transferable
at the Stock Transfer Office of the Company, Transfer Agent, 900 Richards
Street, Honolulu, Hawaii 96813, and at the office of First Chicago Trust
Company of New York, Co-Transfer Agent and Registrar, 30 West Broadway, New
York, New York 10007.
DIVIDEND RIGHTS
Stock and cash dividends may be paid to the holders of Common Stock as
and when declared by the Board of Directors, provided that, after giving effect
thereto, HEI is able to pay its debts as they become due in the usual course of
its business and HEI's total assets are not less than the sum of its total
liabilities plus the maximum amount that then would be payable in any
liquidation in respect to all outstanding shares having preferential rights in
liquidation. All shares of Common Stock will participate equally with respect
to dividends.
HEI's ability to pay dividends is limited by the restrictions and
limitations set forth in debt instruments.
LIQUIDATION RIGHTS
In the event of any liquidation, dissolution, receivership,
bankruptcy, disincorporation or winding up of the affairs of the Company,
voluntarily or involuntarily, holders of HEI's Common Stock are entitled to any
assets of HEI available for distribution to HEI's stockholders after the
payment in full of any preferential amounts to which holders of any Preferred
Stock may be entitled. All shares of Common Stock will rank equally in the
event of liquidation.
VOTING RIGHTS
Holders of Common Stock are entitled to one vote per share, subject to
such limitation or loss of right as may be provided in resolutions which may be
adopted from time to time creating issues of Preferred Stock or otherwise. At
annual and special meetings of stockholders, a majority of the outstanding
shares of Common Stock constitute a quorum and the affirmative vote of a
majority of such quorum so present is sufficient to approve of any action
except as otherwise required by law and except with respect to the amendment of
certain provisions of HEI's By-laws.
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Under HEI's current By-laws, one-third (as nearly as possible) of the
total number of directors is elected at each annual meeting of stockholders and
no holder of Common Stock is entitled to cumulate votes in an election of
directors so long as HEI shall have a class of securities registered pursuant
to the Exchange Act which are listed on a national securities exchange or
traded over-the-counter on the National Association of Securities Dealers, Inc.
Automated Quotation System. Directors may be removed from office only for
cause.
An amendment to the provisions in the By-laws relating to (1) matters
which may be brought before an annual meeting, (2) matters which may be brought
before a special meeting, (3) cumulative voting, (4) the number and staggered
terms of members of the Board of Directors, (5) removal of directors and (6)
amendment of the By-laws must in each case be approved either (a) by the
affirmative vote of 80% of the shares entitled to vote generally with respect
to election of directors voting together as a single class, or (b) by the
affirmative vote of a majority of the entire Board of Directors plus a
concurring vote of a majority of the "continuing directors" (as that term is
defined in Article XVIII of the By-laws) voting separately and as a subclass of
directors.
The provisions of HEI's By-laws referred to in the foregoing two
paragraphs, and the statutory provisions referred to below, may have the effect
of delaying, deferring or preventing a change in control of HEI.
RESTRICTION ON PURCHASE OF SHARES AND CONSEQUENCES OF SUBSTANTIAL HOLDINGS
UNDER CERTAIN HAWAII AND FEDERAL LAWS
The Hawaii Control Share Acquisition Act places restrictions on the
acquisition of ranges of voting power (starting at 10% and at 10% intervals up
to a majority) for the election of directors of HEI unless the acquiring person
obtains approval of the acquisition by the affirmative vote of the holders of a
majority of the voting power of all shares entitled to vote exclusive of the
shares beneficially owned by the acquiring person and consummates the proposed
control share acquisition within 180 days after shareholder approval. If such
approval is not obtained, the statute provides that the shares acquired may not
be voted for a period of one year from the date of acquisition, the shares will
be nontransferable on HEI's books for one year after acquisition and HEI,
during the one-year period, shall have the right to call the shares for
redemption either at the prices at which the shares were acquired or at book
value per share as of the last day of the fiscal quarter ended prior to the
date of the call for redemption.
Under the Hawaii Public Utilities Commission ("PUC") statute, not
more than 25% of the issued and outstanding voting stock of certain public
utility corporations, including Hawaiian Electric Company, Inc. ("HECO") and
its wholly-owned electric utility subsidiaries, may be held, directly or
indirectly, by any single foreign corporation or any single nonresident alien,
or held by any person, without the prior approval of the PUC. The acquisition
of more than 25% of the issued and outstanding voting stock of HEI in one or
more transactions might be deemed to result in the holding of more than 25% of
the voting stock of its electric utility subsidiaries. In addition, HEI is
subject to an agreement ("the PUC Agreement") entered into with the PUC when
HECO became a wholly-owned subsidiary of HEI. The PUC Agreement provides
that the acquisition of HEI by a third party, whether by purchase, merger,
consolidation or otherwise, requires the prior written approval of the PUC.
Under the Hawaii Environmental Disclosure Law, a person and that
person's affiliates who in the aggregate beneficially own 10% or more but less
than 50% of securities entitled to vote for the election of directors of HEI
may not acquire more than 5% of such securities during any 12-month period
without first filing an environmental disclosure statement with the Hawaii
Office of Environmental Quality Control.
The Savings and Loan Holding Company Act, the Change in Bank Control
Act and the Office of Thrift Supervision ("OTS") regulations place restrictions
on certain types of acquisitions of control of a savings bank and its holding
company. Generally, no company, or any director or officer of a savings and
loan holding company, or person who owns, or controls or holds with power to
vote more than 25% of the voting stock of such holding company, may acquire
control of a savings bank insured by the Federal Deposit Insurance Corporation
or its holding company, without the prior written approval of the OTS. In
addition, no person (other than certain persons affiliated with a savings and
loan holding company) may acquire control of a savings bank or savings and loan
holding company, unless the OTS has been given 60 days' prior written notice of
the acquisition and has not objected to it. As a result of HEI's ownership of
American Savings Bank, F.S.B. ("ASB"), the acquisition of control of HEI,
HEI Diversified, Inc. ("HEIDI") or ASB may be subject to the requirement of
prior written OTS approval or 60 days'
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prior written notice to the OTS, unless such transaction would be exempt from
such requirements under federal law or regulation. "Control" in this context
means the acquisition of, control of, or holding proxies representing, more
than 25% of the voting shares of HEI, HEIDI or ASB, or the power to control in
any manner the election of a majority of the directors thereof. Moreover, under
OTS regulations, one would be determined, subject to rebuttal, to have acquired
control if one acquires more than 10% of the voting shares of HEI, HEIDI or ASB
and is subject to one of certain specified "control factors." Anyone acquiring
more than 10%, or additional stock above 10%, of any class of shares of HEI,
HEIDI or ASB is required to file a certification with the OTS.
Under the Jones Act, it is unlawful to transport merchandise between
points in the U.S. except in vessels owned by U.S. citizens. For corporations
to demonstrate U.S. citizenship, a majority of the officers and directors must
be citizens, 75% of its voting stock must be owned by U.S. citizens and certain
additional requirements must be met. If less than 75% of the Common Stock of
HEI (which is the only class of voting stock presently outstanding) is owned by
U.S. citizens, the vessels of HTB and YB would not be permitted to engage in
transport between points in Hawaii.
Under the Public Utility Holding Company Act of 1935 ("1935 Act")
1935 Act, any company (as defined in the 1935 Act) which owns, controls or
holds with power to vote 10% or more of the outstanding voting securities of
HEI may be a public utility holding company, subject to regulation under the
1935 Act, unless an exemption is available under the 1935 Act or the Securities
and Exchange Commission, upon application, declares such a company not to be a
holding company. In addition, under the 1935 Act, no holder of 5% or more of
the Common Stock or other voting securities of HEI may, without approval of
the Commission, become the owner of 5% or more of the outstanding voting
securities of any other public utility or public utility
holding company.
AUTHORIZED PREFERRED STOCK
Preferred Stock may be issued by the Board of Directors in one or more
series, without action by stockholders and with such preferences, voting
powers, restrictions and qualifications as may be fixed by resolution of the
Board of Directors authorizing the issuance of such shares. Under current
Hawaii law, the terms and provisions of all shares of Preferred Stock must be
identical except with respect to dividend rates, redemption and redemption
prices, amounts payable in liquidation, sinking fund provisions, conversion
privileges, if any, and voting rights, if any.
If and when authorized by the Board of Directors, any such Preferred
Stock may be preferred as to dividends or in liquidation, or both, over the
Common Stock. For example, the terms of the Preferred Stock, if and when
authorized, could prohibit dividends on shares of Common Stock until all
dividends and any mandatory redemptions have been paid with respect to shares
of Preferred Stock. In addition, the Board of Directors may, without
stockholder approval, issue Preferred Stock with voting and conversion rights
which could adversely affect the voting power or economic rights of the holders
of Common Stock. Issuance of Preferred Stock by HEI could thus have the effect
of delaying, deferring or preventing a change of control of HEI.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
The holders of record of Common Stock of HEI and of Preferred Stock of
HEI's electric utility subsidiaries (Hawaiian Electric Company, Inc., Maui
Electric Company, Limited or Hawaii Electric Light Company, Inc.) and any
residents of Hawaii who are of legal age are eligible to participate in the HEI
Dividend Reinvestment and Stock Purchase Plan (the "Plan"). Stockholders
participating in the Plan automatically reinvest their dividends to purchase
Common Stock at market price (as defined in the Plan). Stockholders and
residents of Hawaii are also eligible to purchase shares of Common Stock at
market price (as defined in the Plan) by making cash contributions.
Participants do not pay brokerage commissions or service charges in connection
with such purchases. HEI reserves the right to suspend, modify or terminate the
Plan at any time.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HAWAIIAN ELECTRIC INDUSTRIES, INC.
(Registrant)
/s/ Robert F. Mougeot
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Robert F. Mougeot
Financial Vice President and
Chief Financial Officer
(Principal Financial Officer of HEI)
Date: March 30, 1994
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