HEI Exhibit 10.10
HAWAIIAN ELECTRIC INDUSTRIES,
INC.
EXCESS PAY PLAN
PROLOGUE
This Plan amends and collectively
restates, as of January 1, 2009, the Hawaiian Electric
Industries, Inc. Excess Pay Supplemental Executive Retirement Plan
and the Hawaiian Electric Industries, Inc. Excess Benefit Plan.
This Plan is not intended to meet or be subject to the
qualification requirements of Section 401 of the Internal
Revenue Code of 1986, as amended. To the extent this Plan replaces
benefits otherwise limited by Section 415 of the Code, it is
intended to be an excess benefit plan within the meaning of
Section 3(36) of ERISA and exempt from the provisions of Title
I of ERISA. To the extent this Plan otherwise provides benefits, it
is intended to be an unfunded plan maintained by an employer
primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees and thus
exempt from Parts 2, 3 and 4 of Title I of ERISA.
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.
1.1 Associated Company means
the Company and any corporation that is a member of the same
controlled group of corporations (within the meaning of
Section 1563(a) of the Code, determined without regard to
Section 1563(a)(4) and (e)(3)(C) of the Code) as the Company.
A corporation shall be regarded as an Associated Company only
during the period it is a member of such controlled group of
corporations.
1.2 Code means the Internal
Revenue Code of 1986, as amended.
1.3 Committee means the
Compensation Committee of the Board of Directors of the
Company.
1.4 Company means Hawaiian
Electric Industries, Inc.
1.5 ERISA means the Employee
Retirement Income Security Act of 1974, as amended.
1.6 Participant means any
person meeting the eligibility requirements of Article II
hereof.
1.7 Participating Employer
means the Company and/or any other corporation that is a member of
the same controlled group of corporations (as
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defined in Section 414(b) of the Code) as
the Company and to which participation in the Retirement Plan is
extended.
1.8 Plan means this Hawaiian
Electric Industries, Inc. Excess Pay Plan, as amended from time to
time.
1.9 Retirement Plan means as
to any Participant, whichever one of the following plans in which
that individual is a participant: the Retirement Plan for Employees
of Hawaiian Electric Industries, Inc. and Participating
Subsidiaries as amended from time to time and the American Savings
Bank Retirement Plan as amended from time to time.
1.10 Separation from Service
means a separation from service within the meaning of
Section 409A of the Code.
1.11 SERP means the Hawaiian
Electric, Industries, Inc. Supplemental Executive Retirement Plan
and American Savings Bank Supplemental Executive Retirement,
Disability and Death Benefit, each as amended from time to
time.
ARTICLE II
ELIGIBILITY
(a) 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 entitled to a benefit under the SERP.
Subject to Section 8.2 of this Plan, a Participant shall not
be entitled to a benefit under this Plan unless and until (and to
the extent) he or she is entitled to a benefit under the applicable
Retirement Plan.
(b) The individuals referenced in
Appendix I hereto shall also be considered Participants.
ARTICLE III
CONTRIBUTIONS
No contributions to this Plan from
Participants shall be permitted or required.
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ARTICLE IV
BENEFITS
Section 4.1 Excess
Benefit
(a) This Plan shall provide to each
Participant (exclusive of the individuals referenced in Appendix I
hereto) a benefit equal to the amount that would be payable under
the Retirement Plan (as of the date of payment hereunder) if the
limits under Sections 401(a)(17) and 415 of the Code were not
applicable over the amounts actually payable under the Retirement
Plan (as of the date of payment hereunder).
(b)(1) Subject to Section 4.3
and the following provisions of this subsection (b), the benefits
payable under this Plan shall commence as soon as practicable (but
in any event within ninety (90) days) following the
Participant’s Separation from Service in the form of a single
life annuity or any other life annuity available at the time of
payment under the applicable Retirement Plan (other than an
adjustment for Federal Old Age Benefits (Social Security)) and
elected by the Participant; provided that, in the case of a
Participant who participates in the Retirement Plan for Employees
of Hawaiian Electric Industries, Inc. and Participating
Subsidiaries, as amended from time to time, payment will not
commence until the Participant has attained age fifty-five (55),
and in the case of a Participant who participates in the American
Savings Bank Retirement Plan, as amended from time to time, payment
will not commence until the earlier of the Participant’s
attainment of age sixty-five (65) or the Participant’s
attainment of at least age 55 with vesting service under such plan
of at least ten (10) years.
(2) Notwithstanding the foregoing
provisions of this subsection (b), no payment shall be made to a
Participant until at least six (6) months following the
Participant’s Separation from Service and all amounts that
otherwise would have been payable during such six-month period
shall be paid to the Participant (without interest) in a lump sum
as soon as practicable (but in any event within five
(5) business days) following the expiration of such six-month
period, and subsequent payments under the Plan shall be made in
accordance with the terms of the Plan determined without regard to
such six-month delay requirement.
Section 4.2 Payments
following Death
If a Participant dies while entitled
to benefits under the Plan but before benefits have commenced
pursuant to Section 4.1, his or her surviving spouse (or in
the case of a participant in the Retirement Plan for Employees of
Hawaiian Electric Industries, Inc. and Participating Subsidiaries,
as amended from time to time, his or her designated beneficiary
under such plan if not his or her surviving spouse) shall receive a
benefit equal to the “survivor annuity” described in
the following provisions of this Section 4.2 that commences as
soon as practicable (but in any
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event within ninety (90) days) following
the Participant’s death or, if later, the date the
Participant would have attained age fifty-five (55). No benefit
shall be payable under this Plan in respect of a Participant who
dies before benefits have commenced pursuant to Section 4.1,
who has no surviving spouse and who, at the time of his or her
death, was a Participant in the American Savings Bank Retirement
Plan.
For purposes of this
Section 4.2, “survivor annuity” means a survivor
annuity for the life of the surviving spouse (or designated
beneficiary, as the case may be) under which the payments to the
surviving spouse or designated beneficiary are equal to the amounts
that would be payable as an actuarially equivalent (based on the
actuarial assumptions applicable under the Retirement Plan at the
date of death) survivor annuity under a joint and 50% survivor
annuity based on the benefit calculated under Section 4.1,
provided that the Retirement Plan shall pay so much of that benefit
as is permitted under the terms of the Retirement Plan, with the
excess being paid from this Plan. If the Participant dies before
the date on which he or she would have attained age fifty-five
(55), the survivor annuity shall be calculated as if such
Participant had (i) separated from service on his or her date
of death, (ii) survived to such date, (iii) retired with
an immediate such joint and survivor annuity at such date, and
(iv) died on the day after such date.
Section 4.3 Small-Sum
Cashouts
Subject to the provisions of
Section 4.1(b)(2): (a) to the extent the lump-sum present
value (as determined under the provisions of the applicable
Retirement Plan) of the benefit otherwise payable in accordance
with Section 4.1 or 4.2, when aggregated with the benefit
payable under any other arrangement with which the Plan must be
aggregated pursuant to Section 409A of the Code, does not
exceed the annual limit on deferrals under Section 402(g) of
the Code, determined as of the date of separation from service or
death, as the case may be, the benefit shall be paid to the
Participant (or his or her beneficiary, as the case may be) in one
lump-sum payment, and (b) to the extent the lump-sum present
value (as determined under the provisions of the applicable
Retirement Plan) of the benefit otherwise payable in accordance
with Section 4.1 or 4.2 is not more than $100,000, determined
as of the date as of which payment of be
