Exhibit 5(a)
[XXXXXXXX XXXXXXXX XXXXX & XXXXXX LLP LETTERHEAD]
March 9, 2004
Hawaiian Electric Industries, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Hawaiian Electric Industries Capital Trust II
Hawaiian Electric Industries Capital Trust III
c/o The Bank of New York, as Trustee
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hawaiian Electric Industries, Inc., a Hawaii corporation (the
"Company"), and Hawaiian Electric Industries Capital Trust II and Hawaiian
Electric Industries Capital Trust III, each a statutory trust created under the
laws of the State of Delaware (each a "Trust" and together the "Trusts"), have
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933 (the "Securities Act"), with respect to up to
$200,000,000 maximum aggregate offering price of: (i) an indeterminate number of
Trust Preferred Securities of each Trust, (ii) an indeterminate amount of Senior
Debt Securities, Senior Subordinated Debt Securities and Junior Subordinated
Debt Securities of the Company, consisting of debentures, notes or other
evidences of indebtedness, each in one or more series (collectively, the "Debt
Securities"), (iii) an indeterminate number of shares of Preferred Stock of the
Company, without par value, in one or more series (the "Preferred Stock"), (iv)
an indeterminate number of shares of Common Stock of the Company, without par
value, in one or more series (the "Common Stock"), (vi) the guarantees of the
Company with respect to the Trust Preferred Securities of the Trusts
(collectively, the "Trust Guarantees"), (vii) an indeterminate number of
contracts to purchase shares of the Common Stock (the "Stock Purchase
Contracts"), and (viii) an indeterminate number of units, each comprised of a
Stock Purchase Contract and a beneficial interest in either Senior Debt
Securities or Senior Subordinated Debt Securities, debt obligations of third
parties (including U.S. Treasury securities) or Trust Preferred Securities, in
each such case pledged to secure the holder's obligations to purchase Common
Stock under such Stock Purchase Contract (the "Stock Purchase Units").
HAWAIIAN ELECTRIC INDUSTRIES, INC.
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST II
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST III
March 9, 2004
Page 2
We have examined the Registration Statement and, for purposes of
this opinion, we have assumed that it has become effective. We have also
examined the Restated Articles of Incorporation (the "Articles") and the Amended
and Restated By-laws (the "By-laws") of the Company, each as amended and as in
effect on the date hereof, and such appropriate records of the Company,
certificates of public officials and other documents as we deem pertinent as a
basis for the opinions hereinafter expressed.
On the basis of such review:
1. We are of the opinion that the Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Hawaii.
2. When (i) the applicable provisions of the Securities Act, the
Trust Indenture Act of 1939, as amended, and the securities or "blue sky" laws
of applicable states shall have been complied with, (ii) appropriate resolutions
have been adopted by the Board of Directors of the Company (or a duly appointed
committee or representative thereof) (the "Board") and remain effective
authorizing the issuance and sale of the Debt Securities, the Trust Guarantees,
the Stock Purchase Contracts and the Stock Purchase Units, as applicable, (iii)
the respective indentures between the Company and the Bank of New York, as
trustee, pursuant to which the Debt Securities will be issued, and any
supplemental indenture or other instrument entered into, or otherwise executed
or adopted, thereunder, and the Trust Guarantees have been duly executed and
delivered so as not to violate any applicable law or result in a default under
or breach of any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or governmental
or regulatory body having jurisdiction over the Company, as applicable, (iv) the
respective conditions precedent for the obligations of the Company under the
Trust Guarantees to arise have been satisfied as contemplated in the
Registration Statement and each prospectus supplement and amendment relating
thereto, and (v) the Debt Securities, the Trust Guarantees, the Stock Purchase
Contracts and the Stock Purchase Units, as applicable, have been issued and sold
in return for the consideration specified therefor and as contemplated in the
Registration Statement and each prospectus supplement and amendment relating
thereto, we are of the opinion that the Debt Securities, the Trust Guarantees,
the Stock Purchase Contracts and the Stock Purchase Units will be legally issued
and will be the valid and binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally, to general equitable
principles (whether considered in a proceeding in equity or at law) and to an
implied covenant of reasonableness, good faith and fair dealing.
HAWAIIAN ELECTRIC INDUSTRIES, INC.
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST II
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST III
March 9, 2004
Page 3
3. When (i) the applicable provisions of the Securities Act, and
the securities or "blue sky" laws of applicable states shall have been complied
with, (ii) the relative rights and preferences, designations and limitations of
a series of the Preferred Stock shall have been duly fixed by a resolution of
the Board or by an amendment to the Articles and/or the By-laws, (iii)
appropriate resolutions have been adopted by the Board authorizing the issuance
and sale of the Preferred Stock or the Common Stock, as applicable, in which the
Board fixes the consideration to be received therefor (or the manner in which it
shall be determined) and determines that such consideration is adequate, and
(iv) the shares of the series of the Preferred Stock or the Common Stock, as
applicable, thus established shall have been duly issued and sold in return for
the consideration specified (or determined in accordance with procedures
specified) in such resolution and as contemplated in the Registration Statement
and each prospectus supplement and amendment relating thereto, we are of the
opinion that such shares of the Preferred Stock or the Common Stock, as
applicable, will be validly issued, fully paid and nonassessable.
We are members of the Bar of the State of Hawaii and, for
purposes of this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of Hawaii. We have relied, with your
approval, as to all matters of New York law related to this opinion, upon the
opinion of Xxxxxxxxx Xxxxxxxx LLP addressed to us and filed as Exhibit 5(c) to
the Registration Statement.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the legal
capacity of natural persons who are signatories to the documents examined by us,
(ii) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents (other than the Company), (iii) that all documents examined by us have
been duly authorized, executed and delivered by all parties thereto (other than
the Company).
The opinions expressed herein are based on laws and regulations
as in effect on the date hereof and facts as we understand them as of the date
hereof. We are not assuming any obligation, and do not undertake, to revise,
update or supplement this opinion after the date hereof notwithstanding any
change in applicable law or regulation or interpretation thereof, any amendment,
supplement, modification or rescission of any document examined or relied on in
HAWAIIAN ELECTRIC INDUSTRIES, INC.
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST II
HAWAIIAN ELECTRIC INDUSTRIES CAPITAL TRUST III
March 9, 2004
Page 4
connection herewith, or any change in the facts, after the execution and
delivery of this opinion on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5(a)
to the Registration Statement and to the references to our firm under the
caption "Legal Matters." In giving this consent, however, we do not hereby admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act and the rules and regulations of the Commission
thereunder. This opinion may not be furnished or quoted to, or relied upon, by
any person for any purpose, without our prior written consent.
Very truly yours,
/s/Goodsill Xxxxxxxx Xxxxx & Xxxxxx
A Limited Liability Law Partnership LLP