NextEra Energy Inc., the company looking to buy Hawaii’s largest electric utilities, could have to pay Hawaiian Electric Industries up to $95 million if the state Public Utilities Commission rejects the proposed purchase.
The companies are liable to pay $90 million in a termination fee and reimburse the other party up to $5 million in out-of-pocket “merger-related expenses” if the sale is terminated.
Which company shoulders the fee depends on what halted the sale. HEI had the responsibility of winning over its shareholders. NextEra took on the burden of regulatory approval, according to the merger agreement that NextEra filed with the Securities and Exchange Commission on March 26.
NextEra is required to “use reasonable best efforts to obtain required regulatory approvals and clearances to complete the merger. … NextEra must, under certain circumstances, pay a reverse termination fee of $90 million to HEI if the required regulatory approvals cannot be obtained and the inability to obtain those regulatory approvals is the only reason the merger cannot close,” the filing said.
HEI’s burden was lifted in June after its shareholders approved the sale. It was a successful second attempt after the company failed to get the 75 percent supermajority approval — required by the state — at the original shareholders meeting in May.
But approval of the application looks more doubtful than before since Gov. David Ige, as well as every state agency involved in the PUC review process outside of the final decision-maker, has come out in opposition of the $4.3 billion deal.
The state consumer advocate said Monday that the sale as it stands is not in the public interest. Ige said in July he opposed the sale. In their testimony, the Department of Business, Economic Development and Tourism (which includes the state Energy Office) and the state Office of Planning recommended the PUC reject the sale, with no responsibility to give the applicants a second chance.
After the scathing testimonies, NextEra has began its attempts to win over Hawaii.
Following Ige’s statement, NextEra moved its position on the state’s 100 percent renewable energy goals to align more with Ige and DBEDT.
Ige and the state Energy Office said they were looking for a partner that would help get the state to 100 percent renewable by 2045. In a PUC filing in June, NextEra said the state’s 2045 goal “may prove to be very aggressive” — an unacceptable answer for Ige and his administration.
Since Ige spoke out against the sale, NextEra has said the company supports the plan and will help the state accelerate the timeline.
The consumer advocate listed a set of conditions that it suggested the company adopt for the sale to be approved.
DBEDT and the state Office of Planning were among the 28 approved “intervenors” in the case that filed testimony about the acquisition with the PUC in July.
No group filed testimony with outright support of the sale.
Most of the organizations — including the U.S. Department of Defense — said they either oppose the purchase or could accept it only with conditions.
The PUC said it expects to have a decision by June.
